Lehotsky v. Commissioner of Social Security

Filing 20

ORDER: IT IS HEREBY ORDERED that: 1. The Commissioner's 17 Motion is GRANTED. 2. The Commissioner's final decision denying Lehotsky's claims for disability benefits is REMANDED for further proceedings consistent with this Order. 3. The Clerk is directed to amend the Judgment (Doc. 15) consistent with this Order. Signed by Judge Brian Morris on 1/19/2023. (ACC)

Case 4:21-cv-00098-BMM Document 20 Filed 01/19/23 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION

THOMAS GILBERT LEHOTSKY,

Cause No. CV-21-98-GF-BMM

Plaintiff,
vs.

ORDER

KILOLO KIJAKAZI, Commissioner of
Social Security,
Defendant.

Thomas Gilbert Lehotsky (“Lehotsky”) brought this action under 42 U.S.C. §
405(g), seeking judicial review of an unfavorable decision by the Commissioner of
Social Security (“Commissioner”). (Doc. 1); (Doc. 10.) The Commissioner denied
Lehotsky disability benefits at the initial and reconsideration levels. (Doc. 10 at 5.)
Administrative Law Judge (“ALJ”) Michele Kelley issued an unfavorable decision
on May 26, 2021. (Id. at 5.) The Appeals Council denied Lehotsky’s request for
review on July 27, 2021. (Doc. 1-1); (Doc. 10 at 6-7.)
This Court reversed the Commissioner’s final decision denying Lehotsky’s
claims for disability insurance benefits and remanded it for an immediate award of
benefits. (Doc. 14.) The Commissioner has moved to alter the judgment. (Doc. 17.)

