United States District Court, W.D. Washington, Seattle
TISHA E. RENNER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING AND REMANDING
A. TSUCHIDA United States Magistrate Judge
E. Renner seeks review of the cessation of disability
benefits. She contends the ALJ erred when he improperly
evaluated medical evidence, her testimony, lay testimony, and
improperly assessed her residual functional capacity
(“RFC”). Dkt. 13. The Court concludes the ALJ
erred when he failed to fully develop the record as to the
current status of Ms. Renner's psychological impairments
and functionality, and when he failed to consider all
evidence of her physical limitations.
these errors were not harmless, the matter is reversed
pursuant to sentence four of 42 U.S.C. § 405(g) and
remanded to the Acting Commissioner for further proceedings
consistent with this order.
Tisha E. Renner was initially found disabled as of March 2000
due to severe mental and emotional problems. Tr. 84. Pursuant
to the Social Security laws and regulations, the Commissioner
conducts a periodic review to determine whether a recipient
continues to be disabled. 20 C.F.R. §§
404.1588-1599. Ms. Renner's claim was reviewed in 2005
and disability continued. Tr. 116. Ms. Renner began a trial
work period in 2006 and continued to work at a substantial
gainful level such that benefits terminated. Id. Ms.
Renner stopped working and her benefits were reinstated
effective October 2006. Id. On September 27, 2012,
the Commissioner determined that as of September 1, 2012, Ms.
Renner was no longer disabled. Tr. 86-89. This determination
was upheld after a state agency disability hearing (Tr.
114-23), and after a hearing before an Administrative Law
Judge (“ALJ”). Tr. 26-37. Ms. Renner sought
review in the Appeals Council. Tr. 22. The Appeals Council
denied review (Tr. 1-6), making the ALJ's decision the
final decision of the Commissioner. 20 C.F.R. §§
404.981, 422.210. This appeal followed.
determine if Ms. Renner continued to be disabled, the ALJ
utilized an eight-step sequential evaluation process pursuant
to 20 CFR § 404.1594. The most recent favorable medical
decision finding Ms. Renner disabled is the determination
dated July 17, 2007 (known as the “comparison point
decision” or “CPD”). Tr. 28. At time of the
CPD, Ms. Renner had the medically determinable impairments of
anxiety and schizophrenia. The ALJ found that after the CPD
and through September 1, 2012, Ms. Renner developed obesity
and substance dependence, which in addition to her existing
personality disorder, cause more than minimal limitations on
her ability to perform basic work activities. Tr. 28. The ALJ
also noted a non-severe physical impairment related to a 2005
tasing incident. Id.
found as of September 1, 2012, Ms. Renner's impairments
did not meet or equal any Listing (Tr. 28-29); medical
improvement had occurred, and Ms. Renner had the
to perform light work (Tr. 29); Ms. Renner's medical
improvement was related to the ability to work because it
resulted in an increased RFC (Tr. 35); and, Ms. Renner was
unable to perform any of her past relevant work (certified
nursing assistant and retail sales clerk), but she could
perform the jobs of surveillance system monitor, injection
molding machine tender, and grain picker and was therefore,
no longer disabled. Tr. 35-37.
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
Evaluation of Medical Evidence
Renner contends the ALJ erred when he: (1) failed to
acknowledge her history of severe mental illness; (2) stated
he was giving little weight to the evaluation and opinion of
psychologist Lezlie A. Pickett, Ph.D., but then gave great
weight to the adjudicative decision of Sheila Gottbreht -
which, Ms. Renner contends was based largely on Dr.
Pickett's opinion and the Cooperative Disability
Investigations Unit (“CDI”) report - which again,
was based largely on Dr. Pickett's opinion; (3) gave
little weight to the opinion of treating physician Paul
Schmidt, D.O.; (4) failed to discuss the clinical findings
and opinion of physical therapist Wendy Blair; and (5) gave
great weight to the opinions of the state agency
non-examining physicians and psychologists.
History of Mental Illness
Renner was involuntarily hospitalized three times in 2000 due
to psychotic symptoms consistent with paranoid schizophrenia.
Tr. 325-30, 335-38, 341-42. Ms. Renner was at that time found
to be disabled because her mental illness was so severe that
it met a Listing. Tr. 355. Ms. Renner was involuntarily
hospitalized again in 2005. Tr. 367-76.
2007, Dr. Kodish diagnosed Ms. Renner with posttraumatic
stress disorder, psychosis not otherwise specified,
depression not otherwise specified, and marijuana dependence
(with a GAF of 40). He concluded Ms. Renner would have
difficulty performing work activities on a consistent basis
without special supervision and maintaining regular
attendance in the workplace. Tr. 378-383.
Renner contends the ALJ erred when he failed to acknowledge
that her many psychiatric hospitalizations, along with Dr.
Kodish's evaluation, confirm that she has severe mental
impairments. Dkt. 14 at 3. The Commissioner argues that to
the extent the ALJ failed to discuss Dr. Kodish's 2007
evaluation, it was harmless error because the ALJ in fact
found that Ms. Renner has “severe psychological
impairments, ” and thus Dr. Kodish's evaluation was
inconsequential to the ultimate nondisability determination.
The Commissioner also contends the evidence is remote in time
and not particularly probative of Ms. Renner's
functioning in 2012. Dkt. 19 at 9-10.
in fact found that, “based on her history, ” Ms.
Renner has severe psychological impairments. However, the ALJ
erred when he failed to fully develop the record with respect
to the effect of those impairments on her ability to work.
Because the ALJ gave little weight to Dr. Pickett's 2012
consulting report and the reports of state reviewing
psychologists (who concluded that Ms. Renner has no severe
mental health impairment), Dr. Kodish's 2007 assessment
is the most current medical opinion which addresses both Ms.
Renner's psychological impairments and the effect of
those impairments on her ability to work. The effect of the
ALJ's error becomes clearer when one examines the manner
in which he assessed Dr. Pickett's psychological
evaluation and Ms. Gottbreht's adjudicative opinion.
Leslie A. Pickett, Ph.D. ...