Moon v. Kijakazi

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 Jun 29, 2022 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON MINERVA M., NO: 1:21-CV-03063-LRS 8 Plaintiff, ORDER GRANTING, IN PART, 9 v. PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, 12 Defendant.

14 BEFORE THE COURT are the parties’ cross motions for summary judgment. ECF Nos. 16, 22. This matter was submitted for consideration without oral argument. Plaintiff is represented by Attorney D. James Tree. Defendant is represented by Special Assistant United States Attorney Jeffrey E. Staples. The Court has reviewed the administrative record, the parties’ completed briefing, and is fully informed. For the reasons discussed below, the Court GRANTS, in part, Plaintiff’s Motion for Summary Judgment, ECF No. 16, DENIES Defendant’s Motion for Summary Judgment, ECF No. 22, and REMANDS the case back to the 1 JURISDICTION 2 Plaintiff Minerva M.1 protectively filed an application for Supplemental Security Income (SSI) on June 10, 2014, Tr. 140, alleging an onset date of June 1, 2014, Tr. 238, due to back pain/degenerative disc disease, leg pain, diabetes, hypertension, depression/anxiety, posttraumatic stress disorder (PTSD), agoraphobia, stomach cysts, bilateral foot neuropathy, and insomnia, Tr. 294.

7 Plaintiff’s application was denied initially, Tr. 147-50, and upon reconsideration, Tr. 164-66. A hearing before Administrative Law Judge Glen Meyers (“ALJ”) was conducted on July 14, 2016. Tr. 31-90. Plaintiff was represented by an attorney and testified at the hearing. Id. The ALJ also took the testimony of vocational expert Ronnie Lenore. Id. The ALJ entered an unfavorable decision on May 10, 2017. Tr. 13-22. The Appeals Council denied review on June 8, 2018.

13 Tr. 1-6. Therefore, the ALJ’s May 10, 2017 decision became the final decision of the Commissioner.

15 Plaintiff requested judicial review of the ALJ’s decision from this Court, and the case was remanded for additional proceedings. Tr. 748-67. The ALJ held a second hearing on January 5, 2021. Tr. 710-47. He took testimony from Plaintiff and vocational expert Jeffrey Tittelfitz. Id. The ALJ entered an unfavorable 1In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first name and last initial, and, subsequently, Plaintiff’s first name only, throughout decision on January 29, 2021. Tr. 687-703. The Appeals Council did not assume jurisdiction over the case pursuant to 20 C.F.R. § 416.1484(a). Therefore, the January 29, 2021 ALJ decision became the final decision of the Commissioner.

4 The matter is now before this Court pursuant to 42 U.S.C. §§ 405(g); 1383(c).

5 ECF No. 1.

6 BACKGROUND 7 The facts of the case are set forth in the administrative hearing and transcripts, the ALJ’s decision, and the briefs of Plaintiff and the Commissioner.

9 Only the most pertinent facts are summarized here.

10 Plaintiff was 40 years old at the date of application. Tr. 238. The highest grade Plaintiff completed was the eighth grade in 1990. Tr. 295. At application Plaintiff reported a work history that included production clerk, fruit sorter, retail clerk, and assistance secretary. Tr. 296. She stated that she stopped working on December 31, 2006 due to her impairments. Tr. 294.

15 STANDARD OF REVIEW 16 A district court’s review of a final decision of the Commissioner of Social Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited; the Commissioner’s decision will be disturbed “only if it is not supported by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and citation omitted). In determining whether the standard has been satisfied, a reviewing court must consider the entire record as a whole ratherm than searching for supporting evidence in isolation. Id. 5 In reviewing a denial of benefits, a district court may not substitute its judgment for that of the Commissioner. “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

9 Further, a district court will not reverse an ALJ’s decision on account of an error that is harmless. Id. An error is harmless where it is “inconsequential to the [ALJ’s] ultimate nondisability determination.” Id. (quotation and citation omitted). The party appealing the ALJ’s decision generally bears the burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009).

