Sarmiento v. Berryhill

Filing 13

ORDER REVERSING AND REMANDING DEFENDANT'S DECISION TO DENY BENEFITS by Judge David W. Christel. (KEB)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

8
9
10

JUAN S.,

11
12
13
14
15
16
17
18
19
20
21
22
23

Plaintiff,
v.
NANCY A BERRYHILL, Deputy
Commissioner for Social Security of
Operations,

CASE NO. 3:18-CV-05346-DWC
ORDER REVERSING AND
REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS

Defendant.
Plaintiff filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of
Defendant’s denial of Plaintiff’s applications for disability insurance benefits (“DIB”). Pursuant
to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties
have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 5.
After considering the record, the Court concludes the Administrative Law Judge (“ALJ”) erred
(1) when he failed to consider medical opinion evidence relevant to whether Plaintiff has severe
impairments at Step Two, and (2) when he failed to properly assess Plaintiff’s need for a cane in
the residual functional capacity (“RFC”) assessment. Had the ALJ properly considered all of the

24
ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS- 1

1 medical opinion evidence, the RFC may have included additional limitations. The ALJ’s error is
2 therefore not harmless, and this matter is reversed and remanded pursuant to sentence four of 42
3 U.S.C. § 405(g) to the Acting Commissioner of Social Security (“Commissioner”) for further
4 proceedings consistent with this Order.
5
6

FACTUAL AND PROCEDURAL HISTORY
On March 31, 2015, Plaintiff filed an application for DIB, alleging disability as of July

7 20, 2007. AR 256. ALJ Andrew Grace held an administrative hearing on September 15, 2016.
8 AR 38-81. The ALJ denied Plaintiff’s claim on February 10, 2017. AR 15-30. The Appeals
9 Council denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the
10 Commissioner. See AR 1-3; 20 C.F.R. §§ 404.981, 416.1481.
11

In Plaintiff’s Opening Brief, Plaintiff argues the ALJ erred (1) in his consideration of

12 Plaintiff’s mental impairments at Step Two of the sequential evaluation process, and (2) by
13 failing to properly assess Plaintiff’s need for a cane in the RFC assessment. Dkt. 10, pp. 2-12.
14
15

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

16 social security benefits if the ALJ’s findings are based on legal error or not supported by
17 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th
18 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
19
20

DISCUSSION
I.

Whether the ALJ properly considered evidence of Plaintiff’s mental
impairments at Step Two of the sequential evaluation process.

21
Plaintiff argues the ALJ failed to properly consider all of the evidence of his mental
22
impairments at Step Two of the sequential evaluation process. Dkt. 10, pp. 2-9. Specifically,
23
24
ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS- 2

1 Plaintiff argues the ALJ ignored medical opinion evidence from two psychiatrists, and further
2 failed to explain how he resolved conflicting medical opinions. See id.
3

Step Two of the Administration’s evaluation process requires the ALJ to determine

4 whether the claimant “has a medically severe impairment or combination of impairments.”
5 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted); 20 C.F.R. §§
6 404.1520(a)(4)(ii), 416.920(a)(4)(ii) (1996). The Step Two determination of whether or not a
7 disability is severe is merely a threshold determination, raising potentially only a “prima facie
8 case of a disability.” Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (citing Tackett v.
9 Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999)). An impairment is “not severe” if it does not
10 “significantly limit” the ability to conduct basic work activities. 20 C.F.R. §§ 404.1521(a),
11 416.921(a). Regarding mental impairments, the ALJ considers four broad functional areas:
12 activities of daily living; social functioning; concentration, persistence, or pace; and episodes of
13 decompensation. 20 C.F.R. § 404.1520a(c)(3).
14

When an opinion from an examining or treating doctor is contradicted by other medical

15 opinions, the treating or examining doctor’s opinion can be rejected “for specific and legitimate
16 reasons that are supported by substantial evidence in the record.” Lester v. Chater, 81 F.3d 821,
17 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995); Murray v.
18 Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). The Commissioner “may not reject ‘significant
19 probative evidence’ without explanation.” Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)
20 (quoting Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (quoting Cotter v. Harris, 642
21 F.2d 700, 706-07 (3d Cir. 1981))). The “ALJ’s written decision must state reasons for
22 disregarding [such] evidence.” Id. at 571.
23
24
ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS- 3

1

At Step Two, the ALJ determined Plaintiff’s mental impairments to be major depressive

