Marshall v. Colvin

Filing 12

DECISION AND ORDER: granting in part Docket 1, the Commissioner's final decision is VACATED, and the case is REMANDED to the SSA for further proceedings (see order for full details). Signed by Judge Sharon L. Gleason on 03/31/2017. (AEM, CHAMBERS STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ROBERT O. MARSHALL,
Plaintiff,
v.

Case No. 4:16-cv-00012-SLG

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

DECISION AND ORDER
Robert Marshall filed an application for Disability Insurance Benefits (“disability
benefits”) under Title II of the Social Security Act (“the Act”), alleging disability beginning
November 26, 2009. 1 Mr. Marshall has exhausted his administrative remedies and seeks
relief from this Court. 2 He argues that the determination by the Commissioner of the
Social Security Administration (“Commissioner”) that he is not disabled, within the
meaning of the Act, is not supported by substantial evidence and that the Administrative
Law Judge (“ALJ”) committed legal errors. 3 Mr. Marshall asks for a reversal of the
Commissioner=s decision and a remand for calculation of benefits. 4

1

Administrative Record (“A.R.”) 11, 222; see also Docket No. 10 at 2.

2

Docket Nos. 10 at 1; 11 at 3; A.R. 1.

3

Docket No. 1.

4

Docket Nos. 1 at 2; 10 at 23. Alternatively, Mr. Marshall requests a remand for further
proceedings with instructions. Id.

The Commissioner filed an answer to the complaint and an answering brief in
opposition. 5 Oral argument was not requested and was not necessary to the Court’s
decision. For the reasons set forth below, Mr. Marshall=s Motion for Remand at Docket 1
is GRANTED IN PART, the Commissioner’s final decision is VACATED, and the case is
REMANDED to the Commissioner for further proceedings consistent with this decision.
I.

STANDARD OF REVIEW

A decision by the Commissioner to deny disability benefits will not be overturned
unless it is either not supported by substantial evidence or is based upon legal error. 6
“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.” 7 Such evidence must be “more than a mere scintilla,” but may be “less than
a preponderance.” 8 In making its determination, the Court considers the evidence in its
entirety, weighing both the evidence that supports and that which detracts from the ALJ’s
conclusion. 9 If the evidence is susceptible to more than one rational interpretation, the
ALJ=s conclusion must be upheld. 10

5

Docket Nos. 18; 11 respectively.

6

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)).
7

Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)).

8

Perales, 402 U.S. at 401; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)
(per curiam).

9

Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

10

Gallant v. Heckler, 753 F.2d 1450, 1452–53 (9th Cir. 1984).

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II.

DETERMINING DISABILITY

The Act provides for the payment of disability insurance to individuals who have
contributed to the Social Security program and who suffer from a physical or mental
disability. 11 Disability is defined in the 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. 12
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), Awork
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. 13
The Commissioner has established a five-step process for determining disability
within the meaning of the Act. 14 A claimant bears the burden of proof at steps one through
four in order to make a prima facie showing of disability 15 If a claimant establishes a
prima facie case, the burden of proof then shifts to the agency at step five. 16 The

11

42 U.S.C. ' 423(a) (2012).

12

42 U.S.C. § 423(d)(1)(A).

13

42 U.S.C. ' 423(d)(2)(A).

14

20 C.F.R. § 404.1520(a)(4) (2014).

15

Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting
Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d
1094, 1098 (9th Cir. 1999).
16

Treichler, 775 F.3d at 1096 n.1.

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Commissioner can meet this burden in two ways: “(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.” 17 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 concluded that Mr. Marshall had not engaged in substantial gainful activity since
November 26, 2009. 18
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 Mr. Marshall has the

following severe impairments: osteoarthritis of the right knee (status-post total knee
replacement), lumbar spondylosis, and obesity. 19 The ALJ found that the following
impairments were not severe: right wrist, elbow, and ankle impairments, left knee
impairment, and depression. 20 The ALJ also specifically found that the follow alleged
impairments were not medically determinable: left shoulder/clavicle, bilateral wrist, and
bilateral elbow, cervical spine, and prostatitis. 21

17

Id. at 1099.

18

A.R. 13.

19

A.R. 13.

20

A.R. 13–15.

21

A.R. 15.

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Step 3. Determine whether the impairment is the equivalent of any of the listed
impairments found 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 any 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. The ALJ determined that
Mr. Marshall does not have an impairment or combination of impairments that meets or
medically equals the severity of a listed impairment. 22
Before proceeding to step four, a claimant=s residual functional capacity (“RFC”)
is assessed. 23 Once determined, the RFC is used at both step four and step five. 24 An
RFC assessment is a determination of what a claimant is able to do despite his or her
physical, mental, or other limitations. 25 The ALJ concluded that Mr. Marshall has the RFC
to perform light work as defined in 20 CFR § 404.1567(b) except he is limited to frequent,
not constant, operation of foot controls with the right lower extremity, occasional climbing
of ramps and stairs as well as stopping, kneeling, crouching, and crawling; he must avoid
concentrated exposure to non-weather related extreme cold and excessive vibration; and
requires work that allows him to alternate sitting and standing positions at one hour
intervals throughout the day for up to five minutes to relieve pain or discomfort. 26

22

A.R. 15.

