Gummeson v. Commissioner of Social Security

Filing 23

ORDER signed by Magistrate Judge Carolyn K. Delaney on 9/15/2017 GRANTING 13 Motion for Summary Judgment; DENYING 19 Cross-Motion for Summary Judgment; REVERSING the decision of the Commissioner of Social Security; REMANDING this matter for further proceedings consistent with this order. CASE CLOSED. (Michel, G.)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CONNIE LYNNE GUMMESON, 12 13 14 15 No. 2:16-cv-01611 CKD Plaintiff, v. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) denying an application for Supplemental Security Income (“SSI”) under Title 20 XVI of the Social Security Act (“Act”). For the reasons discussed below, the court will grant 21 plaintiff’s motion for summary judgment and deny the Commissioner’s cross-motion for 22 summary judgment. 23 BACKGROUND 24 Plaintiff, born July 7, 1954, applied on June 25, 2012 for disability insurance benefits and 25 widow insurance benefits, alleging disability beginning July 15, 2010. Administrative Transcript 26 (“AT”) 12, 261. 275. Plaintiff alleged she was unable to work due to joint issues, hip and spine 27 deterioration, digestive problems, pain, depression and osteopenia. AT 99. In a decision dated 28 1 1 February 3, 2015, the ALJ determined that plaintiff was not disabled.1 AT 12-28. The ALJ made 2 the following findings (citations to 20 C.F.R. omitted): 3 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2017. 4 6 2. It was previously found that the claimant is the unmarried widow of the deceased insured worker and has attained the age of 50. The claimant met the non-disability requirements for disabled widow’s benefits. 7 3. The prescribed period ended on April 30, 2009. 8 4. The claimant has not engaged in substantial gainful activity since July 15, 2010, the alleged onset date. 5 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 2 28 1 5. The claimant has the following severe impairments: obesity, degenerative disc disease of the lumbar spine, degenerative joint disease of the bilateral hips, hypertension, and lower extremity edema. 2 3 6. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. 4 5 7. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work, except that the claimant could lift and carry 20 pounds occasionally and 10 pounds frequently. The claimant could push and pull 20 pounds occasionally and 10 pounds frequently. The claimant could never climb ladders, ropes, or scaffolds. The claimant could balance, crouch, crawl, kneel, stoop, bend, and climb ramps and stairs frequently. 6 7 8 9 10 8. The claimant is capable of performing past relevant work as an office helper, receptionist, and a senior claims adjuster. This work does not require the performance of work-related activities precluded by the claimant’s residual functional capacity. 11 12 9. The claimant has not been under a disability, as defined in the Social Security Act, from July 15, 2010, through the date of this decision. 13 14 15 AT 14-28. 16 ISSUES PRESENTED 17 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 18 disabled: (1) The ALJ erred in finding plaintiff’s receptionist job was past relevant work; (2) the 19 ALJ erred in evaluating RFC because he failed to consider her need to use a hand-held assistive 20 device; and (3) the ALJ improperly rejected the opinion of Dr. Mehlton. 21 LEGAL STANDARDS 22 The court reviews the Commissioner’s decision to determine whether (1) it is based on 23 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 24 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 25 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 26 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 27 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 28 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 3 1 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 2 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 3 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 4 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 5 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 6 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 7 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 8 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 9 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 10 administrative findings, or if there is conflicting evidence supporting a finding of either disability 11 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 12 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 13 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 14 ANALYSIS 15 A. Past Relevant Work 16 The ALJ found that plaintiff had past relevant work as an office helper, receptionist, and 17 senior claims adjuster. AT 27. He found that she performed these jobs within the past 15 years at 18 “substantial gainful activity levels long enough to learn the required job skills.” AT 27. In 19 support, the ALJ cited plaintiff’s hearing testimony, in which she stated that she was sixty years 20 old, had worked as a senior claims adjuster for ten years at Health Net in Rancho Cordova, and 21 currently worked at a public television station for 12 to 18 hours a week, a position found through 22 the program Experience Works for people over age 55. AT 37, 40-44. At step four, the ALJ 23 concluded that, given her RFC, plaintiff remained capable of performing three types of past 24 relevant work – office helper, senior claims adjuster, and receptionist – “as it is actually and 25 normally performed in the national economy.” AT 27. 