14 FIVE-STEP EVALUATION PROCESS 15 A claimant must satisfy two conditions to be considered “disabled” within the meaning of the Social Security Act. First, the claimant must be “unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be “of such severity that he is not only unable to do his previous work[,] but cannot, substantial gainful work which exists in the national economy.” 42 U.S.C. § 2 423(d)(2)(A).

3 The Commissioner has established a five-step sequential analysis to determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 5 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the Commissioner must find that the claimant is not disabled. 20 8 C.F.R. § 416.920(b).

9 If the claimant is not engaged in substantial gainful activity, the analysis proceeds to step two. At this step, the Commissioner considers the severity of the claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from “any impairment or combination of impairments which significantly limits [his or her] physical or mental ability to do basic work activities,” the analysis proceeds to step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(c).

17 At step three, the Commissioner compares the claimant’s impairment to severe impairments recognized by the Commissioner to be so severe as to preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 20 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the enumerated impairments, the Commissioner must find the claimant disabled and 1 If the severity of the claimant’s impairment does not meet or exceed the severity of the enumerated impairments, the Commissioner must pause to assess the claimant’s “residual functional capacity.” Residual functional capacity (RFC), defined generally as the claimant’s ability to perform physical and mental work activities on a sustained basis despite his or her limitations, 20 C.F.R. § 6 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis.

7 At step four, the Commissioner considers whether, in view of the claimant’s RFC, the claimant is capable of performing work that he or she has performed in the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of performing such work, the analysis proceeds to step five.

13 At step five, the Commissioner considers whether, in view of the claimant’s RFC, the claimant is capable of performing other work in the national economy.

15 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner must also consider vocational factors such as the claimant’s age, education and past work experience. 20 C.F.R. § 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. § 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis concludes with a finding that the claimant is disabled and is therefore entitled to benefits. 20 C.F.R. § 416.920(g)(1).

1 The claimant bears the burden of proof at steps one through four. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to step five, the burden shifts to the Commissioner to establish that (1) the claimant is capable of performing other work; and (2) such work “exists in significant numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012).

7 ALJ’S FINDINGS 8 At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the date of application, June 10, 2014. Tr. 690. At step two, the ALJ found that Plaintiff has the following severe impairments: diabetes mellitus with peripheral neuropathy; obesity; sciatica status post remote lumbar fusion; depressive disorder; anxiety disorder; and PTSD. Tr. 690. At step three, the ALJ found that Plaintiff’s impairments or combinations of impairments do not meet or equal the severity of one of the listed impairments. Tr. 692.

15 The ALJ then found that Plaintiff has the RFC to perform sedentary work as defined in 20 C.F.R. § 416.967(a) with the following limitations: 17 occasional stooping; no crouching, crawling, kneeling, climbing ramps, stairs, ropes, ladders, or scaffolds; frequent reaching, handling, and 18 fingering; capable of engaging in unskilled, repetitive, routine tasks in 2-hour increments; no contact with the public; capable of working in 19 proximity to but not in coordination with coworkers; capable of occasional contact with supervisors.

21 Tr. 694. The ALJ identified Plaintiff’s past relevant work as produce clerk and 701. At step five, the ALJ found that considering Plaintiff’s age, education, work experience, and RFC, there are other jobs that exist in significant numbers in the national economy that Plaintiff could perform, including final assembler, packager/sealer, and table worker. Tr. 702. On that basis, the ALJ concluded that Plaintiff was not under a disability, as defined in the Social Security Act, from the date of application, June 10, 2014, through the date of the decision. Tr. 703.

7 ISSUES 8 Plaintiff seeks judicial review of the Commissioner’s final decision denying her SSI under Title XVI. ECF No. 16. Plaintiff raises the following issues for this Court’s review: 11 1. Whether the ALJ properly addressed the medical opinions in the record; 12 2. Whether the ALJ properly addressed Plaintiff’s symptom statements; and 13 3. Whether the ALJ met his burden at step five.

