Blubaugh v. Colvin, No. 1:2015cv03149 - Document 19 (E.D. Wash. 2016)
Court Description: ORDER granting 15 Plaintiff's Motion for Summary Judgment. 16 Defendant's Motion for Summary Judgment is denied. The matter is remanded to the Commissioner for additional proceedings. Signed by Magistrate Judge John T. Rodgers. (KW, Case Administrator)
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1 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 5 6 CRYSTAL BLUBAUGH, o/b/o T.K.B., A MINOR, 7 v. 9 10 11 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT Plaintiff, 8 No. 1:15-CV-03149-JTR CAROLYN W. COLVIN, Commissioner of Social Security, 12 Defendant. 13 14 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 15 No. 15, 16. Attorney D. James Tree represents Crystal Blubaugh (Plaintiff), and 16 Special Assistant United States Attorney Leisa A. Wolf represents the 17 Commissioner of Social Security (Defendant). The parties have consented to 18 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 19 record and the briefs filed by the parties, the court GRANTS, in part, Plaintiff’s 20 Motion for Summary Judgment and DENIES Defendant’s Motion for Summary 21 Judgment. 22 JURISDICTION 23 On October 14, 2010, Plaintiff filed an application for supplemental security 24 income (SSI) on behalf her minor daughter, with an alleged disability onset date of 25 September 13, 2009. Tr. 169-174. Plaintiff listed the minor child’s disabling 26 conditions as attention deficit hyperactivity disorder (ADHD) and oppositional 27 defiant behavior. Tr. 204. Plaintiff’s claim was denied initially and on 28 reconsideration. Tr. 96-98, 101-107. Plaintiff then requested a hearing before an ORDER GRANTING PLAINTIFF’S MOTION … - 1 1 2 administrative law judge (ALJ). Tr. 108. On November 21, 2013, ALJ Tom L. Morris held a hearing, at which the 3 minor child and Plaintiff testified. Tr. 34-78. On January 21, 2014, the ALJ issued 4 a decision finding the minor child not disabled. Tr. 19-28. The Appeals Council 5 declined to review the decision. Tr. 1-6. The ALJ’s January 21, 2014, decision 6 became the final decision of the Commissioner, which is appealable to the district 7 court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review 8 on August 24, 2015. ECF No. 1, 4. 9 10 STATEMENT OF FACTS The facts have been presented in the administrative hearing transcript, the 11 ALJ’s decision, and the briefs of the parties and thus, they are only briefly 12 summarized here. At the time of application, the minor child was eleven years old. 13 Tr. 169. She was in the fifth grade and was not working. Tr. 194-199, 206. 14 15 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 16 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 17 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 18 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 19 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 20 not supported by substantial evidence or if it is based on legal error. Tackett v. 21 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 22 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 23 another way, substantial evidence is such relevant evidence as a reasonable mind 24 might accept as adequate to support a conclusion. Richardson v. Perales, 402 25 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 26 interpretation, the court may not substitute its judgment for that of the ALJ. 27 Tackett, 180 F.3d at 1097. Nevertheless, a decision supported by substantial 28 evidence will be set aside if the proper legal standards were not applied in ORDER GRANTING PLAINTIFF’S MOTION … - 2 1 weighing the evidence and making the decision. Brawner v. Secretary of Health 2 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 3 supports the administrative findings, or if conflicting evidence supports a finding 4 of either disability or non-disability, the ALJ’s determination is conclusive. 5 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 6 SEQUENTIAL EVALUATION PROCESS 7 To qualify for disability benefits, a child under the age of eighteen must 8 have “a medically determinable physical or mental impairment, which results in 9 marked and severe functional limitations, and which can be expected to result in 10 death or which has lasted or can be expected to last for a continuous period of not 11 less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C)(i). The Social Security 12 Administration has enacted a three step sequential analysis to determine whether a 13 child is eligible for SSI benefits on the basis of a disability. 20 C.F.R. § 14 416.924(a). First, the ALJ considers whether the child is engaged in “substantial 15 gainful activity.” 20 C.F.R. § 416.924(b). Second, the ALJ considers whether the 16 child has a “medically determinable impairment that is severe,” which is defined as 17 a slight abnormality or a combination of slight abnormalities that causes more than 18 minimal functional limitations. 20 C.F.R. § 416.924(c). Finally, if the ALJ finds a 19 severe impairment, he must then consider whether the impairment “medically 20 equals” or “functionally equals” a disability listed in the regulatory “Listing of 21 Impairments.” 20 C.F.R. § 416.924(d). An impairment is functionally equivalent 22 to a listed impairment if it results in marked limitations in two areas of functioning 23 or in extreme limitations in one area of functioning. 20 C.F.R. § 416.926a(a). An 24 impairment is a “marked limitation” if it “seriously interferes with [a person’s] 25 ability to independently initiate, sustain, or complete activities.” 