Kinkeade v. Commissioner of Social Security, No. 2:2017cv00170 - Document 19 (E.D. Wash. 2018)
Court Description: ORDER Granting 13 Plaintiff's Motion for Summary Judgment; denying 14 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)
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Kinkeade v. Commissioner of Social Security Doc. 19 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Feb 20, 2018 1 SEAN F. MCAVOY, CLERK 2 3 4 5 6 7 8 9 10 11 12 UNITED STATES DISTRICT COURT 13 EASTERN DISTRICT OF WASHINGTON 14 15 16 RICHARD TODD KINKEADE, Plaintiff, 17 18 19 20 21 v. No.1:17-CV-00170-JTR ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, Defendant. 22 23 BEFORE THE COURT are cross-motions for summary judgment. ECF 24 Nos. 13, 14. Attorney Christopher H. Dellert represents Richard Todd Kinkeade 25 (Plaintiff); Special Assistant United States Attorney Michael S. Howard represents 26 the Commissioner of Social Security (Defendant). The parties have consented to 27 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 28 record and the briefs filed by the parties, the Court GRANTS Plaintiff’s Motion ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 for Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; 2 and REMANDS the matter to the Commissioner for additional proceedings 3 pursuant to 42 U.S.C. § 405(g). 4 JURISDICTION 5 Plaintiff filed applications for Supplemental Security Income (SSI) and 6 Disability Insurance Benefits (DIB) on April 11, 2013, Tr. 231, alleging disability 7 since January 31, 2012, Tr. 188, 190, due to a back condition, general anxiety 8 disorder, bipolar disorder, essential tremor, left leg nerve damage, high blood 9 pressure, agoraphobia, social phobia, and a cholesterol condition, Tr. 235. The 10 applications were denied initially and upon reconsideration. Tr. 145-49, 153-59. 11 Administrative Law Judge (ALJ) Caroline Siderius held a hearing on August 11, 12 2015 and heard testimony from Plaintiff, psychological expert, Thomas McKnight, 13 Ph.D., and vocational expert, Jeffrey Tittelfitz. Tr. 38-92. The ALJ issued an 14 unfavorable decision on September 16, 2015. Tr. 10-22. The Appeals Council 15 denied review on March 20, 2017. Tr. 1-4. The ALJ’s September 16, 2015 16 decision became the final decision of the Commissioner, which is appealable to the 17 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 18 review on May 22, 2017. ECF Nos. 1, 4. STATEMENT OF FACTS 19 The facts of the case are set forth in the administrative hearing transcript, the 20 21 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 22 here. 23 Plaintiff was 48 years old at the alleged date of onset. Tr. 188. He 24 completed three years of college in 1985. Tr. 236. His work history includes the 25 jobs driver/machine operator, manual laborer, and real estate appraiser. Tr. 236, 26 251. Plaintiff reported that he stopped working on October 15, 2012 due to his 27 conditions, but had made changes to his work activities because of his conditions 28 as early as January 1, 2001. Tr. 236. ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 5 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 6 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 7 not supported by substantial evidence or if it is based on legal error. Tackett v. 8 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 9 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 10 another way, substantial evidence is such relevant evidence as a reasonable mind 11 might accept as adequate to support a conclusion. Richardson v. Perales, 402 12 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 13 interpretation, the court may not substitute its judgment for that of the ALJ. 14 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 15 findings, or if conflicting evidence supports a finding of either disability or non- 16 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 17 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 18 evidence will be set aside if the proper legal standards were not applied in 19 weighing the evidence and making the decision. Brawner v. Secretary of Health 20 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 21 22 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 23 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 24 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 25 through four, the burden of proof rests upon the claimant to establish a prima facie 26 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 27 burden is met once the claimant establishes that physical or mental impairments 28 prevent him from engaging in his previous occupations. 20 C.F.R. §§ ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work, 2 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 3 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 4 which the claimant can perform exist in the national economy. Batson v. Comm’r 5 of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant 6 cannot make an adjustment to other work in the national economy, a finding of 7 “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 8 9 10 11 12 ADMINISTRATIVE DECISION On September 16, 2015, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since January 31, 2012, the alleged date of onset. Tr. 12. 