Discher v. Colvin

Filing 21

ORDER Granting 17 Motion to Remand. (CC: DQA) (Jan, Chambers Staff)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
EDWARD LEE DISCHER ,

Case No. 3:15-cv-0197 RRB

Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

ORDER GRANTING MOTION
TO REMAND AT DOCKET 17

Defendant.

I. INTRODUCTION
Claimant, Edward Lee Discher, filed an application for Disability Insurance Benefits and
Supplemental Security Income on August 26, 2013, which Defendant, the Commissioner of Social
Security, denied. Claimant has exhausted his 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. Claimant seeks a reversal of the
Commissioner’s decision and a remand for further proceedings.
Claimant 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 substantial
evidence and free of legal error. Claimant has replied. Docket nos. 17, 19 & 20. For the reasons

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set forth below, Claimant’s Motion at Docket 17 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).
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
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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.
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. Here
the ALJ found that Claimant had not engaged in substantial gainful activity since January 1,
2013, the alleged onset date. Tr. 14.

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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 determined that Claimant had the following severe impairments: arthritis,
degenerative disc disease, hypothyroidism, and chronic obstructive pulmonary disease
(COPD). Tr. 14. The ALJ specifically found that Claimant’s depression was not severe.
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, the Claimant does not have an impairment
or combination of impairments that meets or medically equals the severity of a listed
impairment. Tr. 15.
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
five.1 In evaluating his RFC, the ALJ concluded that Claimant has the RFC to perform light
work with some limitations. Tr. 16.

1

20 C.F.R. §§ 404.1520(a)(4)(2011); §416.920(a)(4) (2011).

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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 the Claimant cannot perform his past relevant work as a construction worker,
truck driver, or rock crusher. Tr. 21.
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.
Based on the testimony of the vocational expert, the ALJ found that there are jobs that exist
in significant numbers in the national economy that Claimant can perform, including small
parts assembly, ticket taker, and flagger/construction. Therefore, he is not disabled. Tr. 2223.
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. The Commissioner can meet this burden “(a) by
the testimony of a vocational expert, or (b) by reference to the Medical-Vocational Guidelines at 20
C.F.R. pt. 404, subpt. P, app. 2.” Id. at 1099. The Medical-Vocational Guidelines are commonly
referred to as “the grids.” If a claimant’s residual functional capacity and vocational characteristics
correspond precisely to the grids, the grids are used to direct a finding of “disabled” or “not

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disabled.”2 The grids may be used alone at step five where they “completely and accurately represent
a claimant's limitations. . . . In other words, a claimant must be able to perform the full range of jobs
in a given category, i.e., sedentary work, light work, or medium work.” Tackett, 180 F.3d at 1101.
The Ninth Circuit has explained that significant non-exertional impairments, such as poor vision or
inability to tolerate dust or gases, may make reliance on the grids inappropriate. Id. at 1101-02.
Pain can be a non-exertional limitation. But mere allegation of a non-exertional limitation “does not
automatically preclude application of the grids. The ALJ should first determine if a claimant's
non-exertional limitations significantly limit the range of work permitted by his exertional
limitations.” Id. at 1102. Where the grids do not accurately reflect the claimant’s limitations, the
testimony of a vocational expert is necessary.
In order to be eligible for disability benefits, Claimant must demonstrate that he was
disabled prior to June 30, 2016, (Tr. 14), the date he was last insured for social security disability
purposes. Morgan v. Sullivan, 945 F.2d 1079, 1080 (9th Cir. 1991). Claimant’s eligibility for
supplemental security income benefits (SSI) is not dependent upon the date last insured. The
significant date for disability compensation is the date of onset of the disability, rather than the date
of diagnosis. Id. at 1081. Neither the ALJ nor the claimant is bound by the claimant’s alleged onset
date, the date of diagnosis, or the date a claimant loses her job. Rather, “the established onset date
must be fixed based on the facts and can never be inconsistent with the medical evidence or record.”
Goodson v. Bowen, 639 F. Supp 369, 373 (W.D.N.C., 1986) (citing SSR 83-20).

2

20 C.F.R. pt. 404, Subpt. P, App. 2, § 200.00.

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IV. DISCUSSION
A.

