Grace v. Berryhill

Filing 16

ORDER RE: SOCIAL SECURITY DISABILITY APPEAL by Hon. Mary Alice Theiler. This matter is REMANDED for further administrative proceedings.(AE)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KEEGAN G.,
Plaintiff,

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v.

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CASE NO. C18-5507-MAT

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

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL

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Defendant.
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Plaintiff proceeds through counsel in his appeal of a final decision of the Commissioner of

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the Social Security Administration (Commissioner).

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application for Supplemental Security Income (SSI) after a hearing before an Administrative Law

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Judge (ALJ). Having considered the ALJ’s decision, the administrative record (AR), and all

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memoranda of record, this matter is REMANDED for further administrative proceedings.
FACTS AND PROCEDURAL HISTORY

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The Commissioner denied plaintiff’s

Plaintiff was born on XXXX, 1994. 1 He completed the eleventh grade of high school and
has no past work. (AR 37, 62, 169.)
Plaintiff protectively filed an SSI application on February 3, 2015, alleging disability

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Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1).

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beginning January 1, 2010. (AR 161.) His application was denied initially and on reconsideration.

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On February 8, 2017, ALJ Rudolph Murgo held a hearing, taking testimony from plaintiff

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and a vocational expert (VE). (AR 31-67.) On March 27, 2017, the ALJ issued a decision finding

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plaintiff not disabled since the February 3, 2015 application date. (AR 15-26.)

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Plaintiff timely appealed. The Appeals Council denied plaintiff’s request for review on

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April 19, 2018 (AR 1-5), making the ALJ’s decision the final decision of the Commissioner.

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Plaintiff appealed this final decision of the Commissioner to this Court.
JURISDICTION

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The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION

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The Commissioner follows a five-step sequential evaluation process for determining

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whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must

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be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not

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engaged in substantial gainful activity since the alleged onset date. At step two, it must be

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determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff’s autism

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spectrum disorder, affective disorder, and anxiety disorder severe. Step three asks whether a

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claimant’s impairments meet or equal a listed impairment. The ALJ found plaintiff’s impairments

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did not meet or equal the criteria of a listed impairment.

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If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess

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residual functional capacity (RFC) and determine at step four whether the claimant has

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demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform

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a full range of work at all exertional levels, with simple, routine tasks, consistent with a specific

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vocational preparation level of one or two, no public contact, and superficial contact with

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coworkers. Plaintiff had no past work to consider at step four.

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If a claimant demonstrates an inability to perform past relevant work, or has no past

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relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant

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retains the capacity to make an adjustment to work that exists in significant levels in the national

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economy. With the assistance of the VE, the ALJ found plaintiff capable of performing other jobs,

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such as work as a janitor, hand packager, agricultural produce sorter, and motel/hotel housekeeper.

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This Court’s review of the ALJ’s decision is limited to whether the decision is in

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accordance with the law and the findings supported by substantial evidence in the record as a

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whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Accord Marsh v. Colvin, 792 F.3d

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1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported

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by substantial evidence in the administrative record or is based on legal error.”) Substantial

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evidence means more than a scintilla, but less than a preponderance; it means such relevant

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evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v.

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Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of

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which supports the ALJ’s decision, the Court must uphold that decision. Thomas v. Barnhart, 278

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F.3d 947, 954 (9th Cir. 2002).

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Plaintiff argues the ALJ erred in evaluating the medical evidence, his testimony, lay

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evidence, and at step three, resulting in errors in the RFC and at step five. The Commissioner

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concedes errors in evaluating symptom testimony, the lay opinion of plaintiff’s mother and the

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medical opinion of Lori J. Olsen, a psychiatric mental health nurse practitioner (PMHNP), error at

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step three, and resulting errors in the RFC and at step five. While plaintiff argues in favor of a

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remand for an award of benefits, the Commissioner asserts the need for further administrative

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proceedings.

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Remand Standard

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The Court has discretion to remand for further proceedings or to award benefits. See

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Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). However, a remand for an immediate award

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of benefits is an “extreme remedy,” appropriate “only in ‘rare circumstances.’” Brown-Hunter v.

