Opinion

Adams v. Saul

Court
District Court, E.D. Washington
Filed
Aug 28, 2020
Cited by
0 cases
Authority
More cited than 32.3%

The opinion

1

2

3 U.S. F DIL ISE TD R I IN C TT H CE O URT

EASTERN DISTRICT OF WASHINGTON

4 Aug 28, 2020

5

SEAN F. MCAVOY, CLERK

6 UNITED STATES DISTRICT COURT

7 EASTERN DISTRICT OF WASHINGTON

8

9 SHAWNTELLE A., No. 1:19-CV-03221-JTR

10

Plaintiff, ORDER GRANTING PLAINTIFF’S

11 MOTION FOR SUMMARY

12 v. JUDGMENT

13 ANDREW M. SAUL,

14 COMMISSIONER OF SOCIAL

SECURITY,

15

16 Defendant.

17

18 BEFORE THE COURT are cross-motions for summary judgment. ECF

19 Nos. 13, 14. Attorney D. James Tree represents Shawntelle A. (Plaintiff); Special

20 Assistant United States Attorney Jeffrey Staples represents the Commissioner of

21 Social Security (Defendant). The parties have consented to proceed before a

22 magistrate judge. ECF No. 6. After reviewing the administrative record and the

23 briefs filed by the parties, the Court GRANTS, IN PART, Plaintiff’s Motion for

24 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and

25 REMANDS the matter to the Commissioner for additional proceedings pursuant to

26 42 U.S.C. § 405(g).

27 JURISDICTION

28 Plaintiff filed applications for Social Security Disability Insurance and

1 Supplemental Security Income on April 8, 2016 and April 6, 2016, respectively.

2 Tr. 97-98. She alleged disability since April 6, 20131, Tr. 255, 262, due to

3 posttraumatic stress disorder (PTSD), diabetes, multiple sclerosis (MS),

4 depression, muscle pain, cognitive issues, muscle spasms, incontinence, insomnia,

5 anxiety, and vision problems. Tr. 299. The applications were denied initially and

6 upon reconsideration. Tr. 165-71, 176-89. Administrative Law Judge (ALJ)

7 Wayne N. Araki held a hearing on May 16, 2018, Tr. 34-73, and issued an

8 unfavorable decision on September 6, 2018, Tr. 157-28. The Appeals Council

9 denied the request for review on July 23, 2019. Tr. 1-5. The ALJ’s September

10 2018 decision is the final decision of the Commissioner, which is appealable to the

11 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial

12 review on September 18, 2019. ECF No. 1.

13 STATEMENT OF FACTS

14 Plaintiff was 23 years old at her alleged date of onset. Tr. 255. Plaintiff

15 completed three years of college. Tr. 300. Her reported work history includes the

16 positions of childcare provider, cashier, library aid, and nursing aid. Tr. 282, 301.

17 At application, she reported she was working as a childcare provider earning

18 $200.00 a month. Tr. 301.

19 STANDARD OF REVIEW

20 The ALJ is responsible for determining credibility, resolving conflicts in

21 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,

22 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with

23 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel,

24 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed

25

26 1The ALJ decision states April 6, 2015, Tr. 17, but both applications state

27 April 6, 2013, Tr. 255, 262. Upon remand, the ALJ will clearly identify Plaintiff’s

28 alleged onset date.

1 only if it is not supported by substantial evidence or if it is based on legal error.

2 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is

3 defined as being more than a mere scintilla, but less than a preponderance. Id. at

4 1098. Put another way, substantial evidence is such relevant evidence as a

5 reasonable mind might accept as adequate to support a conclusion. Richardson v.

6 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one

7 rational interpretation, the Court may not substitute its judgment for that of the

8 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin.,

9 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the

10 administrative findings, or if conflicting evidence supports a finding of either

11 disability or non-disability, the ALJ’s determination is conclusive. Sprague v.

12 Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision

13 supported by substantial evidence will be set aside if the proper legal standards

14 were not applied in weighing the evidence and making the decision. Brawner v.

