Gonzales v. Commissioner of Social Security, No. 4:2017cv05157 - Document 18 (E.D. Wash. 2018)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT 15 , INTER ALIA - denying 16 Motion for Summary Judgment. Signed by Senior Judge Lonny R. Suko. (VR, Courtroom Deputy)

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Gonzales v. Commissioner of Social Security Doc. 18 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 2 May 30, 2018 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 CHRISTINA PETRA GONZALES, Plaintiff, 9 10 11 12 13 14 15 vs. COMMISSIONER OF SOCIAL SECURITY, Defendant. ______________________________ ) 18 19 20 21 22 23 24 25 26 27 No. 4:17-CV-05157-LRS ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 15) and the Defendant's Motion For Summary Judgment (ECF No. 16). 16 17 ) ) ) ) ) ) ) ) ) ) ) JURISDICTION Christina Petra Gonzales, Plaintiff, applied for Title II Social Security Disability Insurance benefits (SSDI) and for Title XVI Supplemental Security Income benefits (SSI) on April 25, 2013. The applications were denied initially and on reconsideration. Plaintiff timely requested a hearing which was held on September 9, 2015 before Administrative Law Judge (ALJ) Kimberly Boyce. Plaintiff testified at the hearing, as did Vocational Expert (VE) Trevor Duncan. On June 9, 2016, the ALJ issued a decision finding the Plaintiff not disabled. The Appeals Council denied a request for review of the ALJ’s decision, making that decision the Commissioner’s final decision subject to judicial review. The Commissioner’s final decision is appealable to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com STATEMENT OF FACTS 1 2 The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. 4 Plaintiff has an 11th grade education1 and past relevant work experience as an 5 agricultural produce packer. She alleges disability since April 1, 2012, on which date 6 she was 40 years old. 7 STANDARD OF REVIEW 8 9 "The [Commissioner's] determination that a claimant is not disabled will be 10 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 11 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 12 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 13 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 14 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 15 1988). 16 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 17 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 18 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 19 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 20 On review, the court considers the record as a whole, not just the evidence supporting 21 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 22 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 23 "It means such relevant evidence as a reasonable mind might accept as It is the role of the trier of fact, not this court to resolve conflicts in evidence. 24 Richardson, 402 U.S. at 400. If evidence supports more than one rational 25 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 26 27 1 28 Per her Disability Report, AR at p. 249. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 2 F.2d 577, 579 (9th Cir. 1984). 1 2 A decision supported by substantial evidence will still be set aside if the proper 3 legal standards were not applied in weighing the evidence and making the decision. 4 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 5 1987). 6 ISSUES 7 8 Plaintiff argues the ALJ erred in: 1) failing to develop the record by ordering 9 additional intellectual testing; 2) rejecting the opinion of examining clinical 10 psychologist, CeCilia Cooper, Ph.D.; and 3) failing to provide specific, clear and 11 convincing reasons for discounting Plaintiff’s testimony regarding her symptoms and 12 limitations. 13 14 15 16 DISCUSSION SEQUENTIAL EVALUATION PROCESS 17 The Social Security Act defines "disability" as the "inability to engage in any 18 substantial gainful activity by reason of any medically determinable physical or 19 mental impairment which can be expected to result in death or which has lasted or can 20 be expected to last for a continuous period of not less than twelve months." 42 21 U.S.C. § 423(d)(1)(A) and § 1382c(a)(3)(A). The Act also provides that a claimant 22 shall be determined to be under a disability only if her impairments are of such 23 severity that the claimant is not only unable to do her previous work but cannot, 24 considering her age, education and work experiences, engage in any other substantial 25 gainful work which exists in the national economy. Id. 26 The Commissioner has established a five-step sequential evaluation process for 27 determining whether a person is disabled. 