Poole v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: July 10, 2020
• Docket: 3:19-cv-06096
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 JASON P., 8 Plaintiff, Case No. C19-6096 RSM 9 v. ORDER REVERSING AND 10 REMANDING FOR FURTHER COMMISSIONER OF SOCIAL SECURITY, ADMINISTRATIVE 11 PROCEEDINGS Defendant. 12

13 Plaintiff seeks review of the denial of his applications for Supplemental Security Income 14 and Disability Insurance Benefits. Plaintiff contends the ALJ erred in rejecting Plaintiff’s 15 symptom testimony, and the opinions of his treating physician, Cynthia Edwards, M.D. Pl. Op. 16 Br. (Dkt. 9). Plaintiff contends the ALJ further erred in assessing Plaintiff’s residual functional 17 capacity (“RFC”), and erred in basing his step five determination on that RFC. Id. As discussed 18 below, the Court REVERSES the Commissioner’s final decision and REMANDS the matter for 19 further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 20 BACKGROUND 21 Plaintiff is 44 years old, has a GED, and has worked as a merchandise deliverer, short 22 order cook, vending machine attendant, material handler, store laborer, and electrician helper. 23 Admin. Record (“AR”) (Dkt. 11) 26. Plaintiff applied for benefits on September 13, 2016, ORDER REVERSING AND REMANDING 1 alleging disability as of that date. AR 74–75, 218–32. Plaintiff’s applications were denied 2 initially and on reconsideration. AR 74–105, 108–37. He later amended the alleged onset date 3 to January 10, 2017. See AR 15, 41. After the ALJ conducted a hearing on July 31, 2018, the 4 ALJ issued a decision finding Plaintiff not disabled. AR 15–29. In relevant part, the ALJ found 5 Plaintiff had severe impairments of degenerative disc disease, left shoulder dysfunction, status 6 post left ankle fracture, depression, and anxiety. AR 17. The ALJ found Plaintiff had the RFC 7 to perform a limited range of light work, with exertional, postural, manipulative, and 8 environmental restrictions. AR 19. The ALJ further found Plaintiff cannot work directly with 9 the public, needs a stable work setting that is low pressure, involving only simple decisions. Id. 10 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the

11 Commissioner’s final decision. AR 1–3. 12 DISCUSSION 13 This Court may set aside the Commissioner’s denial of Social Security benefits only if 14 the ALJ’s decision is based on legal error or not supported by substantial evidence in the record 15 as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). The ALJ is responsible for 16 evaluating evidence, resolving conflicts in medical testimony, and resolving any other 17 ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the 18 Court is required to examine the record as a whole, it may neither reweigh the evidence nor 19 substitute its judgment for that of the ALJ. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 20 2002). When the evidence is susceptible to more than one interpretation, the ALJ’s

21 interpretation must be upheld if rational. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 22 2005). This Court “may not reverse an ALJ’s decision on account of an error that is harmless.” 23 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). ORDER REVERSING AND REMANDING 1 A. Plaintiff’s Symptom Testimony 2 Plaintiff testified to physical and mental impairments. See AR 41–61, 266–73. He 3 fractured and dislocated his left ankle in January 2017. See AR 532. Plaintiff testified he cannot 4 bend that ankle as a result. See AR 42. He testified he has swelling in his left lower extremity 5 that worsens from standing and sitting upright with his feet on the floor for long periods of time. 6 AR 56. Plaintiff testified he could stand or walk for 10 to 15 minutes before he would start to 7 feel “thumping” in his left leg. AR 57. He testified he could sit for 30 to 45 minutes before he 8 would have problems with swelling. Id. He testified he needed to elevate his leg four or more 9 times per day for 20 minutes or more. AR 59. 10 Regarding mental impairments, Plaintiff testified he has “a major phobia of being around

11 people.” AR 47. He testified he has severe depression and anxiety. See AR 47, 266, 269. 12 Where, as here, an ALJ determines that a claimant has presented objective medical 13 evidence establishing underlying impairments that could cause the symptoms alleged, and there 14 is no affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as 15 to symptom severity “by offering specific, clear and convincing reasons for doing so. This is not 16 an easy requirement to meet.” Garrison v. Colvin, 759 F.3d 995, 1014–15 (9th Cir. 2014). 17 The ALJ rejected Plaintiff’s testimony regarding the severity of his physical symptoms 18 because it was inconsistent with the medical evidence, and Plaintiff’s activities of daily living. 19 See AR 21–24. The ALJ rejected Plaintiff’s testimony regarding the severity of his mental 20 symptoms because it was inconsistent with the medical evidence, which showed improvement

