Duron v. Colvin
ORDER Granting 10 Motion for Remand. (CC: DQA) (Jan, Chambers Staff)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DIEDRE LEANORA DURON,
Case No. 3:15-cv-00018 RRB
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
ORDER REMANDING FOR
Plaintiff, Diedre Leanora Duron, filed an application for Disability Insurance Benefits
and Supplemental Security Income which Defendant, the Commissioner of Social Security,
denied. Tr. 20, 145. Plaintiff 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. Plaintiff seeks a
remand for further administrative proceedings.
Plaintiff has filed an opening brief on the merits, construed by this Court as a motion
for summary judgment. Defendant opposes, arguing the denial of benefits is supported by
ORDER REMANDING FOR FURTHER PROCEEDINGS - 1
substantial evidence and free of legal error. Plaintiff has replied. Docket nos. 10, 14 & 15.
For the reasons set forth below, the Motion for Summary Judgment at Docket 10 is
GRANTED and this matter is REMANDED for further consideration.
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.
Plaintiff bears the burden of proof at steps one through four. Tackett v. Apfel, 180 F.3d 1094,
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1098 (9th Cir. 1999). The burden shifts to the Commissioner at step five. Id. The steps, and
the ALJ’s findings in this case, are as follows:
Step 1. Determine whether the claimant is involved in “substantial gainful activity.
The ALJ determined that Plaintiff has not engaged in substantial gainful activity since
April 1, 2010, the alleged onset date. Tr. 22.
Step 2. Determine whether the Plaintiff has a medically severe impairment or
combination of impairments. A severe impairment significantly limits a Plaintiff’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 twelvemonth duration requirement. The ALJ determined that Plaintiff had the following severe
impairments: migraine headaches, status post thoracic spine injury with myelopathy
and autonomic symptoms, and obesity. Tr. 22.
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 Plaintiff is conclusively presumed to be disabled. If
not, the evaluation goes on to the fourth step. According to the ALJ, the Plaintiff does not
have an impairment or combination of impairments that meets or medically equals a
listed impairment. Tr. 24.
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Residual Functional Capacity. Before proceeding to step four, a Plaintiff’s residual
functional capacity (“RFC”) is assessed. This RFC assessment is used at both step four and
step five.1 In evaluating his RFC, the ALJ concluded that Plaintiff had the RFC to
perform sedentary work. Tr. 25.
Step 4. Determine whether the impairment prevents the Plaintiff from performing
work performed in the past. At this point the analysis considers the Plaintiff’s residual
functional capacity and past relevant work. If the Plaintiff can still do his or her past relevant
work, the Plaintiff is deemed not to be disabled. Otherwise, the evaluation process moves to
the fifth and final step. The ALJ found that Plaintiff was capable of performing her past
relevant work as an administrative assistant, and therefore was not disabled.
Accordingly, the ALJ did not reach Step 5 of the analysis.
Plaintiff 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.
Issues on Appeal
The Court finds no error in the ALJ’s analysis and findings under Steps 1, 2 or 3, and
Plaintiff does not contest the ALJ findings under these steps. However, Plaintiff complains
20 C.F.R. §§ 404.1520(a)(4)(2011); §416.920(a)(4) (2011).
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that the ALJ’s determination of the RFC was flawed, and requests a remand for a de novo
hearing. Plaintiff makes three specific arguments.
1. Treating Physician’s Opinion
Plaintiff argues the RFC determination was not supported by substantial evidence
because the ALJ erred in weighing and evaluating the medical opinion of record. Docket 10
at 13-17. Specifically, she argues that the ALJ improperly gave “little weight” to the medical
source statement completed by Dr. Kropp, who was the only treating or examining medical
source to provide an opinion regarding her functional limitations. Id. at 14 (citing Tr. 26-27).
In January 2012 Dr. Kropp opined that Plaintiff could walk one block without rest or
significant pain, could sit/stand/walk for 5 minutes at a time, and that she should only be
expected to sit for one hour in an 8 hour workday and stand for 1 hour in the same 8 hour
workday. Tr. 297. The most Plaintiff could lift was less than ten pounds, and only
occasionally. Tr. 298. Dr. Kropp noted Plaintiff was going to the Mayo Clinic to see a
specialist in autonomic dysreflexia, which he felt was progressing. Tr. 335. But the ALJ
summarily dismissed Dr. Kropp’s opinions, giving them “little weight as they are inconsistent
with the evidentiary record as a whole, specifically the objective evidence which revealed that
the Plaintiff had normal strength, reflexes, and sensations. . . . Dr. Kropp’s opinions are also
inconsistent with the imaging of the Plaintiff’s spine, which, as noted above, has also been
unremarkable.” Tr. 27. Instead, the ALJ gave significant weight to the opinion of the State
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agency’s reviewing physician, Robert Vestal, MD, finding his opinion that Plaintiff could
perform sedentary work to be consistent with the evidentiary record as a whole. Tr. 26.
Plaintiff argues that “despite the lack of a conflicting opinion from another treating or
examining source, as well as the heightened standard for evaluating treating source opinions
under the regulations, the ALJ failed to provide adequate reasons for rejecting this opinion.”
