1 FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON Oct 13, 2021 3 SEAN F. MCAVOY, CLERK 4
5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6
7 EVELYN W., NO: 1:20-CV-03134-LRS 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT 10 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL 11 SECURITY,1
12 Defendant.
13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment. ECF Nos. 13, 14. This matter was submitted for consideration without 15 oral argument. Plaintiff is represented by attorney D. James Tree. Defendant is 16
17 1Kilolo Kijakazi became the Acting Commissioner of Social Security on 18 July 9, 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, 19 Kilolo Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No 20 further action need be taken to continue this suit. See 42 U.S.C. § 405(g). 21 1 represented by Special Assistant United States Attorney Erin F. Highland. The 2 Court, having reviewed the administrative record and the parties’ briefing, is fully 3 informed. For the reasons discussed below, the Court GRANTS, in part, 4 Plaintiff’s Motion for Summary Judgment, ECF No. 13, DENIES Defendant’s
5 Motion for Summary Judgment, ECF No. 14, and REMANDS the case for to the 6 Commissioner for additional proceedings. 7 JURISDICTION
8 Plaintiff Evelyn W.2 filed an application for Disability Insurance Benefits 9 (DIB) on September 28, 2016, Tr. 70, 80, alleging disability since July 1, 2016, Tr. 10 353, due to a back injury/pain, sporadic right arm and leg numbness, and neck pain, 11 Tr. 201. Benefits were denied initially, Tr. 94-100, and upon reconsideration, Tr.
12 102-08. A hearing before Administrative Law Judge Kimberly Boyce (“ALJ”) 13 was conducted on June 21, 2019. Tr. 32-69. Plaintiff was represented by counsel 14
15 2In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s 16 first name and last initial, and, subsequently, Plaintiff’s first name only, throughout 17 this decision. 18 3The Court notes there is no copy of Plaintiff’s application in the file. 19 Therefore, the Court relies on the alleged onset date put on the record at Plaintiff’s 20 ALJ hearing. 21 1 and testified at the hearing. Id. The ALJ also took the testimony of vocational 2 expert Marilyn Thomas. Id. The ALJ denied benefits on August 8, 2019. Tr. 13- 3 26. The Appeals Council denied Plaintiff’s request for review on July 9, 2020. Tr. 4 1-6. Therefore, the ALJ’s decision became in the final decision of the
5 Commissioner. The matter is now before this Court pursuant to 42 U.S.C. §§ 6 405(g). ECF No. 1. 7 BACKGROUND
8 The facts of the case are set forth in the administrative hearing and 9 transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner. 10 Only the most pertinent facts are summarized here. 11 Plaintiff was 62 years old at the alleged date of onset. Tr. 70. She received
12 her CDL in 1975 and completed two years of college in 1990. Tr. 202. Plaintiff’s 13 reported work history includes jobs as cashier, customer service at a call center, 14 housekeeper, school bus driver, and truck driver. Tr. 202.
