Butler v. Commissioner of Social Security, No. 1:2016cv03101 - Document 26 (E.D. Wash. 2017)

Court Description: ORDER Granting 15 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

Download PDF

Butler v. Commissioner of Social Security Doc. 26 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Sep 08, 2017 SEAN F. MCAVOY, CLERK 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 PATTI BUTLER, No. 1:16-CV-03101-JTR Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 15, 24. Attorney D. James Tree represents Patti Butler (Plaintiff); Special 19 Assistant United States Attorney Tina Renee Saladino represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 22 record and the briefs filed by the parties, the Court GRANTS, in part, Plaintiff’s 23 Motion for Summary Judgment; DENIES Defendant’s Motion for Summary 24 Judgment; and REMANDS the matter to the Commissioner for additional 25 proceedings pursuant to 42 U.S.C. § 405(g). 26 JURISDICTION 27 Plaintiff filed applications for Supplemental Security Income (SSI) and 28 Disability Insurance Benefits (DIB) on July 29, 2010, alleging disability since June ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 1, 2010, Tr. 96-97, 230-237, due to attention deficit disorder (ADD), posttraumatic 2 stress disorder (PTSD), bipolar disorder, borderline personality disorder, 3 depression, fibromyalgia, and cluster migraines. Tr. 294. The applications were 4 denied initially and upon reconsideration. Tr. 155-162, 165-169. Administrative 5 Law Judge (ALJ) Gene Duncan held a hearing on September 6, 2012 and heard 6 testimony from Plaintiff, vocational expert, Trevor Duncan, and medical expert, 7 Robert Sklaroff, M.D. Tr. 36-78. The ALJ issued an unfavorable decision on 8 December 18, 2012. Tr. 17-35. The Appeals Council denied review on June 26, 9 2014. Tr. 1-6. Plaintiff filed a complaint with the U.S. District Court, Eastern 10 District of Washington and this Court remanded the case the Commissioner for 11 additional proceedings in May of 2015. 1 Tr. 731-755. The Appeals Council 12 vacated the December 18, 2012 ALJ decision and remanded the case to an ALJ for 13 “further proceedings consistent with the order of the court.” Tr. 758. 14 ALJ M.J. Adams held a hearing on February 29, 2016 and heard testimony 15 from Plaintiff and vocational expert, Daniel McKinney. Tr. 669-705. ALJ Adams 16 issued an unfavorable decision on March 30, 2016. Tr. 17-35. The Appeals 17 Council did not assume jurisdiction under 20 C.F.R. §§ 404.984, 416.1418 and the 18 March 30, 2016 decision became the final decision of the Commissioner, which is 19 20 1 The administrative record includes the District Court’s Order Granting 21 Plaintiff’s Motion for Judgement, Inter Alia filed May 22, 2015, Tr. 731-754, but a 22 review of the docket sheet for the case, 1:14-CV-3121-LRS, revealed that an 23 Amended Order Granting Plaintiff’s Motion for Judgement, Inter Alia was filed 24 May 26, 2015, ECF No. 28 in 1:14-CV-3121-LRS. The Court compared the 25 original order and the amended order and found the changes to be typographical 26 and not substantive. As such, the ALJ’s reliance on the original order, and not the 27 amended order, would not result in a substantially different outcome in the ALJ’s 28 determination. ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 2 action for judicial review on May 31, 2016. ECF No. 1, 4. STATEMENT OF FACTS 3 The facts of the case are set forth in the administrative hearing transcript, the 4 5 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 6 here. 7 Plaintiff was 42 years old at the alleged onset date. Tr. 230. She completed 8 her GED in 1990. Tr. 295. She was working as a payee provider for the 9 Department of Social and Health Services at the time of her application. Tr. 294- 10 11 12 295. Her work history includes the positions of stocker and clerk. Tr. 295. STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 13 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 14 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 15 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 16 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 17 not supported by substantial evidence or if it is based on legal error. Tackett v. 18 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 19 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 20 another way, substantial evidence is such relevant evidence as a reasonable mind 21 might accept as adequate to support a conclusion. Richardson v. Perales, 402 22 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 23 interpretation, the court may not substitute its judgment for that of the ALJ. 24 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 25 findings, or if conflicting evidence