Ross v. Commissioner of Social Security, No. 2:2018cv00016 - Document 14 (E.D. Wash. 2018)
Court Description: ORDER GRANTING 12 Plaintiff's Motion for Summary Judgment; DENYING 13 Defendant's Motion for Summary Judgment. The decision of the Commissioner denying benefits is reversed and remanded for an award of benefits, with a disability onset date of January 1, 2012. File closed. Signed by Judge Stanley A Bastian. (SK, Case Administrator)
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Ross v. Commissioner of Social Security Doc. 14 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Sep 04, 2018 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 5 6 DANIEL R., 7 Plaintiff, 8 v. 9 COMMISSIONER OF SOCIAL 10 SECURITY ADMINISTRATION, Defendant. 11 No. 2:18-cv-00016-SAB ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; 12 DENYING DEFENDANT’S 13 MOTION FOR SUMMARY 14 JUDGMENT 15 Before the Court are Plaintiff Daniel R. Ross’ Motion for Summary 16 Judgment, ECF No. 12, and Defendant Commissioner of the Social Security 17 Administration’s Cross-Motion for Summary Judgment, ECF No. 13. The motions 18 were heard without oral argument. Plaintiff is represented by D. James Tree, and 19 Defendant is represented by Assistant United States Attorney Timothy Durkin and 20 Special Assistant United States Attorney Michael Howard. For the reasons set 21 forth below, the Court grants Plaintiff’s motion, denies Defendant’s motion, 22 reverses the decision of the administrative law judge (“ALJ”), and remands for a 23 determination of Social Security payments with an onset date of January 1, 2012. 24 Jurisdiction 25 On January 31, 2014, Plaintiff filed an application for supplemental security 26 income disability insurance benefits. Plaintiff alleges a disability onset date of 27 January 1, 2012. 28 // ORDER GRANTING PLAINTIFF’S MOTION . . . + 1 Dockets.Justia.com 1 Plaintiff’s application was denied initially and on reconsideration. On 2 February 18, 2016, Plaintiff appeared and testified at a hearing held in Seattle, 3 Washington before an ALJ. The ALJ issued a decision on October 4, 2016, finding 4 Plaintiff was not disabled. Plaintiff timely requested review by the Appeals 5 Council, which denied the request on November 20, 2017. The Appeals Council’s 6 denial of review makes the ALJ’s decision the final decision of the Commissioner. 7 Plaintiff filed a timely appeal with the United States District Court for the 8 Eastern District of Washington on January 16, 2018. The matter is before this 9 Court under 42 U.S.C. § 405(g). 10 Sequential Evaluation Process 11 The Social Security Act defines disability as the “inability to engage in any 12 substantial gainful activity by reason of any medically determinable physical or 13 mental impairment which can be expected to result in death or which has lasted or 14 can be expected to last for a continuous period of not less than twelve months.” 42 15 U.S.C. § 1382c(a)(3)(A). A claimant shall be determined to be under a disability 16 only if his impairments are of such severity that the claimant is not only unable to 17 do his previous work, but cannot, considering claimant’s age, education, and work 18 experiences, engage in any other substantial gainful work which exists in the 19 national economy. 42 U.S.C. § 1382c(a)(3)(B). 20 The Commissioner has established a five-step sequential evaluation process 21 for determining whether a person is disabled. 20 C.F.R. § 416.920(a)(4); Bowen v. 22 Yuckert, 482 U.S. 137, 140-42 (1987). 23 Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. 24 § 416.920(b). Substantial gainful activity is work done for pay and requires 25 compensation above the statutory minimum. Id.; Keyes v. Sullivan, 894 F.2d 1053, 26 1057 (9th Cir. 1990). If the claimant is engaged in substantial activity, benefits are 27 denied. 20 C.F.R. § 416.971. If he is not, the ALJ proceeds to step two. 28 // ORDER GRANTING PLAINTIFF’S MOTION . . . + 2 1 Step 2: Does the claimant have a medically-severe impairment or 2 combination of impairments? 20 C.F.R. § 416.920(c). If the claimant does not have 3 a severe impairment or combination of impairments, the disability claim is denied. 4 A severe impairment is one that lasted or must be expected to last for at least 5 twelve months and must be proven through objective medical evidence. 