Ford v. Colvin

Filing 21

ORDER re 1 Complaint filed by Nathan S Ford, III - 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)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

8
9
10

NATHAN S. FORD, III,

11
12
13
14

Plaintiff,

CASE NO. 2:15-cv-0319 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
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. 3; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 4). This matter has been fully briefed (see Dkt. 18, 19, 20).

21

After considering and reviewing the record, the Court concludes that the ALJ
22

erred in failing to provide a germane reason for discounting the medical source opinion of
23

Charles Herndon, MHP. Because the residual functional capacity (“RFC”) would have
24

ORDER ON PLAINTIFF’S COMPLAINT - 1

1 included additional limitations, and because these additional limitations may have
2 affected the ultimate disability determination, the error is not harmless.
3
4

Therefore, this matter is reversed and remanded pursuant to sentence four of 42
U.S.C. § 405(g) to the Acting Commissioner for further consideration.

5

BACKGROUND

6

Plaintiff, NATHAN S. FORD, III, was born in 1970 and was 35 years old on the
7

alleged date of disability onset of February 2, 2006 (see AR. 143-49, 150-52). Plaintiff
8
9
10

attended school to the ninth grade and later obtained his GED (AR. 804-05). He has work
experience in a shipyard but was let go and told he was too sick to be working there (AR.

11 809-10).
12

According to the ALJ, plaintiff has at least the severe impairments of “diabetes,

13

affective disorder, anxiety disorder, personality disorder, ADHD, and polysubstance

14

abuse (20 CFR 404.1520(c) and 416.920(c))” (AR. 738).

15
16
17
18
19
20
21
22
23
24

At the time of the hearing, plaintiff was living alone in an apartment (AR. 806).
PROCEDURAL HISTORY
Plaintiff provides the following uncontested procedural history:
On October 29, 2008, Nathan S. Ford III filed claims for Social
Security Disability Insurance Benefits and Supplemental Security Income
disability benefits. Administrative Record (AR) 71-72, 735. His claims were
denied initially and on reconsideration. AR 79, 81. Mr. Ford timely
requested an administrative hearing. AR 83. On October 26, 2010, a hearing
was held before Administrative Law Judge (ALJ) Marguerite Schellentrager.
AR 29-69. On December 22, 2010, ALJ Schellentrager issued a decision
denying Mr. Ford disability benefits. AR 11-23. On February 23, 2012, the
Appeals Council denied Mr. Ford’s request for review. AR 1, 141. Mr. Ford
then sought review in the United States District Court for the Western
District of Washington. AR 870-71. On December 13, 2012, the Court

ORDER ON PLAINTIFF’S COMPLAINT - 2

1
2
3
4
5

reversed the denial of benefits and remanded the matter for further
administrative proceedings. AR 874-80.
On November 6, 2013, a second administrative hearing was held
before ALJ Verrell Dethloff, and on November 18, 2013, ALJ Dethloff
issued a decision denying disability benefits. AR 735-54, 802-44. Mr. Ford
timely submitted written exceptions to the Appeals Council. AR 727-28. On
January 16, 2015, the Appeals Council declined to assume jurisdiction over
the matter. AR 722. This appeal follows.

6 (See Dkt. 18, p. 2.).
7

In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or

8 not the ALJ properly evaluated the medical evidence in the record; and (2) Whether or
9 not the ALJ properly evaluated the lay witness statement of Shawn Hayenga (see Dkt. 18,
10 pp. 1-2). Because this Court reverses and remands the case based on issue 1, the Court
11
12

need not further review other issues and expects the ALJ to reevaluate the record as a
whole in light of the direction provided below.

13

STANDARD OF REVIEW

14

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s
15

denial of social security benefits if the ALJ’s findings are based on legal error or not
16
17
18

supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.

19 1999)).

DISCUSSION

20
21

(1)

Whether or not the ALJ properly evaluated the medical evidence in the
record.

