Granger v. Colvin

Filing 10

ORDER Reversing and Remanding for further Administrative Proceedings, by Judge Robert S. Lasnik. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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RANDY JAMES GRANGER,

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Plaintiff,

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NO. C16-5904RSL

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1

ORDER REVERSING AND
REMANDING FOR FURTHER
ADMINISTRATIVE
PROCEEDINGS

Defendant.

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Plaintiff Randy James Granger appeals the final decision of the Commissioner of the

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Social Security Administration (“Commissioner”), which denied his application for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-33,
after a hearing before an administrative law judge (“ALJ”). For the reasons set forth below, the
Commissioner’s decision is hereby REVERSED and REMANDED.
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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
substituted for Carolyn W. Colvin as defendant in this suit. The Clerk is directed to update the
docket, and all future filings by the parties should reflect this change.

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I.

FACTS AND PROCEDURAL HISTORY

Plaintiff is a 54-year-old man with a tenth-grade education. Administrative Record

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(“AR”) at 159, 164. His past work experience was as a truck driver. AR at 164. Plaintiff was

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last gainfully employed in September of 2012. AR at 163.

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Plaintiff protectively filed an application for DIB on April 24, 2013. AR at 19. Plaintiff
asserted that he was disabled due to bipolar disorder, depression, and diabetes. AR at 163.
The Commissioner denied plaintiff’s claim initially and on reconsideration. AR at 19.

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Plaintiff requested a hearing, which took place on April 15, 2015. Id. On April 17, 2015, the

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ALJ issued a decision finding that plaintiff was not disabled based on his finding that plaintiff

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could perform specific jobs existing in significant numbers in the national economy. AR at

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19-29. Plaintiff’s request for review by the Appeals Council was denied on August 30, 2016

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(AR at 1-6), making the ALJ’s ruling the “final decision” of the Commissioner as that term is

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defined by 42 U.S.C. § 405(g). On October 27, 2016, plaintiff timely filed the present action

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challenging the Commissioner’s decision. Dkt. No. 1.

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II.

STANDARD OF REVIEW

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

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social security benefits when the ALJ’s findings are based on legal error or not supported by

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substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th

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Cir. 2005). “Substantial evidence” is more than a scintilla, less than a preponderance, and is

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such 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); Magallanes v. Bowen, 881 F.2d 747, 750

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(9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in

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medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala,

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53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a

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whole, it may neither reweigh the evidence nor substitute its judgment for that of the

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Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is

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susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that

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must be upheld. Id.
III.

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EVALUATING DISABILITY

As the claimant, Mr. Granger bears the burden of proving that he is disabled within the

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meaning of the Social Security Act (the “Act”). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.

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1999). The Act defines disability as the “inability to engage in any substantial gainful activity”

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due to a physical or mental impairment which has lasted, or is expected to last, for a

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continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). A claimant is disabled

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under the Act only if his impairments are of such severity that he is unable to do his previous

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work, and cannot, considering his age, education, and work experience, engage in any other

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substantial gainful activity existing in the national economy. 42 U.S.C. § 423(d)(2)(A); see

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also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The Commissioner has established a five-step sequential evaluation process for

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determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R.

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§ 404.1520. The claimant bears the burden of proof during steps one through four. At step

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five, the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step

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in the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks

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whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R.

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§ 404.1520(b). 2 If he is, disability benefits are denied. If he is not, the Commissioner proceeds

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to step two. At step two, the claimant must establish that he has one or more medically severe

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impairments, or combination of impairments, that limit his physical or mental ability to do

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basic work activities. If the claimant does not have such impairments, he is not disabled. 20

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C.F.R. § 404.1520(c). If the claimant does have a severe impairment, the Commissioner moves

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to step three to determine whether the impairment meets or equals any of the listed

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impairments described in the regulations. 20 C.F.R. § 404.1520(d). A claimant whose

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impairment meets or equals one of the listings for the required 12-month duration requirement

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is disabled. Id.