Issues on Appeal
The Court finds no error in the ALJ’s analysis and findings under the first four steps, and

Claimant does not contest the ALJ findings under these steps. Rather, Claimant complains of a
flawed RFC finding, and errors at Step 5. The issues before this Court are addressed in turn below.
1. Rejection of Treating Physician’s Opinion
Dr. James S. Cabeen, D.O., served as Claimant’s primary care physician from 2010 through
the date of the 2014 hearing. Dr. Cabeen filled out a Medical Source Statement on February 25,
2014, which suggested significant limitations associated with chronic pain, arthritis, fatigue, and
depression in addition to the medication side effect of sedation. Tr. 376. Dr. Cabeen indicated that
Claimant’s prognosis was “poor, ultimately crippling.” Id. Claimant complains that the ALJ failed
to adequately explain the rejection of Dr. Cabeen’s opinion, which established limitations far greater
than those set forth in the ALJ’s RFC finding. Docket 17 at 3-11.
With respect to Dr. Cabeen’s opinions, the ALJ found only that:
some weight is given to Dr. Cabeen’s opinions in Exhibit 5F in that Dr. Cabeen
found the claimant capable of performing less than full range of light work.
However, the severity of limitations is not accepted as it is internally inconsistent
with Dr. Cabeen’s own physical examinations where the claimant is reported to be
neurologically intact with minimal findings on imaging studies.
Tr. 21. The ALJ did not cite the record in support of these two sentences giving only “some weight”
to the only recent treating physician in the record. Rather, the ALJ, upon reviewing Dr. Cabeen’s
medical source opinion, found the Claimant’s statements concerning the intensity, persistence and
limiting effects of his symptoms were not entirely credible. Tr. 19. “But an ALJ does not provide
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clear and convincing reasons for rejecting an examining physician's opinion by questioning the
credibility of the patient's complaints where the doctor does not discredit those complaints and
supports his ultimate opinion with his own observations.” Ryan v. Comm'r of Soc. Sec., 528 F.3d
1194, 1199-200 (9th Cir. 2008) (citing Edlund v. Massanari, 253 F.3d 1152, 1159 (9th
Cir.2001))(emphasis added).3
The Commissioner cites to the medical record to show that despite Claimant’s complaints
of pain, Dr. Cabeen’s notes reflect that Claimant could move with a normal gait, and had normal
strength and range of motion despite the pain. Docket 19 at 7. These findings, the Commissioner
argues, support the ALJ’s conclusion that Dr. Cabeen’s opinions about the severity of Claimant’s
condition were not reliable.
Claimant complains that the ALJ did not acknowledge or discuss the length of Dr. Cabeen’s
treating relationship, or the significance of Dr. Cabeen’s familiarity with Claimant’s medical history.
See 20 C.F.R. § 404.1527(c)(2)(I) (requiring that treatment relationship and length of treatment
relationship be considered). Moreover, “to reject [the] uncontradicted opinion of a treating or
examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial
evidence.” Ryan, 528 F.3d at 1198 (citations omitted). Finally, the opinion of an examining
physician is entitled to greater weight than the opinion of a nonexamining physician. Id.
In this case, there were no other physicians, examining or non-examining, who offered any
opinions regarding Claimant’s condition. Furthermore, the Claimant argues, and the Court notes,

3

See section 2 below for a discussion of Claimant’s credibility.

