Mayeda-Williams v. Commissioner of Soc. Sec. Admin.

Filing 19

ORDER re 14 Motion for Social Security Appeal. The Commissioner's decision is reversed and this matter is remanded for further proceedings. Signed by Judge H. Russel Holland on 1/10/19. (JLH, COURT STAFF)

WO

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

ELIZABETH MAYEDA-WILLIAMS,

)
)
Plaintiff,
)
)
vs.
)
)
COMMISSIONER OF SOCIAL SECURITY )
ADMINISTRATION,
)
)
Defendant.
)
_______________________________________)

No. 1:18-cv-0009-HRH

ORDER
This is an action for judicial review of the denial of disability benefits under Title II
and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff
Elizabeth Mayeda-Williams has timely filed her opening brief,1 to which defendant, the
Commissioner of the Social Security Administration, has timely responded.2 Oral argument
was not requested and is not deemed necessary.
Procedural Background
On November 26, 2012, plaintiff filed applications for disability benefits under Title
II and Title XVI of the Social Security Act, alleging that she became disabled on October 15,
1

Docket No. 14.

2

Docket No. 17.
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2012.

Plaintiff alleged that she was disabled due to lupus, rheumatoid arthritis,

polyarphralgia, anxiety, and Chiara malformation. Plaintiff’s applications were denied
initially. Plaintiff requested a hearing. After an administrative hearing on March 15, 2015,
an administrative law judge (ALJ) denied plaintiff’s applications. Plaintiff sought review of
the ALJ’s unfavorable decision. On June 7, 2016, the Appeals Council vacated the ALJ’s
decision and remanded the matter to the ALJ for further consideration. After another
administrative hearing on March 15, 2017, the ALJ again denied plaintiff’s applications.
Plaintiff again sought review of the ALJ’s unfavorable decision. On June 8, 2018, the
Appeals Council denied plaintiff’s request for review, thereby making the ALJ’s April 27,
2017 decision the final decision of the Commissioner. On June 22, 2018, plaintiff
commenced this action in which she asks the court to review the Commissioner’s final
decision.
General Background
Plaintiff was born on May 14, 1965. She was 49 years old at the time of the first
administrative hearing. Plaintiff has a college education. Plaintiff’s past relevant work
includes work as a computer lab assistant; an accounting clerk, tech, manager, and
supervisor; a property finance analyst; a grant manager; a payroll accountant; a receiving
clerk; a building monitor; a receptionist; and an office manager.
The ALJ’s Decision
The ALJ first determined that plaintiff met “the insured status requirements of the

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Social Security Act through December 31, 2019.”3
The ALJ then applied the five-step sequential analysis used to determine whether an
individual is disabled.4
At step one, the ALJ found that plaintiff had “engaged in substantial gainful activity
during the following periods: 4th quarter of 2013 through May 28, 2014”5 but that “there has
been a continuous 12-month period[] during which the claimant did not engage in substantial
3

Admin. Rec. at 37.

4

The five steps are as follows:
Step one: Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not disabled. If not,
proceed to step two.
Step two: Is the claimant’s alleged impairment sufficiently
severe to limit . . . her ability to work? If so, proceed to step
three. If not, the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.,
pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual functional
capacity (“RFC”) to perform . . . her past relevant work? If so,
the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow . . . her
to adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not, the
claimant is disabled.

Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
5

Plaintiff worked full-time as an office manager from October 2013 through May
2014. Admin. Rec. at 535.
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gainful activity.”6
At step two, the ALJ found that plaintiff had “the following severe impairments:
Sjogren’s syndrome; rheumatic arthritis (RA); osteoarthritis of the shoulders; status-post
cerebral vascular accident. . . .”7 The ALJ found plaintiff’s anemia, bilateral hearing loss,
bilateral carpal tunnel, degenerative joint disease of the patellofemoral compartment, anxiety,
adjustment disorder, and panic disorder non-severe.8
At step three, the ALJ found that plaintiff “does not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments. . . .”9 The ALJ considered Listings 1.02 (major dysfunction of a joint, due to
any cause), 14.09 (inflammatory arthritis), 14.10 (Sjögren’s syndrome), and 11.04 (vascular
insult to the brain).10
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r of Social Security Admin., 554 F.3d 1219, 1222–23 (9th
Cir. 2009). The ALJ found that plaintiff had
the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except that she needs a

6

Admin. Rec. at 37-38.

