Stewart v. Colvin

Filing 19

ORDER re 3 Complaint filed by Letitia De Vawn Stewart - 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)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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LETITIA DE VAWN STEWART,

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Plaintiff,

CASE NO. 3:16-cv-05080 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. 12, 17, 18).

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After reviewing the record, the Court concludes the ALJ erred in determining
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whether plaintiff’s disability has ended. Specifically, the ALJ erred at step two of the
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cessation analysis by failing to consider whether medical improvement of plaintiff’s
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 severe impairments that were present at the time of the favorable disability determination
2 has occurred. Without a finding of medical improvement related to all of plaintiff’s
3 severe impairments present at the time of the favorable disability determination, the
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Court cannot determine whether the ALJ properly formulated plaintiff’s residual
functional capacity and therefore the error at step two was harmful. Accordingly, this

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matter should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) to the
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Acting Commissioner for further proceedings consistent with this Order.
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BACKGROUND
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Plaintiff, LETITIA DE VAWN STEWART, was born in 1985 and was 22 years
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old on the alleged date of disability onset of October 22, 2007 (see AR. 85, 90). Plaintiff
believes she finished the ninth grade (AR. 53). Plaintiff has no relevant work history

13 (AR. 22, 215, 291-92).
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On June 8, 2010, an ALJ (hereinafter “the first ALJ”) determined that plaintiff met

15 listing 12.04 and 12.08 of 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§
16 416.920(d) and 416.925) based upon severe impairments of bipolar disorder, borderline
17 personality disorder, anxiety disorder, attention deficit hyperactivity disorder, cognitive
18 disorder, NOS, and polysubstance abuse in remission (AR. 81-89). After the
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Administration initiated a disability review to determine if benefits should continue,
another ALJ (hereinafter “the second ALJ”) determined that “ . . . as of November 1,

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2011, the claimant had the following medically determinable impairments: History of
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cerebrovascular accident; bipolar affective disorder; anxiety disorder; posttraumatic stress
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ORDER ON PLAINTIFF’S COMPLAINT - 2

1 disorder; personality disorder; substance abuse disorder. These are the claimant’s current
2 impairments.” (AR. 14.)
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At the time of the hearing, plaintiff was living in an apartment with her husband
and 10 month old daughter, with her son visiting on weekends (AR. 41).

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PROCEDURAL HISTORY

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The Court adopts plaintiff’s uncontested Procedural History (see Dkt. 12, p. 2).
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This is a cessation case. Letitia De vawn Stewart (hereinafter
Stewart) was found disabled in a decision issued on June 23, 2010 by ALJ
Strong after a hearing on June 8, 2010. (AR 81-89). The ALJ determined
that Stewart met listing 12.04 and 12.08 of 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. §§ 416.920(d) and 416.925). (AR 87). This was
based upon severe conditions consisting of bipolar, borderline personality
disorder, anxiety disorder, attention deficit hyperactivity disorder, cognitive
disorder, NOS, and polysubstance abuse in remission. Id. The onset of
disability was determined to be October 22, 2007, thus of longstanding
duration. (AR 89).
Eighteen months after the finding of disability, a disability review
process was initiated, triggered by an anonymous tip and disability benefits
were ceased. (AR 90-91, 115-27, 148-55). An administrative hearing was
held at the Agency level after disability benefits had been ceased and the
hearing examiner upheld the decision to end disability benefits. (AR 11527).
Dkt. 12, p. 2
Plaintiff’s requested hearing was held before the second ALJ on December 3,
2013 (see AR. 31-80). On April 29, 2014, the second ALJ issued a written decision in
which he concluded that plaintiff was not disabled pursuant to the Social Security Act

21 (see AR. 9-30).
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Did the ALJ

23 err by failing to show medical improvement in the conditions the prior ALJ found to be
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ORDER ON PLAINTIFF’S COMPLAINT - 3

1 disabling and which met a listing; (2) Did the ALJ err by giving the assessment by
2 Christina Rasmussen, Ph.D., great weight because she was given very little information
3 about Stewart’s condition upon which she was found disabled by ALJ Strong, making it
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impossible to determine medical improvement; (3) Is the credibility assessment by the
ALJ not supported by substantial medical evidence and not clear and convincing; (4) Did

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the ALJ err by outright rejecting of GAF scores even though accepted by the courts; and
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(5) Did the ALJ err by rejecting the lay witness evidence for improper reasons (see Dkt.
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12, p. 1).
STANDARD OF REVIEW

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

12 denial of social security benefits if the ALJ’s findings are based on legal error or not
13 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
14 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.
15 1999)).
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DISCUSSION

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(1) Whether the ALJ erred by failing to show medical improvement in the
conditions the prior ALJ found to be disabling and which met a listing?