14 DISCUSSION 1. Medical Source Opinions 16 Plaintiff argues that the ALJ failed to properly address the opinions from N.K. Marks, Ph.D., Gabrielle Mondragon, MSW, Portia Jones, M.D., and Kathleen Mayers, Ph.D. ECF No. 16 at 9-17.

19 There are three types of physicians: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted).

2 Generally, a treating physician’s opinion carries more weight than an examining physician’s, and an examining physician’s opinion carries more weight than a reviewing physician's. Id. If a treating or examining physician's opinion is uncontradicted, the ALJ may reject it only by offering “clear and convincing reasons that are supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 7 1211, 1216 (9th Cir. 2005). Conversely, “[i]f a treating or examining doctor's opinion is contradicted by another doctor’s opinion, an ALJ may reject it by providing specific and legitimate reasons that are supported by substantial evidence.” Id. (citing Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)).

11 A. N.K. Marks, Ph.D.

12 On August 27, 2018, Dr. Marks completed a psychodiagnostics evaluation at the request for Plaintiff’s case worker through the Department of social and Health Services. Tr. 1022-25. She diagnosed Plaintiff with generalized anxiety disorder, unspecified depressive disorder, and unspecified trauma- and stressor- related disorder. Tr. 1025. She provided the following summary: 17 Results indicate severe levels of anxiety and depression, in addition to some past trauma that may affect her ability to work until she has 18 successfully completed therapy and other interventions. She should be able to participate in 10 hours of TANF services initially, and requires 19 ongoing therapy to assists [sic] with her symptoms.

20 Tr. 1025.

21 The ALJ failed to discuss the opinion in his decision except that Dr. Marks very treatable’ with the very type of treatment she was receiving at CMH.” Tr.

2 696. The ALJ never weighed the opinion or discussed the limitations Dr. Marks opined. Tr. 687-703. Federal Regulations state that “[r]egardless of its source, we will evaluate every medical opinion we receive.” 20 C.F.R. § 416.927(c). Social Security Ruling (S.S.R.) 96-8p states that the residual functional capacity assessment “must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted.” Therefore, the ALJ’s failure to consider or discuss the opinion is an error.

10 Defendant argues that Dr. Marks’ opinion was consistent with the RFC determination; therefore, the ALJ was not required to discuss the opinion. ECF No. 22 at 6-7. However, Dr. Marks stated that Plaintiff was limited to ten hours of TANF services per week. According to the multiple letters from Plaintiff’s case worker, for adults to receive TANF public assistance, they are required to work, actively look for work, or get training to work for 32 to 40 hours per week, but these hours can be deferred or reduced. Tr. 971, 976, 981, 987, 993, 998, 1016, 1030. Therefore, Dr. Marks opined that Plaintiff was limited to 10 hours a week of work-related activities. Tr. 1025. A limitation to 10 hours a week of work activity was not included in the RFC determination. Therefore, Defendant’s argument is unsuccessful.

21 Not only did the ALJ fail to weigh Dr. Marks’ opinion, but when he demonstrating that he did not properly review the evidence. In making the RFC determination, the ALJ cited Dr. Marks’ evaluation (Exhibit B19F/69-72) a total of six times. Tr. 694-701. First, the ALJ cited the evaluation in disregarding Plaintiff’s symptom statements as supported for the following finding: “despite her alleged disabling mental impairments, the claimant exhibited normal mood/affect during appointments with normal mental status examinations; ‘Alert and cooperative, normal affect, normal attention span and insight.’” Tr. 696 citing Exhibit B19F/71-72. However, Dr. Marks’ mental status examination actually showed “anxious, depressed” affect and mood, partial orientation, poor overall fund of knowledge, abstract reasoning “somewhat concrete and literal,” fair working memory, and “[o]verall problem solving and judgment appear to be intact however history suggests that in actual life situations, judgment is poor and problem solving is weak.” Tr. 1024-25. Therefore, the normal findings referred to by the ALJ are not an accurate representation of the mental status exam.

