Krzmarzick v. Berryhill

Filing 17

ORDER re 1 Complaint - by Judge J Richard Creatura. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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LISA M KRZMARZICK,

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Plaintiff,

CASE NO. 3:17-CV-05343-JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
NANCY A. BERRYHILL, Acting
Commissioner of the Social Security
Administration,

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Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and
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Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 3; Consent to Proceed Before a United States
Magistrate Judge, Dkt. 6). This matter has been fully briefed. See Dkt. 11, 15, 16.
Plaintiff was working as a janitor, cleaning a vent, when she tore the medial
meniscus in her left knee. AR. 622. Examining physician Dr. Floyd Sekeramayi, M.D.,

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ORDER ON PLAINTIFF’S COMPLAINT - 1

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diagnosed plaintiff with a chronic left knee medial meniscus tear, and found that the

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diagnosis is severely limiting. AR. 715. With respect to plaintiff’s ability to sit, walk,

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and/or stand, Dr. Sekeramayi opined that plaintiff’s “maximum standing/walking

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capacity is at least two hours. . . .” AR. 715.
The Administrative Law Judge (“ALJ”) characterized this evidence as consistent

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with light work. AR. 40. However, the ambiguity of Dr. Sekeramayi’s opinion with
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respect to plaintiff’s maximum and minimum ability to walk and/or stand triggered the
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ALJ’s duty to conduct an appropriate inquiry and allow for proper evaluation of the
evidence. Moreover, to the extent that the ALJ rejected this portion of Dr. Sekeramayi’s

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opinion, the ALJ failed to provide a specific and legitimate reason supported by

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substantial evidence. This error is not harmless, as it calls into question the ALJ’s

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reliance on Dr. Sekeramayi’s opinion in finding that plaintiff is capable of performing

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light work.

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Therefore, for the reason stated and based on the record as a whole, Court
concludes that this matter is reversed and remanded pursuant to sentence four of 42
U.S.C. § 405(g) for further administrative proceedings consistent with this opinion.

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BACKGROUND

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Plaintiff, LISA M. KRZMARZICK, was born in 1965 and was 48 years old on the
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amended alleged date of disability onset of June 25, 2013. See AR. 59, 273-79. Plaintiff
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graduated from high school and completed a couple of years of college. AR. 61.
Plaintiff has work experience as a custodian/janitor, childcare worker, housekeeper and

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ORDER ON PLAINTIFF’S COMPLAINT - 2

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laundry aide. AR. 364-75. She left her last employment when she was injured on the

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job. AR. 64-65.

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According to the ALJ, plaintiff has at least the severe impairments of “Chronic left
knee abnormality, obesity, diabetes, hypertension, hyperlipidemia, left foot abnormalities,
right radiculopathy, and bipolar disorder (20 CFR 404.1520(c)).” AR. 27.

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At the time of the hearing, plaintiff was living with her husband. AR. 62-63.
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PROCEDURAL HISTORY
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Plaintiff’s application for disability insurance benefits (“DIB”) pursuant to 42
U.S.C. § 423 (Title II) of the Social Security Act was denied initially and following

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reconsideration. See AR. 156-58, 165-68. Plaintiff’s requested hearing was held before

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ALJ David Johnson on November 3, 2015. See AR. 55-87. On December 17, 2015, the

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ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled

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pursuant to the Social Security Act. See AR. 22-54.

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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether the
ALJ provided legally sufficient reasons to reject Dr. Sekeramayi’s opinion; (2) Whether
the ALJ provided legally sufficient reasons to reject Dr. Kawasaki’s opinion; (3) Whether
the ALJ provided legally sufficient reasons to reject the lay evidence; (4) Whether the

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ALJ provided legally sufficient reasons to reject plaintiff’s subjective symptom
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testimony; (5) Whether in light of these errors, the residual functional capacity (“RFC”),
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hypothetical questions, and step five finding remain supported by substantial evidence.
See Dkt. 11 at 1.

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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STANDARD OF REVIEW

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

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denial of social security benefits if the ALJ's findings are based on legal error or not

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supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.

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1999)).
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DISCUSSION
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(1)

Whether the ALJ provided legally sufficient reasons to reject Drs.
Sekeramayi and Kawasaki’s opinions.

