Stevens v. Colvin
Filing
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ORDER Granting Motion to Remand at Docket 16 . (CC: DQA.) (Jan, Chambers Staff).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DELORIS ANN STEVENS ,
Case No. 3:14:-CV 246 RRB
Plaintiff,
v.
ORDER REMANDING FOR
PAYMENT OF BENEFITS
DOCKET 16
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
I. INTRODUCTION
Claimant, DELORIS ANN STEVENS, filed an application for Disability Insurance Benefits
which Defendant, the Commissioner of Social Security, denied. Claimant has exhausted her
administrative remedies and seeks relief from this Court, arguing that the Commissioner’s decision
that she is not disabled within the meaning of the Social Security Act is not supported by substantial
evidence. Docket 1. Claimant seeks a reversal of the Commissioner’s decision and an award of
benefits. Specifically, she asserts that the ALJ erred in the evaluation of the evidence pertaining to
her back impairment and psoriatic arthritis. Docket 16 at 1. Claimant requests that this Court
remand this case to the Commissioner for payment of benefits, pursuant to Sentence Four of 42
U.S.C. § 405(g). Docket 16. In opposition, the Commissioner argues that although errors were
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made, the proper remedy is a remand to the ALJ for further consideration. Docket 20. Claimant has
replied. Docket 21.
For the reasons set forth below, Claimant’s Motion at Docket 16 is GRANTED and this
matter is REMANDED for payment of benefits.
II. STANDARD OF REVIEW
The findings of the Administrative Law Judge (“ALJ”) or Commissioner of Social Security
regarding any fact shall be conclusive if supported by substantial evidence. See 42 U.S.C.
§ 405(g)(2010). A decision to deny benefits will not be overturned unless it either is not supported
by substantial evidence or is based upon legal error. Matney ex rel. Matney v. Sullivan, 981 F.2d
1016, 1019 (9th Cir. 1992) (citing Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
“Substantial evidence” has been defined by the United States Supreme Court as “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
Such evidence must be “more than a mere scintilla,” but also “less than a preponderance.” Id. at
401;
Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). In making its
determination, the Court considers the evidence in its entirety, weighing both the evidence that
supports and that which detracts from the Commissioner’s conclusion. Jones v. Heckler,760 F.2d
993, 995 (9th Cir. 1985). If the evidence is susceptible to more than one rational interpretation, the
ALJ’s conclusion must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452-53 (9th Cir. 1984).
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III. DETERMINING DISABILITY
The Social Security Act (the “Act”) provides for the payment of disability insurance benefits
(“DIB”) to people who have contributed to the Social Security program and who suffer from a
physical or mental disability. 42 U.S.C. § 423(a) (2012). In addition, supplemental security income
benefits (“SSI”) may be available to individuals who are age 65 or over, blind or disabled, but who
do not have insured status under the Act. 42 U.S.C. § 1381 (2012). Disability is defined in the
Social Security Act as follows:
[I]nability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than
12 months.
42 U.S.C. § 423(d)(1)(A) (2012). The Act further provides:
An individual shall be determined to be under a disability only if his physical or
mental impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy,
regardless of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be hired if he
applied for work. For purposes of the preceding sentence (with respect to any
individual), “work which exists in the national economy” means work which exists
in significant numbers either in the region where such individual lives or in several
regions of the country.
42 U.S.C. § 423(d)(2)(A) (2012).
The Commissioner has established a five-step process for determining disability. Claimant
bears the burden of proof at steps one through four. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
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1999). The burden shifts to the Commissioner at step five. Id. The steps, and the ALJ’s findings
in this case, are as follows:1
Step 1. Determine whether the claimant is involved in “substantial gainful activity.
The ALJ found that Plaintiff had not engaged in substantial work activity since her alleged
onset date of August 20, 2010. Tr. 15.
Step 2. Determine whether the claimant has a medically severe impairment or combination
of impairments. A severe impairment significantly limits a claimant’s physical or mental ability to
do basic work activities, and does not consider age, education, or work experience. The severe
impairment or combination of impairments must satisfy the twelve-month duration requirement.
The ALJ found that Plaintiff’s psoriasis, psoriatic arthritis, Type II diabetes, discogenic
disorder of the lumbar spine, and obesity were severe impairments. Tr. 15.
Step 3. Determine whether the impairment is the equivalent of a number of listed
impairments listed in 20 C.F.R. pt. 404, subpt. P, App. 1 that are so severe as to preclude substantial
gainful activity. If the impairment is the equivalent of one of the listed impairments and meets the
duration requirement, the claimant is conclusively presumed to be disabled. If not, the evaluation
goes on to the fourth step. According to the ALJ, Claimant has no such impairment. The ALJ
specifically considered listing 1.04, 9.00, 8.04, 8.05, and 14.09. Tr. 16-18.
Residual Functional Capacity. Before proceeding to step four, a claimant’s residual
functional capacity (“RFC”) is assessed. This RFC assessment is used at both step four and step
1
The ALJ noted that Claimant met the insured status requirements of the Social Security Act
through December 31, 2014. Tr. 15.