7

Admin. Rec. at 38.

8

Admin. Rec. at 38-39.

9

Admin. Rec. at 40.

10

Admin. Rec. at 40.
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sit/stand option allowing to alternate sitting or standing positions
at one hour intervals throughout the day. Further, she can
frequently climb ramps or stairs, stoop, kneel, crouch, and crawl,
but can never climb ladders, ropes, or scaffolds. There should
be no exposure to unprotected heights.[11]
The ALJ gave great weight to most of Dr. Lebeau’s opinion but only gave little weight
to his opinion that plaintiff would need additional breaks during the day because of her
Sjogren’s.12 The ALJ gave great weight to most of Dr. Brown’s opinion but little weight to
his opinion that plaintiff could occasionally climb ladders/ropes/scaffolds and should avoid
concentrated exposure to extreme cold and hazards.13 The ALJ gave little weight to Dr.
Hambleton’s opinions.14 The ALJ also gave little weight to Dr. Anderson’s opinions.15 The

11

Admin. Rec. at 41.

12

Admin. Rec. at 44. Dr. Lebeau’s opinion is discussed below in detail.

13

Admin. Rec. at 44-45. On February 8, 2013, Roy Brown, M.D., opined that plaintiff
could occasionally lift/carry 20 pounds; could frequently lift/carry 10 pounds; could
stand/walk for 6 hours; could sit for 6 hours; was unlimited as to pushing/pulling; could
frequently climb ramps/stairs; could occasionally climb ladders/ropes/scaffolds; could
frequently balance, stoop, kneel, crouch, and crawl; and should avoid concentrated exposure
to extreme cold, vibrations, and hazards. Admin. Rec. at 166-167.
14

Admin. Rec. at 45. On November 11, 2012, Dr. Hambleton opined that plaintiff was
not capable of working full-time due to her RA, polyarthralgia, and anxiety. Admin. Rec.
at 1133. On April 9, 2013, Dr. Hambleton opined that plaintiff “is disabled and unable to
work due to her symptoms.” Admin. Rec. at 1135. On June 13, 2013, Dr. Hambleton noted
that plaintiff “has true disease that is very difficult to control and her ability to work is quite
compromised because of her disease.” Admin. Rec. at 917.
15

Admin. Rec. at 45. On April 7, 2015, Dr. Anderson opined that plaintiff was unable
to work full-time because of “her progressive decline, even with treatment.” Admin. Rec.
at 1144. On May 6, 2015, Dr. Anderson noted
(continued...)
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ALJ gave no weight to Dr. Farr’s opinion.16 The ALJ also gave no weight to Dr. Rosales’
opinion.17 The ALJ gave no weight to Kay Smith’s opinion.18 The ALJ also gave no weight

15

(...continued)
[f]or the record, this 49yo woman has had significant challenges
with maintaining employment due to her frequent requirements
for medical visits. This has impacted her life in a way that has
made it difficult to maintain her finances. I made it clear to the
patient that I do not do formal Disability exams, so cannot
determine her level of disability at this time. I do, however,
expect her chronic problems to continue to deteriorate, and she
will likely require disability assistance at some point.

Admin. Rec. at 1322.
16

Admin. Rec. at 46. On April 16, 2013, Dr. Farr indicated that plaintiff “will require
long term lubrication of her eyes.” Admin. Rec. at 1139.
17

Admin. Rec. at 46. On March 14, 2017, Dr. Rosales wrote that
[a]t this time the working diagnosis for Ms. Mayeda is
Myocarditis (unspecified) and it is supported by objective
findings of pericardial effusion in MRI, focal wall motion
abnormality in dobutamine stress echocardiogram and positive
troponins during stress test with a normal coronary artery
disease. At this moment, Ms. Mayeda has failed medical
therapy and the invasive testing has not given a definitive
diagnosis. She continues to report symptoms consistent with
angina of effort ACC class 2, which limits her ability to work.

