Martinez v. Colvin, No. 1:2014cv03047 - Document 28 (E.D. Wash. 2015)
Court Description: DECISION AND ORDER granting ECF No. 15 Plaintiff's Motion for Summary Judgment and denying ECF NO. 21 Defendant's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge Victor E. Bianchini. (PH, Case Administrator)
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Martinez v. Colvin Doc. 28 1 2 3 4 5 6 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 7 8 9 Case No. 1:14-CV-03047-VEB SILVESTRE MARTINEZ, 10 Plaintiff, DECISION AND ORDER 11 vs. 12 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 13 Defendant. 14 15 I. INTRODUCTION 16 In November of 2010, an application for supplemental security income 17 (“SSI”) benefits under the Social Security Act was filed on behalf of Plaintiff 18 Silvestre Martinez, who was under the age of 18 at that time. The Commissioner of 19 Social Security denied the application. 20 1 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB Dockets.Justia.com 1 Plaintiff, represented by D. James Tree, Esq., commenced this action seeking 2 judicial review of the Commissioner’s denial of benefits pursuant to 42 U.S.C. §§ 3 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a United States 4 Magistrate Judge. (Docket No. 7). 5 On January 5, 2015, the Honorable Rosanna Malouf Peterson, Chief United 6 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 7 636(b)(1)(A) and (B). (Docket No. 22). 8 9 II. BACKGROUND 10 The procedural history may be summarized as follows: 11 On November 23, 2010, an application for SSI benefits was filed on behalf of 12 Plaintiff, who was then a child under the age of 18, alleging disability beginning 13 August 30, 1999. (T at 151-56).1 The application was denied initially and on 14 reconsideration and a request was filed for a hearing before an Administrative Law 15 Judge (“ALJ”). On September 18, 2012, a hearing was held before ALJ Kimberly 16 Boyce. (T at 42). Plaintiff appeared with his attorney and testified. (T at 49-64). The 17 ALJ also received testimony from Trevor Duncan, a vocational expert (T at 75-81), 18 and Dr. Kenneth Asher, a medical expert. (T at 65-74). 19 1 20 Citations to (“T”) refer to the administrative record at Docket No. 11. 2 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 On November 5, 2012, ALJ Boyce issued a written decision denying the 2 application for benefits and finding that Plaintiff was not disabled within the 3 meaning of the Social Security Act either before or after he turned 18. (T at 15-41). 4 The ALJ’s decision became the Commissioner’s final decision on February 19, 5 2014, when the Appeals Council denied Plaintiff’s request for review. (T at 1-4). 6 On April 16, 2014, Plaintiff, acting by and through his counsel, timely 7 commenced this action by filing a Complaint in the United States District Court for 8 the Eastern District of Washington. (Docket No. 1). The Commissioner interposed 9 an Answer on June 27, 2014. (Docket No. 11). 10 Plaintiff filed a motion for summary judgment on October 20, 2014. (Docket 11 No. 15). The Commissioner moved for summary judgment on December 31, 2014. 12 (Docket No. 21). Plaintiff filed a reply memorandum of law on January 14, 2015. 13 (Docket No. 25). 14 15 For the reasons set forth below, the Commissioner’s motion is denied, Plaintiff’s motion is granted, and this case is remanded for calculation of benefits. 16 17 18 19 20 3 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 2 III. DISCUSSION A. Sequential Evaluation Process 3 1. 4 An individual under the age of eighteen (18) is disabled, and thus eligible for 5 SSI benefits, if he or she has a medically determinable physical or mental 6 impairment that results in marked and severe functional limitations, and which can 7 be expected to result in death or which has lasted or can be expected to last for a 8 continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(C)(i). 9 However, that definitional provision excludes from coverage any “individual under 10 the age of [eighteen] who engages in substantial gainful activity....” 42 U.S.C. § 11 1382c(a)(3)(C)(ii). Child’s Benefits 12 By regulation, the agency has prescribed a three-step evaluative process to be 13 employed in determining whether a child can meet the statutory definition of 14 disability. 20 C.F.R. § 416.924; see generally Meredith v. Astrue, No. CV-09-0384, 15 2011 U.S. Dist. LEXIS 37363, at *3 (E.D.Wa. April 5, 2011). 16 The first step of the test, which bears some similarity to the familiar five-step 17 analysis employed in adult disability cases (see below), requires a determination of 18 whether the child has engaged in substantial gainful activity. 