Glenn v. Colvin, No. 1:2015cv03164 - Document 18 (E.D. Wash. 2016)
Court Description: ORDER GRANTING, IN PART, PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS; granting in part ECF No. 14 Plaintiff's Motion for Summary Judgment; and denying ECF No. 15 Defendant's Motion for Summary Judgment. FILED CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)
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Glenn v. Colvin Doc. 18 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Sep 12, 2016 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 4 5 6 7 PAULA GLENN, Plaintiff, v. 8 9 10 11 No. 1:15-CV-3164-JTR CAROLYN W. COLVIN, Commissioner of Social Security, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 12 13 BEFORE THE COURT are cross-motions for summary judgment. ECF 14 No. 14, 15. Attorney D. James Tree represents Paula Glenn (Plaintiff); Special 15 Assistant United States Attorney Ruan Ta Lu represents the Commissioner of 16 Social Security (Defendant). The parties have consented to proceed before a 17 magistrate judge. ECF No. 3. After reviewing the administrative record and the 18 briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s Motion for 19 Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 20 REMANDS the matter to the Commissioner for additional proceedings pursuant to 21 42 U.S.C. § 405(g). 22 23 JURISDICTION Plaintiff filed an application for Supplemental Security Income (SSI) on 24 April 5, 2012, alleging disability since January 1, 2011, due to migraine headaches, 25 bipolar disorder, Post-Traumatic Stress Disorder (PTSD), depression, anxiety and 26 panic attacks. Tr. 141-144, 155. The application was denied initially and upon 27 reconsideration. Administrative Law Judge (ALJ) Timothy Mangrum held a 28 hearing on December 3, 2013, Tr. 33-56, and issued an unfavorable decision on ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 May 7, 2014, Tr. 19-28. The Appeals Council denied Plaintiff’s request for review 2 on July 17, 2015. Tr. 1-3. The ALJ’s May 2014 decision thus became the final 3 decision of the Commissioner, which is appealable to the district court pursuant to 4 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on September 15, 5 2015. ECF No. 1, 5. 6 7 STATEMENT OF FACTS Plaintiff was born on September 14, 1987, and was 24 years old on the SSI 8 application date, April 5, 2012. Tr. 141. Plaintiff went to school until the ninth 9 grade, and it does not appear she has obtained a GED. Tr. 48, 50, 156. Her 10 “Disability Report” indicates she has never worked. Tr. 155. Plaintiff was 11 approved for SSI as a child, but the SSI was discontinued following a reevaluation 12 at age 18. Tr. 38-39. Plaintiff had a difficult childhood and spent time in foster 13 care until she turned 18. Tr. 38, 48. 14 At the administrative hearing, Plaintiff testified she has migraine headaches 15 about 21 days per month, Tr. 43-44, PTSD which causes flashbacks and 16 nightmares, Tr. 45, problems with anxiety and paranoia, Tr. 47, and plantar 17 fasciitis, Tr. 50. Plaintiff indicated she was unable to afford medical benefits and 18 that has prevented her from getting regular check-ups, attending counseling 19 sessions, and receiving treatment for her plantar fasciitis. Tr. 47, 50-51. 20 Plaintiff has three children; however, her two youngest children were taken 21 by CPS and adopted by another family, and the oldest child lived with Plaintiff’s 22 mother. Tr. 45-46. Plaintiff testified at the time of the administrative hearing that 23 she had been clean and sober for three years, but had previously abused cocaine 24 and methamphetamines. Tr. 49. 25 26 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 27 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 28 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 2 1 although deference is owed to a reasonable construction of the applicable statutes. 2 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ 3 may be reversed only if it is not supported by substantial evidence or if it is based 4 on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 5 evidence is defined as being more than a mere scintilla, but less than a 6 preponderance. Id. at 1098. Put another way, substantial evidence is such relevant 7 evidence as a reasonable mind might accept as adequate to support a conclusion. 8 Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to 9 more than one rational interpretation, the court may not substitute its judgment for 10 that of the ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. 11 Admin., 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by 12 substantial evidence will still be set aside if the proper legal standards were not 13 applied in weighing the evidence and making the decision. Brawner v. Secretary 14 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial 15 evidence supports the administrative findings, or if conflicting evidence supports a 16 finding of either disability or non-disability, the ALJ’s determination is conclusive. 