# Myers v. Kijakazi

> District Court, E.D. Washington · June 7, 2022

URL: https://www.frixlaw.com/law-library/cases/10697827

## Case

- **Court:** District Court, E.D. Washington
- **Decided:** June 7, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

1
2 U.S. F DIL ISE TD R I IN C TT H CE O URT
EASTERN DISTRICT OF WASHINGTON
3 Jun 07, 2022
4
SEAN F. MCAVOY, CLERK
5 UNITED STATES DISTRICT COURT
6 EASTERN DISTRICT OF WASHINGTON
7
8 ANNA ELENA M., No. 1:21-CV-03103-SAB
9 Plaintiff,
10 v. ORDER GRANTING PLAINTIFF’S
11 COMMISSIONER OF SOCIAL MOTION FOR SUMMARY
12 SECURITY ADMINISTRATION, JUDGMENT; DENYING
13 Defendant. DEFENDANT’S MOTION FOR
14 SUMMARY JUDGMENT
15
16 Before the Court are Plaintiff’s Motion for Summary Judgment, ECF No.
17 11, and Defendant’s Motion for Summary Judgment, ECF No. 12. The motions
18 were heard without oral argument. Plaintiff is represented by D. James Tree, and
19 Defendant is represented by Shata Long Stucky and Timothy Durkin.
20 Jurisdiction
21 On January 19, 2016, Plaintiff filed an application for Title II disability
22 insurance benefits, alleging disability beginning October 10, 2011.
23 Plaintiff’s application was denied initially and on reconsideration.1 On May
24 19, 2021, Plaintiff testified at a telephonic hearing held before an ALJ, with the
25

