Coombs v. Colvin

Filing 16

ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDING by Hon. Brian A Tsuchida. (AE)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARY A. COOMBS,
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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

CASE NO. 16-5878-BAT
ORDER REVERSING AND
REMANDING FOR FURTHER
PROCEEDINGS

Defendant.
Mary A. Coombs appeals the ALJ’s order finding her not disabled. The ALJ found

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chronic obstructive pulmonary disease (COPD), obesity, status post colon resection for

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diverticulitis, calcaneous ankle spurs, and disc disease are severe impairments; that Ms. Coombs

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has the residual functional capacity (RFC) to perform light work with additional limitations; and

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that Ms. Coombs cannot perform past relevant work but can perform other work in the national

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economy. Tr. 23-32. The ALJ’s decision is the Commissioner’s final decision because the

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Appeals Council denied review. Tr. 1.

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DISCUSSION

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The Court will reverse the ALJ’s decision only if it is not supported by substantial

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evidence or if the ALJ applied the wrong legal standard. See Molina v. Astrue, 674 F.3d 1104,

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1110 (9th Cir. 2012). “Substantial evidence means such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion. Where the evidence is susceptible to more than

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one rational interpretation, it is the ALJ's conclusion that must be upheld.” Morgan v.

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Commissioner of SSA, 169 F.3d 595, 599 (9th Cir. 1999) (citations omitted). Moreover, the Court

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will reverse the ALJ’s decision only if the claimant demonstrates the ALJ’s error was harmful.

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Id. Ms. Coombs contends the ALJ misevaluated the medical evidence and her testimony. She

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also argues spirometry test results she submitted to the Appeals Council show the ALJ’s decision

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is not supported by substantial evidence. Dkt. 2, 9. As relief Ms. Coombs requests the Court

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remand the case for further proceedings.

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A.

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Medical Evidence
Ms. Coomb’s opening brief lists, seriatim, notations made by James Lee, M.D., Alison

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Wilson, M.D., Tonia Jenson, D.O., Pragathy Vutla, M.D., Rory Laughery, M.D., Khalid Aslam,

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M.D., Kyung Noh, M.D., James Floyd, M.D., Brenda Park, D.G., Chad Farley, D.P.M., Andre

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Joseph, M.D., Aljandro Gonzalez, M.D., and CT and X-Ray results. Dkt. 3-6. She states “the

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above-cited medical evidence supports Coomb’s testimony about her limitations.” Id. 8.

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The Court rejects this conclusory statement. Ms. Coombs cannot merely make a

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statement and leave the Court to do counsel’s work—framing the argument, and putting flesh on

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its bones through a discussion of the applicable law and facts. See Ve Thi Nguyen v. Colvin, No.

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C13-882 RAJ-BAT, 2014 WL 1871054 at * 2 (W.D. Wash., May 8, 2014) (unpublished) citing

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Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (rejecting out of hand conclusory

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assertion that ALJ failed to consider whether claimant met Listings because claimant provided

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no analysis of relevant law or facts regarding Listings); Perez v. Barnhart, 415 F.3d 457, 462 n.

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4 (5th Cir. 2005) (argument waived by inadequate briefing); Murrell v. Shalala, 43 F.3d 1388,

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1389 n. 2 (10th Cir. 1994) (perfunctory complaint fails to frame and develop issue sufficiently to

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invoke appellate review).

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Dr. Kirov and Ms. Collins diagnosed Ms. Coombs with depression. Tr. 444, 685. Ms.

Borislav Kirov, M.D., and Rachel Collins, ARNP

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Coombs argues the ALJ therefore erred in failing to find depression a severe impairment at step

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two. Dkt. 13 at 4, 8. Even if the ALJ so erred, the error is harmless for two reasons. First, the

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ALJ assessed whether depression met the Listings, Tr. 25, and whether Ms. Coombs’ testimony1

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about depressive symptoms should be given weight in assessing her RFC. Lewis v. Astrue, 498

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F.3d 909, 911 (9th Cir. 2007) (holding where ALJ considered evidence of limitations posed by

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claimant’s bursitis at step four, any error in failing to consider bursitis “severe” at step two was

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harmless). And second, neither Dr. Kirov nor Ms. Collin’s opined Ms. Coombs had work

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limitations due to depressive symptoms. In fact, other than diagnosing Ms. Coombs with

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depression, Dr. Kirov says nothing about observing any depressive symptoms or the need for

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psychiatric care or medications. See Dkt. 444-46.

