Shinn v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: September 18, 2020
• Docket: 2:19-cv-01020
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA 6 JENNIFER S., Case No. 2:19-cv-01020 7 Plaintiff, v. ORDER REVERSING AND 8 REMANDING DEFENDANT’S COMMISSIONER OF SOCIAL DECISION TO DENY BENEFITS 9 SECURITY, 10 Defendant. 11 12 Plaintiff has brought this matter for judicial review of Defendant’s denial of her 13 application for disability insurance benefits (“DIB”). 14 The parties have consented to have this matter heard by the undersigned 15 Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule 16 MJR 13. For the reasons set forth below, the undersigned agrees that the ALJ erred, 17 and the ALJ’s decision is reversed and remanded for an award of benefits. 18 I. ISSUES FOR REVIEW 19 1. Did the ALJ err in evaluating the medical opinion evidence? 2. Did the ALJ err in assessing an opinion from Plaintiff’s physical 20 therapist?

21 II. BACKGROUND 22 On October 10, 2012, Plaintiff filed an application for DIB, alleging a disability 23 onset date of June 3, 2011. AR 17, 160-61. Plaintiff’s application was denied upon initial 24 administrative review and on reconsideration. AR 17, 93-95, 99-100. A hearing was held 1 before Administrative Law Judge (“ALJ”) Kimberly Boyce on May 20, 2015. AR 35-67, 2 722-55. On July 27, 2015, ALJ Boyce ALJ issued a written decision finding that Plaintiff 3 was not disabled. AR 14-29, 667-82. The Social Security Appeals Council denied 4 Plaintiff’s request for review on January 19, 2017. AR 1-8, 688-91.

5 On March 2, 2017, Plaintiff sought judicial review of ALJ Boyce’s written decision. 6 AR 692-94. On November 15, 2017, this Court issued an order reversing the ALJ’s 7 decision and remanding this case for reconsideration of Plaintiff’s testimony, a physical 8 examination conducted by Virtaj Singh, M.D., and opinion evidence from Ronald 9 Vincent, M.D., J. Michael Geier, M.D, Douglas Langrock, M.D., and physical therapist 10 Dan Crowley. AR 695-713. On January 29, 2018, the Appeals Council vacated ALJ 11 Boyce’s decision and issued an order remanding the case for further administrative 12 proceedings consistent with the Court’s order. AR 717-21. 13 On February 19, 2019, ALJ Boyce held a new hearing. AR 631-66. On April 29, 14 2019, ALJ Boyce issued a decision finding that Plaintiff was not disabled. AR 604-24.

15 Plaintiff seeks judicial review of the ALJ’s April 29, 2019 decision. Dkt. 1. 16 III. STANDARD OF REVIEW 17 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's 18 denial of Social Security benefits if the ALJ's findings are based on legal error or not 19 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874 20 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a 21 reasonable mind might accept as adequate to support a conclusion.’” Biestek v. 22 Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). 23

24 1 IV. DISCUSSION 2 In this case, the ALJ found that Plaintiff had a range of severe, medically 3 determinable impairments, including residuals from cervical spine discectomy and 4 laminectomy, right trochanteric bursitis, and fibromyalgia. AR 610. The ALJ also found

5 that Plaintiff had a range of non-severe impairments. AR 610-12. 6 Based on the limitations stemming from these impairments, the ALJ found that 7 Plaintiff could perform a reduced range of sedentary work. AR 615. Relying on 8 vocational expert (“VE”) testimony, the ALJ found that while Plaintiff could not perform 9 her past work, she could perform other sedentary, unskilled jobs at step five of the 10 sequential evaluation; therefore the ALJ determined at step five that Plaintiff was not 11 disabled. AR 622-24, 661-64. 12 A. Whether the ALJ erred in evaluating the medical opinion evidence 13 Plaintiff contends that the ALJ erred in evaluating medical opinions from 14 examining physicians Virtaj Singh, M.D., Michael Geier, M.D, Douglas Langrock, M.D.,

15 and non-examining state agency consultant William Backlund, M.D. Dkt. 9, pp. 4-11, 13- 16 18. 17 In assessing an acceptable medical source – such as a medical doctor – the ALJ 18 must provide “clear and convincing” reasons for rejecting the uncontradicted opinion of 19 either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 20 1995) (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)); Embrey v. Bowen, 21 849 F.2d 418, 422 (9th Cir. 1988)). When a treating or examining physician’s opinion is 22 contradicted, the opinion can be rejected “for specific and legitimate reasons that are 23 supported by substantial evidence in the record.” Lester, 81 F.3d at 830-31 (citing

