Kimmel v. Colvin, No. 4:2015cv05058 - Document 19 (E.D. Wash. 2016)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION. Denying 13 Motion for Summary Judgment; granting 17 Motion to Remand. Case remanded to ALJ Caroline Siderius. Signed by Senior Judge Edward F. Shea. (SK, Case Administrator)
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Kimmel v. Colvin Doc. 19 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 No. CHARLIE KIMMEL, 8 Plaintiff, 9 10 4:15-CV-5058-EFS ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION v. CAROLYN COLVIN, Acting Commissioner of Social Security, 11 Defendant. 12 13 Before the Court, without oral argument, are Plaintiff’s Motion 14 for Summary Judgment, ECF No. 13, and Defendant’s Motion for Remand, 15 ECF No. 17. Plaintiff Charlie Kimmel appeals the Administrative Law 16 Judge’s (ALJ) denial of benefits. 17 ALJ failed to properly weigh the medical expert testimony and failed 18 to properly determine whether specific jobs exist in the national 19 economy that Plaintiff could perform. ECF No. 13 at 9-10. Plaintiff 20 seeks 21 Security 22 formulate 23 argues that remand is the appropriate remedy. The Court has reviewed 24 the administrative record and the parties’ briefing. For the reasons 25 set forth below, the Court remands for further proceedings. 26 / an immediate award (“Commissioner”) the Plaintiff’s of ECF No. 1. benefits. agrees that residual The the Plaintiff contends the Commissioner ALJ functional failed of to capacity Social properly (RFC) but ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 1 Dockets.Justia.com 1 A. Jurisdiction The Court has jurisdiction over this case pursuant to 42 U.S.C. 2 3 § 1383(c)(3). 4 B. Standard of Review 5 A district court's review of a Commissioner’s final decision is 6 governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 7 limited: the Commissioner's decision will be disturbed “only if it is 8 not supported by substantial evidence or is based on legal error.” 9 Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial 10 evidence” means relevant evidence that “a reasonable mind might accept 11 as adequate to support a conclusion.” Id. at 1159 (quotation and 12 citation omitted). Stated differently, substantial evidence equates to 13 “more than a mere scintilla[,] but less than a preponderance.” Id. 14 (quotation and citation omitted). In determining whether this standard 15 has been satisfied, a reviewing court must consider the entire record 16 as a whole rather than searching for supporting evidence in isolation. 17 Id. 18 In reviewing a denial of benefits, a district court may not 19 substitute its judgment for that of the Commissioner. If the evidence 20 in 21 interpretation, [the court] must uphold the ALJ's findings if they are 22 supported by inferences reasonably drawn from the record.” Molina v. 23 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court 24 “may not reverse an ALJ's decision on account of an error that is 25 harmless.” Id. An error is harmless “where it is inconsequential to 26 the the record [ALJ's] “is ultimate susceptible nondisability to more than determination.” one Id. rational at 1115 ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 2 1 (quotation and citation 2 decision 3 harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 4 C. generally Disability 5 A bears the The burden Determination: party of appealing establishing Five-Step the that Sequential ALJ's it was Evaluation Process 6 omitted). claimant must satisfy two conditions to be considered 7 “disabled” within the meaning of the Social Security Act. First, the 8 claimant 9 activity by reason of any medically determinable physical or mental 10 impairment which can be expected to result in death or which has 11 lasted or can be expected to last for a continuous period of not less 12 than 13 claimant's impairment must be “of such severity that he is not only 14 unable to do his previous work[,] but cannot, considering his age, 15 education, 16 substantial gainful work which exists in the national economy.” Id. § 17 1382c(a)(3)(B). 18 evaluation process to determine whether a claimant is disabled. 20 19 C.F.R. §§ 404.1520, 416.920. 20 must twelve be “unable months.” and work The 42 to engage U.S.C. experience, § in substantial 1382c(a)(3)(A). engage decision-maker any uses in a any Second, other five-step gainful kind the of sequential Step one assesses whether the claimant is engaged in substantial 21 gainful activities. Id. 22 engaged in 23 disabled and benefits are denied. Id. §§ 404.1520(b), 416.920(b). If 24 the claimant is not engaged in substantial gainful employment, the 25 decision-maker proceeds to step two. substantial § 416.920(a)(4)(i). gainful activities, If the the claimant claimant is is not 26 ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 3 1 Step two assesses whether the claimant has a medically severe 2 impairment, or combination of impairments, which significantly limits 3 the 4 activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant 5 does not, the disability claim is denied. If the claimant does, the 6 evaluation proceeds to the third step. claimant’s Step 7 physical three or compares mental the ability claimant's to do basic impairment to work several 8 impairments recognized by the Commissioner to be so severe as to 9 preclude a person from engaging in substantial gainful activity. 