Brandom v. Commissioner of Social Security

Filing 21

ORDER Granting 16 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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

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Nov 07, 2017

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SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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JOHN BRANDOM,

No. 4:16-CV-05152-JTR

Plaintiff,

ORDER GRANTING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENT

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v.

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COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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

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No. 16, 20. Attorney D. James Tree represents John Brandom (Plaintiff); Special

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Assistant United States Attorney Summer Stinson 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. 6. After reviewing the administrative record and the

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

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

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REMANDS the matter to the Commissioner for additional proceedings pursuant to

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42 U.S.C. § 405(g).

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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 February 5, 2013, Tr. 242, alleging

ORDER GRANTING PLAINTIFF’S MOTION . . . - 1

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disability since March 13, 2008, Tr. 212-221, due to depression, anxiety, attention

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deficit hyperactivity disorder (ADHD), posttraumatic stress disorder (PTSD), short

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term memory loss, panic attacks, numbness in the legs, insomnia, depression, and

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restless leg syndrome. Tr. 245. The applications were denied initially and upon

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reconsideration. Tr. 127-139, 142-159. Administrative Law Judge (ALJ) Wayne

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N. Araki held a hearing on March 12, 2015 and heard testimony from Plaintiff and

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vocational expert, Kimberly Mullinax. Tr. 34-62. At this hearing, Plaintiff

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amended his alleged date of onset on his SSI claim to July 11, 2014 and withdrew

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his Request for a Hearing on his DIB claim. Tr. 37. The ALJ issued an

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unfavorable decision on April 23, 2015. Tr. 15-28. The Appeals Council denied

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review on September 28, 2016. Tr. 616-622. The ALJ’s April 23, 2015 decision

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became the final decision of the Commissioner, which is appealable to the district

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court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review

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on November 18, 2016. ECF No. 1, 4.

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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 35 years old at the amended date of onset. Tr. 214. Plaintiff

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completed the twelfth grade in 1997. Tr. 246. His reported work history includes

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the jobs of deliverer, laborer, maintenance worker, janitor, cashier, “mudder,”

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telemarketer, and dishwasher. Tr. 247, 262. He reported that he stopped working

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in March of 2008 because of his conditions and because he was arrested. Tr. 246.

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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

ORDER GRANTING PLAINTIFF’S MOTION . . . - 2

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

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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 be set aside if the proper legal standards were not applied

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in weighing the evidence and making the decision. Brawner v. Secretary of Health

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

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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 person is disabled. 20 C.F.R. § 416.920(a); see Bowen

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v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of

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proof rests upon the claimant to establish a prima facie case of entitlement to

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disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once the

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claimant establishes that physical or mental impairments prevent him from

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engaging in his previous occupations. 20 C.F.R. § 416.920(a)(4). If the claimant

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cannot do his past relevant work, the ALJ proceeds to step five, and the burden

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shifts to the Commissioner to show that (1) the claimant can make an adjustment to

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other work, and (2) specific jobs exist in the national economy which the claimant

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can perform. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194

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(9th Cir. 2004). If the claimant cannot make an adjustment to other work in the

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national economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(v).

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ADMINISTRATIVE DECISION

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On April 23, 2015, the ALJ issued a decision finding Plaintiff was not

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disabled as defined in the Social Security Act.
At step one, the ALJ found Plaintiff had not engaged in substantial gainful
activity since February 5, 2013, the date of application. Tr. 17.
At step two, the ALJ determined Plaintiff had the following severe

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impairments: ADHD/attention deficit disorder (ADD); affective

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disorder/depression; anxiety disorder/panic disorder/PTSD; personality disorder;

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substance addition disorder; and muscle/soft tissue disorder of the right wrist and

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left shoulder. Tr. 17.

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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. 18.