15 Second, the ALJ cites Dr. Marks’ evaluation when discussing Plaintiff’s symptom statements as evidence that difficult relationships with others are not disability mental conditions: “In August 2018, examining physician N.K. Marks, Ph.D. opined the claimant’s prognosis was ‘good, with ongoing therapy. Her conditions are very treatable’ with the very type of treatment she was receiving at CMH.” Tr. 696 citing Exhibit B19F/72. This is the only accurate citation to the record in regards to the prognosis, but it overlooks the fact that Dr. Marks limited 1 Third, when assigning little weight to Dr. Mayers’ September 2016 opinion, the ALJ cites Dr. Marks’ evaluation as support for the following statement: “she has friends and sees her friends when they visit her home. She care for and socializes with her children. She interact appropriately with treatment providers.

5 She goes shopping in stores without reported difficulty.” Tr. 699 citing Exhibit 19F/71-72. Nothing in Dr. Marks’ evaluation discusses Plaintiff’s friends, caring for her children, or shopping in stores. When discussing daily activities, Dr. Marks states that Plaintiff “can take care of personal needs but it takes her extra time due to chronic pain. She has to sit down and rest between activities. Right now, she is on crutches and can’t do very much.” Tr. 1024. The mental status examine described Plaintiff as cooperative, but also noted that plaintiff had an anxious, depressed affect and mood. Tr. 1024.

13 Fourth, when assigning little weight to the opinions from MSW Mondragon, the ALJ cites Dr. Marks’ evaluation as support for the statement that her opinion was “inconsistent with the claimant’s admitted level and frequency of her activities of daily living.” Tr. 699 citing Exhibit B19F/71. As discussed above, Dr. Marks’ description of Plaintiff’s daily activities is limited to “care of personal needs but it takes her extra time due to chronic pain. She has to sit down and rest between activities. Right now, she is on crutches and can’t do very much.” Tr. 1024.

20 Therefore, this fails to support the ALJ’s findings.

21 Fifth, when assigning little weight to the opinion of Dr. Jones, the ALJ cites activities of daily living.” Tr. 700 citing Exhibit B19F/71. Again, Dr. Marks’ description of Plaintiff’s daily activities is limited to “care of personal needs but it takes her extra time due to chronic pain. She has to sit down and rest between activities. Right now, she is on crutches and can’t do very much.” Tr. 1024. This fails to support the ALJ’s finding.

6 Sixth, when giving little weight to Dr. Mayers’ August 2016 opinion, the ALJ cites Dr. Marks’ evaluation as evidence to support his finding that “the claimant has friends and sees her friends when they visit her home. She care for and socializes with her children. She attends appointments and interacts appropriately with treatment providers. She goes shopping in stores without reported difficulty.” Tr. 700-01 citing Exhibit B19F/71-72. Again, nothing in Dr. Marks’ evaluation discusses Plaintiff’s friends, caring for her children, or shopping in stores. When discussing daily activities, Dr. Marks states that Plaintiff “can take care of personal needs but it takes her extra time due to chronic pain. She has to sit down and rest between activities. Right now, she is on crutches and can’t do very much.” Tr. 1024. The mental status examine described Plaintiff as cooperative, but also noted that Plaintiff had an anxious, depressed affect and mood. Tr. 1024.

18 Therefore, the ALJ’s citation to the evaluation fails to support his finding.

19 Thus, the ALJ erred in failing to assign weight to the opinion and failing to accurately represent the evidence from Dr. Marks when determining Plaintiff’s RFC.

1 B. Remaining opinions 2 Plaintiff also challenges the weight the ALJ assigned to the opinions of Gabrielle Mondragon, MSW, Portia Jones, M.D., and Kathleen Mayers, Ph.D.

