Hutchinson v. Commissioner of Social Security, No. 2:2017cv00411 - Document 17 (E.D. Wash. 2018)

Court Description: ORDER GRANTING PLAINTIFFS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 10 is GRANTED. This case is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. Defendants Motion for Summary Judgment ECF No. 15 is DENIED. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Hutchinson v. Commissioner of Social Security Doc. 17 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 DELISHA MARIE H., NO: 2:17-CV-0411-TOR Plaintiff, 8 9 10 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 11 Defendant. 12 13 14 BEFORE THE COURT are the parties’ cross motions for summary 15 judgment. ECF Nos. 10, 15. The Court has reviewed the administrative record 16 and the Parties’ completed briefing and is fully informed. For the reasons 17 discussed below, the Court grants Plaintiff’s motion and denies Defendant’s 18 motion. 19 20 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 3 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 4 limited: the Commissioner’s decision will be disturbed “only if it is not supported 5 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 6 1158 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 7 relevant evidence that “a reasonable mind might accept as adequate to support a 8 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 9 substantial evidence equates to “more than a mere scintilla[,] but less than a 10 preponderance.” Id. (quotation and citation omitted). In determining whether this 11 standard has been satisfied, a reviewing court must consider the entire record as a 12 whole rather than searching for supporting evidence in isolation. Id. 13 In reviewing a denial of benefits, a district court may not substitute its 14 judgment for that of the Commissioner. If the evidence in the record “is 15 susceptible to more than one rational interpretation, [the court] must uphold the 16 ALJ’s findings if they are supported by inferences reasonably drawn from the 17 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 18 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 19 Id. at 1111. An error is harmless “where it is inconsequential to the [ALJ’s] 20 ultimate nondisability determination.” Id. at 1115 (quotation and citation omitted). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 2 FIVE-STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 3 the meaning of the Social Security Act. First, the claimant must be “unable to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which 6 has lasted or can be expected to last for a continuous period of not less than twelve 7 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 8 “of such severity that he is not only unable to do his previous work[,] but cannot, 9 considering his age, education, and work experience, engage in any other kind of 10 substantial gainful work which exists in the national economy.” 42 U.S.C. § 11 423(d)(2)(A). 12 The Commissioner has established a five-step sequential analysis to 13 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 14 404.1520(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s 15 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 16 “substantial gainful activity,” the Commissioner must find that the claimant is not 17 disabled. 20 C.F.R. § 404.1520(b). 18 If the claimant is not engaged in substantial gainful activities, the analysis 19 proceeds to step two. At this step, the Commissioner considers the severity of the 20 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 from “any impairment or combination of impairments which significantly limits 2 [his or her] physical or mental ability to do basic work activities,” the analysis 3 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 4 does not satisfy this severity threshold, however, the Commissioner must find that 5 the claimant is not disabled. Id. 6 At step three, the Commissioner compares the claimant’s impairment to 7 several impairments recognized by the Commissioner to be so severe as to 8 preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 9 404.1520(a)(4)(iii). If the impairment is as severe or more severe than one of the 10 enumerated impairments, the Commissioner must find the claimant disabled and 11 award benefits. 20 C.F.R. § 404.1520(d). 12 If the severity of the claimant’s impairment does meet or exceed the severity 13 of the enumerated impairments, the Commissioner must pause to assess the 14 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 15 defined generally as the claimant’s ability to perform physical and mental work 16 activities on a sustained basis despite his or her limitations (20 C.F.R. § 17 404.1545(a)(1)), is relevant to both the fourth and fifth steps of the analysis. 18 At step four, the Commissioner considers whether, in view of the claimant’s 19 RFC, the claimant is capable of performing work that he or she has performed in 20 the past (“past relevant work”). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 capable of performing past relevant work, the Commissioner must find that the 2 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 3 performing such work, the analysis proceeds to step five. 4 At step five, the Commissioner considers whether, in view of the claimant’s 5 RFC, the claimant is capable of performing other work in the national economy. 6 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 7 must also consider vocational factors such as the claimant’s age, education and 8 work experience. Id. If the claimant is capable of adjusting to other work, the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 10 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the 11 analysis concludes with a finding that the claimant is disabled and is therefore 12 entitled to benefits. Id. 13 The claimant bears the burden of proof at steps one through four above. 14 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). If the 15 analysis proceeds to step five, the burden shifts to the Commissioner to establish 16 that (1) the claimant is capable of performing other work; and (2) such work 17 “exists in significant numbers in the national economy.” 20 C.F.R. § 404.1560(c); 18 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 2 ALJ’S FINDINGS Plaintiff filed a Title II application for a period of disability and disability 3 insurance benefits, alleging an onset date of April 24, 2014. Tr. 18, 192. Her 4 application was denied initially and on reconsideration. Tr. 18, 104, 108. Plaintiff 5 filed a written request for a hearing and a hearing before an administrative law 6 judge (“ALJ”) was held on November 17, 2016. Tr. 18, 50. 7 The ALJ found that Plaintiff met the insured status requirements of Title II 8 of the Social Security Act through December 31, 2019. Tr. 20. At step one, the 9 ALJ found that Plaintiff had not engaged in substantial gainful activity since April 10 24, 2014, the alleged onset date. Tr. 20. At step two, the ALJ found that Plaintiff 11 had the following severe impairments: “thoracic outlet syndrome (TOS), cervical 12 spine degenerative disc disease, left shoulder tendinitis, and left knee 13 tricompartmental arthrosis with history of anterior cruciate ligament (ACL) 14 reconstruction . . . .” Tr. 20. The ALJ found that Plaintiff had the following non- 15 severe conditions: symptoms secondary to Addison’s disease, Raynaud’s 16 syndrome, irritable bowel syndrome (IBS), postural orthostatic tachycardia 17 syndrome (POTS), and mental impairments from major depressive disorder and 18 generalized anxiety disorder. Tr. 20, 22. Additionally, the ALJ found the 19 Plaintiff’s assertion of limiting symptoms due to fibromyalgia to be medically 20 indeterminable. Tr. 21. At step three, the ALJ found that Plaintiff’s severe ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 impairments did not meet or medically equal a listed impairment. Tr. 23. The ALJ 2 then determined that Plaintiff has the: 3 4 5 6 7 functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except that she can occasionally push/pull, such as operation of foot pedals, with the left lower extremity. Also, she can perform all postural activities frequently except she can occasionally climb ladders / ropes / scaffolds. She can occasionally reach overhead with the left upper extremity. She has sufficient concentration to understand, remember, and carry out complex and detailed tasks, can maintain persistence and pace in 2hour increments with usual and customary breaks throughout an 8-hour workday. 8 Tr. 24. At step four, the ALJ found that Plaintiff was able to perform past relevant 9 work as a chemical dependency counselor and a contact representative. Tr. 28. At 10 step five, after considering Plaintiff’s age, education, work experience, and 11 residual functional capacity, the ALJ found that Plaintiff was capable of 12 performing alternative occupations, such as order clerk, printed circuit board 13 assembler, and table worker which exist in significant numbers in the national 14 economy and in Washington State. Tr. 29. Because Plaintiff was capable of past 15 relevant work and other work in the national economy, the ALJ found that Plaintiff 16 was not disabled under the Social Security Act. Tr. 29, 30. 17 On October 12, 2017, the Appeals Council denied Plaintiff’s request for 18 review, making the ALJ’s decision the Commissioner’s final decision that is 19 subject to judicial review. Tr. 24; 20 C.F.R. § 404.981. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 3 4 ISSUES Plaintiff raises three issues for review: 1. Did the ALJ err in evaluating the severity of Plaintiff’s impairments at Step Two? 5 2. Did the ALJ err in assessing Plaintiff’s credibility? 6 3. Did the ALJ err in weighing the medical opinion evidence? 