Downey v. Commissioner of Social Security

Filing 19

ORDER granting 15 Plaintiff's Motion for Summary Judgment; denying 17 Defendant's Motion for Summary Judgment, and REMANDING to the Commissioner for an immediate award of benefits. Case CLOSED. Signed by Magistrate Judge John T. Rodgers. (SK, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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BLAIR DOWNEY,

No. 1:16-CV-03116-JTR

Plaintiff,

ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT

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v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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BEFORE THE COURT are cross-motions for summary judgment. ECF

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No. 15, 17. Attorney D. James Tree represents Blair Downey (Plaintiff); Special

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Assistant United States Attorney Justin L. Martin represents the Commissioner of

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Social Security (Defendant). The parties have consented to proceed before a

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magistrate judge. ECF No. 9. After reviewing the administrative record and the

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briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary

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Judgment; DENIES Defendant’s Motion for Summary Judgment; and

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REMANDS the matter for an immediate award of benefits.

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JURISDICTION

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Plaintiff filed applications for Supplemental Security Income (SSI) and

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Disability Insurance Benefits (DIB) on October 2, 2012, alleging disability since

ORDER GRANTING PLAINTIFF’S MOTION . . . - 1

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August 9, 2012, Tr. 174-181, 203, due to anxiety, depression, post-traumatic stress

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disorder (PTSD), bipolar, mood disorder, and high blood pressure, Tr. 206. The

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applications were denied initially and upon reconsideration. Tr. 105-108, 112-117.

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Administrative Law Judge (ALJ) Virginia M. Robinson held a hearing on August

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1, 2014 and heard testimony from Plaintiff and vocational expert, Kimberly

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Mullinex. Tr. 31-58. At the hearing, Plaintiff requested that the ALJ only consider

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a closed period of disability from August 9, 2012 to December 31, 2013. Tr. 36.

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The ALJ issued an unfavorable decision on November 21, 2014. Tr. 18-26. The

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Appeals Council denied review on April 21, 2016. Tr. 1-6. The ALJ’s November

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21, 2014 decision became the final decision of the Commissioner, which is

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appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this

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action for judicial review on June 16, 2016. ECF No. 1, 4.
STATEMENT OF FACTS

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The facts of the case are set forth in the administrative hearing transcript, the

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ALJ’s decision, and the briefs of the parties. They are only briefly summarized

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here.

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Plaintiff was 52 years old at the alleged date of onset. Tr. 176. Plaintiff

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completed the twelfth grade in 1979. Tr. 207. Prior to his applications for

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benefits, Plaintiff worked as a laborer for the Kittitas County Reclamation District.

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Tr. 208. It was a temporary job that ended in May of 2012. Tr. 206. Plaintiff’s

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work history also includes the positions of laborer at food processing plants, ranch

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hand, hay press operator, and chaser/choker setter. Tr. 216.

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STANDARD OF REVIEW
The ALJ is responsible for determining credibility, resolving conflicts in

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medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,

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1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo,

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deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d

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1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is

ORDER GRANTING PLAINTIFF’S MOTION . . . - 2

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not supported by substantial evidence or if it is based on legal error. Tackett v.

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Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as

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being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put

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another way, substantial evidence is such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion. Richardson v. Perales, 402

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U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational

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interpretation, the court may not substitute its judgment for that of the ALJ.

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Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative

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findings, or if conflicting evidence supports a finding of either disability or non-

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disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d

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1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by

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substantial evidence will still be set aside if the proper legal standards were not

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applied in weighing the evidence and making the decision. Brawner v. Secretary

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of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988).

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SEQUENTIAL EVALUATION PROCESS
The Commissioner has established a five-step sequential evaluation process

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for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a),

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416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one

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through four, the burden of proof rests upon the claimant to establish a prima facie

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case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This

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burden is met once the claimant establishes that physical or mental impairments

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prevent him from engaging in his previous occupations. 20 C.F.R. §§

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404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work,

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the ALJ proceeds to step five, and the burden shifts to the Commissioner to show

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that (1) the claimant can make an adjustment to other work, and (2) specific jobs

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exist in the national economy which the claimant can perform. Batson v. Comm’r

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of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (9th Cir. 2004). If the claimant

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ORDER GRANTING PLAINTIFF’S MOTION . . . - 3

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cannot make an adjustment to other work in the national economy, a finding of

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“disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
ADMINISTRATIVE DECISION

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On November 21, 2014, the ALJ issued a decision finding Plaintiff was not
disabled as defined in the Social Security Act.
At step one, the ALJ found Plaintiff had not engaged in substantial gainful

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activity during the closed period from August 9, 2012 through December 31, 2013.