20 C.F.R. § 26 416.926a(e)(2)(i). An “extreme limitation” is defined as a limitation that 27 “interferes very seriously with [a person’s] ability to independently initiate, 28 sustain, or complete activities.” 20 C.F.R. § 416.926a(e)(3)(i). ORDER GRANTING PLAINTIFF’S MOTION … - 3 1 In determining whether an impairment functionally equals a listing, the ALJ 2 assesses the child’s functioning in six domains in terms of: (1) her ability to 3 acquire and use information; (2) her ability to attend and complete tasks; (3) her 4 ability to interact and relate with others; (4) her ability to move about and 5 manipulate objects; (5) her ability to care for herself, and (6) her general health and 6 physical well-being. 20 C.F.R. § 416.926a(b)(1). 7 ALJ’S FINDINGS 8 At step one of the sequential evaluation process, the ALJ found that the 9 minor child had not engaged in substantial gainful activity since October 14, 2010, 10 the date of application. Tr. 22. At step two, the ALJ found that the minor child 11 suffered from the following medically determinable impairments: autistic 12 disorders, attention deficit disorder/ADHD, and anxiety disorder. Id. However, 13 the ALJ found that none of the impairments caused more than minimal functional 14 limitations; therefore, the minor child did not have an impairment or combination 15 of impairments that were severe. Id. Therefore, the ALJ ended his analysis at step 16 two and did not proceed to a step three. Tr. 22-28. The ALJ concluded that the 17 minor child had not been disabled, as defined in the Social Security Act, at any 18 time since October 14, 2010, the date of application, through January 21, 2014, the 19 date of the ALJ’s decision. Tr. 28. 20 21 ISSUES The question presented is whether substantial evidence supports the ALJ’s 22 decision denying benefits and, if so, whether that decision is based on proper legal 23 standards. Plaintiff contends that the ALJ erred at step two by finding that the 24 minor child’s impairments were not severe. 25 DISCUSSION 26 Plaintiff challenges the ALJ’s determination that the minor child did not 27 28 have a severe impairment. ECF No. 15 at 12-19. Step-two of the sequential evaluation process requires the ALJ to determine ORDER GRANTING PLAINTIFF’S MOTION … - 4 1 whether or not the claimant “has a medically severe impairment or combination of 2 impairments.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation 3 omitted); 20 C.F.R. § 416.924(c). “An impairment or combination of impairments 4 can be found ‘not severe’ only if the evidence establishes a slight abnormality that 5 has ‘no more than a minimal effect on an individual[’]s ability to work.’” Id. at 6 1290 (quoting Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) (adopting 7 S.S.R. 85-28)). The step-two analysis is “a de minimis screening device to dispose 8 of groundless claims.” Smolen, 80 F.3d at 1290. 9 Plaintiff bears the burden to establish the existence of a severe impairment. 10 See Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998) (citing Roberts v. Shalala, 11 66 F.3d 179, 182 (9th Cir. 1995)). Despite the burden being on the claimant, an 12 ALJ may find that a claimant lacks a medically severe impairment or combination 13 of impairments only when the ALJ’s conclusion is “clearly established by medical 14 evidence.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 15 Here, Plaintiff argues that the ALJ erred by relying on the minor child’s 16 unreliable statements, by failing to consider the evidence as a whole, and by failing 17 to properly weigh the opinions of examining and treating providers. ECF No. 15 at 18 12-19. 19 A. 20 Minor Child’s Statements In his step two determination, the ALJ relied on the minor child’s assertions 21 during clinical interviews that she did not have any problems in school except 22 boredom, she had no problems waiting her turn, she did not interrupt or talk too 23 much, she did not avoid tasks, she did not fail to give close attention to tasks, she 24 was able to listen when spoken to, she did not lose items necessary for tasks, and 25 she was not distracted by extraneous stimuli. Tr. 23, 25, 362, 606. Despite finding 26 the minor child not credible, Tr. 23, the ALJ relied on her statements to support a 27 denial of benefits. Additionally, the minor child’s treating counselor repeatedly 28 stated that she lacked insight and was willing to lie if it helped her meet her goals, ORDER GRANTING PLAINTIFF’S MOTION … - 5 1 such as getting out of something she did not want to do. Tr. 394-424, 429, 438. 2 The ALJ may find a claimant lacks a medically severe impairment only when the 3 ALJ’s conclusion is “clearly established by medical evidence.” Webb, 433 F.3d at 4 687. A child’s unreliable statements to clinicians is not sufficient to meet the 5 standard of “clearly established by medical evidence.” Therefore, this is not a 6 legally sufficient reason to find the minor child lacked a severe impairment at step 7 two. 8 B. 9 Record as a Whole Plaintiff argues that the ALJ failed to consider the record as a whole and 10 instead cherry picked evidence to support his determination while ignoring 11 evidence in the record supporting a favorable step two determination. ECF No. 15 12 at 13-15. 13 In his decision, the ALJ summarized the medical evidence chronologically. 