Curl v. Berryhill

Filing 12

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

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JOHN D. CURL,
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Plaintiff,
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v.
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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

CASE NO. 17-5216
ORDER REVERSING THE
COMMISSIONER AND REMANDING
FOR FURTHER PROCEEDINGS

Defendant.

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John D. Curl appeals the ALJ’s decision finding him not disabled. The ALJ found Hairy

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Cell Leukemia is a severe impairment; Mr. Curl has the RFC to perform light work with

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additional limitations; and that he can perform past relevant work as a claims examiner. Tr. 22-

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32. Mr. Curl contends the ALJ erred by misevaluating his testimony and the medical evidence,

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and by failing to find at step two that his mental disorders are severe impairments. Dkt. For the

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reasons below the Court REVERSES the Commissioner’s final decision and REMANDS the

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matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

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DISCUSSION
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Mr. Curl’s Testimony
Mr. Curl first contends the ALJ erred in rejecting his testimony about the severity of his

limitations. Dkt. 9 at 4. The ALJ did not find Mr. Curl was malingering and was therefore

ORDER REVERSING THE COMMISSIONER AND REMANDING FOR
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required to provide clear and convincing reasons to reject his testimony. Smolen v. Chater, 80

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F.3d 1273, 1283-84 (9th Cir. 1996). The ALJ rejected Mr. Curl’s testimony for several reasons,

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at least one of which is valid and supported by substantial evidence. In specific, the ALJ found

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that after Mr. Curl was laid off in 2013, he received unemployment benefits, reporting he was

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ready, able, and willing to perform full-time work during the period he alleged he was disabled.

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The ALJ further found Mr. Curl sought and applied for jobs during this time. Tr. 30. Mr. Curl

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argues the ALJ erred because the ALJ “did not indicate how this calls the claimant’s credibility

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into question,” and the Supreme Court in Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795

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(1999), indicated an individual’s willingness to perform “accommodated work” is not

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determinative of whether an individual is disabled for SSDI purposes. Dkt. 9 at 10.
The law and record do not support Mr. Curl’s argument. The Cleveland decision did not

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address whether the ALJ may consider a claimant’s application for unemployment benefits in

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weighing the claimant’s testimony. The Ninth Circuit has held the ALJ may consider a

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claimant’s application for unemployment benefits during the alleged disability period, in which

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the claimant certified an ongoing search for full-time employment. Jorgensen v. Berryhill, 680

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Fed. Appx. 612, 613 (9th Cir. 2017) citing Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d

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1155, 1161–62 (9th Cir. 2008). Here Mr. Curl testified he received disability benefits

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representing he was applying for full-time work, not part-time or “accommodated” work. Tr. 50.

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Accordingly the Court finds the ALJ’s rationale is supported by substantial evidence.

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The ALJ gave other reasons to reject Mr. Curl’s testimony which need not be discussed.

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Even assuming the other reasons are erroneous, the error would be harmless. This is because the

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ALJ provided at least one valid reason supported by substantial evidence. See Carmickle, 533

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F.3d at 1162.

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B.

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Medical Evidence
Mr. Curl contends the ALJ misevaluated the opinions of examining doctor John Neer,

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Psy.D., and reviewing doctors Michael Brown, Ph.D., and Cynthia Collingwood, Ph.D. Dkt. 9 at

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Dr. Neer opined Mr. Curl could perform simple and repetitive tasks as well as detailed

Dr. Neer

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and complex tasks. Tr. 297. The ALJ accepted this opinion but rejected Dr. Neer’s determination

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that “based on [Mr. Curl’s] report, his fatigue is likely to interfere with his ability to work a full

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shift or long periods of a day.” Tr. 25. The ALJ reasoned the doctor’s determination was based

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upon Mr. Curl’s subjective reports and that Dr. Neer is not a medical doctor and the opinion is

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thus outside the scope of his evaluation. Id. The Commissioner contends the ALJ properly

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rejected Dr. Neer’s opinion because it was based upon the discredited self-reports of Mr. Curl.

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But an ALJ does not provide clear and convincing reasons for rejecting an examining

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doctor’s opinion by questioning the credibility of the applicant’s complaints when the doctor

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does not discredit those complaints and supports her ultimate opinion with her own observations.

