Wills v. Colvin

• Decision Date: 13 April 2016
• Docket Number: Case No. C15-1231-RSM
• Citation: 179 F.Supp.3d 969
• Parties: Diane Wills, Plaintiff, v. Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Western District of Washington

179 F.Supp.3d 969

Diane Wills, Plaintiff,

v.Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant.

Case No. C15-1231-RSM

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

Signed April 13, 2016

Amy Gilbrough, Douglas Drachler McKee & Gilbrough LLP, Seattle, WA, for Plaintiff.

Kerry Jane Keefe, US Attorney's Office, Benjamin J. Groebner, Social Security Administration, Seattle, WA, for Defendant.

ORDER REVERSING AND REMANDING FOR FURTHER ADMINISTRATIVE PROCEEDINGS

RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE

Ms. Wills seeks review of the denial of her application for Supplemental Security Income (“SSI”).¹ In determining whether a claimant is disabled the Commissioner must follow a five-step sequential evaluation process. See 20 C.F.R. §§ 404.1520, 416.920 (2000). Ms. Wills contends the Administrative Law Judge (“ALJ”) erred by (1) finding she could perform past work as a general clerk at step four of the evaluation, (2) finding she could perform the job of hotel/motel housekeeper at step five, (3) finding she had no severe physical impairments at step two, (4) misevaluating the opinion of Linda Jansen, Ph.D., and, (5) misevaluating the opinion of Richard Washburn, Ph.D. Dkt. 11 at 1. Ms. Wills contends that the ALJ's errors at step two and in evaluating the opinions of Dr. Jansen and Dr. Washburn resulted in a residual functional capacity (“RFC”) determination that failed to account for all of her limitations. Dkt. 11 at 19. Ms. Wills contends this matter should be remanded for further consideration of Ms. Wills' physical impairments at step two, reassessment of her residual functional capacity and further findings at step five. Dkt. 11 at 17. As discussed 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).

BACKGROUND

In June 2012, Ms. Wills applied for SSI benefits, alleging disability as of January 31, 2002. Tr. 286-92. Ms. Wills' application was denied initially and on reconsideration. Tr. 112, 133. Thereafter, Ms. Wills filed a written request for a hearing. Tr. 189-90. The hearing was conducted on September 5, 2013 at which time Ms. Wills amended her alleged onset date to June 4, 2012. Tr. 60. On September 26, 2013, the ALJ issued a decision finding Ms. Wills not disabled. Tr. 15-27.

THE ALJ'S DECISION

Utilizing the five-step disability evaluation process,² the ALJ found:

Step one: Ms. Wills has not engaged in substantial gainful activity since June 4, 2012, the alleged onset date.

Step two: Ms. Wills has the following severe impairments: anxiety disorder; affective disorder; and personality disorder.

Step three: These impairments do not meet or equal the requirements of a listed impairment.³

Residual Functional Capacity: Ms. Wills can perform a full range of work at all exertional levels but with the following nonexertional limitations: she can understand, remember and carry out detailed and complex tasks with SVPs up to 3. She can concentrate for detailed and complex tasks with SVPs up to 3 in two-hour increments with the usual and customary breaks throughout an eight-hour workday. She can work in the same room as co-workers but not in coordination with them and with this restriction she is not likely to be a distraction to her co-workers. She can work superficially and occasionally with the general public. She can interact occasionally with supervisors and can respond appropriately to changes in the workplace, as would be required for detailed and complex tasks with these restrictions.

Step four: She can perform past relevant work as a general clerk.

Step five: In the alternative, there are other jobs that exist in significant numbers in the national economy that Ms. Wills can also perform including as a janitor, hotel/motel housekeeper and dishwasher. Thus, Ms. Wills has not been disabled from June 4, 2012 through the date of the decision.

Tr. 17-27. The Appeals Council denied Ms. Wills' request for review making the ALJ's decision the Commissioner's final decision. Tr. 1-11.⁴

DISCUSSION

The Court's analysis of Ms. Wills' ability to perform jobs at steps four and five is contingent on its analysis of the errors alleged at step two and in evaluating the medical opinion evidence. Accordingly, those issues are addressed first.

A. Step Two Evaluation

Ms. Wills argues the ALJ erred at step two in finding she had no severe physical impairment, “based on her finding that the record did not definitively establish osteoarthritis.” Dkt. 11 at 11. The Court agrees.

