Birueta v. Commissioner of Social Security, No. 1:2017cv03209 - Document 20 (E.D. Wash. 2018)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT granting in part (ECF No. 14 and denying ECF No. 18 Defendant's Motion for Summary Judgment. File closed. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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22 Tr. 25. 23 In his rejection of the opinion, the ALJ relied heavily on the step two finding 24 that Plaintiff had no medically determinable spinal impairment. Tr. 25. Since the 25 case is being remanded for the ALJ to address the step two determination, 26 including Plaintiff’s spinal impairments, see supra, the ALJ will readdress Dr. 27 Anderson’s opinion on remand. Additionally, the ALJ failed to address Dr. 28 Anderson’s statement regarding Plaintiff’s ability to work full time in the March 9, ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 2015 treatment record. Upon remand, the ALJ will address this as part of Dr. 2 Anderson’s opinion. 3 B. William R. Drenguis, M.D. 4 As discussed above, the ALJ’s rejection of Dr. Drenguis’ opinion was 5 premised on the determination that Plaintiff’s right knee imaging reports were 6 unremarkable and the alleged right knee impairment was not medically 7 determinable. Considering this determination was not supported by substantial 8 evidence, see supra, the ALJ’s rejection of any portion of this opinion was an 9 error. Therefore, the ALJ will readdress Dr. Drenguis’ opinion in full upon 10 remand. 11 C. 12 On May 31, 2014, Dr. Haloman completed a consultative psychological Elsa K. Haloman, M.D. 13 evaluation of Plaintiff. Tr. 537-43. She opined that Plaintiff “cannot complete a 14 normal workday or workweek without interruptions from a psychiatric condition. 15 Though he blames a lot of his physical symptoms on diabetes, I gather that he also 16 has a significant amount of anxiety that leads to panic attacks with psychical 17 symptoms,” and that “[h]e is not able to deal with the usual stress encountered in 18 the workplace.” Tr. 542-43. Dr. Haloman makes it clear that “[i]t is difficult to 19 discern whether these symptoms are related to blood glucose or anxiety,” and that 20 “[t]here are psychological factors that seem to be interfering with his compliance 21 to diabetes management.” Tr. 543. 22 The ALJ rejected Dr. Haloman’s opinion because (1) it is not supported by 23 objective evidence, (2) it is not consistent with Plaintiff’s demonstrated 24 functioning/reported activities, and (3) it relies on Plaintiff’s self-reports. Tr. 26. 25 The ALJ’s first two reasons for rejecting the opinion are mere conclusion 26 that she failed to support with specific findings. See Embrey, 849 F.2d at 421-22 27 (The ALJ is required to do more than offer her conclusions, she “must set forth 28 [her] interpretations and explain why they, rather than the doctors’, are correct.”). ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 The ALJ failed to provide any reference to the record of objective findings 2 inconsistent with the opinion and she failed to provide any functional ability or 3 reported activity that was inconsistent with the opinion. The third reason, that the opinion was based on Plaintiff’s self-reports, is 4 5 more firmly established by the ALJ. The ALJ found that Dr. Haloman relied on 6 Plaintiff’s self-reports because she stated that she did not witness any interruptions 7 or symptoms during her evaluation and that Plaintiff reported the inability to 8 tolerate stress upon his return to work. Tr. 26. However, what the ALJ appears to 9 overlook in her conclusion is the difficulty of identifying which symptoms are 10 attributed to Plaintiff’s mental health impairments and which symptoms are 11 attributed to his diabetes. Dr. Haloman was only provided seven treatment reports 12 in forming her opinion, Tr. 537, and expressed difficulty in parsing out limitations 13 resulting from Plaintiff’s diabetes and his mental health impairments, Tr. 543. A 14 result of rejecting Dr. Haloman’s opinion was that the ALJ found no severe mental 15 health impairments at step two. Tr. 17-18. The ALJ failed to call any medical or 16 psychological experts to assist in discerning the diabetes and mental health 17 impairment and resulting limitations. See Schmidt v. Sullivan, 914 F.2d 117, 118 18 (7th Cir. 1990) (the ALJ “must be careful not to succumb to the temptation to play 19 doctor”). Upon remand, the ALJ will call a medical expert and a psychological 20 expert to address Plaintiff’s severe impairments at step two and limitations in the 21 residual functional capacity determination. 22 3. 23 Plaintiff’s Symptom Statements Plaintiff asserts the ALJ erred by finding Plaintiff’s symptom statements 24 were not entirely consistent with the medical evidence and other evidence in the 25 record. ECF No. 14 at 17-21. 26 It is generally the province of the ALJ to make credibility determinations, 27 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 28 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 2 testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 1281; 3 Lester, 81 F.3d at 834. “General findings are insufficient: rather the ALJ must 4 identify what testimony is not credible and what evidence undermines the 5 claimant’s complaints.” Lester, 81 F.3d at 834. 6 The evaluation of a claimant’s symptom statements and their resulting 7 limitations relies, in part, on the assessment of the medical evidence. See 20 8 C.F.R. §§ 404.1529(c), 416.929(c); S.S.R. 16-3p. Therefore, in light of the case 9 being remanded for the ALJ to readdress step two and the medical source opinions 10 in the file, a new assessment of Plaintiff’s subjective symptom statements will be 11 necessary. 12 REMEDY 13 The decision whether to remand for further proceedings or reverse and 14 award benefits is within the discretion of the district court. McAllister v. Sullivan, 15 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 16 where “no useful purpose would be served by further administrative proceedings, 17 or where the record has been thoroughly developed,” Varney v. Secretary of Health 18 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 19 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 20 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 21 (noting that a district court may abuse its discretion not to remand for benefits 22 when all of these conditions are met). This policy is based on the “need to 23 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 24 outstanding issues that must be resolved before a determination can be made, and it 25 is not clear from the record that the ALJ would be required to find a claimant 26 disabled if all the evidence were properly evaluated, remand is appropriate. See 27 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 28 F.3d 1172, 1179-80 (9th Cir. 2000). ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 In this case, it is not clear from the record that the ALJ would be required to 2 find Plaintiff disabled if all the evidence were properly evaluated. Further 3 proceedings are necessary for the ALJ to make a new step two determination, 4 address the medical source opinions in the file, and address Plaintiff’s symptom 5 statements. Additionally, the ALJ will supplement the record with any outstanding 6 evidence and call a medical expert (or experts, if necessary, to cover both the 7 musculoskeletal and endocrine body systems), a psychological expert, and a 8 vocational expert to testify at a supplemental hearing. CONCLUSION 9 10 Accordingly, IT IS ORDERED: 11 1. 12 13 Defendant’s Motion for Summary Judgment, ECF No. 18, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 14 GRANTED, in part, and the matter is REMANDED to the Commissioner for 15 additional proceedings consistent with this Order. 16 3. Application for attorney fees may be filed by separate motion. 17 The District Court Executive is directed to file this Order and provide a copy 18 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 19 and the file shall be CLOSED. 20 DATED December 3, 2018. 21 22 23 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 14
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