Baxter v. Commissioner of Social Security

Filing 27

ORDER RE: SOCIAL SECURITY DISABILITY APPEAL by Hon. Mary Alice Theiler. (TF)

Case 2:20-cv-00760-MAT Document 27 Filed 02/17/21 Page 1 of 6

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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SHELLEY B.,
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Plaintiff,
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ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL

v.
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CASE NO. C20-0760-MAT

ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.

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Plaintiff proceeds through counsel in her appeal of a final decision of the Commissioner of

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the Social Security Administration (Commissioner). The Commissioner denied Plaintiff’s

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application for a period of disability, disability insurance benefits (DIB), and supplemental security

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income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the

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ALJ’s decision, the administrative record (AR), and all memoranda of record, this matter is

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REVERSED and REMANDED for further administrative proceedings.

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FACTS AND PROCEDURAL HISTORY

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Plaintiff was born on XXXX, 1962, 1 has a GED, and previously worked as a home health

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aide, dog groomer, and nursery school attendant. (AR 59; AR 377; AR 383) Plaintiff applied for a

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period of disability, DIB, and SSI in July 2016. (AR 46.) That application was denied initially and

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Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1).

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upon reconsideration, and Plaintiff timely requested a hearing. (Id.) On November 7, 2018 and

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August 1, 2019, ALJ Timothy Mangrum held hearings, taking testimony from Plaintiff, a

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vocational expert, and a medical expert. (AR 68-127.) On September 5, 2019, the ALJ issued a

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decision finding Plaintiff not disabled. (AR 43-67.) Plaintiff timely appealed. The Appeals Council

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denied Plaintiff’s request for review (AR 1-7), making the ALJ’s decision the final decision of the

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Commissioner. Plaintiff now seeks judicial review.

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JURISDICTION
The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION

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The Commissioner follows a five-step sequential evaluation process for determining

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whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must

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be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had not

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engaged in substantial gainful activity since June 21, 2015, the alleged onset date. (AR 49.) At

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step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ

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found severe Plaintiff’s cervical degenerative disc disease; fibromyalgia; and psychogenic

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movement disorder/conversion disorder. (Id.) Step three asks whether a claimant’s impairments

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meet or equal a listed impairment. The ALJ found that Plaintiff’s impairments did not meet or

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equal the criteria of a listed impairment. (AR 52.)

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If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess

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residual functional capacity (RFC) and determine at step four whether the claimant has

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demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of

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performing light work, subject to explicit limitations. (AR 52.) With that assessment, and with the

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assistance of the VE, the ALJ found Plaintiff able to perform past relevant work as a nursery school

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attendant. (AR 59.) The ALJ concluded Plaintiff was not disabled at any time between June 21,

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2015 through September 5, 2019. (Id.)

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This Court’s review of the ALJ’s decision is limited to whether the decision is in

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accordance with the law and the findings supported by substantial evidence in the record as a

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whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more

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than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750

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(9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s

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decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

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2002).

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Plaintiff argues the ALJ erred in (1) finding Plaintiff has past relevant work as a nursery

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school attendant and (2) fashioning the RFC. The Commissioner argues that the ALJ’s decision is

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supported by substantial evidence and should be affirmed.

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Past Relevant Work

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Plaintiff raises two challenges against the ALJ’s finding regarding past relevant work. First,

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she argues there is insufficient evidence to establish she performed past relevant work within

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fifteen years of the ALJ’s decision. The ALJ found that Plaintiff “performed the work [of a nursery

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school attendant] within the past 15 years and earned wages indicative of substantial gainful

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activity. She performed the work as self-employment and last performed it in 2004.” (AR 59

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(internal citations omitted).) Plaintiff argues there is no evidence she performed this work after

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September 6, 2004, contending that while she reported the work ended in 2004, she never provided

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the month the work ended. In response, the Commissioner points to Social Security Ruling 82-62,

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which states the “15-year period is generally the 15 years prior to the time of adjudication at the

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initial, reconsideration or higher appellate level.” 1982 WL 31386 at *2. The Commissioner argues

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that because Plaintiff last performed her past relevant work in 2004, and the ALJ’s decision was

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issued in September 2019, her past relevant work falls within the 15-year period.

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Because the ALJ did not make a specific finding as to when Plaintiff last worked as a

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nursery school attendant in 2004, the ALJ’s finding that Plaintiff “performed the work within the

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last 15 years” is not supported by substantial evidence. The ALJ accordingly harmfully erred. See

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Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (“[A]lthough we will not fault the

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agency merely for explaining its decision with less than ideal clarity, we still demand that the

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agency set forth the reasoning behind its decisions in a way that allows for meaningful review. A

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clear statement of the agency’s reasoning is necessary because we can affirm the agency’s decision

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to deny benefits only on the grounds invoked by the agency.”) (citations omitted). Because the

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Court cannot make findings on this issue in the first instance on appeal, it must remand this case.

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Second, Plaintiff argues the ALJ erred in classifying her past relevant work as “nursery

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school attendant,” a light job, as opposed to “child monitor,” a medium job the RFC would

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preclude her from performing. Based on the VE’s testimony, the ALJ found that Plaintiff’s past

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work “includes nursery school attendant.” (AR 59.) However, the VE initially classified Plaintiff’s

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past work as a “child monitor.” (Id. at 96.) Following a colloquy between the ALJ and Plaintiff,

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the ALJ asked the VE if “Nursery School Attendant” would “fit in this situation or not?” (Id. at

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98.) The VE answered in the affirmative. (Id.) Plaintiff argues there was thus “conflicting

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testimony” as to whether her past work is “best described” as either a child monitor or nursery

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school attendant. Dkt. 22 at 7. Plaintiff contends the ALJ should have “explain[ed] in his decision

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why he chose the Nursery School Attendant job rather than the Child Monitor job” instead of

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“simply conclud[ing] that Nursery School Attendant was the appropriate job.” Id.

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The Court agrees with Plaintiff. The ALJ did not sufficiently explain his rationale in

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determining that Plaintiff’s past work was as a nursery school attendant rather than a child monitor.

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See Brown-Hunter v. Colvin, 806 F.3d at 492; Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d

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1090, 1103 (9th Cir. 2014) (“Although the ALJ’s analysis need not be extensive, the ALJ must

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provide some reasoning in order for us to meaningfully determine whether the ALJ’s conclusions

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were supported by substantial evidence.”). Without the ALJ explaining his rationale – and

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especially in light of the conflicting VE testimony – the Court cannot determine if substantial

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evidence supports the ALJ’s finding.

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RFC

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Plaintiff has also assigned error to the ALJ’s consideration of the RFC. The Court is

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concerned with the basis on which the ALJ relied in fashioning the RFC – specifically, the ALJ’s

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reliance on the lack of objective physical evidence in discounting the functional limitations flowing

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from Plaintiff’s psychogenic disorder. On remand, the ALJ should reconsider the RFC, explain the

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medical relevance of the evidence relied upon in fashioning the RFC, and provide legally sufficient

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reasons for assessing the evidence. See Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988)

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(“The ALJ must do more than offer his conclusions. He must set forth his own interpretations and

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explain why they, rather than the doctors’, are correct”); see also Celaya v. Halter, 332 F.3d 1177,

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1182 (9th Cir. 2003) (an ALJ must consider all limitations and restrictions when assessing the

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RFC).

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CONCLUSION

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For the foregoing reasons, this matter is REVERSED and this case is REMANDED for

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further administrative proceedings.

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DATED this 16th day of February, 2021.

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A

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Mary Alice Theiler
United States Magistrate Judge

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