Marion v. Colvin

Filing 12

ORDER reversing the Commissioner's final decision and remanding case for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). Signed by Judge James L. Robart. (PM)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RYAN E. MARION,
Plaintiff,

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ORDER REVERSING AND
REMANDING FOR FURTHER
ADMINISTRATIVE
PROCEEDINGS

v.

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CASE NO. C16-5765JLR

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11 NANCY A. BERRYHILL,

Defendant.

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I.

INTRODUCTION

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Plaintiff Ryan E. Marion seeks review of the denial of his application for disability
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insurance benefits. Mr. Marion contends that the Administrative Law Judge (“ALJ”)
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erred in evaluating the medical evidence in the record, evaluating the disability finding by
the Department of Veterans Affairs (“VA”), evaluating Mr. Marion’s testimony,

19 assessing his residual functional capacity (“RFC”), and finding him capable of
20 performing work available in the national economy. (Op. Br. (Dkt. # 9) at 1.) Having
21 considered the submissions of the parties, the relevant portions of the record, and the
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Nancy A. Berryhill is now the Acting Commissioner of the Social Security
Administration. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
23 substituted for Carolyn W. Colvin as Defendant in this suit. The court DIRECTS the Clerk to
update the docket, and all future filings by the parties should reflect this change.
ORDER - 1

1 applicable law, the court REVERSES Defendant Commissioner Nancy A. Berryhill’s
2 (“the Commissioner”) final decision and REMANDS the matter for further administrative
3 proceedings under sentence four of 42 U.S.C. § 405(g).
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II.

BACKGROUND

On May 5, 2015, Mr. Marion filed an application for disability insurance benefits.

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(Administrative Record (“AR”) (Dkt. # 6) at 17.) Mr. Marion’s application was denied
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initially and on reconsideration. (Id.) After the ALJ conducted a hearing on April 29,
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2016, the ALJ issued a decision finding Mr. Marion not disabled. (Id. at 17-28.)
In her decision, the ALJ utilized the five-step disability evaluation process,2 and

11 the court summarizes the ALJ’s findings as follows:
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Step one: Mr. Marion has not engaged in substantial gainful activity since March
4, 2015, the alleged onset date.

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Step two: Mr. Marion has the following severe impairments: posttraumatic stress
disorder (“PTSD”), major depressive disorder, headaches, and labrum tears.
Step three: Mr. Marion does not have an impairment or combination of
impairments that meets or equals the requirements of a listed impairment.3
RFC: Mr. Marion has the RFC to perform light work as defined in 20 C.F.R.
§ 404.1567(b) except he can occasionally balance, stoop, kneel, crouch, crawl, and
climb ramps or stairs, but cannot climb ladders, ropes, or scaffolds. He needs to
avoid concentrated exposure to vibration and hazards such as working near
dangerous moving machinery or working at unprotected heights. He can perform
simple and detailed tasks but might have difficulty performing more complex
tasks consistently. He can have superficial contact with members of the public
and coworkers, can interact with them briefly, and can work around them. He can
adapt to occasional changes in the work setting.

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20 C.F.R. § 416.920.

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20 C.F.R. Part 404, Subpart P, Appendix 1.

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ORDER - 2

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Step four: Mr. Marion is unable to perform any past relevant work.

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Step five: Because jobs exist in significant numbers in the national economy that
Mr. Marion can perform, he is not disabled.

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(See id. at 17-28.) The Appeals Council denied Mr. Marion’s request for review, making

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III.

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ANALYSIS

Pursuant to 42 U.S.C. § 405(g), the court must set aside the Commissioner’s

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

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A.

Evaluation of the Medical Evidence

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Mr. Marion argues that the ALJ erred by failing to fully incorporate or give
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specific and legitimate reasons supported by substantial evidence to discount the opinion
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of examining psychologist Keri Tarantino, Psy.D. (See Op. Br. at 3-7.) The court agrees.
Where the medical evidence in the record is not conclusive, resolving questions of

18 credibility and conflicts in the evidence is solely the responsibility of the ALJ. See
19 Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In resolving questions of
20 credibility and conflicts in the evidence, an ALJ’s findings “must be supported by
21 specific, cogent reasons.” See Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). The
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The court omits the rest of the procedural history in this matter because it is not relevant
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ORDER - 3

1 ALJ can satisfy this requirement “by setting out a detailed and thorough summary of the
2 facts and conflicting clinical evidence, stating his interpretation thereof, and making
3 findings.” Id. The ALJ may also draw inferences “logically flowing from the evidence.”
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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 F.2d 747, 755 (9th Cir.