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five. 20 C.F.R. §§ 404.1520(a)(4) (2011); §416.920(a)(4) (2011). In evaluating her RFC, the ALJ
concluded that Claimant can perform sedentary work except that she is limited to: occasional
balancing, stooping, kneeling, crouching, crawling, and climbing of ladders, ropes, scaffolds,
ramps or stairs; no overhead reaching with the bilateral upper extremities; frequent bilateral
gross and fine manipulation; and avoiding concentrated exposure to excessive vibration.
Tr. 18.
Step 4. Determine whether the impairment prevents the claimant from performing work
performed in the past. At this point the analysis considers the claimant’s residual functional capacity
and past relevant work. If the claimant can still do his or her past relevant work, the claimant is
deemed not to be disabled. Otherwise, the evaluation process moves to the fifth and final step. The
ALJ found that Claimant is capable of performing past relevant work as a receptionist and
employment technician. Tr. 22.
Step 5. Determine whether the claimant is able to perform other work in the national
economy in view of his or her age, education, and work experience, and in light of the residual
functional capacity. If so, the claimant is not disabled. If not, the claimant is considered disabled.
The ALJ did not reach this step.
Claimant bears the burden of proof at steps one through four. Tackett, 180 F.3d at 1098. The
burden shifts to the Commissioner at step five. Id.
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IV. DISCUSSION
A.
Issues on Appeal
The Court finds no error in the ALJ’s analysis and findings under Steps 1 or 2 and Claimant
does not contest the ALJ findings under these steps.
Claimant alleges that 1) the ALJ failed to give clear and convincing reasons for rejecting the
opinion of the treating physician in favor of the opinions of the non-examining sources; 2) the ALJ
did not give germane reasons for rejecting the opinion of PA-C Okuley; 3) the ALJ did not give clear
and convincing reasons for finding Claimant’s allegations not fully credible; and 4) the ALJ’s
rejection of the lay witness evidence was not based on the correct legal standard. Docket 16.
Claimant argues that the proper remedy for the errors in the ALJ’s decision is remand for payment
of benefits. Id. at 20.
In response, the Commissioner concedes that the ALJ made prejudicial errors with respect
to the limitations assessed by Ms. Okuley, a physician assistant. Docket 20 at 2. The Commissioner
does not address the remaining arguments, arguing only that “the record is not free from conflicts,
not all factual issues have been resolved, and the claimant’s entitlement to benefits is not clear.” Id.
The Commissioner requests a remand for further proceedings.
1. Listed Impairment - Psoriasis
Although not discussed by the parties, the Court finds an issue at Step 3 of the ALJ’s
analysis. The ALJ stated “I have considered whether the claimant’s psoriasis meets or equals listings
8.04 . . . [or] 8.05. After a careful review of the entire medical evidence of record, I find that none
of the criteria set forth in listings 8.04 or 8.05 are satisfied in this case.”
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The ALJ is mistaken. Listing 8.05 states, in its entirety:
8.05 Dermatitis (for example, psoriasis, dyshidrosis, atopic dermatitis, exfoliative
dermatitis, allergic contact dermatitis), with extensive skin lesions that persist for at
least 3 months despite continuing treatment as prescribed.
20 C.F.R. pt. 404, subpt. P, App. 1.
The medical records reflect that as of September 2011, Claimant had already had psoriasis
lesions for “some time.” Tr. 336. An exam revealed psoriasis primarily on her scalp, with smaller
lesions on her elbows, inframammary areas, and outer ears. Id. By April 2012 the psoriasis had
spread to her face, scalp, extremities and trunk despite Humira injections once per week. Tr. 419.
In May 2012 her treating physician, Dr. John Botson, an Orthopedic Physician, found psoriasis on
50% of her total body surface area. Tr. 474. The psoriasis began to improve in July 2012 (Tr. 402),
and was deemed in remission by December 2012. Tr. 593. Accordingly, under the plain language
of the C.F.R., Claimant’s psoriasis qualified her for disability – conservatively speaking – between
September 2011 and December 2012 when plaque psoriasis was first identified in the medical
records and when it went into remission.
2. Listed Impairment - Psoriatic Arthritis
The ALJ expressly found – without explanation – that Claimant’s psoriatic arthritis did not
meet or equal a listed impairment. Tr. 18.
In December 2011 Claimant was formally diagnosed with psoriatic arthritis, noting that she
had been treated unsuccessfully for pain for the prior two years. Tr. 326. By April 2012 Her
psoriatic arthritis was again noted, particularly in her hands and fingers. Tr. 419. By May 2012 she
obtained a second opinion for her psoriatic arthritis. Upon review of her “complicated” file,
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Dr. Botson opined that “she has been known to be a very compliant patient who has subsequently
had worsening symptoms of her psoriasis and psoriatic arthritis, thus leading her to rheumatologic
evaluation.” Tr. 474. He noted that joint pain started in 2010, including swelling, redness and
warmth in her hands, and noted her joint pain worsens as her psoriasis worsens. Treatment for joint
pain with anti-inflammatory medications had been minimally helpful. Diabetes prevented use of
coricosteroids. Aggressive treatment of psoriasis and psoriatic arthritis was recommended. Tr. 477.
