Tiquiengco v. Commissioner of Social Security, No. 2:2018cv00339 - Document 22 (E.D. Wash. 2020)
Court Description: ORDER GRANTING, IN PART, 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS; denying 20 Defendant's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (AN, Courtroom Deputy)
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Tiquiengco v. Commissioner of Social Security Doc. 22 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Feb 28, 2020 4 SEAN F. MCAVOY, CLERK 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 ANNIE T., 10 No. 2:18-CV-00339-JTR Plaintiff, 11 v. 12 13 14 15 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY,1 16 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 19 Nos. 14, 20. Attorney Dana C. Madsen represents Annie T. (Plaintiff); Special 20 Assistant United States Attorney Lars J. Nelson represents the Commissioner of 21 Social Security (Defendant). The parties have consented to proceed before a 22 magistrate judge. ECF No. 6. After reviewing the administrative record and the 23 briefs filed by the parties, the Court DENIES Defendant’s Motion for Summary 24 25 1 Andrew M. Saul is now the Commissioner of the Social Security 26 Administration. Accordingly, the Court substitutes Andrew M. Saul as the 27 Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 28 25(d). ORDER GRANTING, IN PART, PLAINTIFF’S MOTION - 1 Dockets.Justia.com 1 Judgment; GRANTS, in part, Plaintiff’s Motion for Summary Judgment; and 2 REMANDS the matter to the Commissioner for additional proceedings pursuant to 3 42 U.S.C. §§ 405(g), 1383(c). 4 JURISDICTION 5 Plaintiff filed applications for Supplemental Security Income (SSI) and 6 Disability Insurance Benefits (DIB) on November 3, 2015, Tr. 120-21, 201, 7 alleging disability since November 15, 2005, Tr. 203, 205, due to back problems, 8 L5-S1 Laminectomy Syndrome, diabetes type 2, and degenerative disc disease, Tr. 9 276. The applications were denied initially and upon reconsideration. Tr. 152-55, 10 157-61. Administrative Law Judge (ALJ) Mark Kim held a hearing on August 23, 11 2017 and heard testimony from Plaintiff, medical expert Robert Thompson, M.D., 12 and vocational expert Jeffrey F. Tittelfitz. Tr. 48-88. Prior to the hearing, Plaintiff 13 amended her alleged onset date to October 15, 2014. Tr. 50, 331. The ALJ issued 14 an unfavorable decision on November 24, 2017. Tr. 15-25. The Appeals Council 15 denied review on August 30, 2018. Tr. 1-5. The ALJ’s November 24, 2017 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), 1383(c). Plaintiff filed this action 18 for judicial review on October 29, 2018. ECF Nos. 1, 4. 19 STATEMENT OF FACTS 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 50 years old at the amended date of application. Tr. 203. 24 Plaintiff completed the twelfth grade in 1986. Tr. 277. Her reported work history 25 includes the jobs of cargo supervisor and stocker. Tr. 277, 329. When applying 26 for benefits Plaintiff reported that she stopped working on September 1, 2014 27 because of her conditions. Tr. 276. In the hearing brief, her attorney stated that 28 she worked until October 15, 2014 and amended her alleged onset date to October ORDER GRANTING, IN PART, PLAINTIFF’S MOTION - 2 1 2 3 15, 2014. Tr. 331. STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 4 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 5 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 6 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 7 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 8 not supported by substantial evidence or if it is based on legal error. Tackett v. 9 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 10 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 11 another way, substantial evidence is such relevant evidence as a reasonable mind 12 might accept as adequate to support a conclusion. Richardson v. Perales, 402 13 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 14 interpretation, the court may not substitute its judgment for that of the ALJ. 15 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 16 findings, or if conflicting evidence supports a finding of either disability or non- 17 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 18 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 19 evidence will be set aside if the proper legal standards were not applied in 20 weighing the evidence and making the decision. Brawner v. Secretary of Health 21 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 22 23 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 25 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 26 through four, the burden of proof rests upon the claimant to establish a prima facie 27 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 28 burden is met once the claimant establishes that physical or mental impairments ORDER GRANTING, IN PART, PLAINTIFF’S MOTION - 3 1 prevent her from engaging in her previous occupations. 