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Lori E. v. Commissioner of Social Security

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

September 24, 2019

LORI E., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER AFFIRMING IN-PART, REVERSING IN-PART, AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          BRIAN A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff appeals a partially favorable decision in which she was found to be disabled no earlier than January 4, 2015, for her Supplemental Security Income application, and was found to be not disabled through her date last insured of March 31, 2011, for her Disability Insurance Benefits application. Tr. 873–885. She contends the ALJ erred by (1) failing to fully credit plaintiff’s testimony; (2) failing to properly assess the medical opinions; (3) failing to consider plaintiff’s cervical spine condition at step two of the sequential evaluation process; and (4) failing to fulfill the step five burden of showing a significant number of jobs existed that plaintiff could perform. Dkt. 10, at 2. The Court finds that the ALJ did not harmfully err by finding plaintiff not disabled through March 31, 2011, for her DIB application. The Court finds that the ALJ harmfully erred by declining to respond adequately to the scope of this Court’s November 2017 remand order with respect to plaintiff’s SSI application for the period after March 31, 2011. The Court therefore AFFIRMS in-part, REVERSES in-part, and REMANDS for further proceedings on the SSI application post-March 31, 2011.

         BACKGROUND

         Plaintiff is currently 59 years old, has a GED, and has worked as a bartender and a bar manager. Tr. 401, 406. In January 2014, plaintiff applied for SSI and DIB benefits, alleging disability as of December 1, 2010. Tr. 177. After benefits were denied, the United States District Court in November 2017 reversed and remanded, based on a residual functional capacity (“RFC”) assessment of medium work with additional limitations, because the ALJ did not cite specific, clear and convincing reasons for discounting plaintiff’s testimony as inconsistent with proof of mental-health improvement with medication, with allegations of disabling pain and mental-health symptoms, and with an inability to participate in activities alone. Tr. 965–76.

         On remand, the ALJ found that plaintiff met the insured status requirements through March 31, 2011, and determined at step one that she had not engaged in substantial gainful activity since the alleged onset date of December 1, 2010; at step two that since the alleged onset date plaintiff had the severe impairments of carpal tunnel syndrome, headaches, depression, anxiety, and history of substance abuse; and at step three that these impairments did not meet or equal the requirements of a listed impairment. Tr. 876–78. The ALJ determined that since the alleged onset date plaintiff had the RFC to perform light work, except she can sit for 6 hours and stand and/or walk for 6 hours in an 8 hour workday, in addition to other limitations regarding posture, reaching, simple and routine tasks, and social contact. Tr. 878. The ALJ determined at step four that she could not perform any past, relevant work. Tr. 883. The ALJ noted that on January 4, 2015, plaintiff’s age category changed from an individual closely approaching advanced age to an individual of advanced age. Tr. 883. The ALJ determined at step five that prior to the date plaintiff’s age category changed, jobs existed in significant numbers in the national economy that plaintiff could have performed; and that beginning on the date that plaintiff’s age category changed, no jobs existed that plaintiff could perform. Tr. 883– 84. The ALJ therefore determined that plaintiff was not disabled prior to January 4, 2015, but became disabled on that date through the date of decision. Tr. 885. With respect to plaintiff’s DIB application, the ALJ determined that plaintiff was not disabled from the alleged onset date (“AOD”) of December 1, 2010, through the date last insured (“DLI”) of March 31, 2011. Tr. 885. The ALJ’s decision is the Commissioner’s final decision.

         DISCUSSION

         The Court will reverse the ALJ’s decision only if it was not supported by substantial evidence in the record as a whole or if the ALJ applied the wrong legal standard. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The ALJ’s decision may not be reversed on account of an error that is harmless. Id. at 1111. Where the evidence is susceptible to more than one rational interpretation, the Court must uphold the Commissioner’s interpretation. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         The ALJ supported with substantial evidence and did not harmfully apply the wrong legal standard to the determination that plaintiff was not disabled for purposes of her DIB application from the AOD of December 1, 2010, to the DLI of March 31, 2011. The ALJ did not, however, follow the scope of the Court’s November 2017 remand order to reevaluate plaintiff’s testimony for the period after March 31, 2011. The ALJ thus did not cite clear and convincing reasons for discounting plaintiff’s testimony, and the medical record that relied on that testimony, as inconsistent with proof of improvement of mental health with medication, with disabling pain and mental-health symptoms, and with an inability to leave home unaccompanied for the period after the DLI of March 31, 2011.

