Coombs v. Colvin

Filing 16


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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 MARY A. COOMBS, 8 Plaintiff, 9 v. 10 11 12 13 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 14 chronic obstructive pulmonary disease (COPD), obesity, status post colon resection for 15 diverticulitis, calcaneous ankle spurs, and disc disease are severe impairments; that Ms. Coombs 16 has the residual functional capacity (RFC) to perform light work with additional limitations; and 17 that Ms. Coombs cannot perform past relevant work but can perform other work in the national 18 economy. Tr. 23-32. The ALJ’s decision is the Commissioner’s final decision because the 19 Appeals Council denied review. Tr. 1. 20 DISCUSSION 21 The Court will reverse the ALJ’s decision only if it is not supported by substantial 22 evidence or if the ALJ applied the wrong legal standard. See Molina v. Astrue, 674 F.3d 1104, 23 1110 (9th Cir. 2012). “Substantial evidence means such relevant evidence as a reasonable mind ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS - 1 1 might accept as adequate to support a conclusion. Where the evidence is susceptible to more than 2 one rational interpretation, it is the ALJ's conclusion that must be upheld.” Morgan v. 3 Commissioner of SSA, 169 F.3d 595, 599 (9th Cir. 1999) (citations omitted). Moreover, the Court 4 will reverse the ALJ’s decision only if the claimant demonstrates the ALJ’s error was harmful. 5 Id. Ms. Coombs contends the ALJ misevaluated the medical evidence and her testimony. She 6 also argues spirometry test results she submitted to the Appeals Council show the ALJ’s decision 7 is not supported by substantial evidence. Dkt. 2, 9. As relief Ms. Coombs requests the Court 8 remand the case for further proceedings. 9 A. 10 Medical Evidence Ms. Coomb’s opening brief lists, seriatim, notations made by James Lee, M.D., Alison 11 Wilson, M.D., Tonia Jenson, D.O., Pragathy Vutla, M.D., Rory Laughery, M.D., Khalid Aslam, 12 M.D., Kyung Noh, M.D., James Floyd, M.D., Brenda Park, D.G., Chad Farley, D.P.M., Andre 13 Joseph, M.D., Aljandro Gonzalez, M.D., and CT and X-Ray results. Dkt. 3-6. She states “the 14 above-cited medical evidence supports Coomb’s testimony about her limitations.” Id. 8. 15 The Court rejects this conclusory statement. Ms. Coombs cannot merely make a 16 statement and leave the Court to do counsel’s work—framing the argument, and putting flesh on 17 its bones through a discussion of the applicable law and facts. See Ve Thi Nguyen v. Colvin, No. 18 C13-882 RAJ-BAT, 2014 WL 1871054 at * 2 (W.D. Wash., May 8, 2014) (unpublished) citing 19 Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (rejecting out of hand conclusory 20 assertion that ALJ failed to consider whether claimant met Listings because claimant provided 21 no analysis of relevant law or facts regarding Listings); Perez v. Barnhart, 415 F.3d 457, 462 n. 22 4 (5th Cir. 2005) (argument waived by inadequate briefing); Murrell v. Shalala, 43 F.3d 1388, 23 ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS - 2 1 1389 n. 2 (10th Cir. 1994) (perfunctory complaint fails to frame and develop issue sufficiently to 2 invoke appellate review). 3 1. 4 Dr. Kirov and Ms. Collins diagnosed Ms. Coombs with depression. Tr. 444, 685. Ms. Borislav Kirov, M.D., and Rachel Collins, ARNP 5 Coombs argues the ALJ therefore erred in failing to find depression a severe impairment at step 6 two. Dkt. 13 at 4, 8. Even if the ALJ so erred, the error is harmless for two reasons. First, the 7 ALJ assessed whether depression met the Listings, Tr. 25, and whether Ms. Coombs’ testimony1 8 about depressive symptoms should be given weight in assessing her RFC. Lewis v. Astrue, 498 9 F.3d 909, 911 (9th Cir. 2007) (holding where ALJ considered evidence of limitations posed by 10 claimant’s bursitis at step four, any error in failing to consider bursitis “severe” at step two was 11 harmless). And second, neither Dr. Kirov nor Ms. Collin’s opined Ms. Coombs had work 12 limitations due to depressive symptoms. In fact, other than diagnosing Ms. Coombs with 13 depression, Dr. Kirov says nothing about observing any depressive symptoms or the need for 14 psychiatric care or medications. See Dkt. 444-46. 