14 Tr. 23-25. However, the summary appears to exclude several observations made 15 by medical professionals supporting the notion that the minor child’s mental health 16 impairments cause more than a slight abnormality that would have more than a 17 minimal effect on the child’s abilities: the child does not appear to feel guilt for 18 lying and appears to feel lying is justified if she doesn’t like something, Tr. 394, 19 396, 398, 400, 402, 406, 410, 412, 414, 416, 418, 420, 422, 429, 525, 573, 580, 20 588, 590, 592; the child does not appear to learn from past mistakes, Tr. 400, 402, 21 404, 406, 408, 410, 412, 414, 416, 418, 420, 429, 554, 588, 592; the child is 22 obsessive about her interest in Pokeman, Tr. 422, 465, 510, 514, 517, 555, 564- 23 565, 575; and the child does not understand social cues, Tr. 424. The ALJ also 24 failed to mention the child’s performance on the Autism Diagnostic Observation 25 Schedule (ADOS), module 3, in which the child scored within the autism range in 26 the areas of communication and reciprocal social interactions. Tr. 465-466. 27 Furthermore, the ALJ failed to discuss the accommodations the school provided 28 through the 504 plans and the Individuated Education Program (IEP) report. See ORDER GRANTING PLAINTIFF’S MOTION … - 6 1 20 C.F.R. § 416.924a(b)(7)(iii)-(iv) and S.S.R. 09-2p (the ALJ is required to 2 consider any IEP reports, 504 plans, and accommodations provided by a child’s 3 school). 4 Here, the Court recognizes that the ALJ is not required to discuss each piece 5 of evidence, such as evidence that is neither significant nor probative. Howard ex 6 rel. Wolf v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). However, he is 7 required to consider the record as a whole; this includes providers’ observations, 8 objective medical testing, IEP reports, and 504 plans. S.S.R. 09-2p. A review of 9 the record as a whole compared to the ALJ’s summary of the record illustrates that 10 the ALJ failed to consider probative evidence that supported the conclusion that 11 the minor child suffered from severe impairments. Therefore, there is not 12 substantial evidence that the ALJ’s conclusion is “clearly established by medical 13 evidence,” as required by Webb. Therefore, the case is remanded for additional 14 proceedings. The ALJ is instructed to consider the record as a whole and make a 15 new step two determination that is supported by substantial evidence. 16 C. 17 Medical Opinions Plaintiff challenges the weight provided to the opinions of Diane Liebe, 18 M.D., George Petzinger, M.D., Georgia Ramos-Brown, MSW, Jay Toews, Ed.D., 19 and Michael L. Brown, Ph.D. ECF No. 15 at 15-20. The ALJ gave “little weight” 20 to the opinions of Dr. Liebe, Dr. Petzinger, and Ms. Ramos-Brown because he 21 found the opinions to be inconsistent with the record. Tr. 26-27. 22 The Court has remanded this case for the ALJ to make a new step two 23 determination and properly consider ADOS testing performed by the office of Dr. 24 Liebe, clinical observations made by Dr. Liebe and Ms. Ramos-Brown, and IEP 25 reports and 504 plans created by the minor child’s school. Upon a proper 26 evaluation of the record as a whole, the inconsistencies noted by the ALJ may no 27 longer be present. On remand, the ALJ is instructed to evaluate and weigh all 28 medical opinions in the record. ORDER GRANTING PLAINTIFF’S MOTION … - 7 1 REMEDY 2 The decision whether to remand for further proceedings or reverse and 3 award benefits is within the discretion of the district court. McAllister v. Sullivan, 4 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 5 where “no useful purpose would be served by further administrative proceedings, 6 or where the record has been thoroughly developed,” Varney v. Secretary of Health 7 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 8 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 9 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 10 (noting that a district court may abuse its discretion not to remand for benefits 11 when all of these conditions are met). This policy is based on the “need to 12 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 13 outstanding issues that must be resolved before a determination can be made, and it 14 is not clear from the record that the ALJ would be required to find a claimant 15 disabled if all the evidence were properly evaluated, remand is appropriate. See 16 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 17 F.3d 1172, 1179-80 (9th Cir. 2000). 18 In this case, it is not clear from the record that the ALJ would be required to 19 find the minor child disabled if all the evidence were properly evaluated. Further 20 proceedings are necessary for the ALJ to make a new step two determination. In 21 doing so, the ALJ is instructed to address the minor child’s credibility, consider the 22 record as a whole, and weigh medical opinions. The ALJ is further instructed to 23 supplement the record with any outstanding medical evidence, standardized tests, 24 504 plans, IEP reports, and transcripts. Once the record is supplemented and 25 complete, the ALJ is instructed to call a medical expert who specializes in the field 26 of medicine appropriate to the minor child’s impairments to testify at a hearing. 27 28 CONCLUSION Accordingly, IT IS ORDERED: ORDER GRANTING PLAINTIFF’S MOTION … - 8 1 2 3 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is 4 GRANTED, in part, and the matter is REMANDED to the Commissioner for 5 additional proceedings consistent with this Order. 6 3. Application for attorney fees may be filed by separate motion. 7 The District Court Executive is directed to file this Order and provide a copy 8 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 9 and the file shall be CLOSED. 10 DATED August 1, 2016. 11 12 13 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION … - 9
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