Robinson v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: September 12, 2023
• Docket: 2:23-cv-00034
• Status: Unknown

Opinion

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5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 RONNIE R., III, CASE NO. 2:23-CV-34-DWC 11 Plaintiff, ORDER REVERSING AND 12 v. REMANDING DEFENDANT’S DECISION TO DENY BENEFITS 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15

Plaintiff filed this action under 42 U.S.C. § 405(g) for judicial review of Defendant’s 16 denial of his application for supplemental security income benefits (“SSI”).1 After considering 17 the record, the Court concludes the Administrative Law Judge (“ALJ”) erred in failing to 18 consider whether Plaintiff’s right arm injury resulting from a gunshot wound constituted a 19 medically determinable severe impairment at Step Two. Although the ALJ mentioned the injury 20 when assessing Plaintiff’s residual functional capacity (“RFC”), it is not clear whether he 21 22

23 1 Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and Local Rule MJR 13, the parties 24 have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 6. 1 properly accounted for all evidence relating to the gunshot wound and subsequent aggravating 2 injury. The ALJ also erred in his evaluation of certain medical opinion evidence. Had the ALJ 3 properly considered this evidence and assessed whether Plaintiff’s arm injury was a severe 4 impairment at Step Two, the RFC may have included additional limitations. Accordingly, these

5 errors were not harmless, and this matter should be reversed and remanded pursuant to sentence 6 four of 42 U.S.C. § 405(g) to the Acting Commissioner of Social Security (“Commissioner”) for 7 further proceedings consistent with this Order. 8 I. Factual and Procedural History 9 Plaintiff filed an application for SSI on June 30, 2017, alleging disability beginning 10 March 10, 2016, due to sleep disturbance, major depressive disorder, post-traumatic stress 11 disorder (“PTSD”), and chronic post-thoracotomy pain. Dkt. 8; Administrative Record (“AR”) 12 139, 161. After his application was denied at the initial level and on reconsideration, Plaintiff 13 requested a hearing before an ALJ. AR 82, 91, 94. Plaintiff was represented by counsel at the 14 hearing, which took place on December 14, 2018. AR 32. The ALJ issued an unfavorable

15 decision on February 27, 2019, and the Appeals Council denied Plaintiff’s request for review. 16 AR 1, 15. Plaintiff then appealed to the United States District Court for the Western District of 17 Washington. AR 432–34. On January 25, 2021, the Court reversed the Commissioner’s decision, 18 finding that the ALJ had erred in rejecting certain medical opinion evidence, and remanded the 19 case for further administrative proceedings.2 AR 435–40; Ronnie R. v. Comm’r of Soc. Sec., No. 20 2:20-cv-00252-BAT, 2021 WL 236633 (W.D. Wash. Jan. 25, 2021). 21

22 2 In December 2018, after the ALJ hearing, Plaintiff sustained a gunshot wound to his right arm. See AR 23 602, 981. He filed a second application for SSI on June 23, 2020, that included a claim of disability resulting from this injury. See AR 442–59. After this Court reversed and remanded the decision on Plaintiff’s first SSI application, 24 the two claims were consolidated for consideration by an ALJ. AR 460–62. 1 On August 4, 2022, an ALJ held a new hearing at which Plaintiff was represented by 2 counsel. AR 373. The ALJ issued a written decision on September 8, 2022, again finding 3 Plaintiff not disabled. AR 349–66. Plaintiff did not file written exceptions with the Appeals 4 Council, making the September 2022 decision the final decision of the Commissioner. See AR

5 346–48. On January 6, 2023, Plaintiff appealed the Commissioner’s denial of benefits to this 6 Court. Dkt. 1. 7 Plaintiff maintains the ALJ erred by failing to properly evaluate certain medical opinion 8 evidence and by failing to find Plaintiff’s right arm injury from a gunshot wound to be a severe 9 impairment. Id. 10 II. Standard of Review 11 When reviewing the Commissioner’s final decision under 42 U.S.C. § 405(g), this Court 12 may set aside the denial of social security benefits if the ALJ’s findings are based on legal error 13 or are not supported by substantial evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 14 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). However,