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When the claimant’s impairment neither meets nor equals one of the impairments listed

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in the regulations, the Commissioner must proceed to step four and evaluate the claimant’s

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residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). Here, the Commissioner

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evaluates the physical and mental demands of the claimant’s past relevant work to determine

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whether he can still perform that work. 20 C.F.R. § 404.1520(f). If the claimant is able to

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perform his past relevant work, he is not disabled; if the opposite is true, then the burden shifts

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to the Commissioner at step five to show that the claimant can perform other work that exists

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in significant numbers in the national economy, taking into consideration the claimant’s RFC,

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age, education, and work experience. 20 C.F.R. § 404.1520(g); Tackett, 180 F.3d at 1099,

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1100. If the Commissioner finds the claimant is unable to perform other work, then the

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claimant is found disabled and benefits may be awarded.

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Substantial gainful activity is work activity that is both substantial, i.e., involves
significant physical and/or mental activities, and gainful, i.e., performed for profit. 20 C.F.R.
§ 404.1572.

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IV.

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DECISION BELOW

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On April 17, 2015, the ALJ issued a decision finding the following:

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The claimant has not engaged in substantial gainful activity since
September 28, 2012, the alleged onset date (20 C.F.R. §§ 404.1571 et
seq.).

2.

The claimant has the following severe impairments: bipolar disorder
and anxiety (20 C.F.R. § 404.1520(c)).

3.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20
C.F.R. §§ 404.1520(d), 404.1525, 404.1526).

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The claimant has the residual functional capacity to perform a full
range of work at all exertional levels. He can perform simple, routine
and repetitive tasks. He should not have public contact. He can have
occasional coworker contact. He can perform work that does not
require satisfaction of production quotas or involve assembly-line
pace.

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The claimant is unable to perform any past relevant work (20 C.F.R.
§ 404.1565).

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Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
C.F.R. §§ 404.1560(c) and 404.1566).

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The claimant has not been under a disability, as defined in the Social
Security Act, from September 28, 2012, through the date of the
decision (20 C.F.R. § 404.1520(g)).

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AR at 19-29.
V.

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ISSUES ON APPEAL

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The issues on appeal are:

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A.

Whether the ALJ erred in evaluating the medical evidence in the record.

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B.

Whether the ALJ erred in evaluating the lay witness testimony in the record.

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C.

Whether the ALJ erred in evaluating plaintiff’s testimony.

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Dkt. 7 at 1.
VI.

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DISCUSSION

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A.

Medical Evidence

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Plaintiff argues that the ALJ erred in his evaluation of the medical evidence,

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specifically by failing to give a specific and legitimate reason supported by substantial

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evidence to discount the opinion of treating physician Kim Stoneking, M.D. See Dkt. 7 at 3-6.

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The Court agrees.

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

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Where the medical evidence in the record is not conclusive, “questions of credibility and

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resolution of conflicts” are solely the functions of the ALJ. Sample v. Schweiker, 694 F.2d

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639, 642 (9th Cir. 1982). In such cases, “the ALJ’s conclusion must be upheld.” Morgan v.

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Comm’r, Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). Determining whether

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inconsistencies in the medical evidence “are material (or are in fact inconsistencies at all) and

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whether certain factors are relevant to discount” the opinions of medical experts “falls within

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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

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

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evidence, stating his interpretation thereof, and making findings.” Id. The ALJ must provide

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“clear and convincing” reasons for rejecting the uncontradicted opinion of a treating physician.

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Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Even when a treating physician’s opinion is

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contradicted, that opinion “can only be rejected for specific and legitimate reasons that are

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supported by substantial evidence in the record.” Id. at 830-31. In general, more weight is

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given to a treating physician’s opinion than to the opinions of those who do not treat the

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claimant. Id. at 830.

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Here, treating physician Dr. Stoneking completed two medical source assessments of

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plaintiff, one in September of 2013 and one in April of 2015, in which he opined that plaintiff

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would have noticeable difficulty for more than 20 percent of the workday or workweek

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performing several cognitive and social workplace functions. See AR at 297-98, 379-80. Dr.

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Stoneking opined that plaintiff would be impaired to that degree when having a manic episode,

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which Dr. Stoneking said can flare up at any time, even when plaintiff is on medication. See id.

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The ALJ gave Dr. Stoneking’s assessments little weight because:
they are conclusory, providing very little explanation of the evidence relied
on in forming that opinion. Furthermore, the doctor is a physician and his
opinion rests on an assessment of an impairment (i.e., bipolar disorder) outside
the doctor’s area of expertise. In addition, the opinion is inconsistent with the
clinical findings and opinion of Dr. Aleshire.

