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Christopher L. W. v. Commissioner of Social Security

United States District Court, E.D. Washington

April 16, 2019

CHRISTOPHER L. W., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

          Stanley A. Bastian, United States District Judge.

         Before the Court are the parties' cross-motions for summary judgment, ECF Nos. 12 and 13. The motions were heard without oral argument. For the reasons set forth below, the Court GRANTS Plaintiff's motion, DENIES Defendant's motion, and remands for an award of benefits.

         JURISDICTION

         On May 7, 2009, Plaintiff protectively filed a Title II application for disability insurance benefits, alleging disability beginning September 6, 2007. The claim was denied initially on July 24, 2009, and upon reconsideration on December 2, 2009. Thereafter, Plaintiff filed a written request for a hearing on December 9, 2009.

         A hearing was held on August 6, 2010 before an Administrative Law Judge (ALJ). Plaintiff appeared and testified at the hearing, and Sharon Welter, an impartial vocational expert, also appeared and testified. Plaintiff was represented at the hearing by his attorney, Dana C. Madsen.

         The ALJ issued an unfavorable decision[1] on August 20, 2010. Plaintiff requested a review of the decision by the Appeals Council on September 2, 2010. The Appeals Council denied Plaintiff's request for review on August 19, 2011.

         Plaintiff filed an appeal to the United States District Court for the Eastern District of Washington on October 11, 2011. No. 2:11-cv-00387-CI. On May 30, 2013, United States Magistrate Judge Cynthia Imbrogno issued an order remanding the case for additional proceedings, concluding that the ALJ's findings were not supported by substantial evidence in the record and based upon legal error. AR 459-61.

         On September 19, 2013, the Appeals Council issued an Order of Remand. A hearing on remand was held on November 24, 2014 before a differnt ALJ. AR 323. Plaintiff appeared and testified at the hearing, and Donna Veraldi, Ph.D., an impartial psychologist medical expert, also appeared and testified by telephone. Plaintiff was represented at the hearing by Dana C. Madsen.

         The ALJ issued an unfavorable decision[2] on January 8, 2015. AR 496. Plaintiff requested a review of the decision by the Appeals Council. On August 28, 2015, the Appeals Council issued an order remanding the case back to an ALJ. AR 514-15. The Appeals Council found the ALJ failed to properly define Plaintiff's residual functional capacity. AR 516. Additionally, the Appeals Council found the ALJ improperly weighed the medical opinion evidence. Id. More specifically, the ALJ gave significant weight to the opinion of a psychological expert who testified outside of the scope of her expertise. AR 516-17. The Appeals Council remanded the case back to the ALJ so that the ALJ could (1) give further consideration to Plaintiff's maximum residual functional capacity during the entire period at issue, and to provide rationale with specific references to evidence of record in support of assessed limitations; and (2) obtain evidence from a vocational expert to clarify the effect of the assessed limitations on Plaintiff's occupational base. Id.

         A hearing on remand was held on April 12, 2016, before the same ALJ. Plaintiff appeared and testified at the hearing, and Nancy Winfrey, Ph.D., an impartial psychologist medical expert, also appeared and testified by telephone. Plaintiff was represented at the hearing by Dana C. Madsen.

         The ALJ issued yet another unfavorable decision[3] on May 10, 2016. Plaintiff timely requested review of the decision by the Appeals Council. On September 9, 2016, the Appeals Council, again, issued an order remanding the case back to an ALJ. The Appeals Council found the ALJ's findings were inconsistent the proffered residual functional assessment. AR 539. The ALJ found Plaintiff had a severe impairment of trigeminal neuralgia, but concluded that Plaintiff could perform work at all exertional and non-exertional levels. Id. The Appeals Council found this conclusion made no sense, as it “plainly contradicts the finding that [Plaintiff's] trigeminal neuralgia is a severe impairment.” Id. The Appeals Council remanded the case to another ALJ. Id.

         A hearing on remand was held on January 26, 2017, before an ALJ. Plaintiff appeared and testified at the hearing. Also appearing and testifying at the hearing were Marian F. Martin, Ph.D., an impartial medical expert, and K. Diane Kramer, an impartial vocational expert. Plaintiff was represented at the hearing by Dana C. Madsen.

         The ALJ issued an unfavorable decision on February 24, 2017. The Appeals Council denied Plaintiff's request for review on January 13, 2018.

         Plaintiff filed a timely appeal to the United States District Court for the Eastern District of Washington on March 14, 2018. This matter is before this Court under 42 U.S.C. § 405(g).

         SEQUENTIAL EVALUATION PROCESS

         The Social Security Act defines disability as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A claimant shall be determined to be under a disability only if his impairments are of such severity that the claimant is not only unable to do his previous work, but cannot, considering the claimant's age, education, and work experiences, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B).

         The Commissioner has established a five-step sequential evaluation process for determining whether a person meets the definition of disabled under the Social Security Act. 20 C.F.R. § 404.1520(a)(4); Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).

