United States District Court, W.D. Washington, Seattle
ORDER REVERSING AND REMANDING FOR AN AWARD OF
A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE
appeals the denial of Disability Insurance Benefits. She
contends the ALJ erred by concluding that plaintiff had
experienced medical improvement related to her ability to
work as of January 26, 2004. Dkt. 13, at 1. As discussed
below, the Court REVERSES the
Commissioner's final decision and
REMANDS under sentence four of 42 U.S.C.
§ 405(g) for an immediate award of benefits.
case has languished in administrative proceedings since she
filed her disability application in February 1999. Tr.
161-63. Plaintiff has attended four administrative hearings.
Tr. 74-116; Tr. 940-73; Tr. 1382-1418; Tr. 2245-2293. At one
point, the Appeals Council lost track of plaintiff's case
for almost eight years and eventually remanded for further
proceedings. Tr. 978. The federal district court has remanded
the claim for further proceedings twice. Tr. 731- 32; Tr.
plaintiff's third administrative hearing, the ALJ issued
a June 2014 decision concluding that plaintiff was disabled
from February 13, 1996, through January 25, 2004, but that as
of January 26, 2004, she was no longer disabled due to
medical improvement. Tr. 706-23. In 2016, this Court reversed
and remanded for further proceedings because the ALJ
misevaluated both credibility and residual functional
capacity (“RFC”) as to the latter period. Tr.
1459-64. With respect to credibility, the Court specified
three errors: (1) the ALJ had discounted
plaintiff's symptoms due to lack of treatment between
2003 and 2005 without acknowledging extensive testimony that
the lack of treatment was due to difficulties with insurance
and inability to pay; (2) while the ALJ
cited periods of improvement from 2006 to 2008 and from 2010
to 2011, plaintiff reported significant symptoms before,
during, and after those periods; and (3) the
ALJ did not adequately consider that during periods that
plaintiff showed increased activity, plaintiff also
experienced symptom exacerbation due to the increased
activity. Tr. 1459-62. With respect to RFC, the Court
specified two errors: (1) the ALJ's
misevaluation of credibility led to an inaccurate RFC; and
(2) the ALJ included a sit/stand requirement
in the RFC but failed to specify the frequency with which or
amount of time plaintiff needed to perform each activity. Tr.
fourth administrative hearing, the ALJ issued a July 2017
decision. Tr. 1424-66. The ALJ again concluded that plaintiff
was disabled from February 13, 1996, through January 25,
2004, but that as of January 26, 2004, she was no longer
disabled due to medical improvement. Tr. 1434. The ALJ
specified only two meaningful differences in assessed RFC
between the period of disability (February 13, 1996 to
January 25, 2004) and the period of non- disability (January
26, 2004 to present). First, ALJ responded to this
Court's scope of remand by noting in the non-disability
period RFC that claimant can stand and/or walk for 6 hours in
an 8hour workday; can stand for 1 hour at a time and walk for
1 hour at a time; can sit for 6 hours in an 8-hour workday;
and needs to alternate sitting and standing about every hour.
Tr. 1438. Second, the ALJ omitted from the non-disability
period RFC the restriction found in the disability period
RFC: “She would have been absent, tardy, or left the
workplace early three or more days per month due to her
mental health symptoms including her inability to maintain
concentration throughout an 8-hour workday.”
Compare Tr. 1433 with Tr. 1438. The ALJ
thus found that plaintiff's condition medically improved
since January 26, 2004, because she was no longer debilitated
by mental-health symptoms that would cause her to be absent,
tardy, or leave the workplace three or more days per month.
The ALJ did not, however, meaningfully respond to this
Court's specification of errors with respect to the
ALJ's credibility determination and its impact on RFC:
(1) the lack of treatment from 2003 to 2005
appeared to be financially driven; (2) the
periods of improvement included and were interspersed with
significant symptomology; and (3)
exacerbation of symptoms with increased activity. As the
Appeals Council did not exercise jurisdiction, the ALJ's
July 2017 decision is the Commissioner's final decision.
Commissioner's decision that a claimant is not disabled
will be upheld if the findings of fact are supported by
substantial evidence in the record as a whole and the proper
legal standards were applied. Schneider v. Comm'r of
the SSA, 223 F.3d 968, 973 (9th Cir. 2000). Plaintiff
contends that the ALJ's conclusion that plaintiff had
experienced medical improvement related to her ability to
work as of January 26, 2004, was not supported by substantial
evidence in the record and was based on an erroneous weighing
of the medical opinion evidence. The Court agrees. The ALJ
failed to produce evidence sufficient to rebut the
presumption of plaintiff's continuing
disability. Because the record is fully developed and
nothing would be gained by requiring plaintiff to endure
another two decades of administrative proceedings, the Court
reverses and remands for an immediate award of benefits.