20 C.F.R. 6 § 416.908-.909. If the impairment is severe, the evaluation p N.P. Alexander’s lengthy treatment notes dating back two years prior to the 27 February 2016 hearing. During the treating relationship, A.R.N.P. Alexander 28 treated Plaintiff on a regular basis and diagnosed him with supraspinatus and ORDER GRANTING PLAINTIFF’S MOTION . . . + 10 1 infraspinatus tendinosis, as well as degenerative changes and an insertional tear of 2 the AC joint, located in the Plaintiff’s right shoulder. AR 371, 404. A.R.N.P. 3 Alexander had been treating Plaintiff for several years and was familiar with 4 Plaintiff’s medical history and limitations. The ALJ’s failure to consider the nature 5 of this treating relationship was error. 6 For the reasons stated above, the ALJ committed a reversible error by failing 7 to attribute the opinion of Plaintiff’s primary treating source, A.R.N.P. Alexander, 8 controlling weight. 9 10 B. Myrna Palasi, M.D. In addition to not giving A.R.N.P. Alexander’s medical opinion controlling 11 weight, the ALJ erroneously failed to assign weight to the opinion of Dr. Palasi. 12 Dr. Palasi served as a reviewing physician. In reviewing Plaintiff’s medical 13 records, Dr. Pasai found that Plaintiff had marked and severe medical limitations 14 that met the durational requirement, and limited Plaintiff to sedentary work. The 15 ALJ mentions nothing of the weight attributed to Dr. Palasi’s opinion. The Court 16 infers that where the ALJ mistakenly references the “opinion of Dr. Walker”—an 17 opinion that does not exist in this record—and purports to attribute this opinion 18 “partial weight,” that the ALJ intended to refer to Dr. Palasi’s opinion. Id. 19 The Court concludes the ALJ mischaracterized Dr. Palasi’s medical opinion 20 and failed to provide clear and convincing reasons for attributing the opinion only 21 “partial weight.” The ALJ cites to one evaluation done by Dr. Palasi wherein Dr. 22 Palasi opined Plaintiff is limited to sedentary work. AR 28, 365. While the 23 exertional tables show limitation to sedentary work, the evaluation demonstrates 24 that Plaintiff’s impairments, considered as a whole, demonstrate that Plaintiff is 25 severely limited in his ability to work. AR 583. Dr. Palasi reviewed the medical 26 evidence and concurred with A.R.N.P. Alexander that Plaintiff was severely 27 limited because of his shoulder impairment. AR 28, 364-66, 581. Similarly, Dr. 28 Palasi notes Plaintiff’s onset date was four years prior to surgery. The fact that the ORDER GRANTING PLAINTIFF’S MOTION . . . + 11 1 Dr. Palasi and A.R.N.P. Alexander’s opinions are consistent with one another 2 bolsters both treating sources’ opinions. The opinions of both A.R.N.P. Alexander 3 and Dr. Palasi demonstrate a cumulative impairment duration of four and a half to 4 five years. This meets the minimum impairment durational requirement for a 5 disability claim. 6 Because the ALJ did not find that Dr. Palasi’s opinion was contradicted, the 7 ALJ may only reject it for clear and convincing reasons. In the opinion, the ALJ 8 did not lay out the standard for discounting the opinion of a medical source; nor 9 does the ALJ explain why Dr. Palasi’s opinion was purportedly given only partial 10 weight. Dr. Palasi’s opinion is consistent with medical evidence in the record, 11 including Plaintiff’s continued pain after surgery, failure at physical therapy, and 12 the requirement of opioid pain management. Accordingly, the ALJ’s rejection of 13 Dr. Palasi’s opinion was unfounded. 14 In conclusion, the ALJ committed reversible error by discounting the 15 medical opinions of A.R.N.P. Alexander and Dr. Palasi without giving clear and 16 convincing reasons for doing so. 17 2. Whether the ALJ properly rejected Plaintiff’s testimony. 18 An ALJ will no longer perform “credibility findings” when reviewing a 19 claimant’s subjective symptom evaluation. SSR 16-3P, 2017 WL 5180304, at *1. 20 The subjective symptom evaluation no longer examines an individual’s character, 21 and is instead replaced with a two-step evaluation process. First, the ALJ will use 22 objective medical evidence from an acceptable medical source to determine 23 “whether the individual has a medically determinable impairment (“MDI”) that 24 could reasonably be expected to produce the individual’s alleged symptoms.” Id at 25 *3. Test results that are consistent with other evidence in the record will be given 26 greater weight than test results that are inconsistent with other evidence in the 27 record. Id at *1. The ALJ will not consider the severity of an individual’s alleged 28 symptoms when determining whether there is an underlying MDI. Id at *3. If the ORDER GRANTING PLAINTIFF’S MOTION . . . + 12 1 ALJ determines that there are MDIs based solely on the medical evidence in the 2 record, then Plaintiff’s symptom testimony is not considered. 