24 1 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 2 499, 502 (9th Cir. 1983)). 3 1. Dr. Singh 4 Plaintiff contends that the ALJ erred by failing to consider the results of an

5 examination conducted by Dr. Singh, despite this Court’s finding that the ALJ erred by 6 failing to do so in her 2015 decision. Dkt. 9, pp. 4, 6-7; AR 698-702. If an administrative 7 proceeding deviates from the reviewing court’s remand order, this is legal error and 8 would be cause for reversal on further judicial review. Sullivan v. Hudson, 490 U.S. 877, 9 885–86, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989); Ischay v. Barnhart, 383 F. Supp.2d 10 1199, 1213-1214 (C.D. Cal. 2005). 11 Dr. Singh stated that Plaintiff’s pain complaints were “very complicated” and 12 opined that Plaintiff’s symptoms and the results of his examination most closely fit a 13 diagnosis of neurogenic thoracic outlet syndrome. AR 566. 14 Dr. Singh saw Plaintiff on December 23, 2014. AR 564-67. Dr. Singh discussed

15 Plaintiff’s physical and mental symptoms with her, reviewed her medical records, and 16 conducted a physical examination. During Dr. Singh’s examination, Plaintiff exhibited 17 pain and tightness in her neck, tension in her right arm, and diffuse tenderness in her 18 cervical spine. AR 565-66. 19 Dr. Singh’s examination further revealed that Plaintiff was markedly tender on 20 palpation over her bilateral greater occipital nerves with re-creation of her headaches, 21 markedly tender on palpation over her bilateral upper and mid-cervical facet joints, and 22 exhibited tenderness and spasm along her right greater than left cervical paraspinals 23 into her right greater than left trapezius. AR 566. Dr. Singh noted that Plaintiff’s left

24 1 trapezius was hemielevated, and that she exhibited tenderness and spasm across her 2 scalenes, especially on the right, and on her pectoralis minor muscle. Id. 3 In its remand order, this Court found that the ALJ erred by not discussing the 4 results of Dr. Singh’s examination, which were consistent with the improperly

5 discounted opinion of Plaintiff’s physical therapist, Mr. Crowley. AR 20, 698-702; see 6 Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995) (an ALJ “may not reject 7 ‘significant probative evidence’ without explanation.”) (internal citations omitted). 8 The ALJ briefly cited (in the 2019 decision) some of Dr. Singh’s examination 9 findings when evaluating Plaintiff’s testimony, along with the opinion evidence, and the 10 severity of her impairments, but failed to discuss the results or conclusions of Dr. 11 Singh’s examination in any detail, and failed to discuss the evidence this Court found 12 significant and probative in its remand order. AR 611-12, 616-17, 620-22, 698-702. 13 Accordingly, the ALJ erred by not complying with the Court’s remand order, and 14 erred in evaluating the results of Dr. Singh’s examination.

15 2. Dr. Geier 16 Plaintiff underwent a right C5-C6 discectomy with her treating neurosurgeon, Dr. 17 Geier, on October 18, 2011. AR 345-47. 18 Plaintiff experienced some post-surgical complications, but in January 2012 Dr. 19 Geier observed that Plaintiff was “doing fine” and needed to work on recovering strength 20 and flexibility in her cervical spine. AR 339-41. Dr. Geier estimated that it would be 21 between 4 and 6 months before he would give “any consideration” to releasing Plaintiff 22 back to work. AR 340. 23

24 1 In February 2012, Dr. Geier referred Plaintiff to physical therapy because she 2 continued to have significant problems with muscle tension, and stated that Plaintiff 3 remained unable to work in any capacity. AR 337-38. 4 In August 2012, Dr. Geier opined that it was “obvious” that Plaintiff had ongoing

