Greene v. Commissioner of Social Security

Filing 21

ORDER RE: SOCIAL SECURITY DISABILITY APPEAL by Hon. Mary Alice Theiler. (AQ)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DELAINE G.,
Plaintiff,

CASE NO. C20-5807-MAT
ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL

v.
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.

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Plaintiff proceeds through counsel in her appeal of a final decision of the Commissioner of

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the Social Security Administration (Commissioner). The Commissioner denied Plaintiff’s

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application for a Period of Disability and Disability Insurance Benefits (DIB) after a hearing before

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an Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the administrative

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record (AR), and all memoranda of record, this matter is REVERSED and REMANDED for

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further administrative proceedings.

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FACTS AND PROCEDURAL HISTORY

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Plaintiff was born on XXXX, 1958, 1 has a high school education, and previously worked

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as a referral and informational aide and a clerk. (AR 13.) Plaintiff applied for a period of disability

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and DIB on March 23, 2018. (AR 4.) That application was denied initially and upon

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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).

ORDER RE: SOCIAL SECURITY DISABILITY APPEAL - 1

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reconsideration, and Plaintiff timely requested a hearing. (Id.) On August 20, 2019, ALJ C.

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Howard Prinsloo held a hearing, taking testimony from Plaintiff and a vocational expert. (AR 39-

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59.) On August 27, 2019, the ALJ issued a decision finding Plaintiff not disabled. (AR 1-19.)

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Plaintiff timely appealed. The Appeals Council denied Plaintiff’s request for review (AR 20-25),

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making the ALJ’s decision the final decision of the Commissioner. Plaintiff now seeks judicial

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review.
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 June 27, 2017, the alleged onset date. (AR 6.) At step

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two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found

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severe Plaintiff’s expressive aphasia status-post cerebrovascular accident, diabetes, and obesity

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(AR 6-7.) Step three asks whether a claimant’s impairments meet or equal a listed impairment.

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The ALJ found that Plaintiff’s impairments did not meet or equal the criteria of a listed impairment.

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(AR 7.)

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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 capable of

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performing “a full range of work at all exertional levels,” subject to additional limitations: “she

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should not be expected to work around hazards, including unprotected heights and moving

ORDER RE: SOCIAL SECURITY DISABILITY APPEAL - 2

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machinery” and “[s]he is limited to simple tasks with no more than occasional interaction with the

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public and with minimal communication required.” (AR 8.) With that assessment, and with the

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assistance of the VE, the ALJ found Plaintiff able to perform the following jobs existing in

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significant numbers in the national economy: janitor, hand packager, electronics worker, garment

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sorter, and small products assembler. (AR 13-14.) The ALJ concluded Plaintiff was not disabled

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from June 27, 2017, through December 31, 2017, the date last insured (AR 14.)

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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). Substantial evidence means more

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

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mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750

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(9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s

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decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

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2002).

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Plaintiff argues the ALJ erred by failing to consider all of her limitations in determining

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her RFC and failing to develop the record. The Commissioner argues the ALJ’s decision is free of

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legal error, supported by substantial evidence, and should be affirmed.

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RFC

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Plaintiff first argues the ALJ erred in fashioning an RFC that does not account for all of

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the limitations caused by Plaintiff’s aphasia. In specific, Plaintiff contends the RFC’s restriction

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to “simple tasks” does not meaningfully address Plaintiff’s deficiencies in concentration,

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persistence, and pace, which the ALJ specifically found. (AR 8.) The Commissioner avers Plaintiff

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relies on unpublished and out-of-circuit decisions. Nevertheless, the Court finds Brink v. Comm’r

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Soc. Sec. Admin. particularly persuasive and on point. See 343 F. App’x 211, 212 (9th Cir. 2009)

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(“Although the ALJ accepted that Brink has moderate difficulty with concentration, persistence,

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or pace, he nevertheless concluded, contrary to the vocational expert’s testimony, that Brink can

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perform certain light work. This conclusion was based on an incomplete hypothetical question,

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and is not supported by substantial evidence. The hypothetical question to the vocational expert

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should have included not only the limitation to ‘simple, repetitive work,’ but also Brink’s moderate

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limitations in concentration, persistence, or pace.”). Here, the RFC is in tension with the ALJ’s

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specific finding that Plaintiff has a “moderate limitation” with regard to “concentrating, persisting

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or maintaining pace.” (AR 8.) The Court accordingly concludes the ALJ failed to properly consider

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all limitations caused by her aphasia.

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Next, Plaintiff argues the ALJ failed to incorporate limitations concerning Plaintiff’s ability

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to work with co-workers and supervisors. While the RFC limited Plaintiff to “no more than

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occasional interaction with the public,” it is silent as to the necessity of limitations, if any,

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concerning Plaintiff’s interaction with co-workers and supervisors. Remand is thus necessary to

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permit the ALJ to properly address, in the first instance, whether the RFC is underinclusive or

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sufficient in this regard.

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Finally, Plaintiff argues the RFC fails to account for obesity-related lifting limitations.

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While the ALJ should consider all relevant conditions, Plaintiff points to no evidence that supports

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a finding that her obesity causes lifting limitations that the ALJ failed to assess. Rather, Plaintiff

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asks the Court to “infer” that Plaintiff’s obesity contributes to limitations not accounted for in the

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RFC. Dkt. 20 at 3. The Court cannot substitute its judgment for that of the ALJ. Tackett v. Apfel,

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180 F.3d 1094, 1098 (9th Cir. 1999). The Court accordingly concludes Plaintiff has failed to show

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harmful error in this regard. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“[T]he

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burden of showing that an error is harmful normally falls upon the party attacking the agency’s

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determination.”); Ludwig v. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012) (holding that the party

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challenging an administrative decision bears the burden of proving harmful error).

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Developing the Record

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Plaintiff argues the ALJ failed to develop the record with respect to the opinion of

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Plaintiff’s treating physician, Patricia McEachrane-Gross, M.D, who opined Plaintiff “has a

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physical impairment that substantially limits the major life activity of oral communication and that

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her speech-language impairment has negatively impacted her wage-earning capacity among other

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effects.” (AR 398.) Plaintiff argues the doctor’s statement triggered the ALJ’s duty to develop the

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record and inquire further. However, “[a]n ALJ’s duty to develop the record further is triggered

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only when there is ambiguous evidence or when the record is inadequate to allow for proper

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evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Here, Dr.

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McEachrane-Gross’s opinion is not ambiguous. The ALJ agreed with the doctor that Plaintiff

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“experienced expressive aphasia affecting her ability to communicate with others” but found the

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doctor “did not suggest vocationally specific functional limitations.” (AR 12.) The ALJ’s finding

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does not suggest the doctor’s opinion needs further development, as Plaintiff suggests, but instead

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is a reasonable assessment of what Dr. McEachrane-Gross stated. The doctor did not say Plaintiff

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was unable to work or otherwise implied it in a hazy way. Rather, the doctor stated Plaintiff had

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limitations which the ALJ accepted in fashioning Plaintiff’s RFC, which limits Plaintiff to work

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“with minimal communication required.” (AR 8.) While the Court accordingly concludes the ALJ

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did not err, the ALJ should revisit Dr. McEachrane-Gross’s opinions on remand, if necessary.

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ORDER RE: SOCIAL SECURITY DISABILITY APPEAL - 5

CONCLUSION

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For the foregoing reasons, this matter is REVERSED and REMANDED for further
administrative proceedings.
DATED this 31st day of March, 2021.

A

Mary Alice Theiler
United States Magistrate Judge

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ORDER RE: SOCIAL SECURITY DISABILITY APPEAL - 6