15 Plaintiff was initially injured in a workplace accident in the return 16 department at Fry Electronics in January of 2013. Tr. 47, 50. She returned to 17 work at the Fry Electronics call center in an accommodated position and worked 18 there until she left in June of 2016. Tr. 47-49, 202. She reported that she was able
19 to continue working after her accident because she was allowed a ten-to-twenty- 20 minute break every hour to get up and move around and she could lay down if 21 necessary. Tr. 41, 48-49. At application, she stated that she stopped working on 1 June 30, 2016, due to her conditions. Tr. 201. However, at the hearing, Plaintiff 2 reported that she left the call center job at Fry Electronics because her father-in-law 3 passed away and her family had to relocate to sell his home. Tr. 41. 4 STANDARD OF REVIEW
5 A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. §§ 405(g), 1383(c). The scope of review under 7 § 405(g) is limited; the Commissioner’s decision will be disturbed “only if it is not
8 supported by substantial evidence or is based on legal error.” Hill v. Astrue, 698 9 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence 10 that a reasonable mind might accept as adequate to support a conclusion.” Id. at 11 1159 (quotation and citation omitted). Stated differently, substantial evidence
12 equates to “more than a mere scintilla[,] but less than a preponderance.” Id. 13 (quotation and citation omitted). In determining whether the standard has been 14 satisfied, a reviewing court must consider the entire record as a whole rather than
15 searching for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. “The court will uphold the ALJ’s 18 conclusion when the evidence is susceptible to more than one rational
19 interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 20 Further, a district court will not reverse an ALJ’s decision on account of an error 21 that is harmless. Id. An error is harmless where it is “inconsequential to the 1 [ALJ’s] ultimate nondisability determination.” Id. (quotation and citation omitted). 2 The party appealing the ALJ’s decision generally bears the burden of establishing 3 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 4 FIVE-STEP EVALUATION PROCESS
5 A claimant must satisfy two conditions to be considered “disabled” within 6 the meaning of the Social Security Act. First, the claimant must be “unable to 7 engage in any substantial gainful activity by reason of any medically determinable
8 physical or mental impairment which can be expected to result in death or which 9 has lasted or can be expected to last for a continuous period of not less than twelve 10 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 11 “of such severity that he is not only unable to do his previous work[,] but cannot,
12 considering his age, education, and work experience, engage in any other kind of 13 substantial gainful work which exists in the national economy.” 42 U.S.C. § 14 423(d)(2)(A).
15 The Commissioner has established a five-step sequential analysis to 16 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 17 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 18 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in
19 “substantial gainful activity,” the Commissioner must find that the claimant is not 20 disabled. 20 C.F.R. § 404.1520(b). 21 If the claimant is not engaged in substantial gainful activity, the analysis 1 proceeds to step two. At this step, the Commissioner considers the severity of the 2 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 3 from “any impairment or combination of impairments which significantly limits 4 [her] physical or mental ability to do basic work activities,” the analysis proceeds
5 to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment does not 6 satisfy this severity threshold, however, the Commissioner must find that the 7 claimant is not disabled. 20 C.F.R. § 404.1520(c).
8 At step three, the Commissioner compares the claimant’s impairment to 9 severe impairments recognized by the Commissioner to be so severe as to preclude 10 a person from engaging in substantial gainful activity. 20 C.F.R. § 11 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the
12 enumerated impairments, the Commissioner must find the claimant disabled and 13 award benefits. 20 C.F.R. § 404.1520(d). 14 If the severity of the claimant’s impairment does not meet or exceed the
15 severity of the enumerated impairments, the Commissioner must pause to assess 16 the claimant’s “residual functional capacity.” Residual functional capacity 17 (“RFC”), defined generally as the claimant’s ability to perform physical and 18 mental work activities on a sustained basis despite his or her limitations, 20 C.F.R.
19 § 404.1545(a)(1), is relevant to both the fourth and fifth steps of the analysis. 20 At step four, the Commissioner considers whether, in view of the claimant’s 21 RFC, the claimant is capable of performing work that he or she has performed in 1 the past (past relevant work). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 2 capable of performing past relevant work, the Commissioner must find that the 3 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 4 performing such work, the analysis proceeds to step five.
5 At step five, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing other work in the national economy. 7 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner
8 must also consider vocational factors such as the claimant’s age, education, and 9 past work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the claimant is capable of 10 adjusting to other work, the Commissioner must find that the claimant is not 11 disabled. 20 C.F.R. § 404.1520(g)(1). If the claimant is not capable of adjusting to
12 other work, analysis concludes with a finding that the claimant is disabled and is 13 therefore entitled to benefits. 20 C.F.R. § 404.1520(g)(1). 14 The claimant bears the burden of proof at steps one through four. Tackett v.
