Burden v. O'Malley

Filing 17

ORDER GRANTING 10 PLAINTIFF'S BRIEF AND REMANDING FOR CALCULATION OF BENEFITS; granting in part and denying in part 14 Commissioner's Brief. This file is CLOSED. Signed by Senior Judge Rosanna Malouf Peterson. (LTR, Case Administrator)

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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Sep 25, 2024
SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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CHRISTOPHER MICHAEL B.,
Plaintiff,

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v.

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COMMISSIONER OF SOCIAL
SECURITY,

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NO: 1:24-CV-3027-RMP
ORDER GRANTING PLAINTIFF’S
BRIEF AND REMANDING FOR
CALCULATION OF BENEFITS

Defendant.

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BEFORE THE COURT, without oral argument, are briefs from Plaintiff

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Christopher B.,1 ECF No. 10, and Defendant the Commissioner of Social Security

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(the “Commissioner”), ECF No. 14. Plaintiff seeks judicial review, pursuant to 42

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U.S.C. §§ 405(g) and 1383(c)(3), of the Commissioner’s denial of his claim for

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Disability Insurance Benefits (“DIB”) under Title XVI of the Social Security Act

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(the “Act”). See ECF No. 10 at 2.

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In the interest of protecting Plaintiff’s privacy, the Court will use Plaintiff’s first
name and last initial.
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ORDER GRANTING PLAINTIFF’S BRIEF AND REMANDING FOR
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Having reviewed Plaintiff’s Opening Brief, ECF No. 10; the Commissioner’s

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Brief, ECF No. 14; Plaintiff’s reply, ECF No. 15; the relevant law; and the

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administrative record; the Court is fully informed. For the reasons set forth below,

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the Court grants judgment for Plaintiff, reverses the Commissioner’s final decision,

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and remands the matter for a finding of disability under sentence four of 42 U.S.C. §

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405(g).
BACKGROUND

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General Context

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Plaintiff applied for DIB on July 20, 2017, alleging an onset date of July 1,

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2017. See Administrative Record (“AR”) 2 141. Plaintiff was 44 years old on the

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alleged disability date and asserted that he was unable to work due to PTSD,

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depression, anxiety, right knee pain, back pain/arthritis, right wrist ganglion cyst,

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and COPD. AR 142. Plaintiff’s application was denied initially and upon

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reconsideration and following an unfavorable decision by an Administrative Law

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Judge (“ALJ”). See AR 12. Plaintiff sought review in this District, and on January

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27, 2021, United States Magistrate Judge John T. Rodgers granted in part Plaintiff’s

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Motion for Summary Judgment and remanded the matter to the Commissioner for

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additional proceedings. AR 528–48. Judge Rodgers found that the ALJ who heard

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Plaintiff’s claims failed to properly assess the medical opinions of Dr. Cline, Dr.

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The Administrative Record is filed at ECF No. 7.

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Bowes, and Dr. Eather. AR 539–41. Judge Rodgers directed that, on remand, an

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ALJ must reevaluate the medical evidence and Plaintiff’s subjective complaints. AR

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547.

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Plaintiff’s claim was again denied by an ALJ on January 10, 2022. AR 454.

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Plaintiff again sought review in this District, and on September 6, 2022, United

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States Magistrate Judge James A. Goeke remanded the matter for further

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proceedings a second time, based on a stipulation by the parties. AR 1057–59.

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On October 16, 2023, ALJ Cecilia LaCara held a hearing in Seattle,
Washington. AR 999. Plaintiff was present and represented by attorney Justin

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Jerez. AR 999. ALJ heard testimony from Plaintiff and vocational expert (“VE”)

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Kelly McCain. AR 1000.

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ALJ’s Decision

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Applying the five-step evaluation process, ALJ LaCara found:

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Step one: Plaintiff did not engage in substantial gainful activity since the

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application date of July 20, 2017. AR 981 (citing 20 C.F.R. §§ 416.971 et seq.).