At step two of the evaluation, the Commissioner must determine “whether the claimant has a medically severe impairment or combination of impairments.” See Smolen v. Chater , 80 F.3d 1273, 1290 (9th Cir.1996) ; 20 C.F.R. § 404.1520(a)(4)(ii). The claimant has the burden to show that (1) she has a medically determinable impairment, and (2) the medically determinable impairment is severe. See Bowen v. Yuckert , 482 U.S. 137, 146, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). To establish the existence of a severe impairment, the claimant must provide medical evidence consisting of signs, symptoms, and laboratory findings. 20 C.F.R. § 404.1508. An impairment or combination of impairments is severe if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 404.1521(a). “The step two inquiry is a de minimus screening device to dispose of groundless claims.” Smolen , 80 F.3d at 1290. An impairment or combination of impairments may be found “'not severe' only if the evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual's ability to work.”' Id. (citing Yuckert v. Bowen , 841 F.2d 303, 306 (9th Cir.1988) ).

Here, the ALJ found that “the objective medical evidence does not definitively establish the presence of osteoarthritis or show that [Ms. Wills] has any musculoskeletal impairment that causes functional limitations.” Tr. 19. In reaching this conclusion the ALJ discounted the opinion of Ms. Wills' treating rheumatologist Caner Sakin, M.D. Dr. Sakin diagnosed Ms. Wills with osteoarthritis and found that the impairment caused “limitations in mobility and physical activity.” Tr. 603. Dr. Sakin also opined that Ms. Wills' osteoarthritis symptoms will “likely be chronic.” Id. The ALJ rejected Dr. Sakin's opinion in part because he “did not support his opinion with examination findings, range of motion findings, or any other objective findings related to functioning.” Tr. 19. However, the parties agree that Dr. Sakin's treatment notes were not included in the record reviewed by the ALJ. Dkt. 11 at 13, Dkt. 12 at 4. The parties also agree that the treatment notes were considered and included in the administrative record by the Appeals Council after the hearing and thus, must be considered by the Court as well in determining whether the ALJ's decision is supported by substantial evidence. Id. ;See Brewes v. Comm'r of Soc. Sec. Admin. , 682 F.3d 1157, 1163 (9th Cir.2012). Accordingly, the Court must first consider whether this post-hearing evidence undermines the ALJ's step two finding.

Review of the treatment notes reveals that Dr. Sakin reviewed x-rays and performed a physical examination of Ms. Wills in which he noted mild crepitus in her knees and some tenderness to palpation in her right shoulder. Tr. 709-33. The x-rays showed some degenerative changes (albeit minimal) in the medial compartment of the left knee and right shoulder. Tr. 597-600. Having examined Ms. Wills and reviewed the objective tests, Dr. Sakin diagnosed Ms. Wills with osteoarthritis and found that it limited her mobility and physical activity. Tr. 714. This evidence undermines the ALJ's finding that Dr. Sakin's diagnosis and limitations are completely unsupported by examination or other objective findings.

The post-hearing evidence also undermines the ALJ's reference to “minimal” findings on x-rays of Ms. Wills' knees and shoulders as a basis for excluding osteoarthritis as a severe impairment. Tr. 19.

To say that medical opinions are not supported by sufficient objective findings or are contrary to preponderant conclusions mandated by objective findings does not achieve the level of specificity our prior cases have required, even when the objective factors are listed seriatim. The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct.

Embrey v. Bowen , 849 F.2d 418, 422–23 (9th Cir.1988). Here, Dr. Sakin's notes indicate that he reviewed and considered the x-ray findings prior to diagnosing Ms. Wills with osteoarthritis and assessing her related limitations. Tr. 709-33. The ALJ does not explain why her interpretations of the evidence, rather than Dr. Sakin's, are correct. See Tackett v. Apfel , 180 F.3d 1094, 1102 (9th Cir.1999) (an ALJ may not substitute his own judgment for that of a treating physician); Day v. Weinberger , 522 F.2d 1154, 1156 (9th Cir.1975) (an ALJ is forbidden from making his own medical assessment beyond that demonstrated by the record). Because the ALJ did not consider Dr. Sakin's treatment notes in making her step two determination, the matter should be remanded for the ALJ to consider this evidence.

The ALJ's other reasons for discounting Dr. Sakin's opinion and rejecting osteoarthritis as a severe impairment are also problematic. For instance, the ALJ found that Ms. Wills engaged in intense physical exercise during the time period in question. Tr. 19. However, Ms. Wills reported that she was only exercising in her hot tub because of her pain. Tr. 78. Moreover, the record indicates that when Ms. Wills tried other exercise, specifically lifting five pound weights, she reported experiencing significant pain to her doctor who advised her to decrease the level of exercise. Tr. 75, 573, 81. She also testified that she had ultimately stopped exercising....