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AR at 27 (internal citations omitted). 3 None of these reasons is specific, legitimate, and

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supported by substantial evidence.

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First, substantial evidence does not support the ALJ’s finding that Dr. Stoneking

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provided little explanation for his opinion. While Dr. Stoneking’s medical source assessment

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forms did not contain explanation for the functional limitations to which he opined, the record

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also contains Dr. Stoneking’s progress notes and lab reports from years of treating plaintiff.

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See AR at 261-82, 346-78. These reports contain clinical findings and test results that describe

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The ALJ also discounted Dr. Stoneking’s opinion that plaintiff was unable to work
because whether a claimant is disabled is a legal conclusion reserved for the Commissioner.
See AR at 27. While this reason is sufficient to discount Dr. Stoneking’s ultimate opinion
regarding whether plaintiff can work, it is not applicable to the specific workplace limitations
to which Dr. Stoneking opined.

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the uncertainty of plaintiff’s manic episodes and the symptoms he experiences during the

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episodes, providing a detailed explanation for Dr. Stoneking’s assessments of plaintiff’s

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functional limitations. See id.
Next, the ALJ found that Dr. Stoneking’s opinion was outside his area of expertise, a

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finding that the Commissioner concedes is not a sufficient basis for discounting Dr.

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Stoneking’s opinion in this case. See Dkt. 8 at 6.

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Finally, the ALJ found that Dr. Stoneking’s opinion was inconsistent with the clinical

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findings and opinion of an examining physician. See AR at 27. That Dr. Stoneking’s opinion

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was inconsistent with another opinion is what triggers the need for a specific and legitimate

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reason to discount Dr. Stoneking’s opinion; the inconsistency itself is not a sufficient reason.

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See Lester, 81 F.3d at 830-31. Furthermore, any inconsistency between Dr. Stoneking’s

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opinion and the examining physician’s clinical findings is explained by Dr. Stoneking’s

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qualification that his opinion applies to plaintiff’s abilities during a manic episode. See AR at

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298. According to the Commissioner’s regulations, “we give more weight to opinions from

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your treating sources, since these sources are likely to be the medical professionals most able

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to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a

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unique perspective to the medical evidence that cannot be obtained from the objective medical

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findings alone or from reports of individual examinations, such as consultative examinations or

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brief hospitalizations.” See 20 C.F.R. § 404.1527(d)(2). Therefore, inconsistent clinical

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findings in a one-time consultative examination are not a legitimate reason to discount

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plaintiff’s treating physician’s opinion here. The ALJ erred by failing to provide a specific and

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legitimate reason supported by substantial evidence to discount Dr. Stoneking’s opinion.

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“[H]armless error principles apply in the Social Security context.” Molina v. Astrue,

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674 F.3d 1104, 1115 (9th Cir. 2012). An error is harmless, however, only if it is not prejudicial

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to the claimant or “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout

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v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see Molina, 674 F.3d at

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1115. The determination as to whether an error is harmless requires a “case-specific

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application of judgment” by the reviewing court, based on an examination of the record made

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“‘without regard to errors’ that do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d

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at 1118-19 (quoting Shinseki v. Sanders, 556 U.S. 396, 407 (2009)). Had the ALJ fully

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incorporated Dr. Stoneking’s opinion, the RFC would have included additional limitations, as

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would the hypothetical questions posed to the vocational expert. Therefore, the ALJ’s error

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affected the ultimate disability determination and is not harmless.

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B.

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Plaintiff argues that the ALJ erred in evaluating the lay witness testimony of plaintiff’s

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Lay Witness Testimony

wife, Tara Granger. See Dkt. 7 at 6-8. The Court agrees.
Lay testimony regarding a claimant’s symptoms “is competent evidence that an ALJ

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must take into account,” unless the ALJ “expressly determines to disregard such testimony and

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gives reasons germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th

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Cir. 2001). The ALJ also may “draw inferences logically flowing from the evidence.” Sample,

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694 F.2d at 642.