5 difficulties stemming from her original work injury, including a residual C6 nerve root 6 injury and a residual muscular injury which was partially exacerbated by her October 7 2011 surgery. AR 321, 480. Dr. Geier stated that the damage to Plaintiff’s nerve roots 8 was irreparable, opined that Plaintiff had a permanent injury that made it impossible for 9 Plaintiff to return to her past work at the time, and added that it was “questionable” 10 whether Plaintiff would ever be able to resume working at her job of injury. Id. 11 In September 2012, Dr. Geier opined Plaintiff had reached “maximal medical 12 improvement which placed her at a degree of disability”, but stated that he was unable 13 to assess Plaintiff’s precise degree of limitation. AR 314. 14 In November 2012, Dr. Geier observed that “nothing much had changed” after

15 Plaintiff’s surgery, and noted that she was still having “quite a bit” of neck and shoulder 16 pain, decreased sensation in her cervical spine, and decreased strength in her right 17 wrist. AR 310. 18 In February 2013, Dr. Geier again opined that he saw “nothing different” with 19 respect to Plaintiff’s condition, and that Plaintiff was still experiencing residual C6 20 radiculopathy and ongoing symptoms from her work-related neck injury and muscular 21 trauma from her surgery. AR 477. Dr. Geier re-stated his conclusion that Plaintiff had 22 suffered a permanent injury from her work accident, and could not return to her job of 23 injury. Id.

24 1 Dr. Geier stated that Plaintiff’s 2010 work injury resulted in permanent 2 neuropathy which causes “sufficient pain with activity to make employment torturous.” 3 AR 465, 477. Dr. Geier opined that it was “unreasonable” to expect Plaintiff to work in 4 this condition, and that while there was no objective measure to assess her tolerance

5 for work versus her tolerance of pain, “her intolerance is a reality in her case” and that 6 “[s]imply put, work activity is too painful for her to tolerate.” Id. Dr. Geier added that 7 Plaintiff’s symptoms persisted despite adequate time and treatment, and that there were 8 no treatments that would improve Plaintiff’s condition. Id. 9 The ALJ assigned “little weight” to Dr. Geier’s opinions, reasoning that: (1) some 10 of Dr. Geier’s opinions were issued shortly after Plaintiff’s surgery, and physical 11 examinations conducted during the period at issue indicate that Plaintiff’s neck, 12 shoulder, and arm limitations gradually improved; (2) Dr. Geier based his opinion on 13 Plaintiff’s subjective reports; (3) Dr. Geier’s opinion is inconsistent with the objective 14 evidence; (4) Dr. Geier’s opinion is inconsistent with Plaintiff’s self-reported activities of

15 daily living; (5) Dr. Geier stated that he was unable to assess Plaintiff’s precise degree 16 of limitation; and (6) Dr. Geier offered an opinion on an issue reserved for the 17 Commissioner. AR 620-21. 18 With respect to the ALJ’s first reason, as Defendant concedes, Dr. Geier’s 19 opinions cover a period of approximately 16 months. Dkt. 10, at 10. In his final opinion, 20 Dr. Geier was clear Plaintiff’s condition had not improved despite adequate time and 21 treatment, and there was nothing he could do to address Plaintiff’s “tortuous” pain 22 symptoms. AR 465, 477. 23

24 1 Further, the ALJ’s conclusion that Plaintiff’s neck, shoulder, and arm symptoms 2 gradually improved after surgery is not supported by the record. In reaching this 3 conclusion, the ALJ cites the examination of Dr. Singh, whose diagnosis of neurogenic 4 thoracic outlet syndrome is consistent with Dr. Geier’s diagnosis of permanent

5 neuropathy, and whose examination revealed a range of marked physical limitations 6 consistent with Dr. Geier’s opinion. AR 564-67, 620. 7 As for the ALJ’s second reason, in her 2015 decision, the ALJ reasoned that Dr. 8 Geier’s admission that there was insufficient objective evidence to substantiate the 9 claimant's pain complaints indicated that Dr. Geier relied on Plaintiff’s self-reports rather 10 than his clinical findings in forming his opinion. AR 26. But, in its remand order, this 11 Court found that this was an error by the ALJ, because Dr. Geier’s statement did not 12 demonstrate that Dr. Geier was basing his conclusions concerning Plaintiff’s functional 13 ability mainly on Plaintiff’s self-reports. AR 463, 708. 14 In her 2019 decision, the ALJ again found that Dr. Geier appeared to rely on

