Neff v. Commissioner of Social Security, No. 1:2018cv03014 - Document 21 (E.D. Wash. 2018)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 19 ) AND GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, IN PART (ECF No. 14 ). File closed. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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Neff v. Commissioner of Social Security Doc. 21 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Nov 29, 2018 3 SEAN F. MCAVOY, CLERK 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 JOSHUA N., 10 No. 1:18-CV-03014-JTR Plaintiff, 11 v. 12 13 14 COMMISSIONER OF SOCIAL SECURITY, 15 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, IN PART Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 Nos. 14, 19. Attorney D. James Tree represents Joshua N. (Plaintiff); Special 19 Assistant United States Attorney Thomas M. Elsberry represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 22 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 23 Summary Judgment and GRANTS, in part, Plaintiff’s Motion for Summary 24 Judgment; and REMANDS the matter to the Commissioner for additional 25 proceedings pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c). 26 PROCEDURAL HISTORY 27 Plaintiff filed an application for Disability Insurance Benefits (DIB) on 28 January 4, 2011, Tr. 70, alleging disability since December 18, 2010, Tr. 150, due ORDER - 1 Dockets.Justia.com 1 to a broken left tibia, leg surgery in December 2010, a dislocated left ankle, a torn 2 left Achilles heel, lower back pain, carpal tunnel, chronic headaches, a swollen 3 liver, dyslexia, asthma, and a broken left leg, Tr. 182. The application was denied 4 initially and upon reconsideration. Tr. 94-96, 98-99. Administrative Law Judge 5 (ALJ) Laura Valente held a hearing on February 13, 2013 and heard testimony 6 from Plaintiff and vocational expert Kimberly Mullinax. Tr. 39-69. The ALJ 7 issued an unfavorable decision on April 26, 2013. Tr. 18-38. The Appeals 8 Council denied review on June 27, 2013, Tr. 11-16, and Plaintiff requested judicial 9 review from this Court on June 25, 2014, Tr. 716-18, after receiving an extension 10 11 of time from the Appeals Council, Tr. 6, 9, 806, 810. While the request for an extension of time to file for judicial review was 12 pending before the Appeals Council, Plaintiff filed a subsequent DIB application 13 on April 3, 2014, Tr. 721, alleging disability since April 27, 2013, Tr. 939. This 14 application was reviewed, and on October 6, 2014 Plaintiff was found disabled 15 with an onset date of June 28, 2013. Tr. 739. 16 17 18 On May 11, 2015, this Court remanded the 2011 DIB application for additional proceedings. Tr. 741-60, 815. On June 30, 2015, the Appeals Council notified Plaintiff that they were 19 reopening the 2014 DIB application for two reasons: 1) the determination granting 20 benefits provided an inaccurate date of onset; and 2) the evidence received 21 subsequent to the favorable determination contradicted the manipulation 22 limitations in the residual functional capacity determination that was relied upon in 23 granting benefits. Tr. 836-38. 24 On September 25, 2015, the Appeals Council issued a notice of remand and 25 gave the ALJ three instructions: 1) vacate the ALJ decision in the 2011 DIB 26 application; 2) consolidate the 2011 DIB application and the 2014 DIB application 27 into a single electronic record; and 3) issue a new determination on the 28 consolidated claims. Tr. 767. The ALJ held a hearing on March 26, 2017 and ORDER - 2 1 heard testimony from Plaintiff and vocational expert Mark Harrington. Tr. 655-83. 2 The ALJ issued an unfavorable decision on November 20, 2017. Tr. 620-35. The 3 Appeals Council did not assume jurisdiction within the prescribed period so the 4 ALJ’s November 20, 2017 decision became the final decision of the 5 Commissioner. 20 C.F.R. § 404.984(a). Plaintiff filed this action on January 30, 6 2018. ECF Nos. 1, 4. JURISDICTION 7 Final determinations of the Commissioner are appealable to the district court 8 9 pursuant to 42 U.S.C. § 405(g). STATEMENT OF FACTS 10 The facts of the case are set forth in the administrative hearing transcript, the 11 12 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 13 here. 14 Plaintiff was 33 years old at the alleged date of onset. Tr. 150. He 15 completed high school in 1996. Tr. 183. His reported work history includes the 16 jobs of janitor, retail loss prevention worker, painter, security guard, and some self- 17 employment in security. Tr. 170, 184. Plaintiff reported that he stopped working 18 on December 18, 2010 due to his conditions. Tr. 183. STANDARD OF REVIEW 19 20 The ALJ is responsible for determining credibility, resolving conflicts in 21 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 22 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 23 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 24 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 25 not supported by substantial evidence or if it is based on legal error. Tackett v. 26 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 27 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 28 another way, substantial evidence is such relevant evidence