Plaintiff contends that the ALJ erred in evaluating the medical opinion evidence
provided by examining physician, Dr. Sekeramayi. Dkt. 11 at 4-9. Specifically, plaintiff
argues that the ALJ did not include certain limitations contained in Dr. Sekeramayi’s

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opinion, despite giving great weight to the opinion. Id. The Court notes that plaintiff does
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not specifically raise the issue of whether Dr. Sekeramayi’s opinion is ambiguous, but
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appears to do so generally – contending that defendant’s interpretation of the evidence
was impermissible reading of the evidence. Id. at 5-6. Defendant argues that the ALJ’s

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interpretation of Dr. Sekeramayi’s opinion was rational in light of the overall medical

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record. Dkt. 16 at 2; see AR. 40.

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Dr. Sekeramayi diagnosed plaintiff with “chronic left knee medial meniscus tear”

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and found that the diagnosis is severely limiting. AR. 715. With respect to plaintiff’s

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ability to sit, walk, and/or stand, Dr. Sekeramayi opined that plaintiff’s “maximum

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standing/walking capacity is at least two hours,” and that her maximum sitting capacity is

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ORDER ON PLAINTIFF’S COMPLAINT - 4

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six hours. AR. 715. Dr. Sekeramayi reasoned, “[j]ustification for limitation is

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symptomatic left knee medial meniscus tear with physical findings supporting the

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claimant favoring the left knee such as quadriceps muscle wasting and positive

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McMurray's sign and confirmation of meniscus tear on MRI.” Id.
The ALJ gave great weight to Dr. Sekeramayi’s opinion, but characterized the

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limitation that plaintiff’s “[m]aximum standing/walking capacity is at least two hours[,]”
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as consistent with light work. AR. 30, 40.
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In order to perform the full range of light work, a person must stand or walk, “off
and on, for a total of approximately 6 hours of an 8–hour workday.” SSR 83–10, 1983

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WL 31251, at *6. On the other hand, sedentary work requires periods of standing or

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walking that “total no more than about 2 hours of an 8–hour workday, and sitting should

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generally total approximately 6 hours of an 8–hour workday.” SSR 83–10, 1983 WL

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31251, *5; see also 20 C.F.R. § 404.1567(a), § 416.967(a); Merritt v. Colvin, 2015 WL

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4039355, at *1 (W.D. Wash. July 2, 2015) (a limitation to standing/walking for two hours

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in an eight-hour day coincides with a sedentary exertional work level).

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Here, the evidence underlying the ALJ’s interpretation is ambiguous. The ALJ
appears to have acknowledged this ambiguity in Dr. Sekeramayi’s opinion, but

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interpreted the evidence as a minimum, not a maximum, stating “Dr. Sekeramayi opined
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that the claimant’s minimum ability to stand and/or walk was two hours in an eight-hour
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workday; he did not indicate that this was her maximum ability to stand or walk.” AR.
40. However, with respect to plaintiff’s ability to sit, walk, and/or stand, Dr. Sekeramayi

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opined that plaintiff’s “maximum standing/walking capacity is at least two hours,”

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suggesting that Dr. Sekeramayi may have opined exactly that. AR. 715 (emphasis added).

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While defendant is correct that Dr. Sekeramayi’s use of the words “at least”

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theoretically could indicate that Dr. Sekeramayi intended the language “[m]aximum
standing/walking capacity is at least two hours[,]” AR. 715, to be a “floor, rather than a

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ceiling,” Dkt. 15 at 2, it is not clear from Dr. Sekeramayi’s report what that ceiling might
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be. Moreover, it seems more likely that Dr. Sekeramayi’s use of the word “maximum”
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indicates that he intended the two-hour standing/walking limitation to be an approximate
ceiling, not a floor. It also unclear from Dr. Sekeramayi’s report whether plaintiff would
need to sit for a period of time after standing/walking, and if so, how long. See AR. 715.
“Ambiguous evidence, or the ALJ's own finding that the record is inadequate to

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allow for proper evaluation of the evidence, triggers the ALJ's duty to conduct an

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appropriate inquiry.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citing

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Smolen, 80 F.3d at 1288) (quotation marks omitted). Although plaintiff bears the burden

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of proving disability, the ALJ has an affirmative duty to assist the claimant in developing

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the record “when there is ambiguous evidence or when the record is inadequate to allow
for proper evaluation of the evidence.” See Mayes v. Massanari, 276 F.3d 453, 459–60