         At step one, the ALJ must determine whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(b). Substantial gainful activity is defined as significant physical or mental activities done or usually done for profit. 20 C.F.R. § 404.1572. If the individual is engaged in substantial gainful activity, he or she is not disabled. 20 C.F.R. § 404.1571. If not, the ALJ proceeds to step two.

         At step two, the ALJ must determine whether the claimant has a severe medically determinable impairment, or combination of impairments, that significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe medically determinable impairment or combination of impairments, he or she is not disabled. If the ALJ finds the claimant does have a severe impairment or combination of impairments, the ALJ proceeds to step three.

         At step three, the ALJ must determine whether any of the claimant's severe impairments “meets or equals” one of the listed impairments acknowledged by the Commissioner to be sufficiently severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404.1525; 20 C.F.R. § 404. Subpt. P. App. 1 (“the Listings”). If the impairment meets or equals one of the listed impairments, the claimant is per se disabled and qualifies for benefits. If not, the ALJ proceeds to the fourth step.

         Before considering step four, the ALJ must determine the claimant's “residual functional capacity.” 20 C.F.R. § 404.1520(e). An individual's residual functional capacity is his or her ability to do physical and mental work activities on a sustained basis despite limitations from his impairments. 20 C.F.R. § 404.1545(a)(1). In making this finding, the ALJ must consider all of the relevant medical and other evidence. 20 C.F.R. § 404.1545(a)(3).

         At step four, the ALJ must determine whether the claimant's residual functioning capacity enables the claimant to perform past relevant work. 20 C.F.R. § 404.1520(e)-(f). If the claimant can still perform past relevant work, he or she is not disabled. If the ALJ finds the claimant cannot perform past relevant work, the analysis proceeds to the fifth step.

         At step five, the burden shifts to the Commissioner to prove the claimant is able to perform other work in the national economy, taking into account claimant's age, education, work experience, and residual functioning capacity. 20 C.F.R. § 404.1520(g). To meet this burden, the Commissioner must establish (1) the claimant is capable of performing other work; and (2) such work exists in significant numbers in the national economy. 20 C.F.R. § 404.1560(c)(2); Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999).

         STATEMENT OF FACTS

         The facts have been presented in the administrative transcript, the ALJ's decision, and the briefs to this Court. Only the most relevant facts are summarized here.

         Plaintiff was 57 years old at the time of the alleged disability onset date of September 6, 2007. He has a high school education and completed five years of college. Plaintiff has past relevant work experience as a sales manager.

         Plaintiff testified that, in 2006, he developed a shingles outbreak on the right side of his face. Plaintiff claims that he developed significant pain in the trigeminal nerve on the right side of his face, around his jaw, ear, and temple. He describes the pain as greater than what someone would experience with an abscess tooth, and something worse than a migraine headache. Plaintiff stopped working on September 6, 2007, because he could no longer take the pain.

         Plaintiff testified experiencing up to four episodes of high pain every day. Plaintiff claims that these episodes last from five to twenty minutes. During each episode of pain, Plaintiff has to sit still in a silent place and press his finger on the nerve in front of his ear for fifteen minutes to an hour. AR 390-94.

         Plaintiff also described how these episodes of pain impact his ability to engage in daily activities. For example, Plaintiff states that the pain forces him to take frequent breaks from whatever he is doing. “If I'm doing things around the house … I try to take breaks every half an hour to 45 minutes and just sit and be very quiet.” AR 43. Plaintiff testified that he has to take a fifteen to twenty-minute rest-break every thirty to forty-five minutes. AR 44. Plaintiff states that he has learned to manage his pain by “working at a slow pace and for no more than 45 minutes at a time.” AR 175.

         THE ALJ'S FINDINGS

         At step one, the ALJ found Plaintiff was not engaged in substantial gainful activity during the period from his alleged onset date of September 6, 2007 through his date last insured of December 31, 2012.

         At step two, the ALJ found Plaintiff had the following severe impairments: trigeminal neuralgia; depressive disorder; and somatoform disorder.

         At step three, the ALJ found that Plaintiff's impairments or combination of impairments do not meet or medically equal any of the listed impairments in the Listings.

         Before reaching step four, the ALJ found Plaintiff had the Residual Functional Capacity (RFC):

To perform medium work as defined in 20 C.F.R. § 404.1567(c). In addition, the claimant had to avoid exposure to extreme temperatures and to extreme wetness and humidity. He could have no more than occasional exposure to irritants or chemicals. He had to also avoid moving or dangerous machinery and work at unprotected heights. The claimant was limited to work in a low stress environment which does not requires the worker to cope with work related circumstances that could be dangerous to the work or others. He could perform simple, routine, and repetitive tasks. He could have no more than occasional interaction with the public, co-workers, and supervisors. Finally, the claimant was unable to work at a production pace.

         At step four, the ALJ found Plaintiff was unable to ...


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