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PROCEDURAL BACKGROUND
Lehotsky filed a Title II application for a period of disability and disability
insurance benefits on October 1, 2018. (Id. at 182.) Lehotsky alleged disability
beginning on June 1, 2018. (Id. at 212.) The ALJ then issued an unfavorable
disability determination. (Id. at 28.)
The ALJ’s decision identified that Lehotsky had the following severe
impairments: degenerative disc disease, trochanteric bursitis, bilateral epicondylitis
and degenerative joint disease bilateral elbows with mild ulnar neuropathy, right
knee chondromalacia and medial meniscus tear, shoulder osteoarthritis, loose body,
labral cyst, acromial impingement, tendinosis supraspinatus and bicipital tendons,
and obesity, none of which met or medically equaled the severity of one of the listed
impairments. (Id. at 21-22.) The ALJ found that Lehotsky maintained the residual
functional capacity to perform light work with some limitations. (Id. at 24). The ALJ
concluded that Lehotsky was not disabled. (Id. at 28.)
DISCUSSION
Medical opinions
The Court’s Order identified errors in the ALJ’s decision. (Doc. 14.) The
Court first identified that the ALJ did not address the medical opinions of treating
physicians contained within Lehotsky’s records. (Id. at 7.) The Court noted that
Lehotsky’s pain management doctor had determined that, in 2020, Lehotsky suffered
from back pain “of moderate to severe [intensity] with functional impairment.” (Id.
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at 1200.) The Court identified that the ALJ had not addressed the supportability and
consistency factors in the review of Lehotsky’s treating providers, including this
assessment of Lehotsky’s pain.
The Commissioner correctly points out that the treating physician’s
identification of functional impairments does not offer an assessment of the ultimate
issue of disability. (Doc. 18 at 7.) The Court clarifies that medical opinions represent
statements from a medical source about what a claimant can still do despite his
impairments and whether he has one or more impairment-related limitations or
restrictions. 20 C.F.R. § 404.1513(a)(2). Lehotsky’s treating physician did not
describe what Lehotsky still could do despite his functional impairments. The Court
clarifies that Lehotsky has offered no medical opinion evidence in support of his
claim.
Lehotsky’s testimony
The Court’s Order then determined that the ALJ improperly discounted
Lehotsky’s testimony regarding the intensity, persistence, and limiting effects of his
symptoms. (Doc. 14 at 12-13.) The ALJ had concluded that Lehotsky was not
disabled because he participates in various daily activities, for example, that
Lehotsky exercises, walks his dog, “prepare[s] and cook[s] meals,” “dress[es] and
bath[es] without problems,” completes household and yard work, “shop[s] several
times a week,” and participates in outdoor activities including watching high school
sporting events and wildlife viewing near a river. (Id. at 26-27.) The ALJ had found
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Lehotsky’s daily activities to be “inconsistent” with his claimed “functional
compromise” (Id. at 25.) The Court articulated that “the fact that a Plaintiff regularly
engages in some activity does not disprove a disability.” (Doc. 14 at 13) (citing
Contreras v. Saul, 477 F. Supp. 3d. 1107, 1125 (S.D. Cal. 2020)). The Court
accordingly determined that the ALJ had afforded disproportionate weight to nontreatment considerations. (Id. at 12-13.)
The Commissioner now argues that the Court did not consider all the reasons
the ALJ provided for discounting Lehotsky’s testimony. (Doc. 18 at 9.) The
Commissioner claims that, separate from the activities of daily living analysis, the
ALJ also found Lehotsky’s allegations were inconsistent with the objective medical
evidence. (Doc. 18 at 9-10.)
An ALJ may find a claimant not credible if the medical record contradicts the
claimant’s subjective testimony. See Carmickle v. Comm’r of Soc. Sec., 533 F.3d
1155, 1161 (9th Cir. 2008). The Ninth Circuit requires an ALJ to provide “specific,
clear and convincing reasons” to reject a claimant’s testimony, however, once the
ALJ has determined that a claimant’s medically determinable impairments might
reasonably produce the alleged symptoms. Garrison v. Colvin, 759 F.3d 995, 101415 (9th Cir. 2014). “General findings are insufficient; rather, the ALJ must identify
what testimony is not credible and what evidence undermines the claimant's
complaints.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). ALJs do not
satisfy the “specific, clear and convincing reasons” standard when they “simply
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state[] . . . [a] non-credibility conclusion and then summarize[] the medical evidence
supporting [the] . . . determination.” Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th
Cir. 2015).
The ALJ’s analysis here proves similar to the analysis of which the Ninth
Circuit disapproves. Id. The ALJ determined that Lehotsky’s impairments could
produce his symptoms. (Doc. 5 at 25.) The ALJ then summarized Lehotsky’s
testimony, stated that Lehotsky’s statements were “not entirely consistent with the
medical evidence and other evidence in the record,” and then summarized the
medical evidence and Lehotsky’s reported activities supporting the ALJ’s
conclusion. (Id. at 25-26.) The ALJ made no statement explaining which of, and
how, Lehotsky’s statements conflict with the summary that the ALJ provided. (Id.)
The Ninth Circuit has explained that, “[a]lthough the inconsistencies
identified by the district court could be reasonable inferences drawn from the ALJ’s
summary of the evidence, the credibility determination is exclusively the ALJ’s to
make.” Brown-Hunter, 806 F.3d at 494. The ALJ’s summary of Lehotsky’s claims
and the ALJ’s summary of the evidence supporting her decision, when read in quick
succession, might suggest some inconsistencies. (Doc. 5 at 24-26.) The ALJ never
identifies them. The Ninth Circuit has noted that this type of error usually does not
prove harmless. Brown-Hunter, 806 F.3d at 492.
Brown-Hunter requires the ALJ, not the Court, to explain what specific
evidence was inconsistent with a specific claim from the claimant. See Brown5