20 C.F.R. §§ 404.1520(a), 2 416.920(a)(4). If the claimant cannot do her past relevant work, the ALJ proceeds 3 to step five, and the burden shifts to the Commissioner to show (1) the claimant 4 can make an adjustment to other work, and (2) the claimant can perform specific 5 jobs that exist in the national economy. Batson v. Comm’r of Soc. Sec. Admin., 6 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant cannot make an 7 adjustment to other work in the national economy, she is found “disabled.” 20 8 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). ADMINISTRATIVE DECISION 9 10 On November 24, 2017 the ALJ issued a decision finding Plaintiff was not 11 disabled as defined in the Social Security Act from October 15, 2014 through the 12 date of the decision. 13 14 15 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since October 15, 2014, the date of application. Tr. 18. At step two, the ALJ determined that Plaintiff had the following severe 16 impairments: degenerative disc disease of the lumbar spine, status post 17 laminectomy, discectomy in 2006; and diabetes mellitus type 2. Tr. 18. 18 At step three, the ALJ found that Plaintiff did not have an impairment or 19 combination of impairments that met or medically equaled the severity of one of 20 the listed impairments. Tr. 18. 21 22 23 24 25 26 27 28 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined she could perform a range of light work with the following limitations: [S]he must be allowed to alternate between the sit and stand positions every thirty minutes while staying on task, meaning they are not required to stay in one position for a full thirty minutes, but rather after thirty minutes they should be allowed to switch positions for a short period of time; she cannot climb ladders or scaffolds; she can never crouch or crawl; she can occasionally climb ramps and stairs; she can occasionally stoop and kneel; she must avoid all exposure to extreme ORDER GRANTING, IN PART, PLAINTIFF’S MOTION - 4 cold, excessive vibrations, and hazards such as dangerous machinery and unprotected heights; she is limited to simple, routine tasks due to her physical impairments and the effects of medication. 1 2 3 4 Tr. 18-19. The ALJ identified Plaintiff’s past relevant work as a stores laborer and 5 a loading and unloading supervisor and found that she could not perform this past 6 relevant work. Tr. 23. 7 At step five, the ALJ determined that, considering Plaintiff’s age2, 8 education, work experience and residual functional capacity, and based on the 9 testimony of the vocational expert, there were other jobs that exist in significant 10 numbers in the national economy Plaintiff could perform, including the jobs of 11 electronics worker, office helper, and small parts assembler II. Tr. 24. The ALJ 12 concluded Plaintiff was not under a disability within the meaning of the Social 13 Security Act from October 15, 2014, through the date of the ALJ’s decision. Tr. 14 25. 15 ISSUES The question presented is whether substantial evidence supports the ALJ’s 16 17 decision denying benefits and, if so, whether that decision is based on proper legal 18 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh 19 Plaintiff’s symptom statements, (2) failing to properly weigh the medical opinions 20 in the record, and (3) failing to apply the proper Grid Rule at step five. 21 22 23 24 DISCUSSION 1. Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that her symptom statements were unreliable. ECF No. 14 at 14-17. 25 26 2 The ALJ states that at the time of the amended onset date Plaintiff was 41 27 years old. Tr. 23. However, based on the date of birth provided in the application, 28 Plaintiff was actually 50 years old. See Tr. 203. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION - 5 1 It is generally the province of the ALJ to make determinations regarding the 2 reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 3 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 4 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 5 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 6 and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 7 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 8 rather the ALJ must identify what testimony is not credible and what evidence 9 undermines the claimant’s complaints.” Lester, 81 F.3d at 834. 