15 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, 16 the burden shifts to the Commissioner to establish that (1) the claimant is capable 17 of performing other work; and (2) such work “exists in significant numbers in the 18 national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 386,
19 389 (9th Cir. 2012). 20 THE ALJ’S FINDINGS 21 At step one, the ALJ found that Plaintiff has not engaged in substantial 1 gainful activity since July 1, 2016, the alleged onset date. Tr. 15. At step two, the 2 ALJ found that Plaintiff has the following severe impairments: herniated discs in 3 the lumbar spine with radiculopathy to the right leg in an L5 distribution and 4 cervical disc disease with foraminal stenosis to the right side. Tr. 16. At step
5 three, the ALJ found that Plaintiff does not have an impairment or combination of 6 impairments that meets or medically equals the severity of a listed impairment. Tr. 7 16. The ALJ then found that Plaintiff has the RFC to perform light work as
8 defined in 20 CFR § 404.1567(b) with the following limitations: 9 she can occasionally climb, balance, stoop, kneel, crouch, and crawl; can occasionally reach overhead with the non-dominated right upper 10 extremity, and can otherwise frequently reach, handle, and finger with the non-dominant right upper extremity; and can perform work in 11 which concentrated exposure to extreme cold, heat, wetness, 12 pulmonary irritants, and vibration is not present. 13 Tr. 16-17. At step four, the ALJ identified Plaintiff’s past relevant work as school 14 bus driver, housekeeper cleaner, tractor trailer truck driver, customer service clerk, 15 and cashier II. Tr. 23. The ALJ found she could perform her past relevant work as 16 a customer service clerk. Tr. 23. The ALJ then made an alternative step five 17 finding that, considering Plaintiff’s age, education, work experience, and RFC, 18 there were other jobs that exist in significant numbers in the national economy that 19 Plaintiff could perform, including order clerk. Tr. 24-25. The ALJ concluded that 20 Plaintiff was not under a disability, as defined in the Social Security Act, from July 21 11, 2016, through the date of her decision. Tr. 25. 1 ISSUES 2 Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her DIB benefits under Title II of the Social Security Act. ECF No. 13. Plaintiff 4 raises the following issues for this Court’s review:
5 1. Whether the ALJ properly evaluated the medical opinion evidence; 6 2. Whether the ALJ properly addressed Plaintiff’s symptom statements; and 7 3. Whether the ALJ made proper determinations at steps four and five.
8 DISCUSSION 9 1. Medical Opinion Evidence 10 Plaintiff challenges the ALJ’s rejection of the medical opinions that she 11 required additional breaks throughout the workday. ECF No. 13 at 6-11. In doing
12 so, Plaintiff argues that the ALJ erred in the weight assigned to the opinions of the 13 worker’s compensation evaluations, work status reports, Felicia Radu, M.D., and 14 the State agency medical reviewer. Id.
15 There are three types of physicians: “(1) those who treat the claimant 16 (treating physicians); (2) those who examine but do not treat the claimant 17 (examining physicians); and (3) those who neither examine nor treat the claimant 18 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).”
19 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 20 Generally, a treating physician’s opinion carries more weight than an examining 21 physician’s opinion, and an examining physician’s opinion carries more weight 1 than a reviewing physician’s opinion. Id. 2 If a treating or examining physician’s opinion is uncontradicted, the ALJ 3 may reject it only by offering “clear and convincing reasons that are supported by 4 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).
5 Conversely, “[i]f a treating or examining doctor’s opinion is contradicted by 6 another doctor’s opinion, an ALJ may only reject it by providing specific and 7 legitimate reasons that are supported by substantial evidence.” Id. (citing Lester v.
8 Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)). The specific and legitimate standard 9 can be met by the ALJ setting out a detailed and thorough summary of the facts 10 and conflicting clinical evidence, stating her interpretation thereof, and making 11 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is
12 required to do more than offer her conclusions, she “must set forth [her] 13 interpretations and explain why they, rather than the doctors’, are correct.” 14 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).