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(9th Cir. 2001) (citation omitted). “It is simply not enough for the ALJ to bemoan the
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dearth of medical evidence.” Held v. Colvin, 82 F. Supp. 3d 1033, 1040 (N.D. Cal. 2015)
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(citing Dervin v. Astrue, 407 Fed.Appx. 154, 156 (9th Cir. 2010) (finding ALJ criticized
the lack of “a treatment history with clinical and diagnostic findings” but failed to seek
supplemental material from claimant's doctors)). Therefore, the ALJ should have

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contacted Dr. Sekeramayi to resolve the ambiguity. Therefore, the ALJ erred by failing to

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satisfy his duty to conduct an appropriate inquiry based on the ambiguous evidence.

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Although the ALJ did not expressly reject Dr. Sekeramayi’s standing/walking
limitation, the ALJ failed to provide any support for the conclusion that “light work”
would accommodate this limitation. For example, if Dr. Sekeramayi’s opinion indeed

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reflects a maximum, this undercuts the ALJ’s reliance on Dr. Sekeramayi’s opinion when
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finding that plaintiff is capable of performing light work. An ALJ may “draw inferences
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logically flowing from the evidence.” Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.
1999) (citing Beane v. Richardson, 457 F.2d 758 (9th Cir. 1972); Wade v. Harris, 509 F.

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Supp. 19, 20 (N.D. Cal. 1980)). However, an ALJ may not speculate. See SSR 86-8, 1986

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SSR LEXIS 15 at *22. Thus, to the extent that the ALJ rejected this portion of Dr.

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Sekeramayi’s opinion, the ALJ erred in failing to capture Dr. Sekeramayi’s

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standing/walking limitation that the ALJ found was entitled to “great” weight. See AR.

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40.

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Defendant also argues that the ALJ’s interpretation was rational in light of the
overall medical record. Dkt. 16 at 2; see AR. 40. Defendant points to evidence from a
July 2015 examination with Dr. Erin Kawasaki, D.O., which showed 5/5 strength, normal

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stability, negative McMurray’s test, and negative Apley’s. Dkt. 16 at 2-3; (citing AR.
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775-76). The ALJ stated that Dr. Sekeramayi’s opinion was consistent with Dr.
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Sekeramayi’s own examination, as well as the longitudinal record. AR. 40. However, Dr.
Sekeramayi’s report indicates that plaintiff’s gait was markedly antalgic favoring the
lower extremity, plaintiff struggled with tandem and heel-toe walking due to pain in the

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left knee, and that there was wasting of the quadriceps muscle, a positive McMurray’s

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test, and confirmation of a meniscus tear on MRI. See AR 713-15. Thus, it is not clear

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from Dr. Sekeramayi’s report or the overall medical record that plaintiff could stand/walk

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for approximately six hours in an eight-hour day required for light work, as the ALJ
found.

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The Ninth Circuit has “recognized that harmless error principles apply in the
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Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)
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(citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th
Cir. 2006) (collecting cases)). The Ninth Circuit has reaffirmed the explanation in Stout

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that “ALJ errors in social security are harmless if they are ‘inconsequential to the ultimate

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nondisability determination’ and that ‘a reviewing court cannot consider [an] error

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harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting

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the testimony, could have reached a different disability determination.’” Marsh v. Colvin,

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792 F.3d 1170, 1173 (9th Cir. 2015) (citing Stout, 454 F.3d at 1055-56). In Marsh, even

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though “the district court gave persuasive reasons to determine harmlessness,” the Ninth

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Circuit reversed and remanded for further administrative proceedings, noting that “the
decision on disability rests with the ALJ and the Commissioner of the Social Security

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Administration in the first instance, not with a district court.” Id. (citing 20 C.F.R. §
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404.1527(d)(1)-(3)).
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Since the ALJ's RFC assessment is predicated, at least in part, on conclusions that
lack substantial evidence, this Court cannot find such errors harmless. If Dr.
Sekeramayi’s opinion indeed is a maximum of approximately two hours total of

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standing/walking in an eight-hour day, this opinion renders plaintiff incapable of

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performing light work. The ALJ’s ultimate non disability determination was based on a

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finding that plaintiff could perform light work: if she cannot, this alters the ultimate

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disability determination. See AR. 44. Accordingly, this case must be remanded for further
administrative proceedings to permit the ALJ properly to consider the medical opinion

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evidence.
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Regarding challenges to the ALJ’s evaluation of other medical opinions, because
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the Court concludes that the ALJ committed harmful legal error with respect to Dr.
Sekeramayi’s opinion, and based on the record as a whole, the Court concludes that the

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remaining medical evidence should be evaluated anew following remand of this matter,

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including the new evidence referenced by the Appeals Council. See AR. 6.

