Meek v. Commissioner of Social Security ( 2021 )


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  • 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 YOLANDA M., 8 Plaintiff, CASE NO. C20-1846-BAT 9 v. ORDER REVERSING THE 10 COMMISSIONER’S FINAL DECISION COMMISSIONER OF SOCIAL SECURITY, AND REMANDING 11 Defendant. 12 13 Plaintiff appeals the ALJ’s decision finding her not disabled. The ALJ found obesity, 14 Wernicke-Korsakoff syndrome, and neurodegenerative disorder versus somatoform disorder are 15 severe impairments; Plaintiff has the residual functional capacity (RFC) to perform light work 16 subject to a series of further limitations; and Plaintiff is not disabled because she can perform 17 jobs in the national economy. Tr. 17-30. 18 Plaintiff contends the ALJ erred by failing to “consider, discuss or find” Plaintiff’s 19 cognitive communicative disorder is a severe impairment. Dkt. 13. For the reasons below, the 20 Court REVERSES the Commissioner’s final decision and REMANDS the matter for further 21 administrative proceedings under sentence four of 42 U.S.C. § 405(g). 22 23 1 DISCUSSION 2 The Court may reverse the Commissioner’s denial of Social Security benefits if the 3 ALJ’s decision is legally erroneous or not supported by substantial evidence. Trevizo v. 4 Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Plaintiff argues the ALJ erred by not finding 5 cognitive communication disorder is a severe impairment. The Commission contends even if the 6 ALJ erred by failing to find cognitive communication disorder severe at step two, the error is 7 harmless because the ALJ properly rejected Plaintiff’s testimony concerning the impairment’s 8 limiting effects. 9 The ALJ discounted Plaintiff’s testimony concerning cognitive communication disorder 10 on the ground Plaintiff “typically exhibits … normal speech or adequate language ability without 11 acute receptive or expressive language difficulties, except slow word forming speed, and/or 12 staring or slurring speech at times.” Tr. 25 (internal citation omitted). The ALJ thus specifically 13 found Plaintiff’s speech was slow (or she "stared") and slurred which are the crux of Plaintiff’s 14 testimony about her communication limitations. Having accepted the limitation, the ALJ erred by 15 failing to provide a clear and convincing ground to exclude it from the RFC determination. 16 The ALJ also found Plaintiff’s speech limitations improved with treatment, noting in 17 January 2019 Plaintiff reported “speech therapy helps her cognition” and in May 2019 a provider 18 indicated the “etiology for the claimant’s neurologic abnormality remains unclear but the 19 claimant is ‘doing quite well’ and her slurred speech is improved.” Tr. 26. To the extent 20 Plaintiff’s slurred speech “improved” with treatment – a finding on which the ALJ does not 21 elaborate – the record shows any improvement was short-lived. For example, a treatment note 22 from August 2019 indicates Plaintiff reported “my words are messed up again,” and Plaintiff’s 23 provider noted “[s]ometimes she exhibits scanning speech, and was doing so this afternoon.” Tr. 1 784. Similarly, a treatment note from January 16, 2020 indicates Plaintiff “continues with 2 staring, slurring words[.]” Tr. 799. Thus, contrary to the ALJ’s finding, the longitudinal record 3 portrays Plaintiff’s struggle with speech issues throughout the relevant period. The ALJ 4 accordingly erred by discounting Plaintiff’s testimony on this ground. See Reddick v. Chater, 157 5 F.3d 715, 722–23 (9th Cir. 1998) (reversing ALJ’s decision where his “paraphrasing of record 6 material is not entirely accurate regarding the content or tone of the record”). 7 Finally, the ALJ relied on his own observations of Plaintiff, finding “when testifying at 8 the hearing, the claimant demonstrated fluent language skills. While the hearing was short-lived 9 and cannot be considered a conclusive indicator of the claimant’s overall ability to talk on a day- 10 to-day basis, the apparent lack of speech problem during the hearing is considered in reaching 11 the conclusion regarding the persuasiveness of the claimant’s allegations and the claimant's 12 residual functional capacity.” Tr. 26. The ALJ erred for two reasons. First, as Plaintiff correctly 13 argues, such “sit and squirm” observations are disfavored. Dkt. 13 at 6. Second, the ALJ 14 expressly acknowledged the limit of his hearing observations, finding they “cannot be considered 15 a conclusive indicator of the claimant’s overall ability to talk on a day-to-day basis.” Tr. 26. The 16 ALJ accordingly erred by discounting Plaintiff’s testimony on this ground. 17 In sum, Plaintiff alleged her communication disorder limited her ability to work. The 18 record establishes Plaintiff suffers from the disorder and the ALJ in fact found it caused "slow 19 word forming speed, and/or staring or slurring speech at times” as Plaintiff claimed. Although 20 the ALJ found the communication caused the limitation, the ALJ failed to assess its impact, and 21 failed to provide valid reasons to discount Plaintiff’s testimony. This failure was harmful because 22 it led to a RFC determination that did not account for all of Plaintiff's limitations. 23 1 CONCLUSION 2 For the foregoing reasons, the Commissioner’s final decision is REVERSED, and the 3 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. 4 § 405(g). On remand, the ALJ shall reevaluate the evidence concerning Plaintiff’s cognitive 5 communication disorder including her testimony, develop the record and redetermine Plaintiff's 6 RFC as needed, and proceed to the remaining steps as appropriate. 7 DATED this 20th day of August 2021. 8 A 9 BRIAN A. TSUCHIDA United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23

Document Info

Docket Number: 2:20-cv-01846

Filed Date: 8/20/2021

Precedential Status: Precedential

Modified Date: 11/4/2024