20 C .F.R. § 19 20 4 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 416.924(b). If so, then both statutorily and by regulation the child is ineligible for 2 SSI benefits. 42 U.S.C. § 1382c(a)(3)(C)(ii); 20 C.F.R. § 416.924(b). 3 If the claimant has not engaged in substantial gainful activity, the second step 4 of the test requires an examination as to whether the child suffers from one or more 5 medically determinable impairments that, either singly or in combination, are 6 properly regarded as severe, in that they cause more than a minimal functional 7 limitation. 20 C.F.R. § 416.924(c). 8 If the existence of a severe impairment is discerned, the agency must then 9 determine, at the third step, whether the impairment meets or equals a presumptively 10 disabling condition identified in the listing of impairments set forth under 20 C.F.R. 11 Pt. 404, Subpt. P., App. 1 (the “Listings”). Id. Equivalence to a listing can be either 12 medical or functional. 20 C.F.R. § 416.924(d). If an impairment is found to meet or 13 qualify as medically or functionally equivalent to a listed disability, and the twelve- 14 month durational requirement is satisfied, the claimant will be deemed disabled. 20 15 C.F.R. § 416.924(d)(1). 16 Analysis of functionality is informed by consideration of how a claimant 17 functions in six main areas, commonly referred to as “domains.” 20 C.F.R. § 18 416.926a(b)(1); Meredith, 2011 LEXIS 37363, at *4. The domains are described as 19 “broad areas of functioning intended to capture all of what a child can or cannot do.” 20 5 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 20 C.F.R. § 416.926a(b)(1). Those domains include: (i) acquiring and using 2 information; (ii) attending and completing tasks; (iii) interacting and relating with 3 others; (iv) moving about and manipulating objects; (v) caring for oneself; and (vi) 4 health and physical well-being. 20 C.F.R. § 416.926a(b)(1). 5 Functional equivalence is established in the event of a finding of an 6 “extreme” limitation, meaning “more than marked,” in a single domain. 20 C.F.R. § 7 416.926a(a); Meredith, 2011 LEXIS 37363, at *4. An “extreme limitation” is an 8 impairment which “interferes very seriously with [the claimant's] ability to 9 independently 10 initiate, sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(I). 11 Alternatively, a finding of disability is warranted if a “marked” limitation is 12 found in any two of the listed domains. 20 C.F.R. § 416.926a(a); Meredith, 2011 13 LEXIS 37363, at *4. A “marked limitation” exists when the impairment “interferes 14 seriously with [the claimant's] ability to independently initiate, sustain, or complete 15 activities.” 20 C.F.R. § 416.926a(e)(2)(I). “A marked limitation may arise when 16 several activities or functions are impaired, or even when only one is impaired, as 17 long as the degree of limitation is such as to interfere seriously with the ability to 18 function (based upon age-appropriate expectations) independently, appropriately, 19 20 6 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 effectively, and on a sustained basis.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 2 112.00(C). 3 2. 4 The Social Security Act (“the Act”) defines disability as the “inability to 5 engage in any substantial gainful activity by reason of any medically determinable 6 physical or mental impairment which can be expected to result in death or which has 7 lasted or can be expected to last for a continuous period of not less than twelve 8 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 9 plaintiff shall be determined to be under a disability only if any impairments are of 10 such severity that a plaintiff is not only unable to do previous work but cannot, 11 considering plaintiff’s age, education and work experiences, engage in any other 12 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 13 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 14 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Adult Benefits 15 The Commissioner has established a five-step sequential evaluation process 16 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 17 one determines if the person is engaged in substantial gainful activities. If so, 18 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 19 decision maker proceeds to step two, which determines whether plaintiff has a 20 7 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 medially severe impairment or combination of impairments. 