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Buckholz v. Berryhill

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

May 22, 2018

NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Jackie K. Buckholz has brought this matter for judicial review of defendant's denial of her application for supplemental security income (SSI) benefits. The parties have consented to have this matter heard by the undersigned Magistrate Judge. 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73; Local Rule MJR 13. For the reasons set forth below, the Court reverses the Commissioner's decision denying benefits and remands for further administrative proceedings.

         I. BACKGROUND

         On June 11, 2014, Ms. Buckholz filed an application for supplemental security income benefits. Dkt. 14, Administrative Record (AR) 20. She alleged in her application that she became disabled beginning January 1, 2008; the Administrative Law Judge (ALJ) determined the operative date concerning the payment of any disability benefits would be June 11, 2014.[1] Id. Her application was denied on initial administrative review and on reconsideration. Id. A hearing was held before an administrative law judge (ALJ) on March 4, 2016. AR 41-76. Ms. Buckholz and a vocational expert appeared and testified.

         The ALJ found that Ms. Buckholz could perform jobs that exist in significant numbers in the national economy, and therefore that she was not disabled. AR 20-35 (ALJ decision dated August 29, 2016). The Appeals Council denied Ms. Buckholz's request for review on July 19, 2017, making the ALJ's decision the final decision of the Commissioner. AR 1. Ms. Buckholz appealed that decision in a complaint filed with this Court on September 8, 2017. Dkt. 8; 20 C.F.R. § 416.1481.

         Ms. Buckholz seeks reversal of the ALJ's decision and remand for an award of benefits or, alternatively, for further administrative proceedings including a new hearing. She argues that the ALJ misapplied the law and lacked substantial evidence for his decision. She contends that the ALJ constructively reopened her prior disability period by considering evidence that predates the current relevant period. She further contends the ALJ erred in failing to obtain missing medical treatment records.

         And Ms. Buckholz contends that the ALJ erred at steps two and five of the five-step criteria. At issue here: The ALJ's step-two determination about which of Ms. Buckholz's impairments qualify as “severe, ” the ALJ's consideration of the medical opinion evidence in assessing Ms. Buckholz's residual functional capacity (RFC), and the ALJ's consequent finding at step five that Ms. Buckholz can perform jobs existing in significant numbers in the national economy.

         For the reasons set forth below, the undersigned concludes that the ALJ did not properly apply the law in weighing the medical opinion evidence and substantial evidence does not support the decision. Consequently, the undersigned reverses the decision to deny benefits and remands for an administrative hearing.


         The Commissioner employs a five-step “sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R. § 416.920. If the ALJ finds the claimant disabled or not disabled at any particular step, the ALJ makes the disability determination at that step and the sequential evaluation process ends. See id.

         The five steps are a set of criteria by which the ALJ considers: (1) Does the claimant presently work in substantial gainful activity? (2) Is the claimant's impairment (or combination of impairments) severe? (3) Does the claimant's impairment (or combination) equal or meet an impairment that is listed in the regulations? (4) Does the claimant have RFC, and if so, does this RFC show that the complainant would be able to perform relevant work that he or she has done in the past? And (5) if the claimant cannot perform previous work, are there significant numbers of jobs that exist in the national economy that the complainant nevertheless would be able to perform in the future? Keyser v. Comm'r of Soc. Sec. Admin., 648 F.3d 721, 724-25 (9th Cir. 2011).

         The Court will uphold an ALJ's decision unless: (1) the decision is based on legal error; or (2) the decision is not supported by substantial evidence. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). This requires “‘more than a mere scintilla, '” though “‘less than a preponderance'” of the evidence. Id. (quoting Desrosiers, 846 F.2d at 576). If more than one rational interpretation can be drawn from the evidence, then the Court must uphold the ALJ's interpretation. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court may not affirm by locating a quantum of supporting evidence and ignoring the non-supporting evidence. Id.

         The Court must consider the administrative record as a whole. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The Court is required to weigh both the evidence that supports, and evidence that does not support, the ALJ's conclusion. Id. The Court may not affirm the decision of the ALJ for a reason upon which the ALJ did not rely. Id. Only the reasons identified by the ALJ are considered in the scope of the Court's review. Id.


         Ms. Buckholz first contends that the ALJ “constructively reopened” her prior disability applications when the ALJ considered evidence from the period relevant to those applications. Dkt. 18, p. 2. Ms. Buckholz filed three applications before the one at issue, each alleging a disability onset date of January 1, 2008. AR 92. The relevant period for the ALJ decision at issue here is June 11, 2014, the date of Ms. Buckholz's current application. AR 20; see 42 U.S.C. § 1382(c)(7); 20 C.F.R. § 416.335.

         Res judicata applies in social security cases and normally bars a plaintiff from asserting the same claim in a subsequent proceeding as was already advanced in a prior proceeding. The Social Security Administration may, on its own initiative or on the suggestion of the plaintiff, choose to reopen a prior determination. 20 C.F.R. § 416.1487(b). But “[r]es judicata does not apply when an ALJ later considers ‘on the merits' whether the claimant was disabled during an already-adjudicated period.” Lewis v. Apfel, 236 F.3d 503, 510 (9th Cir. 2001) (quoting Lester v. Chater, 81 F.3d 821, 827 n.3 (9th Cir. 1995)). An ALJ who determines whether the claimant was disabled in the prior period de facto, or constructively, reopens the prior adjudication. Id. Merely considering evidence from the time period covered by a prior application, however, does not de facto reopen that adjudication. See King v. Chater, 90 F.3d 323, 325 (8th Cir. 1996); Frustaglia v. Sec'y of Health and Human Servs., 829 F.2d 192, 193 (1st Cir. 1987); McGowen v. Harris, 666 F.2d 60, 67-68 (4th Cir. 1981).