26 Plaintiff bears the burden of showing she does not have the residual functional capacity to 27 engage in Apast relevant work.@ 20 C.F.R. '' 416.960, 416.965. A job qualifies as past relevant 28 work only if it involved substantial gainful activity. Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 4 1 2001). AEarnings can be a presumptive, but not conclusive, sign of whether a job is substantial 2 gainful activity. Monthly earnings averaging less than $300 generally show that a claimant has 3 not engaged in substantial gainful activity. . . . With the presumption, the claimant has carried his 4 or her burden unless the ALJ points to substantial evidence, aside from earnings, that the claimant 5 has engaged in substantial gainful activity.@ Id. Where a claimant’s average monthly earnings 6 fall between $300 and $500, then the Commissioner must consider other factors listed in the 7 regulations. 20 C.F.R. ' 416.974(b)(6). 8 Plaintiff contends that the ALJ erred in finding that she could perform her past relevant 9 work as a receptionist. She argues that her receptionist job at a TV station cannot be considered 10 past relevant work, as it was performed under “special conditions.” See 20 C.F.R. 404.1573(c) 11 (“If your work is done under special conditions, we may find that it does not show that you have 12 the ability to do substantial gainful activity.”). Plaintiff cites her pre-hearing memorandum, 13 which explains that the job consisted of “a variety of very simple clerical tasks, without any 14 expectations as to pace or completion.” AT 347. “They make all sorts of accommodations, 15 including extra breaks at–will, allowing her to just sit and rest many times each day.” AT 347. 16 In addition, plaintiff argues that her earnings as a receptionist did not meet the level of 17 substantial gainful activity. Defendant concedes that the ALJ found that plaintiff’s earnings as a 18 receptionist did not meet the level of substantial gainful activity. ECF No. 19 at 12; AT 15. 19 Thus, the ALJ erred in finding plaintiff’s receptionist job to be past relevant work. The remaining 20 issue is whether plaintiff’s past jobs as senior claims adjuster and office helper qualified as past 21 relevant work. See Sanchez v. Secretary of HHS, 812 F.2d 509, 511 (9th Cir. 1987) (plaintiff not 22 disabled if he or she can perform past work as performed in national economy). 23 B. Residual Functional Capacity 24 Plaintiff next argues that the ALJ erroneously “excluded plaintiff’s need for a cane from 25 his RFC finding and concomitant hypotheticals to the vocational expert.” ECF No. 14 at 9. 26 Plaintiff argues that the evidence establishes that plaintiff requires the use of a cane when 27 ambulating due to her poor balance. As set forth above, the RFC deemed plaintiff able to perform 28 light work with certain limitations. The RFC included a finding that plaintiff could balance 5 1 2 frequently. AT 17. Social Security Ruling 96-8p sets forth the policy interpretation of the Commissioner for 3 assessing residual functional capacity. SSR 96-8p. Residual functional capacity is what a person 4 “can still do despite [the individual’s] limitations.” 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003); 5 see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual functional capacity 6 reflects current “physical and mental capabilities”). RFC is assessed based on the relevant 7 evidence in the case record, including the medical history, medical source statements, and 8 subjective descriptions and observations made by the claimant, family, neighbors, friends, or 9 other persons. 20 C.F.R. §§ 404.1545(a)(1), 404.1545(a)(3). When assessing RFC, the ALJ must 10 consider the claimant’s “ability to meet the physical, mental, sensory, and other requirements of 11 work[.]” 20 C.F.R. §§ 404.1545(a)(4). 12 Plaintiff cites a 2012 treatment note in which she reported “frequent falls” and was 13 prescribed an adjustable cane by Dr. William Heyerman. AT 457. Plaintiff also cites a 2012 14 consultative examination by neurologist Dr. David Hoenig, who reported that plaintiff “uses a 15 cane [which] was prescribed. She uses it for walking. Without the cane, she is more unstable.” 16 AT 530. A 2014 progress report from her physical therapist found her to be at “moderate fall risk 17 in the community” and noted that she used support to stand. AT 631-632. At the July 2014 18 hearing, plaintiff testified that she used a prescribed cane, had balance problems, and had fallen 19 several times. AT 54-55. 