23

20 C.F.R. ' 404.1520(a)(4) (2014).

24

Id.

25

20 C.F.R. § 404.1545(a).

26

A.R. 16–17.

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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 RFC 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 Mr. Marshall is unable to perform any of his past relevant
work. 27
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 RFC. If so, the claimant is not disabled. If not, the claimant is considered disabled.
Based on the testimony of a vocational expert (“VE”), the ALJ determined that there are
jobs that exist in significant numbers in the national economy that Mr. Marshall can
perform, including: assembler, DOT No. 706.684-022, and parking lot attendant,
DOT No. 915.473-010. 28
III.

PROCEDURAL AND FACTUAL BACKGROUND

Mr. Marshall is fifty-four years old. He worked as a pipe fitter and pipe welder for
his adult life. 29 In 2007, he slipped off an iron beam and fell against a scaffold injuring his
right knee. 30 On December 19, 2010, Mr. Marshall underwent a total knee replacement
on his right knee after less severe treatment options—including three surgeries—were

27

A.R. 22.

28

A.R. 23–24. Both jobs are categorized as light, unskilled (SVP 2).

29

A.R. 247, 674, 394, 267.

30

A.R. 394.

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unsuccessful at alleviating his pain. 31 Mr. Marshall was found to have reached “maximum
medical improvement” post-surgery on September 7, 2011. 32

He was assessed at

twenty-five percent whole body impairment related to his worker’s compensation claim. 33
In late 2013, Mr. Marshall was referred to a pain management specialist by his
knee replacement surgeon. 34

Through pain management, Mr. Marshall underwent

multiple steroid injections in his lower back to relieve pain on his lumbar spine and was
referred to both physical and psychological therapy. 35

Mr. Marshall is prescribed

diclofenac 36 and Wellbutrin, 37 and takes aspirin. 38 He alleges the following combination
of impairments: bilateral knees, bilateral wrists and elbows, depression, cervical and
lumbar spine, left knee, right ankle, left shoulder/clavicle, and prostetis. 39

31

A.R. 323, 326.

32

A.R. 334 (determination made by Doug Vermillion, M.D.).

33

See A.R. 394 (Richard Cobden, M.D.).

34

A.R. 572 (Oct. 21, 2013).

35

AR. 752 (injection, July 23, 2014), 738 (injection, May 21, 2014), 698, 684 (initial physical
therapy evaluations, Aug. 25 and 27, 2014 respectively), 680 (psychological pain management
treatment summary letter, Oct. 24, 2014).

36

Diclofenac is a nonsteroidal anti-inflammatory drug (“NSAID”) and it works by stopping the
body's production of a substance that causes pain, fever, and inflammation;
https://medlineplus.gov/druginfo/meds/a689002.html (last visited Jan. 2, 2016).

37

Wellbutrin (bupropion) is an antidepressant used to treat depression, seasonal affective
disorder, and nicotine dependence; https://medlineplus.gov/druginfo/meds/a695033.html (last
visited Jan. 2, 2016).

38

A.R. 717.

39

A.R. 72, 226, 36, 268.

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The ALJ hearing was held on July 9, 2014; Mr. Marshall was represented by
counsel at that hearing. 40 The ALJ’s decision was issued on September 4, 2014, and
held that Mr. Marshall was not disabled from November 26, 2009 through the date of the
decision. 41 The Appeals Council declined to review the ALJ’s disability determination on
February 17, 2016. As such, the ALJ’s decision is the final decision of the Social Security
Administration (“SSA”). 42 Mr. Marshall filed his complaint seeking judicial review with this
Court on March 25, 2016; 43 he is represented by counsel in this appeal. 44

IV.

DISCUSSION

Mr. Marshall argues that the ALJ erred in: (1) rejecting the opinions of two of
Mr. Marshall’s treating sources as well as an examining source utilized by one of the
treating sources; (2) finding Mr. Marshall’s subjective complaints about the intensity,
persistence, and limiting effects of his impairments to be not entirely credible; (3) rejecting
the opinion of Mr. Marshall’s wife; and (4) relying on the VE’s testimony because it was
based on a faulty hypothetical that did not include all of Mr. Marshall’s restrictions. 45 The
Commissioner asserts that the ALJ did not err in any of these respects.

40

A.R. 32. There was also a brief hearing in April 2014, but that was continued by the ALJ
because approximately 150 pages of additional evidence was filed right before the first hearing
was scheduled to begin. A.R. 68.

41

A.R. 11.

42

Brewes v. Comm’r Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012).

43

Docket No. 1.

44

A.R. 33; Docket No. 10.

45

Docket No. 10 at 11.

