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)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 9 10 LESLY R. SPENCER, 11 12 Plaintiff, CASE NO. 2:15-cv-00020 JRC ORDER ON PLAINTIFF’S COMPLAINT v. 13 CAROLYN W. COLVIN, Acting 14 Commissioner of the Social Security Administration, 15 Defendant. 16 17 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. 19 20 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). 21 After considering and reviewing the record, the Court concludes that this matter 22 should be reversed and remanded for further administrative proceedings. Although the 23 parties agree that the ALJ erred when reviewing plaintiff’s fibromyalgia, further 24 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. 3 4 5 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. 6 BACKGROUND 7 Plaintiff, LESLY R. SPENCER, was born in 1956 and was 50 years old on the 8 9 10 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). 14 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). 16 17 18 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 19 Plaintiff’s applications for disability insurance (“DIB”) benefits pursuant to 42 20 U.S.C. § 423 (Title II) and Supplemental Security Income (“SSI”) benefits pursuant to 42 21 22 23 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) 4 5 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 6 proceedings and vacated that decision (see AR. 173-77). Some of that decision is 7 incorporated by the ALJ into his decision being considered herein. 8 9 10 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). 16 17 18 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 19 with a direction to award benefits (see Dkt. 22). 20 STANDARD OF REVIEW 21 22 23 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)). 3 4 5 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 6 “remand is necessary so the Commissioner may order the ALJ to determine the effect of 7 the medical evidence” (Dkt. 21, p. 2). Plaintiff argues that defendant did not address all 8 9 10 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). 12 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 17 18 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 19 Ninth Circuit has put forth a “test for determining when [improperly rejected] evidence 20 should be credited and an immediate award of benefits directed.” Harman v. Apfel, 211 21 22 23 F.3d 1172, 1178 (9th Cir. 2000) (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). It is appropriate when: 24 ORDER ON PLAINTIFF’S COMPLAINT - 4 1 2 3 4 5 (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 6 must be resolved before a determination of disability can be made (see Dkt. 21, pp. 2-5). 7 As stated recently by the Ninth Circuit: 8 9 10 11 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. 15 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 17 18 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 19 alleged difficulty with memory recall, but the record demonstrates that she was in the 20 honors program with a grade point average of 3.8/4.0 at college (AR. 23, 25, 32, 468, 21 22 23 727-28). 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 4 5 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 6 being denied more medication from a doctor, PA-C Ambachew observed that plaintiff 7 “has secondary gain behavior” (see AR. 30, 911). 8 9 10 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 17 18 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 19 opinions were “inconsistent with the claimant’s creditable reported activities” (AR. 27-28 20 (footnote omitted)). While Dr. Balkany opined that plaintiff could not handle dealing 21 22 23 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 1 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 [] 4 5 in fact disabled.” See Garrison, 759 F.3d at 1021. The ALJ is responsible for determining credibility and resolving ambiguities and 6 conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) 7 (citing Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). If the medical evidence 8 9 10 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 13 14 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. 17 18 JUDGMENT should be for plaintiff and the case should be closed. Dated this 21st day of July, 2015. 19 A 20 J. Richard Creatura United States Magistrate Judge 21 22 23 24 ORDER ON PLAINTIFF’S COMPLAINT - 7

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?