McQuestion v. Colvin

Filing 18

ORDER re 3 Complaint filed by Tonya E McQuestion. 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 - by Judge J Richard Creatura. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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TONYA E. MCQUESTION,

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Plaintiff,

CASE NO. 14-cv-06007 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
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. 5; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 6). This matter has been fully briefed (see Dkt. 13, 16, 17).

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After considering and reviewing the record, the Court concludes that the ALJ
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erred in failing to include in plaintiff’s residual functional capacity (“RFC”) finding all of
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the limitations assessed by plaintiff’s mother, Darlene McQuestion and the ALJ failed to
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 provide a germane reason supported by substantial evidence to discount her testimony.
2 Because the RFC should have included additional limitations, and because these
3 additional limitations may have affected the ultimate disability determination, the error is
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not harmless.
Therefore, this matter is reversed and remanded pursuant to sentence four of 42

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U.S.C. § 405(g) to the Acting Commissioner for further consideration.
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BACKGROUND
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Plaintiff, TONYA E. MCQUESTION, was born in 1983 and was 26 years old on
the alleged date of disability onset of July 1, 2009 (see AR. 191-93, 194-200). At the time

11 of the hearing, plaintiff was taking some college classes through a grant program (AR.
12 37-40). Plaintiff has work experience cleaning houses and eBay sales (AR. 46-47).
13 Plaintiff lost her house cleaning accounts because she “was acting really weird” (AR. 47).
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According to the ALJ, plaintiff has at least the severe impairments of “marijuana

15 abuse; alcohol abuse; opiate abuse; and bipolar disorder (20 CFR 404.1520(c) and
16 416.920(c))” (AR. 12).
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At the time of the hearing, plaintiff was living with her mother (AR. 34).
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. 56-64, 65-73, 74-83, 84-93, 96-107, 108-19).

24 Plaintiff’s requested hearing was held before Administrative Law Judge Paul G. Robeck

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 (“the ALJ”) on June 11, 2013 (see AR. 31-53). On July 8, 2013, the ALJ issued a written
2 decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social
3 Security Act (see AR. 7-25).
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or
not the ALJ properly evaluated the medical evidence; (2) Whether or not the ALJ

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properly evaluated plaintiff’s testimony; (3) Whether or not the ALJ properly evaluated
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the lay evidence; (4) Whether or not the ALJ properly assessed plaintiff’s residual
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functional capacity; and (5) Whether or not the ALJ erred by basing his step five finding
on a residual functional capacity assessment that did not include all of plaintiff’s

11 limitations (see Dkt. 13, p. 1). Because this Court reverses and remands the case based on
12 issues 3, 4, and 5, the Court need not further review other issues and expects the ALJ to
13 reevaluate the record as a whole in light of the direction provided below.
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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

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

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1999)).
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DISCUSSION
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(1)

Whether or not the ALJ properly evaluated the lay evidence.

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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Plaintiff contends that the ALJ erred by failing to include in the RFC all of the

2 functional limitations opined by plaintiff’s mother, Darlene McQuestion (see Opening
3 Brief, Dkt. 13, pp. 15-16).
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In determining whether or not “a claimant is disabled, an ALJ must consider lay
witness testimony concerning a claimant’s ability to work.” Stout v. Commissioner,

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Social Security Administration, 454 F.3d 1050, 1053 (9th Cir. 2006) (citing Dodrill v.
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Shalala, 12 F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) and (e),
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416.913(d)(4) and (e)). An ALJ may disregard opinion evidence provided by other
sources such as friends and family members only “if the ALJ ‘gives reasons germane to

11 each witness for doing so.’” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th
12 Cir. 2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)); see also Nguyen v.
13 Chater, 100 F.3d 1462, 1467 (9th Cir. 1996).
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On September 19, 2011, Ms. McQuestion completed a third-party function report

15 assessing plaintiff’s capabilities (see AR. 253-60). In her report, Ms. McQuestion stated
16 that plaintiff’s impairments limit her ability to work because she is uncomfortable around
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people and has anxiety attacks (see AR. 253). Ms. McQuestion indicated that plaintiff’s
impairments affect her ability to get along with others, stating that she is very paranoid of

