VanHorn v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: June 23, 2022
• Docket: 1:21-cv-03137
• Status: Unknown

Opinion

1 SEAN F. MCAVOY, CLERK 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 8 VICTORIA V.H.1, No. 1:21-CV-03137-SAB 9 Plaintiff, 10 v. ORDER GRANTING 11 COMMISSIONER OF SOCIAL PLAINTIFF’S MOTION FOR 12 SECURITY ADMINISTRATION, SUMMARY JUDGMENT; 13 Defendant. DENYING DEFENDANT’S 14 MOTION FOR SUMMARY 15 JUDGMENT 16 17 Before the Court are Cross-Motions for Summary Judgment. ECF Nos. 11, 18 12. The motions were heard without oral argument. Plaintiff is represented by D. 19 James Tree; Defendant is represented by Sarah Moum and Brian Donovan. 20 Plaintiff brings this action seeking judicial review of the Commissioner of 21 Social Security’s final decision denying her application for disability benefits 22 under Title II and Supplemental Security Income (SSI) under Title XVI of the 23 Social Security Act, 42 U.S.C. §§ 1382. After reviewing the administrative record 24 and briefs filed by the parties, the Court is now fully informed. For the reasons set 25

26 1 Pursuant to the recommendation of the Committee on Court Administration and 27 Case Management of the Judicial Conference of the United States, Plaintiff’s name 28 is partially redacted. 1 forth below, the Court grants Plaintiff’s Motion for Summary Judgment, ECF No. 2 11, and denies Defendant’s Motion for Summary Judgment, ECF No. 12. 3 I. Jurisdiction 4 On May 29, 2019, Plaintiff filed applications for disability benefits under 5 Title II and Supplemental Security Income (SSI) under Title XVI of the Social 6 Security Act. She alleged disability beginning March 31, 2018. Plaintiff’s 7 applications were denied initially and on reconsideration. On March 19, 2020, 8 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). On 9 October 8, 2020, Plaintiff appeared and testified by telephone before ALJ Glenn 10 Meyers with the assistance of her counsel, Robert Tree. Vocational Expert Thomas 11 Polsin also participated by telephone. The ALJ issued a decision on November 4, 12 2020, finding Plaintiff was not disabled. 13 Plaintiff requested review by the Appeals Council; the Appeals Council 14 denied the request on September 2, 2021. The Appeals Council’s denial of review 15 makes the ALJ’s decision the “final decision” of the Commissioner of Social 16 Security, which this Court is permitted to review. 42 U.S.C. § 405(g), 17 1383(c)(1)(3). 18 Plaintiff filed a timely appeal with the United States District Court for the 19 Eastern District of Washington on October 22, 2021. ECF No. 1. The matter is 20 before this Court pursuant to 42 U.S.C. § 405(g). 21 II. Five-Step Sequential Evaluation Process 22 The Social Security Act defines disability as the “inability to engage in any 23 substantial gainful activity by reason of any medically determinable physical or 24 mental impairment which can be expected to result in death or which has lasted or 25 can be expected to last for a continuous period of not less than twelve months.” 42 26 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 27 under a disability only if their impairments are of such severity that the claimant is 28 not only unable to do their previous work, but cannot, considering claimant’s age, 1 education, and work experiences, engage in any other substantial gainful work that 2 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 3 Commissioner has established a five-step sequential evaluation process to 4 determine whether a person is disabled in the statute. See 20 C.F.R. §§ 5 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 6 Step One: Is the claimant engaged in substantial gainful activities? 20 7 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work 8 done for pay and requires compensation above the statutory minimum. Keyes v. 9 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 10 substantial activity, benefits are denied. 20 C.F.R. § 404.1520(b), 416.920(b). If 11 the claimant is not, the ALJ proceeds to step two. 12 Step Two: Does the claimant have a medically-severe impairment or 13 combination of impairments? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A 14 severe impairment is one that lasted or must be expected to last for at least 12 15 months and must be proven through objective medical evidence. Id. §§ 404.1509, 16 416.909. If the claimant does not have a severe impairment or combination of 17 impairments, the disability claim is denied. Id. § 404.1520(a)(4)(ii), 18 416.920(a)(4)(ii). If the impairment is severe, the evaluation proceeds to the third 19 step. 20 Step Three: Does the claimant’s impairment meet or equal one of the listed 21 impairments acknowledged by the Commissioner to be so severe as to preclude 22 substantial gainful activity? 