Vanbuskirk v. Colvin

Filing 23

ORDER re 3 Complaint filed by Raylene Vanbuskirk 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
AT TACOMA

8
9

10 RAYLENE VANBUSKIRK,
11
12

Plaintiff,

CASE NO. 14-cv-06021 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. 5; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 8). This matter has been fully briefed (see Dkts. 13, 20, 21 (22))).

21

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

erred in failing to credit fully opinions from plaintiff’s treating doctor regarding lifting
23

limitations. The ALJ’s finding that the opinion is inconsistent with the objective medical
24

ORDER ON PLAINTIFF’S COMPLAINT - 1

1 evidence is not based on substantial evidence in the record as a whole and does not
2 account for the doctor’s observations of paravertebral muscle spam and trigger points.
3
4

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

5

BACKGROUND

6

Plaintiff, RAYLENE VANBUSKIRK, was born in 1982 and was 24 years old on
7

the alleged date of disability onset of September 1, 2007 (see AR. 253-55). Plaintiff
8
9
10

attended school in special education classes into the 8th grade (AR. 89). She obtained her
GED and took some general studies classes at college (AR. 84-86). Plaintiff has some

11 work experience in sandwich shops, as a motel maid, as a dietary aide in a retirement
12 home, as a car detailer and as a stage hand at concerts (AR. 291-303). She stopped
13 working at the sandwich shop because she wanted to attend college (AR. 84).
14

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

15 “fibromyalgia/myalgia, adjustment disorder with depressed mood or major depressive
16 disorder (recurrent, moderate), learning disorder, antisocial personality disorder features,
17
18

and history of polysubstance abuse (10 CFR 416.920(c))” (AR. 20).
At the time of the hearing, plaintiff was living in an apartment with her two

19

children (AR. 85).
20

PROCEDURAL HISTORY
21
22
23

Plaintiff’s application for Supplemental Security Income (“SSI”) benefits pursuant
to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and

24 following reconsideration (see AR. 144, 145). Plaintiff’s requested hearing was held

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 before Administrative Law Judge James W. Sherry on April 21, 2011 (see AR. 110-43).
2 On June 15, 2011, ALJ Sherry issued a written decision in which he concluded that
3 plaintiff was not disabled pursuant to the Social Security Act (see AR. 146-61).
4
5

Following a request for reconsideration, on September 18, 2012, the Appeals Council
remanded this matter (AR. 162-65). When doing so, the Appeals Council vacated the

6

hearing decision by ALJ Sherry (AR. 163). Plaintiff’s second hearing was held before
7

Administrative Law Judge Verrel Dethloff (“the ALJ”) on March 21, 2013 (AR. 80-109).
8
9
10

The ALJ issued his written decision concluding the plaintiff was not disabled pursuant to
the Social Security Act (AR. 15-29). Although the ALJ was instructed by the Appeals

11 Council to issue a new decision, in this second written decision, the ALJ only addressed
12 medical evidence of record after the first written decision, and did not specifically
13 incorporate the vacated first written decision (AR. 18). As a result, some of the medical
14 evidence only is addressed in the vacated written decision.
15

In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Did the ALJ

16 commit reversible error by improperly rejecting medical opinion evidence of plaintiff’s
17
18

limitations; (2) Did the ALJ commit reversible error by improperly finding plaintiff to be
not credible; (3) Did the ALJ commit reversible error by improperly rejecting the medical

19

opinion evidence of plaintiff’s physical limitations; and (4) Should the Court order an
20

award of benefits to plaintiff (see Dkt. 13, p. 1). Because the Court concludes that issue
21
22
23

number 3 is dispositive, the remaining issues will not be discussed or will be discussed
only briefly.

24

ORDER ON PLAINTIFF’S COMPLAINT - 3

1

STANDARD OF REVIEW

2

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

3 denial of social security benefits if the ALJ's findings are based on legal error or not
4
5

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.

6

1999)).
7

DISCUSSION
8
9

(1)

Did the ALJ commit reversible error by improperly rejecting medical
opinion evidence of plaintiff’s physical limitations?