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Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting Treichler v. Comm’r of Soc. Sec. Admin., 775

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F.3d 1090, 1099 (9th Cir. 2014)). Accord Leon v. Berryhill, 874 F.3d 1130, 1044 (9th Cir. 2017)

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(“An automatic award of benefits in a disability benefits case is a rare and prophylactic exception

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to the well-established ordinary remand rule.”)

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Before remanding for an award of benefits, three requirements must be met. First, the ALJ

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must have “‘failed to provide legally sufficient reasons for rejecting evidence, whether claimant

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testimony or medical opinion.’” Brown-Hunter, 806 F.3d at 495 (quoting Garrison v. Colvin, 759

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F.3d 995, 1020 (9th Cir. 2014)). Second, the Court must find the record has been fully developed

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and further administrative proceedings would serve no useful purpose. Id. In so doing, the Court

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considers the existence of outstanding issues that must be resolved before a disability

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determination can be made. Id. Third, with the first two conditions satisfied, the Court must

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conclude that, “‘if the improperly discredited evidence were credited as true, the ALJ would be

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required to find the claimant disabled on remand.’” Id. (quoting Garrison, 759 F.3d at 1021).

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Accord Leon, 880 F.3d at 1045 (“When these first two conditions are satisfied, we then credit the

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discredited testimony as true for the purpose of determining whether, on the record as a whole,

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there is no doubt as to disability.”); Treichler, 775 F.3d at 1101 (the Court asks whether the record

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leaves not the slightest uncertainty as to the outcome).

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Even with satisfaction of the three requirements, the Court retains flexibility in determining
the proper remedy.

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Brown-Hunter, 806 F.3d at 495.

The Court may remand for further

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proceedings where the record, considered as a whole, creates serious doubt as to whether a

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claimant is disabled. Id. If the record is uncertain and ambiguous as to disability, the matter is

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properly remanded for further proceedings. Treichler, 775 F.3d at 1105.
Application of Remand Standard

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The parties here agree the ALJ failed to adequately address plaintiff’s symptom testimony,

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step three, lay witness evidence from plaintiff’s mother, and the January 26, 2017 opinion of

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PMHNP Olson. These errors necessitate remand.

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The Court finds no error in the ALJ’s consideration of evidence from Dr. John Deeney (AR

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238-46) and family nurse practitioner (FNP) Heather Nash (AR 316-18, 323-25, 333-36). Dr.

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Deeney assessed plaintiff in January 2012, some three years before the February 3, 2015 onset

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date, and the ALJ reasonably found the content of his report consistent with some limitations,

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accounted for in RFC restrictions to simple tasks with no public contact and superficial coworker

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contact. (AR 20-21.) Nash provided treatment notes dated between January and May 2014, closer

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in time to the onset date, and reasonably construed by the ALJ to document improvement with

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medication and to contain mental status examination (MSE) findings supporting some limitations,

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accounted for in the RFC. (AR 21-22.) The ALJ likewise properly considered Individualized

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Education Program (IEP) documents and other records associated with plaintiff’s education dated

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between January 2010 and February 2014. (AR 20-21, 234-37, 247-313.)

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Nor did the ALJ err in considering opinions of non-examining State agency psychologists

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Drs. Edward Beaty and John Robinson, rendered in May and September 2015 respectively. (AR

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75-77, 87-89.) Dr. Beaty found plaintiff capable of complex tasks with reasonable concentration,

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persistence, and pace, with interruptions when under unusual stress from social demands until

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anxiety is under better control; capable of superficial, task-oriented contact with a small group of

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coworkers; and able to adapt to simple changes in the work place and carry out simple goals and

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plans as directed by supervisors. (AR 75-77.) Dr. Johnson opined similarly, while adding plaintiff

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was capable of interacting more broadly via computer, as he does in activities of daily living, and

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would likely benefit from vocational rehabilitation “guidance toward initial suitable placement,

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due to youth, inexperience, and his uneven social profile.” (AR 88.) The ALJ reasonably declined

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to assign weight to the statement as to vocational rehabilitation guidance because it did not offer a

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specific functional limitation and, rather, offered a vocational recommendation based on factors

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unrelated to plaintiff’s impairments. (AR 23.) The ALJ otherwise reasonably assigned great

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weight to the opinions of Drs. Beaty and Johnson as accounting for some limitations in functioning

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and consistent with school records and MSEs, while finding the record as a whole more consistent

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with an ability to perform simple tasks, which better accounted for limiting effects of impairments

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and served to prevent additional stress.

