DuHall v. Commissioner of Social Security

05 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 06 AT SEATTLE MARK D., ) ) CASE NO. C20-354-MAT 08 Plaintiff, ) ) 09 v. ) ) ORDER RE: SOCIAL SECURITY ANDREW M. SAUL, ) DISABILITY APPEAL Commissioner of Social Security, ) 11 ) Defendant. ) ____________________________________ ) 13 Plaintiff proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied Plaintiff’s application for Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the administrative record (AR), and all memoranda of record, this matter is REVERSED and REMANDED for further administrative proceedings.

19 FACTS AND PROCEDURAL HISTORY 20 Plaintiff was born on XXXX, 1969.1 He has a college degree as well as some master’s-level education, and was previously self-employed organizing seminars and Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1).

01 conferences. (AR 290, 639, 823.)

02 Plaintiff applied for SSI in September 2016. (AR 156-59.) That application was denied and Plaintiff timely requested a hearing. (AR 205-09.)

04 In August 2018, ALJ M.J. Adams held a hearing, taking testimony from Plaintiff and a vocational expert (VE). (AR 30-67.) On February 20, 2019, the ALJ issued a decision finding Plaintiff not disabled. (AR 12-24.) Plaintiff timely appealed. The Appeals Council denied Plaintiff’s request for review on February 20, 2020 (AR 1-6), making the ALJ’s decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.

10 JURISDICTION 11 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 12 405(g).

13 DISCUSSION 14 The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had not engaged in substantial gainful activity since the application date. (AR 14.) At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe Plaintiff’s neurocognitive disorder, diabetes mellitus, and degenerative disc disease of the lumbar spine. (AR 15.) Step three asks whether a claimant’s impairments meet or equal a listed impairment. The ALJ found that Plaintiff’s impairments did not meet or equal the criteria of a listed impairment. (AR 15-17.)

01 If a claimant’s impairments do not meet or equal a listing, the Commissioner mus t assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of performing medium work with additional limitations: he can lift/carry up to 50 pounds occasionally and 25 pounds frequently. He can stand/walk a total of about six hours and sit a total of about six hours, in an eight-hour workday with normal breaks. He can operate hand/foot controls within the lift/carry restrictions. He can occasionally climb ramps and stairs, and can frequently stoop. He cannot climb ladders, ropes, or scaffolds. He must avoid exposure to hazardous machinery or working at unprotected heights. He can understand, remember, and carry out simple instructions, and can make judgments commensurate with the functions of unskilled work (i.e. work that needs little or no judgment to do simple duties and a person can usually learn to do the job in 30 days, and little specific vocational preparation and judgment are needed). He can respond appropriately to supervision and co-workers, and can deal with occasional changes in the work environment. (AR 17.)

15 The ALJ found that Plaintiff had no past relevant work (AR 23), and therefore moved on to step five, where burden shifts to the Commissioner to demonstrate that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. With the assistance of the VE, the ALJ found Plaintiff capable of transitioning to representative occupations, such as mail room clerk, laundry sorter, telephone order clerk, and final assembler. (AR 23-24.)

21 This Court’s review of the ALJ’s decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence mean s more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 04 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s decision, the Court must uphold that decision. Thomas v. Barnhart, 278 06 F.3d 947, 954 (9th Cir. 2002).

07 Plaintiff argues the ALJ erred in (1) assessing the opinion of treating physician Deborah Oksenberg, M.D.; (2) failing to develop the record; and (3) failing to address or account for Plaintiff’s headaches anywhere in the decision. The Commissioner argues that the ALJ’s decision is supported by substantial evidence and should be affirmed.

11 Medical evidence 12 Dr. Oksenberg completed a form opinion in July 2018, describing Plaintiff’s symptoms and limitations. (AR 860-64.) Specifically, Dr. Oksenberg opined that Plaintiff was unable to perform even sedentary work due to his shoulder, back, and knee conditions.

15 (AR 863-64.)

