Gerrity v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 ELIZABETH G., 9 Plaintiff, Case No. C21-5221-SKV 10 v. ORDER REVERSING THE COMMISSIONER’S DECISION 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 Plaintiff seeks review of the denial of her application for Child Disability Benefits 14 (“CDB”). Having considered the ALJ’s decision, the administrative record (“AR”), and all 15 memoranda of record, the Court REVERSES the Commissioner’s final decision and 16 REMANDS the matter for further administrative proceedings under sentence four of 42 U.S.C. § 17 405(g). 18 BACKGROUND 19 Plaintiff was born in 1971, suffered a traumatic brain injury in a car accident on April 3, 20 1991, and was found eligible for Supplemental Security Income (“SSI”) payments as of August 21 2, 1994. See AR 16, 19. 22 Plaintiff applied for CDB in March 2017, alleging she became disabled on the day of her 23 car accident. AR 407-08. Plaintiff’s application was denied initially and on reconsideration, 1 and Plaintiff requested a hearing. AR 186-88, 191-95. After the ALJ conducted hearings in May 2 and August 2019 (AR 43-59, 103-32), the ALJ issued a partially favorable decision finding 3 Plaintiff disabled from April 3, 1991, through April 3, 1993, but not disabled thereafter. AR 4 157-68. The Appeals Council granted Plaintiff’s request for review and vacated the ALJ’s 5 decision and remanded for further proceedings with instructions. AR 182-84. 6 The ALJ held another hearing in July 2020 (AR 60-102), and subsequently issued a 7 decision finding Plaintiff not disabled during the adjudicated period running from April 3, 1991, 8 through March 5, 1993. AR 15-30. 9 THE ALJ’S DECISION 10 Utilizing the five-step disability evaluation process,1 the ALJ found: 11 Step one: Plaintiff did not engage in substantial gainful activity during the adjudicated period running from April 3, 1991, through March 5, 1993. 12 Step two: During the adjudicated period, Plaintiff had the following severe impairments: 13 traumatic brain injury, status post motor vehicle accident; and depressive disorder, not otherwise specified. 14 Step three: These impairments do not meet or equal the requirements of a listed 15 impairment.2 16 Residual Functional Capacity: During the adjudicated period, Plaintiff could perform light work with additional limitations: she could never climb ladders, ropes, or scaffolds. 17 She could not be exposed to hazards. She could perform simple, routine, repetitive tasks in a work environment free of fast-paced production requirements, involving only simple 18 work-related decisions, and with few, if any, workplace changes. She could have no contact with the public. She could have occasional superficial contact with co-workers. 19 Step four: Plaintiff had no past relevant work during the adjudicated period. 20 Step five: As there are jobs that exist in significant numbers in the national economy that 21 Plaintiff could have performed during the adjudicated period, Plaintiff is not eligible for benefits during the adjudicated period. 22 23 1 20 C.F.R. §§ 404.1520, 416.920. 2 20 C.F.R. Part 404, Subpart P, App. 1. 1 AR 15-30. 2 The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the 3 Commissioner’s final decision. AR 1-6. Plaintiff appealed the final decision of the 4 Commissioner to this Court. Dkt. 4. 5 LEGAL STANDARDS 6 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 7 security benefits when the ALJ’s findings are based on harmful legal error or not supported by 8 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 9 2005). As a general principle, an ALJ’s error may be deemed harmless where it is 10 “inconsequential to the ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 11 1115 (9th Cir. 2012) (cited sources omitted). The Court looks to “the record as a whole to 12 determine whether the error alters the outcome of the case.” Id. 13 Substantial evidence is “more than a mere scintilla. It means - and means only - such 14 relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” 15 Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (cleaned up); Magallanes v. Bowen, 881 F.2d 16 747, 750 (9th Cir. 1989). The ALJ is responsible for evaluating symptom testimony, resolving 17 conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. 18 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record 19 as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the 20 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is 21 susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that 22 must be upheld. Id. 23 // 1 DISCUSSION 2 Plaintiff argues the ALJ erred in assessing the medical opinion evidence to find her not 3 disabled during the adjudicated period. The Commissioner argues the ALJ’s decision is free of 4 harmful legal error, supported by substantial evidence, and should be affirmed. 5 The record contains testimony from three medical experts who testified in 2019 and 2020 6 that Plaintiff met and/or equaled Listings 11.18A, 11.02, 12.02, and/or 12.03 during the 7 adjudicated period, based on their review of the longitudinal record. See AR 108-12, 68-95. 8 “The weight afforded a non-examining physician’s testimony depends ‘on the degree to which 9 they provide supporting explanations for their opinions.’” Ryan v. Comm’r of Social Sec., 528 10 F.3d 1194, 1201-02 (9th Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(3)). The ALJ discounted 11 the expert testimony to the extent it supported a finding of disability3 as uncorroborated by the 12 evidence dating to the adjudicated period and inconsistent with the evidence showing that 13 Plaintiff improved after the car accident and did not begin experiencing seizures until after the 14 adjudicated period. AR 26-28. The ALJ indicated that she was “unable to infer disability back 15 to [Plaintiff’s] window of eligibility[,]” in light of the lack of records dating to the adjudicated 16 period. AR 25. 