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people (see AR. 258). Specifically, Ms. McQuestion stated that plaintiff has problems
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getting along with family, friends, neighbors, and others because she does not like to be
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around crowds and gets anxiety around people (see id.). Ms. McQuestion added that
plaintiff was previously able to run a business and manage clients but that her

24 impairments prevent her from doing so now (see AR. 254). Ms. McQuestion stated that

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 plaintiff now spends no time with others and has no regular social activities (see AR.
2 257).
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The ALJ noted Ms. McQuestion’s report and the limitations she identified, and
then stated,
However, she also noted the claimant works around the house, makes
crafts, and the claimant helps to care for her mother. I have considered this
evidence and give it some weight because it supports the overall record that
while the claimant has some mental limitations she is also able to engage in
a wide range of activities. This evidence does not support any limitations
on functional capacity greater than that accounted for in the residual
functional capacity finding.
(AR. 18). The ALJ assessed plaintiff with an RFC that limited plaintiff to “only

11 occasional public contact” and “no working with more than two coworkers at a time”
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The ALJ’s finding that the lay witness evidence did not support any greater

14 limitations than those accounted for in the RFC is not supported by substantial evidence.
15 Ms. McQuestion’s testimony that plaintiff has problems getting along with others
16 because of her anxiety attacks is not compatible with an RFC that requires plaintiff to be
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working with coworkers all day. Even inferring that the ALJ was actually discrediting
part of Ms. McQuestion’s testimony because it was inconsistent with other parts of her

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testimony, this reason is not supported by substantial evidence. That plaintiff could work
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around the house, make crafts, and help to care for her mother does not contradict Ms.
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McQuestion’s opinion that plaintiff cannot get along with others in a workplace setting.
See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“[D]isability claimants should

24 not be penalized for attempting to lead normal lives in the face of their limitations.”).

ORDER ON PLAINTIFF’S COMPLAINT - 5

1 Therefore, the ALJ erred by failing to include in plaintiff’s RFC all of the limitations
2 assessed by Ms. McQuestion or to give germane reasons supported by substantial
3 evidence for discrediting the testimony.
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The Ninth Circuit has “recognized that harmless error principles apply in the
Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

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(citing Stout, supra, 454 F.3d at 1054 (collecting cases)). The Ninth Circuit noted that “in
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each case we look at the record as a whole to determine [if] the error alters the outcome
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of the case.” Id. The court also noted that the Ninth Circuit has “adhered to the general
principle that an ALJ’s error is harmless where it is ‘inconsequential to the ultimate

11 nondisability determination.’” Id. (quoting Carmickle v. Comm’r of Soc. Sec. Admin., 533
12 F.3d 1155, 1162 (9th Cir. 2008)) (other citations omitted). Here, because the ALJ
13 improperly omitted limitations opined by Ms. McQuestion in forming the RFC without
14 providing a germane reason for doing so, and plaintiff was found to be capable of
15 performing work based on that RFC, the error affected the ultimate disability
16 determination and is not harmless.
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The Court may remand this case “either for additional evidence and findings or to
award benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when

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the Court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is
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to remand to the agency for additional investigation or explanation.” Benecke v.
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Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). Thus, it is “the unusual
case in which it is clear from the record that the claimant is unable to perform gainful

24 employment in the national economy,” and that “remand for an immediate award of

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 benefits is appropriate.” Id. Here, the outstanding issue is whether or not a vocational
2 expert may still find an ability to perform other jobs existing in significant numbers in the
3 national economy despite additional limitations. Accordingly, remand for further
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consideration is warranted in this matter.

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CONCLUSION

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Based on these reasons and the relevant record, the Court ORDERS that this
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matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
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405(g) to the Acting Commissioner for further consideration consistent with this order.
JUDGMENT should be for plaintiff and the case should be closed.
Dated this 9th day of September, 2015.

A

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J. Richard Creatura
United States Magistrate Judge

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