Wiley v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: March 31, 2023
• Docket: 1:22-cv-03010
• Status: Unknown

Opinion

FILED IN THE 1 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Mar 31, 2023 3 SEAN F. MCAVOY, CLERK

5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON

7 ROWAN W., No. 1:22-CV-3010-JAG 8 Plaintiff, ORDER GRANTING 9 PLAINTIFF’S MOTION 10 v. FOR SUMMARY JUDGMENT

11 KILOLO KIJAKAZI, 12 ACTING COMMISSIONER OF 13 SOCIAL SECURITY,

14 Defendant. 15 16 BEFORE THE COURT are cross-motions for summary judgment. 17 ECF Nos. 13, 15. Attorney Tree represents Rowan W. (Plaintiff); Special 18 Assistant United States Attorney Martin represents the Commissioner of Social 19 Security (Defendant). The parties have consented to proceed before a magistrate 20 judge. ECF No. 6. After reviewing the administrative record and the briefs filed 21 by the parties, the Court GRANTS Plaintiff’s Motion for Summary Judgment, 22 DENIES Defendant’s Motion for Summary Judgment, and REMANDS the matter 23 for further proceedings under sentence four of 42 U.S.C. § 405(g). 24 I. JURISDICTION 25 Plaintiff filed an application for benefits on March 19, 2019, alleging 26 disability since March 1, 2019. The applications were denied initially and upon 27 reconsideration. Administrative Law Judge (ALJ) Rosanne M. Dummer held a 28 hearing on December 23, 2020, and issued an unfavorable decision on January 22, 1 2 2021. Tr. 26-40. The Appeals Council, which received additional evidence from 3 Plaintiff, denied review on December 13, 2021. Tr. 1-7. Plaintiff appealed this 4 final decision of the Commissioner on January 28, 2022. ECF No. 1. 5 II. STANDARD OF REVIEW 6 The ALJ is responsible for determining credibility, resolving conflicts in 7 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 8 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 9 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 10 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 11 only if it is not supported by substantial evidence or if it is based on legal error. 12 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 13 defined as being more than a mere scintilla, but less than a preponderance. 14 Id. 1098. Put another way, substantial evidence is such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion. Richardson v. 16 Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 17 U.S. 197, 229 (1938)). 18 If the evidence is susceptible to more than one rational interpretation, the 19 Court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 20 1098; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 21 If substantial evidence supports the administrative findings, or if conflicting 22 23 evidence supports a finding of either disability or non-disability, the ALJ’s 24 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 25 Cir. 1987). Nevertheless, a decision supported by substantial evidence will be set 26 aside if the proper legal standards were not applied in weighing the evidence and 27 making the decision. Brawner v. Sec’y of Health and Human Services, 839 F.2d 28 432, 433 (9th Cir. 1988). III. SEQUENTIAL EVALUATION PROCESS 1 2 The Commissioner has established a five-step sequential evaluation process 3 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 4 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). At steps one through 5 four, the claimant bears the burden of establishing a prima facie case of disability. 6 Tackett, 180 F.3d at 1098-99. This burden is met once a claimant establishes that a 7 physical or mental impairment prevents the claimant from engaging in past 8 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 9 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 10 the Commissioner to show: (1) the claimant can make an adjustment to other work 11 and (2) the claimant can perform other work that exists in significant numbers in 12 the national economy. Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). If a 13 claimant cannot make an adjustment to other work in the national economy, the 14 claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 15 IV. ADMINISTRATIVE FINDINGS 16 Utilizing the five-step disability evaluation process, the ALJ found: 17 Step one: Plaintiff has not engaged in substantial gainful activity from since 18 March 1, 2019. 19 Step two: Plaintiff has the following severe impairment: human 20 immunodeficiency virus (HIV) with peripheral neuropathy, obstructive sleep 21 apnea, and history of deep vein thrombosis. 22 23 Step three: These impairments do not meet or equal the requirements of a 24 listed impairment. 25 Residual Functional Capacity: Plaintiff can perform medium work, subject 26 to the following limitations: lift/carry 50 pounds occasionally and 25 pounds 27 frequently; sit about six of eight hours and stand/walk six of eight hours; avoid 28 concentrated exposure to extreme temperatures and vibrations; avoid more than 1 2 moderate exposure to workplace hazards. 3 Step four: Plaintiff is capable of performing past relevant work as a cashier, 4 and is therefore not disabled. 5 Step five: Alternatively, as there are other jobs that exist in significant 6 numbers in the national economy that Plaintiff can perform, Plaintiff is not 7 disabled. 8 V. ISSUES 9 The question presented is whether substantial evidence supports the ALJ’s 10 decision denying benefits and, if so, whether that decision is based on proper legal 11 standards. 12 Plaintiff raises the following issues for review: (1) whether the ALJ erred by 13 not properly assessing Listing 3.00 at step three; (2) whether the ALJ erred by 14 discounting Plaintiff’s testimony; and (3) whether the ALJ erred by assessing 15 Plaintiff’s past relevant work; and (4) whether the Appeals Council erred by 16 declining to remand following the submission of “new and material evidence.” 17 ECF No. 13 at 2. 18 VI. DISCUSSION 19 A. The ALJ Did Not Err at Step Three. 20 Plaintiff contends the ALJ erroneously failed to assess Plaintiff’s obstructive 21 sleep apnea as meeting or equaling Listing 3.02(C)(3) at step three. ECF No. 13 22 23 at 9. Plaintiff bears the burden of proof at step three. Bowen v. Yuckert, 482 U.S. 24 at 146 n.5. A mere diagnosis does not suffice to establish disability. Key v. 25 Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985). “‘[An impairment] must also 26 have the findings shown in the Listing of that impairment.’” Id. at 1549-50 27 (quoting 20 CFR § 404.1525(d); emphasis added in Key). To meet a listing, an 28 impairment “must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original). “To equal a listed impairment, a 1 2 claimant must establish symptoms, signs and laboratory findings ‘at least equal in 3 severity and duration’ to the characteristics of a relevant listed impairment[.]” 4 Tackett, 180 F.3d at 1099. See also Sullivan, 493 U.S. at 531(to establish 5 equivalency, claimant “must present medical findings equal in severity to all the 6 criteria” for the listing). 7 At step three, the ALJ found the “medical evidence falls short of the criteria” 8 of Listing 3.00, noting “no medical source has mentioned findings equivalent in 9 severity to [its] criteria.” Tr. 29. Substantial evidence supports this finding. 10 Contrary to Plaintiff’s assertions, the sleep study results on which he relies do not 11 indicate a satisfaction of Listing 3.02(C)(3)’s criteria. Compare Tr. 673-75 with 12 Listing 3.02(C)(3) and Listing 3.00(H)(2) (setting forth requirements for pulse 13 oximetry tests and reports). As noted by the Commissioner, see ECF No. 15 at 14 8-9, the sleep study measured SaO2, whereas Listing 3.02(C)(3) specifically 15 requires an SpO2 measurement. Compare Tr. 673 with Listing 3.02(C)(3); see 16 Listing 3.00(H)(1) (defining SpO2). Because Plaintiff has failed to meet his 17 burden, the Court declines to disturb the ALJ’s step three finding. 18 B. The ALJ Erred by Discounting Plaintiff’s Testimony. 