15 Ms. Collins notes Ms. Coombs was depressed and crying for no reason and staying in her 16 room, Tr. 685. But she also noted Ms. Coombs “has never tried antidepressants in the past,” id., 17 and was “consolable.” Id. Ms. Collins’s records, which span about a year, indicate that half the 18 time, Ms. Coombs did not screen positive for depressive symptoms, and that even when she 19 screened positive, Ms. Coombs stated she felt “well.” Tr. 671, 678, 682, 684. Accordingly, Ms. 20 Coombs has failed to show the ALJ failed to account for limitations due to depression, and has 21 thus failed to meet her burden of establishing reversible step two error. See Shinseki v. Sanders, 22 23 1 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. ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS - 3 1 556 U.S. 396, 409 (2009) (party attacking an agency’s determination carries burden of showing 2 harmful error). 3 2. 4 Ms. Coombs was evaluated and treated at MVP Physical Therapy by Mr. Loforti, and Michael LoForti, MPT 5 Angela Bachel, DPT. The opinions of other sources, such as physical therapist, are important and 6 must be evaluated by the ALJ. See Garrison v. Colvin, 759 F.3d 995, 1013–14 (9th Cir.2014) 7 (ALJ erred by failing to recognize “other source that can provide evidence about the severity of a 8 claimant's impairments and how it affects the claimant's ability to work”). Ms. Coombs argues 9 the ALJ erred by “failing to discuss Mr. LoForti’s findings,” though the argument relies upon the 10 March 28, 2014, discharge summary created by Ms. Bachel. Dkt. 13 at 7. 11 The record shows the ALJ failed to discuss the discharge summary, and thus erred. The 12 Commissioner argues otherwise claiming that because Ms. Bachel “simply reported Plaintiff’s 13 [less than fully credible] changing description of her impairments the ALJ was not required to 14 provide additional discussion of their notes.” Dkt. 14 at 7. The argument is both factually and 15 legally incorrect. The record clearly establishes, the ALJ did not reject Ms. Bachel’s opinions 16 because they were based on the non-credible statements of Ms. Coombs; rather the ALJ failed to 17 address the opinions at all. Moreover, the record does not support the Commissioner’s post-hoc 18 interpretation. Ms. Bachel’s evaluation indicates she physically examined Ms. Coombs 19 (palpation), and administered a number of tests in formulating her opinions that Ms. Coombs had 20 significant limitations. See Tr. 628 (referencing Spurling’s test, manual cervical distraction test, 21 accessory movement test, strength test, vertebral artery test, and reflex tests). Hence the record 22 cuts against the Commissioner’s post-hoc interpretation. 23 ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS - 4 1 As a matter of law, the Commissioner’s argument is nothing more than an improper post- 2 hoc rationalization the Court cannot rely on to affirm the ALJ. See Pinto v. Massanari, 249 F.3d 3 840, 847-48 (9th Cir. 2001). This is because the Court reviews the ALJ’s decision “based on the 4 reasoning and findings offered by the ALJ—not post hoc rationalizations that attempt to intuit 5 what the adjudicator may have been thinking.” Bray v. Comm’r of SSA, 554 F.3d 1219, 1225 6 (9th Cir. 1995). 7 The ALJ’s error was harmful. The ALJ must assess a claimant’s residual functional 8 capacity based on all of the relevant evidence in the case record, including medical source 9 statements. See 20 C.F.R. § 416.945(a). This did not occur because the ALJ failed to account for 10 all of the limitations assessed by Ms. Bachel. 11 3. 12 Ms. Coombs argues the ALJ erred in giving great weight to the opinions of Drs. Rubio Reviewing doctors 13 and Platter. Dkt. 13 at 8. Because the ALJ erred in failing to address Ms. Bachel’s opinions, the 14 ALJ on remand may revisit what weight the reviewing doctors’ opinions should be given. 15 4. 16 Two weeks after the ALJ issued her decision, Ms. Coombs submitted to the Appeals 17 Council SeaMar spirometry test results that were performed on April 24, 2015. Ms. Coombs 18 argues the Appeals Council violated the social security regulations by not including the test 19 results in the record; she also argues the results undermine the ALJ’s disability determination. 