22

Plaintiff contends that the ALJ erred by failing to provide a specific, germane
23
24

reason for discounting the opinion of examiner Charles Herndon, MHP (see Opening

ORDER ON PLAINTIFF’S COMPLAINT - 3

1 Brief, Dkt. 18, pp. 20-21). On August 11, 2008, Mr. Herndon performed a psychological
2 evaluation of plaintiff for the Washington Department of Social and Health Services
3 (“DSHS”) (see AR. 289-92). In that evaluation, Mr. Herndon found that plaintiff had
4
5

marked depressed mood and social withdrawal, as well as moderate paranoid behavior
and verbal expression of anxiety or fear (see AR. 290). Mr. Herndon assessed plaintiff

6

with moderate recurrent major depression (see id.). Mr. Herndon ultimately opined that
7

plaintiff had marked limitations in his ability to relate appropriately to co-workers and
8
9
10

supervisors (see AR. 291).
Pursuant to the relevant federal regulations, in addition to “acceptable medical

11 sources,” that is, sources “who can provide evidence to establish an impairment,” 20
12 C.F.R. § 404.1513(a), there are “other sources,” such as friends and family members,
13 who are defined as “other non-medical sources” and “other sources” such as nurse
14 practitioners, therapists and chiropractors, who are considered other medical sources, see
15 20 C.F.R. § 404.1513(d). See also Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 122316 24 (9th Cir. 2010) (citing 20 C.F.R. § 404.1513(a), (d)); Social Security Ruling “SSR”
17
18

06-3p, 2006 SSR LEXIS 5 at *4-*5, 2006 WL 2329939. An ALJ may disregard opinion
evidence provided by both types of “other sources,” characterized by the Ninth Circuit as

19

lay testimony, “if the ALJ ‘gives reasons germane to each witness for doing so.” Turner,
20

supra, 613 F.3d at 1224 (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)); see
21
22
23

also Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). This is because in
determining whether or not “a claimant is disabled, an ALJ must consider lay witness

24 testimony concerning a claimant’s ability to work.” Stout v. Commissioner, Social

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 Security Administration, 454 F.3d 1050, 1053 (9th Cir. 2006) (citing Dodrill v. Shalala,
2 12 F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) and (e), 416.913(d)(4) and
3 (e)).
4
5

“[O]nly ‘acceptable medical sources’ can [provide] medical opinions [and] only
‘acceptable medical sources’ can be considered treating sources.” See SSR 06-03p, 2006

6

SSR LEXIS 5 at *3-*4 (internal citations omitted). Nevertheless, evidence from “other
7

medical” sources, that is, lay evidence, can demonstrate “the severity of the individual’s
8
9
10

impairment(s) and how it affects the individual’s ability to function.” Id. at *4. The
Social Security Administration has recognized that with “the growth of managed health

11 care in recent years and the emphasis on containing medical costs, medical sources who
12 are not ‘acceptable medical sources,’ . . . have increasingly assumed a greater
13 percentage of the treatment and evaluation functions previously handled primarily by
14 physicians and psychologists.” Id. at *8. Therefore, according to the Social Security
15 Administration, opinions from other medical sources, “who are not technically deemed
16 ‘acceptable medical sources’ under our rules, are important, and should be evaluated on
17
18

key issues such as impairment severity and functional effects.” Id.
Relevant factors when determining the weight to be given to an other medical

19

source include:
20
21
22
23
24

How long the source has known and how frequently the source has seen
the individual; How consistent the opinion is with other evidence; The
degree to which the source present relevant evidence to support an
opinion; How well the source explains the opinion; Whether [or not] the
source has a specialty or area of expertise related to the individuals’
impairments(s), and Any other factors that tend to support or refute the
opinion.