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 23 the impairment meets or equals one of the listed impairments, the claimant is 24 conclusively presumed to be disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the 25 impairment is not one conclusively presumed to be disabling, the evaluation 26 proceeds to the fourth step. 27 Before considering to the fourth step, the ALJ must first determine the 28 claimant’s residual functional capacity. An individual’s residual functional 1 capacity is their ability to do physical and mental work activities on a sustained 2 basis despite limitations from their impairments. 20 C.F.R. §§ 404.1545(a)(1), 3 416.945(a)(1). The residual functional capacity is relevant to both the fourth and 4 fifth steps of the analysis. 5 Step Four: Does the impairment prevent the claimant from performing work 6 they have performed in the past? 20 C.F.R. §§ 404.1520(a)(4)(iv), 7 416.920(a)(4)(iv). If the claimant is able to perform their previous work, they are 8 not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform 9 this work, the evaluation proceeds to the fifth and final step. 10 Step Five: Is the claimant able to perform other work in the national 11 economy in view of their age, education, and work experience? 20 C.F.R. §§ 12 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 13 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 14 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 15 establishes that a physical or mental impairment prevents him from engaging in her 16 previous occupation. Id. At step five, the burden shifts to the Commissioner to 17 show that the claimant can perform other substantial gainful activity. Id. 18 III. Standard of Review 19 The Commissioner’s determination will be set aside only when the ALJ’s 20 findings are based on legal error or are not supported by substantial evidence in the 21 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 22 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 23 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 24 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 25 evidence is “such relevant evidence as a reasonable mind might accept as adequate 26 to support a conclusion.” Richardson, 402 U.S. at 401. 27 A decision supported by substantial evidence will be set aside if the proper 28 legal standards were not applied in weighing the evidence and making the decision. 1 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 2 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 3 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 4 1050, 1055 (9th Cir. 2006). The Court must uphold the ALJ’s denial of benefits if 5 the evidence is susceptible to more than one rational interpretation, one of which 6 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 7 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 8 weighing both the evidence that supports and the evidence that detracts from the 9 Commissioner’s conclusion, and may not affirm simply by isolating a specific 10 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 11 2017) (quotation omitted). “If the evidence can support either outcome, the court 12 may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 13 For claims filed on or after March 27, 2017,2 like the present claim, new 14 regulations apply regarding the evaluation of medical evidence. Revisions to Rules 15 Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017); 16 see Woods v. Kijakazi, 32 F.4th 785 (9th Cir. 2022). The new regulations eliminate 17 any semblance of a hierarchy of medical opinions and state that the agency does 18 not defer to any medical opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c. 19 Specifically, the rules eliminate the agency’s “treating source rule,” which gave 20 special deference to certain opinions from treating sources. 82 Fed. Reg. at 5853. 21 In articulating the ALJ’s consideration of medical opinions for persuasiveness, the 22 ALJ considers the following factors: (1) Supportability and (2) Consistency; (3) 23 Relationship with the claimant, including (i) length of treatment relationship; (ii) 24 frequency of examinations; (iii) purpose of the treatment relationship; (iv) extend 25