10
11

As an initial matter, the Court notes that the ALJ appears to have assumed that

12 evidence from witnesses need not be considered when determining plaintiff’s residual
13 functional capacity (“RFC”). The ALJ indicated that the Appeals Council (“AC”)
14 directed him to ensure that all witness testimony is evaluated as it was not clear that this
15 evidence was weighed in the first written decision (AR. 18 (citing 162-64)). However,
16 despite the AC’s instruction to evaluate this evidence, the ALJ indicates that the AC “had
17
18

no apparent issues with the analysis of [RFC]” (see id.). As a determination of the RFC
necessarily involves evaluation and inclusion of all of a claimant’s functional limitations,

19

including limitations opined by lay witnesses, the ALJ’s assumption that there was no
20

issue with the RFC even though the AC instructed him to evaluate the witness testimony
21
22
23

appears inconsistent with the AC’s instructions.
In addition, as noted in the procedural history, the ALJ did not incorporate the

24 vacated prior written decision into his written decision and indicated that he only was

ORDER ON PLAINTIFF’S COMPLAINT - 4

1 going to address “any new medical evidence since the prior decision and the issues
2 presented by the AC” (AR. 18). As a result, there is no discussion of relevant medical
3 evidence, such as the opinion evidence from Dr. Marie Ho, M.D. It is difficult to
4
5

ascertain how the ALJ could have properly formulated his RFC without considering all of
the relevant medical opinion evidence.

6

When an opinion from an examining or treating doctor is contradicted by other
7

medical opinions, the treating or examining doctor’s opinion can be rejected only “for
8
9
10

specific and legitimate reasons that are supported by substantial evidence in the record.”
Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d

11 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
12

Dr. Ho examined plaintiff on March 28, 2009, and opined, among other things,

13 that plaintiff was limited to lifting 20 pounds occasionally and 10 pounds frequently (see
14 AR. 379-83). Although Dr. Ho observed that plaintiff demonstrated 5/5 muscle strength
15 and did not have joint deformities, crepitus, or effusions (see AR. 382), she also indicated
16 that plaintiff had “the standard 18 tender points of fibromyalgia and associated disorders”
17
18

(AR. 383). Dr. Ho noted plaintiff’s complaints of pain throughout the examination and
opined that there were “no significant inconsistencies,” and that plaintiff generally

19

exerted “good effort” (see AR. 380-82). The ALJ did not provide any analysis of the
20

opinion evidence from Dr. Ho and there is no indication that he was aware of it.
21
22
23

Even if the Court considers the rationale in the vacated written decision by ALJ
Sherry, it does not properly support a rejection of Dr. Ho’s opinion. ALJ Sherry failed to

24 credit fully Dr. Ho’s opinion with a finding that it was inconsistent with the objective

ORDER ON PLAINTIFF’S COMPLAINT - 5

1 evidence, which indicated that plaintiff had normal strength and sensation in the
2 extremities and no evidence of joint deformities, crepitus or effusions (AR. 156).
3 Although Dr. Ho noted these objective findings, she also observed that plaintiff had “the
4
5

standard 18 tender points of fibromyalgia and associated disorders” (AR. 383), and
additionally, Dr. Wendy A. Owens, M.D. observed paravertebral muscle spam and

6

trigger points bilaterally in plaintiff’s biceps and quads (AR. 645-46). Therefore,
7

objective evidence supports Dr. Ho’s opinion of lifting limitations and the contrary
8
9
10

finding by ALJ Sherry is not based on substantial evidence in the record as a whole.
Also, the Court notes that the ALJ, although noting plaintiff’s fibromyalgia,

11 discredits in part plaintiff’s complaints of back pain by finding that “there is no objective
12 medical evidence to support a severe back impairment” (AR. 21). However, there is
13 objective medical evidence of plaintiff’s fibromyalgia (see, e.g., AR. 383, 645-46), which
14 can result in back pain (see, e.g., U.S. National Library of Medicine, National Institutes
15 of Health website at http://www.nlm.nih.gov/medlineplus/ency/article/000427.htm (“the
16 following conditions may be seen with fibromyalgia or have similar symptoms: Chronic
17
18

neck or back pain”) (last visited July 10, 2015); AR. 71). This finding by the ALJ, as well
as other aspects of his written opinion, is inconsistent with the analysis of fibromyalgia,