20 C.F.R. §§ 2 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 3 If plaintiff does not have a severe impairment or combination of impairments, 4 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 5 the third step, which compares plaintiff’s impairment with a number of 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); 20 8 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 9 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 10 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 11 step, which determines whether the impairment prevents plaintiff from performing 12 work which was performed in the past. If a plaintiff is able to perform previous work 13 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 14 416.920(a)(4)(iv). At this step, plaintiff’s residual functional capacity (RFC) is 15 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 16 the process determines whether plaintiff is able to perform other work in the national 17 economy in view of plaintiff’s residual functional capacity, age, education and past 18 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 19 Yuckert, 482 U.S. 137 (1987). 20 8 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 The initial burden of proof rests upon plaintiff to establish a prima facie case 2 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 3 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 4 met once plaintiff establishes that a mental or physical impairment prevents the 5 performance of previous work. The burden then shifts, at step five, to the 6 Commissioner to show that (1) plaintiff can perform other substantial gainful 7 activity and (2) a “significant number of jobs exist in the national economy” that 8 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 9 B. Standard of Review 10 Congress has provided a limited scope of judicial review of a Commissioner’s 11 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 12 made through an ALJ, when the determination is not based on legal error and is 13 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 14 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s] 15 determination that a plaintiff is not disabled will be upheld if the findings of fact are 16 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 17 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 18 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 19 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 20 9 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 Substantial evidence “means such evidence as a reasonable mind might accept as 2 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 3 (1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner] 4 may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze, 5 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 6 whole, not just the evidence supporting the decision of the Commissioner. Weetman 7 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 8 526 (9th Cir. 1980)). 9 It is the role of the Commissioner, not this Court, to resolve conflicts in 10 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 11 interpretation, the Court may not substitute its judgment for that of the 12 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 13 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 14 set aside if the proper legal standards were not applied in weighing the evidence and 15 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 16 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 17 administrative findings, or if there is conflicting evidence that will support a finding 18 of either disability or nondisability, the finding of the Commissioner is conclusive. 19 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 20 10 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 C. Commissioner’s Decision 2 Plaintiff was born on December 3, 1993, and was therefore in the 3 “adolescents” age group under the Social Security Regulations on November 23, 4 2010, the date the application was filed. (T at 22). Plaintiff turned 18 in December 5 of 2011. (T at 22). 6 The ALJ found that Plaintiff had not engaged in substantial gainful activity 7 since the application date. (T at 22). The ALJ determined that, prior to attaining 18, 8 Plaintiff had the following severe impairment: impaired intellectual functioning. (Tr. 9 23-24). However, the ALJ concluded that, prior to age 18, Plaintiff did not have an 10 impairment or combination of impairments that met or medically equaled one of the 11 impairments set forth in the Listings. (T at 24). The ALJ also found that, prior to 12 age 18, Plaintiff did not have an impairment or combination of impairments that 13 functionally equaled the Listings. (T at 24-32). 