26 2 For claims filed prior to March 27, 2017, an ALJ was to give more weight to “those 27 physicians with the most significant clinical relationship with the plaintiff.” 28 Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008). 1 of the treatment relationship; (v) examination relationship; (4) Specialization; and 2 (5) Other factors, including whether the medical source has familiarity with the 3 other evidence or an understanding of SSA’s disability program’s policies and 4 evidentiary requirements. 20 C.F.R. §§ 404.1520c(b), 416.920c(b). The most 5 important factors in evaluating the persuasiveness of medical opinions are 6 supportability and consistency. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). 7 Supportability and consistency are further explained in the regulations: 8 (1) Supportability. The more relevant the objective medical evidence and supporting 9 explanations presented by a medical source are to support his or her medical 10 opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 11 (2) Consistency. 12 The more consistent a medical opinion(s) or prior administrative medical 13 finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior 14 administrative medical finding(s) will be. 15 20 C.F.R. §§ 404.1520c(c); 416.920c(c). 16 When a medical source provides multiple medical opinions, the ALJ must 17 articulate how it considered these opinions in a single analysis applying the above- 18 listed factors. 20 C.F.R. §§ 404.1520c(b)(1), 416.920c(b)(1). If equally persuasive 19 medical opinions about the same issue are both equally well-supported and 20 consistent with the record, but are not exactly the same, the ALJ must articulate 21 how it considered the other most persuasive factors in making its decision. 20 22 C.F.R. §§ 404.1520c(c)(3), 416.920c(c)(3). 23 IV. Statement of Facts 24 The facts have been presented in the administrative record, the ALJ’s 25 decision, and the briefs to this Court. Only the most relevant facts are summarized 26 herein. 27 At the time of the hearing, Plaintiff was 43 years old. She is divorced and 28 1 has two children. Her daughter lives with her part-time. She has experience 2 cashiering in retail and in fast food. 3 In 2004, she was diagnosed with Multiple Sclerosis. She explained that her 4 type of multiple sclerosis is relax and remitting so that it comes and goes, but she 5 always has numbness in her hands and feet and she has breathing and balancing 6 problems. Plaintiff testified that she is very temperature sensitive. She also testified 7 that she has had some adverse reactions to the medications that have been 8 prescribed throughout the years and testified that she gets irritated rather easily 9 because of the M.S. Plaintiff estimated that at most she can work at a task for up to 10 20 minutes and then she will need to take a break. 11 On some nights, she goes to her friend’s house to shoot pool. She testified 12 that she plays with three other people and at most she may shoot for 20 minutes at 13 a time, but when she is not shooting, she is sitting down. 14 V. The ALJ’s Findings 15 The ALJ issued an opinion affirming denial of benefits. AR 20-33. The ALJ 16 found that Plaintiff met the insured status requirements of the Social Security Act 17 through June 30, 2023. At step one, the ALJ found that Plaintiff has not engaged in 18 substantial gainful activity since March 31, 2018. AR 22. 19 At step two, the ALJ identified the following severe impairments: multiple 20 sclerosis (MS) and a major depressive disorder. AR 17. 21 At step three, the ALJ found that Plaintiff did not have an impairment or 22 combination of impairments that meets or medically equals the severity of one of 23 the listed impairments. AR 20. The ALJ concluded that Plaintiff’s multiple 24 sclerosis did not meet or equal the severity requirements of listing 11.09 because 25 the evidence does not show disorganization of motor function in two extremities 26 resulting in an extreme limitation in the ability to stand up from a seated position, 27 balance while standing or walking, or use the upper extremities; or marked 28 limitations in one of the following: understanding, remembering, or applying 1 information; interacting with others; concentrating, persisting, or maintaining pace; 2 or adapting or managing oneself. The ALJ also concluded that Plaintiff did not 3 meet listing 12.04. AR 23-24. 4 Ultimately, the ALJ concluded that Plaintiff has a residual function capacity 5 (“RFC”) to perform:

6 to perform sedentary work as defined in 20 CFR 404.1567(a) and 7 416.967(a) with frequent reaching, handling, and fingering; occasional stooping; no crouching, crawling, or kneeling; no climbing ramps, 8 stairs, ladders, ropes, or scaffolds; avoidance of moderate exposure to 9 temperature extremes; and no balancing, working at heights, or working in proximity to hazardous conditions. In addition, the 10 claimant is capable of engaging in unskilled, repetitive, routine tasks 11 in two-hour increments; and occasional contact with the public, coworkers, and supervisors. 12 AR 25 13 At step four, the ALJ found that Plaintiff was unable to perform past 14 relevant work as a bagger, an animal caretaker, a cashier II, a fast food worker, and 15 a cashier checker. AR 31. 16 At step five, the ALJ found that Plaintiff was not disabled and capable of 17 performing work that exists in significant numbers in the national economy, such 18 as a document preparer, final assembler, and a stuffer. AR 32. 19 VI. Issues for Review 20 The parties agree that the ALJ harmfully erred in evaluating the medical 21 opinions evidence. Plaintiff asks the Court to remand for an immediate award of 22 benefits. Defendant argues that because the record leaves serious doubt that 23 Plaintiff is disabled, a remand for further proceeding is the appropriate remedy. 24 V. Analysis 25 Under the “ordinary remand rule,” courts reviewing agency decisions will 26 generally remand to the agency for “additional investigation or explanation,” if 27 necessary. Treichler v. Comm. Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th Cir. 28 1 2014). Section 405(g), however, gives courts the flexibility to “reverse or modify 2 an administrative decision without remanding the case for further proceedings.” Id. 3 While a remand for an award of benefits should occur only in rare circumstances, 4 if no useful purpose would be served by further administrative proceedings and the 5 record has been thoroughly developed, remand may be appropriate. Id. at 1100. 6 Defendant acknowledges that because the ALJ at times neither rejected nor 7 accommodated limitations from medical opinions in the RFC, the ALJ erred. Two 8 specific instances were cited by Defendant: (1) while the ALJ accepted Dr. Lu’s 9 opinion that Plaintiff was limited to sedentary work, it failed to discuss Dr. Lu’s 10 opinion that Plaintiff could work only 21-30 hours; and (2) while the ALJ found 11 that Plaintiff was more limited when it came to her ability to stand/walk and 12 lift/carry than Dr. Drenguis opined, the ALJ failed to address or account for Dr. 13 Drenguis’s opinion that Plaintiff could only occasionally handle, finger, and feel. 14 Defendant argues that because the record includes medical opinions that are 15 consistent with the ability to work and the ALJ ultimately assessed an RFC that 16 moderated the extremes of the various opinions in the record, the Court should 17 remand for further proceedings. 18 In this case, the ALJ positively found numerous sources to be persuasive, yet 19 for some reason, ignored important aspects of their opinions, including Dr. Lu, 20 Plaintiff’s treating physician; Dr. Gibson, examining consultant; Dr. W. Drenguis, 21 examining physician; and Dr. Lee, Plaintiff’s treating neurologist. 22 Dr. Lu, Plaintiff’s treating physician, opined in August 2019 that Plaintiff 23 was limited to sedentary work and could only work 21-30 hours per week due to 24 MS. The ALJ found that Dr. Lu’s opinion was consistent with the record, 25 Plaintiff’s complaints, and Dr. Drenguis’s thorough examination findings, yet the 26 ALJ did not address Dr. Lu’s opinion regarding Plaintiff’s inability to work 40 27 hours. It is undisputed that based on Dr. Lu’s complete opinion, Plaintiff would be 28 1 found disabled because SSA policy requires that a person must be able to work 40 2 hours per week or they are considered disabled. SSR 96-8p. 3 The ALJ found Dr. Gibson’s report persuasive and consistent with the 4 record (other than his finding she had a low likelihood of recovery). Dr. Gibson 5 opined that Plaintiff would have difficulty performing detailed and complex tasks 6 due to memory difficulties; have difficulty interacting with coworkers and the 7 public due to an elevated level of irritability; have difficulty performing work 8 activities on a consistent basis without special or additional instructions due to 9 difficulties with memory; would have difficulty maintaining regular attendance and 10 completing a normal workday/workweek without interruptions from a psychiatric 11 condition; and would have difficulty dealing with the usual stress encountered in 12 the workplace because she was experiencing a low stress tolerance. 