Admin. Rec. at 3029.
18

Admin. Rec. at 46. On July 15, 2015, Kay Smith, a vocational rehabilitation
counselor wrote that
DVR will forward a letter indicating the circumstances for
closure of Ms. Mayeda’s DVR case. Her DVR services began
06/23/2014, and her case was closed on 05/09/2015. Ms.
(continued...)
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to Larina Santos’ opinion.19
At step four, the ALJ found that plaintiff was “capable of performing past relevant
work as an accounting clerk, an accounting technician, a payroll accountant, an accounting
specialist, an accounting manager, and an accounting supervisor.”20
Thus, the ALJ concluded that plaintiff had “not been under a disability, as defined in
the Social Security Act, from October 15, 2012, through the date of this decision. . . .”21
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner. . . .” The court “properly affirms the Commissioner’s decision denying

18

(...continued)
Mayeda received a note from her primary treating physician,
‘not ready for work,’ which makes her unable to participate in
the VR program. After discussion, she requested her case be
closed due to deteriorating medical health, i.e., needs blood/iron
infusions 2x/week, absent stamina, i.e., sleepy rest of the day
after infusions. Ms. Mayeda indicated that if her medical
situation does not improve, she will need blood transfusions.

Admin. Rec. at 1353.
19

Admin. Rec. at 46. On July 15, 2015, Larina Santos, MSN, opined that plaintiff
could stand for 45 minutes; sit for 45 minutes; walk for 100 yards; rarely reach above
shoulders, down to waist, or towards the floor; frequently handle objects carefully; could lift
less than 5 pounds; and cannot bend or squat. Admin. Rec. at 1355-1357.
20

Admin. Rec. at 46.

21

Admin. Rec. at 47.
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benefits if it is supported by substantial evidence and based on the application of correct legal
standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence
is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as
a reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Andrews
v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence
supports the ALJ’s decision, [the court] review[s] the administrative record as a whole,
weighing both the evidence that supports and that which detracts from the ALJ’s conclusion.’” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than
one reasonable interpretation, the court must uphold the Commissioner’s decision. Id. But,
the Commissioner’s decision cannot be affirmed “‘simply by isolating a specific quantum of
supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
Discussion
Plaintiff first argues that the ALJ erred because he failed to account for the fact that
she would miss more than two days of work each month because of her dental visits.
Plaintiff testified that she sees the dental hygienist once a week for about an hour and the
dentist 3-4 times per month for anywhere between 30 minutes and 2 hours.22 Plaintiff argues
that her dental appointments, which are necessary treatment for her Sjogren’s, would cause
her to miss more than two days of work per month. The vocational expert testified that two

22

Admin. Rec. at 97.
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or more absences per month would preclude competitive employment.23
Plaintiff’s dental appointments would not necessarily cause her to miss more than two
days of work per month. There is no evidence in the record that plaintiff’s dental provider
was only available for appointments during the workday. In her reply brief, plaintiff
contends that her dental visits are in Anchorage (she lives in Juneau), but the record does not
bear this out. Plaintiff testified that she has been making 2-3 trips to Anchorage per month
since 2014 for her various medical issues, not just to see the dentist.24 And, while the record
does show that plaintiff makes relatively frequent trips to Anchorage for medical
appointments, which might preclude her from maintaining full-time employment, it does not
appear that she was going to Anchorage 2-3 times per month. That said, even if she were
only going once a month, it is possible that such a trip along with her other medical
appointments would preclude full-time employment.
“The ALJ always has a ‘special duty to fully and fairly develop the record and to
assure that the claimant’s interests are considered.’” Garcia v. Comm’r of Social Sec., 768
F.3d 925, 930 (9th Cir. 2014) (quoting Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir.
2003)). “Ambiguous evidence, or the ALJ’s own finding that the record is inadequate to
allow for proper evaluation of the evidence, triggers the ALJ’s duty to ‘conduct an
appropriate inquiry.’” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting

23

Admin. Rec. at 123.

24

Admin. Rec. at 107-108.
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Smolen v. Chater, 80 F.3d at 1273, 1288 (9th Cir. 1996)). “The ALJ may discharge this duty
in several ways, including: subpoenaing the claimant’s physicians, submitting questions to
the claimant’s physicians, continuing the hearing, or keeping the record open after the
hearing to allow supplementation of the record.” Id.
The evidence on the issue of how much work plaintiff would miss each month due to
necessary medical and dentist appointments is ambiguous. The ALJ should have developed
the record as to this issue. The failure to do so was error
Plaintiff next argues that the ALJ erred in rejecting a portion of Dr. Lebeau’s opinion.
Dr. Lebeau opined that plaintiff could lift/carry 10 pounds continuously; lift/carry up 20
pounds frequently; could sit for 7 hours a day, up to 2 hours at a time; could stand for 3 hours
a day, up to one hour at a time; could walk for 30 minutes; had no limits in terms of using
her hands and feet; could climb stairs and ramps frequently; could never climb scaffolds and
ladders; could balance continuously; could stoop, kneel, crouch, and crawl frequently; could
not be around unprotected heights; and had no limitations as to moving mechanical parts,
moving machinery, dust, odors, fumes, and extreme cold and heat.25 Dr. Lebeau also testified
that plaintiff would need additional breaks every day to deal with the symptoms of her
Sjogren’s, but he did not give a number of additional breaks that would be required.26 Dr.
Lebeau stated “that what [plaintiff’s] describing” in terms of her Sjogren’s syndrome “is