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The Court further finds both outstanding issues and questions raised as to disability

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necessitating further administrative proceedings. The record in this case is notably minimal,

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containing a small number of documents relating directly to medical treatment and few medical

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opinions. A significant portion of the record relates predominantly to plaintiff’s education and

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predates the period at issue. Only three medical opinions fall within the relevant time period, the

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properly assessed opinions from Drs. Beatty and Johnson and the medical source statement

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completed by Olson.

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As suggested by the Commissioner, the ALJ failed to satisfy his duty to develop the record.

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See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (“The ALJ in a social security case

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has an independent duty to fully and fairly develop the record and to assure that the claimant’s

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interests are considered.”; “Ambiguous evidence, or the ALJ’s own finding that the record is

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inadequate to allow for proper evaluation of the evidence, triggers the ALJ’s duty to ‘conduct an

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appropriate inquiry.’”) (internal quotation marks and quoted sources omitted). The medical record

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does not adequately allow for proper evaluation of the evidence and is uncertain and ambiguous

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as to disability.

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This conclusion does not, as plaintiff contends, present an improper post hoc

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rationalization. See Bray v. Comm’r of SSA, 554 F.3d 1219, 1225-26 (9th Cir. 2009) (court reviews

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ALJ’s decision “based on the reasoning and factual findings offered by the ALJ – not post hoc

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rationalizations that attempt to intuit what the adjudicator may have been thinking.”) (citing, inter

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alia, SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)). The Court is not here tasked with

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considering whether or not the ALJ erred or the harmfulness of the error. Cf. Stout v. Comm’r,

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Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (a reviewing court is “‘constrained to review

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the reasons the ALJ asserts’” and “‘cannot affirm the decision of an agency on a ground that the

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agency did not invoke in making its decision.’”; “Consequently, if the Commissioner’s request

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that we dismiss the ALJ’s error as harmless ‘invites this Court to affirm the denial of benefits on

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a ground not invoked by the Commissioner in denying the benefits originally, then we must

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decline.’”) (quoted and cited sources omitted). The Court must instead determine whether plaintiff

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should be awarded disability benefits. As stated by the Ninth Circuit:

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The touchstone for an award of benefits is the existence of a
disability, not the agency’s legal error. To condition an award of
benefits only on the existence of legal error by the ALJ would in
many cases make “disability benefits . . . available for the asking, a
result plainly contrary to 42 U.S.C. § 423(d)(5)(A).”

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Brown-Hunter, 806 F.3d at 495 (quoted sources omitted). “A claimant is not entitled to benefits

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under the statute unless the claimant is, in fact, disabled, no matter how egregious the ALJ’s errors

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may be.” Strauss v. Comm’r of Social Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011). As

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argued by the Commissioner, the scant medical evidence in this case does not suffice to

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substantiate plaintiff’s claim of disability.

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On remand, the ALJ should further develop the record by obtaining updated medical

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information and a consultative psychological examination by an acceptable medical source, and

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by contacting Olson for explanation and clarification as to the basis of her opinion. The ALJ

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should also consider obtaining testimony from a medical expert. The ALJ should reassess the

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evidence at step three, reevaluate plaintiff’s symptom testimony and the lay testimony of his

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mother, reassess medical opinion evidence of record, and reconsider plaintiff’s RFC and any

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conclusion at step five.
CONCLUSION

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For the reasons set forth above, this matter is REMANDED for further administrative
proceedings.
DATED this 22nd day of April, 2019.

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A

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Mary Alice Theiler
United States Magistrate Judge

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