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1. Weight of Medical Opinions
“Regardless of its source, [the SSA] will evaluate every medical opinion [it]
receive[s].” 46 Medical opinions come from three types of sources: those who treat the
claimant; those who examine but do not treat the claimant; and those who neither
examine nor treat the claimant. “As a general rule, more weight should be given to the
opinion of a treating source than to the opinion of doctors who do not treat the claimant.”47
Indeed, if the treating source’s opinion is “well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with other substantial
evidence” in the record, that opinion will be given controlling weight. 48 “If a treating
physician's opinion is not given ‘controlling weight’ because it is not ‘well-supported’ or
because it is inconsistent with other substantial evidence in the record, the [SSA]
considers specified factors in determining the weight it will be given.” 49 These factors
include the length of the treatment relationship and frequency of examination as well as
the nature and extent of the relationship. 50
When weighing a medical opinion, including that of a treating source that is not
controlling, the ALJ must consider the extent to which the opinion is supported by relevant
evidence, such as medical signs and laboratory results; the extent to which an opinion is

46

20 C.F.R. §§ 404.1527(c), 416.927(c) (2014).

47

Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995)).

48

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

49

Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).

50

20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).

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consistent with other opinions and evidence in the record; whether the opinion is within
the source’s area of specialization; and other factors such as the medical source’s degree
of familiarity with the SSA’s disability progress and with other information in the claimant’s
record. 51
Applying these factors means that “[i]n many cases, a treating source's medical
opinion will be entitled to the greatest weight and should be adopted, even if it does not
meet the test for controlling weight.” 52 However, in some cases, the treating source’s
opinion may not be entitled to the greatest weight. But “an ALJ may reject a treating
doctor’s medical opinion,” if no other doctor has contradicted it, “only for ‘clear and
convincing’ reasons supported by substantial evidence.” 53 In addition, the opinion of an
examining, but non-treating source, should generally be given more weight than that of a
non-examining source. 54
Doctors do not always agree on all matters, and the ALJ is responsible for
determining credibility and resolving conflicts and ambiguities in medical testimony. 55 But
even when a treating source's opinion is contradicted by the opinion of an examining
physician, a treating source’s opinion is generally “still entitled to deference.”56 If a

51

See Orn, 495 F.3d at 631 (citing 20 C.F.R. § 404.1527).

52

Id. at 632 (9th Cir. 2007) (citing “Giving Controlling Weight to Treating Source Med. Opinions,”
Social Security Ruling (“SSR”) 96-2p, 1996 S.S.R. LEXIS 9, 1996 WL 374188 (July 2, 1996)).

53

Lewis v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (citing Reddick v. Chater, 157 F.3d 715, 725
(9th Cir.1998)).

54

Garrison, 759 F.3d at 1012 (citing Ryan v. Comm’r Soc. Sec. Admin., 528 F.3d 1194, 1198
(9th Cir. 2008)).

55

Lewis, 236 F.3d at 509 (citing Reddick, 157 F.3d at 722).

56

Orn, 495 F.3d at 633 (citing SSR 96-2p).

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treating source’s opinion is contradicted by another source, an ALJ may not reject that
treating source’s opinion without providing “specific and legitimate reasons supported by
substantial evidence in the record.”57 This can be done by “setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating his interpretation
thereof, and making findings.” 58
When an examining source relies on the same clinical findings as a treating
source, but differs only in his or her conclusions, the conclusions of the examining source
are not considered “substantial evidence” sufficient to support rejecting the treating
source’s opinion. 59 And when rejecting a treating source’s opinions, the ALJ must do
more than just offer his own conclusions; instead, “he must set forth his own
interpretations and explain why they, rather than the doctors’, are correct.” 60 But an ALJ
may discredit a treating source’s opinions that are “conclusory, brief, and unsupported by
the record as a whole or by objective medical findings.” 61 The SSA also permits a
claimant to provide evidence from non-physician sources to show the severity of an
impairment and how it affects a claimant’s ability to work, including evidence from a nurse
practitioner, physicians’ assistant, chiropractor, or therapist, including a physical
therapist. 62

57

Id. (quoting Reddick, 157 F.3d at 725) (internal quotation marks omitted).

58

Reddick, 157 F.3d at 725 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

59

Orn, 495 F.3d at 632.

60

Reddick, 157 F.3d at 725 (citing Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 1988)).

61

Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (quoting Batson v. Comm’r of Soc. Sec.
Admin., 359 F.3d 1190, 1195 (9th Cir. 2004)) (emphasis omitted).
62

20 C.F.R. §§ 404.1513(d), 416.913(d) (2014).

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Here, four medical sources’ opinions were discounted or rejected by the ALJ: (1)
Doug Vermillion, M.D., an orthopedic surgeon; (2) Richard Cobden, M.D., an orthopedic
doctor; (3) Jennifer Carlson, M.S.P.T. (“MSPT Carlson”), a physical therapist; and (4)
Richard Elson, D.C., a chiropractor. 63 Mr. Marshall’s appeal to this Court focuses on the
ALJ’s determinations with respect to the first three of these medical sources.
There are also four other treating sources whose medical opinions the ALJ did not
expressly address: Duane Frampton, a physician’s assistant at an orthopedic office;
Nancy Cross, M.D., a pain specialist; Randy Lewis, a licensed clinical social worker
(LCSW Lewis); and Patrick Morgan, a physical therapist (“PT Morgan”). The medical
records from Dr. Cross, LCSW Lewis, and PT Morgan were not a part of the
administrative record that was before the ALJ. 64 But the ALJ did know that Mr. Marshall
had been seen by a pain management specialist—the ALJ refers to Dr. Cross’ treatment
notes from May 2014 discussing an April 2014 MRI in his written decision. 65 Moreover,
the medical records from Dr. Vermillion that were in the record before the ALJ indicate
that the doctor referred Mr. Marshall to Dr. Cross in October 2013 due to recurrent pain. 66
The Appeals Council had the records of these additional health care providers before it

63

A.R. 20–21.