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Plaintiff argues the ALJ erred in evaluating the severe impairments that were

20 “‘present at the time’ of the last finding of disability” (Dkt. 12, p. 3). Specifically,
21 plaintiff avers the ALJ erred by only evaluating plaintiff for personality disorder (rather
22 than borderline personality disorder) and history of cerebrovascular accident (rather than
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cognitive disorder, not otherwise specified) (Dkt. 12, pp. 4-5).

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ORDER ON PLAINTIFF’S COMPLAINT - 4

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Once a claimant is found disabled, a presumption of continuing disability arises.

2 See Bellamy v. Secretary of Health and Human Services, 755 F.2d 1380, 1381 (9th Cir.
3 1985). Although the claimant retains the burden of proof, this presumption shifts the
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burden of production to the Commissioner to produce evidence to meet or rebut this
presumption. Id. Disability benefits cannot be terminated unless the Commissioner

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presents substantial evidence demonstrating medical improvement in the claimant’s
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impairment so that the claimant is able to engage in substantial gainful activity. See 42
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U.S.C. § 423(f); Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983).
The Commissioner follows specific steps in reviewing whether a recipient’s

11 disability continues. To determine whether disability continues for a recipient of SSI, the
12 Commissioner evaluates the following steps:
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(1) At step one, does the recipient “have an impairment or combination of
impairments which meets or equals the severity of an impairment listed
in” 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the recipient’s
disability will be found to continue.

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(2) At step two, has there been “medical improvement as shown by a
decrease in medical severity”? If not, the review proceeds to step four.
If so, the review proceeds on to step three.
(3) At step three, is the medical improvement related to an increase in the
recipient’s “residual functional capacity based on the impairment(s) that
was present at the time of the most recent favorable medical
determination”? If not, the review proceeds on to step four. If so, the
review proceeds on to step five.
(4) At step four, if there has been no medical improvement or if such
improvement is not related to an increase in the recipient’s residual
functional capacity, do any of the exceptions apply? If no such
exception applies, the recipient’s disability will be found to continue.

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(5) At step five, if medical improvement is related to the recipient’s residual
functional capacity or if one of the exceptions in 20 C.F.R. §
404.1594(d) applies, are all of the recipient’s “current impairments in
combination” severe? If the residual functional capacity assessment
conducted at step three “shows significant limitation” in the recipient’s
“ability to do basic work activities,” the review proceeds on to step
seven. If there is no significant limitation, the recipient’s impairments
“will not be considered to be severe in nature,” and the recipient “will
no longer be considered to be disabled.”
(6) At step six, if the recipient’s impairment is severe, is the recipient able
to engage in substantial gainful activity, and—based on the recipient’s
residual functional capacity—is the recipient able to perform the work
he or she did in the past? If so, disability will be found to have ceased.
(7) At step seven, if the recipient is unable to do the work he or she did in
the past, is the recipient able to do other work in light of his or her
residual functional capacity, age, education, and past work experience?
If so, disability will be found to have ceased. If not, disability will be
found to continue. The Commissioner will continue to step seven even
if the evidence in the recipient’s file is not sufficient to make a finding
about whether the claimant can perform past relevant work.

13 20 C.F.R. § 416.994(b)(5)(i)-(viii).
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When, as here, a recipient of disability benefits challenges the cessation of
benefits, the central issue is whether the recipient’s medical impairments have improved

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to the point where she is able to perform substantial gainful activity. Whether an
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individual’s entitlement to benefits continues depends on a two-part evaluation process:
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(1) whether “there has been any medical improvement in [the individual’s]
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impairment(s)” and, if so, (2) “whether this medical improvement is related to [the
individual’s] ability to work.” 20 C.F.R. § 416.994(b).
Under the first prong, the implementing regulations define “medical

23 improvement” as “any decrease in the medical severity of [the individual’s]
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1 impairment(s) which was present at the time of the most recent favorable medical
2 decision that [the individual was] disabled or continued to be disabled.” 20 C.F.R. §
3 416.994(b)(1)(i). “A determination that there has been a decrease in medical severity
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must be based on changes (improvement) in the symptoms, signs and/or laboratory
findings associated with [the individual’s] impairment(s).” 20 C.F.R. § 416.994(b)(1)(i).