10 The ALJ found Plaintiff’s statements concerning the intensity, persistence, 11 and limiting effects of her symptoms to be “not entirely consistent with the medical 12 evidence and other evidence in the record.” Tr. 20. Specifically, the ALJ found 13 that as to Plaintiff’s “statements about the intensity, persistence, and limiting 14 effects of his or her symptoms, they are inconsistent with the medical evidence of 15 record.” Id. The ALJ then went on to state that “the evidence shows few signs of 16 ongoing neurologic deficits. While the claimant has infrequently been observed to 17 use a cane, she has generally been described as having a normal gait. . . Similarly, 18 her providers have generally offered only conservative care through the 19 adjudicative period.” Id. 20 Objective medical evidence is a “relevant factor in determining the severity 21 of the claimant’s pain and its disabling effects,” but it cannot serve as the only 22 reason for rejecting a claimant’s credibility. Rollins v. Massanari, 261 F.3d 853, 23 857 (9th Cir. 2001). Here, the ALJ failed to substantiate any other reason for 24 rejecting Plaintiff’s symptom statements. See Tr. 20. Therefore, the ALJ erred in 25 his treatment of Plaintiff’s symptom statements. 26 Defendant argues that the ALJ provided a second reason: that Plaintiff’s 27 providers offered only conservative care through the adjudicative period. ECF No. 28 20 at 7-8. However, the ALJ cited the conservative treatment received as further ORDER GRANTING, IN PART, PLAINTIFF’S MOTION - 6 1 support that Plaintiff’s symptom statements were not supported by the medical 2 evidence in the record, and did not conclude that it was a separate reason to reject 3 Plaintiff’s statements. Tr. 20. Therefore, Defendant’s assertion is a post hoc 4 rationalization, which will not be considered by this Court. See Orn v. Astrue, 495 5 F.3d 625, 630 (9th Cir. 2007) (The Court will “review only the reasons provided 6 by the ALJ in the disability determination and may not affirm the ALJ on a ground 7 upon which he did not rely.”). Even if this reason is not considered a post hoc rationalization, it falls short 8 9 of the specific, clear and convincing standard and is not supported by substantial 10 evidence. In support of his argument, Defendant cited Meanel v. Apfel, 172 F.3d 11 1111, 1114 (9th Cir. 1999). ECF No. 20 at 8. The Court in Meanel found that the 12 claimant’s failure to request or seek additional treatment, as well as the provider’s 13 failure to offer more than conservative treatment, supported rejecting the 14 claimant’s symptom statements. 172 F.3d at 1114 (“the ALJ properly considered 15 Dr. Manos’ failure to prescribe, and Meanel’s failure to request, any serious 16 medical treatment for this supposedly excruciating pain.”). Here, the ALJ did not 17 address Plaintiff’s failure to seek additional treatment. Nor did he provide any 18 discussion of the fact that Plaintiff had multiple surgeries prior to the adjudicative 19 period, and her treating provider stated that any subsequent surgeries would not 20 help, and possibly worsen her condition. Tr. 471 (Dr. Tohmeh stated that “I did 21 discuss with her that repeat surgery would result in even more scarring around the 22 S1 nerve root, which could result in perineural fibrosis, which would be an 23 incurable condition.”). Therefore, her providers offering only conservative 24 treatment does not support the ALJ’s finding that Plaintiff’s complaints were out of 25 proportion with her symptoms or treatment. This matter is remanded to the Commissioner for further proceedings to 26 27 readdress Plaintiff’s symptom statements. 28 /// ORDER GRANTING, IN PART, PLAINTIFF’S MOTION - 7 1 2. Medical Opinions 2 Plaintiff argues the ALJ failed to properly consider and weigh the medical 3 opinions expressed by an examining physician. ECF No. 14 at 18. However, in 4 the section addressing this argument, Plaintiff failed to identify any specific 5 opinion that the ALJ rejected or provide any challenge to the reasons the ALJ 6 rejected any opinion. Id. at 17-18. Typically, the lack of adequate briefing would 7 result in the Court refusing to consider the issue. See Carmickle v. Comm’r, Soc. 8 Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). However, since the case is 9 being remanded for the ALJ to readdress Plaintiff’s symptom statements, the ALJ 10 will also readdress the medical opinions in the record. 11 3. 