21 and generally mild symptoms. See AR 21, 24. 22 1. Plaintiff’s Physical Symptom Testimony 23 The ALJ did not harmfully err in rejecting Plaintiff’s testimony regarding the severity of ORDER REVERSING AND REMANDING 1 his physical symptoms. The ALJ erroneously determined Plaintiff’s testimony was inconsistent 2 with the medical evidence, but reasonably found Plaintiff’s testimony was inconsistent with his 3 activities of daily living. Among other things, the ALJ erred to the extent he rejected Plaintiff’s 4 physical symptom testimony based on his refusal to undergo surgery, which his doctors strongly 5 recommended. See AR 22, 536, 548. An ALJ may reject the claimant’s testimony based on a 6 failure to follow treatment recommendations “unless one of a ‘number of good reasons for not 7 doing so’ applies.” Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (quoting Fair v. Bowen, 8 885 F.2d 597, 603 (9th Cir. 1989)). The ALJ did not address Plaintiff’s justification for forgoing 9 surgery—severe anxiety—so the ALJ could not reject Plaintiff’s testimony based on his failure 10 to follow that treatment recommendation.

11 The ALJ reasonably found, however, that Plaintiff’s physical symptom testimony was 12 inconsistent with his daily activities. An ALJ may discount a claimant’s testimony based on 13 daily activities that either contradict his testimony or that meet the threshold for transferable 14 work skills. Orn, 495 F.3d at 639. The ALJ noted Plaintiff umpired seven games in one 15 weekend, attempted jogging, was able to do some yard work, and helped his mother-in-law load 16 a car for a swap meet, all of which contradicted the severity of limitations he alleged. See AR 17 22–23, 568, 599, 634, 737. The ALJ also noted Dr. Edwards indicated Plaintiff was able to do 18 some house repairs because of his pain medication. See AR 24, 746. Although the ALJ 19 overstated the evidence regarding some of Plaintiff’s activities, he reasonably interpreted the 20 record overall in finding Plaintiff’s activities contradicted his testimony regarding the severity of

21 his physical symptoms. 22 Although the ALJ’s analysis was not free from error, Plaintiff has failed to show harmful 23 error. See Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (citing Shinseki v. Sanders, ORDER REVERSING AND REMANDING 1 556 U.S. 396, 407–09 (2009)) (holding the party challenging an administrative decision bears the 2 burden of proving harmful error). An error is harmless “where it is ‘inconsequential to the 3 ultimate disability determination.’” Molina, 674 F.3d at 1115 (quoting Carmickle v. Comm’r, 4 Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). The ALJ gave at least one valid reason 5 for rejecting Plaintiff’s physical symptom testimony, so his inclusion of an erroneous reason was 6 inconsequential. The ALJ therefore did not harmfully err in rejecting Plaintiff’s physical 7 symptom testimony. 8 2. Plaintiff’s Mental Symptom Testimony 9 The ALJ harmfully erred in discounting Plaintiff’s testimony regarding the severity of his 10 mental symptoms because he unreasonably found that testimony inconsistent with the medical

11 evidence. The ALJ noted some aspects of Plaintiff’s mental symptoms improved. See AR 21, 12 24. But Plaintiff continued to experience symptoms of mental impairment, and there are no clear 13 indications his symptoms were well-controlled. See AR 488, 506, 595, 600, 606, 615, 622, 655, 14 738–39. “Reports of improvement in the context of mental health must be interpreted with an 15 understanding of the patient’s overall well-being and the nature of [his] symptoms” as well as 16 “an awareness that improved functioning while being treated and while limiting environmental 17 stressors does not always mean that a claimant can function effectively in a workplace.” 18 Garrison, 759 F.3d at 1017 (internal quotation marks and citations omitted). The ALJ did not 19 reasonably interpret the evidence, and thus harmfully erred in rejecting Plaintiff’s mental 20 symptom testimony.

21 B. Dr. Edwards’s Opinions 22 Dr. Edwards was one of Plaintiff’s treating doctors. See AR 738–46. She completed a 23 questionnaire from Plaintiff’s counsel on May 2, 2018. See AR 708–09. Dr. Edwards opined ORDER REVERSING AND REMANDING 1 Plaintiff needed to elevate his left leg to control swelling. AR 708. Dr. Edwards opined Plaintiff 2 would need to elevate his leg for an average of 30 minutes twice a day, in the later afternoon and 3 early evening. Id. Dr. Edwards opined Plaintiff would require unscheduled periods of elevation 4 if he was “standing for longer periods of time.” AR 709. She opined Plaintiff would be 5 expected to miss three or more days of work per month because of ankle pain, increased anxiety, 6 and depression. Id. 7 An ALJ may reject the contradicted opinions of a treating doctor by giving “specific and 8 legitimate reasons that are supported by substantial evidence in the record.” Lester v. Chater, 81 9 F.3d 821, 830 (9th Cir. 1995) (citing Andrews, 53 F.3d at 1043). The ALJ gave Dr. Edwards’s 10 opinions little weight because he found them inconsistent with her treatment notes. AR 26. As