13 At step two, the ALJ determined Plaintiff had the following severe 14 impairments: “degenerative disc disease, and mental impairments described as 15 panic disorder and mood disorder.” Tr. 13. 16 At step three, the ALJ found Plaintiff did not have an impairment or 17 combination of impairments that met or medically equaled the severity of one of 18 the listed impairments. Tr. 13. 19 20 21 22 23 24 25 26 27 28 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined he could perform light work with the following limitations: the claimant can lift 20 pounds occasionally and 10 pounds frequently; can sit up to six hours per day; can stand or walk up to four hours per day; would need to be able to change positions once an hour for up to five minutes, with no need to leave the workstation; cannot climb ladders, ropes, or scaffolds; could occasionally climb stairs and ramps; occasionally crawl, kneel, and crouch; no work at unprotected heights; and no operating heavy machinery. The claimant is also limited to simple, repetitive, up to three-step tasks, with no detailed work; could have superficial, brief contact with the general public and co-workers; capable of only ordinary production requirements; would need to work ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 in a low-stress work environment; and would work better with things rather than people. 1 2 3 Tr. 15. The ALJ identified Plaintiff’s past relevant work as landscape laborer and 4 real estate appraiser and concluded that Plaintiff was not able to perform this past 5 relevant work. Tr. 20. 6 At step five, the ALJ determined that, considering Plaintiff’s age, education, 7 work experience and residual functional capacity, and based on the testimony of 8 the vocational expert, there were other jobs that exist in significant numbers in the 9 national economy Plaintiff could perform, including the job of small products 10 assembler II. Tr. 21. The ALJ concluded Plaintiff was not under a disability 11 within the meaning of the Social Security Act at any time from January 31, 2012, 12 through the date of the ALJ’s decision. Tr. 22. 13 ISSUES 14 The question presented is whether substantial evidence supports the ALJ’s 15 decision denying benefits and, if so, whether that decision is based on proper legal 16 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh the 17 medical source opinions and (2) failing to properly address Plaintiff’s symptom 18 statements. 19 20 21 DISCUSSION 1. Medical Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical 22 opinions expressed by examining psychologist John Arnold, Ph.D. and 23 nonexamining psychologist Thomas McKnight, Ph.D. ECF No. 13 at 3-9 24 In weighing medical source opinions, the ALJ should distinguish between 25 three different types of physicians: (1) treating physicians, who actually treat the 26 claimant; (2) examining physicians, who examine but do not treat the claimant; 27 and, (3) nonexamining physicians who neither treat nor examine the claimant. 28 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 weight to the opinion of a treating physician than to the opinion of an examining 2 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 3 should give more weight to the opinion of an examining physician than to the 4 opinion of a nonexamining physician. Id. 5 When an examining physician’s opinion is not contradicted by another 6 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 7 and when an examining physician’s opinion is contradicted by another physician, 8 the ALJ is only required to provide “specific and legitimate reasons” to reject the 9 opinion. Lester, 81 F.3d at 830-31. The specific and legitimate standard can be 10 met by the ALJ setting out a detailed and thorough summary of the facts and 11 conflicting clinical evidence, stating her interpretation thereof, and making 12 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 13 required to do more than offer her conclusions, she “must set forth [her] 14 interpretations and explain why they, rather than the doctors’, are correct.” 15 Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 16 A. John Arnold, Ph.D. 17 On March 13, 2013, Dr. Arnold completed a Psychological/Psychiatric 18 Evaluation form for the Washington Department of Social and Health Services 19 (DSHS). Tr. 577-83. He diagnosed Plaintiff with social phobia, rule out insomnia, 20 panic disorder with agoraphobia, alcohol abuse in sustained full remission, and 21 paranoid personality features. Tr. 577. He provided the following residual 22 functional capacity statement: 23 24 25 26 27 Todd is capable of understanding and carrying out instructions. He can only concentrate for short periods of time. Todd can complete tasks without close supervision and not disrupting others. He would work best in positions that have minimal interaction with others. He can use the bus for transportation. He can recognize hazards and take appropriate precautions. 