United States District Court, E.D. Washington
WILLIAM F. MARX, Plaintiff,
CAROLYN W. COLVIN, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND DENYING DEFENDANT'S MOTION FOR SUMMARY
Van Sickle, Senior United States District Judge.
THE COURT are the parties' cross motions for summary
judgment. ECF Nos. 16, 17. This matter was submitted for
consideration without oral argument. The plaintiff is
represented by Attorney Joseph M. Linehan. The defendant is
represented by Special Assistant United States Attorney
Michael Tunick. The Court has reviewed the administrative
record and the parties' completed briefing and is fully
informed. For the reasons discussed below, the Court
GRANTS Plaintiff's Motion for Summary
Judgment, ECF No. 16, and DENIES
Defendant's Motion for Summary Judgment, ECF No. 17.
William F. Marx protectively filed for disability insurance
benefits on May 13, 2014, alleging an onset date of April 23,
2012. Tr. 359. On August 4, 2014, Plaintiff was awarded a
closed period of benefits from April 23, 2012 to June 12,
2103, which was affirmed on reconsideration. Tr. 137-38. On
October 22, 2014, Plaintiff filed a request for
reconsideration claiming he continued to be disabled after
the closed period, which was denied. Tr. 177, 181-83.
Plaintiff requested a hearing before an administrative law
judge (“ALJ”), which was held before ALJ R.J.
Payne on April 24, 2015. Tr. 41-124. The ALJ denied benefits
on August 27, 2015. Tr. 152-71. On March 18, 2016, the
Appeals Council vacated the decision and remanded the matter
to ALJ Payne to clarify the relevant period at issue at the
hearing level, and “apply the sequential evaluation
process to determine whether claimant was disabled during the
period at issue.” Tr. 173-74. A second hearing was held
before ALJ Payne on April 25, 2016. Tr. 1291-1337. Plaintiff
was represented by counsel and testified at the hearing.
Id. Medical expert Reuben Beezy, M.D. testified that
Plaintiff met the listing through October 2015, and after
that he “would be sedentary.” Tr. 1296-1319. On
May 5, 2016, ALJ Payne found Plaintiff was under a disability
from April 23, 2012 through February 1, 2015; but found
medical improvement occurred February 2, 2015 and
Plaintiff's disability ended as of that date. Tr. 16-38.
The Appeals Council denied review on June 11, 2016. Tr. 1.
The matter is now before this court pursuant to 42 U.S.C.
facts of the case are set forth in the administrative hearing
and transcripts, the ALJ's decision, and the briefs of
Plaintiff and the Commissioner, and will therefore only the
most pertinent facts are summarized here.
F. Marx (“Plaintiff”) was 35 years old at the
alleged onset date. Tr. 52. Plaintiff completed twelfth grade
and two years of college. Tr. 1319-1320. He was diagnosed
aplastic anemia in February 2012, and underwent an allogenic
stem cell transplant on June 12, 2012. Tr. 24, 942. After the
transplant, in November 2012, Plaintiff was diagnosed with
Graft Versus Host Disease (“GVHD”). See
Tr. 646, 661. In January 2015, Plaintiff had a diagnosed
“flare” of GVHD, which was treated, and improved
in February 2015. Tr. 1226-1240, 1258-1261. Then, in October
2015, medical records show a “possible flare” of
GVHD. Tr. 1280-1289. The record before the ALJ, and this
Court, does not include evidence of treatment after October
2015. See Tr. 28.
second hearing, Plaintiff testified that since October 2015,
if he does not take a nap every day, it “takes a
minimum of three days to recover;” and he only sleeps
through the night twice in a two week period. Tr. 1322-1323.
He testified that he could walk around a three block loop at
the furthest; could stand for five minutes at a time, and
longer if he has a counter to lean on for balance; could sit
for an hour and a half; and has three to four “good
days” in an average week. Tr. 1329-1332. Plaintiff
testified that he has joint pain and “burning
skin;” and has had “mild flares” of GVHD
since October 2015, which often happens when he starts to
taper off of Prednisone. Tr. 1333-1335.
district court's review of a final decision of the
Commissioner of Social Security is governed by 42 U.S.C.