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that Dr. Cabeen’s opinion contains specific diagnoses with identified signs and symptoms of the
conditions, all of which are documented in the treatment record. Docket 17 at 10.
The ALJ makes a negative inference from the lack of treatment sought by Claimant, despite
the fact that the record repeatedly references that Claimant had no insurance and could not pay for
needed treatment. Tr. 368, 340, 338, 336, and 349. Claimant relies upon SSR 96-7p which the
Court notes was Superseded by SSR 16-3p effective March 28, 2016.
[I]f the frequency or extent of the treatment sought by an individual is not
comparable with the degree of the individual's subjective complaints, or if the
individual fails to follow prescribed treatment that might improve symptoms, we may
find the alleged intensity and persistence of an individual's symptoms are inconsistent
with the overall evidence of record. We will not find an individual's symptoms
inconsistent with the evidence in the record on this basis without considering
possible reasons he or she may not comply with treatment or seek treatment
consistent with the degree of his or her complaints. We may need to contact the
individual regarding the lack of treatment or, at an administrative proceeding, ask
why he or she has not complied with or sought treatment in a manner consistent with
his or her complaints.
SSR 16-3p. When considering an individual's treatment history, SSR 16-3p says the ALJ may
consider that “An individual may not be able to afford treatment and may not have access to free or
low-cost medical services.” Id. Here, the ALJ commented only that “[w]hile financial constraints
may have affected his ability to obtain medical care, one would still expect to find a greater degree
of effort to alleviate symptoms if they were as limiting as alleged. The sporadic medical care casts
significant doubt on the extent to which the claimant has been limited by symptoms.” Tr. 20.
Nevertheless, the ALJ failed to question Claimant or request a medical evaluation prior to making
her decision. If there is insufficient evidence to determine whether a Claimant is disabled, the SSA
may recontact the treating physician, may request additional existing records (see § 404.1512), or
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may ask the Claimant to undergo a consultative examination at SSA expense (see §§ 404.1517
through 404.1519t).

20 C.F.R. § 404.1520b(c)(1).

The Court is not persuaded by the

Commissioner’s argument that the record was adequate for the ALJ to reach a conclusion that
Claimant is not disabled, while also being inadequate to justify Claimant’s complaints. Docket 19
at 9.
2. Claimant’s Credibility
On the issue of Claimant’s credibility, the Court notes that the ALJ improperly discredited
the Claimant on several points:
[O]ther evidence of subjective inconsistency is evidenced by his self-report, where
he indicated that he could walk 100 feet before needing to rest for a couple of
minutes (Ex. 11E/6) yet, in the Pain Questionnaire, he indicates that he can walk 50
yards. (Ex. 4E/3). The claimant testified that he has not hiked or hunted since 2007
yet, in his self-report, the only thing he reported was that he no longer hikes. (Ex.
11E/5). . . . He states in one report that he is able to shop in stores approximately
four times a week for 20 minutes each time. (Ex. 8E/4) Then in the subsequent report
a month later, he states he shops once or twice a week. (Ex. 11E/4) . . . This causes
the undersigned to question the reliability of the claimant’s complaints.
Tr. 20.4 The Court fails to see the “inconsistency” of Claimant estimating he could walk 100 feet
in October 2012 versus 150 feet (or, 50 yards) a year later in October 2013. Tr. 247, 313. Both of
these are very short distances, one estimated in feet and the other in yards. Similarly, Claimant stated
in 2012: “Like to hike and hunt and fish but can’t hike anymore cause of my hips,” (Tr. 312), and
later testified in 2014 that he hasn’t “hiked or hunted” since 2007. Tr. 45. The Court disagrees with
the ALJ that these two statements are inconsistent. The ALJ seems to think one can hunt without

4

The Court notes that the form filled out at Ex. 11E was a “Third Party Report,” not a selfreport, although it appears to have been filled out by the Claimant. Tr. 315.
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hiking. In any event, this could have been clarified at the hearing by simply asking Claimant when
he gave up hunting and fishing.5 Although the ALJ specifically mentioned Claimant’s attempt to
start his motorcycle in November 2012, the ALJ failed to acknowledge that Claimant’s November
2012 attempt to start his motorcycle resulted in a doctor visit due to low back pain. Tr. 393.
Neither is the Court persuaded that Claimant’s suggestion that he shops “once or twice a week” on
one form and as many as “four times a week for 20 minutes” on another form is evidence of
Claimant being disingenuous.6 Overall, the ALJ’s finding that Claimant lacked credibility is
unsupported by the ALJ’s own examples, let alone substantial evidence. “Where the ALJ improperly
rejects the claimant’s testimony regarding his limitations, and the claimant would be disabled if his
testimony were credited, ‘we will not remand solely to allow the ALJ to make specific findings
regarding that testimony.’ . . . Rather, that testimony is also credited as a matter of law.” Lester v.
Chater, 81 F.3d 821, 834 (9th Cir. 1996) (citing Varney v. Secretary of Health and Human Services,
859 F.2d 1396, 1401 (9th Cir. 1988)).
Here, Claimant testified that he has difficulty pulling clothes out of the washing machine,
because of arthritis in his knuckles and hands which “swell up so bad sometimes that I can’t even
hold onto a hammer. . . I’d be pounding nails and a hammer would fly out of my hand.” Tr. 47. The
swelling is worse in his dominant right hand. Id. Claimant’s arthritis is documented in the Medical

