# Pape v. Kijakazi > District Court, E.D. Washington · January 7, 2020 URL: https://www.frixlaw.com/law-library/cases/10696466 ## Case - **Court:** District Court, E.D. Washington - **Decided:** January 7, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10696466 ## Opinion text 1 2 FILED IN THE EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 3 Jan 07, 2020 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 JUDY P., 8 Plaintiff, No. 1:18-CV-03219-RHW 9 v. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY 10 ANDREW M. SAUL, JUDGMENT COMMISSIONER OF SOCIAL 11 SECURITY,1 12 Defendant. 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 12, 14. Plaintiff brings this action seeking judicial review, pursuant to 42 15 U.S.C. § 405(g), of the Commissioner of Social Security’s final decision, which 16 denied her application for Social Security Disability Insurance under Title II of the 17 Social Security Act, 42 U.S.C. §§ 401-434. After reviewing the administrative 18 record and briefs filed by the parties, the Court is now fully informed. For the 19 1Andrew M. Saul is now the Commissioner of the Social Security Administration. 20 Accordingly, the Court substitutes Andrew M. Saul as the Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 25(d). 1 reasons set forth below, the Court GRANTS in part Plaintiff’s Motion for 2 Summary Judgment, DENIES Defendant’s Motion for Summary Judgment, and 3 REMANDS the matter to the Commissioner for additional proceedings. 4 I. Jurisdiction 5 Plaintiff filed her application for Social Security Disability Insurance on 6 February 22, 2014. AR 251. She alleged a disability onset date of April 1, 2010. 7 AR 494. Plaintiff’s application was initially denied on April 25, 2014, AR 278-88, 8 and on reconsideration on September 24, 2014, AR 299-303. 9 Administrative Law Judge (“ALJ”) Tom L. Morris held hearings on April 10 12, 2016, January 31, 2017, and August 24, 2017 and heard testimony from 11 Plaintiff, vocational expert Leta Berkshire, vocational expert Thomas Polsin, and 12 medical expert Minh Vu, M.D. AR 144-245. At the August 24, 2017 hearing, 13 Plaintiff amended her date of onset to December 1, 2015. AR 209. On September 14 28, 2017, the ALJ issued a decision finding Plaintiff ineligible for disability 15 benefits. AR 56-71. The Appeals Council denied Plaintiff’s request for review on 16 September 19, 2018. AR 1-5. Plaintiff sought judicial review by this Court on 17 November 19, 2018. ECF No. 1. Accordingly, Plaintiff’s claims are properly 18 before this Court pursuant to 42 U.S.C. § 405(g). 19 II. Sequential Evaluation Process 20 The Social Security Act defines disability as the “inability to engage in any 1 substantial gainful activity by reason of any medically determinable physical or 2 mental impairment which can be expected to result in death or which has lasted or 3 can be expected to last for a continuous period of not less than twelve months.” 42 4 U.S.C. § 423(d)(1)(A). 5 The Commissioner has established a five-step sequential evaluation process 6 for determining whether a claimant is disabled within the meaning of the Social 7 Security Act. 20 C.F.R. § 404.1520(a)(4); Lounsburry v. Barnhart, 468 F.3d 1111, 8 1114 (9th Cir. 2006). In steps one through four, the burden of proof rests upon the 9 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 10 v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). This burden is met once the 11 claimant establishes that physical or mental impairments prevent her from 12 engaging in her previous occupations. 20 C.F.R. §§ 404.1520(a). If the claimant 13 cannot engage in her previous occupations, the ALJ proceeds to step five and the 14 burden shifts to the Commissioner to demonstrate that (1) the claimant is capable 15 of performing other work; and (2) such work exists in “significant numbers in the 16 national economy.” 20 C.F.R. § 404.1560(c)(2); Beltran v. Astrue, 700 F.3d 386, 17 388-89 (9th Cir. 2012). 18 III. Standard of Review 19 A district court’s review of a final decision of the Commissioner is governed 20 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 1 Commissioner’s decision will be disturbed “only if it is not supported by 2 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 3 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a 4 mere scintilla but less than a preponderance; it is such relevant evidence as a 5 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 6 Chater, 108 F.3d 978, 980 (9th Cir. 1997) (quoting Andrews v. Shalala, 53 F.3d 7 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 8 whether the Commissioner’s findings are supported by substantial evidence, “a 9 reviewing court must consider the entire record as a whole and may not affirm 10 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 11 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 12 F.2d 498, 501 (9th Cir. 1989)). 