§ 405(g). The scope of review under § 405(g) is
limited; the Commissioner's decision will be disturbed
“only if it is not supported by substantial evidence or
is based on legal error.” Hill v. Astrue, 698
F.3d 1153, 1158 (9th Cir. 2012). “Substantial
evidence” means “relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion.” Id. at 1159 (quotation and
citation omitted). Stated differently, substantial evidence
equates to “more than a mere scintilla[, ] but less
than a preponderance.” Id. (quotation and
citation omitted). In determining whether the standard has
been satisfied, a reviewing court must consider the entire
record as a whole rather than searching for supporting
evidence in isolation. Id.
reviewing a denial of benefits, a district court may not
substitute its judgment for that of the Commissioner. If the
evidence in the record “is susceptible to more than one
rational interpretation, [the court] must uphold the
ALJ's findings if they are supported by inferences
reasonably drawn from the record.” Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a
district court “may not reverse an ALJ's decision
on account of an error that is harmless.” Id.
An error is harmless “where it is inconsequential to
the [ALJ's] ultimate nondisability determination.”
Id. at 1115 (quotation and citation omitted). The
party appealing the ALJ's decision generally bears the
burden of establishing that it was harmed. Shinseki v.
Sanders, 556 U.S. 396, 409-10 (2009).
Commissioner has established a multi-step sequential
evaluation process for determining whether a person's
disability continues or ends. 20 C.F.R. § 404.1594
(2012). This multi-step continuing disability
review process is similar to the five-step sequential
evaluation process used to evaluate initial claims, with
additional attention as to whether there has been medical
improvement. Compare 20 C.F.R. § 404.1520
with § 404.1594(f) (2012). A claimant is
disabled only if her impairment is “of such severity
that [he] is not only unable to do [his] previous work[, ]
but cannot, considering [his] age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy.” 42 U.S.C.
of whether a person's eligibility for disability benefits
continues or ends involves an eight-step process. 20 C.F.R.
§ 404.1594(f)(1)-(8) (2012). The first step addresses
whether the claimant is engaging in substantial gainful
activity. 20 C.F.R. § 404.1594(f)(1) (2012). If not,
step two determines whether the claimant has an impairment or
combination of impairments that meets or equals the severity
of an impairment listed in 20 C.F.R. pt. 404, Subpt. P, App.
1. 20 C.F.R. § 404.1594(f)(2) (2012). If the impairment
does not meet or equal a listed impairment, the third step
addresses whether there has been medical improvement in the
claimant's condition. 20 C.F.R. § 404.1594(f)(3)
(2012). Medical improvement is “any decrease in the
medical severity” of the impairment that was present at
the time the individual was disabled or continued to be
disabled. 20 C.F.R. § 404.1594(b)(1) (2012).
there has been medical improvement, at step four, it is
determined whether such improvement is related to the
claimant's ability to do work-that is, whether there has
been an increase in the individual's residual functional
capacity. 20 C.F.R. § 404.1594(f)(4) (2012). If the
answer to step four is yes, the Commissioner skips to step
six and inquires whether all of the claimant's current
impairments in combination are severe. Id. If there
has been no medical improvement or medical improvement is not
related to the claimant's ability to work, the evaluation
proceeds to step five. Id.
five, if there has been no medical improvement or the medical
improvement is not related to the ability to do work, it is
determined whether any of the special exceptions apply. 20
C.F.R. § 404.1594(f)(5) (2012). At step six, if medical
improvement is shown to be related to the claimant's
ability to work, it is determined whether the claimant's
current impairments in combination are severe-that is,
whether they impose more than a minimal limitation on the
claimant's physical or mental ability to perform basic
work activities. 20 C.F.R. § 404.1594(f)(6) (2012);
see also 20 C.F.R. § 404.1521 (1985). If the
step six finding is that the claimant's current
impairments are not severe, the claimant is no longer
considered to be disabled. 20 C.F.R. 404.1594(f)(6) (2012).
step six finding is that the claimant's current
impairments are severe, at step seven, a residual functional
capacity finding is made and it is determined whether the
claimant can perform past relevant work. 20 C.F.R. §
404.1594(f)(7) (2012), 404.1520(e); see also S.S.R.
