Myers v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: June 7, 2022
• Docket: 1:21-cv-03103
• Status: Unknown

Opinion

1 2 U.S. F DIL ISE TD R I IN C TT H CE O URT EASTERN DISTRICT OF WASHINGTON 3 Jun 07, 2022 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 ANNA ELENA M., No. 1:21-CV-03103-SAB 9 Plaintiff, 10 v. ORDER GRANTING PLAINTIFF’S 11 COMMISSIONER OF SOCIAL MOTION FOR SUMMARY 12 SECURITY ADMINISTRATION, JUDGMENT; DENYING 13 Defendant. DEFENDANT’S MOTION FOR 14 SUMMARY JUDGMENT 15 16 Before the Court are Plaintiff’s Motion for Summary Judgment, ECF No. 17 11, and Defendant’s Motion for Summary Judgment, ECF No. 12. The motions 18 were heard without oral argument. Plaintiff is represented by D. James Tree, and 19 Defendant is represented by Shata Long Stucky and Timothy Durkin. 20 Jurisdiction 21 On January 19, 2016, Plaintiff filed an application for Title II disability 22 insurance benefits, alleging disability beginning October 10, 2011. 23 Plaintiff’s application was denied initially and on reconsideration.1 On May 24 19, 2021, Plaintiff testified at a telephonic hearing held before an ALJ, with the 25

26 1Plaintiff sought review of the denial from the United States District Court for the 27 Eastern District of Washington, which granted a stipulated motion for remand on 28 April 23, 2020. 1 assistance of Robert Tree. Vern Arne, vocational expert also participated. The 2 ALJ issued a decision on May 26, 2021, finding that Plaintiff was not disabled. 3 Plaintiff filed a timely appeal with the United States District Court for the 4 Eastern District of Washington on August 23, 2021. The matter is before this 5 Court under 42 U.S.C. § 405(g). 6 Sequential Evaluation Process 7 The Social Security Act defines disability as the “inability to engage in any 8 substantial gainful activity by reason of any medically determinable physical or 9 mental impairment which can be expected to result in death or which has lasted or 10 can be expected to last for a continuous period of not less than twelve months.” 42 11 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 12 under a disability only if their impairments are of such severity that the claimant is 13 not only unable to do their previous work, but cannot, considering claimant’s age, 14 education, and work experiences, engage in any other substantial gainful work 15 that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 16 The Commissioner has established a five-step sequential evaluation process to 17 determine whether a person is disabled in the statute. See 20 C.F.R. §§ 18 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 19 Step One: Is the claimant engaged in substantial gainful activities? 20 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work 21 done for pay and requires compensation above the statutory minimum. Keyes v. 22 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 23 substantial activity, benefits are denied. 20 C.F.R. § 404.1520(b), 416.920(b). If 24 the claimant is not, the ALJ proceeds to step two. 25 Step Two: Does the claimant have a medically-severe impairment or 26 combination of impairments? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 27 A severe impairment is one that lasted or must be expected to last for at least 12 28 months and must be proven through objective medical evidence. Id. §§ 404.1509, 1 416.909. If the claimant does not have a severe impairment or combination of 2 impairments, the disability claim is denied. Id. § 404.1520(a)(4)(ii), 3 416.920(a)(4)(ii). If the impairment is severe, the evaluation proceeds to the third 4 step. 5 Step Three: Does the claimant’s impairment meet or equal one of the listed 6 impairments acknowledged by the Commissioner to be so severe as to preclude 7 substantial gainful activity? 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 8 the impairment meets or equals one of the listed impairments, the claimant is 9 conclusively presumed to be disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). If 10 the impairment is not one conclusively presumed to be disabling, the evaluation 11 proceeds to the fourth step. 12 Before considering to the fourth step, the ALJ must first determine the 13 claimant’s residual functional capacity. An individual’s residual functional 14 capacity is their ability to do physical and mental work activities on a sustained 15 basis despite limitations from their impairments. 20 C.F.R. §§ 404.1545(a)(1), 16 416.945(a)(1). The residual functional capacity is relevant to both the fourth and 17 fifth steps of the analysis. 18 Step Four: Does the impairment prevent the claimant from performing 19 work they have performed in the past? 20 C.F.R. §§ 404.1520(a)(4)(iv), 20 416.920(a)(4)(iv). If the claimant is able to perform their previous work, they are 21 not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform 22 this work, the evaluation proceeds to the fifth and final step. 23 Step Five: Is the claimant able to perform other work in the national 24 economy in view of their age, education, and work experience? 