Myers v. Colvin

Filing 14

ORDER Reversing and Remanding Defendant's Decision to Deny Benefits by Judge Karen L Strombom. (TW)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JERRY D. MYERS, SR.,
Case No. 3:16-cv-05590-KLS

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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

ORDER REVERSING AND
REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS

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Defendant.

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Plaintiff has brought this matter for judicial review of defendant’s denial of his

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applications for disability insurance and supplemental security income (SSI) benefits. The parties
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have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. §

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636(c), Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the reasons set forth below,

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the Court finds that defendant’s decision to deny benefits should be reversed, and that this matter

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should be remanded for further administrative proceedings.

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FACTUAL AND PROCEDURAL HISTORY
On December 17, 2012, plaintiff filed an application for disability insurance benefits, and

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on November 25, 2013, he filed another one for SSI benefits, alleging in both applications that
he became disabled beginning April 10, 2007. Dkt. 7, Administrative Record (AR), 12. Both

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applications were denied on initial administrative review and on reconsideration. Id. At a hearing

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held before an Administrative Law Judge (ALJ), plaintiff, represented by counsel, appeared and

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testified, as did a vocational expert. AR 32-68.
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In a written decision, the ALJ found that plaintiff could perform other jobs existing in

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significant numbers in the national economy, and therefore that he was not disabled. AR 12-27.

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The Appeals Council denied plaintiff’s request for review of the ALJ’s decision, making that

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decision the final decision of the Commissioner, which plaintiff then appealed to this Court. AR

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1; Dkt. 1; 20 C.F.R. § 404.981, § 416.1481.
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Plaintiff seeks reversal of the ALJ’s decision, arguing the ALJ erred (1) in failing to find

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his right hand impairment to be severe, and (2) in rejecting the opinion of Ron Nielsen, M.D.,

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and E. Andrea Shadrach, Psy.D. For the reasons set forth below, the Court agrees the ALJ erred

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in failing to find plaintiff had a severe right hand impairment and in rejecting the opinion of Dr.

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Nielsen, and thus in assessing plaintiff’s residual functional capacity (RFC )and in finding he

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could perform other jobs. Remand for further administrative proceedings, therefore, is warranted.

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DISCUSSION
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The Commissioner’s determination that a claimant is not disabled must be upheld if the

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“proper legal standards” have been applied, and the “substantial evidence in the record as a

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whole supports” that determination. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986);

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see also Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Carr v.

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Sullivan, 772 F.Supp. 522, 525 (E.D. Wash. 1991). “A decision supported by substantial
evidence nevertheless will be set aside if the proper legal standards were not applied in weighing

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the evidence and making the decision.” Carr, 772 F.Supp. at 525 (citing Brawner v. Sec’y of
Health and Human Sers., 839 F.2d 432, 433 (9th Cir. 1987)). Substantial evidence is “such

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relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

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Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation omitted); see also Batson, 359 F.3d at

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1193.
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The Commissioner’s findings will be upheld “if supported by inferences reasonably

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drawn from the record.” Batson, 359 F.3d at 1193. Substantial evidence requires the Court to

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determine whether the Commissioner’s determination is “supported by more than a scintilla of

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evidence, although less than a preponderance of the evidence is required.” Sorenson v.

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Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). “If the evidence admits of more than one
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rational interpretation,” that decision must be upheld. Allen v. Heckler, 749 F.2d 577, 579 (9th

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Cir. 1984). That is, “[w]here there is conflicting evidence sufficient to support either outcome,”

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the Court “must affirm the decision actually made.” Allen, 749 F.2d at 579 (quoting Rhinehart v.

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Finch, 438 F.2d 920, 921 (9th Cir. 1971)).

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I.

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The ALJ’s Step Two Determination
Defendant employs a five-step “sequential evaluation process” to determine whether a

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claimant is disabled. 20 C.F.R. § 404.1520, § 416.920. If the claimant is found disabled or not
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disabled at any step thereof, the disability determination is made at that step, and the sequential

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evaluation process ends. Id. At step two of the evaluation process, the ALJ must determine if an

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impairment is “severe.” 20 C.F.R. § 404.1520, § 416.920. An impairment is “not severe” if it

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does not “significantly limit” a claimant’s mental or physical abilities to do basic work activities.

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20 C.F.R. § 404.1520(a)(4)(iii), § 416.920(a)(4)(iii); Social Security Ruling (SSR) 96-3p, 1996
WL 374181, at *1. Basic work activities are those “abilities and aptitudes necessary to do most

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jobs.” 20 C.F.R. § 404.1521(b), § 416.921(b); SSR 85- 28, 1985 WL 56856, at *3.
An impairment is not severe only if the evidence establishes a slight abnormality that has

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“no more than a minimal effect on an individual[’]s ability to work.” SSR 85-28, 1985 WL

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56856, at *3; Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); Yuckert v. Bowen, 841 F.2d

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303, 306 (9th Cir.1988). Plaintiff must prove that his “impairments or their symptoms affect her
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ability to perform basic work activities.” Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir.

