Conway v. Commissioner of Social Security Administration

Filing 17

ORDER - IT IS ORDERED reversing the November 20, 2018 decision of the Commissioner, as upheld by the Appeals Council. IT IS FURTHER ORDERED remanding this case to the Social Security Administration for further proceedings consistent with this Order. IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. Signed by Judge Michael T Liburdi on 9/10/2020. (WLP)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Dalton Timothy Conway, Plaintiff, 10 11 ORDER v. 12 No. CV-19-05795-PHX-MTL Commissioner of Social Security Administration, 13 Defendant. 14 15 Before the Court is Plaintiff Dalton Conway’s appeal of an Administrative Law 16 Judge’s (“ALJ”) denial of his applications for certain social security benefits. The Court 17 has reviewed the Opening Brief (Doc. 12, Pl. Br.), the Response (Doc. 15, Def. Br.) and 18 the Reply (Doc. 16, Reply) as well as the Administrative Record (“R.”). For the reasons 19 expressed herein, the Court reverses the administrative law judge’s decision and remands 20 for additional proceedings. 21 I. BACKGROUND 22 Mr. Conway has endured many hardships. His birth mother allegedly abused him. 23 (R. at 1489.) A family later adopted him, but he still struggles with a number of ailments, 24 some of which are linked to his prior abuse. (Id. at 1490.) The ALJ found that Mr. 25 Conway has these severe impairments: autism, depression, generalized anxiety disorder 26 and an unspecified cognitive disorder. (Id. at 18.) Despite this, the ALJ found that Mr. 27 Conway could perform certain jobs and did not qualify as disabled under the social 28 security regulations. (R. at 27-28.) The Social Security Administration’s (the “SSA”) 1 Appeals Council denied review, making the ALJ’s ruling the final decision of the 2 Commissioner of Social Security (the “Commissioner”). (Id. at 1.) Mr. Conway filed 3 suit arguing that the ALJ did not follow the proper procedures for denying his claims. 4 (Doc. 1; Pl. Br. at 1.) The Commissioner concedes that the ALJ’s decision is not 5 supported by substantial evidence. (Def. Br. at 3.) The key dispute is whether an ALJ 6 should engage in further proceedings to determine Mr. Conway’s disability status or the 7 Court should declare him disabled and order an ALJ to determine the amount to which he 8 is entitled. 9 II. LEGAL STANDARD 10 The Court only reviews the challenged portions of an ALJ’s decision. Carmickle 11 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008); see also Kim v. 12 Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (“[The Court] will not ordinarily consider 13 matters on appeal that are not specifically and distinctly argued in appellant’s opening 14 brief.”). 15 “substantial evidence” or is based on legal error. Trevizo v. Berryhill, 871 F.3d 664, 674 16 (9th Cir. 2017). “Substantial evidence means more than a mere scintilla, but less than a 17 preponderance. It means such relevant evidence as a reasonable mind might accept as 18 adequate to support a conclusion.” Id. “Where evidence is susceptible to more than one 19 rational interpretation, the ALJ’s decision should be upheld.” Id. at 674–75; see also 20 Jamerson v. Chater, 112 F.3d 1064, 1067 (9th Cir. 1997) (“[T]he key question is not 21 whether there is substantial evidence that could support a finding of disability, but 22 whether there is substantial evidence to support the Commissioner’s actual finding that 23 claimant is not disabled.”). “Yet [the Court] must consider the entire record as a whole, 24 weighing both the evidence that supports and the evidence that detracts from the 25 Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 26 of supporting evidence.” Trevizo, 871 F.3d at 675. “[The Court] review[s] only the 27 reasons provided by the ALJ in the disability determination and may not affirm the ALJ 28 on a ground upon which he did not rely.” Id. “Finally, [the Court] may not reverse an The Court may set aside the decision only when it is not supported by -2- 1 ALJ’s decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 2 1111 (9th Cir. 2012). 3 To determine whether a claimant is disabled under the Social Security Act, the 4 ALJ engages in a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4). The burden 5 of proof is on the claimant for the first four steps but shifts to the Commissioner at the 6 fifth. Molina, 674 F.3d at 1110. At step one, the ALJ determines whether the claimant is 7 presently engaging in substantial gainful activity. Id. § 404.1520(a)(4)(i). If so, the 8 claimant is not disabled, and the inquiry ends. Id. At step two, the ALJ determines 9 whether the claimant has a “severe” medically determinable physical or mental 10 impairment. Id. § 404.1520(a)(4)(ii). If not, the claimant is not disabled, and the inquiry 11 ends. 12 combination of impairments meets or medically equals an impairment listed in a certain 13 federal regulatory provision. Id. § 404.1520(a)(4)(iii). If so, the claimant is disabled. Id. 14 If not, the ALJ proceeds to step four. Id. At step four, the ALJ assesses the claimant’s 15 residual functional capacity (“RFC”) and determines whether the claimant is capable of 16 performing past relevant work.* Id. § 404.1520(a)(4)(iv). If so, the claimant is not 17 disabled, and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final step and 18 determines whether the claimant can perform any other work in the national economy 19 based on the claimant’s RFC, age, education, and work experience. 