14 Plaintiff was not disabled before attaining age 18 and was not entitled to child’s 15 benefits. (T at 33). Thus, the ALJ concluded that 16 The ALJ determined that Plaintiff had not developed any new impairments 17 since age 18, but continued to have a severe impairment, i.e. impaired intellectual 18 functioning. (T at 33). The ALJ found that, since age 18, Plaintiff did not have an 19 20 11 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 impairment or combination of impairments that met or medically equaled one of the 2 impairments set forth in the Listings. (T at 33-34). 3 The ALJ concluded that, after the age of 18, Plaintiff had the residual 4 functional capacity (“RFC”) to perform a full range of work at all exertional levels, 5 with the following nonexertional limitations: Plaintiff can perform work that is 6 unskilled, routine, and repetitive, and can work in proximity to coworkers, but not in 7 a team or cooperative effort and is limited to work that does not require more than 8 occasional independent judgment. (T at 34-36). 9 Plaintiff has no past relevant work. (T at 36). However, considering Plaintiff’s 10 age, education (marginal), work experience, and RFC, the ALJ determined that, 11 since turning age 18, there were jobs that existed in significant numbers in the 12 national economy that Plaintiff can perform. (T at 36-37). 13 As such, the ALJ concluded that Plaintiff had not been disabled, as defined 14 under the Act, from December 2, 2011 (the date Plaintiff turned 18), through 15 November 5, 2012 (the date of the ALJ’s decision) and was therefore not entitled to 16 benefits. (Tr. 37-38). 17 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request 18 for review. (Tr. 1-4). As noted above, the ALJ’s decision became the 19 20 12 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 D. Plaintiff’s Arguments 2 Plaintiff contends that the Commissioner’s decision should be reversed. He 3 offers two (2) principal arguments in support of this position. First, Plaintiff argues 4 that the ALJ erred by finding that his dysthymia and social phobia were not severe 5 impairments. Second, Plaintiff contends the ALJ committed reversible error by 6 discounting certain evidence, including evidence that Plaintiff’s impairments met the 7 Childhood and Adult Listings. This Court will address both arguments in turn. 8 1. 9 At step two of the sequential evaluation process, the ALJ must determine 10 whether the claimant has a “severe” impairment. See 20 C.F.R. §§ 404.1520(c), 11 416.920(c). The fact that a claimant has been diagnosed with and treated for a 12 medically determinable impairment does not necessarily mean the impairment is 13 “severe,” as defined by the Social Security Regulations. See, e.g., Fair v. Bowen, 14 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 15 1985). To establish severity, the evidence must show the diagnosed impairment 16 significantly limits a claimant's physical or mental ability to do basic work activities 17 for at least 12 consecutive months. 20 C.F.R. § 416.920(c). Step Two Severity Analysis 18 The claimant bears the burden of proof at this stage and the “severity 19 requirement cannot be satisfied when medical evidence shows that the person has 20 13 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 the ability to perform basic work activities, as required in most jobs.” SSR 85-28. 2 Basic work activities include: “walking, standing, sitting, lifting, pushing, pulling, 3 reaching, carrying, or handling; seeing, hearing, speaking; understanding, carrying 4 out and remembering simple instructions; responding appropriately to supervision, 5 coworkers, and usual work situation.” Id. 6 The ALJ determined that, prior to attaining 18, Plaintiff’s impaired intellectual 7 functioning was a severe impairment. (Tr. 23-24). The ALJ found that Plaintiff’s 8 impaired intellectual functioning remained a severe impairment after he turned 18. 9 (T at 33). 10 In April of 2011, Dr. Emma Joan H. Billings, a clinical psychologist, 11 conducted a consultative psychological assessment. She diagnosed social phobia, 12 dysthymic disorder, and borderline intellectual functioning. (T at 323). The ALJ 13 concluded that Plaintiff’s dysthymic disorder and social phobia were not severe 14 impairments. (T at 23). 15 With regard to dysthymic disorder, the ALJ noted that Plaintiff performed 16 several activities of daily living, including chores, cleaning his room, and 17 occasionally doing laundry. (T at 23, 319). Plaintiff also reported playing sports 18 (soccer and football), participating in family gatherings, and working as an 19 “asparagus harvester.” (T at 23, 319). Dr. Billings described Plaintiff’s depression 20 14 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 as “mild.” (T at 323). Thus, the ALJ found that Plaintiff’s mild dysthymic 2 symptoms did not cause a significant limitation in his ability to perform basic work 3 activities. (T at 23). 