at step eight, if the claimant cannot perform past relevant
work, the Commissioner must prove there is alternative work
in the national economy that the claimant can perform given
her age, education, work experience, and residual functional
capacity. 20 C.F.R. § 404.1594(f)(8) (2012). If the
claimant cannot perform a significant number of other jobs,
she remains disabled despite medical improvement; if,
however, she can perform a significant number of other jobs,
disability ceases. Id.
one, the ALJ found Plaintiff has not engaged in substantial
gainful activity since April 23, 2012, the date the Plaintiff
became disabled. Tr. 24. At step two, the ALJ found that from
April 23, 2012 through February 1, 2015, the period during
which Plaintiff was under a disability, he had the following
severe impairments: aplastic anemia; and graft versus host
disease. Tr. 24. The ALJ also found that from April 23, 2012
through February 1, 2015, the period during which Plaintiff
was disabled, the severity of Plaintiff's impairments met
the criteria of sections(s) 7.17 and 13.28 of 20 CFR Part
404, Subpart P, Appendix 1; thus, Plaintiff was under a
disability, as defined by the Social Security Act, from April
23, 2012, through February 1, 2015. Tr. 24-27. At step three,
the ALJ found that medical improvement occurred as of
February 2, 2015, the date Plaintiff's disability ended.
Tr. 27. At step four, the ALJ found that the medical
improvement that has occurred is related to the ability to
work because Plaintiff no longer has an impairment or
combination of impairments that meets or medically equaled
the severity of a listing. Tr. 27.
the finding at step four indicated medical improvement, the
ALJ skipped to step six and found that Plaintiff's severe
impairments were the same as those present from April 23,
2012 through February 1, 2015. Tr. 27. The ALJ concluded that
beginning February 2, 2015, Plaintiff has had the RFC to
perform sedentary work as defined in 20 CFR 404.1567(a)
except he is limited to no climbing of ladders, ropes or
scaffolds; and no exposure to unprotected heights or
hazardous machinery. Tr. 27. At step seven, the ALJ found
Plaintiff was unable to perform past relevant work. Tr. 30.
At the last step, considering Plaintiff's age, education,
work experience, and RFC, the ALJ found there have been jobs
that exist in significant numbers in the national economy
that Plaintiff can perform. Tr. 30. On that basis, the ALJ
concluded that Plaintiff's disability ended February 2,
2015. Tr. 30.
seeks judicial review of the Commissioner's final
decision denying her disability benefits under Title II of
the Social Security Act. ECF No. 16. Plaintiff raises the
following issue for this Court's review: whether
Plaintiff was denied a full and fair hearing.
argues he was denied a full and fair hearing. ECF No. 16 at
15-16. Additionally, Plaintiff argues the ALJ failed to
properly evaluate the medical evidence, improperly determined
Plaintiff was not credible, erred by finding Plaintiff did
not meet the listings at step three for the period after
February 2, 2015, failed to support the RFC assessment with
substantial evidence, and erred by failing to hear testimony
from a vocational expert. ECF No. 16 at 7-16. Because the
Court agrees that Plaintiff was denied due process in this
case for the reasons discussed below, the case is remanded
with instructions to conduct a de novo hearing as to the time
period beginning February 2, 2015. Thus, the Court need not
consider the additional arguments.
for social security benefits are entitled to due process in
the determination of their claims.” Holohan v.
Massanari, 246 F.3d 1195, 1209 (9th Cir. 2001).
“The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a
meaningful manner.” Mathews v. Eldridge, 424
U.S. 319, 333 (1976) (internal quotation marks omitted).
Accordingly, under the Social Security Act, claimants shall
be given reasonable notice and opportunity for a hearing with
respect to a decision rendered by an ALJ, during which the
ALJ may examine witnesses and receive evidence. 42 U.S.C.
405(b)(1). Hearing procedures may be informal, but they must
be “fundamentally fair.” Richardson v.