5

The ALJ was very concerned about Claimant’s August 2011 fishing successes, but the
Court notes that August 2011 was sixteen months prior to the alleged onset date of disability.
Neither of Claimant’s statements indicate he gave up fishing prior to 2012, if at all.
6

Despite the ALJ’s finding that these two estimates were made only one month apart, the
Court notes that the report filled out at Ex. 8E is undated. Tr. 279.
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Source Opinion, where Dr. Cabeen also opines that Claimant has limitations in doing repetitive
reaching, handling or fingering. Tr. 377. Claimant’s arthritis, as well as the limitations in his hands
to which Claimant testified, was not included in the hypotheticals presented to the vocational expert.
Accordingly, the Court finds that the ALJ’s conclusion that Claimant is not disabled because he
could perform work as a small parts assembly, ticket taker, or flagger (Tr. 22-23) is not supported
by substantial evidence.
3. The ALJ’s Failure to Consider Plaintiff’s “Borderline Age Situation”
Claimant notes that he was four months short of his 55th birthday on the day the ALJ issued
her decision. Docket 17 at 11. He argues that at age 55 he would have been considered a person of
“advanced age,” and that application of the vocational factors of age, education and prior work,
without any transferrable skills, and a maximum exertional capacity of light work results in a
presumptive finding of “disabled” pursuant to the grids. See 20 C.F.R. Part 404, Subpt. P, App. 2,
Rule 202.02. The C.F.R. provides that the Commissioner will not apply the age categories
mechanically in a “borderline situation,” which exists when there would be a shift in results caused
by the passage of a few days or months. See 20 C.F.R. § 404.1563(b). The Commissioner argues
that there is no fixed guideline for when to apply the older age category, and the ALJ committed no
error.
Claimant is correct that according to the ALJ’s findings, and pursuant to the grids, as of his
55th birthday he would have been presumptively disabled under Rule 202.02. “‘[W]here application
of the grids directs a finding of disability, that finding must be accepted by the Secretary . . .
whether the impairment is exertional or results from a combination of exertional and non-exertional
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limitations.’” Lounsburry v. Barnhart, 468 F.3d 1111, 1115–16 (9th Cir. 2006)(citing Cooper v.
Sullivan, 880 F.2d 1152, 1157 (9th Cir.1989)). “Because the grids are not designed to establish
automatically the existence of jobs for persons with both severe exertional and non-exertional
impairments, they may not be used to direct a conclusion of nondisability. See Tackett v. Apfel, 180
F.3d 1094, 1102 (9th Cir.1999).” Id. “In other words, where a person with exertional and
non-exertional limitations is ‘disabled’ under the grids, there is no need to examine the effect of the
non-exertional limitations. But if the same person is not disabled under the grids, the non-exertional
limitations must be examined separately.” Id. The ALJ hearing occurred prior to Claimant’s 55th
birthday, and although the ALJ and the vocational expert both noted Claimant’s age of 54, neither
addressed the significant impact that Claimant’s next birthday would have under the grids. The
Court concludes that Claimant should have been – at a minimum – awarded benefits as of his 55th
birthday, which occurred shortly after the ALJ hearing.
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.

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Upon remand, the ALJ shall:
1. Give adequate weight to Claimant’s sole treating physician, or provide specific and
legitimate reasons supported by substantial evidence for rejecting the treating physician’s opinions;
2. If the Claimant’s sole treating physician – the only medical opinion in the record – is not
given great weight, the ALJ shall contact the treating physician for clarification of Claimant’s
condition prior to his 55th birthday;
3. Regardless of the outcome of the ALJ’s analysis above, Claimant shall be awarded
benefits as of his 55th birthday.
VI. ORDER
Based on the foregoing, IT IS HEREBY ORDERED that the Claimant’s Motion for
Summary Judgment at Docket 17 is GRANTED and this matter is REMANDED for further
proceedings consistent with this opinion.
IT IS SO ORDERED this 14th day of October, 2016.
S/RALPH R. BEISTLINE
UNITED STATES DISTRICT JUDGE

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