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Step two: Plaintiff has the following severe impairments that are medically

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determinable and significantly limit his ability to perform basic work activities:

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affective disorder, anxiety disorder, personality disorder, right knee dysfunction

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disorder, bilateral bunions, right hand disorder, spinal disorder. AR 981 (citing 20

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C.F.R. §§ 416.920(c)). The ALJ also considered the following nonsevere

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impairments: hernias, COPD, cataracts, opioid abuse, and hearing loss. AR 981.
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Step three: The ALJ concluded that Plaintiff does not have an impairment or

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combination of impairments that meets or medically equals the severity of one of the

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listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. AR 981 (citing 20

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C.F.R. §§ 416.920(d), 416.925, 416.926). The ALJ found that Plaintiff has a

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moderate limitation in remembering or applying information and concentrating,

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persisting, or maintaining pace; a moderate limitation in interacting with others; and

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a moderate limitation in adapting or managing oneself. AR 982–83.

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Residual Functional Capacity (“RFC”): The ALJ concluded that Plaintiff
has the RFC to perform light work as defined in 20 CFR § 416.967(b), with the

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following exertional limitations: only occasional climbing ramps or stairs; no

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climbing ladders, ropes, or scaffolds; avoid concentrated exposure to industrial

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levels of vibration, hazards, nonweather related extreme cold, and respiratory

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irritants. AR 983. The ALJ included the following nonexertional limitations: simple

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and routine tasks, with occasional changes in the work setting, occasional interaction

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with the public, supervisors, and coworkers. AR 983.

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Step four: The ALJ did not discuss whether Plaintiff could perform any past
relevant work.
Step five: The ALJ concluded that, considering Plaintiff’s age, education,

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work experience, and RFC, Plaintiff is capable of making a successful adjustment to

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other work that exists in significant numbers in the national economy. AR 989.

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Specifically, the ALJ recounted that the VE identified the following representative
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occupations that Plaintiff could perform with the RFC: marker (light, with

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approximately 147,587 jobs nationally); housekeeper (light, with approximately

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193,204 jobs nationally); and production assembler (light, with approximately

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28,551 jobs nationally). AR 989. The ALJ found that Plaintiff has not been under a

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disability since July 20, 2017. AR 989 (citing 20 CFR § 416.920(g)).

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Through counsel, Plaintiff sought in this Court review of the unfavorable
decision. ECF No. 1.
LEGAL STANDARD

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Standard of Review
Congress has provided a limited scope of judicial review of the

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Commissioner’s decision. 42 U.S.C. § 405(g). A court may set aside the

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Commissioner’s denial of benefits only if the ALJ’s determination was based on

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legal error or not supported by substantial evidence. See Jones v. Heckler, 760 F.2d

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993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The [Commissioner’s]

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determination that a claimant is not disabled will be upheld if the findings of fact are

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supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir.

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1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere

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scintilla, but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112,

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1119 n.10 (9th Cir. 1975); McAllister v. Sullivan, 888 F.2d 599, 601–02 (9th Cir.

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1989). Substantial evidence “means such evidence as a reasonable mind might

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accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,
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401 (1971) (citations omitted). “[S]uch inferences and conclusions as the

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[Commissioner] may reasonably draw from the evidence” also will be upheld. Mark

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v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the

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record, not just the evidence supporting the decisions of the Commissioner.

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Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989).

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A decision supported by substantial evidence still will be set aside if the

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proper legal standards were not applied in weighing the evidence and making a

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decision. Brawner v. Sec’y of Health and Human Servs., 839 F.2d 432, 433 (9th Cir.

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1988). Thus, if there is substantial evidence to support the administrative findings,

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or if there is conflicting evidence that will support a finding of either disability or

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nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen,

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812 F.2d 1226, 1229–30 (9th Cir. 1987).

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Definition of Disability

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The Social Security Act defines “disability” as the “inability to engage in any

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substantial gainful activity by reason of any medically determinable physical or

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mental impairment which can be expected to result in death, or which has lasted or

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can be expected to last for a continuous period of not less than 12 months.” 42

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U.S.C. § 423(d)(1)(A). The Act also provides that a claimant shall be determined to

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be under a disability only if the impairments are of such severity that the claimant is

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not only unable to do their previous work, but cannot, considering the claimant’s

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age, education, and work experiences, engage in any other substantial gainful work
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which exists in the national economy. 42 U.S.C. § 423(d)(2)(A). Thus, the

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definition of disability consists of both medical and vocational components. Edlund

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v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

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Sequential Evaluation Process

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The Commissioner has established a five-step sequential evaluation process

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for determining whether a claimant is disabled. 20 C.F.R. § 404.1520. Step one

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determines if they are engaged in substantial gainful activities. If the claimant is

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engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §

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404.1520(a)(4)(i).