15 A. Worker’s Compensation Evaluations 16 On April 25, 2013, Dr. Radu opined that Plaintiff requires a “10-minute 17 stretch break every 60 minutes as needed.’ Tr. 547. On June 13, 2013, Dr. Aachi 18 stated that Plaintiff was going back to modified work. Tr. 574. On November 20,
19 2014, Dr. Tran stated Plaintiff required “frequent breaks of 5 minutes every 55 20 minutes from activities.” Tr. 716. 21 The ALJ assigned some weight to the opinions expressed in these 1 evaluations because “there are so many in the file,” they were “temporary in 2 nature,” and they were “written when the claimant was still undergoing treatment.” 3 Tr. 22. She also found that the opinions were “vague in that the specific 4 limitations for overhead work, stooping, bending, kneeling, and squatting is not
5 indicated in terms of frequency.” Id. 6 The ALJ’s rationale that there were so many in the file, they were 7 temporary, and they were written while Plaintiff was undergoing treatment is not
8 specific and legitimate. First, the ALJ only discussed three evaluations. Tr. 22. 9 Therefore, the numerousness of the opinions is irrelevant. 10 Second, while these opinions were temporary in nature and made while 11 Plaintiff was undergoing treatment, they were consistent with the work status
12 reports during the same period that ultimately concluded with Dr. Radu’s opinion 13 that Plaintiff had met maximum improvement and continued to require additional 14 breaks beyond what is normally allowed during a workday. See infra. Therefore,
15 in light of the record as a whole, these temporary opinions actually demonstrate a 16 long-term limitation in the workplace. See Hill, 698 F.3d at 1159 (“a revieing 17 court must consider the entire record as a whole”). Therefore, this is not specific 18 and legitimate.
19 Third, the opinion regarding the need for additional breaks were not vague. 20 Dr. Radu and Dr. Tran were both specific regarding additional breaks and provided 21 both the frequency and duration of the breaks. Therefore, this is not a specific and 1 legitimate reason for rejecting the opinions. 2 B. Work Status Reports 3 Following Plaintiff’s January of 2013 on-the-job injury, her providers 4 completed work status reports as part of her worker’s compensation claim. On
5 January 24, 2013, February 13, 2013, and February 20, 2013, Dr. Gunasekera 6 completed Work Status Reports and did not opine that Plaintiff would require 7 additional breaks. Tr. 439, 440, 524. On March 7, 2013, Dr. Gunasekera opined
8 that Plaintiff would require a “10 [minute] stretch break every 120min from sitting.” 9 Tr. 432. On March 21, 2013, Dr. Gunasekera opined that Plaintiff would require a 10 “10 [minute] stretch break every 45min from sitting.” Tr. 431, 531. On April 4, 11 2013, Dr. Gunasekera opined that Plaintiff “[m]ust take a 10 minute stretch break
12 every 60 minutes from sitting.” Tr. 430. On April 18, 2013, Physician Assistant 13 Philip Gosvener opined that Plaintiff “[m]ust take a 10 minute stretch break every 60 14 minutes from sitting.” Tr. 429, 538-39. On April 25, 2013, Dr. Radu opined that
15 Plaintiff “[m]ust take a 10 minute stretch break every 60 minutes.” Tr. 427, 554. 16 On May 15, 2013, Dr. Munoz de Laborde completed a Work Status Report and did 17 not opine that Plaintiff required additional breaks. Tr. 428. On May 23, 2013, Dr. 18 Young completed a Work Status Report and did not opine that Plaintiff would
19 require regular breaks. Tr. 419, 555. On June 13, 2013, Dr. Aachi opined that 20 Plaintiff “[m]ust take a 5 minute stretch break every 55 minutes from activities.” Tr. 21 418. On November 14, 2013, December 12, 2013, December 26, 2013, January 23, 1 2014, Dr. Aachi opined that Plaintiff “[m]ust take a 10 minute stretch break every 60 2 minutes from activities.” Tr. 404, 405, 408, 422. On March 6, 2014, May 1, 2014, 3 May 15, 2014, May 29, 2014, June 26, 2014, Dr. Aachi opined that Plaintiff “[m]ust 4 take a 5 minute stretch break every 55 minutes from activities.” Tr. 370, 375, 376,
5 395, 396, 420. On July 24, 2014, Dr. Aachi provided an opinion and did not state 6 that Plaintiff would require additional breaks. Tr. 368. However, a second opinion 7 by Dr. Aachi with the same date states that Plaintiff “[m]ust take a 5 minute stretch
8 break every 55 minutes from activities.” Tr. 369. On November 20, 2014, Dr. 9 Sherman opined that Plaintiff “[m]ust take a 10 minute stretch break every 60 10 minutes from activities.” Tr. 367. On January 22, 2015, March 5, 2015, and April 11 16, 2015, Dr. Radu completed medical status report opinions that Plaintiff “[m]ust
12 take a 10 minute stretch break every 60 minutes as needed.” Tr. 350-51, 364. On 13 July 25, 2015, Dr. Mathias opined that Plaintiff would require 10-minute breaks 14 every two hours. Tr. 358.
