Price v. Berryhill

Filing 16


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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 MARILYN L. PRICE, 8 Plaintiff, 9 v. 10 11 12 NANCY A. BERRYHILL, Acting Commissioner of Social Security, CASE NO. 17-5149-BAT ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS Defendant. 13 Marilyn L. Price appeals the ALJ’s May 29, 2015, decision finding her not disabled. The 14 ALJ found chronic fatigue syndrome, depressive disorder and adjustment disorder with anxious 15 mood are severe impairments; Ms. Price can perform less than the full range of light work with 16 additional mental and environmental limitations; and that she cannot perform past relevant work 17 but can perform other work in the national economy. Tr. 25-37. 18 Ms. Price contends the ALJ misevaluated the medical evidence, her testimony and the 19 lay testimony. She also contends the evidence she submitted to the Appeals Council undermines 20 the ALJ’s disability determination. As relief, she asks the Court to reverse and remand the case 21 for further proceedings. Dkt. 13 at 1, 18. For the reasons below, the Court REVERSES the 22 Commissioner’s final decision and REMANDS the matter for further administrative proceedings 23 under sentence four of 42 U.S.C. § 405(g). ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS - 1 DISCUSSION 1 2 3 A. Evidence Presented to the Appeals Council After the ALJ issued the decision finding Ms. Price not disabled, Ms. Price requested 4 review in the Appeals Council. Tr. 8. In support of her request, she submitted a number of 5 medical records including a psychological evaluation performed on September 17, 2015, by 6 Kimberly Wheeler, Ph.D. Tr. 2. The Appeals Council made all of Ms. Price’s post-hearing 7 medical submissions part of the record except for Dr. Wheeler’s evaluation. Id. Ms. Price argues 8 the Appeals Council should have made Dr. Wheeler’s evaluation part of the record; she also 9 argues Dr. Wheeler’s evaluation undermines the ALJ’s determination that she is not disabled. 10 11 Dkt. 13 at 8-10. As to Ms. Price’s first argument, the Commissioner contends Dr. Wheeler’s evaluation is 12 not part of the record and therefore the Court cannot consider it. Citing to Brewes v. Comm’r of 13 Social Sec. Admin., 682 F3d 1157 (9th Cir. 2011), the Commissioner contends “the 14 administrative record includes evidence the Appeals Council considered.” Dkt. 14 at 6. In 15 support of this contention, the Commissioner argues under 20 C.F.R. §§ 404.970(b), 16 416.1470(b), the Appeals Council only “considers” evidence that relates to the period on or 17 before the date of the administrative hearing. Id. The Commissioner contends because the 18 Appeals Council stated Dr. Wheeler’s evaluation “is about a later time,” and “does not affect the 19 decision about whether you were disabled beginning on or before May 29, 2015,” the Appeals 20 Council did not “consider” the evaluation. Id. (referring to Tr. 2). 21 The argument fails. The Appeals Council may deny a party’s request for review or it 22 may decide to review a case. 20 C.F.R. §§ 404.967, 416.1467. Here, the Appeals Council denied 23 review. Tr. 1. The regulations the Commissioner relies upon―20 C.F.R. §§ 404.970(b) and ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS - 2 1 416.1470(b)― are titled “Cases the Appeals Council will review.” The title and plain language 2 of both sections make clear that these sections regard only the circumstances under which the 3 Appeals Council will, i.e., is required to, review a case. Id. But neither section applies to this 4 case, a case in which the Appeals Council received new evidence and denied review. 5 The Commissioner’s interpretation of “considered” is also inconsistent with the 6 regulatory scheme for requesting review. A claimant is entitled to file a written request for 7 Appeals Council review. 20 C.F.R. §§ 404.968(a), 416.1468. The regulations further state “[a]ny 8 documents or other evidence you wished to have considered by the Appeals Council should be 9 submitted with your request for review.” Id. (emphasis added). The regulations thus clearly 10 indicate the Appeals Council will consider evidence the claimant submits in support of a written 11 request for Appeals Council review. 12 Here, in denying review, the Appeals Council stated it “looked at” all of the medical 13 records Ms. Price submitted including Dr. Wheeler’s evaluation. Tr. 2. The record thus 14 establishes the Appeals Council “considered” all of this evidence, a conclusion supported by its 15 determination that Dr. Wheeler’s evaluation is “information about a later time.” The record 16 accordingly belies the Commissioner’s claim that the Appeals Council did not “consider” Dr. 17 Wheeler’s evaluation. 