17 Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 18 19 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 20 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 21 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 22 four, the burden of proof rests upon the claimant to establish a prima facie case of 23 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 24 met once a claimant establishes that a physical or mental impairment prevents him 25 from engaging in his previous occupation. 20 C.F.R. §§ 404.1520(a)(4), 26 416.920(a)(4). If a claimant cannot do his past relevant work, the ALJ proceeds to 27 step five, and the burden shifts to the Commissioner to show that (1) the claimant 28 can make an adjustment to other work; and (2) specific jobs exist in the national ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 3 1 economy which claimant can perform. Batson v. Commissioner of Social Sec. 2 Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make an 3 adjustment to other work in the national economy, a finding of “disabled” is made. 4 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). ADMINISTRATIVE DECISION 5 On May 7, 2014, the ALJ issued a decision finding Plaintiff was not disabled 6 7 as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not 8 engaged in substantial gainful activity since April 5, 2012, the application date. Tr. 9 21. At step two, the ALJ determined Plaintiff had the following severe 10 impairments: anxiety/PTSD; rule out cognitive disorder; bipolar disorder not 11 otherwise specified; plantar fasciitis; and headaches. Tr. 21. At step three, the 12 ALJ found Plaintiff did not have an impairment or combination of impairments 13 that meets or medically equals the severity of one of the listed impairments. Tr. 14 22. 15 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 16 determined Plaintiff could perform light exertion level work, but would be limited 17 to unskilled work, including tasks that can be learned in 30 days or less, with few 18 workplace changes and simple work related decisions, and could only occasionally 19 interact with the public and co-workers. Tr. 23. 20 At step four, the ALJ found Plaintiff had no past relevant work. Tr. 27. At 21 step five, the ALJ determined that, considering Plaintiff’s age, education, work 22 experience and RFC, and based on the testimony of the vocational expert, Plaintiff 23 was capable of making a successful adjustment to other work that exists in 24 significant numbers in the national economy, including the jobs of production 25 assembler, housekeeper and hand packager. Tr. 27-28. The ALJ thus concluded 26 Plaintiff was not under a disability within the meaning of the Social Security Act at 27 any time from April 5, 2012, the date the application for SSI was filed, through the 28 date of the ALJ’s decision, May 7, 2014. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 4 1 ISSUES The question presented is whether substantial evidence supports the ALJ’s 2 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. Plaintiff contends the ALJ erred by (1) failing to properly consider 5 Listing 12.05C; (2) improperly rejecting the opinions of a state agency medical 6 consultant; and (3) discrediting Plaintiff’s symptom testimony. DISCUSSION 7 8 A. Plaintiff’s Subjective Complaints 9 Plaintiff contends the ALJ erred by failing to provide valid reasons for 10 rejecting her subjective complaints. ECF No. 14 at 11-16. The Court agrees. 11 It is the province of the ALJ to make credibility determinations. Andrews, 12 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 13 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 14 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 15 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 16 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 17 “General findings are insufficient: rather the ALJ must identify what testimony is 18 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 19 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 20 In this case, the ALJ found Plaintiff’s medically determinable impairments 21 could reasonably be expected to cause the alleged symptoms; however, some of the 22 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 23 the symptoms were not credible. Tr. 24-25. 24 The ALJ first found that the objective medical evidence was inconsistent 25 with the extent of Plaintiff’s allegations of symptoms and limitations. Tr. 25. A 26 lack of supporting objective medical evidence is a factor which may be considered 27 in evaluating a claimant’s credibility, provided it is not the sole factor. Bunnell v. 28 Sullivan, 347 F.2d 341, 345 (9th Cir. 1991). Here, as noted by Plaintiff, ECF No. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 5 1 14 at 12-13, medical professionals of record have indicated that Plaintiff has 2 mental limitations which adversely affect her ability to perform work related 3 activities. See Tr. 64-66 & 77-79 (state agency psychologists finding Plaintiff has 4 several moderate limitations and would be in need of vocational rehabilitation 5 services); Tr. 536 (treating counselor opining in 2007 that Plaintiff was not stable); 6 and Tr. 545 (Edward Liu, ARNP, stating in November 2011, that Plaintiff’s 7 medical problems, including headaches, interfered with her ability to work). The 8 record as a whole reflects Plaintiff has consistently been diagnosed with PTSD, 9 bipolar disorder, ADHD, and depression. Moreover, she has had her children 10 taken away from her by CPS in part because she was not considered mentally 11 stable. Tr. 263. Plaintiff’s allegations of functional limitations are not 12 unsubstantiated by the objective evidence of record. 13 The ALJ also stated it appeared some of Plaintiff’s symptoms are controlled 14 with medication. Tr. 25. The ALJ supports this conclusion by noting that 15 Plaintiff’s presentations to the emergency room deceased significantly after she 16 was prescribed Imitrex for her headache symptoms. Tr. 25. The effectiveness of 17 medication in alleviating pain and other symptoms is a relevant factor to consider 18 in evaluating the severity of a claimant’s symptoms. 20 C.F.R. § 416.929(c)(3). 19 However, there is nothing in the record to substantiate the ALJ’s apparent 20 speculation that Plaintiff’s headaches decreased in number or severity after she was 21 prescribed Imitrex, or that Plaintiff’s headaches were otherwise “controlled” with 22 medication. The issue of medication effectiveness for reducing the frequency of 23 Plaintiff’s headaches remains unresolved in this case. 24 The ALJ also mentions there is no significant mental health treatment during 25 the relevant time period. Tr. 25. The Ninth Circuit has held that a lack of mental 26 health treatment is a questionable basis on which to reject a claim of a mental 27 impairment. Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (finding “it is 28 a questionable practice to chastise one with a mental impairment for the exercise of ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 6 1 poor judgment in seeking rehabilitation”) (citation and inner quotation marks 2 omitted). Furthermore, an ALJ must not draw an adverse inference from a 3 claimant’s failure to seek or pursue treatment without first considering an 4 explanation that the individual may provide, or other information in the case 5 record, that may explain infrequent or irregular medical visits or failure to seek 6 medical treatment. See Dean v. Astrue, 2009 WL 2241333 (E.D. Wash. 2009). 7 Here, Plaintiff testified at the administrative hearing that she was unable to afford 8 medical benefits, and the lack of medical insurance prevented her from having 9 regular check-ups, attending counseling sessions, and obtaining treatment for her 10 plantar fasciitis. Tr. 47, 50-51. Plaintiff provided an adequate explanation for her 11 lack of significant mental health treatment during the relevant time period. 12 The ALJ is responsible for reviewing the evidence and resolving conflicts or 13 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 14 1989). This Court has a limited role in determining whether the ALJ’s decision is 15 supported by substantial evidence and may not substitute its own judgment for that 16 of the ALJ even if it might justifiably have reached a different result upon de novo 17 review. 42 U.S.C. § 405(g). It is the role of the trier of fact, not this Court, to 18 resolve conflicts in evidence. Richardson, 402 U.S. at 400. Nevertheless, based 19 on the foregoing, the Court concludes that the rationale provided by the ALJ for 20 discrediting Plaintiff is not clear and convincing. The Court thus finds a remand 21 for a proper determination regarding Plaintiff’s alleged symptoms is necessary in 22 this case.1 23 24 1 On March 16, 2016, SSR 16-3p became effective, eliminating the term 25 “credibility” from the Social Security Administration’s policy, and clarifying 26 “adjudicators will not assess an individual’s overall character or truthfulness.” 27 SSR 16-3p, 2016 WL 1119029 at *1, 10. Accordingly, on remand, the ALJ should 28 address SSR 16-3p as part of the review regarding Plaintiff’s alleged symptoms. ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 7 1 B. 2 Michael Brown, Ph.D Plaintiff contends the ALJ also erred by rejecting the opinions of state 3 agency reviewing medical consultant, Dr. Brown. ECF No. 14 at 9-11. Plaintiff 4 argues the ALJ failed to properly consider the opinion of Dr. Brown that because 5 of Plaintiff’s age and inexperience, she would likely require some vocational 6 rehabilitation guidance and would need help finding a work setting that avoids 7 specific PTSD triggers because she only had partial insight into those triggers. Id. As determined above, in light of the ALJ’s erroneous determination 8 9 regarding Plaintiff’s alleged symptoms, this matter will be remanded for additional 10 proceedings. On remand, the ALJ shall reconsider Plaintiff’s statements and 11 testimony. The ALJ shall additionally reassess the medical opinions of Dr. Brown, 12 Tr. 76-79, and all other medical evidence of record relevant to Plaintiff’s claim for 13 disability benefits. Furthermore, if warranted, the ALJ shall additionally direct 14 Plaintiff to undergo a new consultative psychological examination and/or elicit the 15 testimony of a medical expert at a new administrative hearing. 