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At step four, the ALJ assessed Plaintiff’s residual function capacity and
determined he could perform a range of light work with the following limitations:

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He is able to lift or carry 20 pounds occasionally and 10 pounds
frequently. He does not have any restrictions on sitting. He is able to
stand or walk for 2 hour intervals and be on his feet for 8 hours a day
with normal breaks. He should not climb ladders, ropes or scaffolds.
He is able to occasionally climb stairs or ramps. He can frequently
balance, stoop, kneel, crouch or crawl. He is able to frequently engage
in fingering and handling with the dominant right upper extremity. He
is able to remember, understand and carry-out instructions and tasks
generally required by occupations with a Specific Vocational
Preparation (SVP) of 1-2 but not more. He is able to have superficial,
infrequent interaction with the general public. He can have occasional
interaction with coworkers or supervisors. He is able to make
adjustments to changes in routine workplace setting generally
associated with occupations with an SVP of 1-2. The work tasks should
not include goal setting or planning. The job tasks should not require

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assistance of others for completion, but occasional assistance is not
precluded. The work station should not have more than 25 people in
close proximity.

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Tr. 20. The ALJ identified Plaintiff’s past relevant work as a newspaper delivery

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driver, janitor, telemarketer, winery worker, material handler, cleaner

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housekeeping, kitchen helper, deliverer outside, cashier II, and harvest worker field

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crop. Tr. 26. He concluded that Plaintiff was not able to perform his past relevant

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work. Id.

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At step five, the ALJ determined that, considering Plaintiff’s age, education,

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work experience and residual functional capacity, and based on the testimony of

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the vocational expert, there were other jobs that exist in significant numbers in the

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national economy Plaintiff could perform, including the jobs of cleaner

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housekeeper, assembler production, outside deliverer, and mail clerk.1 Tr. 27. The

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ALJ concluded Plaintiff was not under a disability within the meaning of the Social

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Security Act at any time from the date of application, February 5, 2013, through

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the date of the ALJ’s decision. Tr. 28.

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ISSUES
The question presented is whether substantial evidence supports the ALJ’s
decision denying benefits and, if so, whether that decision is based on proper legal

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The Court notes that for the jobs of cleaner housekeeper, DOT Code

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323.687-014, and outside deliverer, DOT Code 230.663-010, the ALJ had already

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found at step four that the “demands of these occupations exceed [Plaintiff’s]

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residual function capacity.” Tr. 26. Therefore, the ALJ’s finding at step five that

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Plaintiff “would be able to perform the requirements” of these positions is

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inconsistent. See Tr. 27. Considering the step four and step five findings as to

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these jobs cannot both be true, the ALJ erred. Upon remand, the ALJ is instructed

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to call a vocational expert to testify as part of any step four or five determinations.

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

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address the medical opinions in the record and (2) failing to properly weigh

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Plaintiff’s symptom reports.

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DISCUSSION
A.

Medical Opinions

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Plaintiff argues that the ALJ erred in discounting the opinion of Laurie

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Jones, LMHP while giving controlling weight to medical opinions that predate the

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onset date. ECF No. 16 at 5-12.

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At the hearing, Plaintiff amended his date on onset to July 11, 2014. Tr. 37.

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The ALJ stated that he accepted the amendment at the hearing, Tr. 38, and noted

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the amendment in his written decision, Tr. 15. Amending his onset date to July 11,

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2014 resulted in Plaintiff withdrawing his Request for a Hearing in his DIB claim

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and the previous Reconsideration Determination denying his application becoming

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final. Tr. 12, 15. Despite Plaintiff’s amendment, the ALJ’s acceptance, and the

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dismissal of the DIB claim, the ALJ’s decision denying Plaintiff’s SSI application

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was for the time period of February 5, 2013 through April 23, 2015. Tr. 17-28.

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In forming this residual functional capacity determination, that ALJ gave

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significant weight to the state agency opinions from Eugene Kester, M.D. and Dan

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Donahue, Ph.D. dated May 1, 2013 and July 30, 2013, respectively. Tr. 23

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(referring to Tr. 92-94, 120-122). The ALJ then gave weight to the opinion of Jan

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Kouze, E.D. dated July 2012. Tr. 24 (citing Tr. 363-366, 588-592). He gave some

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weight to the opinion of Aaron R. Burdge, Ph.D. dated September 11, 2012. Tr. 24

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(citing Tr. 367-372, 514-519). He gave some weight to the opinion from Philip

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Barnard, Ph.D. dated December 13, 2012. Tr. 25 (citing Tr. 397-400, 532-535).

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Finally, the ALJ gave little weight to the July 11, 2014 opinion of Lauri Jones,

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LMHP. Tr. 25 (citing Tr. 509-512).