15 the Commissioner’s decision must be affirmed if it is supported by substantial evidence and free 16 of harmful legal error. 42 U.S.C. § 405(g); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 17 2008). Substantial evidence “is a highly deferential standard of review.” Valentine v. Comm’r of 18 Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). Evidence is “substantial” when it is “more 19 than a mere scintilla.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). “It means—and means 20 only—‘such relevant evidence as a reasonable mind might accept as adequate to support a 21 conclusion.’” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 22 III. Discussion 23 Plaintiff does not challenge the ALJ’s finding that his subjective symptom reporting is

24 1 less than fully credible and has therefore waived his right to do so. See Dkt. 13; AR 355; McKay 2 v. Ingleson, 558 F.3d 888, 891 n.5 (9th Cir. 2009) (“Because this argument was not raised clearly 3 and distinctly in the opening brief, it has been waived.”). Rather, Plaintiff argues that the ALJ did 4 not properly evaluate certain medical opinions in the record and failed to support his findings,

5 beginning at Step Two of the sequential evaluation, with substantial evidence. See Dkt. 13. 6 A. Step Two Findings 7 Plaintiff argues that the ALJ erred at Step Two of the disability evaluation when he failed 8 to discuss Plaintiff’s right arm injury following a gunshot wound or explain why it did not 9 constitute a severe impairment. Id. at 16–17. 10 1. Legal Standard 11 The Commissioner follows a five-step sequential evaluation process for determining 12 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920. Step Two of the evaluation 13 process requires the ALJ to determine “whether the claimant has a medically severe impairment 14 or combination of impairments.” Smolen v. Chater, 80 F.3d 1273, 1289–90 (9th Cir. 1996); see

15 also 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The claimant must provide relevant 16 evidence to establish a medically determinable impairment, such as objective medical evidence 17 (i.e., signs and laboratory findings) and medical opinions. 20 C.F.R. §§ 404.1512(a), 18 404.1513(a); see also Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005) (holding the 19 plaintiff failed to establish an impairment at Step Two when “none of the medical opinions 20 included a finding of impairment, a diagnosis, or objective test results”). To be considered 21 “severe,” an impairment or combination of impairments must significantly limit the claimant’s 22 physical or mental ability to conduct basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). 23 “Basic work activities are ‘abilities and aptitudes necessary to do most jobs, including, for

24 example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling.’” 1 Smolen, 80 F.3d at 1290 (quoting 20 C.F.R. § 140.1521(b)). “An impairment or combination of 2 impairments can be found ‘not severe’ only if the evidence establishes a slight abnormality that 3 has ‘no more than a minimal effect on an individual[’]s ability to work.’” Id. (quoting Yuckert v. 4 Bowen, 841 F.2d 303, 306 (9th Cir. 1988)).

5 2. Step Two Assessment 6 Here, at Step Two, the ALJ found Plaintiff had the following severe impairments: 7 penetrating chest injury status post clamshell thoracotomy, obstructive sleep apnea, depressive 8 disorder, anxiety disorder, substance use disorder (alcohol), sarcoidosis, and PTSD. AR 351. He 9 found the other impairments mentioned in the record, including obesity, asthma, and cough, to be 10 non-severe. AR 351–52. The ALJ did not specifically address Plaintiff’s arm injury in the Step 11 Two discussion, noting only that “[f]indings on physical examination are often normal to include 12 full strength and motion in [Plaintiff’s] extremities[.]” Id. He acknowledged that “the record may 13 contain other physical and mental diagnoses,” but found the listed severe impairments “best 14 capture [Plaintiff’s] physical and mental conditions during the period at issue.” AR 352. The ALJ

15 wrote that he “nonetheless considered all of [Plaintiff’s] allegations and impairments” in 16 assessing his residual functional capacity. Id. 17 The record shows Plaintiff complained of continued pain, numbness, and weakness in his 18 right arm after sustaining a gunshot wound in December 2018 requiring brachial artery repair. 19 See AR 599–605, 609, 772, 789, 791, 799–800. After his then-18-month-old son “jumped on his 20 arm” in November 2020, Plaintiff reported bruising, renewed pain, cramping, and muscle 21 spasms. AR 742, 849, 967–68, 971, 975, 979, 984–85. On March 31, 2021, Dr. Hannah Van 22 Patten conducted a physical exam and noted that Plaintiff’s “[r]ight biceps muscle bulk is more 23 proximal than normal on flexion[.]” AR 979–80. Dr. Van Patten discussed with Plaintiff “that his

24 symptoms of cramping and spasm are likely related to the altered anatomy from the transection 1 of his right distal biceps from the [gunshot wound] in 2018” and referred him to physical 2 therapy. AR 981. 3 On June 10, 2021, physical therapist Sarah Woodward noted Plaintiff’s complaints of 4 intermittent muscle spasms and cramping pain in his right biceps with activity or lifting. AR 975.