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Here, the ALJ rejected Ms. Granger’s testimony because the medical evidence did not

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support greater limitations than those in the RFC. See AR at 27. An ALJ may discount lay

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testimony if it conflicts with the medical evidence. See Lewis, 236 F.3d at 511. However, the

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Ninth Circuit more recently found that a claimant’s wife’s testimony could not be discredited

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“as not supported by medical evidence in the record.” See Bruce v. Astrue, 557 F.3d 1113,

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1116 (9th Cir. 2009). In so holding, the Ninth Circuit relied on its prior decision in Smolen v.

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Chater, 80 F.3d 1273 (9th Cir. 1996), which held that the ALJ improperly rejected the

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testimony of the claimant’s family on the basis that medical records did not corroborate the

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claimant’s symptoms, because in so doing, the ALJ violated the Commissioner’s directive “to

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consider the testimony of lay witnesses where the claimant’s alleged symptoms are

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unsupported by her medical records.” Bruce, 557 F.3d at 1116 (citing Smolen, 80 F.3d at

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1289) (emphasis in original). Therefore, the ALJ here likewise erred in evaluating Ms.

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Granger’s testimony.

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C.

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Plaintiff argues that the ALJ erred by discounting plaintiff’s subjective complaints. See

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Plaintiff’s Testimony

Dkt. 7 at 8-11. The Court disagrees.
Questions of credibility are solely within the control of the ALJ. See Sample, 694 F.2d

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at 642. The Court should not “second-guess” this credibility determination. Allen v. Heckler,

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749 F.2d 577, 580 (9th Cir. 1984). In addition, the Court may not reverse a credibility

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determination where that determination is based on contradictory or ambiguous evidence. See

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id. at 579. To reject a claimant’s subjective complaints, the ALJ must provide “specific, cogent

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reasons for the disbelief.” Lester, 81 F.3d at 834 (citation omitted). The ALJ “must identify

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what testimony is not credible and what evidence undermines the claimant’s complaints.” Id.;

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see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless affirmative evidence

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shows the claimant is malingering, the ALJ’s reasons for rejecting the claimant’s testimony

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must be “clear and convincing.” Lester, 81 F.2d at 834. That some of the reasons for

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discrediting a claimant’s testimony should properly be discounted does not render the ALJ’s

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determination invalid, as long as that determination is supported by substantial evidence. See

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Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001).

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Here, the ALJ discounted plaintiff’s subjective complaints because, among other

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reasons, plaintiff’s activities were inconsistent with the severity of his complaints. See AR at

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26. The Ninth Circuit has recognized that an ALJ may use a claimant’s activities to form the

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basis of an adverse credibility determination if they “contradict his other testimony.” Orn v.

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Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Plaintiff alleged that “any kind of stress” would

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cause severe manic episodes. See AR at 201. He stated that his impairments affected his

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memory, understanding, concentration, and ability to follow instructions at all times. See AR at

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206. He also testified that he had trouble getting along with others and spending time in

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crowds. See AR at 45-46. The ALJ found these allegations inconsistent with reports that

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plaintiff cared for his children and pets, performed house and yard work, shopped and handled

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funds, worked on a computer, worked on cars, went out to lunch with his wife, and visited the

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beach and the fair. See AR at 202-05, 285, 287. Therefore, the ALJ provided a clear and

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convincing reason supported by substantial evidence to discount plaintiff’s subjective

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complaints.

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D.

Scope of Remand

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

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award benefits.” Smolen, 80 F.3d at 1292. Generally, when the Court reverses an ALJ’s

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decision, “the proper course, except in rare circumstances, is to remand to the agency for

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

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

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the claimant is unable to perform gainful employment in the national economy,” that “remand

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for an immediate award of benefits is appropriate.” Id.
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

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

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where:
(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.

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Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir.

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2002). Here, issues still remain regarding conflicts in the evidence about plaintiff’s functional

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capabilities and his ability to perform other jobs existing in significant numbers in the national

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economy despite any additional limitations. Accordingly, remand for further consideration is

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warranted in this matter.
VII.

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CONCLUSION

For the foregoing reasons, the Court finds that the ALJ erred in evaluating the medical

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evidence and the lay witness testimony in the record. The decision of the Commissioner is

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REVERSED, and this matter is REMANDED for further proceedings not inconsistent with this

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Order.

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Dated this 3rd day of April, 2017.

A
Robert S. Lasnik
United States District Judge

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