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Cummings v. Berryhill

United States District Court, D. Hawaii

June 29, 2018




         Before the Court is Plaintiff Tracee Dawn Cummings's (“Plaintiff”) Complaint - Social Security Appeal (“Complaint”), filed on April 25, 2017, in which she appeals from Administrative Law Judge Nancy Lisewski's (“ALJ”) August 26, 2015 Decision (“Appeal”). The ALJ issued the Decision after conducting a hearing on June 19, 2015. [Administrative Record (“AR”) at 29.[1] The ALJ ultimately concluded Plaintiff was not disabled, for purposes of the Social Security Act, from September 1, 2011 through the date of the Decision. [Decision at 11.]

         On September 18, 2017, Plaintiff filed her “Motion for Summary Adjudication, ” which also constitutes her Opening Brief. [Dkt. no. 17.] Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (“the Commissioner”), filed her Answering Brief on November 30, 2017, and Plaintiff filed her Reply Brief on January 4, 2018. [Dkt. nos. 20, 21.] This Court heard oral argument in this matter on April 9, 2018. Plaintiff's Appeal is granted, and the ALJ's Decision is vacated. The case is remanded to the ALJ for further proceedings. In light of these rulings, Plaintiff's Motion for Summary Adjudication is also granted.


         On April 1, 2013, Plaintiff filed a Title II application for disability insurance benefits, alleging a disability beginning September 1, 2011 (“alleged onset date”). The claim was denied, initially and on reconsideration. On August 14, 2014, Plaintiff filed a written request for a hearing. At the June 19, 2015 hearing, Plaintiff was represented by Paula Boyer, a non-attorney representative. Plaintiff, Deborah Thompson - Plaintiff's mother, and Ron Joseph Fleck - an impartial vocational expert (“VE”) - testified at the hearing. [Decision at 1.]

         In the instant appeal, Plaintiff does not dispute the ALJ's findings in steps one through three of the five-step sequential analysis to determine whether a claimant is disabled. Thus, the ALJ's findings as to those steps are only briefly discussed here.

         At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since her alleged onset date. [Id. at 3.] According to Ms. Thompson, Plaintiff had a nervous breakdown in 2011. [Id. at 8.]

         At step two, the ALJ found Plaintiff had the following impairments that were considered severe: obesity; anxiety; and post-traumatic stress disorder (“PTSD”). [Id. at 3.] At step three, the ALJ found none of Plaintiff's impairments, either individually or in combination, met or medically equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Id.]

         At step four, the ALJ found Plaintiff had the residual functional capacity (“RFC”) “to perform medium work as defined in 20 CFR 404.1567(c) except she is limited to simple, routine work with no exposure to hazards.” [Id. at 5 (emphasis omitted).] The ALJ found this RFC assessment was “supported by evidence of significantly improved symptoms with medication and [Plaintiff's] activities of daily living.” [Id. at 11.]

         The ALJ noted Plaintiff's testimony that: she had anxiety and difficulty with interpersonal interaction; she does not leave her home and cannot go to unfamiliar places; and medication has not helped her symptoms. However, she testified that therapy has helped her “in learning ‘to breathe through panic attacks.'” [Id. at 5.] The ALJ found Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” but Plaintiff's testimony about “the intensity, persistence and limiting effects of these symptoms [and her physical symptoms was] not entirely credible.” [Id. at 5-6.]

         As to her physical symptoms, Plaintiff asserted she had a history of back pain, and her weight gain was a significant contributing factor to the pain. However, the ALJ found a February 2013 x-ray and a June 2013 magnetic resonance imaging scan of Plaintiff's lumbar spine did not show any abnormalities. [Id. at 6 (citing Exh. 5F/6-7 & 5 (AR at 381-82 & 380)).[2] Thus, the objective evidence did “not support the degree of back pain alleged by [Plaintiff] and indicate[d] that her pain is the result of obesity.” [Id.] Further, the ALJ noted Plaintiff's “plan of diet and exercise . . . resulted in positive gains.” [Id.] After telling Christopher Russell, R. PA-C, [3] in January 2015 she believed the increase in her back pain was due to weight gain, and that her goal was to lose one hundred pounds in a year, Plaintiff reported losing twenty pounds by April 2015 by dieting, using a treadmill, and doing yoga. [Id. at 6, 8 (citing Exh. 14F/63 & 32 (AR at 688 & 657)).[4] The ALJ ruled that inconsistencies in the record undermined Plaintiff's credibility about the severity of her condition. For example, in June 2015, Plaintiff told Patricia Patrick, M.D., she would require back surgery within three years, but such a recommendation did not appear in Plaintiff's records, and the statement was inconsistent with the imaging results. [Id. at 8 (citing Exh. 11F/4 (AR at 565)).[5] Further, Plaintiff's weight loss activities contradicted the reports that she did not want to be active during the day. [Id.] The ALJ therefore found Plaintiff was “far more active than alleged, ” and a restriction that she not “be exposed to hazards in the workplace” would be enough to “prevent any mishaps while working due to her alleged pain.” [Id. at 6.]