5 Plaintiff rated the pain as a six out of ten and said that it tended to last one to two hours before 6 resolving. Id. On physical examination, Ms. Woodward noted a “proximalization of [Plaintiff’s] 7 biceps on the right, normal grip strength and sensation.” Id. She found slightly decreased elbow 8 flexion on the right side “with cramping pain” and marked the passive biceps stretch as 9 “painful.” AR 976. In her assessment, she found “reduced strength, reduced bulk, and pain 10 during passive tension” that indicated a “right biceps strain/tear.” AR 977. She also opined that 11 the tear was “chronic in nature at this point as onset with bruising, etc[.] was in November 12 2020.” Id. 13 On August 10, 2022, Dr. Linchi Pham, Plaintiff’s treating physician, assessed his ability 14 to perform work-related activities. AR 992. Dr. Pham noted that Plaintiff had a weakened right

15 bicep muscle and was unable to lift ten pounds or less. Id. She specified that Plaintiff had a 16 limited ability to lift, push, and pull with his right arm and therefore was unable to climb ladders, 17 work on cranes, or move machinery. AR 993–95. 18 In the ALJ’s decision, he included citations to five pages in the record in support of his 19 statement that “[f]indings on physical examination are often normal to include full strength and 20 motion in [Plaintiff’s] extremities[.]” AR 352. The first two citations reference progress notes 21 from 2016 and 2017, before Plaintiff was shot. See AR 255–57, 275–76, 352. The next two cite 22 to records from 2019, after the shooting but before the injury was aggravated. See AR 352, 791, 23 799–800. On August 2, 2019, the provider wrote that Plaintiff’s “arm continues to improve, but

24 1 he still has pains in it with heavy lifting.” AR 800. The note from the November 19, 2019, visit 2 does not specifically mention any concerns with Plaintiff’s arm injury. AR 791. Both records 3 noted in the neurological section of the general physical exam that Plaintiff was “[m]oving all 4 extremities equally.” AR 791, 800. The ALJ’s final citation references a provider note from

5 Plaintiff’s July 28, 2021, emergency room visit for severe chest pain. See AR 352, 956–58. The 6 general physical exam from that visit includes the single line: “Musculoskeletal: Normal range of 7 motion.” AR 958. Given the urgent circumstances of the emergency room visit, this brief 8 reference does not constitute more than a “mere scintilla” of support for the ALJ’s finding. 9 Taken together, these citations do not provide sufficient evidence to support the only finding at 10 Step Two that could be considered a reference to Plaintiff’s arm injury. 11 The failure to consider evidence of a diagnosis and limitations is error. See Flores v. 12 Shalala, 49 F.3d 562, 570–71 (9th Cir. 1995) (noting that an ALJ “may not reject significant 13 probative evidence without explanation”). Here, the ALJ failed to discuss significant, probative 14 evidence showing functional limitations in Plaintiff’s physical abilities. This omission in

15 assessing Plaintiff’s severe impairments was error. 16 3. Harmless Error 17 The Commissioner argues that any error at Step Two was harmless because it would not 18 have changed the ALJ’s decision. Dkt. 16 at 8–9. “[H]armless error principles apply in the Social 19 Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), superseded on 20 other grounds by 20 C.F.R. § 404.1502(a). Generally, an error is harmless if it is not prejudicial 21 to the claimant and is “inconsequential to the ultimate nondisability determination.” Stout v. 22 Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Molina, 674 F.3d at 23 1115. The determination as to whether an error is harmless requires a “case-specific application