26 1Plaintiff sought review of the denial from the United States District Court for the
27 Eastern District of Washington, which granted a stipulated motion for remand on
28 April 23, 2020.
1 assistance of Robert Tree. Vern Arne, vocational expert also participated. The
2 ALJ issued a decision on May 26, 2021, finding that Plaintiff was not disabled.
3 Plaintiff filed a timely appeal with the United States District Court for the
4 Eastern District of Washington on August 23, 2021. The matter is before this
5 Court under 42 U.S.C. § 405(g).
6 Sequential Evaluation Process
7 The Social Security Act defines disability as the “inability to engage in any
8 substantial gainful activity by reason of any medically determinable physical or
9 mental impairment which can be expected to result in death or which has lasted or
10 can be expected to last for a continuous period of not less than twelve months.” 42
11 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be
12 under a disability only if their impairments are of such severity that the claimant is
13 not only unable to do their previous work, but cannot, considering claimant’s age,
14 education, and work experiences, engage in any other substantial gainful work
15 that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
16 The Commissioner has established a five-step sequential evaluation process to
17 determine whether a person is disabled in the statute. See 20 C.F.R. §§
18 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
19 Step One: Is the claimant engaged in substantial gainful activities? 20
20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work
21 done for pay and requires compensation above the statutory minimum. Keyes v.
22 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in
23 substantial activity, benefits are denied. 20 C.F.R. § 404.1520(b), 416.920(b). If
24 the claimant is not, the ALJ proceeds to step two.
25 Step Two: Does the claimant have a medically-severe impairment or
26 combination of impairments? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
27 A severe impairment is one that lasted or must be expected to last for at least 12
28 months and must be proven through objective medical evidence. Id. §§ 404.1509,
1 416.909. If the claimant does not have a severe impairment or combination of
2 impairments, the disability claim is denied. Id. § 404.1520(a)(4)(ii),
3 416.920(a)(4)(ii). If the impairment is severe, the evaluation proceeds to the third
4 step.
5 Step Three: Does the claimant’s impairment meet or equal one of the listed
6 impairments acknowledged by the Commissioner to be so severe as to preclude
7 substantial gainful activity? 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If
8 the impairment meets or equals one of the listed impairments, the claimant is
9 conclusively presumed to be disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). If
10 the impairment is not one conclusively presumed to be disabling, the evaluation
11 proceeds to the fourth step.
12 Before considering to the fourth step, the ALJ must first determine the
13 claimant’s residual functional capacity. An individual’s residual functional
14 capacity is their ability to do physical and mental work activities on a sustained
15 basis despite limitations from their impairments. 20 C.F.R. §§ 404.1545(a)(1),
16 416.945(a)(1). The residual functional capacity is relevant to both the fourth and
17 fifth steps of the analysis.
18 Step Four: Does the impairment prevent the claimant from performing
19 work they have performed in the past? 20 C.F.R. §§ 404.1520(a)(4)(iv),
20 416.920(a)(4)(iv). If the claimant is able to perform their previous work, they are
21 not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform
22 this work, the evaluation proceeds to the fifth and final step.
23 Step Five: Is the claimant able to perform other work in the national
24 economy in view of their age, education, and work experience? 20 C.F.R. §§
25 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the
26 claimant to establish a prima facie case of entitlement to disability benefits.
27 Tackett v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a
28 claimant establishes that a physical or mental impairment prevents him from
1 engaging in her previous occupation. Id. At step five, the burden shifts to the
2 Commissioner to show that the claimant can perform other substantial gainful
3 activity. Id.
4 Standard of Review
5 The Commissioner’s determination will be set aside only when the ALJ’s
6 findings are based on legal error or are not supported by substantial evidence in
7 the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)
8 (citing 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,”
9 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance.”
10 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial
11 evidence is “such relevant evidence as a reasonable mind might accept as
12 adequate to support a conclusion.” Richardson, 402 U.S. at 401. The Court must
13 uphold the ALJ’s denial of benefits if the evidence is susceptible to more than one
14 rational interpretation, one of which supports the decision of the administrative
15 law judge. Batson v. Barnhart, 359 F.3d 1190, 1193 (9th Cir. 2004). The Court
16 reviews the entire record. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). “If
17 the evidence can support either outcome, the court may not substitute its judgment
18 for that of the ALJ.” Matney, 981 F.2d at 1019.
19 A decision supported by substantial evidence will be set aside if the proper
20 legal standards were not applied in weighing the evidence and making the
21 decision. Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th
22 Cir. 1988). An ALJ is allowed “inconsequential” errors as long as they are
23 immaterial to the ultimate nondisability determination. Stout v. Comm’r, Soc. Sec.
24 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006).
25 Statement of Facts
26 The facts have been presented in the administrative transcript, the ALJ’s
27 decision, and the briefs to this Court; only the most relevant facts are summarized
28 here.
1 Plaintiff was 39 years old on her alleged onset day and 44 years old on her
2 date last insured. She obtained her GED. She is married and has four adult
3 children. She was in a motor vehicle accident in 2011. Since that time, she has had
4 chronic pain in her back and shoulder. She underwent surgery for a rotator cuff
5 tear that was caused by the accident, but she continues to have pain in her
6 shoulder and reduced range of motion. A 2015 MRI showed that Plaintiff had
7 bulging discs in her back. She has prior part-time work between 2011 and 2016 as
8 an office cleaner/janitor. She worked two to four hours a week, emptying the trash
9 during the day and completing light cleaning.
10 Plaintiff testified that she cannot work full-time because she is in pain and
11 has difficulty lifting. She also began experiencing depression and anxiety after the
12 accident. She testified that while she has good days and bad days, she has more
13 bad days than good ones. While every day is painful, there are some days where
14 she cannot move. She testified that on bad days, the pain gets bad in her neck and
15 back and her muscles tighten. On these days, she uses heating pads and ice packs
16 to alleviate her pain.
17 She can no longer drive because she has anxiety/panic attacks behind the
18 wheel, and she also experiences significant anxiety while being a passenger in the
19 car.
20 The ALJ’s Findings
21 At step one, the ALJ found Plaintiff had not engaged in substantial gainful
22 activity from her alleged onset date of October 10, 2011, through her date last
23 insured of September 30, 2016. AR 596.
24 At step two, the ALJ found Plaintiff has the following severe impairments:
25 degenerative joint disease of the left shoulder; degenerative disc disease of the
26 spine; obesity; and depression. AR 596.
27 At step three, the ALJ found that Plaintiff did not have an impairment or
28 combination of impairments that meets or medically equals the severity of one of
1 the listed impairments. AR 597. Ultimately, the ALJ concluded that Plaintiff has a
2 residual function capacity (“RFC”) to perform:

3
A range of light work, as defined in 20 CFR 404.1567(b), as follows:
4 occasionally lift and carry a maximum of 20 pounds; frequent lift and
carry a maximum of 10 pounds; stand and/or walk for a total of four
5
hours out of eight hours; sit for a total of six hours out of eight hours;
6 push and/or pull, including operating hand and/or foot controls,
without limitation other than shown for lift and carry; frequently
7
climb ramps and stairs; never climb ladders, ropes or scaffolds;
8 frequently balance, stoop, kneel, crouch, and crawl; can perform
reaching overhead frequently with the left upper extremity and no
9
limitations with reaching overhead with the right dominate upper
10 extremity; no visual limitations; no communication limitations;
should avoid working around hazards such as unprotected heights,
11
heavy machinery, extremes of temperature, and hazardous chemicals;
12 can understand, remember and carry out simple instructions; can
exercise simple workplace judgment; can perform work that is
13
learned by on the job training beyond a short demonstration lasting
14 up to and including one month; can respond appropriately to
supervisors and co-workers; can deal with occasional changes in the
15
work environment; and can work in jobs that require occasional or
16 less interaction or contact with the general public.
AR 599.
17
At step four, the ALJ found that Plaintiff was unable to perform any past
18
relevant work. AR 607.
19
At step five, the ALJ found that Plaintiff was not disabled and capable of
20
performing work that exists in significant numbers in the national economy,
21
including bench assembler/wire worker; electrical accessories assembler; and
22
eyeglass assembler. AR 608. The ALJ also found that if Plaintiff was limited to
23
sedentary exertional level, she was capable of performing work as a document
24
preparer and jewelry preparer.
25
Issues for Review
26
1. Whether the ALJ properly rejected Plaintiff’s symptom testimony?
27
2. Whether the ALJ properly evaluated the medical opinion evidence?
28
1 Analysis
2 Due to Plaintiff’s date last insured through September 30, 2016, Plaintiff
3 was required to establish disability on or before September 30, 2016 to be entitled
4 to disability benefits.
5 1. The ALJ’s evaluation of Plaintiff’s Symptom Testimony
6 In determining whether a claimant’s testimony regarding subjective pain or
7 symptoms is credible, the ALJ engages in a two-step analysis. Garrison v. Colvin
8 759 F.3d 995, 1014 (9th Cir. 2014). “First, the ALJ must determine whether the
9 claimant has presented objective medical evidence of an underlying impairment
10 which could reasonably be expected to produce the pain or other symptoms
11 alleged.” Id. (citation and quotation omitted). If the claimant satisfies the first step
12 of the analysis, and there is no evidence of malingering, the ALJ can reject the
13 claimant’s testimony about the severity of their symptoms “only by offering
14 specific, clear and convincing reasons for doing so.” Id. (citation and quotation
15 omitted). “This is not an easy requirement to meet: The clear and convincing
16 standard is the most demanding required in Social Security cases.” Id. (citation
17 and quotation omitted). That said, if the ALJ’s credibility finding is supported by
18 substantial evidence in the record, the reviewing court “may not engage in second-
19 guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
20 In recognition of the fact that an individual’s symptoms can sometimes
21 suggest a greater level of severity of impairment than can be shown by the
22 objective medical evidence alone, 20 C.F.R. §§ 404.1529(c) and 416.929(c)
23 describe the kinds of evidence, including the factors below, that the ALJ must
24 consider in addition to the objective medical evidence when assessing the
25 credibility of an individual’s statements:

26
1. Daily activities; 2. The location, duration, frequency, and intensity of
27 pain or other symptoms; 3. Factors that precipitate and aggravate the
symptoms; 4. The type, dosage, effectiveness, and side effects of any
28
1 medication an individual takes or has taken to alleviate pain or other
symptoms; 5. Treatment, other than medication, an individual receives
2
or has received for relief of pain or other symptoms; 6. Any measures
3 other than treatment an individual uses or has used to relieve pain or
4 other symptoms (e.g., lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and 7. Any other factors
5 concerning an individual’s functional limitations and restrictions due to
6 pain or other symptoms.
SSR 16-3P, 2017 WL 5180304. Daily activities may be grounds for an adverse
7
credibility finding if (1) Plaintiff’s activities contradict her other testimony, or (2)
8
Plaintiff “is able to spend a substantial part of his day engaged in pursuits
9
involving the performance of physical functions that are transferable to a work
10
setting.” Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (citing Fair v. Bowen,
11
885 F.2d 597, 603 (9th Cir. 1989)).
12
The ALJ found that Plaintiff’s statements concerning the intensity,
13
persistence and limiting effects of her symptoms were not entirely consistent with
14
the medical evidence. The ALJ relied on the fact that Plaintiff stopped seeking
15
treatment after October 2015, which, in the ALJ’s mind, suggested that she had
16
improved. The ALJ believed that, at the minimum, this showed there was no
17
evidence of any significant ongoing issues. Additionally, the ALJ concluded that
18
Plaintiff’s daily activities suggested that she was able to do more than she alleged.
19
The ALJ’s reasons for discrediting Plaintiff’s testimony (and the testimony
20
of her husband) do not meet the clear and convincing standard, and as such, is not
21
supported by substantial evidence. It appears the ALJ failed to consider Plaintiff’s
22
testimony that she stopped seeing her providers because she lost insurance
23
coverage. The ALJ apparently believed that all persons would qualify for
24
Obamacare and did not consider Plaintiff’s explanation that she was unable to
25
afford the almost $400/month that it would cost to obtain insurance because her
26
husband’s income slightly exceeded the income limit for help from the State. The
27
ALJ erred in failing to consider whether Plaintiff’s loss of insurance affected or
28
1 explained her lack of treatment, especially given that the ALJ jumped to
2 unfounded speculation that this meant her symptoms must have improved.
3 Moreover, the longitudinal record indicates that when Plaintiff was able to
4 reestablish care in 2018, her symptoms were not gone, but had increased in
5 severity. Additionally, the record does not support the ALJ’s conclusion that
6 Plaintiff’s reported minimal daily activities were inconsistent with her symptom
7 testimony.
8 2. The ALJ’s evaluation of the medical opinion evidence
9 The medical opinion of a claimant’s treating physician is given “controlling
10 weight” as long as it “is well-supported by medically acceptable clinical and
11 laboratory diagnostic techniques and is not inconsistent with the other substantial
12 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2); Trevizo v.
13 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). When a treating physician’s opinion
14 is not controlling, it is weighted according to factors such as the length of the
15 treatment relationship and the frequency of examination, the nature and extent of
16 the treatment relationship, supportability, consistency with the record, and
17 specialization of the physician. § 404.1527(c)(2)-(6). “If a treating or examining
18 doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may only
19 reject it by providing specific and legitimate reasons that are supported by
20 substantial evidence. Trevizo, 871 F.3d at 675 (quoting Ryan v. Comm’r of Soc.
21 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). “[A]n ALJ errs when he rejects a
22 medical opinion or assigns it little weight while doing nothing more than ignoring
23 it, asserting without explanation that another medical opinion is more persuasive,
24 or criticizing it with boilerplate language that fails to offer a substantive basis for
25 his conclusion.” Garrison, 759 F.3d at 1012–13 (citing Nguyen v. Chater, 100
26 F.3d 1462, 1464 (9th Cir. 1996)).
27 //
28 //
1 a. Dr. Borish
2 Dr. Borish began treating Plaintiff in 2011, shortly after the accident. He
3 completed a questionnaire for an insurance claim Plaintiff had made related to her
4 automobile accident. He noted that she had a rotator cuff tear in her left shoulder
5 and had strained the cervical, thoracic and lumbar areas of her back. AR 518. He
6 noted that she had limited use of her left arm and shoulder and had restrictions in
7 lifting, working overhead, carrying and bending. He limited her to sedentary work.
8 Dr. Borish completed another questionnaire in 2012 and indicated that Plaintiff
9 continued to have the same restrictions. He was unsure of her prognosis or her
10 ability to return to light duty because of her pain.
11 The ALJ rejected Dr. Borish’s opinion for three reasons: (1) the limitations
12 identified were temporary and likely to improve with treatment; (2) Dr. Borish’s
13 treatment notes were “hand-written and largely illegible and therefore do not
14 clearly support or detract from his functional assessment,” and (3) her complaints
15 focused primarily on her left shoulder and Dr. Borish described her as having a
16 normal gait and lower extremity strength.
17 The ALJ’s reasons for rejecting Dr. Borish’s opinion are not supported by