supports a finding of either disability or non- 26 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 27 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 28 substantial evidence will be set aside if the proper legal standards were not applied ORDER GRANTING PLAINTIFF’S MOTION . . . - 3 1 in weighing the evidence and making the decision. Brawner v. Secretary of Health 2 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 3 4 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 5 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 6 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 7 through four, the burden of proof rests upon the claimant to establish a prima facie 8 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 9 burden is met once the claimant establishes that physical or mental impairments 10 prevent her from engaging in her previous occupations. 20 C.F.R. §§ 11 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do her past relevant work, 12 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 13 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 14 exist in the national economy which the claimant can perform. Batson v. Comm’r 15 of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (9th Cir. 2004). If the claimant 16 cannot make an adjustment to other work in the national economy, a finding of 17 “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 18 19 ADMINISTRATIVE DECISIONS On December 18, 2012, ALJ Duncan issued a decision finding Plaintiff was 20 not disabled as defined in the Social Security Act. At step one, the ALJ found 21 Plaintiff had not engaged in substantial gainful activity since the alleged onset date, 22 June 1, 2010. Tr. 22. At step two, the ALJ determined Plaintiff had the severe 23 impairment of fibromyalgia. Id. At step three, the ALJ found Plaintiff did not 24 have an impairment or combination of impairments that met or medically equaled 25 the severity of one of the listed impairments. Tr. 26. At step four, the ALJ 26 assessed Plaintiff’s residual function capacity (RFC) and determined she could 27 perform a full range of light work with no nonexertional limitations. Id. The ALJ 28 then identified Plaintiff’s past relevant work as cashier and determined her RFC ORDER GRANTING PLAINTIFF’S MOTION . . . - 4 1 allowed her to perform this work. Tr. 29. In the alternative to an unfavorable step 2 four determination, the ALJ found at step five, that, based on Medical-Vocational 3 Rule 202.21, Plaintiff was not disabled. Tr. 29-30. In conclusion, the ALJ found 4 Plaintiff had not been under a disability from June 1, 2010 through the date of his 5 decision, December 18, 2012. Tr. 30. 6 Upon appeal, the Appeals Council found no reason to review ALJ Duncan’s 7 decision. Tr. 1. Therefore, Plaintiff filed a request for review in the U.S. District 8 Court for the Eastern District of Washington. Tr. 731-732. The district court 9 remanded the case back to the Commissioner with the following instructions: 10 11 12 13 14 15 16 17 18 Although the ALJ erred in finding that Plaintiff does not have “severe” mental impairments, there must still be a determination as to Plaintiff’s mental RFC. In making the mental RFC determination, the ALJ will have to accept as true that Plaintiff’s mental impairments significantly limit her ability to perform basic work-related activities at least to the extent indicated by the mental health professionals who have examined her (Drs. Strosahl, Cooper and Dougherty). Plaintiff’s mental RFC, along with her physical RFC for less than the full range of light work as opined by Drs. Ho and Chau, will have to be presented to a vocational expert who will testify whether Plaintiff’s combined mental and physical RFC allows her to perform jobs existing in significant numbers in the national economy. 19 Tr. 753. On July 16, 2015, the Appeals Council issued an order remanding the 20 case, stating that “the Appeals Council vacates the final decision of the 21 Commissioner of Social Security and remands this case to an Administrative Law 22 Judge for further proceedings consistent with the order of this court.” Tr. 758. 23 On March 30, 2016, ALJ Adams issued a new decision finding Plaintiff was 24 not disabled as defined in the Social Security Act. At step one, the ALJ found 25 Plaintiff had not engaged in substantial gainful activity since June 1, 2010. Tr. 26 649. At step two, the ALJ determined Plaintiff had the following severe 27 impairments: obesity; fibromyalgia; affective disorder; anxiety disorder (including 28 PTSD); left carpal tunnel syndrome, status post release surgery; and left rotator ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 cuff disorder and thoracic outlet syndrome, status post subacromial decompression. 