Frank v. Colvin, No. 4:2015cv05079 - Document 18 (E.D. Wash. 2016)
Court Description: ORDER GRANTING PLAINTIFF'S SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT'S SUMMARY-JUDGMENT MOTION; granting in part 13 Plaintiff's Motion for Summary Judgment; granting in part and denying in part 17 Commissioner's Motion for Summary Judgment. Case remanded and closed. Signed by Senior Judge Edward F. Shea. (CV, Case Administrator)
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Frank v. Colvin Doc. 18 1 2 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 5 No. MICHAEL WARREN FRANK, 4:15-CV-5079-EFS 6 Plaintiff, ORDER GRANTING PLAINTIFF'S SUMMARY-JUDGMENT MOTION AND DENYING DEFENDANT'S SUMMARYJUDGMENT MOTION 7 v. 8 9 CAROLYN COLVIN, Commissioner of the Social Security Admin., 10 Defendant. 11 Before the Court, without oral argument, are cross-summary- 12 judgment motions. ECF Nos. 13 & 17. Plaintiff Michael Warren Frank 13 appeals the Administrative Law Judge’s (ALJ) denial of benefits, arguing 14 that the ALJ improperly rejected the opinions of his medical providers, 15 improperly rejected his subjective complaints, improperly rejected lay 16 witness statements, and failed to fully consider Mr. Frank’s specific 17 functional limitations when determining that certain jobs were available 18 in 19 (“Commissioner”) asks the Court to affirm the ALJ’s decision. The Court 20 has reviewed the administrative record and the parties’ briefing. For 21 the 22 additional 23 Commissioner’s motion is denied. 24 A. 25 26 significant reasons set numbers. forth proceedings. The below, Mr. Commissioner the Court Frank’s of remands motion is Social this Security matter granted, and for the Jurisdiction The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). ORDER REMANDING TO THE ALJ - 1 Dockets.Justia.com 1 B. Standard of Review 2 A district court's review of a Commissioner’s final decision is 3 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 5 not supported by substantial evidence or is based on legal error.” Hill 6 v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). “Substantial evidence” 7 means relevant evidence that “a reasonable mind might accept as adequate 8 to support a conclusion.” Id. at 1159 (quotation and citation omitted). 9 Stated differently, substantial evidence equates to “more than a mere 10 scintilla[,] but less than a preponderance.” Id. (quotation and citation 11 omitted). In determining whether this standard has been satisfied, a 12 reviewing court must consider the entire record as a whole rather than 13 searching for supporting evidence in isolation. Id. 14 In reviewing a denial of benefits, a district court may not 15 substitute its judgment for that of the Commissioner. If the evidence 16 in the record “is susceptible to more than one rational interpretation, 17 [the court] must uphold the ALJ's findings if they are supported by 18 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 19 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse 20 an ALJ's decision on account of an error that is harmless.” Id. An error 21 is 22 nondisability 23 omitted). The party appealing the ALJ's decision generally bears the 24 burden of establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 25 396, 409-10 (2009). 26 /// harmless “where it is inconsequential determination.” ORDER REMANDING TO THE ALJ - 2 Id. at 1115 to the [ALJ's] (quotation and ultimate citation 1 C. Disability Determination: Five-Step Sequential Evaluation Process 2 A claimant must satisfy two conditions to be considered “disabled” 3 within the meaning of the Social Security Act. First, the claimant must 4 be “unable to engage in any substantial gainful activity by reason of 5 any medically determinable physical or mental impairment which can be 6 expected to result in death or which has lasted or can be expected to 7 last for a continuous period of not less than twelve months.” 42 U.S.C. 8 § 1382c(a)(3)(A). Second, the claimant's impairment must be “of such 9 severity that he is not only unable to do his previous work[,] but 10 cannot, considering his age, education, and work experience, engage in 11 any other kind of substantial gainful work which exists in the national 12 economy.” Id. § 1382c(a)(3)(B). The decision-maker uses a five-step 13 sequential 14 disabled. 