18 substantial evidence. Rather, the record is sufficiently clear that Dr. Borish, a
19 treating physician, supported his conclusions with objective evidence and his
20 opinions are consistent with the longitudinal record. A close reading of Dr.
21 Borish’s treatment notes allows the reader to discern that his exam of Plaintiff
22 revealed tenderness to the cervical, thoracic and paraspinal muscles and
23 tenderness in the SI joints bilaterally. AR 515. She also had pain in the front
24 aspect of the left shoulder and pain with retractor testing. Id. Finally, Plaintiff
25 never complained of gait or strength issues. Instead, she explained that she cannot
26 do her previous part-time janitorial job because she could not sit, stand, bend,
27 twist or lift, due to pain. Whether she had normal gait or strength issues is
28 irrelevant to whether Plaintiff can work full-time.
1 Because the ALJ failed to provide specific and legitimate reasons, the ALJ
2 erred in rejecting Dr. Borish’s opinion.
3 b. Dr. Phan
4 The ALJ erred in concluding that Dr. Phan’s opinion was based on
5 inaccurate assumptions and diagnoses. A close reading of Dr. Phan’s opinion
6 reveals that he relied on Plaintiff’s history of neck and left shoulder problems, as
7 well as her carpal tunnel problems, to impose limitations on frequent grasping,
8 gripping, twisting, and turning. It is clear Dr. Phan was not basing his opinion on
9 any current symptoms of carpal tunnel syndrome. Rather, these limitations were
10 based on objective evidence in the record including an MRI showing bulging
11 cervical discs, the rotator cuff tear, the reduced range of motion in the neck, back
12 and shoulder and tingling in some digits in the left hand.
13 c. Kaitlyn Llewellyn, PA-C
14 In April 2021, provider Kaitlyn Llewellyn, PA-C, completed a Medical
15 Report indicating that she had treated Myers since November 2019. Tr. 1089. She
16 indicated that Plaintiff had neck pain, back pain with right sciatica numbness and
17 tingling, shoulder pain, knee pain, brain fog, diarrhea and anxiety with panic
18 attacks during driving and while in stores. Id. Her clinical findings included spinal
19 and paraspinal tenderness of cervical, thoracic, and lumbar spine on exam; MRI of
20 the lumbar spine with degenerative changes noted; and x-ray of the cervical spine.
21 Ms. Llewellyn noted that Plaintiff “has had minimal improvements over the past
22 several years despite multiple treatments. Has been referred to pain management
23 and PT for chronic pain to hopefully provide some more improvement, although
24 pain unlikely to resolve.” AR 1090. Ms. Llewellyn opined that Plaintiff would
25 likely miss four or more days of work per month.
26 The ALJ gave little weigh to Ms. Llewellyn’s opinion for two reasons: (1)
27 Ms. Llewellyn did not begin treating Plaintiff until November 2019; and (2) “her
28 assessment is vague and excessive and without detailed explanation regarding
1 how the objective findings she noted would cause the claimant to miss work.” AR
2 606. Neither of these reasons are supported by the record.
3 First, Ms. Llewellyn’s opinion is consistent with Plaintiff’s medical records,
4 beginning in 2011, when she was in the motor vehicle accident, and throughout
5 when she was seeking care for chronic pain after the accident. Ms. Llewellyn
6 noted that Plaintiff’s condition has remained largely unchanged for the several
7 years that she had treated her, and also concluded that her pain was unlikely to be
8 resolved in the future. AR 1090. Given the chronic and unchanging nature of
9 Plaintiff’s pain symptoms, the ALJ erred in rejecting Ms. Llewellyn’s opinion
10 because she only began treating her in 2019. Also, contrary to the ALJ’s opinion,
11 Ms. Llewellyn provided a detailed description of Plaintiff’s diagnosis, symptoms,
12 clinical findings, treatment and prognosis. The ALJ’s conclusion that her opinion
13 was “vague and excessive” was not supported by substantial evidence. On the
14 contrary, Ms. Llewellyn’s conclusion that Plaintiff would miss work due to pain
15 was well-supported by objective evidence. The ALJ erred in giving Ms.
16 Llewellyn’s opinion little weight.
17 3. Conclusion
18 Here, the ALJ committed legal error in rejecting the opinions of Dr. Borish,
19 Dr. Phan, and Ms. Llewellyn. If these opinions were properly considered, it is
20 clear Plaintiff is unable to work on a regular and continuous basis. It is clear she
21 would miss more than four days a month and would be unable to sustain full-time
22 employment. As such, a remand in this case would only delay an award. As such,
23 the Court will reverse the Commissioner’s decision and remand for an immediate
24 calculation and award of benefits.
25 Accordingly, IT IS HEREBY ORDERED:
26 1. Plaintiff’s Motion for Summary Judgment, No. 11, is GRANTED.
27 2. Defendant’s Motion for Summary Judgment, No. 12, is DENIED.
28 3. The decision of the Commissioner denying benefits is reversed and
remanded for an immediate calculation and award of benefits.
4. The District Court Executive is directed to enter judgment in favor of
Plaintiff and against Defendant.
IT IS SO ORDERED. The District Court Executive is hereby directed to
5|| file this Order, provide copies to counsel, and close the file.
DATED this 7th day of June 2022.

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Shockey ec toar
i Stanley A. Bastian
12 Chief United States District Judge
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ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY
TIMCNMENT. NENVING NEERENDANTIOR MATION ENP CTIMMARYV

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10697827. Public record. Not legal advice.