19

as discussed by the Ninth Circuit in an analogous circumstance (see AR. 21). In Benecke,
20

the Ninth Circuit concluded that the ALJ had erred in discounting medical opinions based
21
22
23

in part on a fibromyalgia diagnosis, and found that the ALJ instead had been “relying on
his disbelief of [the claimant’s] symptom testimony as well as his misunderstanding of

24 fibromyalgia.” Benecke v. Barnhart, 379 F.3d 587, 594 (9th Cir. 2004) (footnote

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 omitted); see also Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003). As noted
2 by the Ninth Circuit, “[s]heer disbelief is no substitute for substantial evidence.” Id.
3 Therefore, based on this Ninth Circuit rationale, and on the record as a whole, the Court
4
5

concludes that the ALJ’s finding that there was no objective evidence of an impairment
that could support plaintiff’s alleged back pain is not based on substantial evidence in the

6

record as a whole.
7

Furthermore, the ALJ erred in his review of the medical opinions of treating
8
9
10

physician, Dr. Wendy A. Owens, M.D., who, like Dr. Ho, opined that plaintiff suffered
from lifting limitations (see AR. 600). The ALJ found that Dr Owens’ opinion “is

11 inconsistent with the medical evidence of record,” indicating that Dr. Owens “cites no
12 basis including objective or exam physical findings to support any physical or mental
13 limitations,” and that plaintiff’s exam findings are mild (AR. 28).
14

In a case in which the Ninth Circuit found that an ALJ had failed to provide

15 specific and legitimate reasons supported by substantial evidence in the record for the
16 failure to credit fully the opinion of a treating physician, the written decision by that ALJ
17
18
19
20
21
22

had included the following discussion:
The opinions of total disability tended [sic] in the record are unsupported
by sufficient objective findings and contrary to the preponderant
conclusions mandated by those objective findings. The duration of the
claimant’s stress treadmill testings and relative lack of positive findings,
the results of other laboratory and x-ray testing, the objective
observations of the physicians of record, all preponderate toward a
finding that the claimant has never lost the residual functional capacity
for light work for any period approaching 12 months.

23
24

ORDER ON PLAINTIFF’S COMPLAINT - 7

1 Embrey v. Bowen, 849 F.2d 418, 421 (9th 1988). The Ninth Circuit Court found that
2 these statements by the Embrey ALJ were not sufficient to discount the doctors’ opinions,
3 even though the ALJ in Embrey had reviewed the medical evidence. Id. (citations
4
5
6
7
8
9
10
11
12

omitted). The court explained:
To say that medical opinions are not supported by sufficient objective
findings or are contrary to the preponderant conclusions mandated by the
objective findings does not achieve the level of specificity our prior
cases have required, even when the objective factors are listed seriatim.
The ALJ must do more than offer his conclusions. He must set forth his
own interpretations and explain why they, rather than the doctors’, are
correct. Moreover[,] the ALJ’s analysis does not give proper weight to
the subjective elements of the doctors’ diagnoses. The subjective
judgments of treating physicians are important, and properly play a part
in their medical evaluations.
Id. at 421-22 (internal footnote omitted).
The Court concludes that the ALJ’s reasoning to reject the opinions of treating

13

physician Dr. Owen is similarly not sufficient. See id. Furthermore, as noted already by
14

the Court, objective evidence does exist in the record to support the lifting limitation
15
16
17
18

opined by Dr. Owens. Therefore, the Court concludes that the ALJ’s finding is not based
on substantial evidence in the record as a whole.
The Court also concludes that the ALJ’s errors in rejecting these medical opinions

19 are not harmless errors.
20

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

21 Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
22 (citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th
23

Cir. 2006) (collecting cases)). Recently the Ninth Circuit reaffirmed the explanation in