2 Tr. 650. At step three, the ALJ found Plaintiff did not have an impairment or 3 combination of impairments that met or medically equaled the severity of one of 4 the listed impairments. Tr. 650. 5 6 At step four, ALJ Adams assessed Plaintiff’s RFC and determined she could perform a range of light work with the following limitations: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 The claimant can occasionally lift and carry 21 to 50 pounds and continuously lift and carry 10 to 20 pounds. She can never lift and carry over 51 pounds. The claimant can sit, stand, or walk for up to two hours each at a time for a total of eight hours per day standing or walking and a total of four hours per day sitting. She can frequently reach with the right, dominant, upper extremity; can occasionally handle, finger, and feel; and can frequently push and pull with the right upper extremity. The claimant can occasionally reach with the left upper extremity and can frequently handle, finger, feel, push or pull. The claimant can frequently use foot controls, bilaterally. She can occasionally climb ramps, stairs, ladders, ropes or scaffolds. She can frequently balance. The claimant can occasionally stoop, kneel crouch, and crawl. The claimant has no environmental limitations. The claimant can perform simple, routine tasks and follow short, simple instructions. She can also understand, remember, and follow complex directions. The claimant can perform work that needs little or no judgement and can perform simple duties that can be learned on the job in a short period of less than thirty days. The claimant can do more complex work that rises to the level of semi-skilled work. The claimant can respond appropriately to supervision, co-workers, and deal with occasional changes in the work environment. The claimant can perform work that requires only occasional exposure to or interaction with the generally public, but this does not preclude one-on-one contact with clients. 24 25 Tr. 652-653. The ALJ identified Plaintiff’s past relevant work as case aide and 26 concluded that Plaintiff retained the RFC to perform this work. Tr. 659. 27 In the alternative to an unfavorable decision at step four, ALJ Adams found 28 that at step five, considering Plaintiff’s age, education, work experience and RFC, ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 and based on the testimony of the vocational expert, there were other jobs that exist 2 in significant numbers in the national economy Plaintiff could perform, including 3 the job of companion. Tr. 660. The ALJ concluded Plaintiff was not under a 4 disability within the meaning of the Social Security Act at any time from June 1, 5 2010, through the date of the ALJ’s decision, March 30, 2016. Tr. 661. ISSUES 6 The question presented is whether substantial evidence supports the ALJ’s 7 8 decision denying benefits and, if so, whether that decision is based on proper legal 9 standards. Plaintiff contends that ALJ Adams erred by (1) failing to follow the 10 remand instructions of the Appeals Council and District Court, (2) failing to 11 properly consider the medical source opinions, (3) finding that Plaintiff had past 12 relevant work, and (4) failing to meet her step five burden. DISCUSSION 13 14 15 A. Remand Instructions Plaintiff argues that upon remand, the ALJ violated the law of the case 16 doctrine and the rule of mandate when she failed to follow the District Court’s 17 remand instructions. ECF No. 15 at 9-13. Specifically, Plaintiff argues that the 18 ALJ failed to credit as true the opinions of Dr. Strosahl, Dr. Cooper, and Dr. 19 Dougherty regarding her mental RFC, the ALJ failed to make a physical RFC for 20 less than a full range of light work, and the ALJ failed to present the combined 21 mental and physical RFC to a vocational expert. Id. at 10. 22 Both the law of the case doctrine and the rule of mandate apply in social 23 security cases. Stacy v. Colvin, 825 F.3d 563, 567 (9th Cir. 2016). “The law of the 24 case doctrine generally prohibits a court from considering an issue that has already 25 been decided by that same court or a higher court in the same case.” Id. citing Hall 26 v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012). The doctrine exists 27 for the purpose of efficiency, and should not be applied when the evidence on 28 remand is substantially different, when the controlling law has changed, or when ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 applying the doctrine would be unjust. See Merritt v. Mackey, 932 F.2d 1317, 2 1320 (9th Cir. 1991). 