24 of judgment” by the reviewing court, based on an examination of the record made “without 1 regard to errors that do not affect the parties’ substantial rights.” Shinseki v. Sanders, 556 U.S. 2 396, 407 (2009) (cleaned up). If an ALJ fails to find a severe impairment at Step Two but 3 accounts for any limitations resulting from the alleged impairment in assessing RFC, the Step 4 Two error is harmless. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

5 Here, the ALJ determined that Plaintiff has the RFC to perform light work as defined in 6 20 C.F.R. § 416.967(b), with certain exceptions. AR 354. The exceptions relevant to Plaintiff’s 7 arm injury included: “he can never reach overhead; he can frequently reach at or below shoulder 8 level; he can frequently handle and finger; . . . he can never crawl or kneel; [and] he can never 9 climb ropes, ladders, [or] scaffolds[.]” Id. The ALJ wrote that he had considered all of Plaintiff’s 10 symptoms, medical opinions, and prior administrative medical findings. Id. He included 11 “residual . . . gunshot wound symptoms such as right arm weakness” among Plaintiff’s alleged 12 disabilities. Id. He also listed some limitations relating to Plaintiff’s arm injury among the 13 alleged symptoms, including inability to lift, pain with movement, upper extremity weakness, 14 post-shooting residual limitations, and difficulty with activities of daily living. Id.

15 Although the ALJ references Plaintiff’s arm injury, it is not clear whether he properly 16 considered all evidence relating to the gunshot wound and subsequent chronic biceps tear when 17 determining Plaintiff’s RFC. The RFC includes some limitations related to Plaintiff’s arm injury 18 but could have contained additional limitations if the ALJ had found a severe impairment from 19 these injuries at Step Two. For example, the ALJ found that the Plaintiff could perform light 20 work, which may include “lifting no more than 20 pounds at a time with frequent lifting or 21 carrying of objects weighing up to 10 pounds” and “some pushing and pulling of arm or leg 22 controls.” 20 C.F.R. § 416.967(b). Plaintiff’s treating physician indicated that, because of 23 Plaintiff’s arm injury, he was unable to lift more than 10 pounds and had a limited ability to lift,

24 1 push, and pull with his right arm. AR 992–95. Because the ALJ did not articulate any evaluation 2 of whether Plaintiff’s arm injury constituted a severe impairment, the Court cannot determine 3 whether he properly accounted for all evidence of these limitations in deciding the RFC. 4 Accordingly, the Step Two error was harmful, and reversal is warranted.

5 B. Medical Opinion Evidence 6 Plaintiff contends that the ALJ also erred in failing to properly evaluate several medical 7 opinions in the record and articulate his reasoning for rejecting those opinions. Dkt. 13 at 3. 8 1. Legal Standard 9 The regulations regarding the evaluation of medical opinion evidence have been amended 10 for claims filed on or after March 27, 2017. See Revisions to Rules Regarding the Evaluation of 11 Medical Evidence, 82 Fed. Reg. 5844, 5867–68, 5878–79 (Jan. 18, 2017). Because Plaintiff filed 12 his claim after that date, the new regulations apply. See 20 C.F.R. §§ 404.1520c, 416.920c. 13 Under the revised regulations, ALJs “will not defer or give any specific evidentiary weight, 14 including controlling weight, to any medical opinion(s) or prior administrative medical

15 finding(s)[.]” Id. §§ 404.1520c(a), 416.920c(a). Instead, ALJs must consider every medical 16 opinion or prior administrative medical findings in the record and evaluate each opinion’s 17 persuasiveness using specific factors. Id. §§ 404.1520c(a), 416.920c(a). 18 The two most important factors affecting an ALJ’s determination of persuasiveness are 19 the opinion’s “supportability” and “consistency.” Id. §§ 404.1520c(a), 416.920c(a). 20 “Supportability means the extent to which a medical source supports the medical opinion by 21 explaining the ‘relevant . . . objective medical evidence.’ Consistency means the extent to which 22 a medical opinion is ‘consistent . . . with the evidence from other medical sources and 23 nonmedical sources in the claim.’” Woods v. Kijakazi, 32 F.4th 785, 791–92 (9th Cir. 2022)

24 1 (quoting 20 C.F.R. §§ 404.1520c(c)(1), 404.1520c(c)(2)); see also 20 C.F.R. §§ 416.920c(c)(1), 2 416.920c(c)(2). ALJs must articulate “how [they] considered the supportability and consistency 3 factors for a medical source’s medical opinions or prior administrative medical findings in [the] 4 determination or decision.” 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2).