12 Step Five Plaintiff argues that she should have been considered disabled at step five 13 under Grid Rule 201.14. ECF No. 14 at 18-20. Plaintiff asserts that her testimony 14 and the opinions of Antoine G. Gohmeh, M.D., Maria Samanieg, M.D., and Min- 15 Shern Liu, D.O. support a residual functional capacity below light work; therefore, 16 Grid Rule 201.14 would direct the Commissioner to find Plaintiff disabled. Id. 17 The Grid Rules are an administrative tool on which the Commissioner must 18 rely when considering claimants with substantially equivalent levels of 19 impairment. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988). The Grids 20 reflect the claimant’s maximum sustained exertional work capacity. See S.S.R. 83- 21 10 (“exertional capabilities” are used “to identify maximum sustained work 22 capability”). 23 The cited Grid provision results in a disability only if Plaintiff’s residual 24 functional capacity is limited to sedentary work or less. Because the case is being 25 remanded to further address symptom statements and the medical opinions in the 26 record, the ALJ will also address step five using the Grid Rule that accurately 27 reflects Plaintiff’s age at the alleged onset date and forward. 28 In her Reply, Plaintiff asserts that any residual functional capacity finding ORDER GRANTING, IN PART, PLAINTIFF’S MOTION - 8 1 that is less than a full range of light work triggers Grid Rule 201.14 and, therefore, 2 a finding of disability. ECF No. 21 at 1-6. However, in several of the residual 3 functional capacity opinions Plaintiff cites to in her Reply, the residual functional 4 capacity would fall between sedentary and light. Id. In situations where the 5 residual functional capacity falls between two exertional levels and thus two Grid 6 Rules, one directing a finding of not disabled and the other directing a finding of 7 disabled, a vocational expert should be called. S.S.R. 83-12. Therefore, further 8 proceedings are necessary in this case. 9 10 11 REMEDY Plaintiff asks the Court to apply the credit-as-true rule and remand this case for an immediate award of benefits. ECF Nos. 14 at 21. 12 The decision whether to remand for further proceedings or reverse and 13 award benefits is within the discretion of the district court. McAllister v. Sullivan, 14 888 F.2d 599, 603 (9th Cir. 1989). Under the credit-as-true rule, where (1) the 15 record has been fully developed and further administrative proceedings would 16 serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons 17 for rejecting evidence, whether claimant testimony or medical opinion; and (3) if 18 the improperly discredited evidence were credited as true, the ALJ would be 19 required to find the claimant disabled on remand, the Court remands for an award 20 of benefits. Revels v. Berryhill, 874 F.3d 648, 668 (9th Cir. 2017). But where 21 there are outstanding issues that must be resolved before a determination can be 22 made, and it is not clear from the record that the ALJ would be required to find a 23 claimant disabled if all the evidence were properly evaluated, remand is 24 appropriate. See Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); 25 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir. 2000). 26 In this case, Plaintiff’s symptom statements need to be properly addressed, 27 and it is not clear from the record that the ALJ would be required to find the 28 claimant disabled if all the evidence were properly evaluated. Therefore, a remand ORDER GRANTING, IN PART, PLAINTIFF’S MOTION - 9 1 for additional proceedings is appropriate. The Commissioner will (1) supplement 2 the record with any updated or outstanding medical evidence, (2) make a new 3 determination regarding the reliability of Plaintiff’s symptom statements 4 considering the record as a whole, (3) readdress the opinion evidence in light of the 5 record as a whole, (4) make a new step five determination considering Plaintiff’s 6 correct age at the alleged onset date, and (5) call a vocational expert to testify at 7 any supplemental hearings. CONCLUSION 8 9 10 11 12 Accordingly, IT IS ORDERED: 1. Defendant’s Motion for Summary Judgment, ECF No. 20, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is 13 GRANTED, in part, and the matter is REMANDED to the Commissioner for 14 additional proceedings consistent with this Order. 15 3. Application for attorney fees may be filed by separate motion. 16 The District Court Executive is directed to file this Order and provide a copy 17 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 18 and the file shall be CLOSED. 19 DATED February 28, 2020. 20 21 22 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 ORDER GRANTING, IN PART, PLAINTIFF’S MOTION - 10
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