3 “The rule of mandate is similar to, but broader than, the law of the case 4 doctrine.” United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995). The rule of 5 mandate provides that any “district court that has received the mandate of an 6 appellate court cannot vary or examine that mandate for any purpose other than 7 executing it.” Hall, 697 F.3d at 1067. The district court may, however, “decide 8 anything not foreclosed by the mandate.” Id. But the district court commits 9 “jurisdictional error” if it takes actions that contradict the mandate. See id. This is 10 codified in 20 C.F.R. §§ 404.977(b), 416.1477(b): “The administrative law judge 11 shall take any action that is ordered by the Appeals Council and may take any 12 additional action that is not inconsistent with the Appeals Council’s remand order.” 13 Whether an ALJ has obeyed the remand order of an appellate court is a question of 14 law that the district court reviews de novo. See Sullivan v. Hudson, 490 U.S. 877, 15 886 (1989). 16 1. 17 The District Court and the Appeals Council instructed ALJ Adams to 18 “accept as true” that Plaintiff’s mental health impairments significantly limited her 19 ability to perform basic-work activities at least to the extent that Dr. Strosahl, Dr. 20 Cooper, and Dr. Dougherty opined. Tr. 753. In line with the Appeals Council’s 21 remand order, ALJ Adams found that Plaintiff had severe mental health 22 impairments at step two. Tr. 650. Additionally, the ALJ gave significant weight to 23 the opinions of Dr. Dougherty and Dr. Cooper, but “[v]ery little weight” to the 24 opinion of Dr. Strosahl. Tr. 658-659. Plaintiff argues that the ALJ violated the 25 remand order in his rejection of Dr. Strosahl’s opinion and in failing to include all 26 the limitations opined by Dr. Cooper. ECF No. 15 at 10-12. 27 28 Opinions of Dr. Strosahl, Dr. Cooper, and Dr. Dougherty Dr. Dougherty completed a psychological evaluation in September of 2010. Tr. 417-427. He diagnosed her with attention deficit hyper activity disorder ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 (ADHD), PTSD, depressive disorder, anxiety disorder, rule out somatoform 2 disorder, and rule out symptom exaggeration. Tr. 425. At the end of the 3 evaluation, Dr. Dougherty provided the following medical source statement: 4 5 6 7 8 9 Mrs. Butler was pleasant and cooperative with me. Her thinking was rational and goal-directed though her responses often tangential. Her social skills appear to be good. She reports being able to function effectively as a care-provider, helping to manage her client’s money and helping with his daily activities. She reports being able to concentrate well when not distracted. She should be able to understand, remember and follow both simple and complex directions. She reported having done well in college classes in the past. 10 11 12 Tr. 426-427. On January 12, 2011, Dr. Strosahl diagnosed Plaintiff with severe PTSD and 13 co-occurring major depression. Tr. 553. Dr. Strosahl stated that Plaintiff was 14 “extremely anxious/fearful particularly around strangers. Depression leads to 15 reduced concentration, forgetfulness and problems with cognitive processing.” Id. 16 Dr. Strosahl limited Plaintiff to working zero hours per week. Id. 17 Dr. Cooper completed a psychological evaluation on October 30, 2012. Tr. 18 622-634. Dr. Cooper diagnosed Plaintiff with bipolar II disorder, anxiety disorder, 19 and borderline personality disorder. Tr. 632. Dr. Cooper opined that Plaintiff 20 “would have some problems with change and with maintaining attention and 21 concentration for extended periods of time,” noting that these “problems would be 22 more evidence in busy settings in which she has to frequently interact with the 23 general public and to multi-task.” Id. Dr. Cooper additionally found that while 24 Plaintiff would usually be reliable in responding to normal hazards, she would be 25 “more impulsive” in situations in which she feels there is a direct threat to another 26 person. Id. Dr. Cooper found Plaintiff would have problems with supervisors, and 27 “would not have significant problems with coworkers provided that she and they 28 could complete work independently of one another. She would not do well in a ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 close knit team.” Tr. 633. Dr. Cooper also found that Plaintiff “would do best in 2 settings in which she is given some say in determining how best to complete her 3 assigned tasks,” she would ‘benefit from concrete feedback about specific things 4 she does well,” she would “benefit from reassurance that mistakes are not 5 indications of personal failure,” and it would be helpful to have “[s]pecific 6 suggestions for performance improvement supported by recognition of 7 improvement.” Id. While Plaintiff asserts that the District Court’s prior determination instructed 8 9 the ALJ to credit the opinions as true on remand, this Court finds that the remand 10 instructions were limited to a step two determination regarding whether or not 11 Plaintiff’s mental health impairments were severe. Tr. 743,753. ALJ Adams 12 included mental health impairments in her step two determination. Tr. 650. 