18 The Commissioner also argues the Court may not consider evidence the Appeals Council 19 “excludes” or does not make part of the administrative record. Dkt. 14 at 6. The Commissioner 20 argues under 42 U.S.C. § 405(g) the Commissioner has the sole authority to create and certify 21 the administrative record. Section 405(g) states “[a]s part of the Commissioner’s answer, the 22 Commissioner of Social Security shall file a certified copy of the transcript of the record.” This 23 section only directs the Commissioner to submit the complete administrative record, and to ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS - 3 1 certify that it is complete and accurate. But it contains nothing indicating the Commissioner can 2 pick and choose what evidence presented to the ALJ or Appeals Council makes it into the record 3 as the Commissioner implies. 4 In short, nether the law nor the record support the Commissioner’s contentions that Dr. 5 Wheeler’s evaluation is not part of the administrative record because the Appeals Council did not 6 “consider” it, and because § 405(g) grants the Commissioner carte blanche to pick and choose 7 what evidence makes it into the record. The record clearly establishes Dr. Wheeler’s evaluation 8 was submitted and considered by the Appeals Council in denying review. Because the Appeals 9 Council considered the evaluation, the Court may also consider it. Lingenfelter v. Astrue, 504 10 F.3d 1028, 1030 n. 2 (9th Cir. 2007). See also Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir. 11 2000) (“We properly may consider the additional materials because the Appeals Council 12 addressed them in the context of denying Appellant's request for review.”).” 13 As the Court may consider, Dr. Wheeler’s evaluation, the Court turns to Ms. Price’s 14 second argument: that the Court should remand the case because the evaluation undermines the 15 ALJ’s disability determination. The Commissioner does not analyze whether Dr. Wheeler’s 16 evaluation undermines the ALJ’s disability determination. Dkt. 14 at 4-5. Although the 17 Commissioner’s lack of discussion amounts to a concession, the Court has reviewed Dr. 18 Wheeler’s evaluation and concludes the ALJ’s disability determination is not supported by 19 substantial evidence. 20 Dr. Wheeler performed a Department of Social and Health Services psychological 21 examination about four months after the ALJ issued her decision. Dkt. 13 (Appendix 1). The 22 doctor diagnosed Ms. Wheeler with depression and generalized anxiety. These are not new 23 disorders that popped up after the ALJ issued her decision, but are disorders that are consistent ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS - 4 1 with the ALJ's determination that depressive disorder and adjustment disorder with anxious 2 mood are severe impairments. Dr. Wheeler’s clinical interview also indicates the doctor 3 evaluation was not a snap-shot limited only to the date of the evaluation. Rather Dr. Wheeler, 4 outlined Ms. Price’s history from childhood and how she began having problems starting in 5 2009. Dr. Wheeler opined Ms. Price was markedly limited in her ability to adapt to changes in a 6 routine work setting; communicate and perform effectively in a work setting; and complete a 7 normal work day and work week without interruptions from psychologically based symptoms. 8 Id. at 3. The doctor also opined Ms. Price was moderately limited in her ability to understand, 9 remember, and persist in tasks following very short and simple instructions; perform activities 10 within a schedule, and maintain regular attendance; learn new task; and maintain appropriate 11 behavior in the work setting. Id. As the ALJ’s RFC determination does not account for these 12 limitations, the ALJ’s disability determination is not supported by substantial evidence, and the 13 matter must be remanded for further proceedings. 14 B. Medical Evidence 15 Ms. Price’s opening brief lists, seriatim, notations made by 19 medical sources. Dkt. 13 16 2-8. Ms. Price claims the medical evidence is consistent with her testimony and confirms there 17 is an objective basis for her limitations. Id. at 8. The Court rejects this sweeping and conclusory 18 statement. Ms. Price cannot merely make a statement and leave the Court to do counsel’s work— 19 framing the argument, and putting flesh on its bones through a discussion of the applicable law 20 and facts. See Ve Thi Nguyen v. Colvin, No. C13-882 RAJ-BAT, 2014 WL 1871054 at * 2 (W.D. 21 Wash., May 8, 2014) (unpublished) citing Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 22 2005) (rejecting out of hand conclusory assertion that ALJ failed to consider whether claimant 23 met Listings because claimant provided no analysis of relevant law or facts regarding Listings); ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS - 5 1 Perez v. Barnhart, 415 F.3d 457, 462 n. 4 (5th Cir. 2005) (argument waived by inadequate 2 briefing); Murrell v. Shalala, 43 F.3d 1388, 1389 n. 2 (10th Cir. 1994) (perfunctory complaint 3 fails to frame and develop issue sufficiently to invoke appellate review). 4 Although Ms. Price has waived argument on most of the 19 medical sources she listed in 5 her opening brief, the Court notes she presented some argument regarding the ALJ’s assessment 6 of the opinions of W. Daniel Davenport, M.D., Kathleen Mayers, Ph.D., Patricia Geist, and Leah 7 Uy, M.D. Argument thus is not waived as to these sources. These sources all rendered opinions 8 touching on Ms. Price’s mental health limitations. Because the ALJ must reassess Ms. Price’s 9 mental limitations, on remand, based upon the impact of Dr. Wheeler’s new opinion and any 10 further development of the record the ALJ must necessarily reassess these sources’ opinions. 