19 Plaintiff contends the ALJ erroneously discounted his testimony. ECF 20 No. 13 at 10. Where, as here, the ALJ determines a claimant has presented 21 objective medical evidence establishing underlying impairments that could cause 22 23 the symptoms alleged, and there is no affirmative evidence of malingering, the 24 ALJ can only discount the claimant’s testimony as to symptom severity by 25 providing “specific, clear, and convincing” reasons supported by substantial 26 evidence. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). The Court 27 concludes the ALJ failed to offer clear and convincing reasons to discount 28 Plaintiff’s testimony. Plaintiff testified that his ability “to do manual labor and a lot of physical 1 2 work” has “been greatly diminishing” since his alleged onset date. Tr. 165. 3 Plaintiff testified that muscle spasms have been “progressively getting worse” 4 during the six months prior to the hearing. Tr. 165. Plaintiff testified his 5 neuropathy, which also was “getting progressively worse,” “makes it even difficult 6 to walk on some days and even on the days [he] can walk, it’s progressed to where 7 it’s extremely painful, just to walk.” Tr. 166. Plaintiff testified he has “bad days” 8 approximately “50% of the time.” Tr. 177. 9 The ALJ first discounted Plaintiff’s testimony as inconsistent with 10 medication providing “‘excellent’ control” of his HIV condition. Tr. 35. In 11 support of this finding, the ALJ relied on evidence indicating Plaintiff’s viral load 12 was undetectable, Plaintiff “retained 5/5 muscle strength,” and Plaintiff “had a 13 normal gait without an assistive device.” Tr. 35. While the ALJ may reject a 14 claimant’s symptom testimony when it is contradicted by the medical evidence, see 15 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) 16 (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir.1995)), the ALJ must still 17 explain how the medical evidence contradicts the claimant’s testimony, see Dodrill 18 v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The ALJ did not do so here. 19 Rather, the evidence on which the ALJ relied is not inconsistent with 20 Plaintiff’s allegations concerning muscle spasms, progressively worsening pain, 21 and the waxing-and-waning of his symptoms. Further, the ALJ “cannot simply 22 23 pick out a few isolated instances” of medical health that support her conclusion, 24 but must consider those instances in the broader context “with an understanding of 25 the patient’s overall well-being and the nature of [his] symptoms.” Attmore v. 26 Colvin, 827 F.3d 872, 877 (9th Cir. 2016). The ALJ accordingly erred by 27 discounting Plaintiff’s testimony on this ground. 28 Next, the ALJ discounted Plaintiff’s testimony as inconsistent with his 1 2 activities. The ALJ found Plaintiff “worked on gutters,” “chopped wood,” “buil[t] 3 a retaining wall,” and “stayed active by doing household chores and yardwork.” 4 Tr. 35. However, Plaintiff explicitly testified that he is, at times, unable to perform 5 these minimal activities because of his impairments. Tr. 175. In any event, these 6 minimal activities do not undercut Plaintiff’s claims. See Vertigan v. Halter, 260 7 F.3d 1044, 1050 (9th Cir. 2001) (“This court has repeatedly asserted that the mere 8 fact that a plaintiff has carried on certain daily activities, such as grocery shopping, 9 driving a car, or limited walking for exercise, does not in any way detract from her 10 credibility as to her overall disability. One does not need to be ‘utterly 11 incapacitated’ in order to be disabled.”) (quoting Fair v. Bowen, 885 F.2d 597, 603 12 (9th Cir. 1989)); Reddick, 157 F.3d at 722 (“Several courts, including this one, 13 have recognized that disability claimants should not be penalized for attempting to 14 lead normal lives in the face of their limitations.”); Cooper v. Bowen, 815 F.2d 15 557, 561 (9th Cir. 1987) (noting that a disability claimant need not “vegetate in a 16 dark room” in order to be deemed eligible for benefits). Nor do Plaintiff’s minimal 17 activities “meet the threshold for transferable work skills.” Orn v. Astrue, 495 F.3d 18 625, 639 (9th Cir. 2007) (citing Fair, 885 F.2d at 603). The ALJ accordingly erred 19 by discounting Plaintiff’s testimony on this ground. 