15 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988).

16 SEQUENTIAL EVALUATION PROCESS

17 The Commissioner has established a five-step sequential evaluation process

18 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a),

19 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through

20 four, the burden of proof rests upon the claimant to establish a prima facie case of

21 entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This burden is

22 met once a claimant establishes that a physical or mental impairment prevents the

23 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4),

24 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds

25 to step five, and the burden shifts to the Commissioner to show (1) the claimant

26 can make an adjustment to other work; and (2) the claimant can perform specific

27 jobs that exist in the national economy. Batson v. Commissioner of Social Sec.

28 Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an adjustment

1 to other work in the national economy, the claimant will be found disabled. 20

2 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).

3 ADMINISTRATIVE DECISION

4 On September 6, 2018, the ALJ issued a decision finding Plaintiff was not

5 disabled as defined in the Social Security Act. Tr. 17-28.

6 At step one, the ALJ found Plaintiff had not engaged in substantial gainful

7 activity since April 6, 2015. Tr. 20.

8 At step two, the ALJ determined Plaintiff had the following severe

9 impairments: affective disorder/depression; anxiety disorder; personality disorder;

10 multiple sclerosis; and visual disturbances. Tr. 20.

11 At step three, the ALJ found Plaintiff did not have an impairment or

12 combination of impairments that met or medically equaled the severity of one of

13 the listed impairments. Tr. 20.

14 The ALJ assessed Plaintiff’s Residual Functional Capacity and found she

15 could perform sedentary work with the following limitations:

16

This individual can lift and carry 10 lbs. occasionally and less than 10

17 lbs. frequently, can stand and/or walk at 15-minute intervals for 2 hours

18 per day, and can sit at 2-hour intervals for 6-8 hours per day. She can

do no climbing of ladders, ropes or scaffolds. She can occasionally

19

climb stairs and ramps, and can occasionally balance, stoop, kneel,

20 crouch and crawl. She can have occasional exposure to extreme heat

or to extreme cold. She can do no working at exposed heights and no

21

operating heavy equipment, and otherwise can have occasional

22 exposure to hazards. She is able [to] carry out instructions for tasks and

complete tasks generally required by occupations with an SVP of 1-2;

23

i.e. tasks which can be learned by simple demonstration only or within

24 30 days or less. She can have occasional superficial interaction with

25 the general public. She can do assigned tasks that should be able to be

completed without the assistance of others, but occasional assistance

26

would be tolerated. She is able to adjust to work setting changes

27 generally associated with occupations with an SVP of 1-2.

28

1 Tr. 21.

2 At step four, the ALJ found that Plaintiff had no past relevant work. Tr. 26.

3 At step five, the ALJ found that, considering Plaintiff’s age, education, work

4 experience and residual functional capacity, there were jobs that existed in

5 significant numbers in the national economy that Plaintiff could perform,

6 specifically identifying the representative occupations of document preparer, bench

7 hand, and table worker. Tr. 27.

8 The ALJ thus concluded Plaintiff was not under a disability within the

9 meaning of the Social Security Act at any time from April 6, 2015 through the date

10 of the decision. Tr. 28.

11 ISSUES

12 The question presented is whether substantial evidence supports the ALJ’s

13 decision denying benefits and, if so, whether that decision is based on proper legal

14 standards. Plaintiff contends the ALJ erred by (1) improperly evaluating the

15 medical opinions; (2) improperly rejecting her symptom testimony; and (3) failing

16 to meet his burden at step five.

17 DISCUSSION

18 1. Medical opinion evidence

19 Plaintiff contends the ALJ erred by improperly evaluating the medical

20 opinions. Specifically, she asserts the ALJ erred in rejecting the opinions of

21 treating physician Nathan Lilya, D.O. and treating provider Patty Jordan, B.A.