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1989).
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The ALJ must provide “clear and convincing” reasons for rejecting the
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uncontradicted opinion of either a treating or examining physician. Lester v. Chater, 81
F.3d 821, 830 (9th Cir. 1996). Even when a treating or examining physician’s opinion is

11 contradicted, that opinion “can only be rejected for specific and legitimate reasons that
12 are supported by substantial evidence in the record.” Id. at 830-31.
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Here, Dr. Tarantino examined Mr. Marion in November 2015 and opined that he

14 was moderately impaired in his ability to interact with coworkers and the public and to
15 maintain regular attendance in the workplace, moderately to markedly impaired in his
16 ability to complete a normal workday or workweek without interruptions from his
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psychological impairments, and markedly impaired in his ability to deal with typical
workplace stress if the work involved being around others. (See AR at 1273.) The ALJ

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gave Dr. Tarantino’s opinion some weight. (See id. at 25.) The ALJ found that the
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identified difficulties interacting with others and completing a workday without
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interruptions were supported by the medical treatment records. (See id.) However, the
ALJ found that the marked impairment in handling stress if the work involved being

ORDER - 4

1 around others was not supported by the treatment records or Mr. Marion’s activities. (See
2 id.)
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An ALJ may reject a physician’s opinion on the basis that other evidence of the
claimant’s ability to function, including reported activities, contradicts that opinion. See
Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir. 1999). Here,

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during the period at issue, Mr. Marion was able to go to baseball games, take college
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classes, go on dates, and visit museums and water parks with his son. (See AR at 38-39,
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57-58.) He reported no difficulty getting along with friends, family, neighbors,
coworkers, or authority figures. (See id. at 205-06.) Therefore, substantial evidence

11 supports the ALJ’s finding that Mr. Marion’s activities contradicted Dr. Tarantino’s
12 opinion that Mr. Marion was markedly impaired in his ability to work around others.
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However, Mr. Marion also argues that the ALJ did not fully incorporate into the

14 RFC the limitations that the ALJ found were supported by the record—that Mr. Marion
15 was moderately impaired in his ability to interact with coworkers and the public and to
16 maintain regular attendance in the workplace and moderately to markedly impaired in his
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ability to complete a normal workday or workweek without interruptions from his
psychological impairments. (See Op. Br. at 4.) The Commissioner argues that the ALJ

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reasonably translated those limitations into an RFC limiting Mr. Marion to simple tasks,
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superficial contact with others, and only occasional changes in the workplace. (See Resp.
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Br. (Dkt. # 10) at 5-7.) However, the ALJ did not address absenteeism in the RFC. (See
AR at 21-22.) Also, the ALJ did not incorporate into the RFC any allowances for being

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1 off-task. (See id.) This omission constitutes a failure to address Mr. Marion’s moderate
2 to marked limitation in completing a workday or workweek without interruptions from
3 psychological symptoms. Therefore, the ALJ erred by failing to fully incorporate or give
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reasons to discount part of Dr. Tarantino’s opinion into the RFC.
The Ninth Circuit has “recognized that harmless error principles apply in the

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Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
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(citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)). “[I]n
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each case we look at the record as a whole to determine [if] the error alters the outcome
of the case.” Id. Therefore, “an ALJ’s error is harmless where it is ‘inconsequential to

11 the ultimate nondisability determination.’” Id. (quoting Carmickle v. Comm’r, Soc. Sec.
12 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)). Here, because the ALJ improperly
13 discounted Dr. Tarantino’s opinion in assessing the RFC and found Mr. Marion capable
14 of performing work based on that RFC, the error affected the ultimate disability
15 determination and is not harmless.
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B.

Evaluation of the VA Determination

Mr. Marion argues that the ALJ erred by failing to provide a persuasive, specific,
and valid reason for discounting the VA disability determination in the record. (See Op.

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Br. at 7-9.) The court finds no harmful error.
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Although a determination by the VA about whether a claimant is disabled is not
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binding on the Social Security Administration (“SSA”), an ALJ must consider that
determination in reaching her decision. See McCartey v. Massanari, 298 F.3d 1072,

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1 1076 (9th Cir. 2002); 20 C.F.R. § 404.1504. Further, the ALJ “must ordinarily give great
2 weight to a VA determination of disability” because of “the marked similarity” between
3 the two federal disability programs. See McCartey, 298 F.3d at 1076. However,
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“[b]ecause the VA and SSA criteria for determining disability are not identical,” the ALJ
“may give less weight to a VA disability rating if [she] gives persuasive, specific, valid

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reasons for doing so that are supported by the record.” Id. (citing Chambliss v.
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Massanari, 269 F.3d 520, 522 (5th Cir. 2001)).
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Here, the ALJ gave the VA determination only limited weight because, among
other reasons, the VA determination was inconsistent with medical records showing that

11 the relevant impairments in the VA determination were well-controlled with treatment.
12 (See AR at 25-26.) Although Mr. Marion argues that the ALJ’s other reasons for
13 discounting the VA determination were not persuasive, he fails to address this rationale.
14 (See Op. Br. at 7-9); Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (holding that
15 matters on appeal not specifically and distinctly argued in opening brief ordinarily will
16 not be considered). Therefore, Mr. Marion fails to meet his burden of proving harmful
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error here.
C.