In July 2012 Claimant reported an improvement in her psoriasis, but denied any change in
her psoriatic arthritis symptoms. Tr. 402. She still had to take a nap every day. Tr. 539. She reported
being unable to tie shoelaces or fasten buttons, open jars, take a tub bath, vacuum, do yard work.
Tr. 568-69.
In August 2012 PA Sylvia Okuley noted that Claimant’s psoriasis continued to improve, but
“unfortunately she denies improvement in her psoriatic arthritis.” Tr. 511. The lack of improvement
in the psoriatic arthritis is echoed in other records. Tr. 549, 553. By September 2012, Claimant had
had three of five Remicade infusions, and she was told not to expect much improvement in her
arthritis until after the fifth infusion. Tr. 517, 555. An October 2012 medical source statement
indicates numerous problems, including psoriatic arthritis and plaque psoriasis, manifesting
symptoms including fatigue, malaise, pain, numbness, difficulty walking, muscle weakness, loss of
manual dexterity, vision blurriness, difficulty thinking/concentrating, loss of balance, and headaches.
Tr. 531.
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In November 2012, treating physician Dr. John Botson, issued a medical source statement
regarding arthritis, noting a fair prognosis of her chronic psoriatic arthritis, that depression and
anxiety exacerbated her pain, that her symptoms were severe enough to frequently interfere with
attention and concentration, and that her impairments had lasted at least twelve months. Tr. 583-85.
He opined that she would need a break every hour of an eight hour work day, that her legs would
need to be elevated to hip level when sitting 75% of the time. He indicated significant limitations
in repetitive reaching, handling or fingering, and that he anticipated three absences or more per
month. Tr. 586-87. In December 2012, Dr. Botson noted a slow but steady improvement in her
joint abnormalities due to methotrexate and Remicade. Tr. 589. He opined that she was “significantly
disabled” by the pain in her back with some radicular symptoms in her legs. Tr. 590. Claimant
indicated that hydrocodone and gabapentin help her “other joint issues” but do not completely
resolve the symptoms. Tr. 590. The ALJ rejected Dr. Botson’s opinion (assigning “only some
weight”) because he found Dr. Botson’s opinion evidence was rendered before Dr. Botson “noted
that the claimant’s psoriatic arthritis had gone into remission.” Tr. 21. Claimant has argued, and
the Court agrees, that the ALJ has confused plaque psoriasis (a skin condition) with psoriatic arthritis
(a painful auto-immune condition). Docket 16 at 4-6. In December 2012, Dr. Botson deemed
Claimant’s psoriasis in remission, but noted she continued to have significant joint symptoms
and joint pains [i.e. psoriatic arthritis] that are “unlikely to completely resolve.” He considered
her psoriatic arthritis as “improving,” although she was to continue methotrexate and Remicade via
IV infusion. Tr. 593. In January 2013 Dr. Botson noted that “I do not see any need to change any
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of her psoriatic arthritis medications which have been dramatically helpful in putting her psoriasis
in remission.” Tr. 620 (emphasis added).
The ALJ’s rejection of the treating physician’s opinions was based upon a misreading of the
record. Claimant’s psoriatic arthritis has never gone into remission. Moreover, the Court finds
that the record more than supports that psoriatic arthritis, which is specifically contemplated in the
C.F.R. under “Inflammatory Arthritis” § 14.09, is demonstrated by the record in this matter. In order
to qualify under this listing, Claimant would have to show:
D. Repeated manifestations of inflammatory arthritis, with at least two of the
constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary
weight loss) and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in
concentration, persistence, or pace.
20 C.F.R. pt. 404, subpt. P, App. 1, § 14.09. The medical records here demonstrate repeated
manifestations of psoriatic arthritis – if not constant manifestation – between December 2011 and
the end of the administrative record in January 2013. Tr. 327, 402, 419-20, 474, 477, 511, 517, 531,
539, 549, 553, 555, 568-69, 583-93, & 620. The record reflects severe fatigue and malaise, as
discussed herein, in addition to limitations of activities of daily living, social functioning, and
deficiencies in concentration, persistence and pace. See Tr. 35-58, 531 & 583.
In short, Claimant qualifies for benefits under Step 3 of the analysis for her psoriasis and
psoriatic arthritis. The Court offers no evaluation of Claimant’s other severe impairments, such as
diabetes, and need not address the other issues raised by the parties.
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V. CONCLUSION
A decision of the Commissioner to deny benefits will not be overturned unless it either is not
supported by substantial evidence, or is based upon legal error. “Substantial evidence” is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The Court
has carefully reviewed the administrative record, including extensive medical records. The Court
concludes, based upon the record as a whole, that the ALJ’s decision denying disability benefits to
Claimant was not supported by substantial evidence as discussed herein.
VI. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that the Claimant’s Motion for
Summary Judgment at Docket 16 is GRANTED and this matter is REMANDED for an Award
of Benefits.
IT IS SO ORDERED this 21st day of October, 2015.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
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