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Tr. 20.

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At step two, the ALJ determined Plaintiff had the following severe
impairments: an affective disorder and anxiety disorder. Tr. 21.

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At step three, the ALJ found Plaintiff did not have an impairment or

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combination of impairments that met or medically equaled the severity of one of

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the listed impairments. Tr. 21.

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At step four, the ALJ assessed Plaintiff’s residual function capacity and

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determined he could perform a full range of work at all exertional levels with the

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following nonexertional limitations: “The claimant could do simple, routine tasks.

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He could have only superficial contact with co-workers and incidental contact with

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the public.” Tr. 23. The ALJ identified Plaintiff’s past relevant work as industrial

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cleaner, agricultural produce sorter, and irrigator sprinkler systems operator. Tr.

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work. Id. Therefore, the ALJ found Plaintiff was not under a disability within the

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meaning of the Social Security Act at any time from August 9, 2012 through

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December 31, 2013. Id.

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ISSUES
The question presented is whether substantial evidence supports the ALJ’s

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decision denying benefits and, if so, whether that decision is based on proper legal

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standards. Plaintiff contends the ALJ erred by (1) failing to properly consider

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ORDER GRANTING PLAINTIFF’S MOTION . . . - 4

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medical source opinions; (2) failing to properly consider Plaintiff’s symptom

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statements, and (3) failing to consider all of Plaintiff’s impairments at step two.1
DISCUSSION

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A.

Medical Source Opinions
Plaintiff challenges the weight the ALJ provided to the opinions of Aaron

Burdge, Ph.D. and Mark Duris, Ph.D.

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In weighing medical source opinions, the ALJ should distinguish between

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three different types of physicians: (1) treating physicians, who actually treat the

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claimant; (2) examining physicians, who examine but do not treat the claimant; and

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(3) nonexamining physicians who neither treat nor examine the claimant. Lester v.

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Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more weight to the

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opinion of a treating physician than to the opinion of an examining physician. Orn

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v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ should give more

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weight to the opinion of an examining physician than to the opinion of a

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nonexamining physician. Id.

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When an examining physician’s opinion is not contradicted by another

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physician, the ALJ may reject the opinion only for “clear and convincing” reasons,

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and when an examining physician’s opinion is contradicted by another physician,

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the ALJ is only required to provide “specific and legitimate reasons” to reject the

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opinion. Lester, 81 F.3d at 830-831. The specific and legitimate standard can be

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met by the ALJ setting out a detailed and thorough summary of the facts and

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conflicting clinical evidence, stating her interpretation thereof, and making

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findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is

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required to do more than offer her conclusions, she “must set forth [her]

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interpretations and explain why they, rather than the doctors’, are correct.”

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Plaintiff identifies two issues early in his briefing. ECF No. 15 at 1.

However, Plaintiff argues the error at step two in the text of his brief. Id. at 13-14.

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Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 1988).

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Aaron R. Burdge, Ph.D.

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Dr. Burdge completed a Psychological Psychiatric Evaluation form for the

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Washington Department of Social and Health Services (DSHS) on August 14,

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2012. Tr. 265-282. Testing revealed severe depression and moderate anxiety. Tr.