22 ECF No. 13 at 11-15.

23 In weighing medical source opinions, the ALJ should distinguish between

24 three different types of physicians: (1) treating physicians, who actually treat the

25 claimant; (2) examining physicians, who examine but do not treat the claimant;

26 and, (3) nonexamining physicians who neither treat nor examine the claimant.

27 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more

28 weight to the opinion of a treating physician than to the opinion of an examining

1 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ

2 should give more weight to the opinion of an examining physician than to the

3 opinion of a nonexamining physician. Id.

4 When a treating physician’s opinion is not contradicted by another

5 physician, the ALJ may reject the opinion only for “clear and convincing” reasons,

6 and when a treating physician’s opinion is contradicted by another physician, the

ALJ is only required to provide “specific and legitimate reasons” supported by

7

substantial evidence to reject the opinion. Lester, 81 F.3d at 830. The specific and

8

legitimate standard can be met by the ALJ setting out a detailed and thorough

9

summary of the facts and conflicting clinical evidence, stating his interpretation

10

thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.

11

1989). The ALJ is required to do more than offer his conclusions, he “must set

12 forth his interpretations and explain why they, rather than the doctors’, are

13 correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).

14 A. Nathan Lilya, D.O.

15 On July 27, 2015, Dr. Lilya completed a “Documentation Request for

16 Medical or Disability Condition” form for the Washington State Department of

17 Social and Health Services. Tr. 1022-24. He stated that Plaintiff’s relapsing-

18 remitting MS limited Plaintiff’s ability to work, look for work, or prepare for work.

19 Tr. 1022. He stated that that “[d]ue to nature of disease, [Plaintiff’s] condition

20 waves. At times will be fully functional, but attacks can leave her with blurred

21 vision, moderate-severe pain, weakness/fatigue.” Id. He then limited her to 21-30

22 hours of work activities per week. Id. He stated Plaintiff’s condition was

23 permanent. Tr. 1023.

24 The ALJ gave “Dr. Lilya’s opinions of permanent multiple sclerosis and

25 limited work capacity” some weight. Tr. 25. The ALJ stated that “[i]t does not

26 appear that Dr. Lilya was aware of the claimant’s many physically demanding

27 activities, such as caring for 4 children regularly, her sister-in-law’s child, and a

28 neighbor’s child before.” Id.

1 A claimant’s testimony about her daily activities may be seen as inconsistent

2 with the presence of a disabling condition. See Curry v. Sullivan, 925 F.2d 1127,

3 1130 (9th Cir. 1990). However, here the ALJ’s conclusion that Dr. Lilya was not

4 aware of Plaintiff’s activities is not supported by substantial evidence. On June 1,

5 2015, Dr. Lilya listed Plaintiff’s current work status as “Full-time parent, Part-

6 time; Cashier Circle K.” Tr. 858. On July 20, 2015, Dr. Lilya described Plaintiff’s

7 household as including her spouse, her step-daughter, her daughter, and her two

8 sons. Tr. 851. Again, her work status was described as “Full-time parent, Part-

9 time; Cashier Circle K.” Tr. 851. Therefore, Dr. Lilya was aware that Plaintiff

10 was a full-time parent to four children. Furthermore, Plaintiff’s work for DSHS in

11 2015 only yielded $172.80 in March of 2015 and $172.80 in November of 2015.

12 Tr. 282. Therefore, her work activity babysitting was not extensive in 2015. Dr.

13 Lilya was even aware of Plaintiff’s part-time work as a cashier at Circle K.

14 Defendant counters Plaintiff’s argument that Dr. Lilya was aware of

15 Plaintiff’s activities by asserting that Plaintiff is splitting hairs and that “the point

16 of the ALJ’s conclusion was that Plaintiff’s activities conflicted with Dr. Lilya’s

17 opinion – if he had been aware of the extent of Plaintiff’s activities and the ways in

18 which they contradicted his assessment, then he presumably would have changed

19 his opinion accordingly.” ECF No. 14 at 5. However, the ALJ clearly stated that

20 “[i]t does not appear that Dr. Lilya was aware of the claimant’s many physically

21 demanding activities, such as caring for 4 children regularly, her sister-in-law’s

22 child, and a neighbor’s child before.” Tr. 25. The record reflects that Dr. Lilya

23 was aware of the extent of these activities. Therefore, the ALJ’s determination is

24 not supported by substantial evidence. The decision of the ALJ must be supported

25 by substantial evidence or it can be reversed. Tackett 180 F.3d at 1097. Therefore,

26 the case is remanded for the ALJ to properly address Dr. Lilya’s opinion.