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 15 1992). If the evidence in the record “is susceptible to more than one rational 16 interpretation, [the court] must uphold the ALJ’s findings if they are supported by 17 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 18 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 19 2002). Moreover, a district court “may not reverse an ALJ’s decision on account of 20 an error that is harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it 1 is inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. at 1115. 2 The burden of showing that an error is harmful generally falls upon the party 3 appealing the ALJ’s decision. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 4 IV. Statement of Facts 5 The facts of the case are set forth in detail in the transcript of proceedings 6 and only briefly summarized here. Plaintiff was 51 years old at the amended date 7 of onset. AR 494. At application, the alleged conditions limiting her ability to work 8 included stage III chronic kidney disease, cardiovascular surgical bypass, diabetic 9 insulin dependent over 40 years, retinopathy surgical laser procedures, peripheral 10 neuropathy in all extremities, depression gastroparesis, asthma, GERD, and thyroid 11 disorder. AR 518. Plaintiff completed high school in 1982. AR 519. At the time of 12 application, Plaintiff stated she had past work in accounting. AR 519. 13 V. The ALJ’s Findings 14 The ALJ determined that Plaintiff was not under a disability within the 15 meaning of the Act from the amended date of onset, December 1, 2015, through 16 the date last insured, December 31, 2015. AR 56-71. 17 At step one, the ALJ found that Plaintiff had not engaged in substantial 18 gainful activity since the amended date of onset, December 1, 2015, through the 19 date last insured, December 31, 2015. AR 59 (citing 20 C.F.R. § 404.1571 et seq.). 20 At step two, the ALJ found that Plaintiff had the following severe 1 impairments: ischemic heart disease/coronary artery disease, diabetes mellitus, 2 peripheral neuropathy (including carpal tunnel syndrome), and left middle trigger 3 finger (citing 20 C.F.R. § 404.1520(c)). AR 59. 4 At step three, the ALJ found that Plaintiff did not have an impairment or 5 combination of impairments that meets or medically equals the severity of one of 6 the listed impairments in 20 C.F.R. § 404, Subpt. P, App. 1. AR 62 (citing 20 7 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). 8 At step four, the ALJ found Plaintiff had the residual functional capacity to 9 perform work with the following limitations: 10 [T]he claimant had the residual functional capacity to lift and carry ten pounds occasionally and frequently. She could stand and/or walk (with 11 normal breaks) for a total of two hours in an eight-hour workday. She could sit (with normal breaks) for a total of six hours in an eight-hour 12 workday. She could never kneel, crouch, crawl, or climbing ladders, ropes, or scaffolding. She could occasionally stoop and climb ramps 13 and stairs. She could frequently balance. She needed to avoid concentrated exposure to wetness, humidity, extreme temperatures, 14 pulmonary irritants, or hazards. She could frequently finger with her left hand. She could frequently handle bilaterally. She was not able to 15 perform at a production rate pace (e.g. assembly line work where pace is mechanically controlled) but could perform goal-oriented work. She 16 would have been off-task up to ten percent of her eight-hour workday. 17 AR 64-65. The ALJ found Plaintiff had past relevant work as an accounting clerk 18 and she was able to perform this past relevant work. AR 71. 19 VI. Issues for Review 20 Plaintiff argues that the Commissioner’s decision is not free of legal error 1 and not supported by substantial evidence. Specifically, she argues that the ALJ 2 erred by: (1) failing to make a proper step two determination; (2) failing to 3 properly weigh the medical opinions; (3) failing to properly consider Plaintiff’s 4 symptom statements; and (4) failing to make a proper step four determination. 5 VII. Discussion 6 A. Step Two 7 Plaintiff challenges the ALJ’s step two determination by asserting that he 8 failed to properly consider Plaintiff’s kidney disorder, diabetic retinopathy, and 9 gastrointestinal (GI) disorders. ECF No. 12 at 4-9. 