Spencer v. Colvin

Filing 23

ORDER re 3 Complaint filed by Lesly R. Spencer - by Judge J Richard Creatura. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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10 LESLY R. SPENCER,
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Plaintiff,

CASE NO. 2:15-cv-00020 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.

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CAROLYN W. COLVIN, Acting
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Administration,
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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and

18 Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
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Magistrate Judge and Consent Form, Dkt. 6; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 7). This matter has been fully briefed (see Dkts. 12, 21, 22).

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After considering and reviewing the record, the Court concludes that this matter
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should be reversed and remanded for further administrative proceedings. Although the
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parties agree that the ALJ erred when reviewing plaintiff’s fibromyalgia, further
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 administrative proceedings would be useful as there are credibility issues and conflicts in
2 the medical evidence that the ALJ should resolve following remand.
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Therefore, this matter is reversed and remanded pursuant to sentence four of 42
U.S.C. § 405(g) to the Acting Commissioner for further administrative proceedings
consistent with this order.

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BACKGROUND
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Plaintiff, LESLY R. SPENCER, was born in 1956 and was 50 years old on the
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alleged date of disability onset of February 14, 2007 (see AR. 344-46, 347-53). Plaintiff
graduated from high school, attended college for one year and took some classes years

11 later (AR. 48). Plaintiff has past work experience as a department manager,
12 cashier/checker and sales clerk (AR. 132-33). She left her last employment when she felt
13 she just could not do it anymore (AR. 53).
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According to the ALJ, plaintiff has at least the severe impairment of “fibromyalgia

15 (20 CFR 404.1520(c) and 416.920(c))” (AR. 20).
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At the time of the last hearing, plaintiff was living in an apartment with her two
sons, ages 22 and 26 (AR. 49, 59-60).
PROCEDURAL HISTORY

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Plaintiff’s applications for disability insurance (“DIB”) benefits pursuant to 42
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U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42
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U.S.C. § 1382(a) (Title XVI) of the Social Security Act were denied initially and
following reconsideration (see AR. 144-45, 146-47, 148, 149, 150, 151). Plaintiff’s

24 requested hearing was held before Administrative Law Judge Verrell Dethloff (“the

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 ALJ”) on January 23, 2013 (see AR. 44-75). On March 15, 2013, the ALJ issued a
2 written decision in which the ALJ concluded that plaintiff was not disabled pursuant to
3 the Social Security Act (see AR. 14-43). Plaintiff had an earlier hearing (see AR. 100-43)
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in which a different Administrative Law Judge had determined plaintiff was not disabled
(see AR. 152-77), but the Appeals Council ordered the case remanded for further

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proceedings and vacated that decision (see AR. 173-77). Some of that decision is
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incorporated by the ALJ into his decision being considered herein.
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Did the ALJ
properly evaluate the fibromyalgia of plaintiff; (2) Did the ALJ erroneously reject

11 overwhelming treating-physician opinions; (3) Did the ALJ erroneously rely on overruled
12 out-of-Circuit law; (4) Does substantial evidence support the ALJ’s credibility finding;
13 (5) Does substantial evidence support the ALJ’s evaluation of third-party-statements; (6)
14 Does substantial evidence support the ALJ’s alternative step-five decision; and (7) Does
15 substantial evidence support the ALJ’s step-four decision (see Dkt. 12, p. 1).
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Defendant has requested remand for further proceedings (see Dkt. 21, p. 1).
Therefore, the parties agree that the ALJ erred in his written decision, which must be
reversed (see id.). However, plaintiff requests that the matter be reversed and remanded

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with a direction to award benefits (see Dkt. 22).
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STANDARD OF REVIEW
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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's
denial of social security benefits if the ALJ's findings are based on legal error or not

24 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d

ORDER ON PLAINTIFF’S COMPLAINT - 3

1 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
2 1999)).
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DISCUSSION
Defendant concedes that “the hearing decision did not appropriately evaluate the
impact of plaintiff’s fibromyalgia or her drug and alcohol abuse,” however contends that

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“remand is necessary so the Commissioner may order the ALJ to determine the effect of
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the medical evidence” (Dkt. 21, p. 2). Plaintiff argues that defendant did not address all
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of her allegations of error and that this matter should be remanded with a direction to
award benefits, or alternatively, for a new hearing and a new decision in which the ALJ

11 corrects the errors identified by plaintiff (see Dkt. 22).
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Even if the Court agrees with plaintiff regarding all of the alleged errors, such a

13 conclusion is not necessarily dispositive on the issue of whether this matter should be
14 reversed and remanded with a direction to award benefits, or reversed and remanded for
15 further administrative proceedings. Generally, when the Social Security Administration
16 does not determine a claimant’s application properly, “‘the proper course, except in rare
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circumstances, is to remand to the agency for additional investigation or explanation.’”
Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the