15 The ALJ only assigned some weight to “the various work status reports,” for 16 four reasons: (1) the opinions were “brief forms and temporary in nature”; (2) 17 Plaintiff experienced improvement with treatment, therefore, the forms do not 18 clearly reflect Plaintiff’s long-term capacities; (3) the forms “rendered opinions on
19 topics that are not true functional opinions, such as the claimant’s progress and 20 anticipated return to work dates”; and (4) “there was little to no medical explanation 21 or analysis included on such forms as to the basis for the opinions, or to explain why 1 the restrictions change, sometimes month to month.” Tr. 23. 2 The ALJ’s first two reasons for rejecting the work status reports, that they 3 were brief, temporary, and not reflective of Plaintiff’s long-term capacities, is not 4 supported by substantial evidence. The majority of the opinions during the worker’s
5 compensation claim support Plaintiff’s need for additional breaks throughout the 6 workday. These opinions were concluded by the May 14, 2015, opinion of Dr. Radu 7 that Plaintiff had reached maximum medical improvement and continued to require
8 additional breaks throughout the workday. Tr. 347. Reviewing the record as a 9 whole, these opinions were neither brief or temporary and reflected Plaintiff’s long- 10 term capacity. 11 The ALJ’s third reason for rejecting the work status reports, that they were
12 “not true functional opinions, such as the claimant’s progress and anticipated return 13 to work dates,” is a misstatement of the law. Medical opinions are defined as 14 “statements from acceptable medical sources that reflect judgments about the nature
15 and severity of your impairment(s), including your symptoms, diagnosis, and 16 prognosis, what you can still do despite impairment(s), and your physical or mental 17 restrictions.” 20 C.F.R. § 404.1527(a)(1). Prognosis is specifically included in the 18 Regulations’ definition of medical opinions. Therefore, this reason cannot support
19 the ALJ’s rejection of the opinions. 20 The ALJ’s fourth reason for rejecting the work status reports, that there was 21 little or no medical explanation on the forms, is not a specific and legitimate. The 1 Ninth Circuit has expressed a preference for narrative opinions over opinions 2 expressed on a check-the-box form. See Murray v. Heckler, 722 F.2d 499, 501 (9th 3 Cir. 1983). However, check-the-box forms that do not stand alone, but are 4 supported by records should be “entitled to weight that an otherwise unsupported
5 and unexplained check-box form would not merit.” Garrison v. Colvin, 759 F.3d 6 995, 1013 (9th Cir. 2014). The records from the worker’s compensation claim 7 include medical evidence that support these forms, including the evaluations
8 discussed above showing limited ranges of motion in the lumbar spine, reduced 9 sensation in the right lower extremity, and positive straight leg raising tests on the 10 right. Tr. 544-46, 571-72, 712. They also include progress reports from providers 11 showing continued weakness and radiculopathy in the right lower extremity. Tr.