11 the ALJ reasoned, Dr. Edwards indicated in her treatment notes that Plaintiff tolerated pain 12 medication without significant side effects, and that medication allowed him to do more work 13 around his house. Id. Furthermore, the medical records indicated swelling in Plaintiff’s ankle 14 became an issue later in the day after being on his feet for a significant amount of time. Id. 15 The ALJ erred in rejecting Dr. Edwards’s opinions because he failed to adequately 16 explain the inconsistencies he found between Dr. Edwards’s opinions and her treatment notes. 17 The ALJ failed to explain, for example, how the fact that Plaintiff’s swelling came later in the 18 day was inconsistent with Dr. Edwards’s opinion that Plaintiff needed to elevate his leg for an 19 average of 30 minutes twice a day in the later afternoon and early evening. See AR 26, 708. 20 Similarly, the ALJ failed to explain how Dr. Edwards’s note that Plaintiff could do more while

21 on pain medication contradicted her opinion that Plaintiff needed to elevate his leg due to 22 swelling. See AR 26, 708–09. The ALJ therefore failed to provide specific and legitimate 23 reasons for rejecting Dr. Edwards’s opinions, and harmfully erred. ORDER REVERSING AND REMANDING 1 C. Plaintiff’s RFC 2 Plaintiff argues the ALJ erred in assessing Plaintiff’s RFC and by basing his step five 3 findings on that RFC. Pl. Op. Br. at 9–10. This argument is derivative of Plaintiff’s other 4 arguments, as it is based on the contention the ALJ failed to properly evaluate Plaintiff’s 5 symptom testimony and Dr. Edwards’s opinions. See id. Because the Court has found the ALJ 6 erred in evaluating some of Plaintiff’s symptom testimony and Dr. Edwards’s opinions, 7 Plaintiff’s argument succeeds. See Lingenfelter v. Astrue, 504 F.3d 1028, 1040–41 (9th Cir. 8 2007) (holding ALJ’s RFC assessment and step five determination were not supported by 9 substantial evidence where the RFC and hypotheticals to vocational expert failed to include all of 10 the claimant’s impairments).

11 D. Scope of Remand 12 Plaintiff cursorily asks the Court to remand this matter for an award of benefits. See Pl. 13 Op. Br. at 10. Remand for an award of benefits “is a rare and prophylactic exception to the well- 14 established ordinary remand rule.” Leon v. Berryhill, 880 F.3d 1041, 1044 (9th Cir. 2017). The 15 Ninth Circuit has established a three-step framework for deciding whether a case may be 16 remanded for an award of benefits. Id. at 1045. First, the Court must determine whether the ALJ 17 has failed to provide legally sufficient reasons for rejecting evidence. Id. (citing Garrison, 759 18 F.3d at 1020). Second, the Court must determine “whether the record has been fully developed, 19 whether there are outstanding issues that must be resolved before a determination of disability 20 can be made, and whether further administrative proceedings would be useful.” Treichler v.

21 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014) (internal citations and 22 quotation marks omitted). If the first two steps are satisfied, the Court must determine whether, 23 “if the improperly discredited evidence were credited as true, the ALJ would be required to find ORDER REVERSING AND REMANDING 1 the claimant disabled on remand.” Garrison, 759 F.3d at 1020. “Even if [the Court] reach[es] 2 the third step and credits [the improperly rejected evidence] as true, it is within the court’s 3 discretion either to make a direct award of benefits or to remand for further proceedings.” Leon, 4 880 F.3d at 1045 (citing Treichler, 773 F.3d at 1101). 5 The appropriate remedy here is to remand for further administrative proceedings. The 6 evidence does not conclusively establish Plaintiff is disabled. Dr. Edwards’s opinions are vague 7 in parts, and at minimum conflict with the opinions of Norman Staley, M.D. See AR 116–18, 8 708–09. The ALJ must resolve these ambiguities and conflicts. See Andrews, 53 F.3d at 1039. 9 On remand, the ALJ shall reevaluate Plaintiff’s testimony regarding the severity of his 10 mental symptoms, reevaluate Dr. Edwards’s opinions, and reassess Plaintiff’s RFC. The ALJ

11 shall reevaluate the step five determination, and conduct all further proceedings necessary to 12 reevaluate the disability determination in light of this opinion. 13 CONCLUSION 14 For the foregoing reasons, the Commissioner’s final decision is REVERSED and this 15 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. § 16 405(g). 17 DATED this 10th day of July, 2020.

18 A 19 20 RICARDO S. MARTINEZ CHIEF UNITED STATES DISTRICT JUDGE 21

22 23 ORDER REVERSING AND REMANDING