It is a
well-established principle within the Ninth Circuit that once
an applicant for disability benefits has carried her burden
of proving a disability, “a presumption of continuing
disability arises in her favor.” Bellamy v.
Sec'y of Health & Human Servs., 755 F.2d 1380,
1381 (9th Cir. 1985) (citing Murray v. Heckler, 722
F.2d 499, 500 (9th Cir. 1983)); see Parra v. Astrue,
481 F.3d 742, 748 (9th Cir. 2007) (same); Perry v.
Heckler, 722 F.2d 461, 464 (9th Cir. 1983) (same). The
presumption of continuing disability shifts the burden of
production to the Commissioner to produce evidence sufficient
to rebut the presumption. Bellamy, 755 F.2d at 1381;
Murray, 722 F.2d at 500; Strengberg v.
Colvin, 2016 WL 2349092, at *5 (C.D. Cal. May 3, 2016);
Villarino v. Astrue, 2013 WL 441748, at *2 (W.D.
Wash. Jan. 14, 2013); Hanna v. Astrue, 2012 WL
966174, at *7 (W.D. Wash. Jan. 23, 2012); Bower v.
Astrue, 2011 WL 5057054, at *4 (W.D. Wash. Oct. 3,
2011); see also Medina v. Colvin, 2015 WL 5448498,
at *9 (N.D. Cal. Aug. 21, 2015) (examining the development of
Ninth Circuit law on the issue of the presumption of
continuing disability, concluding that the presumption
remains good law, and applying it); Palacios v.
Astrue, 2012 WL 601874, at *1 (C.D. Cal. Feb. 23, 2012)
(noting that the claimant retains the burden of
persuasion, but that the presumption of continuing
disability shifts the burden of production to the
Commissioner). In order to decide whether a claimant's
disability has continued, the Commissioner must determine if
there has been medical improvement in the claimant's
impairments and, if so, whether this medical improvement is
related to the claimant's ability to work. 42 U.S.C.
§ 423(f); 20 C.F.R. § 404.1594(a). Even where
medical improvement related to the claimant's ability to
work has occurred, the Commissioner must show that the
claimant is currently able to engage in substantial gainful
activity (“SGA”) before finding that the claimant
is no longer disabled. 42 U.S.C. § 423(f); 20 C.F.R.
concluded that plaintiff had experienced medical improvement,
and her disability ended, as of January 26, 2004. Tr. 1437.
According to the ALJ, prior to January 26, 2004, plaintiff
had been undergoing extensive mental health treatment for
PTSD, secondary to trauma from two separate motor vehicle
accidents in 1996; however, on January 25, 2004, plaintiff
was discharged from mental health services due to improvement
by treating psychologist D. Merilee Clunis, Ph.D. Tr. 1437
(citing Tr. 762, 792). The ALJ supported this
characterization of the record by citing medical records in
2004 in which there were no further complaints of PTSD or
other mental conditions-though the cited medical records were
entirely from dermatology and dental visits. Tr. 1437. The
Court finds that the Commissioner has failed to produce
evidence sufficient to rebut the presumption of continuing
disability because the ALJ mischaracterized Dr. Clunis's
notes; misevaluated the medical evidence; and failed to
address the Court's earlier scope of remand regarding
plaintiff's difficulties paying for medical treatment.
the ALJ mischaracterized treating psychologist Dr.
Clunis's notes. Although the ALJ cited Dr. Clunis's
notes for the proposition that plaintiff was discharged on
January 25, 2004, due to medical improvement, no such
conclusion can be drawn from Dr. Clunis's notes. Dr.
Clunis reported that she saw plaintiff for weekly sessions
from July 2002 to May 2003; saw her biweekly from May 2003 to
November 2003; and had her last session with plaintiff on
January 26, 2004. Tr. 762. Dr. Clunis reported:
Initially we focused on the trauma of the car accidents and
she reported noticeable improvement in her symptoms. Then we
addressed the aftermath of the accidents including the
effects of chronic pain and disability on her and on her
family. Eventually we also addressed issues from her
childhood as well as difficulties in her marriage.
Kimberly worked very hard in therapy and made significant
Tr. 762. Although Dr. Clunis referred to “significant
progress, ” nowhere did she state that plaintiff was
discharged due to medical improvement and there is
no indication that the “improvement in her
symptoms” referred to by Dr. Clunis led a less
restrictive RFC or enabled her to complete SGA
full-time. The ALJ cites to Dr. Clunis's
handwritten notes, but the only relevant notes provide:
“1/26/04 Review & Term.” This is why in the
2005 administrative hearing the ALJ noted that Dr. Clunis
“basically says I've seen her for x amount of time.
She's made progress. Thank you very much. So they
don't really give me a basis to be able to conclude
anything.” Tr. 963. At the same hearing, medical expert
Norman Gustavson, Ph.D., agreed that Dr. ...