20 10 C.F.R. §§ 404.1520(d), 11 impairment 12 claimant is conclusively presumed to be disabled. If the impairment 13 does not, the evaluation proceeds to the fourth step. meets or 404 Subpt. equals one of P App. the 1, 416.920(d). listed If the impairments, the 14 Step four assesses whether the impairment prevents the claimant 15 from performing work he has performed in the past by examining the 16 claimant’s residual 17 416.920(e). If 18 previous work, the claimant is not disabled. If the claimant cannot 19 perform this work, the evaluation proceeds to the fifth step. the functional claimant is capacity. able to Id. perform §§ 404.1520(e), the claimant’s 20 Step five, the final step, assesses whether the claimant can 21 perform other work in the national economy in view of the claimant’s 22 age, 23 416.920(f); 24 claimant can, the disability claim is denied. If the claimant cannot, 25 the disability claim is granted. education, see and Bowen work v. experience. Yuckert, 482 20 C.F.R. U.S. 137 §§ 404.1520(f), (1987). If the 26 ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 4 The burden of proof shifts during this sequential disability 1 2 analysis. The claimant 3 entitlement 4 Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). The burden then 5 shifts to the Commissioner to show 1) the claimant can perform other 6 substantial gainful activity, and 2) that a “significant number of 7 jobs exist in the national economy,” which the claimant can perform. 8 Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 9 D. to has disability the benefits initial under burden steps of one establishing through four. Procedural History and ALJ Findings1 10 Plaintiff filed an application for supplemental security income, 11 dated October 12, 2011, alleging a disability onset date of April 14, 12 2011. 13 initially denied and upon reconsideration. Id. Plaintiff requested a 14 hearing before an ALJ, which was held on January 14, 2014, Tr. at 22. 15 On February 13, 2014, the ALJ rendered a decision denying Plaintiff’s 16 claim. Id. Transcript of Record (Tr.) at 22. Plaintiff’s claim was 17 At step one, the ALJ found that Plaintiff has not engaged in 18 substantial gainful activity since April 14, 2011, the alleged onset 19 date. Tr. at 24. 20 At step two, the ALJ found that the Plaintiff has the following 21 severe impairments: post-traumatic stress disorder (PTSD), anxiety, 22 depression, and degenerative disc disease. Id. 23 24 1 25 The facts contained 26 in are the only briefly summarized. administrative hearing Detailed transcript, facts the are ALJ’s decision, and the parties’ briefs. ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 5 At step three, the ALJ found that the Plaintiff did not have an 1 2 impairment or combination of impairments that meets or medically 3 equals the severity of one of the listed impairments in 20 CFR Part 4 404. Tr. at 26. 5 At step four, the ALJ found: 6 Plaintiff has the residual functional capacity to lift and/or carry up to 20 pounds occasionally and 10 pounds frequently, stand and/or walk up to four hours in an eight hour work day, and sit about six hours in an eight-hour workday, changing position once an hour. The Claimant can perform no more than occasional climbing, stooping, and crawling, and occasional bilateral overhead reaching. The Claimant can occasionally climb ladders, ropes, and scaffolds. The Claimant should avoid operating heavy equipment and machinery, as well as exposure to extreme temperatures and humidity. The Claimant can perform simple, repetitive tasks with no detailed work. The Claimant can have superficial contact with the public and co-workers, but cannot perform collaborative work. Tasks should be routine, with only occasional changes in work setting and work duties, working with things rather than people. 7 8 9 10 11 12 13 14 Tr. at 28. In formulating this RFC, the ALJ considered all of the 15 relevant medical evidence but gave less weight to the opinions of four 16 medical sources: Dr. Dinglasan, Dr. Duris, Dr. Corpolongo, and Ms. 17 Sjostrom. Based on this RFC, the ALJ found that the Mr. Kimmel is 18 unable to perform any past relevant work. Tr. at 32. 19 At step five, based on the testimony of a vocational expert 20 (VE), the ALJ found that there are jobs that exist in significant 21 numbers in the national economy that Mr. Kimmel can perform. Tr. at 22 33. 23 The Appeals Council denied Plaintiff’s request for review, Tr. 24 at 1, making the ALJ’s decision the Commissioner’s final decision for 25 purposes of judicial review. 