3 If the ALJ cannot establish an MDI “that is fully favorable based solely on 4 objective medical evidence,” then the next step is to “carefully consider other 5 evidence in the record.” Id. at *6. The examination of other evidence in the record 6 “includes statements from the individual, medical sources, and any other sources 7 that might have information about the individual’s symptoms . . . as well as the 8 factors set forth in our regulations.” Id. When considering an individual’s 9 statements about the intensity, persistence, and effects of symptoms the ALJ 10 should “evaluate whether the statements are consistent with objective medical 11 evidence and other evidence.” Id. When there is no evidence of malingering, the 12 ALJ must give “specific, clear and convincing reasons” for rejecting a claimant’s 13 subjective symptom testimony. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 14 2012) (citation omitted). 15 In recognition of the fact that an individual’s symptoms can sometimes 16 suggest a greater level of severity of impairment than can be shown by the 17 objective medical evidence alone, 20 C.F.R. §§ 404.1529(c)(3) and 416.929(c)(3) 18 describe the kinds of evidence, including the factors below, that the ALJ must 19 consider in addition to the objective medical evidence when assessing the 20 individual’s subjective symptom testimony: 21 22 23 24 25 26 27 1. The individual’s daily activities; 2. The location, duration, frequency, and intensity of the individual’s pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors 28 ORDER GRANTING PLAINTIFF’S MOTION . . . + 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 concerning the individual’s functional limitations and restrictions due to pain or other symptoms. SSR 16-3p. The ALJ found Plaintiff’s MDIs “could reasonably be expected to cause the alleged symptoms; however [Plaintiff’s] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” AR 25. The ALJ gave two reasons for this finding: (1) Plaintiff’s limited daily activities were not “objectively verified with a high degree of certainty”; and (2) assuming Plaintiff’s disabilities are severe as alleged, it is difficult to ascribe these limitations to his medical condition. Id. For the reasons discussed below, the ALJ erroneously found that the Plaintiff’s testimony regarding the intensity, persistence, and limitations were inconsistent with the record. First, the ALJ mistakenly concluded that the Plaintiff’s limited daily activities could not be “objectively verified with a high degree of certainty” by the evidence in the record. The ALJ determined the evidence in the record fails to establish Plaintiff’s disability is due to physical impairments attributable to his obese state. AR 26. However, the ALJ also notes there is evidence that Plaintiff “was obese throughout the record.” Id. Plaintiff asserts that his obese state has affected his mobility and ability to sleep. Both Plaintiff’s sleep apnea and assisted ambulation are documented throughout the record. See, e.g., AR 439 (Plaintiff is diagnosed with sleep apnea); AR 756 (noting Plaintiff’s “back problems” and use of a cane make “walking down the hallway” a difficult task). The ALJ found Plaintiff’s limitations related to obesity cannot be verified with a high degree of certainty, and therefore discounts Plaintiff’s testimony. However, the record is replete with sources documenting Plaintiff’s limitations in relation thereto. Additionally, the ALJ mischaracterizes an MRI of Plaintiff’s right shoulder that supports Plaintiff’s alleged limitations. The ALJ noted the “X-rays of his right 28 ORDER GRANTING PLAINTIFF’S MOTION . . . + 14 1 shoulder showed a normal shoulder with no evidence of degenerative joint 2 disease.” AR 26. To the contrary, the X-ray shows evidence of a degenerative joint 3 disease of the AC joint and greater tuberosity spurring. AR 368. An MRI 4 conducted by A.R.N.P. Alexander showed degenerative changes and an insertional 5 tear in Plaintiff’s shoulder; Dr. Palasi concurred in this assessment. AR 371, 404. 6 Plaintiff testified that he stopped working because of his right shoulder pain and 7 the medical evidence substantially supports Plaintiff’s symptom allegations. 