20 Dkt. 13 at 9. Regarding the first part of Ms. Coombs’ argument, it appears the Appeals Council 21 intended to make the SeaMar test results part of the record, and in fact considered the records. 22 This is evidenced by how the Appeals Council included in the record other SeaMar records 23 submitted after the ALJ’s decision (Exhibit 17F), and how the Appeals Council also included in Evidence submitted to the Appeals Council ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS - 5 1 the record, counsel’s letter brief that argued review should be granted because “Claimant had a 2 spirometry on 4/24/2015 and it was noted that she had severe airway obstruction with low vital 3 capacity (records are attached hereto and incorporated by reference). Tr. 268. Accordingly, the 4 Court concludes the Appeals Council considered the Seamar spirometry test results, the 5 arguments counsel raised in the letter brief about those results, and that the test results are 6 therefore part of the record. 7 As to the second part of the argument, Ms. Coombs bears the burden of establishing the 8 test results undermine the ALJ’s decision. She fails to meet that burden in that she provides no 9 explanation as to how or why the results requires reversal of the ALJ’s decision. The Court notes 10 the ALJ found COPD did not meet the requirements of Listing 3.02 due to the lack of “any 11 medical tests necessary to satisfy the requirements.” Tr. 26. Although the record now contains a 12 “medical test,” the results of the spirometry test do not undermine the ALJ’s determination. 13 Listing 3.02A governs chronic pulmonary insufficiency. To meet the Listing, a claimant 14 must meet a certain FEV1 value as shown by spirometry testing. Listing 3.00E describes the 15 requirements for pulmonary testing, and describes FEV1 as the reported forced expiratory 16 volume. The Listing requires the FEV1 be the largest of at least three satisfactory forced 17 expiratory maneuvers, and that two of the satisfactory spirograms must be reproducible for both 18 pre-bronchodilator and post-bronchodilator tests. To be reproducible, a value must not differ 19 from the largest value by more than 5 percent or 0.1 L, whichever is greater. 20 Listing 3.00E also directs that spirometry testing must be repeated after administration of 21 an aerosolized bronchodilator if the pre-bronchodilator FEV1 value is less than 70 percent of the 22 predicted normal value. This is because “[t]he effect of the administered bronchodilator in 23 relieving bronchospasm and improving ventilatory function is assessed by spirometry,” and the ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS - 6 1 values used in Listing 3.02A “must only be used as criteria for the level of ventilatory 2 impairment that exists during the individual's most stable state of health.” 3 The test results Ms. Coombs submitted to the Appeals Council fail to meet the 4 requirements of the Listings. Ms. Coobs is 63 inches tall. Listing 3.02A defines chronic 5 pulmonary insufficiency for such a person as having an FEV1 value equal to or less than 1.15. 6 Here three pre-bronchodilator FEV1 trials were performed. The trial with the largest result 7 yielded a value of 1.30, which exceeds the 1.15 value required to meet the Listing. There are no 8 post-bronchodilator test results. The testing submitted therefore does not undermine the ALJ’s 9 determination that COPD does meet the Listings. 10 In sum, the ALJ found COPD is a severe impairment and considered the condition in 11 assessing Ms. Coombs’ RFC. Ms. Coombs submitted post hearing spirometry results regarding 12 COPD which the Appeals Council considered and intended to make part of the record. The Court 13 has considered the post hearing evidence, as part of the record. However, as noted above, Ms. 14 Coombs provides no explanation as to why the post-hearing test results undermine the ALJ’s 15 RFC determination. Additionally, the test results show Ms. Coombs’ COPD does not meet the 16 requirements of a Listed Impairment. The ALJ’s step three determination as to COPD is 17 accordingly not undermined. As Ms. Coombs has failed to show the new evidence undermines 18 the ALJ’s decision, the Court rejects her argument that the new evidence compels reversal of the 19 Commissioner’s final decision. 