12 509, 517, 520, 524, 532. They also include an MRI showing a protrusion effacing 13 the exited right L1 nerve. Tr. 527. Therefore, since these check-the-box forms do 14 not stand alone, this reason fails to meet the specific and legitimate standard.
15 Defendant combined her discussion of the worker’s compensation evaluations 16 and the work status reports into a single argument and asserted that any error in the 17 rejection of these opinions was harmless because they all predated the alleged onset 18 date. ECF No. 14 at 15. The Ninth Circuit has found that opinions that predate the
19 alleged onset date of disability are of limited relevance. Carmickle v. Comm’r, Soc. 20 Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). However, in Carmickle, the 21 provider gave a functional opinion weeks prior to the on-the-job-injury that was the 1 basis for Plaintiff’s onset date, and the Court upheld the ALJ’s rejection of the 2 opinion because it was given “at a time when Carmickle was working two jobs that 3 he never indicated having trouble performing before his on-the-job-injury.” Id. at 4 1158, 1165. Therefore, the instant case is distinguishable. Plaintiff was injured in
5 an on-the-job accident, and the worker’s compensation evaluation and work status 6 report opinions postdate this on-the-job accident. While these opinions predate her 7 alleged onset date for DIB, the date of injury is not the only factor used to determine
8 the onset date for DIB purposes. “The onset date is the first day the claimant meets 9 the definition of disability or statutory blindness as defined in the Social Security 10 Act (Act) and regulations.” POMS DI 25501.200. “To be entitled to disability 11 benefit sunder title II of the Act. . . a claimant must file an application, meet the
12 statutory definition of disability, and satisfy the applicable non-medical 13 requirements.” S.S.R. 18-1p. The definition of disability requires that a claimant 14 not be performing substantial gainful activity. 42 U.S.C. § 423(d)(1) (“The term
15 ‘disability’ means inability to engage in any substantial gainful activity by reason of 16 any medically determinable physical or mental impairment which can be expected to 17 result in death or which has lasted or can be expected to last for a continuous period 18 of not less than 12 months”); 20 C.F.R. § 404.1520(a)(4)(i) (step on of the sequential
19 evaluation process). Therefore, the date a claimant stops performing substantial 20 gainful activity is a factor to consider in determining an onset date. S.S.R. 18-1p. 21 Here, Plaintiff was injured in an on-the-job accident. She returned to work at an 1 accommodated position and continued to earn income at the substantial gainful 2 activity level. Eventually, the accommodated position ended. In this case, the 3 appropriate onset date is not the date of Plaintiff’s on-the-job injury, but the date her 4 accommodated position ended and she stopped earning income at the substantial
5 gainful activity level. The medical opinions that address her functional abilities after 6 the on-the-job injury but before her accommodated position ended are still relevant 7 to the analysis of her RFC determination. Therefore, the ALJ’s error in the
8 treatment of the opinions were not harmless. 9 C. Felicia Radu, M.D. 10 On May 14, 2015, Dr. Radu found that Plaintiff had “reached maximal 11 medical improvement and is permanent and stationary.” Tr. 347. She further opined
12 that Plaintiff would require “10 minute stretch breaks every 60 minutes as needed.” 13 Id. The ALJ rejected this opinion: 14 The opinions regarding improvement and whether the claimant is permanent and stationary are irrelevant to the determination herein. 15 Furthermore, the percentage ratings useful in Worker’s Compensation claims poorly translate in a way that is useful in the functional 16 determination herein. The opinion is also vague in that the specific limitations for stooping, bending, kneeling, and squatting is not 17 indicated in terms of frequency. Thus, the claimant’s maximum capacity with respect to each task is still unknown. 18 19 Tr. 23. However, Plaintiff asserts that this opinion is very relevant, ECF No. 13 at 20 8-9, and the Court agrees. 21 The majority of the Plaintiff’s work status reports agree that Plaintiff requires 1 additional breaks to stretch. See supra. Dr. Radu’s opinion asserts that this 2 requirement is not going to go away with further treatment. Tr. 347 (“The patient 3 has reached maximal medical improvement and is permanent and stationary.”). The 4 ALJ’s finding of vagueness only pertained to the postural limitations and not the
5 need for additional breaks. Tr. 23. Therefore, the ALJ has failed to provide a 6 specific and legitimate reason for rejecting Dr. Radu’s opinion that Plaintiff requires 7 a ten-minute break every 60 minutes.