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Ninth Circuit has put forth a “test for determining when [improperly rejected] evidence
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should be credited and an immediate award of benefits directed.” Harman v. Apfel, 211
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F.3d 1172, 1178 (9th Cir. 2000) (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir.
1996)). It is appropriate when:

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ORDER ON PLAINTIFF’S COMPLAINT - 4

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(1) the ALJ has failed to provide legally sufficient reasons for rejecting such
evidence, (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.
Harman, supra, 211 F.3d at 1178 (quoting Smolen, supra, 80 F.3d at 1292).
Here, defendant concedes point one, however contends that outstanding issues

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must be resolved before a determination of disability can be made (see Dkt. 21, pp. 2-5).
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As stated recently by the Ninth Circuit:
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Second, we turn to the question whether [or not] further administrative
proceedings would be useful. In evaluating this issue, we consider [if]
the record as a whole is free from conflicts, ambiguities, or gaps, [if] all
factual issues have been resolved, and [if] the claimant’s entitlement to
benefits is clear under the applicable legal rules.

12 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014)
13 (citations omitted). Here, the Court concludes that the record as a whole is not free from
14 conflicts, ambiguities or gaps. Plaintiff’s entitlement to benefits is not clear. See id.
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For example, regarding plaintiff’s credibility, although the ALJ relied on activities

16 of daily living that are not likely transferable to a work setting and do not contradict
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necessarily her claim of inability to work full time, the ALJ also noted inconsistencies in
plaintiff’s allegations and noted other credibility concerns. As noted by the ALJ, plaintiff

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alleged difficulty with memory recall, but the record demonstrates that she was in the
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honors program with a grade point average of 3.8/4.0 at college (AR. 23, 25, 32, 468,
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727-28). The Court notes the adoption by the ALJ of the note in the prior written decision
that Dr. Diana Cook, Ph.D. “reported that the claimant informed her that going to school

24 was a farce, and the only reason she went was to get financial aid” (AR. 32 (citing AR.

ORDER ON PLAINTIFF’S COMPLAINT - 5

1 468)). The ALJ also noted that Dr. Cook included a rule-out diagnosis of malingering,
2 indicating a need to rule out malingering, and noted that “Dr. Cook notated that the
3 claimant might not be responding in a straightforward manner, and presented ‘several
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minor contradictions’”(AR. 20-21 (citing AR. 468)). Finally, as noted by the ALJ, when
plaintiff was “just wanting pain medication,” from PA-C Taddele S. Ambachew after

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being denied more medication from a doctor, PA-C Ambachew observed that plaintiff
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“has secondary gain behavior” (see AR. 30, 911).
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Similarly, although the ALJ erred in his review of the medical evidence and noted
findings not inconsistent with fibromyalgia in order to discredit medical opinions based

11 on fibromyalgia, the ALJ also offered some valid reasons for discounting some of the
12 medical opinions. See Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (footnote
13 omitted) (noting that an ALJ erred in discounting medical opinions based in part on a
14 fibromyalgia diagnosis, and found that the ALJ instead had been “relying on his disbelief
15 of [the claimant’s] symptom testimony as well as his misunderstanding of
16 fibromyalgia”); cf. Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014) (award of
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benefits not appropriate if plaintiff “is not in fact disabled”). For example, the ALJ
rejected the opinions of Dr. Adam Balkany, D.O, for many reasons, including that his

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opinions were “inconsistent with the claimant’s creditable reported activities” (AR. 27-28
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(footnote omitted)). While Dr. Balkany opined that plaintiff could not handle dealing
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with other people, this is inconsistent with plaintiff’s report to Dr. Cook that “she
normally gets along with others,” a comment noted by the ALJ (AR. 27; see also AR.

24 468 (plaintiff “states ‘yeah’ when asked if she normally gets along with others”)).

ORDER ON PLAINTIFF’S COMPLAINT - 6

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Based on a review of the record as a whole, the Court concludes that further

2 administrative proceedings would serve a useful purpose. The ALJ raised valid credibility
3 concerns, there are conflicts in the medical evidence and it is not clear that plaintiff “is []
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in fact disabled.” See Garrison, 759 F.3d at 1021.
The ALJ is responsible for determining credibility and resolving ambiguities and

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conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)
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(citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). If the medical evidence
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in the record is not conclusive, sole responsibility for resolving conflicting testimony and
questions of credibility lies with the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th

11 Cir. 1982) (quoting Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir. 1971) (citing
12 Calhoun v. Bailar, 626 F.2d 145, 150 (9th Cir. 1980))).

CONCLUSION

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Based on the stated reasons and the relevant record, the Court ORDERS that this

15 matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
16 405(g) to the Acting Commissioner for further consideration consistent with this order.
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JUDGMENT should be for plaintiff and the case should be closed.
Dated this 21st day of July, 2015.

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A

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J. Richard Creatura
United States Magistrate Judge

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