20 Third, the ALJ discounted Plaintiff’s testimony on the ground Plaintiff 21 stopped working for a “non-disability reason.” Tr. 35. Specifically, the ALJ found 22 23 Plaintiff “said he was terminated in February 2019 for attendance issues related to 24 not hearing his alarm clock[.]” Tr. 35. The ALJ further found “no evidence shows 25 significant hearing problems.” Tr. 35. However, Plaintiff never alleged hearing 26 problems caused or otherwise contributed to his failure to hear the alarm clock. 27 Rather, Plaintiff alleged sleep problems contributed to his attendance issues and, in 28 turn, termination. While an ALJ may discount a claimant’s testimony due to evidence of self-limitation and lack of motivation, see Osenbrock v. Apfel, 240 1 2 F.3d 1157, 1165-67 (9th Cir. 2001), there is no evidence of either here. The ALJ 3 thus erroneously relied on an unreasonable inconsistency and unsupported finding 4 to discount Plaintiff’s testimony and, accordingly, erred by discounting Plaintiff’s 5 testimony on this ground. 6 Finally, the ALJ discounted Plaintiff’s testimony on the ground Plaintiff 7 “received unemployment compensation, indicating he was ready, willing, and able 8 to work.” Tr. 35. Substantial evidence does not support this finding. The “receipt 9 of unemployment benefits can undermine a claimant’s alleged inability to work 10 fulltime[.]” Carmickle, 533 F.3d at 1161-62. However, “the record here does not 11 establish whether [Plaintiff] held himself out as available for full-time or part-time 12 work. Only the former is inconsistent with his disability allegations. Thus, such 13 basis for the ALJ’s credibility finding is not supported by substantial evidence.” 14 Id. The ALJ accordingly erred by discounting Plaintiff’s testimony on this ground. 15 C. The ALJ Erred at Step Four. 16 At step four, the ALJ found Plaintiff’s work as a cashier was past relevant 17 work. Tr. 37. Plaintiff argues this was error, contending his earnings fell below 18 the substantial gainful activity threshold. ECF No. 13 at 4-5. The Commissioner 19 does not defend the ALJ’s finding, averring instead any error was harmless in light 20 of the ALJ’s alternative step five findings. ECF No. 15 at 3-4. 21 The Court disagrees with the Commissioner. Because the ALJ erred by 22 23 discounting Plaintiff’s testimony, and will necessarily need to reassess the RFC on 24 remand, the Court cannot conclude the ALJ’s step four error was harmless. 25 D. Appeals Council Evidence. 26 Because the Court remands the matter on the grounds addressed above, and 27 the ALJ will necessarily consider evidence submitted to the Appeals Council, the 28 Court need not decide whether the Appeals Council erred by declining to remand 1 the matter based on evidence submitted to it. See PDK Labs. Inc. v. DEA, 362 F.3d 2 || 786, 799 (D.C. Cir. 2004) (“[I]f it is not necessary to decide more, it is necessary 3 || not to decide more.”) (Roberts, J., concurring in part and concurring in the 4 || judgment). 5 On remand, the ALJ shall assess the evidence submitted to the Appeals 6 || Council and develop the record, as needed; reconsider Plaintiff’s testimony; and 7 || reevaluate the remaining steps of the sequential evaluation, as appropriate. 8 VII. CONCLUSION 9 Having reviewed the record and the ALJ’s findings, the Commissioner’s 10 || final decision is REVERSED and this case is REMANDED for further proceedings under sentence four of 42 U.S.C. § 405(g). 12 Therefore, IT IS HEREBY ORDERED: 13 1. Plaintiff's Motion for Summary Judgment, ECF No. 13, is GRANTED. 1S 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED.

18 3. The District Court Executive is directed to file this Order and provide 19 || 2 COPY to counsel for Plaintiff and Defendant. Judgment shall be entered for 0 Plaintiff and the file shall be CLOSED. 1 IT IS SO ORDERED. 22 DATED March 31, 2023.

“a JAMES A. GOEKE 25 a UNITED STATES MAGISTRATE JUDGE 26 27 28