20 C.F.R. §§ 25 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 26 claimant to establish a prima facie case of entitlement to disability benefits. 27 Tackett v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a 28 claimant establishes that a physical or mental impairment prevents him from 1 engaging in her previous occupation. Id. At step five, the burden shifts to the 2 Commissioner to show that the claimant can perform other substantial gainful 3 activity. Id. 4 Standard of Review 5 The Commissioner’s determination will be set aside only when the ALJ’s 6 findings are based on legal error or are not supported by substantial evidence in 7 the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) 8 (citing 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 9 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance.” 10 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 11 evidence is “such relevant evidence as a reasonable mind might accept as 12 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The Court must 13 uphold the ALJ’s denial of benefits if the evidence is susceptible to more than one 14 rational interpretation, one of which supports the decision of the administrative 15 law judge. Batson v. Barnhart, 359 F.3d 1190, 1193 (9th Cir. 2004). The Court 16 reviews the entire record. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). “If 17 the evidence can support either outcome, the court may not substitute its judgment 18 for that of the ALJ.” Matney, 981 F.2d at 1019. 19 A decision supported by substantial evidence will be set aside if the proper 20 legal standards were not applied in weighing the evidence and making the 21 decision. Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th 22 Cir. 1988). An ALJ is allowed “inconsequential” errors as long as they are 23 immaterial to the ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. 24 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). 25 Statement of Facts 26 The facts have been presented in the administrative transcript, the ALJ’s 27 decision, and the briefs to this Court; only the most relevant facts are summarized 28 here. 1 Plaintiff was 39 years old on her alleged onset day and 44 years old on her 2 date last insured. She obtained her GED. She is married and has four adult 3 children. She was in a motor vehicle accident in 2011. Since that time, she has had 4 chronic pain in her back and shoulder. She underwent surgery for a rotator cuff 5 tear that was caused by the accident, but she continues to have pain in her 6 shoulder and reduced range of motion. A 2015 MRI showed that Plaintiff had 7 bulging discs in her back. She has prior part-time work between 2011 and 2016 as 8 an office cleaner/janitor. She worked two to four hours a week, emptying the trash 9 during the day and completing light cleaning. 10 Plaintiff testified that she cannot work full-time because she is in pain and 11 has difficulty lifting. She also began experiencing depression and anxiety after the 12 accident. She testified that while she has good days and bad days, she has more 13 bad days than good ones. While every day is painful, there are some days where 14 she cannot move. She testified that on bad days, the pain gets bad in her neck and 15 back and her muscles tighten. On these days, she uses heating pads and ice packs 16 to alleviate her pain. 17 She can no longer drive because she has anxiety/panic attacks behind the 18 wheel, and she also experiences significant anxiety while being a passenger in the 19 car. 20 The ALJ’s Findings 21 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 22 activity from her alleged onset date of October 10, 2011, through her date last 23 insured of September 30, 2016. AR 596. 24 At step two, the ALJ found Plaintiff has the following severe impairments: 25 degenerative joint disease of the left shoulder; degenerative disc disease of the 26 spine; obesity; and depression. AR 596. 27 At step three, the ALJ found that Plaintiff did not have an impairment or 28 combination of impairments that meets or medically equals the severity of one of 1 the listed impairments. AR 597. Ultimately, the ALJ concluded that Plaintiff has a 2 residual function capacity (“RFC”) to perform:

3 A range of light work, as defined in 20 CFR 404.1567(b), as follows: 4 occasionally lift and carry a maximum of 20 pounds; frequent lift and carry a maximum of 10 pounds; stand and/or walk for a total of four 5 hours out of eight hours; sit for a total of six hours out of eight hours; 6 push and/or pull, including operating hand and/or foot controls, without limitation other than shown for lift and carry; frequently 7 climb ramps and stairs; never climb ladders, ropes or scaffolds; 8 frequently balance, stoop, kneel, crouch, and crawl; can perform reaching overhead frequently with the left upper extremity and no 9 limitations with reaching overhead with the right dominate upper 10 extremity; no visual limitations; no communication limitations; should avoid working around hazards such as unprotected heights, 11 heavy machinery, extremes of temperature, and hazardous chemicals; 12 can understand, remember and carry out simple instructions; can exercise simple workplace judgment; can perform work that is 13 learned by on the job training beyond a short demonstration lasting 14 up to and including one month; can respond appropriately to supervisors and co-workers; can deal with occasional changes in the 15 work environment; and can work in jobs that require occasional or 16 less interaction or contact with the general public. AR 599. 17 At step four, the ALJ found that Plaintiff was unable to perform any past 18 relevant work. AR 607. 19 At step five, the ALJ found that Plaintiff was not disabled and capable of 20 performing work that exists in significant numbers in the national economy, 21 including bench assembler/wire worker; electrical accessories assembler; and 22 eyeglass assembler. AR 608. The ALJ also found that if Plaintiff was limited to 23 sedentary exertional level, she was capable of performing work as a document 24 preparer and jewelry preparer. 25 Issues for Review 26 1. Whether the ALJ properly rejected Plaintiff’s symptom testimony? 27 2. Whether the ALJ properly evaluated the medical opinion evidence? 28 1 Analysis 2 Due to Plaintiff’s date last insured through September 30, 2016, Plaintiff 3 was required to establish disability on or before September 30, 2016 to be entitled 4 to disability benefits. 5 1. The ALJ’s evaluation of Plaintiff’s Symptom Testimony 6 In determining whether a claimant’s testimony regarding subjective pain or 7 symptoms is credible, the ALJ engages in a two-step analysis. Garrison v. Colvin 8 759 F.3d 995, 1014 (9th Cir. 2014). “First, the ALJ must determine whether the 9 claimant has presented objective medical evidence of an underlying impairment 10 which could reasonably be expected to produce the pain or other symptoms 11 alleged.” Id. (citation and quotation omitted). If the claimant satisfies the first step 12 of the analysis, and there is no evidence of malingering, the ALJ can reject the 13 claimant’s testimony about the severity of their symptoms “only by offering 14 specific, clear and convincing reasons for doing so.” Id. (citation and quotation 15 omitted). “This is not an easy requirement to meet: The clear and convincing 16 standard is the most demanding required in Social Security cases.” Id. (citation 17 and quotation omitted). That said, if the ALJ’s credibility finding is supported by 18 substantial evidence in the record, the reviewing court “may not engage in second- 19 guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 20 In recognition of the fact that an individual’s symptoms can sometimes 21 suggest a greater level of severity of impairment than can be shown by the 22 objective medical evidence alone, 20 C.F.R. §§ 404.1529(c) and 416.929(c) 23 describe the kinds of evidence, including the factors below, that the ALJ must 24 consider in addition to the objective medical evidence when assessing the 25 credibility of an individual’s statements:

26 1. Daily activities; 2. The location, duration, frequency, and intensity of 27 pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any 28 1 medication an individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, an individual receives 2 or has received for relief of pain or other symptoms; 6. Any measures 3 other than treatment an individual uses or has used to relieve pain or 4 other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors 5 concerning an individual’s functional limitations and restrictions due to 6 pain or other symptoms. SSR 16-3P, 2017 WL 5180304. Daily activities may be grounds for an adverse 7 credibility finding if (1) Plaintiff’s activities contradict her other testimony, or (2) 8 Plaintiff “is able to spend a substantial part of his day engaged in pursuits 9 involving the performance of physical functions that are transferable to a work 10 setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen, 11 885 F.2d 597, 603 (9th Cir. 1989)). 12 The ALJ found that Plaintiff’s statements concerning the intensity, 13 persistence and limiting effects of her symptoms were not entirely consistent with 14 the medical evidence. The ALJ relied on the fact that Plaintiff stopped seeking 15 treatment after October 2015, which, in the ALJ’s mind, suggested that she had 16 improved. The ALJ believed that, at the minimum, this showed there was no 17 evidence of any significant ongoing issues. Additionally, the ALJ concluded that 18 Plaintiff’s daily activities suggested that she was able to do more than she alleged. 