4 As to social phobia, the ALJ believed this diagnosis was an exaggeration of 5 Plaintiff’s “shyness.” (T at 23). She noted that Plaintiff was cooperative with Dr. 6 Billings’s examination and reported that he had friends, participated in family 7 gatherings, and got along with his sibling “pretty well.” (T at 23, 53, 60, 318). He 8 attended neighborhood soccer and football games. (T at 318). Plaintiff’s school 9 records indicated “no behavior concerns for the school setting.” (T at 245). 10 Plaintiff’s special education teacher reported that Plaintiff had no problems attending 11 and completing tasks and no problems interacting and relating with others. (T at 12 229-30). Thus, the ALJ found that Plaintiff’s social phobia did not cause a 13 significant limitation in Plaintiff’s ability to perform basic work-like activities. (T at 14 23-24). 15 Plaintiff challenges these conclusions, noting educational records that 16 indicated social and behavioral concerns “outside the acceptable range of classroom 17 expectations.” (T at 177). In addition, Plaintiff contends that his self-reports of his 18 activities of daily living were impacted by his impaired intellectual functioning and 19 that his father’s report of serious limitations was more accurate. (T at 215). 20 15 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 Plaintiff’s father indicated that Plaintiff could not keep busy on his own, finish tasks 2 he started, or complete chores most of the time. (T at 215). 3 This Court finds that the ALJ’s step two analysis was flawed. The step two 4 analysis is a screening device designed to dispose of de minimis complaints. Smolen 5 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “[A]n impairment is found not severe 6 . . . when medical evidence establishes only a slight abnormality or a combination of 7 slight abnormalities which would have no more than a minimal effect on an 8 individual’s ability to work.” Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 1988) 9 (quoting SSR 85-28). 10 Dr. Billings concluded that Plaintiff would have difficulty working in a 11 capacity that required frequent public contact. (T at 323). Dr. Billings also opined 12 that Plaintiff would likely “need an extended training period with instructions and 13 directions demonstrated and repeated many times.” (T at 323). 14 Although the ALJ incorporated a limitation on working in a team or 15 cooperative effort with co-workers into the RFC determination, she did not include 16 any limitation on Plaintiff’s ability to engage in public contact. (T at 34). The ALJ 17 also did not sufficiently address this limitation in the context of her step two 18 analysis. 19 20 16 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 Moreover, Plaintiff’s social activities, considered in context, were rather 2 limited and appear to have been structured so as minimize the effects of his mental 3 health impairments, a fact the ALJ appears not have considered. For example, 4 Plaintiff did not accompany friends to outside activities beyond his immediate 5 neighborhood, and did not bring friends to his house or attend school events. (T at 6 321). Individuals with chronic mental health problems “commonly have their lives 7 structured to minimize stress and reduce their signs and symptoms.” Courneya v. 8 Colvin, No. CV-12-5044, 2013 U.S. Dist. LEXIS 161332, at *13-14 (E.D.W.A. 9 Nov. 12, 2013)(quoting 20 C.F.R. Pt. 404, Subp't P, App. 1 § 12.00(D)). 10 The ALJ’s characterization of Plaintiff’s “work history” and reliance on that 11 history in the step two analysis was also flawed. Plaintiff worked sorting cherries in 12 2010 and worked with his parents picking cherries, apples, and pears since he was a 13 child. (T at 318). Plaintiff testified that he worked as an asparagus harvester for two 14 weeks in 2012, but was fired after an argument with his boss concerning pay. (T at 15 51-53). 16 explore the nature and extent of this work or examine what sorts of meaningful 17 demands (if any) it placed on Plaintiff. The fact that Plaintiff performed the work 18 with his parents while he was a child suggests it may not have been particularly 19 demanding. In any event, there is nothing in the work “history” that demonstrates an 20 17 Regarding Plaintiff’s history of working his parents, the ALJ did not DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 ability to consistently interact with the public, work in proximity to co-workers, or 2 comply with the mental demands of basic work activity on a sustained basis. In 3 other words, Plaintiff’s work history is not sufficient to demonstrate any ability to 4 handle the daily demands of competitive, remunerative work activity. It also does 5 not establish that his social phobia and dysthymic disorder are non-severe 6 impairments. 