20 § 404.1520(a)(4)(v). If so, the claimant is not disabled; if not, he is disabled. Id. 21 III. Id. At step three, the ALJ considers whether the claimant’s impairment or Id. DISCUSSION ALJ’s Improper Discounting 22 A. 23 Mr. Conway argues that the ALJ did not follow the appropriate regulations for 24 weighing medical opinion evidence. Specifically, the ALJ did not give sufficient reason 25 for assigning little weight to the examining psychiatrist, Dr. Greg Peetoom. (Pl. Br. 11- 26 13.) Further, the ALJ assigned great weight to the opinions of Dr. Tim Layton and Dr. 27 Hillary Weiss but did not address certain aspects of their reports. 28 * (Id. at 7-8). “[R]esidual functional capacity is the most [a claimant] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). -3- 1 Additionally, the ALJ assigned little weight to the vocational expert’s opinion (Id. at 8- 2 11) and discredited the subjective testimony of Mr. Conway and his mother (Id. at 13- 3 17). Mr. Conway argues that the ALJ did not satisfy the applicable requirements for 4 discounting that evidence either. The Commissioner concedes that the ALJ’s decision 5 was improper at the very least because it purportedly gave Dr. Layton’s opinion great 6 weight but did not explain why the RFC finding was inconsistent with that opinion. (Def. 7 Br. at 13-14.) That concession does not end the matter. The parties disagree over how to 8 proceed in light of the ALJ’s error. 9 B. Proper Remedy 10 Mr. Conway’s preferred remedy is for the Court to remand this case for a 11 computation of benefits under what is sometimes called the credit-as-true rule. (Pl. Br. 12 at 23.) This remedy is rare and discretionary. Treichler v. Comm’r of Soc. Sec. Admin., 13 775 F.3d 1090, 1101 (9th Cir. 2014). It is a departure from the norm of remanding for 14 further proceedings prior to a disability determination. In order for the Court to apply the 15 credit-as-true rule, three factors must be present: (1) the ALJ must have rejected evidence 16 for legally insufficient reasons; (2) the record has to be fully developed without any 17 outstanding issues necessary to determine whether a claimant is disabled under the social 18 security regulations; (3) the record must, with certainty, reflect that a remand should 19 result in a finding that the claimant is disabled. Id. at 1100–1101. Here, the Court agrees 20 with the Commissioner that this case is not appropriate for application of the credit-as- 21 true rule. 22 All parties agree that the decision was legally insufficient, thus satisfying factor 23 one. However, the other two factors preclude a remand for computation of benefits. 24 First, the record is not fully developed. Mr. Conway implicitly admits this by noting 25 what he calls new and material evidence that the ALJ did not have an opportunity to 26 consider. (Pl. Br. at 20-23.) Secondly, the record contains ambiguities and discrepancies 27 better resolved by an ALJ. For example, Dr. Peetoom noted that Mr. Conway was a slow 28 worker during tests and may require “a higher level of supervision to facilitate consistent -4- 1 completion of instructions.” (R. at 1247.) On the other hand “he was generally able to 2 complete tasks . . . .” (Id.) A vocational expert can help an ALJ determine whether Mr. 3 Conway can find competitive employment in light of these restrictions. Dr. Layton 4 opined that Mr. Conway could only perform routine tasks with little change. (Pl. Br. at 5 7.) Dr. Weiss said that Mr. Conway could perform less demanding work in a low-stress 6 environment. (Id. at 8.) Again, the Court agrees with the Commissioner it is not clear 7 that the ALJ would have found Mr. Conway disabled even if these limitations had been 8 incorporated. (Def. Br. at 19-20.) 9 The subjective testimony also contains discrepancies. Mr. Conway’s mother’s 10 testimony is at odds with certain medical evidence. For example, she said that her son 11 has seizures almost every day, but clinical notes do not support that assertion. (R. at 633, 12 1446.) Mr. Conway argues that the ALJ already questioned the mother about the 13 inconsistencies and the Commissioner should not get a second bite at the apple. (Reply at 14 2-3.) The Court, in its discretion, disagrees and concludes that these issues should be 15 sorted out by an ALJ. 16 Finally, the Court turns to the vocational expert’s testimony and vocational 17 evaluator’s opinion. Mr. Conway argues that the ALJ did not properly account for the 18 testimony of vocational expert Kristian Cicero. She testified that he could not sustain 19 competitive employment if he were off task more than 15 percent of the day. (Pr. Br. at 5 20 (citing R. at 640).) But Mr. Conway does not point to a statement in the record that he 21 would indeed be off task for that long. Mr. Conway also argues that the ALJ improperly 22 discounted the opinion of vocational evaluator, Joseph Burridge. (Pl. Br. at 8-11.) 23 Ultimately, however, Mr. Burridge concluded that “further insights of appropriate 24 medical or behavioral health professionals” would be needed to assess his ability to 25 perform work-related activities. (R. at 1287.) Mr. Conway’s arguments thus do not 26 show, as required, that an ALJ would, on remand, find him disabled. 27 The Court concludes that outstanding issues and ambiguity as to whether Mr. 28 Conway would be found disabled on remand preclude application of the credit-as-true -5- 1 rule. Alternatively, the Court, in its discretion, concludes that a new hearing to examine 2 the merits of this claim is appropriate. 3 IV. CONCLUSION 4 Accordingly, 5 IT IS ORDERED reversing the November 20, 2018 decision of the 6 7 8 9 10 11 Commissioner, as upheld by the Appeals Council. IT IS FURTHER ORDERED remanding this case to the Social Security Administration for further proceedings consistent with this Order. IT IS FURTHER ORDERED directing the Clerk to enter final judgment consistent with this Order and close this case. Dated this 10th day of September, 2020. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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