13 Considering the differences in the three opinions, it was not error for her to then 14 weigh the opinions in forming her RFC. Andrews, 53 F.3d at 1039 (The ALJ is 15 responsible for resolving conflicts in medical testimony and ambiguities.). 16 2. Light RFC 17 ALJ Duncan gave Plaintiff a RFC limiting Plaintiff to a full range of light 18 work as defined by 20 C.F.R. §§ 404.1567(b), 416.967(b). Tr. 26. The District 19 Court than instructed the ALJ on remand to present a physical RFC of less than 20 light work to the vocational expert. Then the Appeals Council remanded the “case 21 to an Administrative Law Judge for further proceedings consistent with the order 22 of this court.” Upon remand, ALJ Adams gave Plaintiff a RFC of “light work as 23 defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b)” but placed Plaintiff’s 24 occasional lifting and carrying restrictions in the 21 to 50 pound range and 25 continuous lifting and carrying restrictions in the 10 to 20 pounds range. Tr. 652. 26 The regulations define light work as “lifting no more than 20 pounds at a time with 27 frequent lifting or carrying of objects weighing up to 10 pounds.” 20 C.F.R. §§ 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 2 404.1567(b), 416.967(b). As such, the ALJ violated the law of case doctrine. 2 There was evidence available to ALJ Adams, which was not available to the 3 District Court or the Appeals Council at the time of remand: the physical 4 consultative examination performed by William R. Drenguis, M.D. Tr. 1072- 5 1083. See Merritt. 932 F.2d at 1320 (The law of the case doctrine should not be 6 applied when the evidence on remand is substantially different, when the 7 controlling law has changed, or when applying the doctrine would be unjust). 8 However, this examination was inconsistent and of no substance. Dr. Drenguis 9 stated that Plaintiff’s maximum lifting and carry capacity was 20 pounds 10 occasionally and 10 pounds frequently. Tr. 1076. On the Medical Source 11 Statement he indicated that Plaintiff could continuously lift and carry up to 20 12 pounds and occasionally lift and carry 21 to 50 pounds. Tr. 1078. The ALJ failed 13 to address these contradictory statements and gave Dr. Drengius’s opinion that 14 Plaintiff could occasionally lift and carry 21 to 50 pounds “significant weight”. Tr. 15 656. Due to these inconsistencies Dr. Drengius’s opinion is unclear and this Court 16 refuses to find the record substantially different on remand. Therefore, no 17 exception under Merritt applies. 18 19 As such, the ALJ erred when she gave Plaintiff an RFC that exceeded the light exertional level. 20 3. 21 Plaintiff argues that because the ALJ failed to properly follow the remand 22 order, the hypothetical presented to the vocational expert was inaccurate and had 23 not evidentiary value. ECF No. 15 at 13. 24 Hypothetical Presented to Vocational Expert Testimony from a vocational expert is only valuable to the extent that it is 25 26 2 Regardless of her final RFC determination, the ALJ failed to set forth a 27 hypothetical before the Vocational Expert that conformed to the district court and 28 the Appeals Council’s instructions. Tr. 691-698. ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 supported by substantial evidence. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th 2 Cir. 1984). Here, the ALJ erred in forming her RFC determination. As such, a 3 remand is necessary to form a new RFC, meaning that testimony will once again 4 be taken from a vocational expert. 5 B. Plaintiff argues that the ALJ erred in the weight she gave to the opinions of 6 7 Psychological Opinions. Dr. Strosahl and Dr. Cooper. ECF No. 15 at 13-18. 8 In weighing medical source opinions, the ALJ should distinguish between 9 three different types of physicians: (1) treating physicians, who actually treat the 10 claimant; (2) examining physicians, who examine but do not treat the claimant; 11 and, (3) nonexamining physicians who neither treat nor examine the claimant. 