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Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). Here, Dr. Neer did not question Mr.

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Curl’s credibility. The doctor stated Mr. Curl’s report of fatigue would interfere with his ability

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to work, but that is not the sole basis for his opinions. Dr. Neer also stated “He does appear to be

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somewhat depressed with low energy and difficulties with concentration and attention.” Tr. 297.

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This is a clinical observation the doctor made of Mr. Curl, and one which the ALJ failed to

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address. This failure is harmful because the ALJ did not provide a reasoned basis to conclude Dr.

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Neel’s opinion is more heavily based on Mr. Curl’s self-reports than on clinical observations. See

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e.g., Ghanim v. Colvin, 763 F3d 1154, 1162 (9th Cir. 2015).

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The ALJ also erred in rejecting Dr. Neer’s opinion as outside the scope of the

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psychological evaluation. Dr. Neer opined Mr. Curl’s current psychiatric issues appear to be

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secondary to his medical condition. Because Mr. Curl’s physical and mental problems are

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intertwined, his limitations flow from their combined impact, and were therefore within the

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scope of the evaluation. The ALJ accordingly erred as matter of law. See Farris v. Barnhart, 147

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Fed. Appx. 638, 639 (9th Cir. 2005) (ALJ erred in rejecting psychologist’s opinion based upon

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the combined impact of back pain and mental impairment which the ALJ found was outside the

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doctor’s expertise.)

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2.

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Drs. Brown and Collingwood

The ALJ rejected the opinions of Drs. Brown and Collingwood that Mr. Curl was

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moderately limited in his ability to maintain attention and concentration for extended periods;

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perform work within a schedule, maintain attendance and be punctual; and that he can maintain

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attention for 2 hours. Tr. 25, 84, 85. The ALJ rejected these opinions for the same reason he

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rejected Dr. Neer’s opinion: that they do not reflect limitations arising from mental impairment.

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As discussed above the ALJ erred in rejecting Dr. Neer’s opinion. The ALJ accordingly similarly

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erred in rejecting the Drs. Brown’s and Collingwoods’s opinions.

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D.

Step Two Determination

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Mr. Curl argues, and the Court agrees, the ALJ harmfully erred by failing to find

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depression is a severe impairment. Dr. Neer diagnosed depression and opined Mr. Curl’s

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depression and physical problems are interrelated and limiting. Drs. Brown and Collingwood

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also opined Mr. Curl was moderately limited in his ability to perform several work related

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functions due to mental problems. As discussed above, the ALJ erroneously rejected the opinions

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of these medical providers about Mr. Curl’s mental limitations, and did not properly assess the

ORDER REVERSING THE COMMISSIONER AND REMANDING FOR
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impact of these limitations on Mr. Curl’s RFC, or ask the vocational expert what impact, if any,

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these limitations would have on Mr. Curl’s ability to perform his past relevant work.

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In determining Mr. Curl’s RFC, the ALJ was required to assess all the relevant evidence,

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including medical reports and witnesses’ descriptions of limitation, to determine what capacity

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the claimant has for work. See 20 C.F.R. § 416.945(a). Similarly, hypothetical questions that an

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ALJ poses to a VE to determine what work a claimant can perform “must include ‘all of the

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claimant's functional limitations, both physical and mental’ supported by the record.” Thomas v.

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Barnhart, 278 F.3d 947, 956 (9th Cir.2002) (quoting Flores v. Shalala, 49 F.3d 562, 570–71 (9th

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Cir.1995)). As this did not occur, the ALJ harmfully erred.

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CONCLUSION

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For reasons above, the Court REVERSES the Commissioner’s final decision and

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REMANDS the case for further administrative proceedings under sentence four of 42 U.S.C. §

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405(g). On remand, the ALJ shall using the five step disability process, address what impact

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depression has on Mr. Curl’s RFC; reevaluate the opinions of Drs. Neer, Brown and

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Collingwood; develop the record and reassess Mr. Curl’s RFC as appropriate; proceed to steps

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four and five as needed.

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DATED this 31st day of August, 2017.

A
BRIAN A. TSUCHIDA
United States Magistrate Judge

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ORDER REVERSING THE COMMISSIONER AND REMANDING FOR
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