16 C. 17 Listing 12.05C Plaintiff contends the ALJ erred by finding Plaintiff’s mental impairments 18 did not meet or equal Listing 12.05C. ECF No. 14 at 6-9. It is claimant’s 19 responsibility to prove that her impairments satisfy the requirements of a Listings 20 impairment. Tackett, 180 F.3d at 1098-1099. 21 At step three, the ALJ considered Listing 12.00 and found that none of 22 claimant’s impairments medically met or equaled the criteria for this Listing. Tr. 23 23. The ALJ specifically stated as follows: “The record includes a history of 24 speculative low IQ, but the record during the relevant period does not indicate any 25 major deficiencies. . . . Further, there is no evidence of the ‘C’ criteria.” Tr. 23. 26 Listing 12.05 addresses intellectual disability characterized as significantly 27 subaverage general intellectual functioning with deficits in adaptive functioning 28 initially manifested during the developmental period; i.e., the evidence ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 8 1 demonstrates or supports onset of the impairment before age 22. 20 C.F.R. § 404, 2 Subpt. P, App. 1, § 12.05. To meet Listing 12.05C, a claimant must demonstrate: 3 (1) significantly subaverage general intellectual functioning with deficits in 4 adaptive functioning with an onset before age 22; (2) a valid verbal, performance, 5 or full scale IQ of 60 to 70; and (3) a physical or other mental impairment 6 imposing an additional and significant work-related limitation of function. 20 7 C.F.R. § 404, Subpt. P, App. 1, § 12.05C; Kennedy v. Colvin, 738 F.3d 1172, 1174 8 (9th Cir. 2013). 9 Defendant concedes the evidence satisfies the second and third elements of 10 Listing 12.05C (Tr. 241 (report describing a performance IQ score of 70); Tr. 21- 11 22 (ALJ finding Plaintiff severe physical and mental impairments imposing work- 12 related limitations)), but challenges the first element. ECF No. 15 at 7. The Court 13 finds that, while the record clearly reflects Plaintiff had a troubling childhood, the 14 first prong of the test for Listing 12.05C, whether Plaintiff has significantly 15 subaverage intellectual functioning with deficits in adaptive functioning with an 16 onset before age 22, is unresolved at this time. 17 On remand, the ALJ shall further develop the record by requiring Plaintiff to 18 undergo a new consultative psychological examination and/or eliciting testimony 19 from a psychological medical expert. This information will assist the ALJ in his 20 reassessment of step three of the sequential evaluation process. On remand, the 21 ALJ shall reevaluate step three with specific attention given to the first prong of 22 the test for Listing 12.05C. 23 24 CONCLUSION Plaintiff argues the ALJ’s decision should be reversed and remanded for an 25 immediate award benefits. The Court has the discretion to remand the case for 26 additional evidence and findings or to award benefits. Smolen, 80 F.3d at 1292. 27 The Court may award benefits if the record is fully developed and further 28 administrative proceedings would serve no useful purpose. Id. Remand is ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 9 1 appropriate when additional administrative proceedings could remedy defects. 2 Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). In this case, the Court 3 finds that further development is necessary for a proper determination to be made. 4 On remand, the ALJ shall reexamine Plaintiff’s statements and testimony 5 and reassess step three of the sequential evaluation process with specific attention 6 given to Listing 12.05C, taking into consideration the opinions of Dr. Brown, and 7 all other medical evidence of record relevant to Plaintiff’s claim for disability 8 benefits. The ALJ shall develop the record further by requiring Plaintiff to 9 undergo a new consultative psychological examination prior to a new 10 administrative hearing and, if warranted, by eliciting the testimony of a medical 11 expert. The ALJ shall obtain supplemental testimony from a vocational expert, if 12 necessary, and take into consideration any other evidence or testimony relevant to 13 Plaintiff’s disability claim. 14 Accordingly, IT IS ORDERED: 15 1. 16 17 18 19 20 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is GRANTED, in part. 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 21 4. An application for attorney fees may be filed by separate motion. 22 The District Court Executive is directed to file this Order and provide a copy 23 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 24 the file shall be CLOSED. 25 DATED September 12, 2016. 26 27 28 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE ORDER GRANTING, IN PART, PLAINTIFF’S MOTION . . . - 10
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