27 B. Patty Jordan, B.A.

28 On August 27, 2015, Ms. Jordan, a Care Coordinator/Therapist Intern,

1 completed a “Documentation Request for Medical or Disability Condition” form

2 for DSHS. Tr. 1028-30. She stated that Plaintiff was diagnosed with PTSD and

3 relapse remitting MS, and that these conditions limited Plaintiff’s ability to work,

4 look for work, or prepare for work. Tr. 1028. She stated that “Shawntelle reports

5 ‘Flair ups’ with MS symptoms. Difficult for her to lift more than 10 lbs or stand

6 on her feet for long periods of time. PTSD symptoms make it difficult to

7 concentrate, speech tangential.” Id. She opined that Plaintiff would be limited to

8 one to ten hours a week of work participation. Id. Ms. Jordan was asked if

9 Plaintiff had any limitations with lifting and carrying, and she replied that Plaintiff

10 was limited to sedentary work defined as “[a]ble to lift 10 pounds maximum and

11 frequently lift or carry such articles as files and small tools. A sedentary job may

12 require sitting, walking and standing for brief periods.” Tr. 1029. The ALJ gave

13 Ms. Jordan’s opinion “limited weight,” stating “[t]his opinion, which support

14 contained in the same report or the longitudinal record, is accorded limited weight.

15 It is not clear if Ms. Jordan is a treating therapist.” Tr. 25.

16 As a Care Coordinator/Therapist Intern Ms. Jordan does not qualify as an

17 acceptable medical source. 20 C.F.R. §§ 404.1502, 416.902. Instead, she qualifies

18 as an other source. Id. However, testimony from an other source is “competent

19 evidence” as to “how an impairment affects [a claimant’s] ability to work.” Stout

20 v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050 (9th Cir. 2006); see also Dodrill v.

21 Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). An ALJ must give “germane”

22 reasons to discount evidence from these “other sources.” Dodrill, 12 F.3d at 919.

23 The ALJ’s reasons for assigning the opinion limited weight did not meet the

24 germane standard. First, the ALJ stated that the opinion “support contained in the

25 same report or in the longitudinal record.” Tr. 25. Defendant argues that the ALJ

26 meant to state that opinion “lacks support contained. . .” and the ALJ simply

27 omitted the work “lacks.” ECF No. 14 at 6. However, even if this was the case,

28 the ALJ failed to properly discuss the opinion. The Ninth Circuit has found that

1 inconsistency with the medical evidence is a germane reason to discount lay

2 witness testimony, but the ALJ’s conclusion must be supported by substantial

3 evidence. See Bayliss v. Barnhart, 427 F.3d 1211, at 1218 (9th Cir. 2005). While

4 the ALJ indicates here that he gave “limited weight” to the opinion, the ALJ does

5 not identify which portions of the statement that are rejected or adopted. Likewise,

6 he fails to provide a single citation to the record demonstrating a lack of support.

7 Without such information, the Court is unable to find substantial evidence supports

8 the rejection of Ms. Jordan’s statements.

9 The ALJ’s second reason for rejecting the opinion, that there was no

10 evidence that Ms. Jordan was a treating therapist, is not supported by substantial

11 evidence. Ms. Jordan treated Plaintiff repeatedly from July 31, 2015 through

12 January 20, 2016. Tr. 908-44. This included five treatment sessions before the

13 August 27, 2015 opinion. Tr. 940-44. Therefore, the ALJ failed to provide

14 germane reasons for rejecting Ms. Jordan’s opinion. Upon remand, the ALJ will

15 readdress this opinion.