15 Plaintiff’s subjective pain allegations, this time citing physical examinations during which 16 Plaintiff often appeared comfortable, pleasant, well appearing, and in no acute distress. 17 AR 620-21. The ALJ’s reference to these examinations does not overturn the Court’s 18 earlier finding: Dr. Geier treated, examined, and evaluated Plaintiff over several years, 19 and there is nothing in Dr. Geier’s treatment records to indicate that he based his 20 opinions on Plaintiff’s allegations rather than his own findings. 21 With respect to the ALJ’s third reason, the ALJ found that Dr. Geier’s August 22 2012 statement that the overall appearance of Plaintiff’s neck was "notably improved" 23 compared with pre-operative imaging, and Dr. Geier’s decision not to recommend

24 1 additional neck surgery were inconsistent with Dr. Geier’s opinion that Plaintiff could not 2 work. AR 328, 331-32, 480, 620. 3 The ALJ did not accurately summarize Dr. Geier’s conclusions; therefore, there is 4 not substantial evidence in the record to support the ALJ’s findings. Dr. Geier stated that

5 while Plaintiff had no further impediments in her cervical spine to any of her exiting 6 nerve roots, it was “obvious” that she had residual muscular problems and nerve injuries 7 that were not amenable to treatment; Dr. Geier observed it was “questionable” whether 8 Plaintiff would ever be able to resume working at her job of injury. AR 321, 480. Dr. 9 Geier’s August 2012 assessment, along with his subsequent statements, indicate that 10 Plaintiff had ongoing neuropathic pain that could not be resolved with additional 11 treatment. 12 Regarding the ALJ’s fourth reason, the ALJ found that Dr. Geier’s opinion 13 concerning Plaintiff’s pain symptoms was inconsistent with Plaintiff’s ability to tend to 14 her personal care, take care of her daughters, cook simple meals, help with house and

15 yard work, drive a car, and shop for groceries. AR 621. 16 In its remand order, this Court found that Plaintiff’s ability to perform basic 17 activities of daily living -- such as helping with house work, attending church services, 18 and shopping for groceries -- was not a valid reason for discounting Plaintiff’s testimony 19 or the medical opinion evidence. AR 25, 709-11; see Diedrich v. Berryhill, 874 F.3d 634, 20 643 (9th Cir. 2017) (“House chores, cooking simple meals, self-grooming, paying bills, 21 writing checks, and caring for a cat in one’s own home, as well as occasional shopping 22 outside the home, are not similar to typical work responsibilities.”). Plaintiff’s ability to 23

24 1 perform these activities is still not a specific and legitimate reason for discounting Dr. 2 Geier’s opinion. 3 With respect to the ALJ’s fifth reason, in its remand order, this Court found that 4 the ALJ’s rejection of Dr. Geier’s opinion because it did not offer a function-by-function

5 assessment of her capabilities was unpersuasive, given that there is no authority for the 6 proposition that a medical opinion must be expressed in a function-by-function format 7 for it to have relevance. AR 26, 621, 707-08. The Court continues to find the ALJ’s 8 reasoning unpersuasive, and notes that a function-by-function assessment is somewhat 9 superfluous when a physician states that any work activity would be “tortuous” for an 10 individual. AR 465, 477. 11 As for the ALJ’s sixth reason, in its remand order, this Court found that ALJ erred 12 in discounting Dr. Geier’s opinion because it offered an opinion on a question of 13 disability reserved for the Commissioner of Social Security. AR 26, 706-07; Hill v. 14 Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012) (a doctor’s opinion that it was unlikely that

15 the claimant could sustain full-time competitive employment is not a conclusion 16 reserved to the Commissioner, but is “an assessment based on objective medical 17 evidence of [the claimant’s] likelihood of being able to sustain full-time employment 18 given the many medical and mental impairments [claimant] faces and her inability to 19 afford treatment for those conditions.”). Here, the ALJ has offered an identical rationale 20 for discounting Dr. Geier’s opinion, and the Court finds it unpersuasive for the same 21 reason. AR 621. 22 Accordingly, the ALJ has not provided specific and legitimate reasons for 23 discounting Dr. Geier’s opinions.