19 The ALJ’s reasons for discrediting Plaintiff’s testimony (and the testimony 20 of her husband) do not meet the clear and convincing standard, and as such, is not 21 supported by substantial evidence. It appears the ALJ failed to consider Plaintiff’s 22 testimony that she stopped seeing her providers because she lost insurance 23 coverage. The ALJ apparently believed that all persons would qualify for 24 Obamacare and did not consider Plaintiff’s explanation that she was unable to 25 afford the almost $400/month that it would cost to obtain insurance because her 26 husband’s income slightly exceeded the income limit for help from the State. The 27 ALJ erred in failing to consider whether Plaintiff’s loss of insurance affected or 28 1 explained her lack of treatment, especially given that the ALJ jumped to 2 unfounded speculation that this meant her symptoms must have improved. 3 Moreover, the longitudinal record indicates that when Plaintiff was able to 4 reestablish care in 2018, her symptoms were not gone, but had increased in 5 severity. Additionally, the record does not support the ALJ’s conclusion that 6 Plaintiff’s reported minimal daily activities were inconsistent with her symptom 7 testimony. 8 2. The ALJ’s evaluation of the medical opinion evidence 9 The medical opinion of a claimant’s treating physician is given “controlling 10 weight” as long as it “is well-supported by medically acceptable clinical and 11 laboratory diagnostic techniques and is not inconsistent with the other substantial 12 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2); Trevizo v. 13 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). When a treating physician’s opinion 14 is not controlling, it is weighted according to factors such as the length of the 15 treatment relationship and the frequency of examination, the nature and extent of 16 the treatment relationship, supportability, consistency with the record, and 17 specialization of the physician. § 404.1527(c)(2)-(6). “If a treating or examining 18 doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only 19 reject it by providing specific and legitimate reasons that are supported by 20 substantial evidence. Trevizo, 871 F.3d at 675 (quoting Ryan v. Comm’r of Soc. 21 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). “[A]n ALJ errs when he rejects a 22 medical opinion or assigns it little weight while doing nothing more than ignoring 23 it, asserting without explanation that another medical opinion is more persuasive, 24 or criticizing it with boilerplate language that fails to offer a substantive basis for 25 his conclusion.” Garrison, 759 F.3d at 1012–13 (citing Nguyen v. Chater, 100 26 F.3d 1462, 1464 (9th Cir. 1996)). 27 // 28 // 1 a. Dr. Borish 2 Dr. Borish began treating Plaintiff in 2011, shortly after the accident. He 3 completed a questionnaire for an insurance claim Plaintiff had made related to her 4 automobile accident. He noted that she had a rotator cuff tear in her left shoulder 5 and had strained the cervical, thoracic and lumbar areas of her back. AR 518. He 6 noted that she had limited use of her left arm and shoulder and had restrictions in 7 lifting, working overhead, carrying and bending. He limited her to sedentary work. 8 Dr. Borish completed another questionnaire in 2012 and indicated that Plaintiff 9 continued to have the same restrictions. He was unsure of her prognosis or her 10 ability to return to light duty because of her pain. 11 The ALJ rejected Dr. Borish’s opinion for three reasons: (1) the limitations 12 identified were temporary and likely to improve with treatment; (2) Dr. Borish’s 13 treatment notes were “hand-written and largely illegible and therefore do not 14 clearly support or detract from his functional assessment,” and (3) her complaints 15 focused primarily on her left shoulder and Dr. Borish described her as having a 16 normal gait and lower extremity strength. 17 The ALJ’s reasons for rejecting Dr. Borish’s opinion are not supported by 18 substantial evidence. Rather, the record is sufficiently clear that Dr. Borish, a 19 treating physician, supported his conclusions with objective evidence and his 20 opinions are consistent with the longitudinal record. A close reading of Dr. 21 Borish’s treatment notes allows the reader to discern that his exam of Plaintiff 22 revealed tenderness to the cervical, thoracic and paraspinal muscles and 23 tenderness in the SI joints bilaterally. AR 515. She also had pain in the front 24 aspect of the left shoulder and pain with retractor testing. Id. Finally, Plaintiff 25 never complained of gait or strength issues. Instead, she explained that she cannot 26 do her previous part-time janitorial job because she could not sit, stand, bend, 27 twist or lift, due to pain. Whether she had normal gait or strength issues is 28 irrelevant to whether Plaintiff can work full-time. 1 Because the ALJ failed to provide specific and legitimate reasons, the ALJ 2 erred in rejecting Dr. Borish’s opinion. 