10 Step two addresses whether the claimant has a severe impairment, or 11 combination of impairments, that significantly limits the claimant’s physical or 12 mental ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). To 13 establish a severe impairment at step two, the claimant must first establish the 14 existence of a medically determinable impairment by providing medical evidence 15 consisting of signs, symptoms, and laboratory findings; the claimant’s own 16 statement of symptoms, a diagnosis, or a medical opinion is not sufficient to 17 establish the existence of an impairment. 20 C.F.R. § 404.1521. “[O]nce a claimant 18 has shown that [she] suffers from a medically determinable impairment, [she] next 19 has the burden of proving that these impairments and their symptoms affect [her] 20 ability to perform basic work activities.” Edlund v. Massanari, 253 F.3d 1152, 1 1159-60 (9th Cir. 2001). At step two, the burden of proof is on the Plaintiff to 2 establish the existence of any medically determinable impairment(s) and that such 3 impairments(s) are severe. Tackett, 180 F.3d at 1098-99. 4 The step-two analysis is “a de minimis screening device used to dispose of 5 groundless claims.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). An 6 impairment is “not severe” if it does not “significantly limit” the ability to conduct 7 “basic work activities.” 20 C.F.R. § 404.1522(a). Basic work activities are 8 “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1522(b). 9 1. Kidney Disorder 10 The ALJ found that Plaintiff’s kidney disorder was a medically determinable 11 impairment, but found that it was not severe, stating it “did not cause functional 12 limitations through the end of 2015.” AR 60. However, this finding is not 13 supported by substantial evidence. At the August 24, 2017 hearing, Dr. Vu testified 14 that Plaintiff’s chronic kidney disease was a severe medically determinable 15 impairment as of December 2015. AR 215-17, 233. Dr. Vu pointed out a creatine 16 range up to 1.3 in April 2015 and a glomerular filtration rate (GFR) of 39 17 milliliters per minute in March 2016, stating that this equaled a 50% function of 18 the kidney. AR 216-17. He explained that once the kidney function gets down to 19 50% of normal, Plaintiff would have less stamina to work. AR 226. 20 The Court acknowledges that the GFR score Dr. Vu referenced in his 1 testimony and associated with Plaintiff’s reduced kidney function is after the date 2 last insured. However, other evidence in the record indicates Plaintiff had a low 3 GFR score prior to the date last insured. In January 2012, Plaintiff had a creatinine 4 level of 1.2 and an estimated GFR of 54. AR 870. On July 29, 2013, Plaintiff had a 5 creatinine level ranging from 1.10 to 1.42 and a GFR ranging from 42 to 46. AR 6 613. On November 4, 2013, Plaintiff had a creatinine level of 1.27 and an 7 estimated GFR of 45. AR 684. In August 2014, Plaintiff had a creatinine level of 8 1.13 and a GFR of 51.17. AR 733, 738. Dr. Vu reviewed these test results and 9 clearly identified Plaintiff’s chronic kidney disease as a severe medically 10 determinable impairment prior to the date last insured. AR 233. Therefore, the 11 ALJ’s determination that Plaintiff’s chronic kidney disease is not severe is not 12 supported by substantial evidence. 13 The case is remanded for the ALJ to make a new step two determination 14 addressing Plaintiff’s chronic kidney disease. 15 2. Diabetic Retinopathy 16 The ALJ failed to discuss Plaintiff’s diabetic retinopathy in his decision, and 17 did not include any vision limitations within the residual functional capacity. AR 18 59-62, 64-65. The Court acknowledges that the vision testing in the record that 19 establishes Plaintiff’s diabetic retinopathy occurred after the date last insured. AR 20 994 (August 2, 2016 exam showing severe diabetic retinopathy). However, since 1 the case is being remanded for the ALJ to make a new step two determination, the 2 ALJ shall readdress Plaintiff’s diabetic retinopathy and any evidence it was present 3 prior to the date last insured. 4 3. GI Disorders 5 The ALJ found that Plaintiff’s GI disorders were medically determinable, 6 but did not cause any functional limitations and were not severe. AR 60. 7 At the August 24, 2017 hearing, Dr. Vu testified that Plaintiff’s 8 “gastrointestinal or GERD” was a severe medically determinable impairment as of 9 December 2015. AR 233. However, he had previously stated that there were no 10 objective findings for the diagnosis of gastrointestinal reflux disease. AR 220-21. 11 This is conflicting testimony. The ALJ is responsible for resolving conflicts in 12 medical testimony and resolving ambiguities. Andrews, 53 F.3d at 1039. Therefore, 13 upon remand, the ALJ shall readdress all of Plaintiff’s step two alleged 14 impairments, including her alleged GI disorders. 