8 D. State Agency Medical Reviewer 9 On June 27, 2017, Louis Chelton, M.D. from the Washington Disability 10 Determination Services (DDS) accepted the original opinion from an earlier DDS 11 review of the records, but clarifying that Plaintiff would need to “[a]lternate 5 min
12 Standing/walking after every 55 min Sitting; Normal breaks are sufficient when 13 standing.” Tr. 839. 14 The ALJ gave this opinion some weight, but in doing so she failed to provide
15 a reason for rejecting the need to alternate standing/walking every 55 minutes of 16 sitting: 17 The undersigned agrees that the light level lifting, carrying, standing, walking, and sitting capacities are consistent with the claimant’s mild 18 spine images and her usually normal documented gait (Exhibits 2F and 5F). However, the undersigned finds that additional postural 19 restrictions are necessary given the claimant’s restricted range of motion in her spine (Exhibit 2F/57). The undesigned also finds the 20 reaching, handling, fingering, and feeling limitations were appropriate given the claimant’s mild cervical spine images (Exhibits 1F/2 and 21 5F/226). 1 Tr. 22. Social Security Ruling (S.S.R.) 96-8p states that the RFC assessment “must 2 always consider and address medical source opinions. If the RFC assessment 3 conflicts with an opinion from a medical source, the adjudicator must explain why 4 the opinion was not adopted.” The ALJ’s failure to provide a reason for rejecting
5 the opined need to stand/walk for five minutes every 55 was minutes and then not 6 include it in RFC is an error. 7 The ALJ made a general statement that she assigned all previously discussed
8 opinions “some weight,” “because they are so utterly contradictory.” Tr. 21. 9 However, this is a general statement and fails to meet the specific and legitimate 10 standard. See Embrey, 849 F.2d at 421-22 (The ALJ is required to do more than 11 offer her conclusions, she “must set forth [her] interpretations and explain why
12 they, rather than the doctors’, are correct.” ). Furthermore, it is not supported by 13 substantial evidence. The record reviewed as a whole demonstrates that the 14 opinions are consistent in terms of Plaintiff’s need for additional breaks.
15 Additionally, the ALJ found that “the longitudinal record does not support the 16 need for a sit/stand option,” because Plaintiff was able to continue working after the 17 initial injury. Tr. 20. The ALJ was not addressing these medical opinions when 18 discussing the sit/stand option. When setting forth a hypothetical for the vocational
19 expert, the ALJ clearly identified a sit/stand option was the ability to sit or stand 20 during the workday, but not leave the work station when doing so. Tr. 23. The 21 opinions at issue require Plaintiff take breaks to walk, i.e., leave the work station, or 1 stretch, i.e. not perform the work related tasks. Therefore, these opinions are not 2 consistent with a finding of a sit/stand option as the ALJ defined it for the vocational 3 expert at the hearing. 4 Therefore, this case is remanded for the ALJ to properly address the opinions
5 discussed above regarding Plaintiff’s alleged need for additional breaks throughout 6 the workday to walk or stretch. 7 2. Plaintiff’s Symptom Statements
8 Plaintiff challenges the ALJ’s treatment of her symptom statements. ECF 9 No. 13 at 11-15. 10 It is generally the province of the ALJ to make determinations regarding the 11 reliability of Plaintiff’s symptom statements, Andrews v. Shalala, 53 F.3d 1035,
12 1039 (9th Cir. 1995), but the ALJ’s findings must be supported by specific cogent 13 reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 14 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s
15 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 16 1273, 1281 (9th Cir. 1996); Lester, 81 F.3d at 834. 17 The ALJ found Plaintiff’s “statements concerning the intensity, persistence, 18 and limiting effects of these symptoms are not entirely consistent with the medical