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 2 Tr. 578. Dr. Arnold evaluated Plaintiff again on January 29, 2015 for DSHS and 3 completed a Psychological/Psychiatric Evaluation form. Tr. 585-89. He 4 diagnosed Plaintiff with alcohol use disorder in full remission, panic disorder with 5 agoraphobia, major depressive disorder, rule out somatoform disorder, and 6 personality disorder with avoidant features. Tr. 586. He opined that Plaintiff had a 7 marked limitation in five basic work activities and a moderate limitation in six 8 basic work activities. Tr. 587. 9 The ALJ gave partial weight to the opinions, stating that he gave significant 10 weight to the objective findings based on his mental examinations, but that “the 11 overall evidence shows a longitudinal picture of lesser limitation than those opined 12 by Dr. Arnold, who did not have a treating relationship with the claimant. Thus 13 the overall record supports lesser limitations, as described in the residual functional 14 limitation, and supported by the overall evidence, as discussed herein.” Tr. 19. 15 This was the end of the ALJ’s discussion weighing Dr. Arnold’s opinions. Id. 16 Dr. Arnold is an examining psychologist; therefore, the ALJ was required 17 provide at least specific and legitimate reasons for rejecting his opinions. Lester, 18 81 F.3d at 830-31. The ALJ’s minimal discussion and simple assertion that “the 19 overall evidence shows a longitudinal picture of lesser limitation than those opined 20 by Dr. Arnold” fails to meet this standard. The ALJ failed to state what opined 21 limitations were found to be inconsistent with the longitudinal record and how 22 these opined limitations were inconsistent with the longitudinal record. The ALJ is 23 required to do more than offer her conclusions, she “must set forth [her] 24 interpretations and explain why they, rather than the doctors’, are correct.” 25 Embrey, 849 F.2d at 421-22. 26 Defendant asserts that Plaintiff failed to actually challenge the weight the 27 ALJ gave Dr. Arnold’s opinion and, instead, Plaintiff simply asserted that Dr. 28 Arnold was entitled to more weight than Dr. McKnight. ECF No. 14 at 7. While ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 Plaintiff’s briefing mainly focused on reasons why Dr. McKnight’s opinion should 2 not have been given controlling weight, Plaintiff did argue that the ALJ’s 3 reasoning for rejecting Dr. Arnold’s opinion failed to meet the specific and 4 legitimate standard. ECF No. 13 at 5. This Court agrees. Therefore, the case is 5 remanded for the ALJ to readdress Dr. Arnold’s opinions. 6 B. Thomas McKnight, Ph.D. 7 Dr. McKnight testified at Plaintiff’s August 11, 2015 hearing. Tr. 42-54. 8 He had reviewed the record through exhibit 20F. Tr. 42. He diagnosed Plaintiff 9 with a mood disorder secondary to medical-related issues that is not additive to the 10 difficulty Plaintiff is having. Tr. 50. He then provided his opinion as to the “B 11 Criteria” of Listing 12.02, stating that objective evidence supported a finding of 12 mild limitation in restriction of activities of daily living, mild difficulty in 13 maintaining social functioning, mild difficulties in mainlining concentration, 14 persistence, and pace, and no episodes of decompensation. Tr. 50-51. Dr. 15 McKnight failed to provide a residual functional capacity opinion at the hearing. 16 Tr. 42-54. The ALJ gave this opinion “great weight” while rejecting the 17 limitations opined by Dr. Arnold, who examined Plaintiff. Tr. 19. 18 The opinion of a non-examining physician cannot by itself constitute 19 substantial evidence that justifies the rejection of the opinion of either an 20 examining physician or a treating physician. Lester, 81 F.3d at 831, citing Pitzer v. 21 Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990). However, the opinion of a non- 22 examining physician may be accepted as substantial evidence if it is supported by 23 other evidence in the record. Andrews, 53 F.3d at 1043; Lester, 81 F.3d at 830-31. 24 The Ninth Circuit has upheld the rejection of an examining or treating physician 25 based, on part, on the testimony of a non-examining medical advisor; but those 26 opinions have also included reasons to reject the opinions of examining and 27 treating physicians that were independent of the non-examining doctor’s opinion. 28 Lester, 81 F.3d at 831, citing Magallanes, 881 F.2d at, 751-55 (reliance on imaging ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 results, contrary reports from examining physicians, and testimony from the 2 claimant that conflicted with treating physician’s opinion); Roberts v. Shalala, 66 3 F.3d 179, 184 (9th Cir. 1995) (rejection of examining psychologist’s functional 4 assessment which conflicted with his own written report and test results). Here, 5 the ALJ’s failure to provide legally sufficient reasons to reject the limitations 6 opined by Dr. Arnold means that Dr. McKnight’s opinion alone is insufficient to 7 support the ALJ’s treatment of Dr. Arnold’s opinions and, as a result, the residual 8 functional capacity determination of the ALJ. Furthermore, Dr. McKnight’s opinion did not address Plaintiff’s residual 9 10 functional capacity and instead focused on Plaintiff’s ratings under the B Criteria 11 of Listing 12.02. “The adjudicator must remember that the limitations identified in 12 the ‘paragraph B’ and ‘paragraph C’ criteria are not an RFC [residual functional 13 capacity] assessment but are used to rate the severity of mental impairment(s) at 14 steps 2 and 3 of the sequential evaluation process.” S.S.R. 96-8p. Therefore, Dr. 15 McKnight’s opinion is only applicable to steps two and three and not to the 16 residual functional capacity determination. Therefore, upon remand, the ALJ will readdress the opinion of Dr. 17 18 McKnight in terms of S.S.R. 96-8p and call a new psychological expert to testify 19 regarding Plaintiff’s mental residual functional capacity. 