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Of all the opinions considered by the ALJ, Lauri Jones’ was the only one
within the relevant time period of July 11, 2014 through April 23, 2015. See

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Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008)

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(“Medical opinions that predate the alleged onset of disability are of limited

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relevance.”). The ALJ’s depiction of the relevant time period as beginning in 2013

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is questionable and results in the inclusion of pre-onset date opinions in his

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residual functional capacity analysis.

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Additionally, the evidence submitted to and considered by the Appeals

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Council, Tr. 604-615, appears to provide additional support for Laurie Jones’

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opinion. Caryn L. Jackson, M.D., examined Plaintiff in March of 2015, Tr. 594-

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599, and on April 29, 2015 opined that she agreed with Laurie Jones’ July 11, 2014

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opinion. Tr. 604-607. While the Court acknowledges that this information was

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not available to the ALJ at the time of his decision, Tr. 32-33, it must review this

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evidence to determine if the ALJ’s decision is supported by substantial evidence.

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Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162-63 (9th Cir. 2012).

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Here, considering the only two opinions in the entire record that address the

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relevant time period are from Laurie Jones and Dr. Jackson, the Court finds that

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the substantial evidence does not support the ALJ’s decision to discount the July

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11, 2014 opinion. Therefore, this case is remanded for the ALJ to address the body

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of evidence in perspective of the relevant time period.

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B.

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Plaintiff’s Symptom Reports
Plaintiff contests the ALJ’s determination that Plaintiff’s symptom reports

are less than fully credible. ECF No. 16 at 12-20.

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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 v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).

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“General findings are insufficient: rather the ALJ must identify what testimony is

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not credible and what evidence undermines the claimant’s complaints.” Lester, 81

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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. 21. The evaluation of a

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claimant’s statements regarding limitations relies, in part, on the assessment of the

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medical evidence. See 20 C.F.R. § 404.1529(c); S.S.R. 16-3p. Therefore, in light

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of the case being remanded for the ALJ to address the medical opinions in the file,

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a new assessment of Plaintiff’s subjective symptom statements is necessary to

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determine if they are consistent with the record as a whole in accord with S.S.R.

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16-3p.

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REMEDY

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The decision whether to remand for further proceedings or reverse and

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award benefits is within the discretion of the district court. McAllister v. Sullivan,

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888 F.2d 599, 603 (9th Cir. 1989). An immediate award of benefits is appropriate

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where “no useful purpose would be served by further administrative proceedings,

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or where the record has been thoroughly developed,” Varney v. Secretary of Health

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& Human Servs., 859 F.2d 1396, 1399 (9th Cir. 1988), or when the delay caused

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by remand would be “unduly burdensome,” Terry v. Sullivan, 903 F.2d 1273, 1280

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(9th Cir. 1990). See also Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014)

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(noting that a district court may abuse its discretion not to remand for benefits

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when all of these conditions are met). This policy is based on the “need to

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expedite disability claims.” Varney, 859 F.2d at 1401. But where there are

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outstanding issues that must be resolved before a determination can be made, and it

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is not clear from the record that the ALJ would be required to find a claimant

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disabled if all the evidence were properly evaluated, remand is appropriate. See

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Benecke v. Barnhart, 379 F.3d 587, 595-96 (9th Cir. 2004); Harman v. Apfel, 211

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F.3d 1172, 1179-80 (9th Cir. 2000).

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In this case, it is not clear from the record that the ALJ would be required to

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find Plaintiff disabled if all the evidence were properly evaluated as there is a

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limited amount of evidence during the relevant time period. Further proceedings

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are necessary for the ALJ to clearly identify the relevant time period based on

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Plaintiff’s alleged date of onset, to address the medical opinions from the relevant

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time period, and to address Plaintiff’s symptom reports during the relevant time

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period. Additionally, the ALJ will supplement the record with any outstanding

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medical evidence, make new step four and five determinations, and call a

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psychological and a vocational expert to testify at a remand hearing.

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CONCLUSION
Accordingly, IT IS ORDERED:
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Defendant’s Motion for Summary Judgment, ECF No. 20, is

DENIED.
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Plaintiff’s Motion for Summary Judgment, ECF No. 16, is

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GRANTED, in part, and the matter is REMANDED to the Commissioner for

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additional proceedings consistent with this Order.

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3.

Application for attorney fees may be filed by separate motion.

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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 November 7, 2017.

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_____________________________________
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE

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