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Furthermore, “if there has been a decrease in the severity … of the impairment(s) present
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at the time of the most recent favorable medical decision,” the medical improvement is
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related to the individual’s ability to work only if there has been a corresponding “increase
in [the claimant’s] functional capacity to do basic work activities.” 20 C.F.R.

11 § 416.994(b)(1)(ii).
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(a) Evaluation of Plaintiff’s Impairments from the Most Recent Favorable
Medical Decision Finding Plaintiff Disabled
Here, the first ALJ determined that plaintiff was disabled with the severe

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impairments of bipolar disorder, borderline personality disorder, anxiety disorder,
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attention deficit hyperactivity disorder, cognitive disorder, not otherwise specified, and
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polysubstance abuse in remission (AR. 85-89). The first ALJ also determined plaintiff
met a listing under 12.04 (affective disorders) and 12.08 (personality disorders) (see AR.

19 87-88). In his cessation analysis to determine whether plaintiff’s disability ended, the
20 second ALJ found that plaintiff has the severe impairments of history of cerebrovascular
21 accident, bipolar affective disorder, anxiety disorder, posttraumatic stress disorder,
22 personality disorder, and substance abuse disorder (AR. 14). The second ALJ then
23 determined that plaintiff’s “current impairments have not met or medically equaled a
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ORDER ON PLAINTIFF’S COMPLAINT - 7

1 listing since November 1, 2011” (AR. 15). In addition, the second ALJ determined that
2 “as of November 1, 2011, there has been a decrease in medical severity of the
3 impairments” present at the time of the most recent favorable medical decision, also
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referred to as the comparison point decision (“CPD”). Plaintiff argues that the ALJ
improperly considered plaintiff’s current impairments, rather than the impairments

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present at the time of the favorable disability decision, to determine whether medical
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improvement has occurred. The undersigned agrees.
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Although the second ALJ stated that “the medical evidence supports a finding that
… there has been a decrease in medical severity of the impairments present at the time of

11 the CPD” (see AR. 16), the ALJ did not specifically consider all of the impairments
12 present at the time of the most recent favorable disability determination. As noted by
13 plaintiff, the ALJ did not discuss borderline personality disorder, attention deficit
14 hyperactivity disorder, or cognitive disorder, not otherwise specified—diagnoses present
15 in the favorable decision (see AR. 87)—when assessing plaintiff’s current severe
16 impairments, nor did he discuss those impairments when he determined that medical
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improvement has occurred (see AR. 14-24). As noted above, medical improvement is
“any decrease in the medical severity of [the individual’s] impairment(s) which was

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present at the time of the most recent favorable medical decision.” 20 C.F.R. §
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416.994(b)(1)(i) (emphasis added); see also Kennedy v. Astrue, 247 F. App’x 761, 765
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(6th Cir. 2007) (citing 20 C.F.R. § 404.1594(b)(1), the substantially similar statute for
evaluation under disability insurance benefits). The Court finds the ALJ erred by failing

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1 to consider all of plaintiff’s severe impairments in determining whether medical
2 improvement has occurred.
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Defendant argues that the ALJ specifically considered all of the severe
impairments present at the CPD (see Dkt. 17, pp. 3-4). However, without discussion of
those severe impairments, the Court cannot determine whether the ALJ actually

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considered all of the severe impairments. As an initial matter, the ALJ did not discuss
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plaintiff’s attention deficit hyperactivity disorder in making his finding regarding her
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current severe impairments (see AR. 15-17). In addition, as noted by plaintiff, personality
disorder and borderline personality disorder are not the same diagnoses. See Diagnostic

11 and Statistical Manual of Mental Disorders (Text Revision 4th ed. 2000) (“DSM–IV–
12 TR”) at 685 (noting that there are “10 specific Personality Disorders” including
13 “Borderline Personality Disorder”). Similarly, cognitive disorder, not otherwise specified
14 is a different diagnosis than a history of cerebrovascular accident. Compare DSM-IV-TR
15 at 179-80 (describing Cognitive Disorder Not Otherwise Specified) with Stedmans
16 Medical Dictionary 4460 (describing cerebrovascular accident as “an imprecise term for
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cerebral stroke”). Thus, the second ALJ did not evaluate the same impairments the first
ALJ found severe.