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266. Dr. Burdge diagnosed Plaintiff with anxiety disorder, bipolar II disorder,

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intermittent explosive disorder, and personality disorder. Tr. 267. He opined that

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Plaintiff had a moderate2 limitation in the abilities to perform activities within a

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schedule, maintain regular attendance, and be punctual within customary

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tolerances without special supervision, perform routine tasks without special

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supervision, adapt to changes in a routine work setting, make simple work-related

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decisions, be aware of normal hazards and take appropriate precautions,

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communicate and perform effectively in a work setting, maintain appropriate

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behavior in a work setting, and set realistic goals and plan independently. Tr. 267-

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268. He also opined that Plaintiff had a marked 3 limitation in the ability to

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complete a normal work day and work week without interruptions from

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psychologically based symptoms. Tr. 268. He opined that these impairments

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would last twelve to fourteen months with available treatment. Tr. 268. The ALJ

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gave Dr. Burdge’s opinion “some weight” stating that the record supported the no,

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mild, or moderate limitations provided in his opinion. Tr. 24. However, he gave

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less weight to the marked limitation prescribed to Plaintiff’s ability to complete a

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normal workweek because (1) the opinion was based on Plaintiff’s self-reports and

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(2) it was not consistent with the medical evidence and Plaintiff’s activities. Id.

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“‘Moderate’ means there are significant limits on the ability to perform one

or more basic work activity.” Tr. 267.
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“‘Marked’ means a very significant limitation on the ability to perform one

or more basic work activity.” Tr. 267.

ORDER GRANTING PLAINTIFF’S MOTION . . . - 6

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Foremost, the ALJ’s residual functional capacity determination did not

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account for all of the moderate limitations opined by Dr. Burdge. Therefore, the

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ALJ effectively rejected these limitations. This is in error. The ALJ is required to

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explain why “significant probative evidence has been rejected.” Vincent v.

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Heckler, 739 F.2d 1393, 1394-1395, (9th Cir. 1984). Here, the residual functional

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capacity only addressed Plaintiff’s abilities to perform simple routine tasks and

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interact with co-workers and the general public. Tr. 23. This means that

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limitations concerning the abilities to to perform activities within a schedule,

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maintain regular attendance, and be punctual within customary tolerances without

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special supervision, perform routine tasks without special supervision, adapt to

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changes in a routine work setting, make simple work-related decisions, be aware of

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normal hazards and take appropriate precautions, communicate and perform

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effectively in a work setting, maintain appropriate behavior in a work setting, and

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set realistic goals and plan independently were not fully addressed in the residual

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functional capacity determination. By leaving these limitations out of the residual

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functional capacity without explanation, the ALJ errored.

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Additionally, the ALJ failed to provide legally sufficient reasons for

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rejecting the marked limitation opined by Dr. Burdge. First, the ALJ erred in his

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determination that the opinion was based on Plaintiff’s unreliable self-reports.

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While an ALJ may discount a provider’s opinion if it appears it is based on a

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claimant’s unreliable self-reports, the ALJ must provide the basis for her

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conclusion that the opinion was based on a claimant’s self-reports. Ghanim v.

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Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014). Here the ALJ failed to offer the

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necessary basis, making her reason legally insufficient.

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The second reason provided by the ALJ, that the opinion was not consistent

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with the medical evidence and Plaintiff’s activates, lacks specificity. The ALJ

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failed to state how the medical evidence or Plaintiff’s activities were inconsistent

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with the marked limitation. The ALJ is required to do more than offer her

ORDER GRANTING PLAINTIFF’S MOTION . . . - 7

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conclusions, she “must set forth [her] interpretations and explain why they, rather

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than the doctors’, are correct.” Embrey, 849 F.2d at 421-422.
The ALJ errored in her treatment of Dr. Burdge’s testimony. The ALJ

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should have included his opined limitations in the residual functional capacity

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determination, especially the marked limitation in the ability to sustain a normal

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work day and work week.

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2.

Mark Duris, Ph.D.

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Dr. Duris completed a Psychological Psychiatric Evaluation form for DSHS

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on May 27, 2014. Tr. 456-459. His evaluation included a mental status exam and

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diagnosed Plaintiff with major depressive disorder, recurrent (moderate),

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controlled with medication and alcohol dependence in sustained full remission. Tr.

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457, 459. He gave Plaintiff none or mild limitations on all of the psychological

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basic work activities. Tr. 458. The ALJ credited Dr. Duris’s opinion, stating “The

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examining psychologist’s opinion is consistent with his clinical findings.” Tr. 25.