7 The ALJ’s step two determination was also based on Plaintiff’s self-reports of 8 his abilities. However, the ALJ did not adequately account for the discrepancy 9 between those reports and Dr. Billings’s findings and the reports of Plaintiff’s father 10 (discussed further below). The ALJ appears not to have considered the fact that 11 Plaintiff’s impaired intellectual functioning impacted his insight into his abilities. 12 The ALJ herself found that Plaintiff’s judgment was limited. (T at 34). 13 certainly should have given her pause before she relied so heavily on Plaintiff’s self- 14 assessment concerning his ability to socialize and complete tasks. This 15 Accordingly, the ALJ’s step two analysis was flawed and cannot be sustained. 16 2. 17 In disability proceedings, a treating physician’s opinion carries more weight 18 than an examining physician’s opinion, and an examining physician’s opinion is 19 given more weight than that of a non-examining physician. Benecke v. Barnhart, 20 18 Medical Opinions and Lay Evidence DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 2 1995). If the treating or examining physician’s opinions are not contradicted, they 3 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 4 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 5 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 6 1035, 1043 (9th Cir. 1995). 7 a. Dr. Billings 8 The ALJ afforded some weight to the opinion of Dr. Billings, an examining 9 physician, but found that Plaintiff’s social isolation was not as significant as Dr. 10 Billings believed. (T at 26). In addition, while Dr. Billings opined that Plaintiff 11 would require extensive instruction preliminary to any work activity, the ALJ found 12 this conclusion contradicted by Plaintiff’s “work history.” (T at 26). The ALJ’s 13 decision was flawed for the reasons stated above in the discussion of the step two 14 analysis. 15 In sum, Plaintiff’s self-reports of his (rather limited and structured) activities 16 are not reliable indicators of his ability to consistently meet the mental demands of 17 basic work activity. See Bjornson v. Astrue, 671 F.3d 640, 647 (7th Cir. 2012)(“The 18 critical differences between activities of daily living and activities in a full-time job 19 are that a person has more flexibility in scheduling the former than the latter, can get 20 19 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 help from other persons . . ., and is not held to a minimum standard of performance, 2 as she would be by an employer. The failure to recognize these differences is a 3 recurrent, and deplorable, feature of opinions by administrative law judges in social 4 security disability cases.”)(cited with approval in Garrison v. Colvin, 759 F.3d 995, 5 1016 (9th Cir. 2014)). 6 Moreover, the ALJ noted the discrepancy between Dr. Billings’ assessment, 7 on the one hand, and Plaintiff’s self-reported activities on the other. The ALJ then 8 used Plaintiff’s self-reports to discount the conclusions offered by Dr. Billings. (T at 9 26). However, as noted above, the ALJ appears to have ignored the fact that 10 Plaintiff’s impaired intellectual functioning and judgment likely impair his insight 11 into the nature and extent of his limitations. 12 Moreover, Plaintiff’s “work history,” which is limited, has minimal probative 13 value and is not sufficient to contradict Dr. Billings’s assessment. Dr. Billings had 14 the opportunity to observe and evaluation Plaintiff. She also administered various 15 tests that showed, inter alia, that Plaintiff was in the 1st percentile for adaptive 16 functioning, had a “very literal,” presumably meaning that he struggles with 17 metaphors, understanding of language, and would have difficulty interacting with 18 the public and completing simple tasks without intensive assistance. (T at 321, 323). 19 Nothing in Plaintiff’s very limited work history is sufficient to rebut these detailed 20 20 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 findings by an examining medical source. 2 Billings’s assessment. 3 b. The ALJ erred in discounting Dr. Dr. Asher 4 Dr. Kenneth Asher testified as a medical expert at the administrative hearing. 5 When asked whether Plaintiff qualified under Childhood Listing § 112.05, Dr. Asher 6 opined that Plaintiff “seems to satisfy the criteria . . . .” (T at 66). Dr. Asher then 7 said that there were “other qualifications and conditions” that he could add to his 8 assessment, but “I wouldn’t [inaudible].” (T at 68, 69). 2 Later, Dr. Asher explained 9 that under his “understanding of the Social Security definitions, [Plaintiff] would 10 have qualified for 112.05” prior to turning 18. (T at 69). 