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2001); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). The step two inquiry described above,

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however, is a de minimis screening device used to dispose of groundless claims. Smolen, 80 F.3d

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at 1290.

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At step two in this case, the ALJ found plaintiff had severe impairments consisting of a
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major depressive disorder, an anxiety disorder, and alcohol abuse by history. AR 15. Also at this

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step, the ALJ found plaintiff “was generally able to move his extremities well and he had full-

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strength.” Id. Plaintiff argues the ALJ erred in not also finding that he had a severe right hand

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impairment as well. The Court agrees.
Plaintiff bases his argument on the evaluation of plaintiff performed by Dr. Nielsen, who
found he could “manipulate his clothing” and “touch his thumb to all fingers with the right hand,

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but the grip [was] very weak with limited coordination.” AR 465. Plaintiff had normal wrist
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range of motion, but “[l]imited flexion” of the thumb and fingers. Id. Although plaintiff had full

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hand strength, his right hand grip was “compromised by his injury.” Id. Dr. Nielsen diagnosed

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plaintiff with “[c]hronic contractures of the right hand,” which was “a prominent and stable

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condition.” AR 466. Dr. Nielsen opined that plaintiff was not limited with respect to lifting and

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carrying capacity, or in regard to reaching, handling, fingering and feeling with his left hand. AR
466-67. Dr. Nielsen did find, however, that he had “significant limitations with the right hand to

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both strength and coordination.” AR 467.
The ALJ declined to fully accept Dr. Nielsen’s opinion, because it was “inconsistent with

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every other medical examination in the treatment record.” AR 23. The ALJ went on to state:

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[T]he claimant had various physical exams when he reported to emergency
rooms. No right hand deficits were observed by medical personnel.
Furthermore, the claimant did not seek treatment for his right hand during the
relevant period, including that it did not cause the claimant limitations. Even if

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ORDER - 4

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the claimant had some right hand deficits at the time of the exam, the claimant
has not sought any treatment or established that any right hand deficits have
persisted for a continuous 12-month period.
Id. The Court agrees with plaintiff that these do not constitute valid reasons for discounting Dr.
Nielsen’s opinion.

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The ALJ is responsible for determining credibility and resolving ambiguities and
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conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where

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the evidence is inconclusive, “questions of credibility and resolution of conflicts are functions

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solely of the [ALJ].” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such situations,

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“the ALJ’s conclusion must be upheld.” Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d

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595, 601 (9th Cir. 1999). Determining whether inconsistencies in the evidence “are material (or

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are in fact inconsistencies at all) and whether certain factors are relevant to discount” medical

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opinions “falls within this responsibility.” Id. at 603.
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In resolving questions of credibility and conflicts in the evidence, an ALJ’s findings

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“must be supported by specific, cogent reasons.” Reddick, 157 F.3d at 725. The ALJ can do this

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“by setting out a detailed and thorough summary of the facts and conflicting clinical evidence,

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stating his interpretation thereof, and making findings.” Id. The ALJ also may draw inferences

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“logically flowing from the evidence.” Sample, 694 F.2d at 642. Further, the Court itself may
draw “specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. Bowen, 881

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F.2d 747, 755, (9th Cir. 1989).
The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted

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opinion of either a treating or examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

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1996). Even when a treating or examining physician’s opinion is contradicted, that opinion “can

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only be rejected for specific and legitimate reasons that are supported by substantial evidence in
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the record.” Id. at 830-31. However, the ALJ “need not discuss all evidence presented” to him or

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her. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation

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omitted) (emphasis in original). The ALJ must only explain why “significant probative evidence

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has been rejected.” Id.; see also Cotter v. Harris, 642 F.2d 700, 706-07 (3rd Cir. 1981); Garfield

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v. Schweiker, 732 F.2d 605, 610 (7th Cir. 1984).
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In general, more weight is given to a treating physician’s opinion than to the opinions of

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those who do not treat the claimant. See Lester, 81 F.3d at 830. On the other hand, an ALJ need

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not accept the opinion of a treating physician, “if that opinion is brief, conclusory, and

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inadequately supported by clinical findings” or “by the record as a whole.” Batson v. Comm’r of

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Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also Thomas v. Barnhart, 278 F.3d

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947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). An

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examining physician’s opinion is “entitled to greater weight than the opinion of a nonexamining
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physician.” Lester, 81 F.3d at 830-31. A non-examining physician’s opinion may constitute

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substantial evidence if “it is consistent with other independent evidence in the record.” Id. at

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830-31; Tonapetyan, 242 F.3d at 1149.

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First, while it may be that no other medical personnel observed any deficits in plaintiff’s
right hand, as plaintiff points out Dr. Nielsen is the only medical source that specifically focused
on that hand. Dr. Nielsen also appears to have been the only physician to have performed a full

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examination in relation to plaintiff’s ability to perform work-related activities. Indeed, there is no
indication that any other medical source actually examined plaintiff’s hand, let alone whether or
not plaintiff had any functional limitations with regard thereto.