20 B. 21 Ms. Coombs’ Testimony Ms. Coombs argues the ALJ erroneously rejected her testimony. The ALJ did not find 22 malingering and was thus required to give clear and convincing reasons to reject Ms. Coombs’ 23 testimony about the severity of her symptoms. Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS - 7 1 1996). The ALJ found although Ms. Coombs alleged she became disabled beginning October 1, 2 2010, “there is no medical evidence in the record whatsoever until September 29 2012.” Tr. 28. 3 Ms. Coombs does not claim this is untrue but argues the ALJ erred in two ways. First she argues 4 the fact there are no medical records pre-dating 2012 does not show she was not disabled at some 5 later point. Dkt. 13 at 10. The argument is evasive and does not address the essence of the ALJ’s 6 rationale: Ms. Coombs’ claim that she became disabled in 2010 is inconsistent with the absence 7 of any medical records establishing a severe impairment for that time period. Indeed, disability is 8 defined as the inability to work due to a severe impairment. See 20 C.F.R. § 404.1505(a). If a 9 claimant has no severe impairments, then the claimant is not disabled. The ALJ may consider 10 “ordinary techniques of credibility evaluation.” Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th 11 Cir. 1996). The Court concludes that this is what the ALJ did and affirms the ALJ’s reasoning. 12 Second, Ms. Coombs argues the ALJ erred by failing to inquire why Ms. Coombs did not 13 receive treatment between 2010 and 2012, including whether she could afford treatment. Dkt. 13 14 at 10. The argument fails. The record shows Ms. Coombs and her lawyer were advised the 15 claimant must provide medical evidence showing she has a severe impairment during the time 16 she alleges disability, Tr. 134; that Ms. Coombs’ lawyer informed the ALJ that the record was 17 complete, Tr. 41; and that Ms. Coombs did not submit any medical evidence pre-dating 2012. 18 The record thus contains no ambiguities that the ALJ was obligated to clarify. 19 Additionally the record shows Ms. Coombs had multiple opportunities to explain why 20 she did not submit any medical records for the period of time between 2010 and 2012. She could 21 have raised lack of funds during the hearing before the ALJ, or in her letter brief to the Appeals 22 Council. She did not; in fact, her letter brief does not even challenge the ALJ’s finding that the 23 lack of any medical evidence pre-2012 undermined her testimony. Tr. 267-70. ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS - 8 1 The Court also rejects Ms. Coombs’ argument because it is not based on the record. 2 There is nothing in the record that supports Ms. Coombs’ argument that she did not receive 3 medical treatment before 2012, perhaps for financial reasons. Perhaps she received treatment, 4 perhaps she did not; the record simply does not indicate one way or another. Whether she did not 5 receive treatment is thus guesswork because the record only reveals Ms. Coombs did not submit 6 any medical evidence that predates 2012. In short, Ms. Coombs has the burden of showing 7 harmful error. On the record before the Court, she falls far short of making this showing. 8 9 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 10 any error the ALJ might have committed in relying on other grounds to reject Ms. Coombs’ 11 testimony is harmless. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th 12 Cir. 2008) (including an erroneous reason among other reasons to discount a claimant’s 13 credibility does not negate the validity of the overall credibility determination and is at most 14 harmless error where an ALJ provides other reasons that are supported by substantial evidence). 15 CONCLUSION 16 The Court REVERSES the Commissioner’s final decision and REMANDS the case for 17 further administrative proceedings under sentence four of 42 U.S.C. § 405(g). On remand, the 18 ALJ shall reassess the MVP Physical Therapy opinions of Mr. Loforti, and Ms. Bachel, 19 reconsider the reviewing doctors’ opinions as needed, develop the record, reassess Ms. Coombs’ 20 RFC, and proceed to step five as appropriate. 21 22 23 DATED this 14th day of July, 2017. A BRIAN A. TSUCHIDA United States Magistrate Judge ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS - 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS - 10

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