20 C.F.R. §§ 404.1520 and 416.920; 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 3 1 Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines 2 if she is engaged in substantial gainful activities. If she is, benefits are denied. 20 3 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If she is not, the decision-maker 4 proceeds to step two, which determines whether the claimant has a medically severe 5 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii) and 6 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination 7 of impairments, the disability claim is denied. 8 evaluation proceeds to the third step, which compares the claimant's impairment with 9 a number of listed impairments acknowledged by the Commissioner to be so severe If the impairment is severe, the 10 as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii) and 11 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 12 equals one of the listed impairments, the claimant is conclusively presumed to be 13 disabled. If the impairment is not one conclusively presumed to be disabling, the 14 evaluation proceeds to the fourth step which determines whether the impairment 15 prevents the claimant from performing work she has performed in the past. If the 16 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. §§ 17 404.1520(a)(4)(iv) and 416.920(a)(4)(iv). If the claimant cannot perform this work, 18 the fifth and final step in the process determines whether she is able to perform other 19 work in the national economy in view of her age, education and work experience. 20 20 C.F.R. §§ 404.1520(a)(4)(v) and 416.920(a)(4)(v). 21 The initial burden of proof rests upon the claimant to establish a prima facie 22 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 23 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 24 mental impairment prevents her from engaging in her previous occupation. The 25 burden then shifts to the Commissioner to show (1) that the claimant can perform 26 other substantial gainful activity and (2) that a "significant number of jobs exist in the 27 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 4 1 1498 (9th Cir. 1984). 2 3 ALJ'S FINDINGS 4 The ALJ found the following: 5 1) Plaintiff has “severe” medically determinable impairments which include 6 borderline intellectual functioning, affective disorder, anxiety disorder, personality 7 disorder, somatoform disorder, osteoarthritis and obesity; 8 9 2) Plaintiff’s impairments do not meet or equal any of the impairments listed in 20 C.F.R. § 404 Subpart P, App. 1; 10 3) Plaintiff has the Residual Functional Capacity (RFC) to perform light work, 11 defined in 20 C.F.R. §§404.1567(b) and 416.967(b), except she cannot climb ladders, 12 ropes or scaffolds; can frequently stoop, kneel, crouch and climb ramps and stairs; 13 can occasionally crawl; can perform work in which concentrated exposure to extreme 14 cold, heat, vibration, fumes, odors, dusts, gases, poor ventilation and/or hazards is not 15 present; she can understand, remember and carry out unskilled, routine and repetitive 16 work that can be learned by demonstration and in which the tasks to be performed are 17 predetermined by the employer; she can cope with occasional changes in the work 18 setting; she can work in proximity to co-workers, but not in a team or cooperative 19 effort; she can perform work that does not require interaction with the general public 20 as an essential element of the job, but incidental contact with the general public is not 21 precluded; 22 4) Plaintiff’s RFC precludes performance of her past relevant work; 23 5) Plaintiff’s RFC allows performance of other jobs existing in significant 24 numbers in the national economy, including production assembler, hand packager and 25 assembler. 26 Accordingly, the ALJ concluded Plaintiff is not disabled. 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 5 1 DUTY TO DEVELOP RECORD 2 The ALJ has a basic duty to inform herself about facts relevant to her decision. 3 Heckler v. Campbell, 461 U.S. 458, 471 n. 1, 103 S.Ct. 1952 (1983). The ALJ’s duty 4 to develop the record exists even when the claimant is represented by counsel. 5 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). The duty is triggered by 6 ambiguous or inadequate evidence in the record and a specific finding of ambiguity 7 or inadequacy by the ALJ is not necessary. McLeod v. Astrue, 640 F.3d 881, 885 (9th 8 Cir. 2011). 