Docket 10 at 15. The ALJ’s reasoning that Dr. Kropp’s opinions were inconsistent with the
evidentiary record as a whole ”is vague and overbroad, and fails to account for Dr. Kropp’s
expertise in interpreting his own medical records and objective findings, and further fails to
account for the treatment records which do document specific findings and abnormal
reflexes.” Id. (emphasis original). Plaintiff highlights significant points in the record which
indicate objective findings and aggressive treatment, including surgical procedures, to treat her
pain and symptoms. See Tr. 214, 224-28, 304, 308, 310-314, 317, 319-22, 325, 329, and
381-84. Finally, Plaintiff complains that the ALJ failed to evaluate the relevant factors in
deciding the weight to accord an opinion, including length of treatment relationship, frequency
of examination, other medical evidence, the physician’s qualifications, etc. See 20 C.F.R.
§ 404.1527(c)(2). Plaintiff argues Dr. Kropp was in the best position to render an opinion
regarding her functional capacity. Docket 10 at 16. Plaintiff requests a remand for a new RFC
determination in light of Dr. Kropp’s opinion, which should be given greater weight. Docket
10 at 17.
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In response, the Commissioner argues that the ALJ’s determination to give
Dr. Kropp’s opinion little weight was reasonable for the very same reasons that Plaintiff
argues it was unreasonable – because Dr. Kropp’s findings were inconsistent with the record,
including strength testing and imaging. Docket 14 at 6. The Commissioner argues that the
Plaintiff “asks this Court to draw unsupported medical conclusions and merely offers an
alternate interpretation of the evidence.” Docket 14 at 8.
The Court disagrees with the Commissioner. As Plaintiff explains, the ALJ’s
explanation that her complaints were “inconsistent with the imaging of her spine,” is
misplaced, as Plaintiff was not diagnosed with or treated for any degenerative spinal
impairments or disc disease which would be revealed by imaging. Docket 10 at 16. Plaintiff
argues, and the Court observes, that her chronic pain has been confirmed throughout the
record. The Plaintiff does not ask this Court to draw unsupported medical conclusions.
Rather, the Plaintiff asks this Court to remand this matter so that an ALJ can evaluate the
medical record and give appropriate weight to a treating physician. Upon remand, the
Commissioner is reminded of the guidance of SSR 96-5p, which requires that “if the evidence
does not support a treating source’s opinion . . . and the adjudicator cannot ascertain the basis
of the opinion from the case record, the adjudicator must make ‘every reasonable effort’ to
recontact the source for clarification of the reasons for the opinion.” Before dismissing
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Dr. Kropp’s opinion, the ALJ should have contacted Dr. Kropp for clarification of the reasons
for the opinions expressed in his medical source statement.
2. Plaintiff’s Credibility
The ALJ questioned Plaintiff’s credibility, finding that her reported improvement with
treatment as well as activities were “not as limited as one would expect given her allegations
of disabling symptoms.” Tr. 26. By way of example the ALJ noted that in 2011 Plaintiff was
attending law school and “loved her classes,” and that the same year she reported
improvement due to medications. She traveled to Hawaii in May 2012.
Plaintiff complains that the ALJ’s credibility determination is unsupported by
substantial evidence for several reasons. First, the ALJ’s findings that there was a lack of
objective medical evidence to support Plaintiff’s assertions is simply incorrect; the ALJ looked
to findings in the record which do not necessarily correlate to Plaintiff’s condition. Second,
a lack of objective evidence for Plaintiff’s actual conditions is only one fact relevant to
credibility, and the ALJ should have considered her testimony “in the context of all the
evidence.” Docket 10 at 18. Treatment notes and regular prescriptions for narcotic pain
medication support her allegations of severe pain and symptoms. Third, the ALJ considered
limited improvement, attempt to attend school, and a vacation as evidence that her pain was
not as bad as she alleged. However, again, the ALJ failed to consider these activities in
context. Her reduced pain was still significant, she testified that she was advised to discontinue
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school due to her medical condition (Tr. 52-53), and on her Hawaiian vacation she used a
wheelchair and sustained a fall and injury during the trip. Tr. 337. Plaintiff requests a remand
for a proper credibility determination. Docket 10 at 19.
The Commissioner complains that Plaintiff’s self-serving testimony that Dr. Kropp
advised her to drop out of law school is unsupported by the record. Indeed, the Court notes
that the ALJ left the record open to allow the submission of additional medical records. It is
unclear if the record was ever supplemented. In light of the fact that this matter is being
remanded for other reasons, this Court need not make a finding regarding the ALJ’s credibility
finding. The Court does, however, order that the record shall be supplemented to the extent
possible upon remand, and that the ALJ shall make a new credibility finding following a new
3. Incomplete Hypothetical Posed to Vocational Expert
Plaintiff argues that the ALJ erred in relying on vocational testimony elicited in
response to an incomplete hypothetical question. She argues that because the ALJ
miscalculated the RFC, the vocational expert’s testimony was invalid. Because this matter is
being remanded for reconsideration of the RFC, the Court need not reach this argument.
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”
ORDER REMANDING FOR FURTHER PROCEEDINGS - 10
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 Plaintiff WAS NOT supported by substantial evidence.
As discussed herein, the ALJ did not adequately evaluate the medical source opinion of
Dr. Kropp, Plaintiff’s treating physician.
Based on the foregoing, IT IS HEREBY ORDERED that the Plaintiff’s Motion for
Summary Judgment at Docket 10 is GRANTED and this matter is REMANDED for further
proceedings consistent with this opinion.
IT IS SO ORDERED this 4th day of January, 2016.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE
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