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If the claimant is not engaged in substantial gainful activities, the decision

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maker proceeds to step two and determines whether the claimant has a medically

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severe impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii).

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If the claimant does not have a severe impairment or combination of impairments,

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the disability claim is denied.

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If the impairment is severe, the evaluation proceeds to the third step, which

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compares the claimant’s impairment with listed impairments acknowledged by the

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Commissioner to be so severe as to preclude any gainful activity. 20 C.F.R. §

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404.1520(a)(4)(iii); see also 20 C.F.R. § 404, Subpt. P, App. 1. If the impairment

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meets or equals one of the listed impairments, the claimant is conclusively presumed

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to be disabled.

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If the impairment is not one conclusively presumed to be disabling, the

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evaluation proceeds to the fourth step, which determines whether the impairment

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prevents the claimant from performing work that they have performed in the past. If

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the claimant can perform their previous work, the claimant is not disabled. 20

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C.F.R. § 404.1520(a)(4)(iv). At this step, the claimant’s RFC assessment is

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considered.

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If the claimant cannot perform this work, the fifth and final step in the process

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determines whether the claimant is able to perform other work in the national

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economy considering their RFC and age, education, and past work experience. 20

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C.F.R. § 404.1520(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137, 142 (1987).

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The initial burden of proof rests upon the claimant to establish a prima facie

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case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th

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Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden

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is met once the claimant establishes that a physical or mental impairment prevents

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them from engaging in their previous occupation. Meanel, 172 F.3d at 1113. The

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burden then shifts, at step five, to the Commissioner to show that (1) the claimant

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can perform other substantial gainful activity, and (2) a “significant number of jobs

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exist in the national economy” which the claimant can perform. Kail v. Heckler, 722

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F.2d 1496, 1498 (9th Cir. 1984).

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/ / /

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/ / /
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ISSUE ON APPEAL

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The sole issue on appeal is whether to remand for further proceedings or for a

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finding of disability and payment of benefits. Plaintiff argues that his RFC is

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consistent with disability; the ALJ erred by improperly assessing Plaintiff’s

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testimony; the ALJ erred by improperly assessing the medical opinions; and the

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proper remedy is to remand for benefits. ECF No. 10 at 2. The Commissioner

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concedes that “the ALJ’s decision is inconsistent with controlling standards and the

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law of the case,” but argues for remanding for further proceedings. ECF No. 14 at 2.

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Remedy

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The Ninth Circuit Court of Appeals has held that “[a] district court may

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reverse the decision of the Commissioner of Social Security, with or without

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remanding the cause for a rehearing, but the proper course, except in rare

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circumstances, is to remand to the agency for additional investigation or

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explanation.” Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015) (quotations

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omitted). A court should take the exceptional step of remanding for an immediate

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award of benefits only where:

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(1) The ALJ has failed to provide legally sufficient reasons for rejecting
. . . evidence [probative of disability], (2) there are no outstanding issues
that must be resolved before a determination of disability can be made,
and (3) it is clear from the record that the ALJ would be required to find
the claimant disabled were such evidence credited.

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Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000) (internal quotation omitted).

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By contrast, remand is appropriate when additional administrative proceedings could

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remedy defects. Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989). Even if

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these requirements are met, the court retains “flexibility” to “remand for further

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proceedings when the record as a whole creates serious doubt as to whether the

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claimant is, in fact, disabled within the meaning of the Social Security

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Act.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014).