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Ms. Collins notes Ms. Coombs was depressed and crying for no reason and staying in her

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room, Tr. 685. But she also noted Ms. Coombs “has never tried antidepressants in the past,” id.,

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and was “consolable.” Id. Ms. Collins’s records, which span about a year, indicate that half the

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time, Ms. Coombs did not screen positive for depressive symptoms, and that even when she

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screened positive, Ms. Coombs stated she felt “well.” Tr. 671, 678, 682, 684. Accordingly, Ms.

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Coombs has failed to show the ALJ failed to account for limitations due to depression, and has

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thus failed to meet her burden of establishing reversible step two error. See Shinseki v. Sanders,

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As discussed in Part B, below, the ALJ gave at least one valid reason to reject Ms. Coombs’
testimony about the severity of her symptoms.

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556 U.S. 396, 409 (2009) (party attacking an agency’s determination carries burden of showing

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harmful error).

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2.

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Ms. Coombs was evaluated and treated at MVP Physical Therapy by Mr. Loforti, and

Michael LoForti, MPT

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Angela Bachel, DPT. The opinions of other sources, such as physical therapist, are important and

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must be evaluated by the ALJ. See Garrison v. Colvin, 759 F.3d 995, 1013–14 (9th Cir.2014)

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(ALJ erred by failing to recognize “other source that can provide evidence about the severity of a

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claimant's impairments and how it affects the claimant's ability to work”). Ms. Coombs argues

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the ALJ erred by “failing to discuss Mr. LoForti’s findings,” though the argument relies upon the

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March 28, 2014, discharge summary created by Ms. Bachel. Dkt. 13 at 7.

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The record shows the ALJ failed to discuss the discharge summary, and thus erred. The

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Commissioner argues otherwise claiming that because Ms. Bachel “simply reported Plaintiff’s

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[less than fully credible] changing description of her impairments the ALJ was not required to

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provide additional discussion of their notes.” Dkt. 14 at 7. The argument is both factually and

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legally incorrect. The record clearly establishes, the ALJ did not reject Ms. Bachel’s opinions

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because they were based on the non-credible statements of Ms. Coombs; rather the ALJ failed to

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address the opinions at all. Moreover, the record does not support the Commissioner’s post-hoc

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interpretation. Ms. Bachel’s evaluation indicates she physically examined Ms. Coombs

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(palpation), and administered a number of tests in formulating her opinions that Ms. Coombs had

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significant limitations. See Tr. 628 (referencing Spurling’s test, manual cervical distraction test,

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accessory movement test, strength test, vertebral artery test, and reflex tests). Hence the record

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cuts against the Commissioner’s post-hoc interpretation.

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As a matter of law, the Commissioner’s argument is nothing more than an improper post-

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hoc rationalization the Court cannot rely on to affirm the ALJ. See Pinto v. Massanari, 249 F.3d

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840, 847-48 (9th Cir. 2001). This is because the Court reviews the ALJ’s decision “based on the

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reasoning and findings offered by the ALJ—not post hoc rationalizations that attempt to intuit

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what the adjudicator may have been thinking.” Bray v. Comm’r of SSA, 554 F.3d 1219, 1225

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(9th Cir. 1995).

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The ALJ’s error was harmful. The ALJ must assess a claimant’s residual functional

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capacity based on all of the relevant evidence in the case record, including medical source

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statements. See 20 C.F.R. § 416.945(a). This did not occur because the ALJ failed to account for

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all of the limitations assessed by Ms. Bachel.

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3.