20 C.F.R. §§ 404.1520, 416.920. evaluation process to determine whether a claimant is 15 Step one assesses whether the claimant is engaged in substantial 16 gainful activities. Id. § 416.920(a)(4)(i). If the claimant is engaged 17 in substantial gainful activities, the claimant is not disabled and 18 benefits are denied. Id. §§ 404.1520(b), 416.920(b). If the claimant 19 is not engaged in substantial gainful employment, the decision-maker 20 proceeds to step two. 21 Step two assesses whether the claimant has a medically severe 22 impairment, or combination of impairments, which significantly limits 23 the claimant’s physical or mental ability to do basic work activities. 24 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not, the 25 disability claim is denied. If the claimant does, the evaluation 26 proceeds to the third step. ORDER REMANDING TO THE ALJ - 3 Step 1 three compares the claimant's impairment to several 2 impairments recognized by the Commissioner to be so severe as to 3 preclude a person from engaging in substantial gainful activity. 20 4 C.F.R. 5 impairment meets or equals one of the listed impairments, the claimant 6 is conclusively presumed to be disabled. If the impairment does not, 7 the evaluation proceeds to the fourth step. §§ 404.1520(d), 404 Subpt. P App. 1, 416.920(d). If the 8 Step four assesses whether the impairment prevents the claimant 9 from performing work he has performed in the past by examining the 10 claimant’s residual functional capacity. Id. §§ 404.1520(e), 11 416.920(e). If the claimant is able to perform the claimant’s previous 12 work, the claimant is not disabled. If the claimant cannot perform this 13 work, the evaluation proceeds to the fifth step. 14 Step five, the final step, assesses whether the claimant can 15 perform other work in the national economy in view of the claimant’s 16 age, 17 416.920(f); see Bowen v. Yuckert, 482 U.S. 137 (1987). If the claimant 18 can, the disability claim is denied. If the claimant cannot, the 19 disability claim is granted. 20 education, and work experience. 20 C.F.R. §§ 404.1520(f), The burden of proof shifts during this sequential disability 21 analysis. The 22 entitlement 23 Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). The burden then 24 shifts to the Commissioner to show 1) the claimant can perform other 25 substantial gainful activity, and 2) that a “significant number of jobs to claimant has disability the benefits 26 ORDER REMANDING TO THE ALJ - 4 initial under burden steps of one establishing through four. 1 exist in the national economy,” which the claimant can perform. Kail v. 2 Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 3 D. Procedural History and ALJ Findings1 4 Mr. Frank filed an application for supplemental security income 5 and disability insurance benefits, dated October 11, 2011, alleging a 6 disability onset date of September 1, 2011. Transcript of Record (Tr.) 7 25. Mr. Frank’s claim was denied initially and upon reconsideration. 8 Mr. Frank requested a hearing before an ALJ, Tr. 195, which was held on 9 November 15, 2013, Tr. 43-112. On February 14, 2014, the ALJ rendered 10 a decision denying Mr. Frank’s claim. Tr. 25-37. 11 At step one, the ALJ found Mr. Frank had not been engaged in 12 substantial gainful activities since September 1, 2011, the alleged 13 onset date. 14 At step two, the ALJ found Mr. Frank had the following medically 15 severe impairments: degenerative disc disease of the cervical spine with 16 radiculopathy, degenerative disc disease of the lumbar spine, vertigo, 17 HIV, chronic kidney disease, major depressive disorder, and generalized 18 anxiety disorder. At step three, the ALJ found Mr. Frank’s impairments, individually 19 20 or cumulatively, did not meet 21 impairments under 20 C.F.R. Part 404. one of the listed At step four, the ALJ found, although Mr. Frank does not have the 22 23 the severity of residual functional capacity to perform his past work, he can: 24 1 25 The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, and the 26 parties’ briefs. ORDER REMANDING TO THE ALJ - 5 1 2 lift and carry 10 pounds frequently and 20 pounds occasionally; 3 sit and stand and/or walk 6 hours in an 8-hour workday if he 4 has the ability to alternate between sitting and standing at 5 will; 6 7 8 not sit or stand more than 30 minutes at a time; frequently handle, finger, grip, and grasp with his bilateral upper extremities; 9 occasionally climb ladders, ropes, scaffolds, ramps, and 10 stairs; and 11 occasionally bend, stoop, kneel, crouch, and crawl. 