4 ECF No. 16 at 11-17.

5 This case is being remanded for the ALJ to properly address the opinion of Dr. Marks. See supra. Here, the ALJ failed to provide any weight to Dr. Marks’ opinion, and he failed to accurately represent Dr. Marks’ evaluation when assigning little weight to the opinions of MSW Mondragon, Dr. Jones, and Dr. Mayers. The regulations require the ALJ to consider the factor of consistency when weighing a medical opinion. 20 C.F.R. § 416.927(c)(4) (“Generally, the more consistent a medical opinion is with the record as a whole, the more weight we will give to that medical opinion.”). Therefore, on remand, the ALJ will readdress the opinions of MSW Mondragon, Dr. Jones, and Dr. Mayers after properly addressing Dr. Marks’ opinion and evaluation.

15 2. Plaintiff’s Symptom Statements 16 Plaintiff argues that the ALJ erred in evaluating his symptom testimony.

17 ECF No. 16 at 4-9.

18 It is generally the province of the ALJ to make determinations regarding the reliability of Plaintiff’s symptom statements, Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995), but the ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 2 1273, 1281 (9th Cir. 1996); Lester, 81 F.3d at 834.

3 The ALJ found Plaintiff’s “statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Tr. 695. The evaluation of a claimant’s symptom statements and their resulting limitations relies, in part, on the assessment of the medical evidence. See 20 C.F.R. § 416.929(c); S.S.R. 16-3p. Therefore, in light of the case being remanded for the ALJ to readdress the medical opinions addressed above, a new assessment of Plaintiff’s subjective symptom statements will be necessary.

11 3. Step Five 12 Plaintiff argues that the ALJ failed to meet his burden at step five by asserting that the jobs identified by the vocational expert do not exist in substantial numbers.

14 ECF No. 16 at 18-21. This case is being remanded for the ALJ to properly address the medical opinions in the record and Plaintiff’s symptom statements. This will require the ALJ to make a new RFC determination, which results in the need for a new step four determination and a new step five determination. Therefore, the ALJ will call a vocational expert to testify at any remand proceedings and allow Plaintiff the opportunity to cross-examine the vocational expert.

20 CONCLUSION 21 Plaintiff requests that the Court remand the case for an immediate award of 1 The decision whether to remand for further proceedings or reverse and award benefits is within the discretion of the district court. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate where “no useful purpose would be served by further administrative proceedings, or where the record has been thoroughly developed,” Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused by remand would be “unduly burdensome[.]” Terry v. Sullivan, 903 F.2d 1273, 1280 (9th Cir. 1990); see also Garrison v. Chater, 759 F.3d 995, 1021 (9th Cir. 2014) (noting that a district court may abuse its discretion not to remand for benefits when all of these conditions are met). This policy is based on the “need to expedite disability claims.” Varney, 859 F.2d at 1401. But 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, remand is appropriate. See Benecke, 379 F.3d at 595-96; Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000).

17 The Court finds that further administrative proceedings are appropriate. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (remand for benefits is not appropriate when further administrative proceedings would serve a useful purpose). Here, it is not clear that the ALJ would be required to find Plaintiff disabled if all the evidence were properly evaluated.

1 On remand, this case is to be assigned toanew ALJ. That ALJ must || readdress the medical opinions discussed above, readdress Plaintiff's symptom || statements, and make a new step five determine. In addition, the ALJ should 4|| supplement the record with any outstanding medical evidence and take testimony from a vocational expert at any remand proceedings.

6 ACCORDINGLY, IT ISHEREBY ORDERED: 7 1. Plaintiffs Motion for Summary Judgment, ECF No. 16, is GRANTED, 8 in part, and the matter is REMANDED to the Commissioner for 9 additional proceedings.

10 2. Defendant’s Motion for Summary Judgment, ECF No. 2, is DENIED.

11 The District Court Clerk is directed to enter this Order and provide copies to counsel. Judgment shall be entered for Plaintiffand the file shall be CLOSED.

13 DATED June 29, 2022.

1s “TONY RSUKO Senior United States District Judge