12 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 13 weight to the opinion of a treating physician than to the opinion of an examining 14 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 15 should give more weight to the opinion of an examining physician than to the 16 opinion of a nonexamining physician. Id. 17 When an examining physician’s opinion is not contradicted by another 18 physician, the ALJ may reject the opinion only for “clear and convincing” reasons, 19 and when an examining physician’s opinion is contradicted by another physician, 20 the ALJ is only required to provide “specific and legitimate reasons” to reject the 21 opinion. Lester, 81 F.3d at 830-831. The specific and legitimate standard can be 22 met by the ALJ setting out a detailed and thorough summary of the facts and 23 conflicting clinical evidence, stating her interpretation thereof, and making 24 findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is 25 required to do more than offer her conclusions, she “must set forth [her] 26 interpretations and explain why they, rather than the doctors’, are correct.” 27 Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 1988). 28 /// ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 1. Dr. Strosahl 2 The ALJ gave Dr. Strosahl’s opinion “very little weight” because (1) it was 3 inconsistent with his observations, (2) it was conducted to justify a temporary 4 funding for a period of “months” of counseling and medication and (3) it was 5 inconsistent with Plaintiff’s activities. Tr. 659. 6 The ALJ’s first reason for rejecting Dr. Strosahl’s opinion, that it was 7 inconsistent with his observations, is not legally sufficient. The ALJ cited to Dr. 8 Strosahl’s January 24, 2011 treatment note stating that Plaintiff was “doing quite a 9 bit better.” Tr. 659 citing 482. However, this is not a statement from Dr. Strosahl, 10 but Dr. Strosahl repeating a subjective statement by Plaintiff: “Patti states that she 11 feels she is doing quite a bit better since our last meeting.” Tr. 482. As a 12 subjective statement by Plaintiff and not an observation by the provider, this is not 13 substantial evidence to support the ALJ’s reason. 14 The ALJ’s second reason, that this opinion was completed for the purpose of 15 obtaining temporary benefits, is not legally sufficient. The purpose for which 16 medical reports are prepared does not provide a legitimate basis for rejecting them. 17 Lester, 81 F.3d at 832. Here, Dr. Strosahl’s opinion is contained on a 18 Documentation Request for Medical/Disability Condition form from the 19 Department of Social and Health Services (DSHS). Tr. 553-554. The fact that this 20 form was completed to discern if Plaintiff qualified for temporary benefits is not a 21 legally sufficient reason. 22 The ALJ’s third reason for rejecting Dr. Strosahl’s opinion, that it was 23 inconsistent with Plaintiff’s activities of working with farm animals, providing 24 childcare, and volunteering in the community, is also not legally sufficient. A 25 claimant’s testimony about her daily activities may be seen as inconsistent with the 26 presence of a disabling condition. See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th 27 Cir. 1990). However, it is unclear how these activities are inconsistent with Dr. 28 Strosahl’s opinion that Plaintiff is “extremely anxious/fearful particularly around ORDER GRANTING PLAINTIFF’S MOTION . . . - 13 1 strangers. Depression leads to reduced concentration, forgetfulness and problems 2 with cognitive processing.” Tr. 553. The ALJ failed to describe how these 3 activates are inconsistent with Plaintiff activities. Fair v. Bowen, 885 F.2d 597, 4 603 (9th Cir. 1989) (a claimant need not be “utterly incapacitated” to be eligible 5 for benefits). The ALJ also appeared to tack on the final reason that the opinion was 6 7 inconsistent with the record as a whole, but this included no discussion. Tr. 659. 8 Therefore, it fails to meet the necessary standard. 2. 9 Dr. Cooper. 10 The ALJ gave “significant weight” to Dr. Cooper’s opinion. Tr. 658. 11 However, Plaintiff alleges that the ALJ failed to include all of Dr. Cooper’s 12 opinion in her RFC determination. Tr. 15 at 11-12. Specifically, Plaintiff alleges 13 that Dr. Cooper’s limitation that Plaintiff would have some problems with 14 supervisors was not represented in the RFC. ECF No. 15 at 11. Dr. Cooper found that Plaintiff “would not require close supervision if she 15 16 has a comfortable routine to follow in a setting she enjoys.” Tr. 632. Additionally, 17 she found that Plaintiff “would have some problems with supervisors because of 18 her personality traits.” Tr. 633. In the RFC determination the ALJ found that 19 Plaintiff could “respond appropriately to supervision.” Tr. 653. The ALJ is required to explain why “significant probative evidence has been 20 21 rejected.” Vincent v. Heckler, 739 F.2d 1393, 1394-1395, (9th Cir. 1984). Here, 22 by giving Dr. Cooper’s opinion significant weight but not including her opined 23 limitations in the RFC, the ALJ rejected portions of her opinion without 24 explanation, which is an error. Upon remand, the ALJ will readdress the psychological opinions contained 25 26 in the record. 