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Plaintiff challenged the ALJ’s reliance on the opinion, arguing it was

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inappropriate considering the opinion was outside the relevant time period. ECF

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No. 15 at 12. The relevant time period in this case is August 9, 2012 through

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December 31, 2013. Evidence from outside this period can be deemed irrelevant

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to the extent that it does not address Plaintiff’s medical status during the time

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period at issue. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165

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(9th Cir. 2008) (opinions that predated the relevant time period are of little

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relevance). Considering the ALJ erred in her treatment of Dr. Burdge’s testimony,

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her reliance on Dr. Duris’s opinion from outside the relevant time period was in

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error.

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B.

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Plaintiff contests the ALJ’s determination that his symptom reports were less

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Plaintiff’s Symptom Statements

than fully credible. ECF No. 15 at 15-19.
It is generally the province of the ALJ to make credibility determinations,

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Andrews, 53 F.3d at 1039, but the ALJ’s findings must be supported by specific

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cogent reasons, Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent

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affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s

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testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d

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1273, 1281 (9th Cir. 1996); Lester, 81 F.3d at 834. “General findings are

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insufficient: rather the ALJ must identify what testimony is not credible and what

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evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834.

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The ALJ found Plaintiff less than fully credible concerning the intensity,

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persistence, and limiting effects of his symptoms. Tr. 23. The ALJ reasoned that

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Plaintiff was less than fully credible because (1) he did not leave his last two jobs

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because of his impairments, (2) he received unemployment benefits, (3) medical

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evidence showed his symptoms were controlled with medication, and (4) his

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activities of daily living were inconsistent with the reported severity of his

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symptoms.

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First, the fact that Plaintiff left his last two jobs for reasons other than

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impairment is not sufficient to support the ALJ’s credibility determination. In

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Bruton v. Massanari, the Ninth Circuit held that a claimant being laid off from his

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prior employment rather than leaving because of an injury was an acceptable

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reason to support an adverse credibility determination. 268 F.3d 824, 828 (9th Cir.

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2001). In Bruton, the claimant had alleged an inability to work due to back pain

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with an injury date predating his termination date. Id. at 826. In this case,

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Plaintiff’s previous employment was temporary in nature and his onset date can be

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linked to a suicide attempt on August 9, 2012, Tr. 267, which was well after his

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employment ended on May 29, 2012, Tr. 206. As such, the ALJ’s reliance on the

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reason Plaintiff left his prior employment is not sufficient to support her adverse

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credibility determination.

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Second, the fact that Plaintiff received unemployment benefits is also not
sufficient to support an adverse credibility determination. The Ninth Circuit has

ORDER GRANTING PLAINTIFF’S MOTION . . . - 9

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recognized that the receipt of unemployment benefits can undermine a claimant’s

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alleged inability to work fulltime. Carmickle, 533 F.3d at 1161-1162. However,

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the record establishes that Plaintiff’s received unemployment benefits in the

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second, third, and fourth quarters of 2011 and the first quarter of 2012. Tr. 185.

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Thus the unemployment benefits predated the alleged onset date. Furthermore, the

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record here does not establish whether Plaintiff held himself out as available for

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fulltime or part-time work when applying for unemployment benefits. See Id. at

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1162 (A claimant holding himself out as capable of full-time work is inconsistent

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with an application for disability benefits, while a claimant holding himself out as

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capable of part-time work is not). As such, this reason fails to support the ALJ’s

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determination.

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Third, the ALJ’s assertion that Plaintiff’s impairments were controlled by

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medications is not legally sufficient. The ALJ provides multiple citations to the

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record to support her assertion. Tr. 24. However, she failed to state how

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Plaintiff’s report that medications were controlling some of his symptoms were

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inconsistent with any specific statements in the record or testimony provided at the

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hearing. See Lester, 81 F.3d at 834 (“General findings are insufficient: rather the

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ALJ must identify what testimony is not credible and what evidence undermines

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the claimant’s complaints.”). Therefore, this reason falls short of the specific, clear

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and convincing standard.

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Fourth, Defendant asserts that the ALJ found Plaintiff’s reported activities of

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daily living inconsistent with the reported severity of his symptoms and that

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Plaintiff failed to challenge this reason in his opening brief. ECF No. 17 at 16-17.