9 Plaintiff underwent a psychological examination by Philip G. Barnard, Ph.D., 10 on February 8, 2013. This examination was conducted at the behest of the 11 Washington State Department of Social and Health Services (DSHS). 12 examination included testing, specifically the Wechsler Memory Scale (WMS)-IV 13 and the Wechsler Adult Intelligence Scale (WAIS)-IV. (AR at p. 330). 14 testing, Plaintiff “obtained a Raw Score of 0 on Trial 1 and Trial 2, indicating 15 extremely poor effort.” (AR at p. 330). Dr. Barnard diagnosed the Plaintiff with 16 “Malingering,” in addition to “Learning Disorder, NOS [Not Otherwise Specified],” 17 and “Borderline Intellectual Functioning.” (AR at p. 328). He opined that Plaintiff 18 had no more than “moderate” limitations on her abilities to perform basic work 19 activities. (AR at p. 329). Dr. Barnard asserted that Plaintiff “engaged in significant 20 exaggeration and magnification symptomatology” and “[s]he appeared to be 21 consciously deceptive with poor motivation and poor effort on the psychological 22 testing process.” (AR at p. 330). On the WAIS-IV, Plaintiff “obtained a Full Scale 23 [Intelligence Quotient] Estimate of 49.” (AR at p. 330). The During 24 An IQ of 69 and below is classified as “intellectual disability” as reflected in 25 Listing 12.05 which specifies four ways an individual may qualify as intellectually 26 disabled without requiring any further inquiry into her ability to work: (1) “[m]ental 27 incapacity . . . such that the use of standardized measures of intellectual functioning 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 6 1 is precluded;” (2) [a] valid verbal, performance, or full scale IQ of 59 or less;” (3) “[a] 2 valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other 3 mental impairment imposing an additional and significant work-related limitation of 4 function;” and (4) “[a] valid verbal, performance, or full scale IQ of 60 through 70, 5 resulting in at least two [milder impairments].” It is apparent that because of what he 6 considered Plaintiff’s poor effort on testing, Dr. Barnard did not consider valid the 7 full scale IQ estimate of 49 yielded from that testing. 8 9 Over a year later on April 10, 2014, Plaintiff was psychologically evaluated by CeCilia Cooper, Ph.D.. Among the records reviewed by Dr. Cooper was the 10 evaluation by Dr. Barnard. Dr. Cooper noted that Plaintiff’s scores on the WAIS-IV 11 and WMS-IV “were in the extremely low range” and “[i]t was felt that she did not 12 make much effort to do the tasks involved.” 13 “Memory” portion of her Mental Status examination, Dr. Cooper indicated that 14 Plaintiff “repeated one trial of five digits forward correctly on the digit span subtest 15 of the WAIS-IV,” that “[h]er raw score was seventeen,” and that “[h]er scaled score 16 was five which is in the extremely low range.” (AR at p. 472).2 It is unclear, 17 however, if Dr. Cooper was referring to scores from the WAIS-IV testing performed (AR at p. 468). Regarding the 18 19 2 20 21 22 23 24 25 26 27 28 The WAIS-IV consists of four indexes, one of which is the Working Memory Index (WMI). One of the Working Memory subtests is the digit span which has three parts: Digit Span Forward (individual tries to repeat digits forward); Digit Span Backward (individual tries to repeat digits backward); Digit Span Sequencing (individual tries to repeat digits in ascending order). The digit span subtest measures auditory recall, short term memory and working memory. http: washingtoncenterforcognitivetherapy.com/wp-content/uploads/2015/01/greenwood_description-wais1.pdf Dr. Barnard indicated that Plaintiff’s “Composite Score” on the WMI portion of the WAIS-IV administered by him was 50. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 7 1 by Dr. Barnard. Those scores do not match up with scores reported by Dr. Barnard 2 on the DSHS form completed by him and Dr. Barnard’s actual testing report is not 3 part of the record. It is unclear whether Dr. Cooper performed her own WAIS-IV 4 testing, or if she is referring to scores from testing conducted by another provider, 5 other than Dr. Barnard. Dr. Cooper felt that Plaintiff’s short-term memory and 6 immediate memory were impaired. (AR at p. 472). She diagnosed Plaintiff with 7 “Major Depressive Disorder, recurrent, with psychotic features,” “Somatic Symptom 8 Disorder, Persistent, Moderate,” and “Borderline Intellectual