24

ORDER ON PLAINTIFF’S COMPLAINT - 8

1 Stout that “ALJ errors in social security are harmless if they are ‘inconsequential to the
2 ultimate nondisability determination’ and that ‘a reviewing court cannot consider [an]
3 error harmless unless it can confidently conclude that no reasonable ALJ, when fully
4
5

crediting the testimony, could have reached a different disability determination.” Marsh
v. Colvin, 2015 U.S. App LEXIS 11920 at *7, Dock. No. 12-17014, slip op. at p. 7 (9th

6

Cir. July 10, 2015) (citing Stout, 454 F.3d at 1055-56).
7

Here, had the ALJ credited the lifting limitation opined by Drs. Ho and Owens, the
8
9
10

RFC would have been different. As the nondisability finding by the ALJ was based on
the RFC that did not include these limitations, the error is not “‘inconsequential to the

11 ultimate nondisability determination.’” Id.; see also Carmickle v. Comm’r Soc. Sec.
12 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008).
13

(2)

Did the ALJ commit reversible error by improperly finding plaintiff to
be not credible?

14

The Court already has concluded that the ALJ erred in reviewing the medical
15

evidence and that this matter should be reversed and remanded for further consideration,
16
17
18

see supra, section 1. In addition, a determination of a claimant’s credibility relies in part
on the assessment of the medical evidence. See 20 C.F.R. § 404.1529(c). Therefore,

19 plaintiff’s credibility should be assessed anew following remand of this matter.
20

However, the Court notes that when failing to credit fully plaintiff’s allegations,

21 the ALJ relied in part on a finding that plaintiff missed a significant number of individual
22 therapy appointments without first considering any symptoms of plaintiff’s mental
23 illnesses that may explain infrequent or irregular medical visits, such as fear of leaving
24

ORDER ON PLAINTIFF’S COMPLAINT - 9

1 the house, or lack of motivation (see Dkt. 13, p. 14).This was error, as according to Social
2 Security Ruling, (“SSR”) 96-7, “the adjudicator must not draw any inferences about an
3 individual’s symptoms and their functional effects from a failure to seek or pursue
4
5

regular medical treatment without first considering any explanations that the individual
may provide, or other information in the case record, that may explain infrequent or

6

irregular medical visits or failure to seek medical treatment.” SSR 96-7, 1996 SSR
7

LEXIS 4, at *22; see also Regennitter v. Comm’r SSA, 166 F.3d 1294, 1296 (9th Cir.
8
9
10

1999) (citations, ellipses and brackets omitted).
In addition, the ALJ found that plaintiff’s mental health symptoms primarily were

11 related to situational stress, without a recognition of the testimony from plaintiff’s mother
12 that plaintiff has “had problems with depression ever since she was really young” (see
13 AR. 26, 100). As the ALJ also failed to account for the fact that plaintiff “has been on
14 anti-depressants since age 12” (AR. 366), the finding that plaintiff’s psychological
15 symptoms arise mainly due to situational stressors as an adult does not appear to be based
16 on substantial evidence in the record as a whole. This error, too, should be corrected
17
18
19

following remand of this matter.
(3)

Should the Court order an award of benefits to plaintiff?

Generally, when the Social Security Administration does not determine a

20

claimant’s application properly, “‘the proper course, except in rare circumstances, is to
21

remand to the agency for additional investigation or explanation.’” Benecke v. Barnhart,
22

379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit has put
23
24

forth a “test for determining when [improperly rejected] evidence should be credited and

ORDER ON PLAINTIFF’S COMPLAINT - 10

1 an immediate award of benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th
2 Cir. 2000) (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). Here, the
3 Court concludes that further administrative proceedings would be useful, as the record as
4
5

a whole is not free from conflicts and it is not clear if the ALJ fully considered all of the
medical evidence when formulating his RFC. See Treichler v. Comm’r of Soc. Sec.

6

Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014) (citations omitted).
7

CONCLUSION
8
9
10

Based on the stated 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 17th day of July, 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 - 11