Perales, 402 U.S. 389, 401-02 (1971); see also
Martise v. Astrue, 641 F.3d 909, 921-22 (8th Cir. 2011)
(“procedural due process requires disability claimants
to be afforded a full and fair hearing”); Ferriell
v. Comm'r of Soc. Sec., 614 F.3d 611, 620 (6th Cir.
2010) (“In the context of a social security hearing,
due process requires that the proceedings be full and
fair.”). Moreover, the “ALJ in a social security
case has an independent duty to fully and fairly develop the
record and to assure that the claimant's interests are
considered.” Tonapetyan v. Halter, 242 F.3d
1144, 1150 (9th Cir. 2001).
Plaintiff argues he was denied “a fair opportunity to
present evidence relevant to the issues.” Specifically,
he contends that
the ALJ's written decision analyzes a RFC period that he
told [Plaintiff's] attorney that he would not be using.
In Finding/Conclusion #9, the ALJ considered
[Plaintiff's] residual functional capacity beginning
February 2, 2015. However, at the hearing, the ALJ
specifically said he would not be considering
[Plaintiff's] RFC after September 30, 2014, and later
changed the date to January 1, 2015. The evidentiary record
is unclear as to the relevant period for considering
[Plaintiff's] RFC. Moreover, [Plaintiff] was denied the
opportunity to fully address the RFC issue. [Plaintiff's]
attorney was told to restrict evidence to a timeframe that
the ALJ did not use. As noted in the Appeals Council remand
decision, the contradiction in the hearing record and ALJ
findings raises the issue of whether [Plaintiff] received a
full and fair hearing.
16 at 15-16 (citing Tr. 173). Defendant argues that
Plaintiff's argument “misreads” the
transcript and contends that the ALJ did not “restrict
the presentation of evidence to a particular time-period or
state that he would not be considering Plaintiff's RFC
after a particular date.” ECF No. 17 at 16. According
to Defendant, the ALJ told counsel at the April 2016 hearing
that he would assess Plaintiff's RFC after January 1,
2015. ECF No. 17 at 16 (citing Tr. 1336). However, after
exhaustive review of the hearing transcript, the Court finds
this statement is not an entirely accurate representation of
the record; nor does it address the consistent indecision
expressed by the ALJ in deciding the relevant time period
under consideration throughout the hearing.
start of the April 2016 hearing, the ALJ accurately notes
that Plaintiff has filed an application for disability
benefit under Title II of the Social Security Act and has met
the earnings requirement only through September 30, 2014;
thus, in order “to prevail in this case, ”
Plaintiff must show he became disabled on or before the date
last insured, September 30, 2014. Tr. 20, 1293. The ALJ then
notes that he “believes” that Plaintiff met the
listing at step three for the time period of April 25, 2012
to June 12, 2013, and somewhat inexplicably asks
Plaintiff's counsel if Plaintiff would be willing to
amend his alleged onset date to June 13, 2012; which counsel
agrees to “with the understanding that the listing was
met for the year prior.” Tr. 1294. However, the written
decision does not reflect an amendment of the alleged onset
at the hearing, the ALJ asked Plaintiff's attorney if
there were any medical records outstanding that predate the
date last insured (“DLI”) September 30, 2014, and
noted the reason he is “talking about that particular
day” is that the Appeals Council remanded “for
the purpose of establishing …the date in question in
this hearing.” Tr. 1295-96. In keeping with this goal,
the ALJ began his examination of the medical expert
(“ME”) by noting that the “determination in
this case to the claimant's condition or conditions from
the onset date of April 23rd, 2012 to September
30th, 2014, the date last insured, hereinafter
called the relevant period.” Tr. 1297. This would seem
to imply that the ALJ was considering a closed period of
disability; however, after the ME opines that Plaintiff would
meet the listings up to October 2015, the ALJ states that he
will “need an RFC for October of 2015 onward, unless,
unless, the claimant's satisfied within closed period on
the meeting of listings here.” Tr. 1314.
Plaintiff's counsel says “no, ” at which
point the ME opines as to Plaintiff's RFC from October
2015 forward. Tr. 1315-18. Then, at the conclusion of the
ME's testimony, the following exchange occurs between the
ALJ and the ME:
ALJ: And the -- this RFC is for the period prior September