11 C. 12 Ms. Price’s Testimony The ALJ did not find Ms. Price was malingering and therefore must provide specific, 13 clear and convincing reasons to reject her testimony. Smolen v. Chater, 80 F.3d 1273, 1283-84 14 (9th Cir. 1996). The Commissioner argues and the Court agrees the ALJ gave at least one valid 15 reason to discount Ms. Price’s testimony: that Ms. Price’s testimony is inconsistent with the 16 medical evidence. Tr. 29-33. The ALJ detailed a number of inconsistencies that Ms. Price does 17 not specifically refute. Dkt 13 at 12. At most Ms. Price listed selected portions of the medical 18 evidence, as noted above. But she makes no effort in her opening brief to articulate how or why 19 the ALJ’s finding that the medical evidence contradicts her testimony is not supported by 20 substantial evidence. The Court reviews whether the ALJ’s decision contains legal errors or is 21 not supported by substantial evidence, not the claimant’s views of the evidence. 22 In her reply, Ms. Price contends the medical evidence does not contradict her testimony. 23 Ms. Price argues the ALJ erred in relying on Dr. Davenport’s opinion that she had no limitation ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS - 6 1 in her standing, walking or sitting capacities. Dkt. 15 at 6. Ms. Price argues this is an opinion not 2 a finding, and therefore not something that contradicts her testimony. The Court rejects this 3 distinction. The ALJ may consider “ordinary techniques of credibility evaluation” including 4 inconsistencies between the claimant’s testimony and testimony from doctors concerning the 5 nature, severity, and effect of the symptoms of which claimant complains. Smolen v. Chater, 80 6 F.3d 1273, 1284 (9th Cir. 1996). The ALJ appropriately relied upon the inconsistencies between 7 Dr. Davenport’s opinions about Ms. Price’s limitations and Ms. Price’s testimony about the 8 severity of her limitations. The Court accordingly affirms the ALJ’s determination regarding Ms. 9 Price’s testimony. 10 11 12 13 D. Lay Testimony Ms. Price contends the ALJ misevaluated the lay testimony of Donna Heitzman, Donna Huntting, and L. Jackson, a SSA interviewer. Dkt. 13 at 14-16. Ms. Price argues the ALJ erred in failing to discuss Ms. Jackson’s comment that Ms. 14 Price looked very tired during an interview, and appeared to have a loss of energy. Dkt. 13 at 14. 15 The ALJ errs if he or she does not explain why significant, probative evidence is rejected. 16 Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). The ALJ did not mention Ms. Jackson. 17 However, Ms. Price fails show how this amounts to harmful error. Ms. Jackson provided a one- 18 time observation but little in the way of the degree of Ms. Price’s functional limitations, and 19 whether she was capable of performing work. Ms. Price does not articulate how the ALJ’s failure 20 to comment on Ms. Jackson’s comment results in a harmful omission of a functional limitation 21 bearing on her RFC. She thus fails to show the ALJ harmfully erred and the Court rejects her 22 contention. 23 ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS - 7 1 As to Ms. Heitzman and Ms. Huntting, the ALJ found their testimony largely reiterated 2 Ms. Price’s testimony about her limitations. Tr. 29. The ALJ rejected these witnesses’ testimony 3 finding their statements, like Ms. Price’s, is inconsistent with the medical evidence. Tr. 35. 4 Where lay witness testimony does not describe any limitations not already described by the 5 claimant, and the ALJ’s well-supported reasons for rejecting the claimant’s testimony apply 6 equally well to the lay witness testimony. See Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012). 7 As discussed above, the ALJ properly discounted Ms. Price’s testimony as inconsistent with the 8 medical evidence. The ALJ accordingly did not err in rejecting Ms. Heitzman’s and Ms. 9 Huntting’s testimony. CONCLUSION 10 11 The Courts REVERSES the Commissioner’s final decision and REMANDS the case for 12 further administrative proceedings under sentence four of 42 U.S.C. § 405(g). On remand, the 13 ALJ shall assess Dr. Wheeler’s evaluation; develop the record as needed; and reassess the 14 opinions of W. Daniel Davenport, M.D., Kathleen Mayers, Ph.D., Patricia Geist, and Leah Uy, 15 M.D. in light of Dr. Wheeler’s evaluation and record development. The assessment of these 16 opinions and potential development of the record may make it appropriate for the ALJ to 17 reassess the lay testimony and Ms. Price’s testimony. As appropriate the ALJ shall reassess Ms. 18 Price’s RFC and proceed to step five. 19 20 21 22 DATED this 18th day of October, 2017. A BRIAN A. TSUCHIDA United States Magistrate Judge 23 ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS - 8 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 THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS - 9

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