16 2. Plaintiff’s Symptom Statements

17 Plaintiff contests the ALJ’s determination that Plaintiff’s symptom

18 statements were unreliable. ECF No. 13 at 15-18.

19 It is generally the province of the ALJ to make determinations regarding the

20 reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the

21 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan,

22 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering,

23 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear

24 and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester, 81

25 F.3d at 834. “General findings are insufficient: rather the ALJ must identify what

26 testimony is not credible and what evidence undermines the claimant’s

27 complaints.” Lester, 81 F.3d at 834.

28 The ALJ found Plaintiff’s “statements concerning the intensity, persistence,

1 and limiting effects of these symptoms are not entirely consistent with the medical

2 evidence and other evidence in the record for the reasons explained in this

3 decision.” Tr. 22. The evaluation of a claimant’s symptom statements and their

4 resulting limitations relies, in part, on the assessment of the medical evidence. See

5 20 C.F.R. §§ 404.1529(c), 416.929(c); S.S.R. 16-3p. Therefore, in light of the case

6 being remanded for the ALJ to readdress the medical source opinions in the file, a

7 new assessment of Plaintiff’s subjective symptom statements will be necessary.

8 3. Step Five

9 Plaintiff challenges the ALJ’s step five determination in two ways: (1) one

10 of the three jobs the ALJ provided does not match the DOT number in the

11 decision; and (2) the jobs the ALJ identified have numbers in the national economy

12 drastically different than what the vocational expert testified. ECF No. 13 at 18-

13 20. Because the ALJ has been instructed to address the medical opinions and

14 Plaintiff’s symptom statements on remand, he will be required to make a new

15 residual functional capacity determination and call a vocational expert to provide

16 new testimony before making a new step five determination.

17 REMEDY

18 Plaintiff asks the Court to remand this case for an immediate award of

19 benefits. ECF Nos. 13 at 20.

20 The decision whether to remand for further proceedings or reverse and

21 award benefits is within the discretion of the district court. McAllister v. Sullivan,

22 888 F.2d 599, 603 (9th Cir. 1989). Under the credit-as-true rule the Court remands

23 for an award of benefits when (1) the record has been fully developed and further

24 administrative proceedings would serve no useful purpose; (2) the ALJ has failed

25 to provide legally sufficient reasons for rejecting evidence, whether claimant

26 testimony or medical opinion; and (3) if the improperly discredited evidence were

27 credited as true, the ALJ would be required to find the claimant disabled on

28 remand. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). Remand is

1 || appropriate where there are outstanding issues that must be resolved before a

determination can be made, and it is not clear from the record that the ALJ would

be required to find a claimant disabled if all the evidence were properly evaluated.

4|| See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel,

5|} 211 F.3d 1172, 1179-80 (9th Cir. 2000).

6 This case is remanded for additional proceedings because it is not clear from

the record that the ALJ would be required to find Plaintiff disabled if all the

8 || evidence were properly evaluated. The ALJ will reevaluate the opinion evidence,

address Plaintiff's symptom statements, and make a new step five determination.

10|| Additionally, the ALJ will supplement the record with any outstanding medical

evidence pertaining to the period in question and take testimony from a vocational

expert.

13 CONCLUSION

14 Accordingly, IT IS ORDERED:

15 1. Defendant’s Motion for Summary Judgment, ECF No. 14, is

DENIED.

17 2. Plaintiff's Motion for Summary Judgment, ECF No. 13, is

GRANTED, in part, and the matter is REMANDED for additional proceedings

19]| consistent with this order.

20 3. Application for attorney fees may be filed by separate motion.

21 The District Court Executive is directed to file this Order and provide a copy

22 || to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff

23 || and the file shall be CLOSED.

24 DATED August 28, 2020.

°° —___ JOHNT. RODGERS

27 Va” UNITED STATES MAGISTRATE JUDGE

28

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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