25

Admin. Rec. at 90-91.

26

Admin. Rec. at 95.
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classic. There’s nothing [to] challenge[] credibility. . . . It’s a . . . nasty disease and yet it
doesn’t kill you; . . . you have to try to . . . live with this[.]”27 He also testified that “this is
a lady who’s going to have to be taking wetting agents for her . . . tongue, mouth, and for her
eyes frequently. So she’s going to be, like, trying to work and . . . I’m sure that she is using
these things probably at least every hour.”28
The ALJ gave great weight to most of Dr. Lebeau’s opinion but gave little weight to
the portion of his opinion relating to plaintiff needing additional breaks.29 Plaintiff argues
that the ALJ erred in rejecting Dr. Lebeau’s opinion that she would need additional breaks.
The ALJ rejected this portion of Dr. Lebeau’s opinion because it was inconsistent with
plaintiff’s daily activities and because Dr. Lebeau “did not opine any specific number of
breaks, but rather indicated generally that Sjogren’s requires maintenance during the day.”30
“As elements of [Dr. Lebeau’s] opinion conflict with opinions of other medical experts, the
ALJ was only required to give a specific and legitimate reason for rejecting h[is] medical
opinion.” Norris v. Colvin, 160 F. Supp. 3d 1251, 1270 (E.D. Wash. 2016) (internal
quotations omitted).
Defendant argues that the first reason given by the ALJ was a legitimate reason. The

27

Admin. Rec. at 95.

28

Admin. Rec. at 92.

29

Admin. Rec. at 44.

30

Admin. Rec. at 44.
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ALJ stated that plaintiff remained “quite active” and pointed to evidence that she drove
disabled friends and family around; that she was caring for 14 of her grandchildren in her
home; that less than one year after her alleged onset date she was applying for full time jobs
and actually began working full-time in October 2013; that she assisted a friend with medical
travel including pushing a wheelchair and carrying luggage; and that as late as 2016, she was
spending 13-hour days caring for 3 of her grandchildren.31 Defendant argues that activity at
this level is inconsistent with Dr. Lebeau’s testimony that plaintiff would need additional
breaks during the day.
The court disagrees. As the Ninth Circuit has recognized, “‘[t]he critical differences
between activities of daily living and activities in a full-time job are that a person has more
flexibility in scheduling the former than the latter, can get help from other persons . . . , and
is not held to a minimum standard of performance, as she would be by an employer.’”
Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (quoting Bjornson v. Astrue, 671
F.3d 640, 647 (7th Cir. 2012)). The daily activities that the ALJ highlighted tell us nothing
about the nature and extent of the breaks plaintiff would need to deal with her Sjogren’s.
The first reason given by the ALJ gave for rejecting Dr. Lebeau’s opinion as to plaintiff’s
need for additional breaks was not legitimate.
As for the second reason, that Dr. Lebeau did not opine as to how many additional
breaks plaintiff would need, Dr. Lebeau testified that this was an issue to discuss with the

31

Admin. Rec. at 42-43.
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vocational expert.32 But, the ALJ did not do so. Plaintiff’s lawyer asked the vocational
expert about additional breaks, but the ALJ did not.33 Based on Dr. Lebeau’s testimony, the
ALJ should have developed the issue of plaintiff’s need for additional breaks.
The ALJ erred in rejecting Dr. Lebeau’s opinion that plaintiff would need additional
breaks. This error was not harmless because if plaintiff does in fact require additional
breaks, the ALJ did not include this limitation in plaintiff’s RFC.
Plaintiff next argues that the Appeals Council erred as to the new evidence that she
submitted on appeal. On November 3, 2017, plaintiff submitted Dr. Holmes’ treatment notes
from April 17-24, 2017.34 Dr. Holmes stated that
we are presuming that this is a small vessel disease. We will
recommend starting her on Imdur and then titrating the dose.
Hopefully, she will be able to tolerate and become used to any
headaches related to that. I have told her that she should also
carry nitroglycerin with her. We talked about the importance of
exercise. I think more regular exercise will be excellent for her.
. . . Should this not be associated with improvement, we could
then add ranolazine to her program for the treatment of what we
presume is small vessel disease.[35]
The Appeals Council noted that plaintiff “submitted medical records from the Mayo
Clinic and Dr. Holmes, dated April 17, 2017 through April 24, 2107 (19 pages). We find this

