Foster v. Commissioner of Social Security

Filing 14

ORDER REVERSING THE COMMISSIONER'S DECISION by Hon. Brian A Tsuchida. (AQ)

Case 3:22-cv-05482-BAT Document 14 Filed 01/17/23 Page 1 of 7

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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DOREEN F.,
CASE NO. C22-5482-BAT

Plaintiff,

ORDER REVERSING THE
COMMISSIONER’S DECISION

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

Plaintiff appeals the partial denial of her application for Disability Insurance Benefits.

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She contends the ALJ misevaluated certain medical opinions, and erroneously found her not

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disabled at step five before September 11, 2020. Dkt. 8 at 1. For the reasons below, the Court

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REVERSES the Commissioner’s final decision and REMANDS the matter for further

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

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BACKGROUND
In April 2017, Plaintiff applied for benefits, alleging disability starting July 18, 2015, and

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a date last insured of March 31, 2021. Tr. 196-202, 811. Her application was denied initially

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and on reconsideration. Tr. 126-32, 134-40. The ALJ conducted a hearing in October 2018 (Tr.

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36-90), and subsequently found Plaintiff not disabled. Tr. 18-29.

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The Appeals Council denied Plaintiff’s request for review, Tr. 1-7, and Plaintiff appealed.

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The U.S. District Court for the Western District of Washington reversed the ALJ’s decision and

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remanded for further administrative proceedings. Tr. 934-38. On remand, a different ALJ held a

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hearing, Tr. 861-83, and subsequently issued a decision finding Plaintiff disabled as of

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September 11, 2020, and not disabled before that date. Tr. 808-30. The Appeals Council did not

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assume jurisdiction, and the ALJ’s decision is therefore the Commissioner’s final decision.

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Plaintiff appeals the ALJ’s decision limited to the finding that she is not disabled before

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September 11, 2020.
DISCUSSION

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A.

Medical Opinions
Plaintiff contends the ALJ misevaluated the opinions of treating physician Kenneth

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Bakken, D.O., and examining psychologist Katia Ramirez, Psy.D. The ALJ was required to

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articulate the persuasiveness of each medical opinion, specifically with respect to whether the

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opinions are supported and consistent with the record. 20 C.F.R. §§ 404.1520c(a)-(c),

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416.920c(a)-(c). An ALJ’s consistency and supportability findings must be supported by

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substantial evidence. See Woods v. Kijakazi, 32 F.4th 785, 792 (9th Cir. 2022).

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In 2018, Dr. Bakken opined Plaintiff was limited to sedentary work with occasional

Dr. Bakken’s Opinions

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manipulative activities and would miss four or more days of work per month. Tr. 800-01, 803-

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04. The ALJ discounted Dr. Bakken’s finding them inconsistent with the many normal objective

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findings in the record (as to gait, range of motion, and neurological functioning), as well as with

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the evidence “showing that [Plaintiff’s] physical conditions were stable and managed effectively

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on her treatment regimen[.]” Tr. 824. The ALJ also specifically rejected the manipulative

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limitations described by Dr. Bakken on the grounds there was no evidence in the record

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corroborated the existence of such limitations. Id. Lastly, the ALJ found Dr. Bakken’s opinions

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to be inconsistent with Plaintiff’s activities, such as cooking simple meals, performing light

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household chores, driving, shopping, socializing, traveling, and participating in hobbies. Tr.

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824-25.

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In the previous decision, the ALJ also found Dr. Bakken’s opinions to be inconsistent

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with the record because it showed improvement with treatment. See Tr. 26. This Court found

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this finding was not supported by substantial evidence because the record before that ALJ did not

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demonstrate consistent improvement to the point Plaintiff could work. See Tr. 935-36.

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Although the Commissioner correctly notes the ALJ in this decision considered additional

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evidence when finding improvement (Dkt. 12 at 4-6), the Court’s review of the more recent

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evidence up to the disability onset date does not show Plaintiff experienced improvement with

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treatment such that she could sustain full-time work during that time period, either. See, e.g., Tr.

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1272 (Plaintiff reports in July 2019 that her pain would improve for a short period of time after

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injections and then return, and has gotten worse), 1282 (Plaintiff reports in April 2019 that

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injections improve her pain by 50% for a short period of time, and her pain has gotten worse

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overall), 1292 (Plaintiff reports in January 2019 that her pain is causing her to limit activities

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outside her home), 1323 (Plaintiff reports medication is 20% effective in relieving her pain),

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1330 (Plaintiff reports in July 2019 that she “has not had much response to previous

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medications” for her fibromyalgia pain, and thus tried genetic testing to find a better medication),

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1373 (January 2020 steroid injection caused side effects and did not lead to pain relief), 1386

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(reports that she received 3-4 years of complete relief of lumbar pain from treatment she received

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in 2014, but that after that she has not found any treatment that works). Accordingly, the ALJ

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erred in finding Dr. Bakken’s opinions unpersuasive on this basis.
Also, the ALJ cited activities that are not inconsistent with the limitations described by

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Dr. Bakken, because they all could be performed in a manner consistent with sedentary work

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and/or a restriction to occasional manipulative activities, and Plaintiff’s description of the

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activities does not conflict with Dr. Bakken’s opinions. The Commissioner emphasizes Plaintiff

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reported a hobby of crocheting (Dkt. 12 at 7 (citing Tr. 804)), but Plaintiff reported an ability to

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crochet on an occasional basis due to hand limitations. See Tr. 804. There is no evidence in the

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record to suggest Plaintiff crocheted every day on a more than occasional basis; thus Dr.