         As to Plaintiff's psychological symptoms, the ALJ noted Plaintiff began experiencing anxiety, without medication, while she was still employed. In July 2011, Plaintiff reported anxiety, stress, and increased pressure at work. She was diagnosed with general anxiety and was prescribed Wellbutrin and hydroxyzine. [Id. (citing Exh. 1F/42-43 (AR at 343-44)).[6] Further, the ALJ found the record belied Plaintiff's claim that medication was ineffective. In February 2013, Plaintiff reported “Klonopin was ‘very helpful' in treating her anxiety but [she] was looking for additional relief.” [Id. (quoting Exhibit 5F/49 (AR at 424)).] She was prescribed Celexa, but later, in February 2013, she was switched to Wellbutrin because of Celexa's side effects. [Id. (citing Exh. 5F/41-44 (AR at 416-19)).] In April 2013, Plaintiff was “‘doing well'” on Wellbutrin and was having fewer panic attacks. [Id. at 7 (citing Exh. 5F/17 (AR at 392)).] The ALJ noted that, in September 2013, Plaintiff reported she had to take Klonopin approximately three to four times a month, but she was not experiencing panic attacks. [Id. (citing Exh. 7F/6 (AR at 454)).[7] In February 2014, Mr. Russell noted Plaintiff had begun therapy with Dr. Patrick, and Plaintiff “was ‘doing very well overall.'” [Id. (quoting Exh. 14F/98 (AR at 723)).] In August 2014, Dr. Patrick noted Plaintiff had no side effects from her medication. [Id. (citing Exh. 10F/14 (AR at 503)).] In October 2014, Dr. Patrick noted Plaintiff had stopped medication, but later that month, Dr. Patrick noted Plaintiff “was ‘increasingly stable' with the aid of medication.” [Id. (citing Exh. 11F/59 (AR at 620)) (quoting Exh. 11F/53 (AR at 614)).] By the end of October 2014, Dr. Patrick noted Plaintiff “was ‘using minimal amounts' of medication to stay ‘stable.'” [Id. (quoting Exh. 11F/51 (AR at 612)).] According to the ALJ, in March 2015, Plaintiff complained of anxiety attacks at times, but “was doing better overall with the use of Klonopin.” [Id. (citing Exh. 14F/46 (AR at 671)).] The ALJ noted Plaintiff had “sufficient energy and motivation to exercise for weight loss” - as evidenced by the loss of twenty pounds in the beginning of 2015 - and found Plaintiff “attempted to minimize her activities during the hearing.” [Id.] Further, in May 2015, Dr. Patrick noted Plaintiff “had ‘gradually accepted using meds to help herself.'” [Id. at 8 (quoting Exh. 13F/3 (AR at 625).] Thus, the ALJ found: “If limited to a work environment that involved only simple, routine work, then then [sic] [Plaintiff] could maintain focus and would not experience the type of stress that could exacerbate her otherwise controlled anxiety.” [Id. at 7-8.]

         As to Plaintiff's difficulty leaving her home, the ALJ noted Plaintiff took a vacation to the United Kingdom that lasted approximately three weeks, although at the hearing Plaintiff asserted she had some trouble on the flight. [Id. at 8 (citing Exh. 7F/4 (AR at 452), Exh. 14F/150 (AR at 775) (notes from health care providers regarding Plaintiff's statements about upcoming trip)).] The ALJ found Plaintiff's “ability to navigate airports, complete long flights, and vacation away from her home for an extended period indicates that her anxiety symptoms are significantly better controlled than alleged.” [Id.]

         As to Plaintiff's cognitive functioning, the ALJ found testing in July 2014 showed Plaintiff's “cognitive functioning has not been significantly affected by [her] psychological condition.” [Id. (citing Exh. 14F/155-56 (AR at 780-81).] Plaintiff also reported to Dr. Patrick in December 2014 that she and a friend were “learning ‘Elfish.'” [Id. (citing Exh. 11F/37 (AR at 598)).]

         Based upon the inconsistencies in the record and the fact that Plaintiff's “understanding of her functioning and the role of medication may not provide the best insight into her condition” because of her slow acceptance of the role of medication in her treatment, the ALJ found Plaintiff was “not fully credible” and gave “little weight” to her “statements regarding her functioning.” [Id.]