32

Admin. Rec. at 95.

33

Admin. Rec. at 122.

34

Admin. Rec. at 575.

35

Admin. Rec. at 15.
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evidence does not show a reasonable probability that it could change the outcome of the
decision. We did not consider and exhibit this evidence.”36
While the Appeals Council’s statements are somewhat ambiguous, it appears that the
Appeals Council did consider Dr. Holmes’ treatment notes and determined that they would
not change the outcome of this case. The Ninth Circuit has held “‘that when the Appeals
Council considers new evidence in deciding whether to review a decision of the ALJ, that
evidence becomes part of the administrative record, which the district court must consider
when reviewing the Commissioner’s final decision for substantial evidence.’” Decker v.
Berryhill, 856 F.3d 659, 664 (9th Cir. 2017) (quoting Brewes v. Comm’r of Social Sec.
Admin., 682 F.3d 1157, 1163 (9th Cir. 2012)).
Plaintiff argues that this additional evidence relating to her cardiac issues was likely
to change the outcome of this case because it is evidence of an additional severe impairment
that would likely have associated limitations. Thus, plaintiff argues that if the court
considers this additional evidence, as it must, then at least a remand for further proceeding
is necessary so that the ALJ can decide in the first instance what impact this new diagnosis
might have on plaintiff’s capacity to sustain full-time work.
Dr. Holmes’ treatment notes were unlikely to change the outcome of this case,
primarily because the ALJ considered plaintiff’s atypical chest pain. The ALJ asked Dr.
Lebeau if there would be any limitations associated with plaintiff’s chest pain and Dr. Lebeau

36

Admin. Rec. at 2.
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testified that there would not be.37 The Appeals Council did not err as to Dr. Holmes’
treatment notes.
But because the ALJ erred as to Dr. Lebeau’s opinion and failed to develop the record
on the issue of how much work plaintiff would miss for medical and dental appointments,
the court must decide whether to remand for an award of benefits or for further proceedings.
The court follows a three-step analysis to determine whether a remand for an award of
benefits would be appropriate. “First, [the court] must conclude that ‘the ALJ has failed to
provide legally sufficient reasons for rejecting evidence, whether claimant testimony or
medical opinion.’” Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (quoting
Garrison, 759 F.3d at 1020). “Second, [the court] must conclude that ‘the record has been
fully developed and further administrative proceedings would serve no useful purpose.’” Id.
(quoting Garrison, 759 F.3d at 1020). “Where there is conflicting evidence, and not all
essential factual issues have been resolved, a remand for an award of benefits is inappropriate.” Treichler v. Comm’r of Social Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014).
“Third, [the court] must conclude that ‘if the improperly discredited evidence were credited
as true, the ALJ would be required to find the claimant disabled on remand.’” BrownHunter, 806 F.3d at 495 (quoting Garrison, 759 F.3d at 1021). But, “even if all three
requirements are met, [the court] retain[s] ‘flexibility’ in determining the appropriate
remedy” and “may remand on an open record for further proceedings ‘when the record as a

37

Admin. Rec. at 98-101.
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whole creates serious doubt as to whether the claimant is, in fact, disabled within the
meaning of the Social Security Act.’” Id. (quoting Garrison, 759 F.3d at 1021).
Here, a remand for further proceedings is appropriate because the record needs to be
developed on the issue of much work plaintiff would miss due to doctor and dentist
appointments as well as on the issue of whether she would need additional breaks during
each work day, and if so, how many additional breaks.
Conclusion
Based on the foregoing, the Commissioner’s decision is reversed and this matter is
remanded for further proceedings.
DATED at Anchorage, Alaska, this 10th day of January, 2019.
/s/ H. Russel Holland
United States District Judge

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