20 2. 21 22 Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s finding that his symptom statements were less than fully credible. ECF No. 13 at 9-13. 23 It is generally the province of the ALJ to make credibility determinations, 24 Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific 25 cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 26 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 27 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 28 1273, 1281 (9th Cir. 1996); Lester, 81 F.3d at 834. “General findings are ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 insufficient: rather the ALJ must identify what testimony is not credible and what 2 evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834. The ALJ found Plaintiff’ symptom statements to be less than fully credible 3 4 concerning the intensity, persistence, and limiting effects of his symptoms. Tr. 16. 5 The ALJ reasoned that Plaintiff was less than fully credible because (1) his 6 symptom statements were not supported by the objective medical evidence (2) his 7 symptom statements were inconsistent with his reported activities, and (3) his 8 symptom statements were not supported by his conservative treatment. Tr. 16- 9 18. 10 The evaluation of a claimant’s symptom statements and their resulting 11 limitations relies, in part, on the assessment of the medical evidence. See 20 12 C.F.R. §§ 404.1529(c), 416.929(c); S.S.R. 16-3p. Therefore, in light of the case 13 being remanded for the ALJ to address the medical source opinions in the file, a 14 new assessment of Plaintiff’s subjective symptom statements is necessary. 15 3. 16 Step Five Plaintiff appeared to make a step five challenge, asserting that “[t]he ALJ 17 also erred in failing to obtain an explanation for the inconsistency between the 18 vocational expert’s testimony that Plaintiff could perform the job of small parts 19 assembler and the limitation to ‘simple, repetitive, up to three-step tasks with no 20 detailed work.’” ECF No. 13 at 3. Plaintiff failed to address this argument in 21 detail in the remainder of his brief. However, since the case is being remanded for 22 the ALJ to readdress the medical source statements and Plaintiff’s symptom 23 statements, this will result in new step four and five determinations. Thus, 24 addressing the issue. Additionally, as part of the remand, the ALJ will call a 25 vocational expert to testify at a new hearing. 26 REMEDY 27 The decision whether to remand for further proceedings or reverse and 28 award benefits is within the discretion of the district court. McAllister v. Sullivan, ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 2 where “no useful purpose would be served by further administrative proceedings, 3 or where the record has been thoroughly developed,” Varney v. Secretary of Health 4 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 5 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 6 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 7 (noting that a district court may abuse its discretion not to remand for benefits 8 when all of these conditions are met). This policy is based on the “need to 9 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 10 outstanding issues that must be resolved before a determination can be made, and it 11 is not clear from the record that the ALJ would be required to find a claimant 12 disabled if all the evidence were properly evaluated, remand is appropriate. See 13 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 14 F.3d 1172, 1179-80 (9th Cir. 2000). 15 In this case, it is not clear from the record that the ALJ would be required to 16 find Plaintiff disabled if all the evidence were properly evaluated. Further 17 proceedings are necessary for the ALJ to address the medical source opinions in 18 the file and Plaintiff’s symptom statements. Additionally, the ALJ will supplement 19 the record with any outstanding evidence and call a medical, a psychological, and a 20 vocational expert to testify at the hearing. CONCLUSION 21 22 Accordingly, IT IS ORDERED: 23 1. 24 25 Defendant’s Motion for Summary Judgment, ECF No. 14, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is 26 GRANTED, and the matter is REMANDED to the Commissioner for additional 27 proceedings consistent with this Order. 28 3. Application for attorney fees may be filed by separate motion. ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 The District Court Executive is directed to file this Order and provide a copy 2 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 3 and the file shall be CLOSED. 4 DATED February 20, 2018. 5 6 7 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 12
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