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Training Period

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Plaintiff contends that his RFC is consistent with disability and that, therefore,

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the proper remedy is to remand for benefits. ECF No. 10 at 3–4. Plaintiff argues

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that the RFC limits Plaintiff to occasional interaction with the public, supervisors,

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and coworkers, but that the jobs identified by the VE have training periods of up to

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30 days, during which time interactions with a supervisor or lead coworker would

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exceed an occasional or one-third basis. ECF No. 10 at 4. Plaintiff claims that the

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RFC is an assessment of the most that a claimant is capable of despite limitations,

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and, therefore, if a claimant can, at most, interact with supervisors or coworkers on

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an occasional basis, that claimant would not be able to survive a training period if

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interactions during that period would exceed occasional contact on a daily basis.

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ECF No. 10 at 4. Plaintiff argues that his RFC is consistent with disability, because

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it precludes the ability to survive a probationary, or training period, which is

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necessary to sustain substantial gainful activities. ECF No. 10 at 4–5.

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The Commissioner argues that remanding for further proceedings is the

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appropriate remedy, because remanding with directions for a finding of disability is
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rare, and Plaintiff has not met the requirements for such a remedy. ECF No. 14 at 2–

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3. The Commissioner argues that Plaintiff’s RFC is consistent with the occupations

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offered by the expert, because the RFC concerns work activity performed on a

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regular and continuing basis, rather than a temporary training period. ECF No. 14 at

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4. The Commissioner contends that, even if this Court disagrees, further

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proceedings would be helpful for clarification regarding the possibility of more than

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occasional supervisory contact, and whether other relevant occupations exist with

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different training requirements. ECF No. 14 at 4.

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Substantial gainful activity requires the ability to hold the job for a significant

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period of time. Gatliff v. Comm’r Soc. Sec. Admin., 172 F.3d 690, 694 (9th Cir.

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1999). Jobs that end within three months because of the claimant’s impairments are

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not substantial gainful activity. Id. Being able to work for eleven months at a time

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has been considered sufficient duration to constitute substantial gainful activity. See

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Tylitzki v. Shalala, 999 F.2d 1411, 1415 (9th Cir. 1993).

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Here, the ALJ asked the vocational expert whether an individual with the

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same age, education, and work experience as Plaintiff, with the hypothetical RFC

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posed by the ALJ, could perform work that exists in the national economy. AR

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1025. The vocational expert testified that such an individual could perform the jobs

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of marker, housekeeping cleaner, and production assembler. AR 1025. When asked

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by Plaintiff’s attorney how long the training period is for these types of jobs, the

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vocational expert testified that it would typically be up to or less than 30 days. AR
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1028. When asked how much interaction a person would have with a supervisor or

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lead coworker during the training period, the vocational expert testified that the

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individual would have “definitely more” interaction during the training period than

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they would have while performing the regular job duties, and that it is “possible”

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that such interactions would exceed an occasional (or one-third) basis for the

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temporary duration of the training period. AR 1029.

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This testimony indicates that Plaintiff’s RFC may be inconsistent with the

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ability to complete a standard training period of a job, as the training may require

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more frequent supervisor contact than Plaintiff is capable of tolerating. However, it

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is unclear from the expert’s testimony how much interaction would be required

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during the training period, and whether they believed someone with Plaintiff’s RFC

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would be terminated during the training period. Accordingly, the Court finds that

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Plaintiff has not met the requirements for remanding for benefits based on this

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ground.

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Medical Source Opinions and Subjective Testimony

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Plaintiff contends that remanding for benefits is also appropriate because the

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ALJ erred by improperly assessing Plaintiff’s testimony and proper assessment of

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the evidence would have resulted in a finding of disability. ECF No. 10 at 8.

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Additionally, Plaintiff contends that the ALJ erred by improperly assessing the

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medical opinions of Dr. Cline, Dr. Bowes, Dr. Genthe, Dr. Morgan, Dr. Jackson, and

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Dr. Eather, because the ALJ gave no sustainable basis to discount the medical
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opinions. ECF No. 10 at 9–21. Plaintiff argues that this case has been pending for

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nearly seven years, there have been multiple remands, the record is fully developed,

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and no useful purpose would be served by additional proceedings. ECF No. 10 at

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The Commissioner argues that this Court should not reweigh the medical

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evidence, and that remanding for further proceedings would be useful for evaluating

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the persuasiveness of the medical opinions. ECF No. 14 at 6. Specifically, although

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the Commissioner concedes that the ALJ improperly evaluated the opinions of Dr.