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As for plaintiff’s failure to seek treatment for his right hand, it is not at all clear why he

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has not sought greater treatment, and the ALJ did not look any further into the matter. See SSR
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96-7p, 1996 WL 374186, at *7 (an ALJ must not draw any inferences about a claimant’s

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symptoms and their functional effects from the failure to follow prescribed treatment, without

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first considering any explanations provided or other information which may explain that failure).

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Nor does the Court find this to be a valid reason for discounting Dr. Nielsen’s opinion in this

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instance – even if the ALJ had expressly considered any explanations on plaintiff’s part – given
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that Dr. Nielsen performed an extensive examination, and provided his own objective findings

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that are supportive of his opinion.

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II.

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The ALJ’s RFC Assessment
The Commissioner employs a five-step “sequential evaluation process” to determine

whether a claimant is disabled. 20 C.F.R. § 404.1520, § 416.920. If the claimant is found
disabled or not disabled at any particular step thereof, the disability determination is made at that

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step, and the sequential evaluation process ends. See id. A claimant’s RFC assessment is used at
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step four of the process to determine whether he or she can do his or her past relevant work, and

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at step five to determine whether he or she can do other work. SSR 96-8p, 1996 WL 374184 *2.

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It is what the claimant “can still do despite his or her limitations.” Id.

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A claimant’s RFC is the maximum amount of work the claimant is able to perform based
on all of the relevant evidence in the record. Id. However, an inability to work must result from
the claimant’s “physical or mental impairment(s).” Id. Thus, the ALJ must consider only those

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limitations and restrictions “attributable to medically determinable impairments.” Id. In assessing
a claimant’s RFC, the ALJ also is required to discuss why the claimant’s “symptom-related

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functional limitations and restrictions can or cannot reasonably be accepted as consistent with the

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medical or other evidence.” Id. at *7.

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The ALJ found plaintiff had the RFC:
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to perform a full range of work at all exertional levels that does not
require exposure to hazards such as open machinery or unprotected
heights; that does not require exposure to pulmonary irritants; that
consists of simple, routine, repetitive tasks; that does not require more
than occasional interaction with coworkers or the general public; and
that does not require more than occasional adaptation to changes in the
work setting or work processes

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AR 17 (emphasis in the original). But because as discussed above the ALJ erred in not properly
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evaluating the medical evidence in the record concerning plaintiff’s right hand impairment, the

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ALJ’s RFC assessment cannot be said to completely and accurately describe all of plaintiff’s

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functional limitations. Accordingly, the ALJ erred here as well.

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III.

The ALJ’s Step Five Determination
If a claimant cannot perform his or her past relevant work, at step five of the sequential

disability evaluation process the ALJ must show there are a significant number of jobs in the

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national economy the claimant is able to do. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir.
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1999); 20 C.F.R. § 416.920(d), (e). The ALJ can do this through the testimony of a vocational

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expert. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2000); Tackett, 180 F.3d at 1100-1101.

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An ALJ’s step five determination will be upheld if the weight of the medical evidence supports

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the hypothetical posed to the vocational expert. Martinez v. Heckler, 807 F.2d 771, 774 (9th Cir.

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1987); Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984). The vocational expert’s
testimony therefore must be reliable in light of the medical evidence to qualify as substantial

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evidence. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988). Accordingly, the ALJ’s
description of the claimant’s functional limitations “must be accurate, detailed, and supported by
the medical record.” Id. (citations omitted).
The ALJ found plaintiff could perform other jobs existing in significant numbers in the
national economy, based on the vocational expert’s testimony offered at the hearing in response
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to a hypothetical question concerning an individual with the same age, education, work

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experience and RFC as plaintiff. AR 26-27. But because as discussed above the ALJ erred in

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assessing plaintiff’s RFC, the hypothetical question the ALJ posed to the vocational expert – and

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thus that expert’s testimony and the ALJ’s reliance thereon – also cannot be said to be supported

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by substantial evidence or free of error.
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IV.

Remand for Further Administrative Proceedings
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 the Court

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reverses an ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the

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agency for additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th

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Cir. 2004) (citations omitted). Thus, it is “the unusual case in which it is clear from the record

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that the claimant is unable to perform gainful employment in the national economy,” that
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“remand for an immediate award of benefits is appropriate.” Id.

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Benefits may be awarded where “the record has been fully developed” and “further

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administrative proceedings would serve no useful purpose.” Smolen, 80 F.3d at 1292; Holohan v.

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Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where:

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(1) the ALJ has failed to provide legally sufficient reasons for rejecting [the
claimant’s] 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.
Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002).

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Because issues remain in regard to the medical evidence in the record concerning plaintiff’s right

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hand impairment, as well as plaintiff’s RFC and his ability to perform other jobs existing in

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significant numbers in the national economy, remand for further consideration of those issues is
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warranted.

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CONCLUSION

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Based on the foregoing discussion, the Court finds the ALJ improperly determined

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plaintiff to be not disabled. Defendant’s decision to deny benefits therefore is REVERSED and

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this matter is REMANDED for further administrative proceedings.
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DATED this 20th day of December, 2016.

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A

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Karen L. Strombom
United States Magistrate Judge

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ORDER - 10