3 b. Dr. Phan 4 The ALJ erred in concluding that Dr. Phan’s opinion was based on 5 inaccurate assumptions and diagnoses. A close reading of Dr. Phan’s opinion 6 reveals that he relied on Plaintiff’s history of neck and left shoulder problems, as 7 well as her carpal tunnel problems, to impose limitations on frequent grasping, 8 gripping, twisting, and turning. It is clear Dr. Phan was not basing his opinion on 9 any current symptoms of carpal tunnel syndrome. Rather, these limitations were 10 based on objective evidence in the record including an MRI showing bulging 11 cervical discs, the rotator cuff tear, the reduced range of motion in the neck, back 12 and shoulder and tingling in some digits in the left hand. 13 c. Kaitlyn Llewellyn, PA-C 14 In April 2021, provider Kaitlyn Llewellyn, PA-C, completed a Medical 15 Report indicating that she had treated Myers since November 2019. Tr. 1089. She 16 indicated that Plaintiff had neck pain, back pain with right sciatica numbness and 17 tingling, shoulder pain, knee pain, brain fog, diarrhea and anxiety with panic 18 attacks during driving and while in stores. Id. Her clinical findings included spinal 19 and paraspinal tenderness of cervical, thoracic, and lumbar spine on exam; MRI of 20 the lumbar spine with degenerative changes noted; and x-ray of the cervical spine. 21 Ms. Llewellyn noted that Plaintiff “has had minimal improvements over the past 22 several years despite multiple treatments. Has been referred to pain management 23 and PT for chronic pain to hopefully provide some more improvement, although 24 pain unlikely to resolve.” AR 1090. Ms. Llewellyn opined that Plaintiff would 25 likely miss four or more days of work per month. 26 The ALJ gave little weigh to Ms. Llewellyn’s opinion for two reasons: (1) 27 Ms. Llewellyn did not begin treating Plaintiff until November 2019; and (2) “her 28 assessment is vague and excessive and without detailed explanation regarding 1 how the objective findings she noted would cause the claimant to miss work.” AR 2 606. Neither of these reasons are supported by the record. 3 First, Ms. Llewellyn’s opinion is consistent with Plaintiff’s medical records, 4 beginning in 2011, when she was in the motor vehicle accident, and throughout 5 when she was seeking care for chronic pain after the accident. Ms. Llewellyn 6 noted that Plaintiff’s condition has remained largely unchanged for the several 7 years that she had treated her, and also concluded that her pain was unlikely to be 8 resolved in the future. AR 1090. Given the chronic and unchanging nature of 9 Plaintiff’s pain symptoms, the ALJ erred in rejecting Ms. Llewellyn’s opinion 10 because she only began treating her in 2019. Also, contrary to the ALJ’s opinion, 11 Ms. Llewellyn provided a detailed description of Plaintiff’s diagnosis, symptoms, 12 clinical findings, treatment and prognosis. The ALJ’s conclusion that her opinion 13 was “vague and excessive” was not supported by substantial evidence. On the 14 contrary, Ms. Llewellyn’s conclusion that Plaintiff would miss work due to pain 15 was well-supported by objective evidence. The ALJ erred in giving Ms. 16 Llewellyn’s opinion little weight. 17 3. Conclusion 18 Here, the ALJ committed legal error in rejecting the opinions of Dr. Borish, 19 Dr. Phan, and Ms. Llewellyn. If these opinions were properly considered, it is 20 clear Plaintiff is unable to work on a regular and continuous basis. It is clear she 21 would miss more than four days a month and would be unable to sustain full-time 22 employment. As such, a remand in this case would only delay an award. As such, 23 the Court will reverse the Commissioner’s decision and remand for an immediate 24 calculation and award of benefits. 25 Accordingly, IT IS HEREBY ORDERED: 26 1. Plaintiff’s Motion for Summary Judgment, No. 11, is GRANTED. 27 2. Defendant’s Motion for Summary Judgment, No. 12, is DENIED. 28 3. The decision of the Commissioner denying benefits is reversed and remanded for an immediate calculation and award of benefits. 4. The District Court Executive is directed to enter judgment in favor of Plaintiff and against Defendant. IT IS SO ORDERED. The District Court Executive is hereby directed to 5|| file this Order, provide copies to counsel, and close the file. DATED this 7th day of June 2022.

8 9 ‘ Shockey ec toar i Stanley A. Bastian 12 Chief United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY TIMCNMENT. NENVING NEERENDANTIOR MATION ENP CTIMMARYV