as a reasonable mind ORDER - 3 1 might accept as adequate to support a conclusion. Richardson v. Perales, 402 2 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 3 interpretation, the court may not substitute its judgment for that of the ALJ. 4 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 5 findings, or if conflicting evidence supports a finding of either disability or non- 6 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 7 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 8 evidence will be set aside if the proper legal standards were not applied in 9 weighing the evidence and making the decision. Brawner v. Secretary of Health 10 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). SEQUENTIAL EVALUATION PROCESS 11 12 The Commissioner has established a five-step sequential evaluation process 13 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); see Bowen 14 v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of 15 proof rests upon the claimant to establish a prima facie case of entitlement to 16 disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the 17 claimant establishes that physical or mental impairments prevent him from 18 engaging in his previous occupations. 20 C.F.R. § 404.1520(a)(4). If the claimant 19 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 20 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 21 other work, and (2) specific jobs which the claimant can perform exist in the 22 national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 23 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the 24 national economy, a finding of “disabled” is made. 20 C.F.R. § 404.1520(a)(4)(v). 25 ADMINISTRATIVE DECISION 26 On November 20, 2017, the ALJ issued a decision finding Plaintiff was not 27 disabled as defined in the Social Security Act. The ALJ identified the relevant 28 time period as October 18, 2010 to April 26, 2013, stating that Plaintiff was ORDER - 4 1 granted disability benefits on October 27, 2014 and was currently in pay status. Tr. 2 620. 3 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 4 activity from December 18, 2010, the alleged date of onset through June 30, 2015, 5 the date last insured. Tr. 623. 6 At step two, the ALJ determined Plaintiff had the following severe 7 impairments through the date last insured: fractures of the left tibia/fibula; 8 affective disorder; anxiety disorder; and pain disorder. Tr. 623. 9 At step three, the ALJ found Plaintiff did not have an impairment or 10 combination of impairments that met or medically equaled the severity of one of 11 the listed impairments through the date last insured. Tr. 624. 12 At step four, the ALJ assessed Plaintiff’s residual function capacity and 13 determined that from December 18, 2010 to April 26, 2013 he could perform a 14 range of sedentary work with the following limitations: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This individual can lift and carry 20 lbs. occasionally and 10 lbs. frequently, can stand and/or walk for 2 hours total in an 8-hour day, and can sit for 1 hour at a time, after which he needs to stand-stretch for a few minutes but can continue working while in the standing position. Then he must sit again for 1 hour and so forth. He can sit for 6 hours total in an 8 hour clay. He can do no operating of foot pedals. He can occasionally push-pull with the left lower extremity such as for operation of foot pedal. He can perform all postures occasionally except he can do no climbing of ladders, ropes or scaffolds. He can do no kneeling, crouching or crawling. He must avoid all exposure to vibrations, must avoid concentrated exposures to extreme cold, heat, wetness, humidity and hazards. This individual has sufficient concentration to understand, remember and carry out simple repetitive tasks. He can maintain attention and concentration in 2-hour increments with usual and customary breaks throughout an 8-hour work day. He can work superficially and occasionally with the general public. He can work in proximity to an unlimited number of co-workers but should not work in coordination with them. ORDER - 5 1 Tr. 625. The ALJ identified Plaintiff’s past relevant work as a control area security 2 guard, a loss prevention worker, a window assembler, a hotel guest clerk, and a fire 3 watch/fire inspector and concluded that Plaintiff was not able to perform this past 4 relevant work during the relevant time period. Tr. 632. At step five, the ALJ determined that, considering Plaintiff’s age, education, 5 6 work experience and residual functional capacity, and based on the testimony of 7 the vocational expert, there were other jobs that exist in significant numbers in the 8 national economy Plaintiff could perform through the date last insured, including 9 the jobs of touch up screener, table worker, and order clerk. Tr. 633. The ALJ 10 concluded Plaintiff was not under a disability within the meaning of the Social 11 Security Act at any time from December 18, 2010 to April 26, 2013. Tr. 634. ISSUES 12 13 The parties agree that the ALJ’s determination is not supported by 14 substantial evidence or based on proper legal standards. ECF Nos. 14, 20. The 15 questions presented are (1) what period of time is before