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Cline and Dr. Bowes, the Commissioner maintains that these opinions remain at

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odds with the opinion of Dr. Eather. ECF No. 14 at 5. Finally, the Commissioner

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contends that the record casts doubt on Plaintiff’s allegedly disabling symptoms.

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ECF No. 14 at 7. The Commissioner argues that Plaintiff’s symptoms improved

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through treatment, the objective medical evidence is at odds with the alleged

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severity of his symptoms, and his daily activities are inconsistent with disability.

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ECF No. 14 at 7. The Commissioner argues that remanding for benefits is improper

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because further proceedings would be useful and there is doubt regarding Plaintiff’s

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disability. ECF No. 14 at 8.

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The Court finds that the record as a whole does not create serious doubt as to

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whether Plaintiff is disabled, and additional proceedings would not be useful.

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Plaintiff's claim has been pending since 2017, has been heard by an ALJ three times,

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and has been remanded twice by a District Court. The parties agree that the ALJ
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committed harmful error. It is well established that “the Social Security Act does

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not require that claimants be utterly incapacitated to be eligible for benefits, and

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many home activities are not easily transferable to what may be the more grueling

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environment of the workplace, where it might be impossible to periodically rest or

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take medication.” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (citations

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omitted). “Only if the level of activity were inconsistent with [a claimant's] claimed

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limitations would these activities have any bearing on [his] credibility.” Reddick v.

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Chater, 157 F.3d 715, 722 (9th Cir. 1998).

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While the ALJ and the Commissioner both pointed to Plaintiff’s testimony

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that he is able to care for his son, this does not cast doubt on Plaintiff’s claimed

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limitations. Plaintiff testified that he sees his son every other Thursday in the

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morning and every other weekend. AR 1019. Plaintiff stated that they color

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together, watch television shows, cook brownies, and do assignments from

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preschool. AR 1020. The Court finds that Plaintiff’s description of his activities is

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not inconsistent with his subjective symptom complaints, and these activities do not

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indicate an ability to perform competitive work on a sustained basis. If fully

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credited, Plaintiff’s subjective testimony would be disabling.

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Regarding the medical opinions, Dr. Bowes opined that Plaintiff had several

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marked and severe limitations in his ability to perform work-related activities. AR

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393–96. Dr. Cline opined that Plaintiff had several marked and one severe

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limitation in his ability to perform work-related activities. AR 416–17. Dr. Genthe
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and Dr. Morgan each found that Plaintiff had several marked limitations. AR 1674–

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75, 1684–85. Dr. Jackson found that Plaintiff was unable to engage in any

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substantial gainful activity by reason of a medically determinable impairment. AR

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423. The Commissioner does not dispute that the ALJ improperly evaluated these

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medical opinions. The Court finds that, if the medical opinions of Dr. Bowes, Dr.

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Cline, Dr. Genthe, Dr. Morgan, and Dr. Jackson that the ALJ rejected on remand

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were to be credited, an ALJ would be required to find Plaintiff disabled. The

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Commissioner has identified no other outstanding issues that must be resolved.

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Therefore, a remand for calculation of benefits is warranted.

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Accordingly, IT IS HEREBY ORDERED:

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Plaintiff’s Brief, ECF No. 10, is GRANTED.

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2.

Defendant the Commissioner’s Brief, ECF No. 14, is GRANTED IN

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PART with respect to reversal and remand and DENIED IN PART with

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respect to the Commissioner’s request to conduct further proceedings.

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3.

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REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. §

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405(g), for calculation and payment of benefits.

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4.

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The decision of the Commissioner is REVERSED, and this matter is

Judgment shall be entered for Plaintiff.

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IT IS SO ORDERED. The District Court Clerk is directed to enter this

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Order, enter judgment as directed, provide copies to counsel, and close the file in

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this case.

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DATED September 25, 2024.
s/ Rosanna Malouf Peterson
ROSANNA MALOUF PETERSON
Senior United States District Judge

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