United States District Court, W.D. Washington, Tacoma
JACKIE K. BUCKHOLZ, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING AND REMANDING FOR FURTHER
THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE
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.
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. 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.
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.
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.
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
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
STANDARD OF REVIEW AND SCOPE OF REVIEW
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.
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).
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.
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.
REOPENING OF PRIOR ADJUDICATION PERIOD
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. §
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).
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.
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.
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.
THE ALJ'S STEP TWO DETERMINATION
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.
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).
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.
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
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.
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
THE ALJ'S CONSIDERATION OF THE MEDICAL EVIDENCE
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.
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.
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 ...