8 The Ninth Circuit has “warned that ALJs must be especially cautious in 9 concluding that daily activities are inconsistent with testimony about pain, because 10 impairments that would unquestionably preclude work and all the pressures of a 11 workplace environment will often be consistent with doing more than merely 12 resting in bed all day.” Garrison, 759 F.3d at 1016. Recognizing that claimants 13 should not be penalized for attempting to lead their normal lives, “only if 14 Plaintiff’s level of activity is inconsistent with his claimed limitations” should this 15 have any bearing on Plaintiff’s testimony. Id. 16 Plaintiff’s testimony regarding his daily activities is consistent with his 17 limitations. Plaintiff takes all day to complete daily chores because of his pain, 18 takes frequent breaks, and requires assistance walking and occasionally getting 19 dressed. AR 207. Plaintiff’s testimony that he cannot work due to his shoulder pain 20 is consistent with Plaintiff’s limitations of standing for twenty minutes at a time, 21 the necessity of alternating positions approximately every fifteen minutes, and 22 requiring a rest break while walking down the hall. Id. The ALJ’s conclusory 23 finding that Plaintiff’s testimony is not entirely consistent with the evidence in the 24 record is erroneous. Moreover, Plaintiff’s daily activities are not inconsistent with 25 his described limitations and the ALJ improperly discredited Plaintiff in this 26 respect. 27 Second, the ALJ concluded that if Plaintiff’s symptoms are “truly as limited 28 as alleged, it would be difficult to attribute that degree of limitation the claimant’s ORDER GRANTING PLAINTIFF’S MOTION . . . + 15 1 medical condition, as opposed to other reasons, in view of the relatively weak 2 medical evidence.” AR 27. The ALJ should only consider Plaintiff’s testimony if it 3 cannot be determined, based solely on the objective medical evidence in the 4 record, that Plaintiff has MDIs that are reasonably expected to cause the symptoms 5 alleged. SSR 16-3P, 2017 WL 5180304, at *3. Plaintiff need not show with 6 absolute certainty, or a high degree of certainty, as the ALJ suggests, that his 7 symptoms are directly caused by his impairments. The ALJ noted that Plaintiff’s 8 MDIs “could reasonably be expected to cause the alleged symptoms.” AR 25. 9 Accordingly, the ALJ should only discount a claimant’s subjective testimony that 10 “could not reasonably be expected to produce the individual’s symptoms.” SSR 11 16-3p at *4. The ALJ failed to follow the procedure outlined in the regulations for 12 discounting Plaintiff’s symptom testimony and therefore erred. 13 Overall, the record substantiates Plaintiff’s testimony and does not support 14 the ALJ’s findings. Plaintiff’s testimony regarding his daily activities is consistent 15 with his testimony about his functional limitations and objective medical evidence 16 in the record. Accordingly, the ALJ committed reversible error. 17 18 Conclusion The ALJ erroneously gave improper weight to medical opinion evidence and 19 rejected Plaintiff’s symptom testimony. If this evidence had been properly 20 credited, Plaintiff would have been found disabled. A review of the record as a 21 whole, including Plaintiff’s testimony in concert with the properly-credited opinion 22 of A.R.N.P. Alexander and Dr. Palasi, creates no legitimate doubt that Plaintiff is 23 disabled within the meaning of the Social Security Act. Further administrative 24 proceedings will not be useful and there are no outstanding issues to consider. 25 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1105 (9th Cir. 2014). 26 Consequently, the proper remedy is to remand for a calculation and award of 27 appropriate benefits, with a disability onset date of January 1, 2012. Garrison, 759 28 F.3d at 1019-20. ORDER GRANTING PLAINTIFF’S MOTION . . . + 16 1 Accordingly, IT IS HEREBY ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is GRANTED. 3 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is DENIED. 4 3. The decision of the Commissioner denying benefits is reversed and 5 remanded for an award of benefits, with a disability onset date of January 1, 2012. 6 4. The District Court Executive is directed to enter judgment in favor of 7 Plaintiff and against Defendant. 8 IT IS SO ORDERED. The District Court Executive is hereby directed to 9 file this Order, provide copies to counsel, enter judgment, and close the file. 10 DATED this 4th day of September, 2018. 11 12 13 14 15 16 17 Stanley A. Bastian United States District Judge 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . + 17
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