15 B. Medical Opinions 16 Plaintiff challenges the weight the ALJ gave to the opinions of Glenda 17 Petrie, ARNP, Gullermo Rubio, M.D., and Olegario Ignacio, Jr., M.D. ECF No. 12 18 at 9-14. 19 1. Glenda Petrie, ARNP 20 On March 29, 2016, Nurse Petrie completed a Medical Questionnaire, in 1 which she indicated: “I do not believe that this patient is capable of performing any 2 type of work on a reasonably continuous, sustained basis (e.g., eight hours a day, 3 five days a week, or approximately 40 hours per week consistent with a normal 4 work routine).” AR 806. When asked to specify the primary medical diagnosis for 5 the opinion, she stated: “Due to the duration of type – 1 diabetes (45 yrs) and all 6 the complications associated [with] her diabetes, Judy is not able to maintain 7 gainful employment.” Id. The ALJ gave these statements “minimal weight” for 8 three reasons: (1) it was a “cursory statement of disability without any supporting 9 evidence”; (2) it was “wholly based” on Plaintiff’s subjective reporting; and (3) it 10 was unclear if the opinion took into account Plaintiff’s lack of compliance with 11 diabetic treatment recommendations. AR 69. 12 Generally, the ALJ should give more weight to the opinion of an acceptable 13 medical source than to the opinion of an “other source.” 20 C.F.R. § 404.1527. For 14 applications filed before March 27, 2017, Nurse Practitioners do not qualify as 15 acceptable medical sources. 20 C.F.R. § 404.1502(a)(7). An ALJ is required, 16 however, to consider evidence from “other sources” who are not acceptable 17 medical sources, 20 C.F.R. § 404.1527(f), “as to how an impairment affects a 18 claimant’s ability to work,” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 19 1987). 20 The ALJ’s first reason for rejecting the opinion—that it was a “cursory 1 statement of disability without any supporting evidence”—is not legally sufficient. 2 Specifically, the ALJ focused on the lack of clinical findings on Nurse Petrie’s 3 examination in March 2016 as a reason to discredit the opinion. AR 69. A lack of 4 clinical findings on a standard check-the-box form provided by an “other source” 5 is not by itself a germane reason for discrediting the opinion. Popa v. Berryhill, 6 872 F.3d 901, 907 (9th Cir. 2017). Nurse Petrie expressed her opinion on a check- 7 the-box form on March 29, 2016. AR 806. In an examination report from the same 8 date, Nurse Petrie stated that Plaintiff was in no acute distress at the time of the 9 examination. Tr. 878. However, under the Ninth Circuit’s ruling in Popa, this 10 alone is insufficient to discredit the opinion. 11 The ALJ’s second reason for rejecting the opinion—that it was based on 12 Plaintiff’s subjective reporting—is not legally sufficient. “If a treating provider’s 13 opinions are based ‘to a large extent’ on an applicant’s self-reports and not on 14 clinical evidence, and the ALJ finds the applicant not credible, the ALJ may 15 discount the treating provider’s opinion.” Ghanim v. Colvin, 763 F.3d 1154, 1162 16 (9th Cir. 2014). “However, when the opinion is not more heavily based on a 17 patient’s self-reports than on clinical observations, there is no evidentiary basis for 18 rejecting the opinion.” Id. The court in Ghanim was discussing the opinion of a 19 treating acceptable medical source. Id. Here, the ALJ is addressing the opinion of a 20 treating “other source.” However, the ALJ failed to set forth how he concluded the 1 opinion was more heavily based on Plaintiff’s subjective statements and not the 2 medical evidence. Therefore, without some explanation as to how the ALJ 3 concluded the opinion was based more heavily on Plaintiff’s subjective reports, his 4 determination is not supported by substantial evidence. 5 The ALJ’s third reason for rejecting the opinion—that it was unclear 6 whether the opinion included Plaintiff’s failure to follow prescribed diabetic 7 treatment—is not legally sufficient. The ALJ focused on Plaintiff’s failure to test 8 her blood sugar levels at the frequency prescribed by her providers. AR 69 (citing 9 AR 751-52, 756) (a February 2, 2014 appointment with Nurse Petrie in which 10 Plaintiff was testing her blood sugars only once per day); AR 748 (a June 24, 2015 11 appointment with Dr. Hamilton in which Plaintiff was testing her blood sugars 1.6 12 times per day and had an A1C of 9.6); AR 724 (a June 26, 2014 appointment with 13 Nurse Petrie in which Plaintiff reported testing 8.8 times a day and her A1C was 14 9.5% but was listed as non-compliant for failing to take her thyroid medication). A 15 review of the evidence demonstrates that when Plaintiff did test her blood sugar 16 levels more frequently, it