24 1 B. Other Opinions 2 Plaintiff further contends that the ALJ erred in evaluating opinion evidence from 3 Dr. Langrock, Dr. Backlund, and Mr. Crowley. Dkt. 9, pp. 11-18. Because this case may 4 be decided without considering the ALJ’s assessment of this evidence, the Court

5 declines to address these opinions. 6 C. Remand for an Award of Benefits 7 Plaintiff asks this Court to remand this case for an award of benefits. Dkt. 9 at 18. 8 “‘The decision whether to remand a case for additional evidence, or simply to award 9 benefits[,] is within the discretion of the court.’” Trevizo v. Berryhill, 871 F.3d 664, 682 10 (9th Cir. 2017) (quoting Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987)). If an 11 ALJ makes an error and the record is uncertain and ambiguous, the court should 12 remand to the agency for further proceedings. Leon v. Berryhill, 880 F.3d 1041, 1045 13 (9th Cir. 2017). Likewise, if the court concludes that additional proceedings can remedy 14 the ALJ’s errors, it should remand the case for further consideration. Revels, 874 F.3d

15 at 668. 16 The Ninth Circuit has developed a three-step analysis for determining when to 17 remand for a direct award of benefits. Such remand is generally proper only where 18 “(1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to 19 provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited 20 evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.” 21 Trevizo, 871 F.3d at 682-83 (quoting Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 22 2014)). 23 24 1 The Ninth Circuit emphasized in Leon v. Berryhill that even when each element is 2 satisfied, the district court still has discretion to remand for further proceedings or for 3 award of benefits. 80 F.3d 1041, 1045 (9th Cir. 2017). 4 Despite this Court’s remand instructions, the ALJ has again not evaluated

5 significant, probative evidence from Dr. Singh, and provided several reasons for 6 rejecting Dr. Geier’s opinions that this Court found unpersuasive in its remand order. 7 The Agency disregarded the District Court’s decision and order on remand. 8 Where a court finds that the Commissioner committed a legal or factual error in 9 evaluating a claim, the district court's remand order will often include detailed 10 instructions concerning the scope of the remand, the evidence to be adduced, and the 11 legal or factual issues to be addressed. Deviation from the court's remand order in the 12 subsequent administrative proceedings is itself legal error, subject to reversal on further 13 judicial review. Sullivan v. Hudson, 490 U.S. 877, 885–86 (1989); Ischay v. Barnhart, 14 383 F.Supp.2d 1199, 1214 (C.D.Cal.2005).

15 The Court is mindful that simply providing a second opportunity to assess 16 evidence does not qualify as a remand for a “useful purpose” under the first part of the 17 credit as true analysis. Garrison, 759 F.3d at 1021-22, citing Benecke v. Barnhart, 379 18 F.3d 587, 595 (9th Cir. 2004) (“Allowing the Commissioner to decide the issue again 19 would create an unfair ‘heads we win; tails, let’s play again’ system of disability benefits 20 adjudication.”). 21 Here, giving the Commissioner another opportunity to re-assess this evidence 22 would serve no useful purpose, given that the ALJ failed to properly evaluate the 23 opinions of Dr. Singh and Dr. Geier despite this Court’s explicit remand instructions.

24 1 In this case, there is no serious doubt that if the opinions of Dr. Singh and Dr. 2 Geier were credited as true, that the ALJ would be required to find Plaintiff disabled on 3 remand. See Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (courts have the 4 flexibility to remand for further proceedings when the record as a whole creates “serious

5 doubt” as to whether the claimant is disabled within the meaning of the Social Security 6 Act.). 7 The opinions of Dr. Singh and Dr. Geier, taken together, establish that Plaintiff 8 had ongoing neuropathic pain after her 2011 surgery that could not be resolved with 9 additional treatment; this condition resulted in marked physical limitations, and caused 10 enough pain with activity to make employment “torturous.” AR 465, 477, 564-67. The 11 ALJ did not provide a detailed analysis of Dr. Singh’s examination, despite the Court’s 12 finding that the ALJ erred by not evaluating the results of this examination in her first 13 decision. AR 698-702. The ALJ has not provided specific and legitimate reasons for 14 discounting Dr. Geier’s opinion, and has re-stated many of the reasons this Court found

15 unpersuasive in its remand order. AR 706-11. 16 Accordingly, remand for an award of benefits is the appropriate remedy. 17 18 19 20 21 22 23

24 1 CONCLUSION 2 Based on the foregoing discussion, the Court finds the ALJ erred when she found 3 Plaintiff was not disabled. Defendant’s decision to deny benefits is therefore 4 REVERSED and this matter is REMANDED for an award of benefits.

5 Dated this 18th day of September, 2020. 6 7 A 8 Theresa L. Fricke 9 United States Magistrate Judge

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