64

See A.R. 69 (Exs. 1A–22F admitted into evidence at first ALJ hearing, April 2014); A.R. 33
(Exs.1A–25F admitted into evidence at the second ALJ hearing, July 9, 2014). But see A.R.
13 (“The claimant’s file includes medical exhibits 1F through 26F”). The A.R. before this
Court includes all of those exhibits, plus Exs. 27F–32F, which contain nearly all of Dr. Cross’s
and PT Morgan’s treatment notes as well as LCSW Lewis’s treatment summary and opinion
letter.
65

A.R. 19.

66

A.R. 570 (Ex. 17F).

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when it made its decision to decline Mr. Marshall’s request for review. 67 Since these
medical records were properly before the Appeals Council for its consideration, and came
to the Court as part of the certified transcript encompassing the administrative record, the
Court may consider them on appeal. 68
Dr. Vermillion, orthopedic surgeon
Dr. Vermillion began treating Mr. Marshall on June 30, 2010, after he was referred
by Dr. Keller for an opinion about Mr. Marshall’s right knee. 69 Dr. Vermillion promptly
ordered x-rays and an MRI. He diagnosed osteoarthritis and mild medial chondromalacia
patella. 70 He observed that the “MRI did show a 1-cm area of damage to the cartilage in
the center of the patella and on the trochlea,” which “appears to be the main source of his
pain.”71 On September 9, 2010, Dr. Vermillion performed a diagnostic arthroscopy and
debridement of cartilage defects to Mr. Marshall’s right knee. 72 On October 18, 2010, in
a preoperative discussion, Dr. Vermillion noted that Mr. Marshall’s gait was antalgic and

67

A.R. 4.

68

Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (quoting Brewes v. Comm'r of Soc. Sec.
Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) (holding that the administrative record includes
evidence submitted to and considered by the Appeals Council)).
69

A.R. 319. Cary Keller, M.D., is an orthopedic surgeon who treated Mr. Marshall from at least
Feb. 22, 2008, when the doctor performed surgery on Mr. Marshall’s right knee. A.R. 487.
Dr. Keller performed an additional surgery on Mr. Marshall’s right knee on April 5, 2010. A.R.
484.

70

Chondromalacia patella is an abnormal softening of the cartilage of the underside of the knee
cap, and is one of the most common causes of chronic knee pain.
71

A.R. 318.

72

A.R. 326.

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that he had a large tear and cartilage defects in the medial portion of his knee.73
Accordingly, the following day, October 19, 2010, Dr. Vermillion performed a total knee
replacement on Mr. Marshall’s right knee. 74 After a three-day hospital stay, Mr. Marshall
was discharged on October 22, 2010. 75 Mr. Marshall then had regular follow up visits
with Dr. Vermillion. 76 In June 2011, Dr. Vermillion requested and received a physical
capacity evaluation of Mr. Marshall from MSPT Carlson. 77 He also obtained x-rays of Mr.
Marshall’s knee on June 29, 2011. 78

73

A.R. 316.

74

A.R. 323, 372.

75

A.R. 322.

76

A.R. 314 (November 29, 2010; notation: “doing well” but unable to return to work);

A.R. 313 (December 29, 2010; notation: “improving after [physical] therapy”);
A.R. 312, 368 (January 26, 2011; notation: “doing well status post total knee, with residual
strength loss,” “minimal pain,” “able to walk” but “gait still antalgic,” has “some swelling, and he is
not able to kneel yet,” work status noted as unable to return to work for six more weeks, but
“improving gradually”);
A.R. 311 (March 9, 2011 notation “still having pain in his right knee,” with “residual stiffness” and
gait “minimally antalgic”);
A.R. 310 (April 20, 2011; notation: “pain is decreasing a lot,” “able to try to get moving around his
yard and using the chainsaw to cut wood,” “minimal amount of swelling,” and “the patient desires
to go back to work,” work status: unable to return to work for six more weeks);
A.R. 309 (June 1, 2011; notation: decreased range of motion; orders functional capacity
assessment by physical therapist);
A.R. 308, 328 (June 29, 2011 notation: still having knee pain on the right knee, obtains and
reviews x-rays);
A.R. 307 (July 27, 2011; notation: mild swelling with decreased range of motion, mild warmth,
work status: unable to work for six more weeks).
77

A.R. 287–289.

78

A.R. 328.