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Bakken’s limitation to occasional manipulative activities is not inconsistent with Plaintiff’s

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crochet activities. Likewise, Plaintiff’s ability to engage in some activities during the day is not

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inconsistent with Dr. Bakken’s opinion Plaintiff must lie down during the day at an unspecified

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frequency for an unknown length of time. See Tr. 803. Hence, while the Commissioner notes

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Plaintiff reported the ability to attend her son’s wedding, take Tai Chi classes, make soap,

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participate in a one-day trade show, and travel (Dkt. 12 at 8), the record indicates that Plaintiff’s

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need to lie down would preclude work activities. Because Plaintiff’s activities are not

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inconsistent with Dr. Bakken’s opinions, the ALJ erred in finding the opinions unpersuasive in

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light of Plaintiff’s activities.

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Dr. Bakken did state, however, that Plaintiff had difficulty ambulating at times and

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unsteady gait (Tr. 800, 803), and the ALJ cited evidence showing Plaintiff was consistently

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observed to have normal gait and no need for any assistive device for ambulation. See Tr. 820.

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But Dr. Bakken’s opinion attributes Plaintiff’s limitations to fibromyalgia pain, which would not

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necessarily be inconsistent with findings of normal gait or normal ambulation. See Tr. 800-01,

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803-04. Thus, although the ALJ identified some degree of inconsistency between Dr. Bakken’s

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symptom list and the treatment record, this inconsistency does not contradict Dr. Bakken’s

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conclusions and therefore does not serve as a reason to find Dr. Bakken’s conclusions

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unpersuasive.

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Accordingly, the Court concludes the ALJ again erred in finding Dr. Bakken’s opinions
inconsistent with the record and therefore unpersuasive.

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2.

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In September 2020, Dr. Ramirez examined Plaintiff and wrote a narrative report

Dr. Ramirez’s Opinion

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describing her symptoms and disabling limitations. Tr. 1401-05. The ALJ found the opinion

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supported a finding of disability beginning September 2020 because it was consistent with the

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overall medical record and supported by Dr. Ramirez’s examination findings. Tr. 827-29.

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Plaintiff argues that the ALJ erred in finding her disabled as of the date of Dr. Ramirez’s

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examination, rather than considering whether her disability began earlier. Dkt. 8 at 3-4.

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The Court agrees. Particularly because the ALJ found Dr. Ramirez’s opinion to be

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“consistent with the overall medical evidence of record as of September 11, 2020” and

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“consistent with the claimant’s overall decline in functioning due to her mental health

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impairments, which are directly affected by her chronic pain and fatigue[,]” it appears that the

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ALJ found that records predating Dr. Ramirez’s opinion corroborated Dr. Ramirez’s conclusions.

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See Tr. 828. The ALJ’s own findings does not resolve precisely when Plaintiff’s limitations

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became disabling, and this ambiguity requires medical inferences to be made. See Morgan v.

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Sullivan, 945 F.2d 1079, 1082 (9th Cir. 1991) (making an informed inference where the date of

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onset of a mental impairment is ambiguous “is not possible without the assistance of a medical

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expert”). Under these circumstances, the ALJ should have developed the record by obtaining

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testimony from a medical expert. See Social Security Ruling 83-20, 1983 WL 31249, at *3 (Jan.

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1, 1983).

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B.

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Remedy
As the Court has explained, the ALJ erred in finding Dr. Bakken’s opinions unpersuasive

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and in failing to develop the record in determining the onset date. 1 Although Plaintiff requests

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that these errors by remedied by a finding of disability, the Court finds this extraordinary remedy

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is not appropriate here. See Leon v. Berryhill, 880 F.3d 1044, 1045 (9th Cir. 2017) (“An

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automatic award of benefits in a disability benefits case is a rare and prophylactic exception to

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the well-established ordinary remand rule.”). As explained supra, the ALJ on remand should

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develop the record to determine the appropriate disability onset date, and the Court declines to

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make independent findings in this regard. The ALJ’s unchallenged reasons to discount

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Plaintiff’s testimony also demonstrate the existence of inconsistencies in the record, which

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indicates that further proceedings would be useful. See Dominguez v. Colvin, 808 F.3d 403, 409

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(9th Cir. 2015) (“The ALJ’s well-supported credibility concerns raise additional factual issues

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that require resolution.”). Accordingly, the Court declines to exercise its discretion to remand

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for a finding of disability at this time.
CONCLUSION

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For the foregoing reasons, the Commissioner’s decision is REVERSED, and this case is

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

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limited to whether Plaintiff is disabled prior to September 11, 2020. The ALJ found Plaintiff

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disabled after September 11, 2020, and the Court does not disturb that finding. On remand, the

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In light of this disposition, the Court need not address Plaintiff’s assignment of error pertaining
to the ALJ’s step-five findings in the interest of judicial economy, because these findings may be
revisited on remand. Furthermore, the Commissioner concedes that the ALJ’s step-five findings
contain ambiguity as to whether Plaintiff can perform sedentary work. Dkt. 12 at 14-15.
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ALJ shall reassess Dr. Bakken’s opinions, develop the record as to Plaintiff’s disability onset

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date, and reconsider any other parts of the decision as necessary.

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DATED this 17th day of January, 2023.

A

BRIAN A. TSUCHIDA
United States Magistrate Judge

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