5 2. Medical Opinion Evaluation 6 Plaintiff challenges the ALJ’s assessment of medical opinion evidence from Dr. Tasmyn 7 Bowes, Psy.D.; Dr. Janis Lewis, Ph.D.; Mr. Tyler Robinson, LICSW, and Dr. Sara Silva, ARNP, 8 DNP; and Dr. Linchi Pham, M.D. Dkt. 13 at 3–16. As the Court has found reversable error at 9 Step Two, the Court declines to address all the alleged errors but notes the following in 10 particular. 11 On March 18, 2020, Dr. Janis Lewis reviewed Plaintiff’s medical records to evaluate his 12 functional mental limitations and the severity of his mental disorders. AR 821–23. Based on her 13 review of Plaintiff’s mental health records, Dr. Lewis found severe limitations on Plaintiff’s 14 ability to complete a normal workday and workweek without interruptions from psychologically

15 based symptoms and his ability to set realistic goals and plan independently. AR 822. She also 16 found marked limitations in Plaintiff’s ability to perform multiple other work-related activities. 17 Id. Dr. Lewis diagnosed Plaintiff with PTSD and substance use disorder but noted that the 18 impact on Plaintiff’s ability to work was not primarily due to substance use. AR 823. 19 The entirety of the ALJ’s discussion of Dr. Lewis’ opinion reads: 20 In March 2020, Janis Lewis, Ph.D., a non-examining consultant, reviewed the April 2019 opinion of Dr. Bowes and the August 2022 opinions of Ms. Silva and Mr. 21 Robinson but did not appear to indicate to what extent, if any, she opined that the opinions of Drs. Lewis and Bowes were consistent with the record (10F). 22 AR 364. 23 24 1 This paragraph contains several errors. First, Dr. Lewis could not have reviewed the 2 opinions of Dr. Silva and Mr. Robinson because their assessment was completed over two years 3 after she reviewed Plaintiff’s records. Also, it appears that Dr. Lewis’ name was included in the 4 last line by mistake, but it is not clear which provider the ALJ intended to reference. Finally, the

5 ALJ failed to articulate the persuasiveness of Dr. Lewis’ opinion or the factors supporting that 6 assessment. 7 The ALJ “need not discuss all evidence presented.” Vincent ex rel. Vincent v. Heckler, 8 739 F.2d 1393, 1394–95 (9th Cir. 1984). However, the ALJ “may not reject ‘significant 9 probative evidence’ without explanation.” Flores, 49 F.3d at 570–71 (quoting Vincent, 739 F.2d 10 at 1395). The “ALJ’s written decision must state reasons for disregarding [such] evidence[.]” Id. 11 at 571. “We require the ALJ to build an accurate and logical bridge from the evidence to her 12 conclusions so that we may afford the claimant meaningful review of the SSA’s ultimate 13 findings.” Blakes v. Barnhart, 331 F.3d 565, 569 (7th Cir. 2003). 14 Because the Court cannot determine if the ALJ properly accounted for the limitations

15 included in Dr. Lewis’ opinion in the RFC or simply ignored the evidence, the Court finds the 16 ALJ erred. Had the ALJ properly considered all of Dr. Lewis’ opined limitations, the RFC may 17 have included additional limitations. Accordingly, the ALJ’s error in considering Dr. Lewis’ 18 opinion is not harmless and requires reversal. 19 Lastly, a review of the ALJ’s decision indicates that he relied on outdated medical 20 opinion evidence in determining Plaintiff’s RFC. The ALJ did not give weight to any records 21 that accounted for the impact of Plaintiff’s chronic arm injury on his physical and mental 22 impairments. On remand, Plaintiff should be provided an opportunity to update the record, and 23 the ALJ should reevaluate all medical records and opinions.

24 1 IV. Conclusion 2 Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded 3 Plaintiff was not disabled. Accordingly, the Commissioner’s decision to deny benefits is 4 reversed, and this matter is remanded for further administrative proceedings in accordance with

5 the findings contained herein. 6 Dated this 12th day of September, 2023. 7 8 A

David W. Christel Chief United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24