United States District Court, W.D. Washington, Tacoma
JANINE M. FREEMAN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION ON PLAINTIFF'S COMPLAINT
J. RICHARD CREATURA, Magistrate Judge.
This matter has been referred to United States Magistrate Judge J. Richard Creatura pursuant to 28 U.S.C. § 636(b)(1) and Local Magistrate Judge Rule MJR 4(a)(4), and as authorized by Mathews, Secretary of H.E.W. v. Weber, 423 U.S. 261, 271-72 (1976). This matter has been fully briefed ( see ECF Nos. 13, 15, 16).
After considering and reviewing the record, the Court finds that the ALJ failed to evaluate properly the medical and the lay evidence. Specifically, the ALJ failed to explain adequately his finding of an inconsistency between the assignment of a global assessment of functioning of 40 by an examining doctor and other notes by the doctor or plaintiff's activities of daily living. Based on a review of the relevant record, there is no apparent inconsistency.
Therefore, the ALJ's reliance on this finding without adequate explanation of why the ALJ's interpretation was more correct than the interpretation of the examining doctor was legal error. Because full adoption of the discredited opinions likely would alter the finding regarding plaintiff's residual functional analysis, and hence, the ultimate determination regarding disability, this legal error is not harmless error.
For these reasons, this matter should be reversed and remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings.
Plaintiff, JANINE M. FREEMAN, was born in 1976 and was 32 years old on the alleged date of disability onset of April 10, 2009 ( see Tr. 153-54). Plaintiff has a high school diploma and has a Cook's Helper certificate from Olympic College (Tr. 43-44). Plaintiff has worked a variety of jobs including sales associate, hostess, cocktail server, receptionist, childcare provider, clerk and assistant manager (Tr. 178). Her most recent job was as a telemarketer, but did not continue past the training period because, according to plaintiff, "I wasn't making the grades on the tests, I wasn't being able to focus..." (Tr. 52).
Plaintiff has at least the severe impairments of "bipolar II disorder and drug and alcohol abuse (20 CFR 404.1520(c))" (Tr. 14).
At the time of the hearing, plaintiff was living in a duplex with her boyfriend and her three children (Tr. 44-45).
Plaintiff filed an application for disability insurance ("DIB") benefits pursuant to 42 U.S.C. § 423 (Title II) of the Social Security Act on October 5, 2009 ( see Tr. 153-154). The application was denied initially and following reconsideration in 2010 (Tr. 73-89). Plaintiff's requested hearing was held before Administrative Law Judge Larry Kennedy ("the ALJ") on May 2, 2011 ( see Tr. 38-72). On June 6, 2011, the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act ( see Tr. 9-27). He made the following finding regarding plaintiff's residual functional capacity ("RFC"):
After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) with the following nonexertional limitations. She could perform simple, routine tasks and follow short, simple instructions. She could do work that needs little or no judgment and could perform simple duties that can be learned on the job in a short period. She would  have average ability to perform sustained work activities (i.e. can maintain attention and concentration; persistence and pace) in an ordinary work setting on a regular and continuing basis(i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule) within customary tolerances of employers rules regarding sick leave and absence. She can deal with occasional work setting change. She is also able to engage in simple and superficial exchanges with coworkers and the public, but she is not able to deal with complex or demanding social exchanges.
On November 23, 2012, the Appeals Council granted plaintiff's request for review based on "an error of law" (Tr. 28); indicated that it did "not find the [ALJ]'s rationale to be consistent with [the] agency's policy concerning the receipt of unemployment benefits"; yet adopted the ALJ's "findings or conclusions regarding whether the claimant is disabled" (Tr. 4), finding that "[n]onetheless, in this case, the Appeals Council finds that the overall evidence, including the claimants' subjective complaints, her application for unemployment benefits, and her testimony regarding the same, supports a finding determination of not disabled (Tr. 6; see also Tr. 1-8, 28-32). See 20 C.F.R. § 404.981.
Specifically, the Appeals Council adopted "the Administrative Law Judge's rationale regarding the credibility of the claimant's subjective complaints, except that portion of the rationale regarding the claimant's application for unemployment benefits" ( see Tr. 5). The Appeals Council adopted the ALJ's RFC determination and his "findings or conclusions regarding whether the claimant is disabled" ( see Tr. 4).
Plaintiff filed a complaint in this Court seeking judicial review in January, 2013 ( see ECF Nos. 1, 3). Defendant filed the sealed administrative record regarding this matter ("Tr.") on April 2, 2013 ( see ECF Nos. 10, 11).
In plaintiff's Opening Brief, plaintiff raises the following issues: (1) Whether or not the Appeals Council improperly rejected the opinions of plaintiff's treating and examining medical sources; (2) Whether or not the Appeals Council improperly rejected plaintiff's subjective complaints; (3) Whether or not the Appeals Council improperly rejected the lay witness statements; and (4) Whether or not the Appeals Council erred in failing to conduct an adequate step five analysis ( see ECF No. 13, p. 1).
STANDARD OF REVIEW
Plaintiff bears the burden of proving disability within the meaning of the Social Security Act (hereinafter "the Act"); although the burden shifts to the Commissioner on the fifth and final step of the sequential disability evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140, 146 n. 5 (1987). The Act defines disability as the "inability to engage in any substantial gainful activity" due to a physical or mental impairment "which can be expected to result in death or which has lasted, or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant is disabled pursuant to the Act only if claimant's impairment(s) are of such severity that claimant is unable to do previous work, and cannot, considering the claimant's age, education, and work experience, engage in any other substantial gainful activity existing in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not 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. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) ( quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)). Regarding the question of whether or not substantial evidence supports the findings by the ALJ, the Court should "review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'" Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) ( citing Magallanes, supra, 881 F.2d at 750).
In addition, the Court must independently determine whether or not "the Commissioner's decision is (1) free of legal error and (2) is supported by substantial evidence.'" See Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2006) ( citing Moore v. Comm'r of the Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002) (collecting cases)); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) ( citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985)). According to the Ninth Circuit, "[l]ong-standing principles of administrative law require us to review the ALJ's decision based on the reasoning and actual findings offered by the ALJ - not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking." Bray v. Comm'r of SSA, 554 F.3d 1219, 1225-26 (9th Cir. 2009) ( citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947) (other citation omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) ("we may not uphold an agency's decision on a ground not actually relied on by the agency") ( citing Chenery Corp, supra, 332 U.S. at 196). In the context of social security appeals, legal errors committed by the ALJ may be considered harmless where the error is irrelevant to the ultimate disability conclusion when considering the record as a whole. Molina, supra, 674 F.3d at 1117-1122; see also 28 U.S.C. § 2111; Shinsheki v. Sanders, 556 U.S. 396, 407 (2009).
(1) Whether or not the ALJ improperly rejected the opinions of plaintiff's treating and ...