12 The ALJ determined that Mr. Frank cannot work around fluorescent 13 lighting. Ultimately, the ALJ determined Mr. Frank is limited to simple, 14 unskilled work. 15 At step five, the ALJ found that there are jobs that exist in 16 significant numbers in the national economy that Mr. Frank can perform, 17 specifically, cashier II and ticket taker. 18 The Appeals Council denied Mr. Frank’s request for review, Tr. 19 196-200, making the ALJ’s decision the final decision for purposes of 20 judicial review. 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. 21 Mr. Frank filed this lawsuit in August 2015. ECF No. 1. 22 E. Analysis 23 Mr. Frank raises the following issues for this Court’s review of 24 the Commissioner’s final decision: 25 26 ORDER REMANDING TO THE ALJ - 6 1 1) did the ALJ improperly reject the opinions of Mr. Frank’s medical providers, Dr. Perreira and Dr. Goshima; 2 3 2) did the ALJ improperly reject Mr. Frank’s subjective complaints; 4 5 3) did the ALJ improperly reject lay-witness statements; and 6 4) did the ALJ fail to fully consider Mr. Frank’s specific 7 functional limitations when determining that he could perform 8 work as a cashier II or a ticket taker. 9 The Court evaluates each issue in turn. 10 1. Medical Providers 11 There are three type of physicians: treating physicians, examining 12 physicians, and non-examining physicians. Lester v. Chater, 81 F.3d 821, 13 830 (9th Cir. 1995). It is undisputed that Dr. T. Noelani Perreira, 14 Psy.D. 15 physician. is an examining physician and Dr. Goshima is a treating 16 “As a general rule, more weight should be given to the opinion of 17 a treating source than to the opinion of doctors who do not treat the 18 claimant.” Lester, 81 F.3d at 830. However, “if a treating doctor’s 19 opinion is contradicted by other medical evidence in the record, the 20 ALJ may reject this opinion . . . by ‘providing specific and legitimate 21 reasons supported by substantial evidence.’” Dominguez v. Colvin, 808 22 F.3d 403, 406-07 (9th Cir. 2015) (quoting Bayliss v. Barnhart, 427 F.3d 23 1211, 1216 (9th Cir. 2005)). If a treating or examining physician’s 24 opinion is not contradicted by other medical evidence in the record, 25 then the ALJ must provide “clear and convincing” reasons supported by 26 “substantial evidence” in the record to reject the opinion. Lester, 81 ORDER REMANDING TO THE ALJ - 7 1 F.3d at 830. “In disability benefits cases, physicians may render 2 medical, clinical opinions, or they may render opinions on the ultimate 3 issue of disability—the claimant's ability to perform work." Garrison 4 v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quotation omitted). 5 Dr. Perreria conducted a mental examination of Mr. Frank and found, 6 amongst other findings, that Mr. Frank showed an extremely low ability 7 to process visual material and had a borderline ability to sustain 8 attention, 9 Perreria opined that Mr. Frank would have difficulty following detailed 10 instructions but he would be able to understand and perform short and 11 simple instructions. The Court agrees with the Commissioner that the 12 ALJ did not reject Dr. Perreira’s opinions but rather gave them weight 13 and 14 consistent 15 appropriately considered and gave weight to Dr. Perreira’s opinions. 16 Mr. Frank’s motion is denied in this regard, and the Commissioner’s 17 motion is granted. then concentrate, assessed with Dr. and mental exert mental control. Ultimately, residual-functional-capacity Perreira’s opinions. The Court Dr. limitations finds the ALJ 18 As to Dr. Goshima, the ALJ rejected Dr. Goshima’s opinions that 19 Mr. Frank would need unscheduled breaks of more than 10 per day, miss 20 more than 4 days of work a month, and be off task at least 15 percent 21 of the time. Mr. Frank argues that it was not proper for the ALJ to 22 reject 23 undetectable HIV viral load and that his HIV was well controlled, it is 24 undisputed that he suffered from HIV and that he experienced symptoms, 25 such as diarrhea and fatigue, as a result