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(2)

Whether the ALJ provided legally sufficient reasons to reject the lay
evidence.

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Although the ALJ found that the lay testimony was not consistent with the medical
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evidence, see AR. 42, the Court already has concluded that the ALJ erred when
evaluating the medical evidence, see supra, section 1. Therefore, for this reason and
based on the record, the ALJ should re-evaluate the lay evidence following remand.
(3)

Whether the ALJ provided clear and convincing reasons for rejecting
plaintiff’s testimony.

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Similarly, the Court already has concluded that the ALJ erred in reviewing the
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medical evidence and that this matter should be reversed and remanded for further
consideration, see supra, section 1. In addition, the evaluation of a claimant’s statements
regarding limitations relies in part on the assessment of the medical evidence. See 20

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C.F.R. § 404.1529(c); SSR 16-3p, 2016 SSR LEXIS 4. Therefore, plaintiff’s testimony

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and statements should be assessed anew following remand of this matter.

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(4)

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Whether the RFC, hypothetical questions, and step five finding are
supported by substantial evidence.

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Plaintiff argues that given the errors with respect to the medical opinion evidence

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and plaintiff’s subjective symptom testimony, the RFC and hypothetical questions relied

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on by the ALJ were not complete, such that substantial evidence did not support the step

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five findings. Dkt. 11 at 13. The Court addressed this argument in the context of the

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harmless error analysis, see supra section 1, section 3. Nevertheless, to the extent that this

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can be construed as a separate issue, plaintiff’s RFC, hypothetical questions to the
vocational expert and step five finding should be assessed anew following remand of this
matter.

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(5)

Whether remand for a finding of disability is the proper remedy.

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Generally, when the Social Security Administration does not determine a
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claimant’s application properly, “‘the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or explanation.’” Benecke v. Barnhart,

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379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). However, the Ninth Circuit has put

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forth a “test for determining when [improperly rejected] evidence should be credited and

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an immediate award of benefits directed.” Harman v. Apfel, 211 F.3d 1172, 1178 (9th

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Cir. 2000) (quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)).

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At the first step, the court should determine if “the ALJ has failed to provide

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legally sufficient reasons for rejecting [the particular] evidence.” Smolen, supra, 80 F.3d

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at 1292 (citations omitted). Next, as stated recently by the Ninth Circuit:

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Second, we turn to the question whether [or not] further administrative
proceedings would be useful. In evaluating this issue, we consider [if]
the record as a whole is free from conflicts, ambiguities, or gaps, [if] all
factual issues have been resolved, and [if] the claimant’s entitlement to
benefits is clear under the applicable legal rules.

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Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1103-04 (9th Cir. 2014)
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(citations omitted).
Here, the medical opinion evidence in the record is ambiguous as to the exact

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nature of Dr. Sekeramayi’s opined standing/walking limitation, and whether Dr.

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Sekeramayi’s opinion supports the ALJ’s finding that plaintiff is capable of light work.

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See AR. 40, 715. Therefore, issues remain in this case warranting remand for further

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administrative proceedings. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090,

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1105 (9th Cir. 2014) (citations omitted) (reversal with a direction to award benefits is

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inappropriate if further administrative proceedings would serve a useful purpose); See

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Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984) (remand proper where additional
administrative proceedings that would include “additional medical opinions regarding

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claimant's residual functional capacity” could remedy defects). Thus, remand for further
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administrative proceedings is appropriate.
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//
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//

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CONCLUSION

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Based on these reasons and the relevant record, the Court ORDERS that this

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matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §

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405(g) to the Acting Commissioner for further consideration consistent with this order.
JUDGMENT should be for plaintiff and the case should be closed.

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Dated this 23rd day of January, 2018.
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A

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J. Richard Creatura
United States Magistrate Judge

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ORDER ON PLAINTIFF’S COMPLAINT - 12