         1. December 1, 2010 to March 31, 2011

         a. Plaintiff’s Testimony

         The ALJ discounted plaintiff’s testimony about the severity of her physical and mental limitations because there was little evidence to establish disabling mental or physical limitations from the AOD in December 2010 to the DLI in March 2011. Plaintiff argues that the ALJ failed to provide specific, clear and convincing reasons for declining to fully credit plaintiff’s testimony and to find her disabled as of the alleged onset date of December 1, 2010. Dkt. 10, at 16; see Burrell v. Colvin, 775 F.3d 1133, 1136–37 (9th Cir. 2014). The Court disagrees with respect to the period of December 1, 2010 to March 31, 2011.

         Plaintiff does not dispute the ALJ’s observation that there are minimal treatment notes from the alleged onset date in December 2010 to the DLI in March 2011. Tr. 880. Nonetheless, plaintiff alleges that her mental and physical limitations became disabling when she sustained a sternal fracture and other injuries in a December 2010 car collision. Dkt. 10, at 3. According to plaintiff, with respect to physical limitations, although she was already being treated for bilateral carpal tunnel at the time of the accident, by 2012 she appeared to have hand impairment based on other causes and radial distribution and, beginning in 2016, she had two surgeries for her cervical stenosis and radiculopathy; with respect to mental limitations, plaintiff alleges that the 2010 car accident opened the door to memories of extensive abuse that led to treatment for anxiety and depression in 2013 after ending her use of methamphetamine. Dkt. 10, at 3 (citing Tr. 707 (Dec. 12, 2013 medical notes), 725 (Feb. 20, 2013 medical notes), 801 (Apr. 9, 2014 medical notes), 915 (Dec. 4, 2018 hearing testimony)).

         With respect to physical limitations prior to the DLI, the ALJ noted that although plaintiff complained of neck pain, post-accident December 2010 radiographic imaging of her cervical spine showed only mild to moderate degenerative disc disease. Tr. 880 (citing Tr. 672 (Dec. 4, 2010 cervical scan notes)). Despite plaintiff’s allegations of hand and neck pain, the ALJ noted that during a December 2013 complete physical examination, plaintiff reported that she felt “well with minor complaints” and did not complain of hand or neck symptoms Tr. 880 (citing Tr. 710). The ALJ noted that while plaintiff alleged migraine headaches, 2013 MRI and CT scans did not show any intracranial pathology and a 2014 neurological evaluation showed intact findings, which led the neurologist to suggest mental rather than physical treatment options. Tr. 880 (citing Tr. 860, 862). These benign, objective medical findings and plaintiff’s presentation to medical providers with less severe complaints of physical pain years after plaintiff’s DLI in March 2011 reasonably undermine plaintiff’s testimony that her physical symptoms and resulting pain were disabling as of December 2010. See Bray v. Commissioner of SSA, 554 F.3d 1219, 1227 (9th Cir. 2009) (noting that claimant’s allegations may be rejected if they “do not comport with objective evidence in her medical record”); Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002) (noting that an ALJ may consider ordinary techniques of credibility evaluation, including inconsistencies in testimony or between testimony and conduct, daily activities, work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the alleged symptoms).

         With respect to mental limitations prior to the DLI, plaintiff does not dispute the ALJ’s determination that there is minimal evidence of disabling mental-health complaints other than her assertion years later that her poor memory and PTSD-related symptoms began with the December 2010 car accident. Tr. 880–81. “An ALJ cannot be required to believe every allegation . . . or else disability benefits would be available for the asking, a result plainly contrary to [the Social Security Act].” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). An ALJ may consider whether the claimant takes medication or undergoes other treatment for the symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). Although plaintiff intimates that she might not have sought mental-health treatment immediately after the car accident because she lost medical coverage at the precise time the accident occurred, Dkt. 10, at 17 (citing plaintiff’s 2015 hearing testimony at Tr. 207), that factual assertion is not supported by the record. In 2015, plaintiff testified that she was receiving medical coverage through Labor and Industries when the car accident occurred in December 2010, and did not lose that coverage until after plaintiff received a legal settlement from that car accident, and even then she received coverage through DSHS “for a few months” after that. Tr. 207. As the claimant, plaintiff bears the burden of proving that she is disabled. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The ALJ reasonably determined that plaintiff’s testimony about the severity of her mental impairments prior to the DLI was undermined by lack of evidence of complaints or treatment during the relevant ...


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