7 8 9 10 ECF No. 10 at 2. DISCUSSION Upon review of the ALJ’s decision, the Court finds Plaintiff has demonstrated a remand is appropriate. 11 First, the ALJ erred in finding Plaintiff’s fibromyalgia is not medically 12 determinable. The ALJ recognized Plaintiff was diagnosed with fibromyalgia by a 13 treating rheumatologist, but found the condition was not medically determinable 14 because – although Plaintiff was positive for “at least 11 positive tender points”, as 15 is required – the ALJ found there was “no indication that other impairments were 16 ruled out”, as is also required. See Tr. 21. Yet, the ALJ seems to ignore the 17 entirety of the medical record showing no other basis for these symptoms. In any 18 event, the ALJ should have sought additional information from the physician 19 before simply dismissing the diagnoses. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 2 3 4 5 Second, the ALJ erred when it found Plaintiff’s postural orthostatic tachycardia syndrome (POTS) to be non-severe. The ALJ concluded: Despite testimony of continued syncope or near syncope and medical advice to seek emergent care for such, medical records did not reveal substantiating evidence. Rather, medical records showed but one occasion in which the claimant went to the emergency room for syncope, and otherwise indicated considerable improvement of symptoms with treatment[.] 6 Tr. 21. In finding the POTS symptoms were non-severe, the ALJ discounted the 7 opinion of Plaintiff’s treating physician, Dr. Christopher Kocher, who wrote a 8 letter stating POTS can result in profound activity intolerance and that the course 9 and severity is highly variable. Tr. 843. The ALJ concluded the “evidence . . . 10 strongly suggests” this is not the case, citing records from December 2015 and 11 April 2016 where Plaintiff “reported that she had not had any overt syncopal 12 episodes[.]” Tr. 21. 13 The ALJ’s underlying reasoning for discounting the POTS symptoms and 14 the opinion of Dr. Kocher is not supported by substantial evidence. As an initial 15 matter, POTS symptoms include both dizziness and syncope (the latter of which 16 involves the actual loss of consciousness), so POTS symptoms can be present 17 without syncope episodes. Further, contrary to the ALJ’s finding that there is no 18 substantiating evidence of continued syncope or near syncope, the medical records 19 show Plaintiff’s POTS symptoms waxed and waned, and continued up to the 20 hearing in November, 2016. See, e.g., Tr. 845 (February 25, 2015: “She dealt with ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 severe POTS last year and was somewhat improved on medications, however, 2 continued with symptoms . . . . The patient had significant improvement as far as 3 her symptomatology and pain. However, the pain that remains still is significant 4 enough that it interferes with her quality of life and activities of daily living . . . . 5 She attempted to go back to work recently part time. She went there for four hours 6 and the day was very difficult for her. It resulted in several days of trying to 7 recover from pain in her left shoulder, neck area, headache and left upper extremity 8 pain.”); Tr. 850 (March 16, 2015: Dr. Byrd reporting an “increase in her POTS 9 symptoms” and opining “in terms of her ability to work given the combination of 10 POTS and fibromyalgia, I do not see how she could maintain meaningful 11 employment at this stage.”); Tr. 842 (April 8, 2015: Dr. Byrd opining Plaintiff’s 12 POTS and fibromyalgia precluded Plaintiff from maintaining “meaningful 13 employment at this stage”); Tr. 854 (July 10, 2015: She has had much less in the 14 way of any symptoms of POTS. She occasionally will get symptoms particularly 15 when she gets overheated or has increasing pain of her thoracic outlet syndrome.”); 16 Tr. 861 (August 26, 2015: “Her thoracic outlet syndrome surgery significantly 17 improved her POTS . . . She does get still some tachycardia with POTS 18 exacerbations.”); Tr. 1156 (October 22, 2015: “pain levels appear to be stable with 19 medication however POTs [symptoms] are a daily issue.”); Tr. 1168 (December 20 17, 2015: “sit to stand and supine to sit induced POTS symptoms that did resolve ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 after 30 to 60 seconds.”); Tr. 1172 (January 6, 2015: “We tried to spread visits to 2 every other week with significant increase in tone, pain, and POTS”; Goal of “no 3 severe POTS black outs in 12 weeks” not met); Tr. 1188 (April 14, 2016: Plaintiff 4 “reports improved activity tolerance generally but has days of extreme dizziness 5 from POTs.”); Tr. 1190 (April 21, 2016: Goal of “no severe POTS black outs in 6 12 weeks” not met.); Tr. 1270-71 (August 8, 2016: “her fibromyalgia and POTS 7 disease is so severe that I do not see how she can work in any meaningful way. At 8 the same time she does see a little bit of improvement on some of her medications 9 and this may be as good as we are going to get her.”); Tr. 1274 (September 21, 10 2016: “She has not had as many exacerbations of POTS. She is no longer working. 