ORDER ON PLAINTIFF’S COMPLAINT - 5

1

2006 SSR LEXIS 5 at *11.
2
3
4

Here, the ALJ gave some weight to the opinion of Mr. Herndon, noting that the
opined moderate restrictions in social and cognitive function were consistent with the

5 medical evidence and plaintiff’s daily activities (see AR. 750). The ALJ then stated,
6 “However, such evidence is not consistent with Mr. Herdon’s [sic] opinion that the
7 claimant would have marked limitations in the ability to relate appropriately to co8 workers and supervisors” (id.).
9
10
11
12

The Ninth Circuit has characterized lay witness testimony, including opinions
from other medical sources, as “competent evidence,” noting that an ALJ may not
discredit “lay testimony as not supported by medical evidence in the record.” Bruce v.
Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (citing Smolen v. Chater, 80 F.3d 1273, 1289

13

(9th Cir. 1996)). However, an ALJ may discredit lay testimony if it conflicts with
14

medical evidence, even though it cannot be rejected as unsupported by the medical
15
16
17

evidence. See Lewis, supra, 236 F.3d at 511 (An ALJ may discount lay testimony that
“conflicts with medical evidence”) (citing Vincent v. Heckler, 739 F.2d 1393, 1395 (9th

18 Cir. 1984); Bayliss, supra, 427 F.3d at 1218 (“Inconsistency with medical evidence” is a
19 germane reason for discrediting lay testimony) (citing Lewis, supra, 236 F.3d at 511).
20

Here, however, the ALJ’s general claim that the limitation in ability to relate with

21 co-workers and supervisors is inconsistent with the medical evidence is not supported by
22 substantial evidence. Mr. Herndon’s opinion was based on clinical interviews, testing,
23

consultation with plaintiff’s primary care provider, and a review of the medical record

24

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 (see AR. 291). In the medical record, plaintiff’s treating provider Ned Farmer, MA,
2 opined that plaintiff had marked limitations in relating to co-workers and supervisors (see
3 AR. 595). DSHS examining psychologist Victoria McDuffee, Ph.D. found that plaintiff
4
5

had a marked limitation in communicating effectively in a work setting with even limited
public contact and that he had a severe limitation in maintaining appropriate behavior in a

6

work setting (see AR. 971). Examining physician Kathleen Andersen, M.D., opined that
7

plaintiff had marked limitations in communicating and performing effectively and in
8
9
10
11

maintaining appropriate behavior in a work setting, noting that plaintiff would likely be
impulsive and impatient in interactions (see AR. 961-62).
Presumably, the ALJ found Mr. Herndon’s opinion inconsistent with examining

12 physician Erin Rubin, Psy.D., who found that plaintiff could accept instructions from
13 supervisors and interact appropriately with co-workers, an opinion to which the ALJ gave
14 significant weight (see AR. 749). However, with the breadth of medical evidence
15 indicating that plaintiff was limited in interacting with co-workers and supervisors, Mr.
16 Herndon’s opinion could not fairly be dismissed as being generally inconsistent with the
17
18

medical evidence. Though the ALJ discounted the opinions that concurred with Mr.
Herndon’s for various reasons, substantial evidence does not support the ALJ’s statement

19

that Mr. Herndon’s opinion was inconsistent with the medical evidence.
20

Next, an ALJ may reject lay witness evidence, including opinions of other medical
21
22
23

sources, if other evidence in the record regarding the claimant’s activities is inconsistent
therewith. See Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1164 (9th

24 Cir. 2008). Though not explicitly stated when analyzing Mr. Herndon’s opinion, the ALJ

ORDER ON PLAINTIFF’S COMPLAINT - 7

1 elsewhere found that plaintiff’s ability to spend time with friends, maintain a relationship
2 with a girlfriend, go to AA meetings, and babysit his niece and nephew is consistent with
3 the RFC assessed, not with a marked limitation in interacting with co-workers and
4
5

supervisors (see AR. 749).
However, substantial evidence does not support the ALJ’s statement that