Evaluation of Mr. Marion’s Testimony

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Mr. Marion argues that the ALJ erred in evaluating his subjective complaints.
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(See Op. Br. at 9-11.) The court disagrees.
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Questions of credibility are solely the responsibility of the ALJ. See Sample, 694
F.2d at 642. The court may not second-guess these credibility determinations. Allen v.

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1 Heckler, 749 F.2d 577, 580 (9th Cir. 1984). To reject a claimant’s subjective complaints,
2 the ALJ must provide “specific, cogent reasons for the disbelief.” Lester, 81 F.3d at 834
3 (internal citation omitted). The ALJ “must identify what testimony is not credible and
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what evidence undermines the claimant’s complaints.” Id.; see also Dodrill v. Shalala,
12 F.3d 915, 918 (9th Cir. 1993). Unless affirmative evidence shows the claimant is

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malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear and
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convincing.” Lester, 81 F.2d at 834.
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Mr. Marion argues that the ALJ did not provide specific reasons for rejecting his
testimony. (See Op. Br. at 10.) However, the ALJ found that although Mr. Marion’s

11 impairments could be expected to cause some of his alleged symptoms, Mr. Marion’s
12 statements concerning the intensity and limiting effects of those symptoms were
13 (1) inconsistent with the medical treatment record and Mr. Marion’s activities, and
14 (2) well-controlled with treatment. (See AR at 23-24.) By failing to address why these
15 reasons were not sufficient, Mr. Marion does not meet his burden of showing harmful
16 error. See Kim, 154 F.3d at 1000.
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D.

The RFC Assessment and Step-Five Finding

Mr. Marion next argues that, for reasons beyond those listed above, the RFC and
step-five finding are not supported by substantial evidence.5 (See Op. Br. at 12-15.)

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Mr. Marion argues in this section that the ALJ erred by failing to address his migraines
in the RFC. (See Op. Br. at 12-13.) However, Mr. Marion’s argument regarding migraines relies
22 on the ALJ’s purported errors in evaluating the VA determination and Mr. Marion’s testimony.
(See id.) As described above, Mr. Marion does not show harmful error in the ALJ’s evaluation
23 of the VA determination or Mr. Marion’s testimony. See supra § III.B., C. The court
accordingly rejects Mr. Marion’s argument regarding migraines.
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1 First, Mr. Marion argues that the ALJ failed to account for his sleep apnea, which was not
2 determined to be a severe impairment, in the RFC. (See id. at 12.) An ALJ must
3 consider all medically determinable impairments, not just those determined to be severe,
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when assessing a claimant’s RFC. See Social Security Ruling 96-8p, 1996 WL 374184,
at *2. However, Mr. Marion fails to establish that the ALJ’s error was harmful because

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he identifies no specific functional limitations resulting from his sleep apnea that are
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missing from the RFC. (See id.) See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007);
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Molina, 674 F.3d at 1115.
Next, Mr. Marion argues that the ALJ failed to address the frequency of necessary

11 medical appointments in the RFC. (See Op. Br. at 13.) However, Mr. Marion does not
12 show why these appointments would have to occur during work hours and therefore
13 require an accommodation for absenteeism in the RFC on the basis of the frequency of
14 his appointments alone.
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Finally, Mr. Marion argues that the ALJ failed to address Mr. Marion’s need for a

16 service animal in the RFC. (See id. at 14-15.) However, Mr. Marion provides no
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evidence that the service animal was medically necessary other than his own testimony,
which the ALJ properly discounted. See supra § III.C.

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The court finds that the RFC and step-five finding are not supported by substantial
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evidence due to the ALJ’s error in evaluating Dr. Tarantino’s opinion. See supra § III.A.
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E.

Remand for Further Proceedings

The court may remand this case “either for additional evidence and findings or to

ORDER - 9

1 award benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). Generally, when
2 the court reverses an ALJ’s decision, “the proper course, except in rare circumstances, is
3 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

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employment in the national economy” that “remand for an immediate award of benefits is
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appropriate.” Id.
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Benefits may be awarded where “the record has been fully developed” and
“further administrative proceedings would serve no useful purpose.” Smolen, 80 F.3d at

11 1292; Holohan v. Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits
12 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.

16 Smolen, 80 F.3d at 1292; McCartey, 298 F.3d at 1076-77. Here, factual issues remain
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regarding Mr. Marion’s functional capabilities and his ability to perform other jobs
existing in significant numbers in the national economy in light of any additional
limitations. Accordingly, the court concludes that remand for further consideration is

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warranted.
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IV.

CONCLUSION

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For the foregoing reasons, the court REVERSES the Commissioner’s final

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1 decision and REMANDS this case for further administrative proceedings under sentence
2 four of 42 U.S.C. § 405(g).
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DATED this 2nd day of March, 2017.

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A

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JAMES L. ROBART
United States District Judge

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ORDER - 11