of the medication he took to 26 treat his HIV. Mr. Frank also argues that there was evidence to support these opinions because ORDER REMANDING TO THE ALJ - 8 regardless of whether he had an 1 the need for unscheduled breaks and absenteeism because the MRI of his 2 lumbar spine showed marked foraminal stenosis, there was severe central 3 stenosis left of the L3-4, and of his diarrhea, fatigue, depression, 4 anxiety, and treatment for such. Lastly, Mr. Frank submits that there 5 was evidence to support Dr. Goshima’s findings of marked limitations in 6 daily living activities and in concentration, persistence, and pace 7 given that the IQ testing revealed that his processing speed was in the 8 extremely low range and that his working score was in the borderline 9 range. 10 The Court is unable to conclude that the ALJ failed to articulate 11 specific and legitimate reasons supported by substantial evidence for 12 discrediting 13 limitations 14 concentration, and pace. The other medical records indicate that Mr. 15 Frank’s depression was not so extensive as to impose a marked limitation 16 on these abilities. And the ALJ appropriately concluded the other 17 medical records did not support a need for unscheduled breaks or 18 absenteeism. The ALJ appropriately reduced the range of light work to 19 those that included only simple work in order to accommodate the chronic 20 fatigue suffered by Mr. Frank as a result of his HIV and treatment 21 thereof. In summary, the Court finds the ALJ appropriately identified 22 legitimate grounds for discrediting Dr. Goshima’s marked-limitation 23 findings. 24 Commissioner’s motion is granted. 25 // 26 / In Dr. in Goshima’s activities this regard, opinions of Mr. ORDER REMANDING TO THE ALJ - 9 that daily Frank’s Mr. living, motion Frank social is had marked functioning, denied, and the 1 2. Subjective Complaints 2 An ALJ uses a two-step analysis to assess whether a claimant's 3 testimony regarding subjective pain or symptoms is credible. Garrison 4 v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). Step one requires the 5 ALJ to determine whether the claimant presented objective medical 6 evidence of an impairment, which could reasonably be expected to produce 7 some degree of the pain or other symptoms alleged. Lingenfelter v. 8 Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007); Smolen v. Chater, 80 9 F.3d 1273, 1282 (9th Cir. 1996). Objective medical evidence of the pain 10 or fatigue, or the severity thereof, need not be provided by the 11 claimant. Garrison, 759 F.3d at 1014. If the claimant satisfies the 12 first step of this analysis, and there is no evidence of malingering, 13 the ALJ must accept the claimant's testimony about the severity of his 14 symptoms unless, at step two, the ALJ provides specific, clear, and 15 convincing 16 testimony. Id.; Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). Factors 17 that an ALJ may consider in weighing a claimant's credibility include 18 reputation for truthfulness, inconsistencies in testimony or between 19 testimony 20 inadequately explained, failure to seek treatment or follow a prescribed 21 course of treatment. Orn, 495 F.3d at 635. reasons and for conduct, rejecting daily the claimant’s activities, and symptom-severity unexplained, or 22 Mr. Frank argues the ALJ failed to provide clear and convincing 23 reasons for making a negative credibility finding—and failed to consider 24 Mr. Frank’s conditions in combination. The Court agrees. Mr. Frank 25 presented objective medical evidence of impairments, such as HIV and 26 degenerative disc disease, which could reasonably be expected to produce ORDER REMANDING TO THE ALJ - 10 1 some degree of the pain, memory impairments, fatigue, and diarrhea. 2 There is no evidence of malingering in the record. Prior to the alleged 3 onset of his disability, Mr. Frank was an active individual, who worked 4 and swam. 5 The ALJ notes that medical records indicate that medication and 6 treatment were generally successful in controlling many of Mr. Frank’s 7 symptoms. But HIV is a degenerative disease, and the medication that 8 Mr. Frank has taken for years indisputably has immediate and cumulative 9 side-effects, including memory problems and diarrhea. Mr. Frank’s daily 10 activities 11 progressively negatively impacted. Being able to focus during a medical 12 appointment is quantitatively different than being able to focus and 13 feel well enough to be productive during an eight-hour work day. See 14 Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014). The Court finds 15 the 16 limitations and failed to provide specific, clear, and convincing 17 reasons for rejecting Mr. Frank’s symptom-severity testimony. In this 18 regard, Mr. Frank’s motion is granted, and the Commissioner’s motion is 19 denied. 