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Ms. Coombs argues the ALJ erred in giving great weight to the opinions of Drs. Rubio

Reviewing doctors

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and Platter. Dkt. 13 at 8. Because the ALJ erred in failing to address Ms. Bachel’s opinions, the

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ALJ on remand may revisit what weight the reviewing doctors’ opinions should be given.

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4.

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Two weeks after the ALJ issued her decision, Ms. Coombs submitted to the Appeals

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Council SeaMar spirometry test results that were performed on April 24, 2015. Ms. Coombs

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argues the Appeals Council violated the social security regulations by not including the test

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results in the record; she also argues the results undermine the ALJ’s disability determination.

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Dkt. 13 at 9. Regarding the first part of Ms. Coombs’ argument, it appears the Appeals Council

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intended to make the SeaMar test results part of the record, and in fact considered the records.

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This is evidenced by how the Appeals Council included in the record other SeaMar records

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submitted after the ALJ’s decision (Exhibit 17F), and how the Appeals Council also included in

Evidence submitted to the Appeals Council

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the record, counsel’s letter brief that argued review should be granted because “Claimant had a

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spirometry on 4/24/2015 and it was noted that she had severe airway obstruction with low vital

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capacity (records are attached hereto and incorporated by reference). Tr. 268. Accordingly, the

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Court concludes the Appeals Council considered the Seamar spirometry test results, the

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arguments counsel raised in the letter brief about those results, and that the test results are

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therefore part of the record.

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As to the second part of the argument, Ms. Coombs bears the burden of establishing the

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test results undermine the ALJ’s decision. She fails to meet that burden in that she provides no

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explanation as to how or why the results requires reversal of the ALJ’s decision. The Court notes

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the ALJ found COPD did not meet the requirements of Listing 3.02 due to the lack of “any

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medical tests necessary to satisfy the requirements.” Tr. 26. Although the record now contains a

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“medical test,” the results of the spirometry test do not undermine the ALJ’s determination.

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Listing 3.02A governs chronic pulmonary insufficiency. To meet the Listing, a claimant

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must meet a certain FEV1 value as shown by spirometry testing. Listing 3.00E describes the

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requirements for pulmonary testing, and describes FEV1 as the reported forced expiratory

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volume. The Listing requires the FEV1 be the largest of at least three satisfactory forced

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expiratory maneuvers, and that two of the satisfactory spirograms must be reproducible for both

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pre-bronchodilator and post-bronchodilator tests. To be reproducible, a value must not differ

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from the largest value by more than 5 percent or 0.1 L, whichever is greater.

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Listing 3.00E also directs that spirometry testing must be repeated after administration of

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an aerosolized bronchodilator if the pre-bronchodilator FEV1 value is less than 70 percent of the

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predicted normal value. This is because “[t]he effect of the administered bronchodilator in

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relieving bronchospasm and improving ventilatory function is assessed by spirometry,” and the

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values used in Listing 3.02A “must only be used as criteria for the level of ventilatory

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impairment that exists during the individual's most stable state of health.”

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The test results Ms. Coombs submitted to the Appeals Council fail to meet the

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requirements of the Listings. Ms. Coobs is 63 inches tall. Listing 3.02A defines chronic

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pulmonary insufficiency for such a person as having an FEV1 value equal to or less than 1.15.

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Here three pre-bronchodilator FEV1 trials were performed. The trial with the largest result

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yielded a value of 1.30, which exceeds the 1.15 value required to meet the Listing. There are no

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post-bronchodilator test results. The testing submitted therefore does not undermine the ALJ’s

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determination that COPD does meet the Listings.

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In sum, the ALJ found COPD is a severe impairment and considered the condition in

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assessing Ms. Coombs’ RFC. Ms. Coombs submitted post hearing spirometry results regarding

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COPD which the Appeals Council considered and intended to make part of the record. The Court

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has considered the post hearing evidence, as part of the record. However, as noted above, Ms.

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Coombs provides no explanation as to why the post-hearing test results undermine the ALJ’s

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RFC determination. Additionally, the test results show Ms. Coombs’ COPD does not meet the

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requirements of a Listed Impairment. The ALJ’s step three determination as to COPD is

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accordingly not undermined. As Ms. Coombs has failed to show the new evidence undermines

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the ALJ’s decision, the Court rejects her argument that the new evidence compels reversal of the

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Commissioner’s final decision.