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On July 27, 2011, Mr. Marshall had an appointment with Dr. Vermillion, who
observed mild swelling, limited range of motion, mild warmth, and tenderness of the right
knee on that date. 79 Dr. Vermillion issued his first of two opinions regarding Mr. Marshall’s
work-related disabilities. 80 That opinion mirrored the opinions of MSPT Carlson, which
are discussed below. 81 Dr. Vermillion released Mr. Marshall to work at that time with
restrictions that included no more than two hours of sitting and no more than two hours
of standing during an eight hour period, up to 30 minutes walking, and lifting 50 pounds
as tolerated. The ALJ did not discuss this opinion in his decision.
On September 7, 2011, Dr. Vermillion again examined Mr. Marshall’s knee and
determined he had “right knee osteoarthritis, stable after a total joint” replacement. The
doctor also found that Mr. Marshall had “reached maximum medical improvement.”82
That same day, Dr. Vermillion opined as to Mr. Marshall’s work capabilities, and
concluded that he could sit “as tolerated 20-40 minutes with short breaks,” stand “as
tolerated 20-40 minutes with breaks,” walk as tolerated on level surfaces, climb stairs as
tolerated, carry 50 pounds intermittently, do minimal kneeling as tolerated, and climb short
ladders as tolerated. 83

79

A.R. 307.

80

A.R. 337.

81

A.R. 286–290.

82

83

A.R. 334.
A.R. 334.

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Mr. Marshall had additional follow up visits with Dr. Vermillion in February 2012
and October 2013. 84 At the October 2013 visit, Dr. Vermillion referred Mr. Marshall to
Nancy Cross, a pain specialist, to address Mr. Marshall’s continuing right knee pain. 85
The doctor noted that “radiographs look good and motion is okay,” but that Mr. Marshall
was experiencing “dull pain most of the time,” two to three out of ten on a pain scale, and
wanted relief. 86
The ALJ’s RFC concludes that Mr. Marshall is able to perform light work so long
as he is able to alternate sitting and standing positions at one hour intervals throughout
the day for up to five minutes at a time—a finding that is substantially less restrictive than
Dr. Vermillion had opined in September 2011. The ALJ indicated that he had given only
“partial weight” to Dr. Vermillion’s September 2011 opinions about Mr. Marshall’s work
related restrictions for three reasons. The ALJ found that (1) the doctor “gave no rationale
with his opinion,” (2) post-surgical x-rays “reveal no abnormalities other than the presence
of hardware at the right knee,” and (3) the limitations were out of proportion to the doctor’s
post-surgery examination findings.
Mr. Marshall asserts that Dr. Vermillion’s extensive treatment notes in the months
following the knee replacement surgery that he performed, along with MSPT Carlson’s
physical capacities evaluation, provided ample context and rationale to support the
doctor’s September 2011 opinion. Mr. Marshall pointed out that the doctor remarked
about mild swelling, warmth, and tenderness in Mr. Marshall’s right knee in July 2011 and

84

A.R. 305, 570.

85

A.R. 570–72 (referral to pain doctor, Oct. 21, 2013).

86

A.R. 570–73.

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that his right quad muscle tone was still lacking compared to his left leg, although it had
improved in September 2011. 87 The Commissioner responds that the ALJ provided
legally sufficient reasons that were supported by substantial evidence as required to
discount this treating source’s opinion. 88
The Court agrees with Mr. Marshall. Dr. Vermillion is a surgeon specializing in
orthopedics who performed a total knee replacement on Mr. Marshall’s right knee. As of
September 2011, he had regularly treated Mr. Marshall for well over one year. Moreover,
the Court does not find another medical opinion in the administrative record that
contradicts Dr. Vermillion’s opinions. Indeed, the ALJ noted that other treating sources’
examination records “reveal nothing significantly different than findings noted by
Dr. Vermillion.”89 As such, the ALJ was required to provide clear and convincing reasons
for rejecting Dr. Vermillion’s opinions. He did not.
The ALJ’s first rationale to accord less than full weight to Dr. Vermillion’s
opinions—because Dr. Vermillion “gave no rationale with his opinion”—is without merit.
Dr. Vermillion had a multi-year treating relationship with Mr. Marshall documented in the
record that includes extensive treatment notes, x-ray results, physical therapy
prescriptions, drug prescriptions, functional capacity evaluations, and other records.
Together, these provide a rationale and a context for Dr. Vermillion’s opinions.
The ALJ’s second rationale for according only partial weight to Dr. Vermillion’s
opinions—because post-surgical x-rays did not “reveal abnormalities other than the

87

Docket No. 10 at 12–13.

88

Docket No. 11 at 9.

89

A.R. 19; Docket No. 11 at 6.

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presence of hardware at the right knee”—is not supported by the objective medical
evidence. Setting aside the fact that a total knee replacement is by no means a small
medical procedure, the record contains numerous reports of swelling, reduced range of
motion, and an antalgic gait. In addition, an April 1, 2013 three-phase bone scan report
of Mr. Marshall’s right knee revealed “accentuated activity particularly on the blood pool”
which “may reflect either a severe stress reaction [or] loosening of the patellar
component.”90 Accordingly, the Court finds that the ALJ’s assertion that post-surgical
examinations did not “reveal abnormalities other than the presence of hardware at the
right knee” is unsupported by the record and not a legitimate reason for rejecting
Dr. Vermillion’s opinion.
Lastly, the ALJ’s assertion that Dr. Vermillion’s opinion on Mr. Marshall’s
limitations were out of proportion to the doctor’s post-surgery examination findings is
unpersuasive. Dr. Vermillion’s September 2011 work release restrictions were made
when the doctor opined that Mr. Marshall had reached maximum medical improvement.
At that time, the doctor noted a limited range of motion (i.e., 0 degrees to 110 degrees),
tenderness on flexion, and improved quad tone that was still “lacking” compared to the
left leg. In February 2012, Dr. Vermillion noted Mr. Marshall’s right knee was still stiff,
that he had full extension was possible with trouble past 95 degrees, and mild swelling.
His assessment then was right knee osteoarthritis with some residual pain. And in
April 2013, the bones scans discussed above were obtained. Again, these medical
records contradict the ALJ’s assertion that Dr. Vermillion’s opinions were out of proportion
to the doctor’s findings. The Court also notes that if the ALJ found Dr. Vermillion’s

90

A.R. 550.