27 C. 28 Past Relevant Work Plaintiff argues that the ALJ erred in finding that Plaintiff had past relevant ORDER GRANTING PLAINTIFF’S MOTION . . . - 14 1 work because the ALJ failed to consider the business expenses in determining 2 whether the net income from the work for DSHS qualified as substantial gainful 3 activity. ECF No. 14 at 18. Plaintiff argues that this work was previously 4 determined by Social Security to not qualify as SGA due to deductions for business 5 expenses. Id. citing Tr. 290. However, the income discussed at Tr. 290 was 6 actually work Plaintiff performed in 2010 after her alleged date of onset. Tr. 287. 7 The ALJ’s determination regarding the job of case aide was performed in 2007 and 8 2008, prior to the alleged date of onset. Tr. 659. Upon remand, the ALJ will 9 readdress the work done for DSHS and determine if it was performed as an 10 employee or as self-employment. Then, the ALJ will determine whether or not the 11 work was performed at substantial gainful activity to determine whether or not the 12 work qualifies as past relevant work. 13 D. 14 Step Five Plaintiff asserts that the ALJ erred at step five by failing to meet her burden. 15 ECF No. 15 at 18-19. Specifically, Plaintiff argues that the ALJ’s RFC 16 determination limits her to occasional handling and fingering, but the job of case 17 aide requires frequent handling and fingering. Id. at 19. Considering the case is 18 being remanded for additional proceedings, the ALJ is to call a vocational expert to 19 testify at the hearing. Should the vocational expert’s testimony deviate from the 20 dictionary of occupational titles, he shall provide an explanation for the deviation. 21 REMEDY 22 The decision whether to remand for further proceedings or reverse and 23 award benefits is within the discretion of the district court. McAllister v. Sullivan, 24 888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate 25 where “no useful purpose would be served by further administrative proceedings, 26 or where the record has been thoroughly developed,” Varney v. Secretary of Health 27 & Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused 28 by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280 ORDER GRANTING PLAINTIFF’S MOTION . . . - 15 1 (9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) 2 (noting that a district court may abuse its discretion not to remand for benefits 3 when all of these conditions are met). This policy is based on the “need to 4 expedite disability claims.” Varney, 859 F.2d at 1401. But where there are 5 outstanding issues that must be resolved before a determination can be made, and it 6 is not clear from the record that the ALJ would be required to find a claimant 7 disabled if all the evidence were properly evaluated, remand is appropriate. See 8 Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211 9 F.3d 1172, 1179-80 (9th Cir. 2000). 10 In this case, neither the ALJ nor Plaintiff’s counsel presented a hypothetical 11 to the vocational expert which represented the RFC Plaintiff asserts she has if the 12 evidence she challenged were credited as true. Therefore, this Court must remand 13 this case for additional proceedings. In these additional proceedings, the ALJ will 14 present a hypothetical to the vocational expert that limits Plaintiff to light work as 15 defined by 20 C.F.R. §§ 404.1567(b) and 416.967(b) or less and reweigh the 16 opinions of the psychologists in the record to form a new mental RFC. Should the 17 ALJ find that substantial evidence supports a work restriction outside of the light 18 exertional level, the ALJ shall explain his or her rationale. Likewise, should the 19 ALJ find that the opinions of Dr. Strosahl and Dr. Cooper are either inconsistent or 20 not supported by substantial evidence, he shall provide legally sufficient reasons. 21 The ALJ will also address Plaintiff’s work as a case aide and determine if it 22 qualifies as past relevant work. The ALJ shall call a vocational expert to testify at 23 the hearing. CONCLUSION 24 25 Accordingly, IT IS ORDERED: 26 1. 27 28 Defendant’s Motion for Summary Judgment, ECF No. 24, is DENIED. 2. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is ORDER GRANTING PLAINTIFF’S MOTION . . . - 16 1 GRANTED, in part, and the matter is REMANDED to the Commissioner for 2 additional proceedings consistent with this Order. 3 3. Application for attorney fees may be filed by separate motion. 4 The District Court Executive is directed to file this Order and provide a copy 5 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff 6 and the file shall be CLOSED. 7 DATED September 8, 2017. 8 9 10 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 17

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.