6

plaintiff’s activities are inconsistent with Mr. Herndon’s opined limitation in the ability to
7

relate appropriately to co-workers and supervisors. That plaintiff could maintain long8
9
10

term friendships or a relationship with a woman he has known for twenty years does not
demonstrate that he can appropriately interact with complete strangers in a full-time work

11 environment (see AR. 46). Activities such as attending AA meetings do not require
12 interaction with others at the level of a work environment. Similarly, caring for children
13 does not demonstrate an ability to maintain appropriate workplace relationships with
14 adults. 1 In fact, the record as a whole indicates that plaintiff generally avoids others
15 outside of his circle and isolates himself because of the stress of interacting with others
16 (see, e.g., AR. 174, 182, 354 (broken teeth and abrasions on face from a fight), 964
17
18

(“difficulty with every relationship he attempts to engage”), 968 (“every relationship I
have is stressed”), 1142 (he “gets into it with everybody in his life”), 1152 (difficulty

19

interacting with bus drivers and authority figures)).
20
21
1

Notably, the ALJ found that plaintiff’s daily activities were consistent with the
assessments by state agency consultants who found that plaintiff should not interact with
23 the general public, a limitation incorporated into plaintiff’s RFC (see AR. 741, 748-49).
However, the ALJ fails to explain why the same activities show that he was more capable
24 of successfully interacting with co-workers and supervisors.
22

ORDER ON PLAINTIFF’S COMPLAINT - 8

1

Moreover, having based his opinion on clinical interviews, testing, consultation

2 with plaintiff’s primary care provider, and a review of the medical record, there is no
3 evidence that Mr. Herndon was not fully aware of plaintiff’s activities when assessing
4
5

plaintiff’s functional limitations (see AR. 291). Therefore, because substantial evidence
did not support the ALJ’s alleged inconsistency between Mr. Herndon’s opinion and

6

plaintiff’s activities, the ALJ offered no germane reason for discounting the opinion.
7

The Ninth Circuit has “recognized that harmless error principles apply in the
8
9
10

Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
(citing Stout, supra, 454 F.3d at 1054 (collecting cases)). The Ninth Circuit noted that “in

11 each case we look at the record as a whole to determine [if] the error alters the outcome
12 of the case.” Id. The court also noted that the Ninth Circuit has “adhered to the general
13 principle that an ALJ’s error is harmless where it is ‘inconsequential to the ultimate
14 nondisability determination.’” Id. (quoting Carmickle, supra, 533 F.3d at 1162) (other
15 citations omitted). Here, because the ALJ improperly discounted the opinion of Mr.
16 Herndon in assessing plaintiff’s RFC and plaintiff was found to be capable of performing
17
18

work based on that RFC, the error affected the ultimate disability determination and is
not harmless.

19

The Court may remand this case “either for additional evidence and findings or to
20

award benefits.” Smolen, supra, 80 F.3d at 1292. Generally, when the Court reverses an
21
22
23

ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the
agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587,

24 595 (9th Cir. 2004) (citations omitted). Thus, it is “the unusual case in which it is clear

ORDER ON PLAINTIFF’S COMPLAINT - 9

1 from the record that the claimant is unable to perform gainful employment in the national
2 economy,” and that “remand for an immediate award of benefits is appropriate.” Id.
3 Here, the outstanding issue is whether or not a vocational expert may still find an ability
4
5

to perform other jobs existing in significant numbers in the national economy despite
additional limitations. Accordingly, remand for further consideration is warranted in this

6

matter.
7

CONCLUSION
8
9
10

Based on these reasons and the relevant record, the Court ORDERS that this
matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §

11 405(g) to the Acting Commissioner for further consideration consistent with this order.
12

JUDGMENT should be for plaintiff and the case should be closed.

13

Dated this 29th day of September, 2015.

A

14
15

J. Richard Creatura
United States Magistrate Judge

16
17
18
19
20
21
22
23
24

ORDER ON PLAINTIFF’S COMPLAINT - 10