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opinions to be dated, then the ALJ should have requested further evaluation and a new
opinion from Dr. Vermillion regarding Mr. Marshall’s work-related abilities.
In sum, the Court finds that the ALJ did not articulate the requisite clear and
convincing reasons, supported by substantial evidence, when he developed an RFC
substantially less restrictive than Dr. Vermillion’s opinions. And even if the ALJ found that
the doctor’s opinions were contradicted by the x-ray results, the Court finds that the
reasons given by the ALJ for rejecting the doctor’s opinions were not legitimate for the
reasons discussed above.
Jennifer Carlson, MSPT
The administrative record shows that on referral from Dr. Vermillion,
MSPT Carlson provided physical therapy to Mr. Marshall from October 10, 2010 to
June 22, 2011. 91

In June 2011, MSPT Carlson conducted a physical capacities

evaluation, also at Dr. Vermillion’s request. 92 MSPT Carlson provided both the results of
the evaluation and an opinion of the results to Dr. Vermillion. 93

She opined that

Mr. Marshall was limited to: frequently carrying 10 to 35 pounds as well as twisting and
reaching above the shoulder level; occasionally lifting 45 to 65 pounds as well as bending,
squatting, and climbing; and that he was not able to lift over 75 pounds at all. 94 Initially,

91

A.R. 297, 286.

92

A.R. 315, 348, 308–309, 297.

93

A.R. 290. MSPT Carlson indicates in her supplemental opinion that she conducted the
sit/stand tolerance test after Marshall reported to her that he did not think he could sit or stand
for eight hours.

94

A.R. 290.

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she opined that Mr. Marshall could sit and stand without limitation, and walk for no more
than thirty minutes at a time. 95 However, on June 22, 2011, after Mr. Marshall performed
a sitting and standing tolerance test, MSPT Carlson issued an addendum that found that
Mr. Marshall could tolerate no more than two hours of standing and two hours of sitting
during an eight-hour period. 96
The ALJ gave MSPT Carlson’s opinion no weight because he did not find her an
acceptable medical source to render opinions on the claimant’s limitations, that her
opinions were based on the subjective effort and reports by Mr. Marshall, and that she
did not indicate what objective evidence she had relied on to form her opinions. 97
Mr. Marshall asserts that the ALJ failed to consider MSPT Carlson’s opinions in
conjunction with Dr. Vermillion’s September 7, 2011 opinion—as the context of referral
and treating relationship requires; that the ALJ committed legal error in finding that MSPT
Carlson was not able to provide an opinion about Mr. Marshall’s limitations; and that the
opinion was based solely on Mr. Marshall’s own efforts and self-reporting. 98

The

Commissioner responds that the ALJ provided a germane reason for assigning no weight
to MSPT Carlson’s opinions, i.e., she relied on the subjective complaints of
Mr. Marshall—which the ALJ found to be not entirely credible—and cited no objective
evidence on which she relied. 99

95

A.R. 290.

96

A.R. 286.

97

A.R. 21.

98

Docket No. 10 at 14–15.

99

Docket No. 11 at 11–12.

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The Court notes that although SSA regulations explicitly address only how ALJs
are meant to evaluate medical opinions (i.e., opinions from “acceptable medical sources,”
as defined in 20 C.F.R. § 404.1527), the SSA has acknowledged since 2006 that modern
healthcare incorporates heavy reliance on healthcare professionals who do not
necessarily meet the definition of an acceptable medical source under SSA
regulations. 100

Indeed, the SSA has instructed ALJs that when considering such

evidence (including opinions), the same factors used for acceptable medical sources
apply to the consideration of all opinions made by medical professionals, even if they are
not “acceptable medical sources,” because the factors “represent basic principles.”101
The SSA illustrates a situation in which an acceptable medical source and medical source
who is not deemed acceptable each provide opinions; in such a scenario the fact that one
opinion is from an acceptable source is highly relevant and “may justify giving that opinion
greater weight” because the SSA finds acceptable medical sources to be “the most
qualified health care professionals.” 102 With this in mind, the Court finds that the ALJ
erred in dismissing MSPT Carlson’s opinions because she is not an acceptable medical
source as defined by SSA regulations.
The ALJ also offered two additional reasons to disregard MSPT Carlson’s
opinions: (1) her reliance on Mr. Marshall’s effort and subjective reports of pain; and (2)

100

“Considering Opinions and Other Evidence from Sources Who Are Not “Acceptable Medical
Sources,” Social Security Ruling (“SSR”) 06-03p, 2006 WL 2329939, 2006 SSR LEXIS 5,
(Aug. 9, 2006). SSR 06-03p does not have the force of law, but it is binding on ALJs and courts
defer to the Commissioner’s rulings so long as their application does not produce a result that is
inconsistent with the statute and regulations. 20 C.F.R. § 402.35 Publication.