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 26 ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 6 1 416.1481, 422.210. Plaintiff filed this lawsuit on June 25, 2016, ECF 2 No. 1. 3 E. Analysis Plaintiff raises the following issues for this Court’s review of 4 5 the Commissioner’s final decision: 1) Whether the ALJ failed to 6 properly weigh the opinions of the treating and examining medical 7 experts; and 2) Whether the ALJ improperly identified whether there 8 are jobs that exist in significant numbers in the national economy 9 that Mr. Kimmel can perform, based on an incomplete hypothetical. 10 Defendant agrees that the ALJ did not properly evaluate all of the 11 medical testimony and did not properly formulate the RFC. Defendant, 12 therefore, asks that the Court remand for further proceedings rather 13 than enter judgment awarding benefits to the Plaintiff. ECF No. 17. A district court may “revers[e] the decision of the Commissioner 14 15 of Social 16 rehearing.” Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 17 1099 18 original). 19 circumstances, is to remand to the agency for additional investigation 20 or explanation.” Id. (quoting Fla. Power &Light Co. v. Lorion, 470 21 U.S. 22 remanding a case for an award of benefits unless certain prerequisites 23 are met. Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). “If 24 the district court does determine that the record has been fully 25 developed and there are no outstanding issues left to be resolved, the 26 district court must next consider whether the ALJ would be required to (9th 729, Security, Cir. 2014) “[T]he 744 with or (citing proper (1985)). Case without 42 U.S.C. course,” law remanding § 405(g)) however, precludes the a cause for (alteration “except district in court a in rare from ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 7 1 find the claimant disabled on remand if the improperly discredited 2 evidence were credited as true.” Dominguez v. Colvin, Case No. 13-1730 3 (9th 4 district court is generally not required to exercise such discretion, 5 however. Id. (quoting Connett v. Barnhart, 340 F.3d 871, 874–76 (9th 6 Cir. 7 proceedings ‘when the record as a whole creates serious doubt as to 8 whether the claimant is, in fact, disabled within the meaning of the 9 Social Security Act.’” Id. (quoting Burrell, 775 F.3d at 1141). Cir. 2016) 2003)). A this (internal court may the vocational expert’s testimony provides no factual support as to 14 whether or not jobs exist in the national economy that the Plaintiff 15 can perform. Without the reliable testimony of a vocational expert, 16 there 17 determination. Furthermore, due to the contradictions in the extensive 18 medical 19 ultimately 20 Plaintiff’s RFC. That is the job of the ALJ. 20 C.F.R. § 404.1546. 21 Given the inconsistencies, conflicts, and gaps in the record, and in 22 view of Defendant’s request for remand, the Court finds serious doubt 23 as to whether the claimant is, in fact, disabled within the meaning of 24 the 25 proceedings are required. The Court, therefore, remands this case to record, be. it It is is Security on which unclear not Act, the and to what job the make immediate a proper Plaintiff’s of that this are further 13 prevent there for benefits. In particular, because the RFC was improperly formulated, which that record 12 evidence finds open A deficiencies Social record an omitted). 11 no Court on citations In in the the “remand and 10 is case, quotations final Court additional to factual award of step-five RFC will determine administrative 26 ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 8 1 the ALJ for further factual proceedings, rather than for payment of 2 benefits. 3 F. See Dominguez v. Colvin, Case No. 13-1730 (9th Cir. 2016). Conclusion In summary, the Court finds that remand is appropriate. The ALJ 4 5 is 6 formulate 7 vocational expert, and then make a new determination as to whether the 8 Plaintiff is disabled. 9 10 directed 1. Plaintiff’s RFC, all of resubmit the medical a evidence, complete properly hypothetical to a Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 2. The Commissioner’s Motion for Remand, ECF No. 17, is GRANTED. 13 14 reconsider Accordingly, IT IS HEREBY ORDERED: 11 12 to 3. This matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 15 16 4. JUDGMENT is to be entered in the Plaintiff’s favor. 17 5. An application for attorney fees may be filed by separate motion by Mr. Kimmel. 18 19 6. 20 IT IS SO ORDERED. 21 22 The case shall be CLOSED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel and to ALJ Caroline Siderius. DATED this 28th day of July 2016. 23 24 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 25 26 Q:\EFS\Civil\2015\5058.soc.sec.lc2.docx ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S SUMMARY-JUDGMENT MOTION - 9
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