Wilsey v. Kijakazi

• Court: District Court, E.D. Washington
• Decided: April 26, 2022
• Docket: 4:21-cv-05100
• Status: Unknown

Opinion

1 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Apr 26, 2022 3 SEAN F. MCAVOY, CLERK 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 KARRINA W.,1 8 Plaintiff, No. 4:21-CV-05100-SAB 9 v. 10 COMMISSIONER OF SOCIAL ORDER GRANTING 11 SECURITY ADMINISTRATION, PLAINTIFF’S MOTION FOR 12 Defendant. SUMMARY JUDGMENT; 13 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 19 Chad Hatfield; Defendant is represented by Katherine Watson and Timothy M. 20 Durkin. 21 Plaintiff brings this action seeking judicial review of the Commissioner of 22 Social Security’s final decision denying her application for Supplemental Security 23 Income (SSI). After reviewing the administrative record and briefs filed by the 24 parties, the Court is now fully informed. For the reasons set forth below, the Court 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 grants Plaintiff’s Motion for Summary Judgment, ECF No. 11, and denies 2 Defendant’s Motion for Summary Judgment, ECF No. 12. 3 I. Jurisdiction 4 On September 1, 2015, Plaintiff filed an application for supplemental 5 security income. She alleged disability beginning February 15, 2014. 6 Plaintiff’s application was denied initially and on reconsideration. On July 7 19, 2016, Plaintiff requested a hearing before an Administrative Law Judge 8 (“ALJ”). On March 6, 2018, Plaintiff appeared and testified at a telephonic hearing 9 before ALJ Jesse Shumway, who presided from Spokane, Washington. The ALJ 10 issued a decision on April 30, 2018, finding that Plaintiff was not disabled. 11 Plaintiff appealed that decision, and the Court granted her Motion for Summary 12 Judgment, remanding for further action. See 4:19-CV-05167-SAB, ECF No. 12. 13 On January 27, 2021, ALJ Shumway held a telephonic hearing. Plaintiff was 14 represented by Chad Hatfield but did not participate in the hearing. Mr. Hatfield 15 indicated that he had lost contact with Plaintiff and was unable to locate her. The 16 ALJ concluded that Plaintiff constructively waived her appearance. Vocational 17 expert Jeffery Tittelfitz also participated. On May 3, 2021, the ALJ issued an 18 opinion finding Plaintiff was not disabled. 19 Plaintiff filed a timely appeal with the United States District Court for the 20 Eastern District of Washington on September 8, 2020. ECF No. 1. The matter is 21 before this Court pursuant to 42 U.S.C. § 405(g). 22 II. Five-Step Sequential Evaluation Process 23 The Social Security Act defines disability as the “inability to engage in any 24 substantial gainful activity by reason of any medically determinable physical or 25 mental impairment which can be expected to result in death or which has lasted or 26 can be expected to last for a continuous period of not less than twelve months.” 42 27 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 28 under a disability only if their impairments are of such severity that the claimant is 1 not only unable to do their previous work, but cannot, considering claimant’s age, 2 education, and work experiences, engage in any other substantial gainful work that 3 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 4 Commissioner has established a five-step sequential evaluation process to 5 determine whether a person is disabled in the statute. See 20 C.F.R. §§ 6 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 7 Step One: Is the claimant engaged in substantial gainful activities? 20 8 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work 9 done for pay and requires compensation above the statutory minimum. Keyes v. 10 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 11 substantial activity, benefits are denied. 20 C.F.R. § 404.1520(b), 416.920(b). If 12 the claimant is not, the ALJ proceeds to step two. 13 Step Two: Does the claimant have a medically-severe impairment or 14 combination of impairments? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A 15 severe impairment is one that lasted or must be expected to last for at least 12 16 months and must be proven through objective medical evidence. Id. §§ 404.1509, 17 416.909. If the claimant does not have a severe impairment or combination of 18 impairments, the disability claim is denied. Id. § 404.1520(a)(4)(ii), 19 416.920(a)(4)(ii). If the impairment is severe, the evaluation proceeds to the third 20 step. 21 Step Three: Does the claimant’s impairment meet or equal one of the listed 22 impairments acknowledged by the Commissioner to be so severe as to preclude 23 substantial gainful activity? 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 24 the impairment meets or equals one of the listed impairments, the claimant is 25 conclusively presumed to be disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the 26 impairment is not one conclusively presumed to be disabling, the evaluation 27 proceeds to the fourth step. 28 Before considering to the fourth step, the ALJ must first determine the 1 claimant’s residual functional capacity. An individual’s residual functional 2 capacity is their ability to do physical and mental work activities on a sustained 3 basis despite limitations from their impairments. 20 C.F.R. §§ 404.1545(a)(1), 4 416.945(a)(1). The residual functional capacity is relevant to both the fourth and 5 fifth steps of the analysis. 6 Step Four: Does the impairment prevent the claimant from performing work 7 they have performed in the past? 20 C.F.R. §§ 404.1520(a)(4)(iv), 8 416.920(a)(4)(iv). If the claimant is able to perform their previous work, they are 9 not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform 10 this work, the evaluation proceeds to the fifth and final step. 11 Step Five: Is the claimant able to perform other work in the national 12 economy in view of their age, education, and work experience? 20 C.F.R. §§ 13 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 14 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 15 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 16 establishes that a physical or mental impairment prevents him from engaging in her 17 previous occupation. Id. At step five, the burden shifts to the Commissioner to 18 show that the claimant can perform other substantial gainful activity. Id. 19 III. Standard of Review 20 The Commissioner’s determination will be set aside only when the ALJ’s 21 findings are based on legal error or are not supported by substantial evidence in the 22 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 23 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 24 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 25 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 26 evidence is “such relevant evidence as a reasonable mind might accept as adequate 27 to support a conclusion.” Richardson, 402 U.S. at 401. 28 // 1 A decision supported by substantial evidence will be set aside if the proper 2 legal standards were not applied in weighing the evidence and making the decision. 3 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 4 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 5 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 6 1050, 1055 (9th Cir. 2006). The Court must uphold the ALJ’s denial of benefits if 7 the evidence is susceptible to more than one rational interpretation, one of which 8 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 9 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 10 weighing both the evidence that supports and the evidence that detracts from the 11 Commissioner’s conclusion, and may not affirm simply by isolating a specific 12 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 13 2017) (quotation omitted). “If the evidence can support either outcome, the court 14 may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 15 IV. Statement of Facts 16 The facts have been presented in the administrative record, the ALJ’s 17 decision, and the briefs to this Court. Only the most relevant facts are summarized 18 herein. 19 At the time of the 2018 hearing, Plaintiff was twenty-eight. She had two 20 children. She testified that shortly after she graduated from high school, she had 21 surgery on her appendix. A couple of months after the surgery, she began to 22 experience nausea, vomiting and diarrhea. At one point, she lost almost thirty 23 pounds. She explained that she does not have an appetite because she is constantly 24 nauseated. She also experiences migraine a couple of times a week. Sometimes she 25 has to stay in her bedroom and her mother comes over to help her with the 26 children. She also testified she has stabbing abdominal pain. This pain makes it 27 difficult to sit or stand very long. 28 // 1 After the hearing was held, it appears that Plaintiff attempted to work. In 2 2018, Plaintiff earned $10,191.27 and $10,814.64 in 2019, as well as earning 3 $8,675 in 2020. Plaintiff did not testify at the 2021 hearing to explain why she quit 4 working in 2020. 5 V. The ALJ’s Findings 6 The ALJ issued an opinion finding Plaintiff to not be disabled. AR 575-589. 7 At step one, the ALJ found that Plaintiff engaged in substantial gainful activity 8 during the following periods: July 1, 2018 to December 31, 2018, but noted there 9 had been continuous 12-month periods during which she did not engage in 10 substantial gainful activity. AR 578. 11 At step two, the ALJ identified the following severe impairments: abdominal 12 pain of unknown etiology, migraines, anxiety disorder, and depressive disorder. 13 AR 579. 14 At step three, the ALJ found that Plaintiff did not have an impairment or 15 combination of impairments that meets or medically equals the severity of one of 16 the listed impairments. AR 581. The ALJ reviewed Listings 5.08, 12.04 and 12.06, 17 and summarily concluded that Plaintiff’s migraines did not equal any of the 18 listings. AR 581. 19 Ultimately, the ALJ concluded that Plaintiff has a residual function capacity 20 (“RFC”) to perform:

21 A full range of light work as defined in 20 CFR 416.967(b) with the 22 following exceptions: she can frequently climb ladders, ropes, and scaffolds; she cannot have concentrated exposure to vibration, 23 pulmonary irritants, or hazards (e.g. unprotected heights, moving 24 mechanical parts); she is limited to a moderate noise environment; she is limited to simple, routine tasks with occasional, superficial contact 25 with the public and coworkers; she needs a routine, predictable work 26 environment with no more than occasional changes; and she would likely have one absence per month, on average. 27 AR at 582. 28 1 At step four, the ALJ found that Plaintiff had no past relevant work. AR 588. 2 At step five, the ALJ found that Plaintiff was not disabled and capable of 3 performing work that exists in significant numbers in the national economy, 4 including electronics worker; marker; and small product assembler II. AR 588. 5 VI. Issues for Review 6 (1) Whether the ALJ erred in conducting the Step Three analysis? 7 VII. Discussion 8 Plaintiff asserts the ALJ erred in finding that she did not meet the Listings. 9 The ALJ summarily concluded that Plaintiff’s symptoms do not medically equal 10 any of the listings. 11 The listing of impairments in Appendix I “describes, for each of the major 12 body systems, impairments which are considered severe enough to prevent a 13 person from doing any gainful activity.” 20 C.R.F. § 404.1525(a). 14 There is not a listing for migraines. SSR 19-4p provides that Epilepsy 15 (listing 11.02) is the most closely analogous listed impairment for a medically- 16 determinable impairment (“MDI”) of a primary headache disorder. It noted that 17 while uncommon a person with a primary headache disorder may exhibit 18 equivalent signs and limitations to those detailed in listing 11.02 (paragraph B or D 19 for dyscognitive seizures) and therefore the MDI may medically equal a listing. 20 SSR 19-4P notes:

21 Paragraph B of listing 11.02 requires dyscognitive seizures occurring at 22 least once a week for at least 3 consecutive months despite adherence to prescribed treatment. To evaluate whether a primary headache disorder is 23 equal in severity and duration to the criteria in 11.02B, we consider: A 24 detailed description from an AMS of a typical headache event, including all associated phenomena (for example, premonitory symptoms, aura, 25 duration, intensity, and accompanying symptoms); the frequency of 26 headache events; adherence to prescribed treatment; side effects of treatment (for example, many medications used for treating a primary 27 headache disorder can produce drowsiness, confusion, or inattention); and 28 limitations in functioning that may be associated with the primary 1 headache disorder or effects of its treatment, such as interference with activity during the day (for example, the need for a darkened and quiet 2 room, having to lie down without moving, a sleep disturbance that affects 3 daytime activities, or other related needs and limitations).

4 Paragraph D of listing 11.02 requires dyscognitive seizures occurring at 5 least once every 2 weeks for at least 3 consecutive months despite 6 adherence to prescribed treatment, and marked limitation in one area of functioning. To evaluate whether a primary headache disorder is equal in 7 severity and duration to the criteria in 11.02D, we consider the same 8 factors we consider for 11.02B and we also consider whether the overall effects of the primary headache disorder on functioning results in marked 9 limitation in: physical functioning; understanding, remembering, or 10 applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing oneself. 11 12 An ALJ must adequately explain a conclusion that an impairment does not 13 meet or equal a Listing. In “determining whether a combination of impairments 14 establishes equivalence” under step three of the Listings, a mere statement that a 15 claimant did not equal the listing not sufficient. Marcia v. Sullivan, 900 F.2d 172, 16 176 (9th Cir. 1990)) (holding boilerplate finding is insufficient to conclude 17 impairment does not meet a Listing). 18 Here, the ALJ’s failure to consider the applicable listing (11.02) for 19 Plaintiff’s migraines was legal error. There is evidence in the record that Plaintiff 20 experiences migraines at least once a week. Also, in rejecting Plaintiff’s allegations 21 regarding her migraines, the ALJ concluded that because Plaintiff became pregnant 22 in 2016 and decided to breastfeed, which precluded her from taking amitriptyline, 23 the migraines could not have been disabling, even without the medication. This 24 conclusion is based on speculation and not supported by the evidence. The Court 25 finds that the ALJ’s cursory explanation was not supported by substantial evidence. 26 Because the ALJ committed legal error in failing to adequately explain his 27 conclusion that Plaintiff does not meet any Listings, it is necessary to remand this 28 action for further proceedings. 1 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. The decision of the Commissioner 1s reversed and remanded for proceedings consistent with this Order. 4. Judgment shall be entered in favor of Plaintiff against Defendant. IT IS SO ORDERED. The District Court Executive is hereby directed to 10| file this Order, provide copies to counsel, and close the file. 1] DATED this 26th day of April 2022. Suey Ecc Vhar ee Stanley A. Bastian Chief United States District Judge 1 2 2) 2 2 2 2 2 2 2 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JIINCINACATe KNEONVIAL' NODE AIT? □□ ATOWVTIOAAR BROID CIININITA DY