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Renner v. Berryhill

United States District Court, W.D. Washington, Seattle

January 18, 2018

TISHA E. RENNER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING AND REMANDING

          BRIAN A. TSUCHIDA United States Magistrate Judge

         Tisha 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.

         Because 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.

         BACKGROUND

         Plaintiff 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.

         THE ALJ'S DECISION

         To determine if Ms. Renner continued to be disabled, the ALJ utilized an eight-step sequential evaluation process pursuant to 20 CFR § 404.1594.[1] 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.

         The ALJ 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 RFC[2] to perform light work[3] (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.

         DISCUSSION

         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)).

         A. Evaluation of Medical Evidence

         Ms. 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.

         1. History of Mental Illness

         Ms. 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.

         In June 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.

         Ms. 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.

         The ALJ 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.

         2. Leslie A. Pickett, Ph.D. ...


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