101

SSR 06-03p.

102

Id.

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her failure to “provide a rationale as to what objective evidence she relied upon in
rendering her opinions.” 103 The Court does not find either reason persuasive. First, a
patient’s effort and subjective reports are necessarily a part of any physical capacity
evaluation. And MSPT Carlson specifically noted that she found Mr. Marshall “gave
excellent effort” during his physical capacities evaluation. 104 Second, as Mr. Marshall
pointed out, the physical capacitates evaluation itself contains the objective medical
findings upon which MSPT Carlson relied. 105 MSPT Carlson provided a detailed report
of her evaluation that included the identification of the weight and repetitions performed
for each task. 106 And MSPT Carlson had treated Mr. Marshall on three prior occasions
outside of the physical capacities evaluation and subsequent sit/stand test. 107
Consequently, the ALJ erred in the wholesale rejection of MSPT Carlson’s opinions.
Dr. Cobden, orthopedic doctor
On six occasions between October 2011 and July 2014, orthopedic doctor Dr.
Cobden also examined Mr. Marshall. 108 On October 6, 2011, Dr. Cobden completed a
chart review, met with Mr. Marshall, and opined in a permanent partial impairment (“PPI”)

103

A.R. 21.

104

A.R. 289.

105

A.R. 287–289.

106

A.R. 287-289.

107

A.R. 297–298, 295–296, 291–292.

108

A.R. 394 (Oct. 6, 2011), 395 (April 24, 2012), 396 (April 27, 2012), 397 (June 11, 2012), 552
(Sept. 9, 2013), and 761 (July 14, 2014). See also A.R. 524 (Dec. 21, 1998).

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rating that Mr. Marshall had a 25% whole person impairment. 109

Dr. Cobden also

completed “a total and Permanent Disability Pension Questionnaire” on July 14, 2014.
There, he concluded that based on Mr. Marshall’s spinal stenosis and chronic wrist pain,
he was totally and permanently disabled. 110
The ALJ did not reference Dr. Cobden’s 2011 report. As to the 2014 questionnaire,
the ALJ gave “no weight” to Dr. Cobden’s opinions on Mr. Marshall’s ability to work
because the ALJ found the doctor’s opinions to be conclusory and unsupported. The ALJ
reasoned that Dr. Cobden had not begun treating Mr. Marshall until approximately two
years after the alleged disability onset date of November 2009 and had only seen
Mr. Marshall annually. The ALJ added that in the 2014 questionnaire, Dr. Cobden gave
“no indication as to what evidence he relied upon” in reaching his opinions. 111
Mr. Marshall asserts that the ALJ erred in rejecting Dr. Cobden’s opinions. 112 He
maintains that Dr. Cobden’s treatment notes reveal the evidence on which the doctor
relied to formulate his opinion. 113

He also argues that Dr. Cobden’s opinions are

consistent with those of both Dr. Vermillion and MSPT Carlson. 114 The Commissioner

109

A.R. 394, 332, 334 (maximum medical improvement declared by Dr. Vermillion, Sept. 7, 2011).

110

A.R. 675 (Total and Permanent Disability Pension Questionnaire, July 14, 2014).

111

A.R. 21.

112

Docket No. 10 at 15.

113

Docket No. 10 at 15. See, e.g., A.R. 394 (“complete chart review was on done on him”).

114

Docket No. 10 at 16.

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responds that the ALJ properly rejected Dr. Cobden’s opinions because they were
conclusory and unsupported. 115
The Court finds that although Dr. Cobden was not Mr. Marshall’s primary treating
source for his chronic right knee or back pain, he had seen him several times from 2011
to 2014 and as such had a treating relationship with Mr. Marshall. The Court notes,
however, that some of his visits pertain at least in part to “paperwork,” which is indicated
as being about Mr. Marshall’s worker’s compensation benefits and/or disability benefits
application. 116 Nonetheless, that merely means that Dr. Cobden could be deemed a
“nontreating source”—like a consultative examiner used by the SSA. It does not provide
a basis for the wholesale rejection of Dr. Cobden’s opinions. 117
On September 19, 2013, Dr. Cobden met with Mr. Marshall. On that day, Mr.
Marshall had decreased range of motion, slight effusion, some medial tenderness and an
antalgic gait. 118 Dr. Cobden also reviewed multiple x-rays of Mr. Marshall’s knees, right
ankle, and spine. At that visit, Dr. Cobden opined that Mr. Marshall was ready to apply
for disability benefits since “he no longer can work and can barely move without pain.”119
Dr. Cobden also noted that he was referring Mr. Marshall to a pain clinic for pain
management. Dr. Cobden found early degenerative arthritis in Mr. Marshall’s right ankle
and chronic degenerative changes in the lower back and noted that a total knee

115

Docket No. 11 at 10.

116

See A.R. 397, 552.

117

20 C.F.R. §404.1502 (2014). See supra at 10.

118

A.R. 552.

119

A.R. 553.

