Price v. Berryhill

Filing 16

ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS by Hon. Brian A Tsuchida. (KMP)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARILYN L. PRICE,
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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

CASE NO. 17-5149-BAT
ORDER REVERSING THE
COMMISSIONER AND REMANDING
FOR FURTHER PROCEEDINGS

Defendant.

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Marilyn L. Price appeals the ALJ’s May 29, 2015, decision finding her not disabled. The

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ALJ found chronic fatigue syndrome, depressive disorder and adjustment disorder with anxious

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mood are severe impairments; Ms. Price can perform less than the full range of light work with

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additional mental and environmental limitations; and that she cannot perform past relevant work

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but can perform other work in the national economy. Tr. 25-37.

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Ms. Price contends the ALJ misevaluated the medical evidence, her testimony and the

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lay testimony. She also contends the evidence she submitted to the Appeals Council undermines

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the ALJ’s disability determination. As relief, she asks the Court to reverse and remand the case

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for further proceedings. Dkt. 13 at 1, 18. For the reasons below, the Court REVERSES the

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Commissioner’s final decision and REMANDS the matter for further administrative proceedings

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under sentence four of 42 U.S.C. § 405(g).

ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER
PROCEEDINGS - 1

DISCUSSION

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A.

Evidence Presented to the Appeals Council
After the ALJ issued the decision finding Ms. Price not disabled, Ms. Price requested

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review in the Appeals Council. Tr. 8. In support of her request, she submitted a number of

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medical records including a psychological evaluation performed on September 17, 2015, by

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Kimberly Wheeler, Ph.D. Tr. 2. The Appeals Council made all of Ms. Price’s post-hearing

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medical submissions part of the record except for Dr. Wheeler’s evaluation. Id. Ms. Price argues

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the Appeals Council should have made Dr. Wheeler’s evaluation part of the record; she also

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argues Dr. Wheeler’s evaluation undermines the ALJ’s determination that she is not disabled.

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Dkt. 13 at 8-10.
As to Ms. Price’s first argument, the Commissioner contends Dr. Wheeler’s evaluation is

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not part of the record and therefore the Court cannot consider it. Citing to Brewes v. Comm’r of

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Social Sec. Admin., 682 F3d 1157 (9th Cir. 2011), the Commissioner contends “the

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administrative record includes evidence the Appeals Council considered.” Dkt. 14 at 6. In

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support of this contention, the Commissioner argues under 20 C.F.R. §§ 404.970(b),

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416.1470(b), the Appeals Council only “considers” evidence that relates to the period on or

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before the date of the administrative hearing. Id. The Commissioner contends because the

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Appeals Council stated Dr. Wheeler’s evaluation “is about a later time,” and “does not affect the

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decision about whether you were disabled beginning on or before May 29, 2015,” the Appeals

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Council did not “consider” the evaluation. Id. (referring to Tr. 2).

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The argument fails. The Appeals Council may deny a party’s request for review or it

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may decide to review a case. 20 C.F.R. §§ 404.967, 416.1467. Here, the Appeals Council denied

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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
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416.1470(b)― are titled “Cases the Appeals Council will review.” The title and plain language

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of both sections make clear that these sections regard only the circumstances under which the

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Appeals Council will, i.e., is required to, review a case. Id. But neither section applies to this

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case, a case in which the Appeals Council received new evidence and denied review.

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The Commissioner’s interpretation of “considered” is also inconsistent with the

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regulatory scheme for requesting review. A claimant is entitled to file a written request for

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Appeals Council review. 20 C.F.R. §§ 404.968(a), 416.1468. The regulations further state “[a]ny

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documents or other evidence you wished to have considered by the Appeals Council should be

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submitted with your request for review.” Id. (emphasis added). The regulations thus clearly

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indicate the Appeals Council will consider evidence the claimant submits in support of a written

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request for Appeals Council review.

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Here, in denying review, the Appeals Council stated it “looked at” all of the medical

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records Ms. Price submitted including Dr. Wheeler’s evaluation. Tr. 2. The record thus

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establishes the Appeals Council “considered” all of this evidence, a conclusion supported by its

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determination that Dr. Wheeler’s evaluation is “information about a later time.” The record

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accordingly belies the Commissioner’s claim that the Appeals Council did not “consider” Dr.

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Wheeler’s evaluation.