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Defendant also argues that “the ALJ clearly established medical improvement
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because the medical evidence he reviewed provided substantial evidence to support a
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finding that Plaintiff did not have an impairment or combination of impairments that met
or medically equaled the severity of a Listing.” However, according to the Ninth Circuit,

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1 based on the reasoning and actual findings offered by the ALJ - - not post hoc
2 rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray
3 v. Comm’r of SSA, 554 F.3d 1219, 1225-26 (9th Cir. 2009) (citing SEC v. Chenery Corp.,
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332 U.S. 194, 196 (1947) (other citation omitted)); see also Molina v. Astrue, 674 F.3d
1104, 1121 (9th Cir. 2012) (“we may not uphold an agency’s decision on a ground not

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actually relied on by the agency”) (citing Chenery Corp, supra, 332 U.S. at 196). Nothing
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in the evidence of record before the Court suggests that the ALJ specifically considered
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the severe impairments present at the most recent favorable medical decision, and the
Court declines to entertain any post hoc rationalizations that attempt to intuit what the

11 second ALJ may have been thinking when he did not discuss all of the diagnoses when
12 finding medical improvement.
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(b) Harmless Error Standard
The Court also concludes that the second ALJ’s error in evaluating whether

15 plaintiff’s severe impairments has improved is not harmless. The Ninth Circuit has
16 “recognized that harmless error principles apply in the Social Security Act context.”
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Molina, 674 F.3d at 1115 (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054
(9th Cir. 2006) (collecting cases)). Recently the Ninth Circuit reaffirmed the explanation

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in Stout that “ALJ errors in social security are harmless if they are ‘inconsequential to the
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ultimate nondisability determination’ and that ‘a reviewing court cannot consider [an]
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error harmless unless it can confidently conclude that no reasonable ALJ, when fully
crediting the testimony, could have reached a different disability determination.’” Marsh

24 v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (citing Stout, 454 F.3d at 1055-56). In

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1 Marsh, even though “the district court gave persuasive reasons to determine
2 harmlessness,” the Ninth Circuit reversed and remanded for further administrative
3 proceedings, noting that “the decision on disability rests with the ALJ and the
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Commissioner of the Social Security Administration in the first instance, not with a
district court.” Id. (citing 20 C.F.R. § 404.1527(d)(1)-(3)).

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Here, the second ALJ erred at step two of the analysis and failed to specifically
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address whether there has been any medical improvement in all of plaintiff’s severe
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impairments present at the time of the most recent favorable medical decision. Because
the ALJ did so, the Court cannot determine whether the ALJ properly formulated the

11 residual functional capacity or the hypothetical posed to the vocational expert to find
12 plaintiff’s disability has ended (see AR. 16-25). Because plaintiff was found to be
13 capable of performing work existing in the national economy, the error affected the
14 ultimate disability determination and is not harmless.
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(2) Plaintiff’s Remaining Assignments of Error

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The ALJ’s error at step two of the cessation analysis requires remand to the

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Administration to properly consider whether medical improvement has occurred as to all
of plaintiff’s severe impairments. As the ALJ’s error at step two impacts all aspects of the

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ALJ’s decision, the ALJ is instructed to re-evaluate this entire matter on remand. Thus, it
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is unnecessary to address the other issues raised in plaintiff’s appeal.
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(3) Whether this matter should be reversed and remanded for an award of
benefits or for further administrative proceedings.

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Plaintiff contends that this matter should be reversed and remanded with a
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direction to reinstate disability benefits (see Dkt. 12, p. 14). The Court may remand this
case “either for additional evidence and findings or to award benefits.” Smolen v. Chater,

6 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when the Social Security Administration
7 does not determine a claimant’s application properly, “‘the proper course, except in rare
8 circumstances, is to remand to the agency for additional investigation or explanation.’”
9 Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the
10 Ninth Circuit has put forth a “test for determining when [improperly rejected] evidence
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should be credited and an immediate award of benefits directed.” Harman v. Apfel, 211
F.3d 1172, 1178 (9th Cir. 2000) (quoting Smolen, 80 F.3d at 1292). An award of benefits

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is appropriate when:
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(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, 211 F.3d at 1178 (quoting Smolen, 80 F.3d at 1292). Here, outstanding issues

19 must be resolved, including whether or not plaintiff has experienced medical
20 improvement of all of her severe impairments present at the time of the favorable
21 disability determination. Accordingly, remand for further consideration is warranted in
22 this matter.
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CONCLUSION

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Based on these reasons and the relevant record, the Court ORDERS that this

3 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.

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Dated this 29th day of August, 2016.
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A

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J. Richard Creatura
United States Magistrate Judge

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