20 3. 21 “Lay testimony as to a claimant's symptoms or how an impairment 22 affects the claimant's ability to work is competent evidence that the 23 ALJ must take into account.” Molina v. Astrue, 674 F.3d 1104, 1114 (9th 24 Cir. 2012). The ALJ may not disregard competent lay witness testimony 25 without comment and therefore must give specific, germane reasons for 26 disregarding the testimony. Id.; Bruce v. Astrue, 557 F.3d 1113, 1115 ALJ become failed to progressively look at the fewer and cumulative his impact memory of Mr. became Frank’s Lay-Witness Statements ORDER REMANDING TO THE ALJ - 11 1 (9th Cir. 2009). This is a lower standard than is required for rejecting 2 the 3 limitations. claimant’s statements regarding the severity of the suffered 4 Jerry Barnes, Mr. Frank’s housemate, testified that Mr. Frank’s 5 daily activities deteriorated from 2011 to November 2013, the time of 6 the administrative hearing, and that at the time of the hearing, Mr. 7 Frank required assistance to get in and out of the bathtub and get out 8 of bed and that taking public transportation was difficult because Mr. 9 Frank cannot remember where he is supposed to get off or he falls asleep 10 on the bus and misses his stop. The ALJ only found Mr. Barnes’ testimony 11 partially credible because the ALJ determined that the medical records 12 reflected that Mr. Frank’s limitations were not as significant as Mr. 13 Barnes testified. Under the low standard that applies to the ALJ’s 14 rejection of lay testimony, the Court finds the ALJ provided specific 15 and germane reasons for rejecting Mr. Barnes’ testimony. In this regard, 16 Mr. Frank’s motion is denied, and the Commissioner’s motion is granted. 17 F. Conclusion Because the ALJ failed to provide clear and convincing reasons for 18 19 rejecting 20 impairments, the Court remands this matter for additional proceedings. 21 On remand, the ALJ is to consider whether Mr. Frank’s testimony is to 22 be deemed true and, if so, what impact that testimony has on the reasons 23 given 24 testimony. See Dominguez, 808 F.3d at 407 (requiring remand if there is 25 a serious doubt as to whether the claimant is in fact disabled even if 26 the claimant’s testimony is accepted). The ALJ can determine whether to Mr. Frank’s partially statements reject Dr. ORDER REMANDING TO THE ALJ - 12 regarding Goshima’s the opinions severity and Mr. of his Barnes’ 1 presentation of further evidence would be helpful in light of the 2 passage of time since the November 2013 administrative hearing. The ALJ 3 shall present the new residual-functional-capacity assessment to a 4 vocational expert to help determine whether Mr. Franks is capable of 5 performing any work existing in sufficient numbers in the national 6 economy. 7 Accordingly, IT IS HEREBY ORDERED: 8 1. Mr. Frank’s Motion for Summary Judgment, ECF No. 13, is GRANTED IN PART (subjective complaints and new residual- 9 10 functional-capacity 11 (remainder). 12 2. and DENIED IN PART The Commissioner’s Motion for Summary Judgment, ECF No. 17, is GRANTED IN PART AND DENIED IN PART (remand is necessary). 13 14 assessment) 3. This matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 15 16 4. Judgment is to be entered in Mr. Frank’s favor. 17 5. An application for attorney fees may be filed by separate motion by Mr. Franks. 18 19 6. The case shall be CLOSED. 20 IT IS SO ORDERED. 21 and provide copies to counsel and the Office of Disability Adjudication 22 and Review, 714 N. Iron Bridge Way, Ste. 200, Spokane, WA 99202. 23 DATED this The Clerk’s Office is directed to enter this Order 6th day of April 2016. 24 25 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 26 Q:\EFS\Civil\2015\5079.soc.sec.lc1.docx ORDER REMANDING TO THE ALJ - 13
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