         Here, Ms. Buckholz contends the ALJ “readjudicated disability with regard to the time period of the former claim, noting Plaintiff's alleged disability beginning January 1, 2008.” Dkt. 18, p. 3. This assertion is not supported. The ALJ repeatedly recognized June 2014 as the start of the relevant period and partially discounted a doctor's opinion because it was offered in 2008, “several years prior to” the relevant period. AR 20, 22, 29. The ALJ did not state or imply that he was determining whether Ms. Buckholz was disabled as of June 2008. AR 20-35.

         Instead, the record shows the ALJ reviewed medical evidence predating the current relevant period as part of the normal review of cumulative medical history. The ALJ did not address the merits of prior claims and did not de facto or constructively reopen Ms. Buckholz's prior application. See Frustaglia, 829 F.2d at 193.

         Ms. Buckholz also points out that the only opinions the ALJ accorded “great weight” were those of Robert Schneider, Ph.D., given in February 2012, and two state agency reviewing psychologists, given in August and October 2014 based on records from 2008 to 2014. AR 30, 32; see AR 85, 99, 351. Ms. Buckholz's point is well-taken; as discussed below, the ALJ erred in weighing the medical opinion evidence. The ALJ on remand should evaluate the relative evidentiary weight that is appropriate for the medical records that are more remote in time-in comparison to the medical records containing evidence that is temporally closer to the relevant period of June 14, 2014 to present.


         At step two of the sequential evaluation process, the ALJ must determine whether an impairment is “severe.” 20 C.F.R. § 416.920. In this case, the ALJ determined that Ms. Buckholz had five severe impairments: degenerative disc disease, depression, anxiety, posttraumatic stress disorder (PTSD), and substance addiction disorder. AR 22. Ms. Buckholz contends that the ALJ erred in failing to find her combined foot problems, including plantar fasciitis, to also be a severe impairment at step two.

         An impairment is not “severe” if it does not “significantly limit” a claimant's mental or physical abilities to do basic work activities. 20 C.F.R. § 416.920(c); Social Security Ruling (SSR) 96-3p, 1996 WL 374181, at *1. Basic work activities are those “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 416.922(b); SSR 85-28, 1985 WL 56856, at *3. An impairment is not severe if the evidence establishes only a slight abnormality that has “no more than a minimal effect on an individual[']s ability to work.” SSR 85-28, 1985 WL 56856, at *3; Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988).

         The step two inquiry is a de minimis screening device used to dispose of groundless claims. Smolen, 80 F.3d at 1290. The Ninth Circuit recently emphasized that this inquiry “is not meant to identify the impairments that should be taken into account when determining the RFC.” Buck v. Berryhill, 869 F.3d 1040, 1048-49 (9th Cir. 2017) (rejecting claim that ALJ erred after second hearing, where ALJ found new severe impairments but did not change RFC). The court noted that an ALJ assessing a claimant's RFC before steps four and five “must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not ‘severe.'” Buck, 869 F.3d at 1049 (citing Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *5 (S.S.A. July 2, 1996)). Thus, the RFC “should be exactly the same regardless of whether certain impairments are considered ‘severe' or not” at step two. Buck, 869 F.3d at 1049. The Ninth Circuit concluded, in the case before it, that because the ALJ decided step two in the claimant's favor and was required to consider all impairments in the RFC, whether “severe” or not, “[a]ny alleged error is therefore harmless and cannot be the basis for a remand.” Id. (citing Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)).

         The same is true here. Because the ALJ decided step two in Ms. Buckholz's favor, the ALJ was required to consider evidence of any and all impairments, severe or not, in assessing Ms. Buckholz's RFC. See Buck, 869 F.3d at 1049.

         Ms. Buckholz likens her case to Hill v. Astrue, 698 F.3d 1153 (9th Cir. 2012). There, the Ninth Circuit Court of Appeals found that the ALJ erred in failing to consider evidence of the effects of the claimant's panic disorder in assessing her RFC. 698 F.3d at 1161. The court did not find that the ALJ's failure to include panic attacks in the list of impairments at step two was reversible error on its own. Id. Buck precludes such a finding here. See 869 F.3d at 1049.

         To the extent that Ms. Buckholz contends that the ALJ erred in failing to incorporate impairments from foot conditions (plantar fasciitis, heel bone spur, and osteochondral defect) into Ms. Buckholz's RFC, see Dkt. 20, p. 3, that argument is addressed below with respect to the ALJ's discussion of medical opinions on Ms. Buckholz's physical health.


         Ms. Buckholz asserts that the ALJ erred in rejecting numerous medical opinions on both her physical and mental health. The Court agrees that the ALJ gave insufficient reasons to reject several opinions on Ms. Buckholz's mental health.

         The ALJ is responsible for determining credibility and resolving ambiguities and conflicts in the medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where the evidence is inconclusive, “‘questions of credibility and resolution of conflicts are functions solely of the [ALJ]'” and this Court will uphold those conclusions. Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). As part of this discretion, the ALJ determines whether inconsistencies in the evidence “are material (or are in fact inconsistencies at all) and whether certain factors are relevant” in deciding how to weigh medical opinions. Id. at 603.

         The ALJ must support his or her findings with “specific, cogent reasons.” Reddick, 157 F.3d at 725. To do so, the ALJ sets out “a detailed and thorough summary of the facts and conflicting clinical evidence, ” interprets that evidence, and makes findings. Id. The ALJ does not need to discuss all the evidence the parties present but must explain the rejection of “significant probative evidence.” Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted). The ALJ may draw inferences “logically flowing from the evidence.” Sample, 694 F.2d ...

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