19 evidence and other evidence in the record for the reasons explained in this decision.” 20 Tr. 17. The evaluation of a claimant’s symptom statements and their resulting 21 limitations relies, in part, on the assessment of the medical evidence. See 20 C.F.R. 1 § 404.1529(c); S.S.R. 16-3p. Therefore, in light of the case being remanded for the 2 ALJ to readdress the medical opinions in the file, a new assessment of Plaintiff’s 3 subjective symptom statements will be necessary. 4 3. Steps Four and Five
5 Plaintiff challenges the ALJ’s determinations at steps four and five. ECF No. 6 13 at 15-18. Plaintiff’s step four and five challenges are derivative of her argument 7 that the ALJ failed to properly weigh the medical opinions addressed above. Since
8 the case is being remanded for the ALJ to properly address the opinions concerning 9 Plaintiff’s need to take additional breaks, the ALJ will readdress steps four and five. 10 Additionally, Plaintiff challenges the ALJ’s finding that she would have transferable 11 skills from her work as a customer service clerk and the impact this has on the
12 application of the GRIDS rules. ECF No. 13 at 18. On remand the ALJ will call a 13 vocational expert to further address transferable skills. 14 CONCLUSION
15 Plaintiff requests that the Court remand the case for an immediate award of 16 benefits. ECF No. 17 at 10-11. 17 The decision whether to remand for further proceedings or reverse and 18 award benefits is within the discretion of the district court. McAllister v. Sullivan,
19 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 20 where “no useful purpose would be served by further administrative proceedings, 21 or where the record has been thoroughly developed,” Varney v. Sec'y of Health & 1 Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by 2 remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 3 (9th Cir. 1990); see also Garrison, 759 F.3d at 1021 (noting that a district court 4 may abuse its discretion not to remand for benefits when all of these conditions are
5 met). This policy is based on the “need to expedite disability claims.” Varney, 6 859 F.2d at 1401. But where there are outstanding issues that must be resolved 7 before a determination can be made, and it is not clear from the record that the ALJ
8 would be required to find a claimant disabled if all the evidence were properly 9 evaluated, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman v. 10 Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 11 The Court finds that further administrative proceedings are appropriate. See
12 Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) 13 (remand for benefits is not appropriate when further administrative proceedings 14 would serve a useful purpose). Here, the ALJ must readdress the numerus
15 opinions that Plaintiff requires additional breaks throughout the workday. The 16 opined frequency and length of these breaks vary. Therefore, the ALJ must clearly 17 define the frequency and length and address whether Plaintiff is stepping away 18 from the work area or unable to perform work tasks during these additional breaks
19 in her the RFC determination. She must then readdress Plaintiff’s symptom 20 statements and the determinations made at steps four and five. In addition, the 21 ALJ should supplement the record with any outstanding medical evidence prior to 1 || the date last insured and take additional testimony from a vocational expert at any 2 || remand proceedings. 3 ACCORDINGLY, IT IS HEREBY ORDERED: 4 1. Plaintiff's Motion for Summary Judgment, ECF No. 13, is GRANTED, 5 in part, and the matter is REMANDED to the Commissioner for 6 additional proceedings consistent with this Order. 7 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is DENIED. 8 IT IS SO ORDERED. The District Court Clerk is directed to enter this Order and provide copies to counsel. Judgment shall be entered for Plaintiff and the file shall be CLOSED. 11 DATED October 13, 2021. OK, a
13 S “eer ER SUKO. Senior United States District Judge 14 15 16 17 18 19 20 21