the Court and (2) whether 16 the ALJ’s determination should be remanded for additional proceedings or for an 17 immediate award of benefits. DISCUSSION1 18 19 20 A. Time Period The Appeals Council instructed the ALJ on remand to vacate her prior 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER - 6 1 decision in the 2011 DIB application, consolidate the 2011 DIB application and the 2 2014 DIB application into a single electronic record, and issue a new determination 3 on the consolidated claims. Tr. 767. Plaintiff argues that the ALJ chose not to 4 disturb the October 27, 2014 granting of benefits in the 2014 DIB application and 5 limited her review to the period at issue in the 2011 DIB application. ECF No. 20 6 at 3. He further asserts that the 2014 DIB application is outside of this Court’s 7 jurisdiction as Plaintiff appealed the November 20, 2017 decision, which is the 8 final decision of the Commissioner for only December 18, 2010 to April 26, 2013. 9 Id. Defendant argues that (1) the consolidated time period for both claims was 10 before the ALJ, (2) the ALJ erred in concluding that the Agency had granted 11 benefits in the 2014 DIB claim on October 27, 2014 and limited her review to 12 October 18, 2010 to April 26, 2013, and (3) this error requires a remand to address 13 evidence that went unaddressed by limiting the time period considered. ECF No. 14 19. 15 In reviewing Plaintiff’s complaint, it is clear that he is appealing the final 16 determination of the Commissioner dated November 20, 2017. ECF No. 4; Tr. 17 620-35. This ALJ decision addresses the time period of both the 2011 DIB 18 application and the 2014 DIB application. In her summary of the jurisdictional and 19 procedural history of the claim, the ALJ concluded that Plaintiff was in pay status 20 due to the 2014 DIB application being granted in an October 27, 2014 decision.2 21 Tr. 620. She defined the relevant time period as the alleged onset date, October 18, 22 2010, through the date of her prior decision, April 26, 2013. Id. However, 23 throughout the five-step sequential evaluation process, the ALJ oscillates between 24 addressing the time period of the consolidated claims (from the alleged onset date 25 of October 18, 2010 through the date last insured of June 30, 2015) and the time 26 27 28 2 Benefits were actually granted in an October 6, 2014 determination with an onset date of June 28, 2013. Tr. 767. ORDER - 7 1 period of only the 2011 DIB application (from the alleged onset date, October 18, 2 2010, through the date of the ALJ’s prior decision, April 26, 2013). Tr. 624-34. In 3 step one, the ALJ addressed the time period of consolidated claims, finding 4 Plaintiff had not engaged in substantial gainful activities from the onset date to the 5 date last insured. Tr. 623. At step two, the ALJ addressed the time period of the 6 consolidated claims, finding Plaintiff had severe impairments from the date of 7 onset through the date last insured. Id. At step three, the ALJ addressed the time 8 period of the consolidated claims, finding Plaintiff did not meet or equal a listing 9 from the date of onset through the date last insured. Tr. 624. In making the 10 residual functional capacity determination, the ALJ addressed the period of time 11 for only the 2011 DIB application, prescribing limitations that were present from 12 the onset date to April 26, 2013. Tr. 625. At step four, the ALJ addressed the time 13 period for only the 2011 DIB application, finding Plaintiff unable to perform any 14 past relevant work during the “relevant time period,” which she had previously 15 defined as from onset through April 26, 2013. Tr. 632. At step five, the ALJ 16 addressed the time period of the consolidated claims, finding that there were jobs 17 in the national economy Plaintiff could have performed from the onset date 18 through the date last insured. Tr. 633. In the ALJ’s concluding paragraph, the ALJ 19 found that Plaintiff was not disabled from December 18, 2010 to April 26, 2013. 20 Tr. 634. 21 The ALJ made findings at steps one, two, three, and five that address the 22 time period covered by the consolidated claims. Therefore, Plaintiff’s argument 23 that the ALJ decided not to disturb the granting of Plaintiff’s 2014 DIB application 24 is unsupported. Furthermore, Plaintiff’s assertion that the ALJ meant to affirm the 25 Agency’s prior determination regarding Plaintiff’s 2014 DIB application contains 26 two fallacies. First, the agency’s prior determination in Plaintiff’s 2014 DIB claim 27 was a denial of benefits and a finding that disability was not supported by 28 substantial evidence, Tr. 837-38, and not, as Plaintiff asserts, the initial ORDER - 8 1 determination that his residual functional capacity would preclude work, ECF No. 2 20 at 5. Second, such an assertion creates a procedural gap between the ALJ’s 3 defined relevant time period of October 18, 2010 to April 26, 2013 and the June 4 28, 2013 onset date for the granting of the 2014 DIB application. Plaintiff additionally asserts that this Court’s order in his previous request 5 6 for judicial review, Case 1:14-cv-03090-VEB, precludes this Court from 7 considering the 2014 DIB application and the granting of benefits on October 6, 8 2014. ECF No. 20 at 3 (citing Tr. 758). However, the Court’s order in the prior 9 request for review was a sentence four remand meaning the Court did not retain 10 jurisdiction pending further administrative proceedings. Tr. 758-59 (finding that 11 the ALJ’s determination could not be sustained, remanding the case, and closing 12 the file). The Supreme Court has found that the “exclusive methods by which 13 district courts may remand to the Secretary are set forth in sentence four and 14 sentence six of § 405(g).” Shalala v. Schaefer, 509 U.S. 292, 296 (1993). 