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Hunter, 806 F.3d at 494. The Court reiterates that the ALJ improperly discredited
Lehotsky’s testimony.
Hypothetical presented to the VE
The Court’s Order also explained that the ALJ failed to present a complete
hypothetical question to the vocational expert. The ALJ’s first two hypotheticals
involved a hypothetical person with an ability to lift 10 pounds frequently,
occasionally reach overhead, and walk and stand for six hours and sit for six hours
in an eight-hour day. (Doc. 5 at 53-55.) The VE identified that such a person could
perform work as a corrections officer, security guard, and switchboard operator. (Id.
at 54-55.) The VE identified that this hypothetical person would lack transferrable
work skills that would qualify them for other jobs in the national economy. (Id. at
54.) The ALJ’s third hypothetical involved an ability to walk and stand for four hours
in an eight-hour workday. (Id. at 55-56.) The VE identified the switchboard operator
as the only available position. (Id. at 55-56.)
The ALJ’s final hypothetical concerned a requirement of “off-task” time for
at least twenty percent of a hypothetical person’s eight-hour workday and forty-hour
work week. (Id. at 56.) The VE testified that these requirements would mean “there
would be no work, past work or otherwise, for this individual.” (Id.)
The ALJ’s determination that Lehotsky could perform his past jobs as a
correction officer, security guard, or switchboard operator inaccurately reflects
Lehotsky’s residual functional capacity. (Id. at 50-55.) Lehotsky requires frequent
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breaks from sitting and standing, including the need to recline for sixty percent of
the day. (Id. at 46-50, 270-275.) The ALJ failed to present all of Lehotsky’s
limitations to the vocational expert. (Id.) This resulted in an incomplete hypothetical.
Lehotsky’s VA rating
The Court’s Order also declined to review the ALJ’s consideration of
Lehotsky’s 100 percent VA disability rating in response to Lehotsky’s argument that
the ALJ failed to consider the prior rating. (Doc. 14 at 9.) Lehotsky in his Opening
Brief argued that the ALJ was required to articulate specific reasons for rejecting the
VA’s finding. (Doc. 10 at 18.) Lehotsky later argued that the ALJ must consider all
the supporting evidence underlying the VA’s decision. (Doc. 12 at 2.)
The Court characterized the VA rating as a prior administrative finding but
explained that the VA’s decision did not bind the ALJ. 20 C.F.R. § 404.1504. The
Court explained that the new regulations require that an ALJ consider only “the
supporting evidence underlying the other governmental agency or nongovernmental
entity’s decision []receive[d] as evidence in [a] claim.” Id. § 404.1504(a)(1). The
Court’s Order noted that the administrative record did not include the evidence
underlying Lehotsky’s VA disability rating. (Doc. 14 at 9.)
The Commissioner has pointed out that the administrative record includes
many of Lehotsky’s VA treatment records. (Doc. 18 at 6.) The majority of these
treatment records come after February 23, 2018, however, the date on which the VA
found Lehotsky 100 percent disabled. (Doc. 5 at 41.) The Court determines that
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treatment notes generated after Lehotsky received his VA rating could not have
formed the supporting evidence underlying the VA’s initial 100 percent disability
decision. The ALJ could consider these records as they would other medical
evidence or objective medical evidence, depending on the appropriate category.
The Court also notes that the record does not include Lehotsky’s VA disability
determination letter or its identified sources of information; it only includes a
verification of his VA rating. (Doc. 5 at 200.) The record does not include the VA’s
compensation evaluations or examinations of Lehotsky, and it does not contain any
materials identified as inclusions in Lehotsky’s VA disability application. (Id.) The
Court rearticulates that the fact of Lehotsky’s VA rating itself did not require the
ALJ to provide any analysis of the VA’s decision.
CONCLUSION
The Court’s Order remanded the Commissioner’s decision for an immediate
award of benefits. (Doc. 14 at 16.) The Commissioner points out that Lehotsky did
not request this remedy. (Doc. 18 at 11.) The Court has clarified its previous Order
and has rearticulated the ALJ’s errors. The Court will remand the Commissioner’s
final decision for further proceedings.
ORDER
Accordingly, IT IS HEREBY ORDERED that:
1. The Commissioner’s Motion (Doc. 17) is GRANTED.

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2. The Commissioner’s final decision denying Lehotsky’s claims for disability
benefits is REMANDED for further proceedings consistent with this Order.
3. The Clerk is directed to amend the Judgment (Doc. 15) consistent with this
Order.
DATED this 19th day of January, 2023.

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