2 disorder, generalized anxiety disorder, panic disorder, and post-traumatic stress disorder, which
3 the ALJ determined to be non-severe. AR 21. The ALJ stated Plaintiff “would have no difficulty
4 following simple instructions to carry out simple tasks.” AR 22. The ALJ also stated Plaintiff
5 “was able to cooperate with the two examining psychiatrists and to perform all requested tasks.”
6 AR 22. The ALJ noted Plaintiff appeared to have no problem with the ability to concentrate,
7 persist, and maintain pace, and that the record showed no problems with personal care. AR 22.
8 The ALJ concluded Plaintiff’s impairments were not severe because they “do not cause more
9 than minimal limitation in [Plaintiff’s] ability to perform basic mental work activities.” AR 21.
10

Plaintiff argues the ALJ’s Step Two analysis was erroneous because the ALJ failed to

11 address reports from all of the examining psychiatrists. Dkt. 10, p. 8.
12

With respect to Plaintiff’s mental impairments, the ALJ addressed reports from two

13 examining psychologists at Step Two. AR 21-22. The ALJ first addressed the psychological
14 examination performed by Dr. Mary Lang-Furr, M.D., on May 11, 2011. AR 621. Dr. Lang-Furr
15 diagnosed Plaintiff with major depressive disorder, severe with psychotic features; post16 traumatic stress disorder; and generalized anxiety disorder. AR 625. Dr. Lang-Furr opined that
17 Plaintiff’s mental health issues “are treatable with medication management and psychotherapy,”
18 and Plaintiff’s likelihood of recovery “is good especially if he gets concurrent pharmacotherapy
19 and psychotherapy.” AR 625. Dr. Lang-Furr opined that Plaintiff’s “likelihood of recovery
20 within the next 12 months is good” and his mental condition would improve “within a year with
21 some medication adjustment.” AR 625. She concluded Plaintiff “can perform work activities on
22 a consistent basis” and could maintain regular attendance in the workplace “without interruptions
23 from his psychiatric condition.” AR 626.
24
ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS- 4

1

The second psychological examination the ALJ addressed was performed by Dr. Rebecca

2 Hendrickson, M.D., Ph.D., on December 1, 2012. AR 644. Dr. Hendrickson diagnosed Plaintiff
3 with major depressive episode, severe; and generalized anxiety disorder. AR 649. Dr.
4 Hendrickson opined that if Plaintiff received more aggressive treatment, the likelihood of
5 recovery would be fair and the likelihood of improvement within a year would be good. AR 649.
6 She also opined Plaintiff could “perform work activities on a consistent basis with additional
7 supervision if they were work activities that he could physically do.” AR 650. She opined
8 Plaintiff could complete a normal workday or workweek without interruptions from his
9 psychiatric condition, but added “he actually has a very real risk of suicide at this point over the
10 next year or so.” AR 650.
11

However, the ALJ did not address reports from two other psychiatrists contained in the

12 record: Dr. Doug Robinson, M.D., and Dr. Philip G. Perkins, D.O. 1 See AR 21-22.
13

Dr. Robinson conducted an independent evaluation of Plaintiff on July 11, 2013. AR 845.

14 Dr. Robinson concluded there were no work restrictions required as a result of Plaintiff’s
15 psychiatric condition. AR 854.
16

Dr. Perkins interviewed Plaintiff and conducted a record review on September 26, 2013.

17 AR 842. Dr. Perkins opined Plaintiff scored 25 on the Beck Depression Inventory and that the
18 assessment was consistent with major depressive disorder, moderate severity. AR 843. Dr.
19 Perkins also stated, “Given [Plaintiff’s] forgetfulness, gainful employment is probably not within
20 his capability at this time.” AR 844.
21
22
1

The ALJ received the reports from Drs. Perkins and Robinson after the hearing. See AR 42 (admitting

23 Exhibits 1-A through 17-F). However, both reports were submitted before the ALJ’s decision, as part of Exhibit

18F, which the ALJ stated he relied on in reaching his decision. AR 37, 842, 845. Defendant does not address the

24 ALJ’s failure to consider these reports.
ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS- 5

1

Hence, given Dr. Perkins’ assessment that “gainful employment” was probably not

2 within Plaintiff’s capability, the ALJ may have found Plaintiff had a severe mental impairment at
3 Step Two had he properly considered this opinion. In any case, Dr. Perkins’ medical opinion that
4 Plaintiff could not engage in gainful employment contradicts the opinions of Drs. Lang-Furr,
5 Hendrickson, and Robinson. The ALJ therefore needed to provide specific and legitimate reasons
6 supported by substantial evidence in the record to explain why he rejected Dr. Perkins’ medical
7 opinion. See Lester, 81 F.3d at 830-31. The ALJ did not address Dr. Perkins’ report at all in his
8 Step Two analysis or elsewhere in his decision and thus failed to explain how he resolved the
9 conflicting opinions and concluded Plaintiff did not have a severe mental impairment at Step
10 Two. Accordingly, the ALJ erred, and on remand, the ALJ must determine if Plaintiff’s mental
11 impairments are severe. 2
12

II.