15 Sentence four remands are final judgments by the district court and orders in 16 sentence six remands allow the district court to retain jurisdiction pending the 17 outcome of additional administrative proceedings. Id. at 297. Each final decision 18 of the Commissioner will be reviewable by separate litigation. Sullivan v. 19 Finkelstein, 496 U.S. 617, 625 (1990). The November 20, 2017 ALJ decision is a 20 new and unique final determination of the Commissioner, which addressed the 21 period of time from the date of onset through the Plaintiff’s date last insured. 22 Therefore, the Court has jurisdiction over the November 20, 2017 decision. In conclusion, the period of time before this Court is from the alleged date of 23 24 onset through the date last insured. The ALJ erred by failing to make a 25 determination at all five steps of the sequential evaluation process that addressed 26 this time period. 27 B. 28 REMEDY Plaintiff argues that this Court should look to the medical evidence in this ORDER - 9 1 case and make a determination that a finding of disability is inevitable and remand 2 for an immediate award of benefits. ECF Nos. 14, 20. Defendant asserts that the 3 ALJ’s error in failing to address the correct period of time necessitates a remand 4 for additional proceedings. ECF No. 19. 5 The decision whether to remand for further proceedings or reverse and 6 award benefits is within the discretion of the district court. McAllister v. Sullivan, 7 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 8 where “no useful purpose would be served by further administrative proceedings, 9 or where the record has been thoroughly developed,” Varney v. Secretary of Health 10 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 11 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 12 (9th Cir. 1990); see also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 13 (noting that a district court may abuse its discretion not to remand for benefits 14 when all of these conditions are met). This policy is based on the “need to 15 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 16 outstanding issues that must be resolved before a determination can be made, and it 17 is not clear from the record that the ALJ would be required to find a claimant 18 disabled if all the evidence were properly evaluated, remand is appropriate. See 19 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 20 F.3d 1172, 1179-80 (9th Cir. 2000). 21 Here, the ALJ made a residual functional capacity determination for the 22 limited time period for October 18, 2010 to April 26, 2013 stating that she only 23 addressed the medical evidence in the file for this period. Tr. 626. However, the 24 ALJ then used this residual functional capacity determination to make a step five 25 determination from October 18, 2010 to the date last insured, June 30, 2015 26 without considering the medical evidence after April 26, 2013. The evidence not 27 considered by the ALJ in forming the residual functional capacity determination 28 includes substantial treatment notes and the opinions of George, Liu, M.D., Tr. ORDER - 10 1 1130-54, C. Donald Williams, M.D., Tr. 1215-40, Kumar Swami, M.D., Tr. 1467- 2 68, and Brady Moss, ARNP, Tr. 1818-19. 3 This is a reviewing Court, and not the trier of fact. Considering a substantial 4 portion of the record was not considered in the ALJ’s formation of the residual 5 functional capacity determination, the proper remedy in this case is to remand for 6 additional proceedings. 7 Upon remand, the case will be assigned to a new ALJ. This ALJ will make 8 a new determination at steps one through five from Plaintiff’s alleged onset date, 9 October 18, 2010, through Plaintiff’s date last insured, June 30, 2015. The ALJ 10 will not incorporate any portions of the any of the prior ALJ determinations due to 11 the amount of evidence these prior determinations failed to consider, but will 12 address the entire record in a de novo hearing. CONCLUSION 13 14 Accordingly, IT IS ORDERED: 15 1. 16 17 Defendant’s Motion for Summary Judgment, ECF No. 19, is GRANTED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 18 GRANTED, in part, and the matter is REMANDED to the Commissioner for 19 additional proceedings consistent with this Order. 20 3. Application for attorney fees may be filed by separate motion. 21 The District Court Executive is directed to file this Order and provide a copy 22 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 23 and the file shall be CLOSED. 24 DATED November 29, 2018. 25 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 26 27 28 ORDER - 11
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