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Sheksa M. v. Commissioner of Social Security

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

December 5, 2019

SHEKSA M., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER REVERSING AND REMANDING FOR FURTHER PROCEEDINGS

          BRIAN A. TSUCHIDA CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff appeals the ALJ's decision finding her not disabled. The ALJ found degenerative disc disease of the cervical and lumbar spine, left knee meniscal tear, right carpal tunnel syndrome, and a depressive disorder, an anxiety disorder, a personality disorder and post-traumatic stress disorder are severe impairments; plaintiff has the residual functional capacity (RFC) to perform light work with additional limtiations; and plaintiff has no past relevant work but is not disabled because she can perform other work in the national economy. Tr. 43-56.

         Plaintiff contends the Court should remand the case for an award of benefits because the ALJ failed to explain why probative evidence was rejected, and misevaluated the opinions of examining doctor Keith Ly, M.D. and Stephanie Naas, FNPC. Dkt. 10. For the reasons below, the Court REVERSES the Commissioner's final decision and REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g).

         DISCUSSION

         A. Consideration of Lay Home Care Evidence

         Plaintiff argues the ALJ erred by rejecting or by failing to discuss evidence she received 77 hours of home care in January 2017. See Opening Brief, Dkt. 10 at 4. She contends this evidence shows she needs help with activities of daily living both in and outside her home and help with behavioral issues such as yelling, screaming, irritability, agitation and cutting when stressed. Id. Plaintiff submits this evidence “suggests severe limitations that Plaintiff is dealing with.” Id.

         The Commissioner argues the Court should reject the argument because (1) plaintiff has failed to show how the ALJ erred, and has failed to demonstrate prejudice; (2) “the ALJ reasoned that the medical evidence of record and Plaintiff's activities supported a greater level of functioning than suggested by the award of chore service assistance by the state”; and (3) there is no basis to determine how the chore services were arrived at. Dkt. 12 at 3-4.

         The ALJ's decision notes plaintiff received home care but does not explain what weight the records were given. Tr. 51. The Court thus rejects the Commissioner's second and third arguments as impermissible post hoc arguments. The Court reviews the ALJ's decision “based on the reasoning and findings offered by the ALJ-not post hoc rationalizations that attempt to intuit what the adjudicator may have been thinking.” Bray v. Comm'r of SSA, 554 F.3d 1219, 1225 (9th Cir. 1995). The ALJ gave no reasons to reject the evidence and the Court accordingly cannot adopt the rationale the Commissioner now presents.

         However, the Commissioner's first argument merits close scrutiny. Plaintiff bears the burden of establishing the ALJ harmfully erred. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). The Court may deem any argument that is unsupported by explanation or authority as waived. See Avila v. Astrue, No. C07-1331, 2008 WL 4104300 (E.D. Cal. Sept. 2, 2008) at * 2 (unpublished opinion) (citing Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 923-24 (9th Cir. 1996) (party who presents no explanation in support of claim of error waives issue); Independent Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)). Here, the homecare records indicate, on their face, plaintiff has physical and mental health limitations that are similar to her testimony about her limitations. Hence the fact plaintiff did not explicitly explain how the ALJ erred and how she was prejudiced is not automatically fatal. This is evident because the records, if believed, set forth limitations the ALJ should have addressed. The ALJ failed to do so and accordingly erred.

         The error however is harmless. The homecare records are lay records. The ALJ failed to provide reasons to reject this lay evidence. However, the ALJ rejected plaintiff's testimony about limitations which are similar to the limitations indicated in lay home care evidence. In specific the ALJ rejected plaintiff's testimony as unsupported by the medical record and inconsistent with her activities. Tr. 49, 51. Plaintiff does not challenge these determinations. Because the ALJ rejected plaintiff's testimony for reasons that are equally relevant to the lay home care evidence, any error the ALJ may have committed is harmless. Molina, 674 F.3d at 1115 (Where ALJ gives reasons for rejecting claimant's testimony regarding her symptoms that are equally relevant to the similar testimony of the lay witnesses, and that would support a finding that the lay testimony was similarly not credible, any error the ALJ committed in failing to address the lay testimony is harmless.). The Court accordingly affirms the ALJ's determination as to the homecare records.

         B. Medical and Other Source Evidence

         Plaintiff contends the ALJ misevaluated the opinions of Dr. Ly and Ms. Naas, FNPC. The ALJ must provide specific and legitimate reasons to reject a contradicted medical opinion, such as Dr. Ly's. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1996). The ALJ must do more than offer his conclusions; he must also explain why his interpretation, rather than the doctor's interpretation, is correct. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). The opinion of a non-examining doctor cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984).

         Ms. Naas is a Family Nurse Practioner. She is therefore not an acceptable medical source who can give medical opinions for claims filed before March 27, 2017. Plaintiff filed her claim in 2015 and the ALJ therefore evaluates opinions of other medical sources using the same factors used to evaluate medical opinions of acceptable medical sources, 20 C.F.R. § 419.927(f), and must give specific, germane reasons for rejecting opinions from other sources. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).

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