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While the ALJ’s decision includes a discussion of Plaintiff’s activities, it was in

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the context of discussing the weight provided to the opinion of Plaintiff’s brother,

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Brian Downey. Tr. 24. Therefore, the ALJ never provided this as a reason given

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for finding Plaintiff less than fully credible. Even if the ALJ had clearly provided

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it as a reason for such a finding, it would be legally insufficient. A claimant’s

ORDER GRANTING PLAINTIFF’S MOTION . . . - 10

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daily activities may support an adverse credibility finding if (1) the claimant’s

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activities contradict his other testimony, or (2) “the claimant is able to spend a

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substantial part of his day engaged in pursuits involving performance of physical

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functions that are transferable to a work setting.” Orn, 495 F.3d at 639 (citing Fair

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v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). “The ALJ must make ‘specific

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findings relating to [the daily] activities’ and their transferability to conclude that a

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claimant’s daily activities warrant an adverse credibility determination.” Id.

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(quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)). Here, the ALJ did

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not find his activities contradicted his other testimony or that the activities were

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transferable to a work setting.
The ALJ failed to provide specific, clear and convincing reasons for

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rejecting Plaintiff’s testimony in this case. As such, the ALJ’s determination

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regarding Plaintiff’s credibility is not legally supported.

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C.

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Step Two
Plaintiff challenged the ALJ’s step two determination, asserting that she

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failed to consider his personality disorder with borderline features. ECF No. 15 at

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13-14. Because the ALJ erred in her treatment of Dr. Burdge’s opinion, this Court

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will apply the credit as true rule. See below. By doing so, Dr. Burdge’s diagnosis

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of a personality disorder would be added to Plaintiff’s severe impairments and

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resolving any step two error.

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REMEDY

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When the ALJ’s decision is not supported by substantial evidence in the

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record or is the result of legal error, whether to remand the matter for additional

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proceedings or whether to order an immediate payment of benefits is within the

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court’s discretion. Benecke v. Barnhart, 379 F.3d 587, 590 (9th Cir. 2004).

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Evidence should be credited as true and an action remanded for an award of

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benefits when: (1) the ALJ has failed to provide legally sufficient reasons for

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rejecting evidence; (2) no outstanding issues remain that must be resolved before a

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determination of disability can be made; and (3) it is clear from the record that the

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ALJ would be required to find the claimant disabled were the rejected evidence

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credited as true. Id. at 593; Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000).

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It is an abuse of discretion to remand for further proceedings where, as in this

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matter, no further proceedings are necessary to make a disability determination and

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it is clear from the record that the claimant is entitled to benefits. See Benecke, 379

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F.3d at 596; Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).

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After applying the credit-as-true rule to the opinion of Dr. Burdge regarding
Plaintiff’s diagnoses and functional limitations and to Plaintiff’s improperly

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discredited hearing testimony, no outstanding issues remain to be resolved before

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determining that Plaintiff is entitled to benefits. The ALJ added the marked

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limitation in the ability to sustain a work day or work week to the hypothetical

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posed to the vocational expert. The vocational expert responded that such a person

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would not be able to work. Tr. 55-57 (If an individual missed two days of work per

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month or more on an ongoing basis, that individual would be unable to sustain

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employment.). Because it is clear the ALJ would be required to find Plaintiff

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disabled, the court concludes that Plaintiff is entitled to an immediate award of

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benefits.
CONCLUSION

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Accordingly the case should be remanded for an immediate award of
benefits. IT IS ORDERED:
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Defendant’s Motion for Summary Judgment, ECF No. 17, is

DENIED.
2.

Plaintiff’s Motion for Summary Judgment, ECF No. 15, is

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GRANTED and the matter is REMANDED to the Commissioner for an

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immediate award of benefits for the closed period at issue.

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3.

Application for attorney fees may be filed by separate motion.

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ORDER GRANTING PLAINTIFF’S MOTION . . . - 12

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The District Court Executive is directed to file this Order and provide a copy

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to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff

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and the file shall be CLOSED.

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DATED August 15, 2017.

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_____________________________________
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE

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