11 Any type of stress triggers POTS. She is doing well with her medications without 12 side effects.”); see also Tr. 25 (ALJ recounting how Plaintiff testified that “she 13 passed out the other day when watching her children and she bent over to pick up 14 the mail.”). 15 Notably, an ALJ’s failure to identify a condition as non-severe is harmless at 16 step two if the ALJ otherwise determines another condition is severe. Buck v. 17 Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (step two merely involves “a 18 threshold determination meant to screen out weak claims . . . It is not meant to 19 identify the impairments that should be taken into account when determining the 20 RFC.”). This is because the ultimate disability determination relies on the RFC, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 which is based on all limiting symptoms regardless of etiology (and regardless of 2 whether a condition is severe or non-severe). See Tr. 24. Here, the ALJ found 3 Plaintiff suffered from other severe conditions, so the error is harmless at step two. 4 While the errors may be harmless at step two, it appears the underlying error 5 (at least as to the ongoing nature of POTS) was not harmless as to the overall 6 disability determination, which is based on the assigned RFC. Because the ALJ 7 found the POTS symptoms were not ongoing, the ALJ did not take into account the 8 POTS symptoms in forming the RFC. In doing so, the ALJ formed an opinion as 9 to Plaintiff’s credibility, the weight to be given to treating physicians, and the 10 ultimate disability determination based on an incomplete view of the symptoms. 11 The Court cannot find such was harmless where (1) Plaintiff’s claim heavily relied 12 on alleged POTS symptoms, Tr. 53 (Plaintiff testified that the main reason keeping 13 her from work is “a combination of the postural orthostatic tachycardia syndrome 14 and fibromyalgia”); (2) Plaintiff’s treating physician Dr. Byrd opined that 15 Plaintiff’s “fibromyalgia and POTS disease is so severe that I do not see how she 16 can work in any meaningful way”, Tr. 1270-71; and (3) the ALJ found Plaintiff’s 17 testimony not entirely credible and discounted the opinion of Dr. Byrd because the 18 claimed severity was not consistent with the record, thus implicating the claimed 19 POTS symptoms. Tr. 25, 27. 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 The ALJ failed to take the overall trend into account by relying on isolated 2 statements of improvement without fully discussing the records suggesting 3 Plaintiff’s symptoms waxed and waned. The ALJ should have at least discussed 4 the return of certain symptoms and discussed the degree of limitations in light of 5 such, but the ALJ did not do so. Thus, the ALJ improperly discounted the treating 6 physicians’ opinions without specific and legitimate reasons for doing so. 7 Moreover, the ALJ discounted Plaintiff’s testimony based on her activities 8 of daily living and because she took a single trip, yet did not report any problems. 9 Tr. 26. The ALJ failed to even discuss these activities, let alone demonstrate that 10 Plaintiff spent a substantial portion of her day engaged in pursuits involving the 11 performance of physical functions that are transferable to a work setting. See 12 Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). In part, the ALJ also used 13 this evidence to discount Plaintiff’s treating physicians. Because these activities 14 were not identified and shown to involve physical functioning which are 15 transferable to a work setting, that too was error. 16 On remand, the ALJ should revisit step two to address the deficiencies 17 identified above. The ALJ should also specifically consider all the medical 18 records, including the records discussing the return of symptoms. The ALJ should 19 revisit the assessment of Plaintiff’s credibility and properly assess the opinions of 20 Plaintiff’s treating physicians. The ALJ must consider the entire record as a whole ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 and make a decision based upon substantial evidence absent the legal error 2 identified by the Court. 3 ACCORDINGLY, IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Summary Judgment (ECF No. 10) is GRANTED. 5 This case is REVERSED and REMANDED pursuant to sentence four 6 of 42 U.S.C. § 405(g) for further administrative proceedings. 7 2. Defendant’s Motion for Summary Judgment (ECF No. 15) is DENIED. 8 The District Court Executive is hereby directed to file this Order, enter 9 10 Judgment for Plaintiff, provide copies to counsel, and CLOSE this file DATED October 15, 2018. 11 12 13 THOMAS O. RICE Chief United States District Judge 14 15 16 17 18 19 20 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ~ 14

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