Functioning (with 9 learning disabilities, by history).”3 10 At the administrative hearing, Plaintiff’s counsel referred to Dr. Cooper’s 11 comment about Plaintiff’s digit span subtest and the resulting scores, although he 12 errantly attributed the comment to Mary Pellicer, M.D., instead of Dr. Cooper. (AR 13 at p. 49).4 Counsel suggested Dr. Cooper conducted her own WAIS-IV and that it 14 was “just not in here [the record] for some reason.” (AR at p. 49). Counsel stated the 15 following: So if there are scores, I don’t know if there’s a way to request that from [Cooper]. I don’t know if I’m allowed to write [Cooper]. I don’t want to cross boundaries. I guess I don’t know what the policy on that is to find out if she did that testing or not. That could make a listings issue if it’s low enough. I just don’t know. 16 17 18 19 20 (AR at p. 50). The ALJ responded that she would “have a look at it” (AR at p. 50), 21 and at the conclusion of the hearing, acknowledged her “assignment [was] to figure 22 our where those test scores are.” (AR at p. 80). 23 The ALJ’s written decision gives no indication what, if any, effort was made 24 25 26 27 28 3 4 A full scale IQ in the 70 to 79 range is considered “borderline.” Dr. Pellicer conducted a physical examination of the Plaintiff on April 11, 2014. (AR at pp. 478-83). ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 8 1 by her to track down those test scores. Instead, she acknowledged that counsel had 2 requested a consultative psychological evaluation for the purpose of having the 3 Plaintiff retake intelligence and memory testing, but declined to do that on the basis 4 that “the longitudinal record contains sufficient medical evidence of the claimant’s 5 mental impairments.” (AR at p. 20). The ALJ specifically mentioned the results of 6 Dr. Barnard’s testing in February 2013. Because of Dr. Barnard’s reporting that 7 Plaintiff appeared to be consciously deceptive with poor motivation and effort on 8 testing, that ALJ was “not persuaded that [Plaintiff] would give her best effort if she 9 were to retake these tests.” (AR at p. 20). 10 Obviously, what has never been resolved is whether Dr. Cooper was referring 11 to WAIS-IV testing conducted by Dr. Barnard, by herself, or by some other provider, 12 and where the actual testing report might be. At the hearing in September 2015, the 13 ALJ thought it important enough to resolve this question, but apparently changed her 14 mind by the time her written decision was issued almost nine months later in June 15 2016. The court concludes there is ambiguous or inadequate evidence in the record 16 which requires further development of the record and at this point, it seems the best 17 and most efficient course, considering the passage of time, is simply for the 18 Commissioner to order a consultative psychological examination with an entirely new 19 round of intelligence testing (WAIS-IV and WMS-IV). 20 assessment should include the testing report. 21 determining whether Plaintiff meets Listing 12.05 and if not, how they impact 22 Plaintiff’s RFC and her ability to perform other work in the national economy. “The 23 importance of IQ test results in adjudicating intellectual disability is not limited to the 24 claimant’s ability to meet the listing at step three of the five-step process.” Garcia 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 9 The examiner’s written The results will be considered in 1 v. Commissioner of Social Security, 768 F.3d 925, 933 (9th Cir. 2014). 5 2 CONCLUSION 3 4 Plaintiff’s Motion For Summary Judgment (ECF No. 15) is GRANTED and 5 Defendant’s Motion For Summary Judgment (ECF No. 16) is DENIED. 6 Pursuant to sentence four of 42 U.S.C. §405(g) and § 1383(c)(3), this matter is 7 REMANDED to the Commissioner for further proceedings as set forth above. An 8 application for attorney fees may be filed by separate motion. 9 IT IS SO ORDERED. The District Executive shall enter judgment 10 accordingly and forward copies of the judgment and this order to counsel of record. 11 The file shall be CLOSED. 12 DATED this 30th day of May, 2018. 13 14 s/ Lonny R. Suko LONNY R. SUKO Senior United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 At this juncture, the court makes no determination regarding the ALJ’s discounting of Plaintiff’s testimony, nor any determination regarding the ALJ’s conclusion about Plaintiff’s physical RFC. ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT- 10

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