11 The relevant portion of Listing §112.05, subsection (D), requires (1) a valid 12 verbal, performance or full scale IF of 60 through 70 and (2) a physical mental 13 impairment imposing an additional and significant limitation of function. The first 14 portion of this Listing was met because Plaintiff had a verbal IQ of 67 in 2006. (T at 15 2 16 17 18 At step three of the sequential evaluation, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals an impairment listed in Appendix 1 of the Regulations (the “Listings”). See 20 C.F.R. §§ 404.1520(d), 416.920(d). If a claimant meets or equals a listed impairment, he or she is “conclusively presumed to be disabled and entitled to benefits.” Bowen v. City of New York, 476 U.S. 467, 471, 106 S. Ct. 2022, 90 L. Ed. 2d 462 (1986); see also Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); see also 20 C.F.R. §§ 404.1525(a); 416.925(a). 19 20 21 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 24). A severe impairment under step two, combined with this IQ score would meet 2 the Listing. See Dawson v. Astrue, No. EDCV 09-00661, 2010 U.S. Dist. LEXIS 3 6716, at *17 n. 5 (C.D.Ca Jan. 27, 2010). The ALJ found that Plaintiff did not 4 satisfy the criteria because he did not have a physical or other mental impairment 5 imposing an additional and significant limitation of function. (T at 24). This finding 6 turns on the ALJ’s step two analysis, which was flawed for the reasons outlined 7 above. 8 In addition, the ALJ read inferences into Dr. Asher’s testimony that are not 9 adequately supported and justified by the record. In particular, the ALJ stated: 10 “While Dr. Asher initially indicated that [Plaintiff] would meet Listing § 112.05, 11 further questioning indicated that Dr. Asher believed that [Plaintiff] had borderline 12 intellectual functioning without meeting any of the other criteria for meeting or 13 equaling that listing.” (T at 26-27). The ALJ’s language here is telling. The ALJ 14 noted that further questioning “indicated” what Dr. Asher “believed” about whether 15 Listing §112.05 was met. The word “indicated” is used because Dr. Asher did not 16 actually say that. In fact, Dr. Asher said that Plaintiff “seems to satisfy the criteria . . 17 .” of the Listing. (T at 66, 69). The doctor then appeared to offer some qualification 18 to his assessment, but the transcriptionist found that portion of his testimony 19 “inaudible.” (T at 68). Although Dr. Asher thereafter testified that Plaintiff’s 20 22 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 impairments did not functionally equal the Listing (T at 70-74), it appears that he 2 never disclaimed his opinion that Plaintiff met Listing § 112.05. 3 (T at 66, 69). 3 At best, Dr. Asher’s assessment might be considered ambiguous because of 4 the transcription problem. If that were the case, however, the ALJ should not have 5 guessed as to what Dr. Asher’s testimony “indicated” on this key issue, she was 6 bound to re-contact him and clarify the point. See Tonapetyan v. Halter, 242 F.3d 7 1144, 1150 (9th Cir. 2001)(“Ambiguous evidence . . . triggers the ALJ's duty to 8 conduct an appropriate inquiry.”). 9 The ALJ afforded “great weight” to Dr. Asher’s opinion when concluding that 10 Plaintiff’s impairments did not meet Listing §112.05. (T at 27). Dr. Asher’s opinion 11 1) is either ambiguous and should have been developed further or, more 12 appropriately, 2) supports the opposite conclusion from that reached by the ALJ. In 13 either event, it does not provide support for the ALJ’s Listings analysis, which 14 cannot be sustained. 15 For the same reasons, the ALJ’s conclusion that Plaintiff’s impairments did 16 not met Adult Listing §12.05C must be reversed. That Listing likewise requires a 17 (1) a valid verbal, performance or full scale IQ of 60 through 70 and (2) a physical 18 3 19 20 Equivalence to a Listing can be either medical or functional. 20 C.F.R. § 416.924(d). If an impairment is found to meet or qualify as medically or functionally equivalent to a listed disability, and the twelve-month durational requirement is satisfied, the claimant will be deemed disabled. 20 C.F.R. § 416.924(d)(1). 23 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 or mental impairment imposing an additional and significant limitation of function. 2 In April of 2011, Plaintiff’s verbal IQ was assessed at 70 (T at 320-22) and his social 3 phobia and dysthymia impose additional and significant limitations of function. (T at 4 177, 213, 215, 231, 312, 323). There is thus no dispute regarding the first (IQ) 5 prong and the second prong was met because of the evidence establishing the 6 severity of Plaintiff’s social phobia and dysthymic disorder. 