did not result in improved A1C scores. As demonstrated 17 above, her A1C did not show a great deal of improvement when she was testing at 18 a range of 8.8 times a day or 1 time a day. Additionally, the record shows that in 19 October 2016 when she was testing at 3.9 times per day, her A1C continued to 20 range from 8% to 9%. AR 938. This is significant because she was being instructed 1 to test four times per day. AR 754. Therefore, despite following prescribed 2 treatment, she did not meet the goal of having an A1C below 7.5. AR 752. As 3 such, the ALJ’s implication that Nurse Petrie’s opinion is less valid because the 4 severity of Plaintiff’s impairments would have decreased with more frequent blood 5 sugar testing is not supported by substantial evidence. Therefore, the ALJ erred in 6 weighing Nurse Petrie’s opinion. The case is remanded for the ALJ to further 7 address the opinion. 8 2. Gullermo Rubio, M.D., and Olegario Ignacio, Jr., M.D. 9 Plaintiff challenges the significant weight the ALJ assigned to the opinions 10 of non-examining acceptable medical sources, Dr. Rubio and Dr. Ignacio. ECF No. 11 12 at 13-14. 12 The case is being remanded to further address the opinion of Nurse Petrie. 13 Therefore, the ALJ will readdress the medical opinions of Dr. Rubio and Dr. 14 Ignacio on remand. 15 C. Plaintiff’s Symptom Statements 16 Plaintiff challenges the ALJ’s treatment of her symptom statements. ECF No. 17 12 at 14-19. 18 The evaluation of a claimant’s symptom statements and their resulting 19 limitations relies, in part, on the assessment of the medical evidence. See 20 C.F.R. 20 § 404.1529(c); S.S.R. 16-3p. Therefore, because the case is being remanded for the 1 ALJ to readdress the medical source opinions in the file, a new assessment of 2 Plaintiff’s subjective symptom statements will be necessary. 3 D. Step Four 4 Because the ALJ erred in his step two determination and in weighing the 5 medical opinions in the record, a new residual functional capacity determination will 6 need to be made. Therefore, a new step four determination is also required upon 7 remand. 20 C.F.R. § 404.1520(a)(4)(iv). 8 VIII. REMEDY 9 Plaintiff asks the Court to apply the credit-as-true rule and remand this case 10 for an immediate award of benefits. ECF No. 12 at 2, 13. 11 The decision whether to remand for further proceedings or reverse and 12 award benefits is within the discretion of the district court. McAllister v. Sullivan, 13 888 F.2d 599, 603 (9th Cir. 1989). Under the credit-as-true rule, where (1) the 14 record has been fully developed and further administrative proceedings would 15 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 16 for rejecting evidence, whether claimant testimony or medical opinion; and (3) if 17 the improperly discredited evidence were credited as true, the ALJ would be 18 required to find the claimant disabled on remand, the Court remands for an award 19 of benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). But where there 20 are outstanding issues that must be resolved before a determination can be made, 1 and it is not clear from the record that the ALJ would be required to find a claimant 2 disabled if all the evidence were properly evaluated, remand for further 3 proceedings is appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th 4 Cir. 2004); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 5 In this case, it is not clear from the record that the ALJ would be required to 6 find Plaintiff disabled if all the evidence were properly evaluated. Further 7 proceedings are necessary for the ALJ to properly address Plaintiff’s medically 8 determinable impairments at step two, to properly consider all the medical 9 opinions in the record, to properly consider Plaintiff’s symptom statements, to 10 make a new residual functional capacity finding, and to make a new determination 11 at step four. Additionally, the ALJ will supplement the record with any outstanding 12 evidence and call medical and vocational experts to testify at a remand hearing. 13 IX. ORDER 14 Accordingly, IT IS ORDERED: 15 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is GRANTED 16 in part. 17 2. Defendant’s Motion for Summary Judgment, ECF No. 14, is DENIED. 18 3. This matter is REMANDED to the Commissioner for further 19 proceedings consistent with this Order. 20 /// 1 4. Judgment shall be entered in favor of Plaintiff and the file shall be 2 CLOSED. 3 IT IS SO ORDERED. The District Court Executive is directed to enter this 4 Order, forward copies to counsel, and close the file. 5 DATED this 7th day of January, 2020. 6 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10696466. Public record. Not legal advice.