17 There are certainly many challenges presented by this case given the remoteness of the 18 adjudicated period, the destruction of her prior Social Security file, and the gaps in the available 19 records, but the Court finds that the ALJ’s discounting of the medical expert testimony as 20 speculation is unreasonable. First, the medical experts’ testimony is not mere speculation; the 21 3 One of the medical experts qualified his testimony based on the ALJ’s questioning whether evidence 22 dating to the adjudicated period supported his opinion that Plaintiff equaled a listing during the period (AR 74), but initially testified that he believed that “in all medical probability” Plaintiff’s seizures 23 documented after the adjudicated period stemmed from her car accident in 1991. AR 73. The ALJ credited the expert’s testimony that no evidence dating to the adjudicated period supported his initial conclusion, thereby implicitly rejecting his initial testimony. See AR 27. 1 experts provided medical opinions informed by their review of the available records. The 2 medical experts were called because of the gaps in the record during the adjudicated period — 3 the ALJ herself acknowledged that determining the onset date in this case required inferences 4 (AR 25) — and these providers’ expertise permits them to make those inferences, even if the 5 ALJ was not able to make such inferences herself. Indeed, agency guidance contemplates that 6 medical experts may assist in inferring an onset date despite a dearth of contemporaneous 7 records. See, e.g., Social Security Ruling (“SSR”) 18-01p, 2018 WL 4945639 at *5-6 (Oct. 2, 8 2018). 9 Furthermore, the ALJ held the lack of contemporaneous treatment records against 10 Plaintiff without addressing the explanation that she provided at the hearing. Plaintiff testified 11 that her lack of mental health treatment from the time that she was discharged from inpatient 12 treatment in January 1992 through March 1993 was due to her lack of insight into her need for 13 treatment due to her severe trauma and abuse for many years. AR 121-27. Plaintiff also 14 explained that during this time period she entered an abusive marriage and had children that were 15 subsequently removed from her custody. AR 119-20. This testimony provides at least a 16 plausible explanation for the lack of treatment, and the ALJ erred in failing to address it in the 17 decision. See SSR 16-3p, 2017 WL 5180304 at *9 (Oct. 25, 2017) (“We will not find an 18 individual’s symptoms inconsistent with the evidence in the record [on the basis of inter alia 19 lack of treatment] without considering possible reasons he or she may not . . . seek treatment 20 consistent with the degree of his or her complaints.”). 21 Instead, the ALJ found that Plaintiff’s lack of treatment for much of the adjudicated 22 period suggested that her functioning must have improved. AR 25 (citing AR 861 as evidence of 23 improvement). The treatment note cited by the ALJ indicates that Plaintiff had improved to 1 some degree, but was going to require ongoing outpatient physical, occupational, speech, and 2 cognitive therapy once she was discharged from inpatient treatment. AR 861; see also AR 867. 3 There is also evidence that Plaintiff had started psychotherapy toward the end of 1991 (although 4 no treatment notes are in the record) and had intended to continue after she was discharged from 5 inpatient psychiatric treatment preceded by suicidal behavior in January 1992. See AR 872-75. 6 With this record in mind, the Court finds that the ALJ erred in focusing on the lack of 7 records dating to much of the adjudicated period as the grounds to discount the medical expert 8 testimony. See, e.g., Diedrich v. Berryhill, 874 F.3d 634 (9th Cir. 2017) (instructing that where 9 there are gaps in the medical record, an ALJ should call a medical expert to provide an 10 “informed inference” as to the disability onset date). The medical experts testified that the 11 record permitted them to infer that Plaintiff’s disability onset during the adjudicated period, and 12 the ALJ failed to provide a legally sufficient reason to discount that testimony. Even if, as found 13 in the Appeals Council’s order granting review (AR 183), one of the medical experts failed to 14 fully explain how Plaintiff met or equaled a listing, two other medical experts provided more 15 detailed testimony explaining how they reached the conclusion that Plaintiff met or equaled a 16 listing. See AR 70-74, 78, 87-94. 17 Although the ALJ improperly discounted the medical expert testimony, and that 18 testimony clearly establishes that Plaintiff’s disability onset during the adjudicated period, the 19 Court nonetheless exercises its discretion to remand for further proceedings because the record 20 raises serious doubt as to whether Plaintiff is entitled to CDB. See Garrison v. Colvin, 759 F.3d 21 995, 1021 (9th Cir. 2014). In January 2020, the Commissioner’s Payment Center indicated that 22 Plaintiff was not eligible for CDB based on her father’s lack of eligibility. AR 730-31. The 23 Appeals Council instructed the ALJ to consider this finding, as well as whether Plaintiff 1 experienced any medical improvement, if the ALJ found Plaintiff disabled during the adjudicated 2 period, but because the ALJ found her to be not disabled, the ALJ did not address those issues. 3 See AR 182-84. Further proceedings would permit the ALJ to address those issues in the first 4 instance, which will determine whether Plaintiff is indeed entitled to CDB. 5 CONCLUSION 6 For the reasons set forth above, the Commissioner’s final decision is REVERSED and 7 this case is REMANDED for further administrative proceedings under sentence four of 42 8 U.S.C. § 405(g). 9 Dated this 19th day of October, 2021. 10 11 A 12 S. KATE VAUGHAN United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23