7 c. Mr. Martinez 8 The Ninth Circuit has held that “friends and family members in a position to 9 observe a claimant's symptoms and daily activities are competent to testify as to her 10 condition.” Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993) “Disregard of this 11 evidence violates the Secretary's regulation that he will consider observations by 12 non-medical sources as to how an impairment affects a claimant's ability to work. 20 13 C.F.R. § 404.1513(e)(2).” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). 14 An ALJ must give “germane” reasons for discounting such evidence. Dodrill, 12 15 F.3d at 919. 16 Maurilio Martinez, Plaintiff’s father, reported that Plaintiff cannot make new 17 friends, keep busy on his own, finish things he starts, or complete chores most of 18 time. (T at 213, 215). 19 determined that Plaintiff was not as limited as his father believed. (T at 26). Here 20 24 The ALJ found Mr. Martinez “largely credible,” but DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 again, the ALJ cited Plaintiff’s work history and limited social activities, finding this 2 evidence “somewhat inconsistent” with Mr. Martinez’s report. (T at 26). 3 discussed above, Plaintiff’s work history and daily activities were both quite limited. 4 Moreover, the ALJ does not appear to have considered that Plaintiff (whose 5 judgment and insight are impaired) was not as reliable in his self-reports as his father 6 was in his assessment. As 7 Lastly, Mr. Martinez’s statements serve to mitigate and explain any apparent 8 discrepancy between the limitations he identified and Plaintiff’s activities. For 9 example, Mr. Martinez explained that Plaintiff often agreed to complete chores, 10 apparently believing he could complete them, but would then make mistakes or be 11 unaware of necessary safety precautions. (T at 321). In addition, although Plaintiff 12 “attends” family functions, he self-isolates during such events by staying in his 13 room. (T at 321). The ALJ thus did not adequately address the evidence provided by 14 Plaintiff’s father. This error provides a further reason for remand. 15 D. Remand 16 In a case where the ALJ's determination is not supported by substantial 17 evidence or is tainted by legal error, the court may remand the matter for additional 18 proceedings or an immediate award of benefits. A remand for calculation of benefits 19 is warranted where “(1) the ALJ failed to provide legally sufficient reasons for 20 25 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 rejecting the evidence; (2) there are no outstanding issues that must be resolved 2 before a determination of disability can be made; and (3) it is clear from the record 3 that the ALJ would be required to find the claimant disabled were such evidence 4 credited.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)(quoting Smolen v. 5 Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). 6 Here, as set forth above, this Court finds that the ALJ did not provide legally 7 sufficient reasons for rejecting the evidence concerning the severity of Plaintiff’s 8 social phobia and dysthymic disorder. In turn, this error undermined the ALJ’s 9 Listings analysis. The ALJ also placed undue emphasis on Plaintiff’s very limited 10 work history and daily activities, which led to an improper discounting of the 11 evidence, including Dr. Billings’s assessment and the statements of Plaintiff’s father. 12 There are no outstanding issues that must be resolved before a determination of 13 disability can be made. It is clear from the record that the ALJ would be required to 14 find the claimant disabled if the evidence had been properly analyzed and credited. 15 Although the non-examining State Agency consultants (Dr. Gardner and Dr. Beaty) 16 opined that Plaintiff was not disabled (T at 90, 99), these opinions cannot, without 17 more, constitute substantial evidence sufficient to sustain the ALJ’s decision. See 18 Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995)(citing Pitzer v. Sullivan, 908 F.2d 19 502, 506 n.4 (9th Cir. 1990)). 20 26 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB 1 2 IV. ORDERS IT IS THEREFORE ORDERED that: 3 Plaintiff’s motion for summary judgment, Docket No. 15, is GRANTED. 4 The Commissioner’s motion for summary judgment, Docket No. 21, is 5 DENIED. 6 This case is REMANDED for calculation of benefits. 7 The District Court Executive is directed to file this Order, provide copies to 8 9 counsel, enter judgment in favor of Plaintiff, and close this case. DATED this 2nd day of March, 2015. 10 11 12 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 27 DECISION AND ORDER – MARTINEZ v COLVIN 14-CV-03047-VEB
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