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The Commissioner also argues the Court may not consider evidence the Appeals Council

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“excludes” or does not make part of the administrative record. Dkt. 14 at 6. The Commissioner

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argues under 42 U.S.C. § 405(g) the Commissioner has the sole authority to create and certify

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the administrative record. Section 405(g) states “[a]s part of the Commissioner’s answer, the

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Commissioner of Social Security shall file a certified copy of the transcript of the record.” This

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section only directs the Commissioner to submit the complete administrative record, and to

ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER
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certify that it is complete and accurate. But it contains nothing indicating the Commissioner can

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pick and choose what evidence presented to the ALJ or Appeals Council makes it into the record

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as the Commissioner implies.

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In short, nether the law nor the record support the Commissioner’s contentions that Dr.

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Wheeler’s evaluation is not part of the administrative record because the Appeals Council did not

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“consider” it, and because § 405(g) grants the Commissioner carte blanche to pick and choose

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what evidence makes it into the record. The record clearly establishes Dr. Wheeler’s evaluation

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was submitted and considered by the Appeals Council in denying review. Because the Appeals

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Council considered the evaluation, the Court may also consider it. Lingenfelter v. Astrue, 504

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F.3d 1028, 1030 n. 2 (9th Cir. 2007). See also Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir.

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2000) (“We properly may consider the additional materials because the Appeals Council

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addressed them in the context of denying Appellant's request for review.”).”

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As the Court may consider, Dr. Wheeler’s evaluation, the Court turns to Ms. Price’s

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second argument: that the Court should remand the case because the evaluation undermines the

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ALJ’s disability determination. The Commissioner does not analyze whether Dr. Wheeler’s

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evaluation undermines the ALJ’s disability determination. Dkt. 14 at 4-5. Although the

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Commissioner’s lack of discussion amounts to a concession, the Court has reviewed Dr.

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Wheeler’s evaluation and concludes the ALJ’s disability determination is not supported by

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substantial evidence.

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Dr. Wheeler performed a Department of Social and Health Services psychological

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examination about four months after the ALJ issued her decision. Dkt. 13 (Appendix 1). The

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doctor diagnosed Ms. Wheeler with depression and generalized anxiety. These are not new

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disorders that popped up after the ALJ issued her decision, but are disorders that are consistent

ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER
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with the ALJ's determination that depressive disorder and adjustment disorder with anxious

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mood are severe impairments. Dr. Wheeler’s clinical interview also indicates the doctor

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evaluation was not a snap-shot limited only to the date of the evaluation. Rather Dr. Wheeler,

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outlined Ms. Price’s history from childhood and how she began having problems starting in

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2009. Dr. Wheeler opined Ms. Price was markedly limited in her ability to adapt to changes in a

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routine work setting; communicate and perform effectively in a work setting; and complete a

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normal work day and work week without interruptions from psychologically based symptoms.

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Id. at 3. The doctor also opined Ms. Price was moderately limited in her ability to understand,

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remember, and persist in tasks following very short and simple instructions; perform activities

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within a schedule, and maintain regular attendance; learn new task; and maintain appropriate

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behavior in the work setting. Id. As the ALJ’s RFC determination does not account for these

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limitations, the ALJ’s disability determination is not supported by substantial evidence, and the

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matter must be remanded for further proceedings.

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B.

Medical Evidence

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Ms. Price’s opening brief lists, seriatim, notations made by 19 medical sources. Dkt. 13

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2-8. Ms. Price claims the medical evidence is consistent with her testimony and confirms there

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is an objective basis for her limitations. Id. at 8. The Court rejects this sweeping and conclusory

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statement. Ms. Price cannot merely make a statement and leave the Court to do counsel’s work—

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framing the argument, and putting flesh on its bones through a discussion of the applicable law

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and facts. See Ve Thi Nguyen v. Colvin, No. C13-882 RAJ-BAT, 2014 WL 1871054 at * 2 (W.D.

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Wash., May 8, 2014) (unpublished) citing Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir.

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2005) (rejecting out of hand conclusory assertion that ALJ failed to consider whether claimant

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met Listings because claimant provided no analysis of relevant law or facts regarding Listings);

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Perez v. Barnhart, 415 F.3d 457, 462 n. 4 (5th Cir. 2005) (argument waived by inadequate

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briefing); Murrell v. Shalala, 43 F.3d 1388, 1389 n. 2 (10th Cir. 1994) (perfunctory complaint

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fails to frame and develop issue sufficiently to invoke appellate review).

