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Crystal M. v. Commissioner of Social Security

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

August 21, 2019

CRYSTAL M., Plaintiff,



         This is the second judicial review of Defendant's determination that Plaintiff is not disabled. 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. As discussed below, the undersigned agrees that the ALJ erred; the ALJ's decision is reversed and remanded for an award of benefits.


         1. Did the ALJ err in evaluating the opinions of Jeffrey Patterson, M.D., Julian Arroyo, M.D., and William Morris, M.D.?

         2. Did the ALJ rely on an impermissible “sit and squirm” test when evaluating Plaintiff's symptoms?

         3. Did the ALJ err in evaluating Activity Prescription Forms issued by the Washington State Department of Labor and Industries?

         4. Did the ALJ err in finding Plaintiff capable of performing her past relevant work?

         5. Did the ALJ adequately account for Plaintiff's impairments when assessing the RFC?


         On November 5, 2010, Plaintiff applied for disability insurance benefits, alleging a disability onset date of October 30, 2008. AR 25, 151-57, 816. Plaintiff last met the insured status requirements of the Social Security Act on December 31, 2010, making the period between Plaintiff's alleged onset date and her date last insured the relevant period. AR 27, 819.

         The first hearing was held before Administrative Law Judge (“ALJ”) Cynthia D. Rosa on May 8, 2012, after Plaintiff appealed the denial of benefits. AR 43-80, AR 25, 103-05, 107-08, 816. In a decision dated May 25, 2012, ALJ Rosa determined Plaintiff to be not disabled. AR 22-37, 867-82. The Social Security Appeals Council denied Plaintiff's request for review on October 18, 2013. AR 1-6, 888-93.

         Plaintiff appealed to the United States District Court for the Western District of Washington, which affirmed the ALJ's decision on September 9, 2014. AR 894-900, 904. Plaintiff appealed the District Court's ruling to the United States Court of Appeals for the Ninth Circuit on November 6, 2014. AR 904.

         On July 30, 2015, Plaintiff and the Commissioner of Social Security filed a motion for an order of remand and issuance of a mandate based on the parties' stipulation. AR 913-18. The motion provided that on remand, the Appeals Council should instruct the ALJ to:

give [Plaintiff] an opportunity for a new hearing; reevaluate the medical opinion evidence, including the State agency opinions of Dr. Stevick and Dr. Ignacia, as well as the conclusions of Dr. Arroyo; reconsider the RFC finding; issue a step four finding in compliance with SSR 82-62, including a finding of fact regarding how the claimant's past work was actually performed, consideration of the claimant's own statements of how she performed her past work, and consideration of the Washington State Department of Labor and Industry report on the claimant's former job; and obtain supplemental testimony from a vocational expert.

         AR 914.

         The Court of Appeals granted the motion and issued a formal mandate pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. AR 911, 912. On August 31, 2015, the Appeals Council vacated the ALJ's determination; the Council remanded for further administrative proceedings consistent with the instructions contained in the stipulated remand order. AR 919-24. The Appeals Council also ordered the ALJ to correctly attribute a medical opinion to Jeffery Patterson, M.D. rather than Julian Arroyo, M.D. AR 922.

         On August 31, 2016, ALJ Cynthia D. Rosa held another hearing. AR 853-66. On February 22, 2017, the ALJ again found that Plaintiff was not disabled between her alleged onset date and her date last insured. AR 813-34. On March 23, 2017, after the Appeals Council declined to assume jurisdiction, AR 806-12, the ALJ's second decision became the final decision of the Commissioner. Plaintiff appealed to this Court and seeks a finding that Plaintiff was disabled. Dkt. 10.


         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).

         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.


         The Commissioner uses a five-step sequential evaluation process to determine if a claimant is disabled. 20 C.F.R. § 404.1520. The ALJ assesses the claimant's RFC to determine, at step four, whether the plaintiff can perform past relevant work, and if necessary, at step five to determine whether the plaintiff can adjust to other work. Kennedy v. Colvin, 738 F.3d 1172, 1175 (9th Cir. 2013). The ALJ has the burden of proof at step five to show that a significant number of jobs that the claimant can perform exist in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. § 404.1520(e), A. Whether the ALJ properly evaluated the medical opinion evidence

         Plaintiff maintains the ALJ failed to properly evaluate opinion evidence from Dr. Patterson (the examining physician who evaluated Plaintiff for the Washington State Department of Labor and Industries), Dr. Arroyo (Plaintiff's treating specialist physician for her neck condition), and Dr. Morris (Plaintiff's treating ...

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