United States District Court, E.D. Washington
CHRISTOPHER L. W., Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
Stanley A. Bastian, United States District Judge.
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.
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.
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.
issued an unfavorable decision 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.
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.
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.
issued an unfavorable decision 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.
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.
issued yet another unfavorable decision 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.
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.
issued an unfavorable decision on February 24, 2017. The
Appeals Council denied Plaintiff's request for review on
January 13, 2018.
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).
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).
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).
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.
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.
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.
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.
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.
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
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.
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.
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.
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
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.
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.
step two, the ALJ found Plaintiff had the following
severe impairments: trigeminal neuralgia; depressive
disorder; and somatoform disorder.
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
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.
step four, the ALJ found Plaintiff was unable to