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Although Ms. Price has waived argument on most of the 19 medical sources she listed in

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her opening brief, the Court notes she presented some argument regarding the ALJ’s assessment

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of the opinions of W. Daniel Davenport, M.D., Kathleen Mayers, Ph.D., Patricia Geist, and Leah

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Uy, M.D. Argument thus is not waived as to these sources. These sources all rendered opinions

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touching on Ms. Price’s mental health limitations. Because the ALJ must reassess Ms. Price’s

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mental limitations, on remand, based upon the impact of Dr. Wheeler’s new opinion and any

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further development of the record the ALJ must necessarily reassess these sources’ opinions.

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C.

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Ms. Price’s Testimony
The ALJ did not find Ms. Price was malingering and therefore must provide specific,

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clear and convincing reasons to reject her testimony. Smolen v. Chater, 80 F.3d 1273, 1283-84

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(9th Cir. 1996). The Commissioner argues and the Court agrees the ALJ gave at least one valid

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reason to discount Ms. Price’s testimony: that Ms. Price’s testimony is inconsistent with the

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medical evidence. Tr. 29-33. The ALJ detailed a number of inconsistencies that Ms. Price does

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not specifically refute. Dkt 13 at 12. At most Ms. Price listed selected portions of the medical

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evidence, as noted above. But she makes no effort in her opening brief to articulate how or why

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the ALJ’s finding that the medical evidence contradicts her testimony is not supported by

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substantial evidence. The Court reviews whether the ALJ’s decision contains legal errors or is

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not supported by substantial evidence, not the claimant’s views of the evidence.

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In her reply, Ms. Price contends the medical evidence does not contradict her testimony.

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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
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in her standing, walking or sitting capacities. Dkt. 15 at 6. Ms. Price argues this is an opinion not

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a finding, and therefore not something that contradicts her testimony. The Court rejects this

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distinction. The ALJ may consider “ordinary techniques of credibility evaluation” including

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inconsistencies between the claimant’s testimony and testimony from doctors concerning the

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nature, severity, and effect of the symptoms of which claimant complains. Smolen v. Chater, 80

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F.3d 1273, 1284 (9th Cir. 1996). The ALJ appropriately relied upon the inconsistencies between

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Dr. Davenport’s opinions about Ms. Price’s limitations and Ms. Price’s testimony about the

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severity of her limitations. The Court accordingly affirms the ALJ’s determination regarding Ms.

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Price’s testimony.

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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.

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Price looked very tired during an interview, and appeared to have a loss of energy. Dkt. 13 at 14.

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The ALJ errs if he or she does not explain why significant, probative evidence is rejected.

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Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984). The ALJ did not mention Ms. Jackson.

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However, Ms. Price fails show how this amounts to harmful error. Ms. Jackson provided a one-

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time observation but little in the way of the degree of Ms. Price’s functional limitations, and

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whether she was capable of performing work. Ms. Price does not articulate how the ALJ’s failure

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to comment on Ms. Jackson’s comment results in a harmful omission of a functional limitation

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bearing on her RFC. She thus fails to show the ALJ harmfully erred and the Court rejects her

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contention.

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ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER
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As to Ms. Heitzman and Ms. Huntting, the ALJ found their testimony largely reiterated

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Ms. Price’s testimony about her limitations. Tr. 29. The ALJ rejected these witnesses’ testimony

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finding their statements, like Ms. Price’s, is inconsistent with the medical evidence. Tr. 35.

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Where lay witness testimony does not describe any limitations not already described by the

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claimant, and the ALJ’s well-supported reasons for rejecting the claimant’s testimony apply

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equally well to the lay witness testimony. See Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012).

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As discussed above, the ALJ properly discounted Ms. Price’s testimony as inconsistent with the

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medical evidence. The ALJ accordingly did not err in rejecting Ms. Heitzman’s and Ms.

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Huntting’s testimony.
CONCLUSION

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The Courts 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 assess Dr. Wheeler’s evaluation; develop the record as needed; and reassess the

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opinions of W. Daniel Davenport, M.D., Kathleen Mayers, Ph.D., Patricia Geist, and Leah Uy,

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M.D. in light of Dr. Wheeler’s evaluation and record development. The assessment of these

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opinions and potential development of the record may make it appropriate for the ALJ to

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reassess the lay testimony and Ms. Price’s testimony. As appropriate the ALJ shall reassess Ms.

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Price’s RFC and proceed to step five.

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DATED this 18th day of October, 2017.

A
BRIAN A. TSUCHIDA
United States Magistrate Judge

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ORDER REVERSING THE COMMISSIONER AND REMANDING FOR FURTHER
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