Whether the ALJ erred in failing to properly assess Plaintiff’s need for a
cane in the RFC assessment.

13
Plaintiff argues the ALJ erred in omitting the need for a cane from Plaintiff’s RFC
14
assessment for light work. Dkt. 10, pp. 9-11.
15
An RFC is “an assessment of an individual’s ability to do sustained work-related physical
16
and mental activities in a work setting on a regular and continuing basis.” SSR 96-9p, 1996 WL
17
374184, at *1 (1996). An RFC must include an individual’s functional limitations or restrictions
18
and assess his “work-related abilities on a function-by-function basis.” Id. Furthermore, an RFC
19
must take into account all of an individual’s limitations. Valentine v. Comm’r of Soc. Sec.
20
21
22
23
24

2
Plaintiff also argues the ALJ erred in giving little weight to the conclusions of Dr. Lang-Furr and Dr.
Hendrickson “[t]o the extent that either of these opinions reflects limitations to the claimant’s abilities to perform
mental work activities.” Dkt. 10, p. 6; AR 21. Because the Court concludes the ALJ erred by not providing specific
and legitimate reasons supported by substantial evidence in the record for rejecting Dr. Perkins’ conclusion, the
Court declines to reach this issue.

ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS- 6

1 Admin., 574 F.3d 685, 690 (9th Cir. 2009). Thus, an ALJ errs when he provides an incomplete
2 RFC ignoring “significant and probative evidence.” Jones v. Colvin, 2015 WL 71709, at *5
3 (W.D. Wash. Jan. 6, 2015) (citing Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012)).
4

The record reflects Plaintiff began using a cane in 2009. See AR 554. In June 2009, Dr.

5 Daniel Chilczuk, M.D., wrote in a treatment note that he gave Plaintiff “[e]xtensive counseling”
6 about the fact that Plaintiff should discontinue the use of a cane. AR 552. In August 2009, after
7 Dr. Chilczuk’s “repetitive request[s],” Plaintiff stopped using his cane. AR 550. In April 2011,
8 Dr. Molly Fuentes, M.D., examined Plaintiff and noted he walked into the examination room
9 unassisted. AR 565. However, Dr. Fuentes opined that a cane was “medically necessary, based
10 upon objective exam findings” for long distances and over all terrain. AR 566.
11

After Dr. Fuentes’ finding that Plaintiff’s cane use was medically necessary, additional

12 medical sources noted Plaintiff’s cane use. For instance, in May 2015, Plaintiff reported to an
13 orthopedic physician’s assistant that he often requires a cane to walk after 4 p.m. AR 698.
14 Plaintiff again saw Dr. Chilczuk in September 2015, after Plaintiff strained his back and began
15 reusing his cane. AR 811. Dr. Chilczuk noted the use of a cane but did not tell Plaintiff to stop
16 using it. AR 811. In October 2015, Plaintiff’s physical therapist noted he did not use a cane
17 during physical therapy. AR 828. However, in November 2015, Plaintiff reported to an
18 orthopedic surgeon and a neurologist that he used a cane. AR 866.
19

In addressing Plaintiff’s use of a cane, the ALJ gave “limited weight” to “any mention of

20 the need for a cane,” stating:
21
22
23

In April 2011, the claimant attended a physical consultative examination [with Dr.
Fuentes]. The claimant displayed a significant limp with an abnormal stride. He
used a cane during the evaluation, which was noted by the examiner to be medically
necessary. However, the opinions provided by this source are somewhat unreliable.
Even the claimant’s treating doctor [Dr. Chilczuk] repeatedly told him not to use a
cane to walk, and the claimant reported that he had finally stopped such use in

24
ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS- 7

1
2

August 2009. Yet, at the consultative examination [with Dr. Fuentes in 2011], he
appeared using the cane, which means the examiner was unable to adequately
assess his functional abilities without use of the cane, which he was told to not use.