13 The ALJ noted that given Dr. Gibson’s findings on exam, it was reasonable 14 to include the limitations he identified. For some reason, however, the ALJ failed 15 to include the limitations identified by Dr. Gibson in the RFC. There was no 16 accommodation for the need for special and additional instruction, and no mention 17 of the limitations with attendance or completing a normal workday or week that 18 were identified by Dr. Gibson. If the ALJ considered Dr. Gibson’s limitations 19 regarding attendant and completing a normal workday or week, the ALJ would 20 have to find Plaintiff disabled, as the VE testified that even chronically missing 1 21 day per month would not be tolerated. 22 Dr. Drenguis concluded that Plaintiff could only occasionally handle, finger 23 and feel. Dr. Drenguis observed that Plaintiff had difficulty picking up a coin and 24 manipulating a button due to clumsiness, had 4+/5 grip strength, but decreased 25 sensation in both hands, and had trace bicep and brachial radialis deep tendon 26 reflexes. In the RFC, the ALJ assessed that Plaintiff could frequently handle, 27 finger, and feel, but did not provide any explanation for discounting Dr. Drenguis’s 28 manipulative limitations. That said, the ALJ did find Dr. Drenguis’s report 1 consistent with Dr. Lu’s conclusions and concluded that Dr. Drenguis conducted a 2 thorough exam. The requirement of only occasionally handle, finger, and feel 3 would require a finding of disability. 4 Dr. Lee, Plaintiff’s treating neurologist, opined that since March 2018, 5 Plaintiff had to lay down 1-1.5 hours per day and would miss 4 or more days of 6 work from MS. The ALJ found Dr. Lee “somewhat persuasive” but discounted Dr. 7 Lee’s assessment that Plaintiff would miss 4 or more days per month because the 8 ALJ believed Dr. Lee’s exams found Plaintiff had a normal gait, strength, and 9 range-of-motion (ROM). However, Dr. Lee did not conclude that Plaintiff would 10 miss work due to her gait, strength, or ROM. On the contrary, he found that 11 Plaintiff would miss 4 or more days of work because she fatigues easily from 12 overexertion and overheating. Moreover, the ALJ failed to properly consider that 13 nearly all of Dr. Lee’s exams were telehealth visits and his ability to test Plaintiff’s 14 strength, gait, or ROM was therefore limited due to the pandemic. 15 When the complete testimonies of these medical providers, which the ALJ 16 for the most part found persuasive, are properly considered, along with the record 17 as a whole, it is clear the ALJ would be required to find Plaintiff disabled on 18 remand. There are many abnormal objective findings in the record including 19 instances where Plaintiff’s gait was wide-based and shuffling; she had to rock to 20 get momentum to stand from a chair with arms cross; she had difficulty picking up 21 a coin or manipulating a button due to clumsiness; she had a positive Romberg; she 22 could not walk on her heels or toes or stand on one foot due to balance issues; 23 tandem walking was poor; she needed to hold the table for balance to squat and 24 pull herself to standing; she had decreased strength in her grip and in the flexors 25 and extensors of the hips; she had decreased sensation in her hands and feet; and 26 her deep tendon reflexes were all trace. 27 Because the record has been fully developed, the ALJ did not give legally 28 sufficient reasons for rejecting (or ignoring) the evidence; and the ignored or improperly discredited evidence compels disability, remand for the immediate calculation and award of benefits is appropriate. Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Summary Judgment, ECF No. 11, is GRANTED. 2. Defendant’s Motion for Summary Judgment, ECF No. 12, is DENIED. 3. decision of the Commissioner is reversed and remanded for an immediate award of benefits. l 4. Judgment shall be entered in favor of Plaintiff and against Defendant. 11 IT IS SO ORDERED. The District Court Executive is hereby directed to file this Order, provide copies to counsel, and close the file. 13 DATED this 23rd day of June 2022. 1 1 Suey Ecc thar Stanley A. Bastian 1 Chief United States District Judge 2 21 2 23 2 2 2 2 2 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY TWNCMENT. NENVING NEEENNANT?S MATION FAP CIIVINIARYV