         Plaintiff's mother, Ms. Thompson, testified Plaintiff has lived with her since Plaintiff's nervous breakdown. [Id.] According to Ms. Thompson, Plaintiff “behave[s] in a ‘child-like' manner, ” and Ms. Thompson has “no hope” that Plaintiff is capable of gainful activity. [Id. at 9.] The ALJ noted “family members are not medically trained to make exacting clinical observations” and found that, although Ms. Thompson was “generally credible as to her observations, her statements [we]re inconsistent with the medical evidence of record, which does not support [Plaintiff's] allegations, and inconsistent with [Plaintiff's] reported level of activity throughout the record.” [Id.] The ALJ therefore declined to give significant weight to Ms. Thompson's statements that were inconsistent with the medical record. [Id.]

         The ALJ also gave “very little weight” to Plaintiff's global assessment of functioning (“GAF”) scores of forty-five.[8][Id. (citing Exh. 5F/60, 63, 67, 69 (AR at 435, 438, 442, 444); Exh. 6F/1 (AR at 447)).[9] The ALJ noted GAF scores “are an attempt to rate symptoms or functioning, ” but “[i]n this case, it is not evident from a review of the scores in the record which of these the respective clinicians were rating.” [Id. (citing Diagnostic and Statistical Manual of Mental Disorders at 32 (4th ed. 1994)).] Further, to the extent the GAF scores were based upon Plaintiff's statements about her ability to perform basic work activities, the scores were “of little value” because Plaintiff's “statements about her functioning [we]re less than fully credible.” [Id.] The ALJ also noted “the GAF scale ‘does not have a direct correlation to the severity requirements in our mental disorders listings.” [Id. (citing 65 Fed. Reg. 50, 746 at 50, 764-50, 765 (August 21, 2000) (discussing comments to 20 C.F.R. pt. 404, subpt. P, app. 1, Listing 12.00D)).]

         The ALJ gave “little weight” to Ms. Galiano's opinion that, “‘[d]ue to the severity of the depression and the frequency of panic attacks [Plaintiff] would not be able to work or maintain regular employment at this time in her life.'” [Id. at 9-10 (quoting Exh. 6F/2 (AR at 448)).] The ALJ found Ms. Galiano's opinion was not sufficiently supported, was influenced by Plaintiff's subjective complaints, and was inconsistent with the record before the ALJ. [Id. at 9.]

         The ALJ noted “Dr. Patrick opined that [Plaintiff] had at least marked limitations in cognitive and social factors.” [Id. at 10 (citing Exh. 13F/2-3 (AR at 624-25)).] The ALJ gave this opinion “little weight” for the same reasons as with Ms. Galiano's opinion. In particular, the ALJ noted Dr. Patrick accepted Plaintiff's statement about needing back surgery within three years without questioning it. [Id. (citing Exh. 11F/4 (AR at 565)).]

         The ALJ also considered the opinions of the state agency consultants and gave them “[g]reat weight . . . because they [we]re generally consistent with the overall record.” [Id. at 10-11.] Harold Hase, Ph.D., opined that, from September 1 to December 31, 2011, Plaintiff had: no restrictions on her activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no repeated, extended episodes of decompensation. [Id. at 10 (citing Exh. 2A (AR at 76-86) at 2A/5).[10] He also opined that, from January 1, 2013 to January 1, 2014, Plaintiff had or would have: mild restrictions on her activities of daily living; moderate difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and no repeated, extended episodes of decompensation. [Id. (citing Exh. 2A/6).] Further, he opined Plaintiff would “improve with treatment, but have some residual weakness in dealing with others due to anxiety.” [Id. (citing Exh. 2A/9).] The ALJ found that, based on the findings by Thomas Christianson, M.D., regarding Plaintiff's RFC at the time of the Initial DDE, Plaintiff “could perform the full range of medium work.” [Id. at 11 (citing Exh. 2A/7-8).]

         D. Lam, Ph.D., found that, in June 2014, Plaintiff had: mild restrictions on her activities of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and no repeated, extended episodes of decompensation. [Id. at 10 (citing Exh. 5A (AR at 89-102) at 5A/7-8).[11] He opined Plaintiff

could understand, remember, and carry out simple and detailed instructions; [s]he could attend, perform, and complete simple tasks with reasonable pace and persistence; she could behave appropriately and interact with coworkers and supervisors, with limited social contact; she could adapt to routine changes in a low-demand stetting [sic], avoid hazards, and set goals.

[Id. (citing Exh. 5A/11-12).] In the Reconsideration DDE, N. Shibuya, M.D., made the same limitations findings Dr. Christianson made. [Id. (citing Exh. 5A/9-10).] The ALJ also noted Dr. Hase and Dr. Lam formed these opinions even without the benefit of evidence of Plaintiff's ...

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