16 The ALJ’s discussion of Dr. Oksenberg’s opinion contains a significant typographical error that renders the Court unable to determine with certainty the grounds on which the ALJ assigned little weight to the opinion. The ALJ starts to explain why he found Dr. Oksenberg’s opinion to be inconsistent with something, but a new sentence is inserted mid-sentence that pertains to another doctor’s opinion.2 (AR 21.) The ALJ goes on to mention that Dr.

22 2 Interestingly, the ALJ made the identical typographical error in the preceding paragraph discussing the opinion of Joseph Sever, M.D. (AR 21.)

01 Oksenberg described other shoulder limitations in September 2018, but the ALJ does no t return to finish the findings regarding the July 2018 opinion. (AR 21.)

03 The Commissioner does not address the typographical error in the ALJ’s discussion of Dr. Oksenberg’s opinion, and instead states that the ALJ found Dr. Oksenberg’s opinion to be inconsistent with “the record showing minimal treatment and greater functional ability.” Dkt.

06 27 at 10 (citing AR 21). The ALJ did not find Dr. Oksenberg’s opinion to be inconsistent with anything in particular, however; the ALJ found the State agency opinion to be consistent with the treatment notes showing minimal examination findings and no observations of Plaintiff in distress or discomfort. (AR 21.)

10 Even if ALJ’s decision could be plausibly read to find Dr. Oksenberg’s opinion inconsistent with the treatment record, the ALJ did not identify any particular inconsistencies between the record and the opinion. Moreover, the ALJ’s summary of the medical record focuses on normal findings, without acknowledging the extent of abnormal findings. (See, e.g., AR 19 (the ALJ’s list of many normal findings).) For example, Dr. Oksenberg attributed Plaintiff’s most significant limitations to a tendon tear in his right shoulder, but the ALJ does not address the objective evidence establishing the existence of this tear and the limitations it caused. (AR 894, 918-1055.) The ALJ mentions a hand therapist’s finding of full range of motion and strength (AR 15), but does not acknowledge that these findings pertained to Plaintiff’s hands, wrists, forearms and fingers, rather than his shoulder, and thus do not necessarily undermine Plaintiff’s allegations of problems with his right shoulder. (AR 1059- 60.) Evidence submitted to the Appeals Council shows that Plaintiff eventually underwent surgery on his right shoulder, one day before the ALJ’s decision was issued, which also lends credence to Plaintiff’s allegation of shoulder problems. (AR 161-63.) Because it appears tha t the ALJ selectively summarized the treatment record in the decision, the Court finds that the ALJ’s findings pertaining to the treatment record do not constitute a legitimate reason to discount Dr. Oksenberg’s opinion, to the extent the ALJ intended to refer to the treatment record as a reason to discount the opinion.

06 On remand, the ALJ should reconsider Dr. Oksenberg’s opinion, correct the typographical errors in the assessment of her opinion and Dr. Sever’s opinion, and reconsider the updated medical record as a whole.

09 Other issues 10 Plaintiff was unrepresented at the administrative hearing, and argues that he did not have a full opportunity to explain his limitations because he felt rushed through the hearing.

12 Dkt. 23 at 15-17. He also claims that the ALJ did not fully address his alleged headaches in the decision. Dkt. 23 at 17-18.

14 Because this case must be remanded for further administrative proceedings as explained supra, Plaintiff will have another opportunity to testify and can inform the ALJ about his headaches and any other conditions or symptoms in more detail on remand.

17 CONCLUSION 18 For the reasons set forth above, this matter is REVERSED and REMANDED for further administrative proceedings. On remand, the ALJ shall reconsider the updated medical record, reconsider Dr. Oksenberg’s opinion, correct the typographical errors in the discussion of the opinions of Drs. Oksenberg and Sever, and provide another opportunity for Plaintiff to testify about his symptoms and limitations.

01 DATED this 1st day of April, 2021.

02 A Mary Alice Theiler 04 United States Magistrate Judge