3 AR 25-26 (internal citations omitted).
4

The ALJ found Dr. Fuentes’ opinion regarding the medical necessity of a cane was

5 “somewhat unreliable” because Dr. Fuentes “was unable to adequately assess [Plaintiff’s]
6 functional abilities without the use of the cane.” AR 25. This is unsupported by the record
7 because Dr. Fuentes stated she observed Plaintiff walking unassisted. AR 565. Accordingly, the
8 ALJ did not provide specific and legitimate reasons supported by the record as to why Dr.
9 Fuentes’ medical opinion regarding the cane was unreliable. The ALJ also stated he gave limited
10 weight to medical opinions about the need for a cane because Dr. Chilczuk “repeatedly told
11 [Plaintiff] not to use a cane to walk.” AR 25. However, the ALJ does not address Dr. Chilczuk’s
12 September 2015 report, in which Dr. Chilczuk did not tell Plaintiff to stop using the cane after he
13 strained his back. Dr. Fuentes’ opinion and Dr. Chilczuk’s September 2015 report were
14 significant, probative evidence the ALJ ignored. See Lewis v. Colvin, No. C13-370-RSL, 2013
15 WL 5719538, at *12 (W.D. Wash. Oct. 21, 2013) (stating ALJ needed to provide specific and
16 legitimate reasons to reject medical opinion regarding claimant’s use of a cane). Accordingly, the
17 ALJ erred.
18

Harmless error principles apply in the Social Security context. Molina v. Astrue, 674 F.3d

19 1104, 1115 (9th Cir. 2012). An error is harmless only if it is not prejudicial to the claimant or
20 “inconsequential” to the ALJ’s “ultimate nondisability determination.” Stout v. Comm’r of Soc.
21 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also Molina, 674 F.3d at 1115. The
22 determination as to whether an error is harmless requires a “case-specific application of judgment”
23 by the reviewing court, based on an examination of the record made “‘without regard to errors’ that
24
ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS- 8

1 do not affect the parties’ ‘substantial rights.’” Molina, 674 F.3d at 1118-1119 (quoting Shinseki v.
2 Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111)).
3

Here, had the ALJ properly considered Dr. Fuentes’ opinion and Dr. Chilczuk’s September

4 2015 report, the RFC and the hypothetical questions posed to the vocational expert (“VE”) may
5 have included an additional limitation based on Plaintiff’s need for a cane. The RFC and
6 hypothetical questions posed to the VE contained this limitation for sedentary work, but not for
7 light work. AR 73-76. As the ultimate disability decision may have changed with proper
8 consideration of whether Plaintiff could perform light work with a cane, the ALJ’s error is not
9 harmless and requires reversal. 3 See Molina, 674 F.3d at 1115.
10

III.

11

On remand, the ALJ is directed to reassess Step Two with respect to Plaintiff’s mental

Instructions to the ALJ

12 impairments, properly considering the medical opinion evidence from Drs. Perkins and Robinson.
13 Since reconsideration of medical opinion evidence from Drs. Perkins and Robinson may impact
14 the ALJ’s assessment of Drs. Lang-Furr and Hendrickson, the Court instructs the ALJ to also re15 evaluate the opinion evidence from Drs. Lang-Furr and Hendrickson as necessary on remand, as
16 well. The Court further directs the ALJ to properly assess the medical opinion evidence about
17 Plaintiff’s use of a cane. If the ALJ determines a cane is medically necessary, he will be required
18 to account for cane usage in the RFC. However, if the ALJ explains proper reasons to discount
19 the reports from Dr. Fuentes and Dr. Chilczuk, he may not need to account for cane usage for
20 light work. Therefore, the Court directs the ALJ to consider whether, in light of Dr. Fuentes’
21
22
23
24

3

Although Plaintiff’s Opening Brief requests remand for payment of benefits, it appears Plaintiff is only
seeking remand for further administrative proceedings. Dkt. 10, pp. 1, 12-13; Dkt. 12, p. 5. The Court agrees further
examination of the record is necessary.
ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS- 9

1 opinion and the September 2015 report from Dr. Chilczuk, Plaintiff’s use of a cane is medically
2 necessary.
3
4

CONCLUSION
Based on the foregoing reasons, the Court hereby finds the ALJ improperly concluded

5 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is reversed and
6 this matter is remanded for further administrative proceedings in accordance with the findings
7 contained herein. The Clerk is directed to enter judgment for Plaintiff and close the case.
8

Dated this 30th day of October, 2018.

A

9
10

David W. Christel
United States Magistrate Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
ORDER REVERSING AND REMANDING
DEFENDANT’S DECISION TO DENY
BENEFITS- 10