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B.

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Ms. Coombs’ Testimony
Ms. Coombs argues the ALJ erroneously rejected her testimony. The ALJ did not find

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malingering and was thus required to give clear and convincing reasons to reject Ms. Coombs’

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testimony about the severity of her symptoms. Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir.

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1996). The ALJ found although Ms. Coombs alleged she became disabled beginning October 1,

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2010, “there is no medical evidence in the record whatsoever until September 29 2012.” Tr. 28.

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Ms. Coombs does not claim this is untrue but argues the ALJ erred in two ways. First she argues

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the fact there are no medical records pre-dating 2012 does not show she was not disabled at some

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later point. Dkt. 13 at 10. The argument is evasive and does not address the essence of the ALJ’s

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rationale: Ms. Coombs’ claim that she became disabled in 2010 is inconsistent with the absence

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of any medical records establishing a severe impairment for that time period. Indeed, disability is

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defined as the inability to work due to a severe impairment. See 20 C.F.R. § 404.1505(a). If a

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claimant has no severe impairments, then the claimant is not disabled. The ALJ may consider

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“ordinary techniques of credibility evaluation.” Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th

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Cir. 1996). The Court concludes that this is what the ALJ did and affirms the ALJ’s reasoning.

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Second, Ms. Coombs argues the ALJ erred by failing to inquire why Ms. Coombs did not

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receive treatment between 2010 and 2012, including whether she could afford treatment. Dkt. 13

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at 10. The argument fails. The record shows Ms. Coombs and her lawyer were advised the

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claimant must provide medical evidence showing she has a severe impairment during the time

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she alleges disability, Tr. 134; that Ms. Coombs’ lawyer informed the ALJ that the record was

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complete, Tr. 41; and that Ms. Coombs did not submit any medical evidence pre-dating 2012.

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The record thus contains no ambiguities that the ALJ was obligated to clarify.

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Additionally the record shows Ms. Coombs had multiple opportunities to explain why

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she did not submit any medical records for the period of time between 2010 and 2012. She could

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have raised lack of funds during the hearing before the ALJ, or in her letter brief to the Appeals

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Council. She did not; in fact, her letter brief does not even challenge the ALJ’s finding that the

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lack of any medical evidence pre-2012 undermined her testimony. Tr. 267-70.

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The Court also rejects Ms. Coombs’ argument because it is not based on the record.

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There is nothing in the record that supports Ms. Coombs’ argument that she did not receive

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medical treatment before 2012, perhaps for financial reasons. Perhaps she received treatment,

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perhaps she did not; the record simply does not indicate one way or another. Whether she did not

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receive treatment is thus guesswork because the record only reveals Ms. Coombs did not submit

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any medical evidence that predates 2012. In short, Ms. Coombs has the burden of showing

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harmful error. On the record before the Court, she falls far short of making this showing.

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The ALJ rejected Ms. Coombs’ testimony based on other reasons which the Court need
not address. This is because the reason above is valid and supported by substantial evidence and

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any error the ALJ might have committed in relying on other grounds to reject Ms. Coombs’

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testimony is harmless. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th

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Cir. 2008) (including an erroneous reason among other reasons to discount a claimant’s

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credibility does not negate the validity of the overall credibility determination and is at most

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harmless error where an ALJ provides other reasons that are supported by substantial evidence).

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CONCLUSION

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The Court REVERSES the Commissioner’s final decision and REMANDS the case for

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further administrative proceedings under sentence four of 42 U.S.C. § 405(g). On remand, the

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ALJ shall reassess the MVP Physical Therapy opinions of Mr. Loforti, and Ms. Bachel,

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reconsider the reviewing doctors’ opinions as needed, develop the record, reassess Ms. Coombs’

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RFC, and proceed to step five as appropriate.

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DATED this 14th day of July, 2017.

A
BRIAN A. TSUCHIDA
United States Magistrate Judge

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