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replacement in Mr. Marshall’s right knee was “in good position and alignment and shows
no signs of loosening”—which he also found after reviewing an x-ray from
October 2011. 120

Consequently, Dr. Cobden did not provide his opinions without

considering the objective medical evidence.
included in his treatment notes. 121

Additional objective observations are

Moreover, Dr. Cobden conducted the PPI of

Mr. Marshall in October 2011, which necessarily provided him with an extensive
understanding of Mr. Marshall’s body mechanics, including his abilities and limitations at
that time.
The Court also finds the fact that Dr. Cobden did not provide treatment to
Mr. Marshall until 2011 to be an insufficient basis to reject his opinions. Dr. Cobden
became involved at the time of the PPI according to record before the Court. While
Dr. Vermillion performed the total knee replacement, that does not preclude Mr. Marshall
from obtaining treatment from another medical source. And importantly, no other medical
records in the administrative record contradicted Dr. Cobden—and he did not contradict
any other doctor. The ALJ was required to provide clear and convincing reasons to reject
Dr. Cobden’s opinions. 122 The Court’s review of the record demonstrates that he did not.
The Court finds that the ALJ erred in rejecting Dr. Cobden’s opinions. The pro
forma use of “conclusory and unsupported” and “no indication of what evidence was relied

120

A.R. 554, 398.

121

See, e.g., A.R. 552.

122

Lester, 81 F.3d at 830–31, (citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990);
Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1990)), as amended.

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upon” to reject opinions of acceptable medical sources runs afoul of SSA regulations and
policy as well as the applicable case law.
2.

Appropriate Remand

A court may remand a disability benefits case to the ALJ for further administrative
proceedings or for an immediate calculation of benefits. A reviewing court “retains
‘flexibility’ in determining the appropriate remedy.” 123 A remand for further proceedings
is proper when, despite legal errors, the record is uncertain and ambiguous 124 and further
administrative proceedings would serve a useful purpose. 125 “Where there is conflicting
evidence, and not all essential factual issues have been resolved, a remand for an award
of benefits is inappropriate.” 126
In contrast, a remand for an immediate calculation of benefits is warranted when
the requirements of the “credit as true rule” are met. Those requirements are met when:
(1) that the ALJ failed to provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion; (2) the record has been fully developed and further
proceedings would serve no useful purpose; and (3) if the improperly discredited evidence

123

Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014) (citing Garrison v. Colvin, 759 F.3d 995,
1021 (9th Cir. 2014)).

124

Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1104 (9th Cir. 2014).

125

Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th Cir. 2015) (citing Garrison, 759 F.3d at 1020);
see also Burrell, 775 F.3d at 1141.
126

Brown-Hunter, 806 F.3d at 496 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1101).

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were credited as true, the ALJ would be required to find the claimant disabled on
remand. 127
Here, the Court has found that the ALJ failed to provide legally sufficient reasons
for rejecting certain medical opinions. And if the improperly discredited evidence is
credited as true, the ALJ would be required to find the claimant disabled on remand.
Nonetheless, the Court finds that further administrative proceedings will serve a useful
purpose in this case.

There are unresolved factual issues and some unaddressed

evidence and opinions that lead this Court to find that an award of benefits is not proper
at this time.

The extent of Mr. Marshall’s physical limitations is not clear from the

administrative record before the Court and the SSA is charged with determining disability,
not this Court. Moreover, “the touchstone for an award of benefits is the existence of a
disability, not the agency’s legal error.” 128
On remand, the Commissioner is directed to properly consider the opinions
contained within the administrative record, which requires the Commissioner to (1) review
the additional medical records in the administrative record—namely Dr. Cross,
PT Morgan, and LCSW Lewis—and weigh the opinions and evaluate the evidence
contained within them in conjunction with the entire administrative record; (2) evaluate
the opinions of Dr. Cobden and Dr. Vermillion using the factors listed in 20
C.F.R. §404.1527(2)(c); (3) consider the opinions of MSPT Carlson and PA Frampton,
using the same factors; (4) reevaluate Mr. Marshall’s statements pertaining to his
symptoms; (5) determine whether to accord Mrs. Marshall’s statements greater weight in

127

Id. at 494 (citing Treichler, 775 F.3d at 1105; Garrison, 759 F.3d at 1020).

128

Id. at 496.

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light of the reevaluations and new evidence; and (6) determine whether Mr. Marshall’s
RFC should be modified and if so how that impacts his ability to work.
The ALJ is invited to acquire additional medical records, including an updated
physical capacities evaluation and corresponding functional work abilities opinion, as well
as follow-up with the treating sources already involved in this case to obtain additional
information or clarify any questions that may exist or arise. Likewise, should additional
information be available that is not already in the administrative record, Mr. Marshall may
submit it to the ALJ for consideration in this remand.
CONCLUSION
The Court, having carefully reviewed the administrative record, finds that the ALJ’s
determinations are not free from legal error and are not all supported by substantial
evidence. Accordingly, IT IS ORDERED THAT Docket 1 is GRANTED IN PART, the
Commissioner’s final decision is VACATED, and the case is REMANDED to the SSA for
further proceedings consistent with this decision.
The Clerk of Court is directed to enter judgment accordingly.
DATED this 31st day of March, 2017 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

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