20 Plaintiff argues that the ALJ’s lack of any finding concerning plaintiff’s need for a cane 21 was error. Such error was not harmless, plaintiff argues, because her ability to perform the 22 “light” jobs she did in the past – office helper and claims adjustor – “would be significantly 23 impacted by plaintiff’s medically necessary cane.” ECF No. 14 at 11; see AT 71-72. Whereas 24 sedentary work “occasionally” requires walking and standing, a job constitutes light work “when 25 it requires a good deal of walking or standing – the primary difference between sedentary and 26 most light jobs.” SSR 83-10. Plaintiff also contends that, as many light jobs require a person to 27 stand in one location and use their arms and hands “to grasp and to hold and turn objects” (SSR 28 83-10), the need to hold a cane in one hand could interfere with the ability to do such work. ECF 6 1 No. 14 at 11-12. Defendant argues that, despite evidence of plaintiff’s prescribed use of a cane, the ALJ 2 3 reasonably found that she had not proven that the need for an assistive device should be included 4 in her RFC. Reviewing the objective evidence in his RFC analysis, the ALJ noted that plaintiff 5 was obese and had hip arthroplasty in both hips, degenerative disc disease and vertebrae 6 displacement in the lumbar spine, and swelling in the lower extremities. AT 19-23. The ALJ 7 considered 2010 progress notes stating that, two months after her double hip arthroplasty, she was 8 doing very well and ambulating nicely. AT 20, 378. “In 2011, follow up treatment showed the 9 claimant continued to do very well following her total hip arthroplasty” and had “excellent” 10 alignment in her hips. AT 20, 377. In 2012, Dr. Hoenig found that plaintiff 11 sat comfortably throughout the examination. She is able to get off and on the table without assistance. The claimant has poor tandem gait. . . . She uses a cane. The claimant has normal cervical, lumbar, and hip range of motion. . . . The claimant had normal bulk, tone, and 5/5 strength in the bilateral upper and lower extremities. . . . Functionally, Dr. Hoenig assessed the claimant [could] stand and walk for up to four hours secondary to reduced range of motion of her hips. . . . The claimant requires a medically necessary cane for all distances. 12 13 14 15 16 AT 21, 530-532 (emphasis added). While the ALJ gave Dr. Hoenig’s opinion “significant 17 weight” (AT 26), he did not address the finding that plaintiff required a cane for all distances. 18 The ALJ also considered a 2013 report by state agency reviewing physician Dr. Charles 19 Combs, who found that plaintiff could stand for approximately four hours. AT 21, 181-183. Dr. 20 Combs also found that plaintiff could crouch, crawl, kneel, stoop, bend, and climb ramps and 21 stairs “occasionally.”2 AT 182. Dr. Combs found that plaintiff had postural limitations due to 22 “arthritis in hips, back and unsteady gait.” AT 182. He noted that “a medically-required hand- 23 held assistive device is necessary for ambulation,” that plaintiff had a “SPC for prolonged 24 ambulation and uneven terrain,” “currently has abn[ormal] gait,” and concluded that plaintiff was 25 “restricted to sedentary RFC with limitations as above.” AT 182-183. 26 2 27 The ALJ acknowledged Dr. Comb’s assessment in the RFC analysis, giving his opinions “great weight” (AT 21, 23), but ultimately found that plaintiff could “balance, crouch, crawl, kneel, stoop, bend, and climb ramps and stairs frequently.” AT 17 (emphasis added). 28 7 1 The ALJ also noted 2013 treatment records from Nurse Roberta Samples documenting 2 plaintiff’s report that she was losing sensation in both feet and “falls frequently.” AT 21, 665. 3 He noted December 2014 medical records “show[ing] the claimant reported she had fallen three 4 times in the last month. She reported her right leg gave out.” AT 22, 733. 5 In the hypothetical posed to the vocational expert (VE), the ALJ posited that “the person 6 has a light RFC. . . . Never ladders, ropes and scaffolds. All the posturals are frequent.” AT 72. 7 The VE concluded that such a person could perform the office helper and claims adjuster jobs, 8 both classified as light work. AT 71-72. In another hypothetical, the ALJ asked about a claimant 9 with a sedentary RFC where “all of the posturals are occasional.” AT 74. In that case, the VE 10 testified, the claimant could still work as a receptionist. AT 74-75. However, as set forth above, 11 plaintiff’s receptionist job did not qualify as past relevant work. 12 Based on this record, the court concludes that the ALJ erred by failing to address medical 13 evidence concerning plaintiff’s need for a cane in the RFC. More generally, the finding that 14 plaintiff could “frequently” balance (with no mention of an assistive device) is not supported by 15 substantial evidence in the record. In light of reversible error with respect to the physical RFC 16 assessment, the court need not reach plaintiff’s additional argument. Thus plaintiff is entitled to 17 summary judgment on this claim. 18 CONCLUSION 19 With error established, the court has the discretion to remand or reverse and award 20 benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). A case may be remanded 21 under the “credit-as-true” rule for an award of benefits where: 22 23 24 25 (1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. 26 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Even where all the conditions for the 27 “credit-as-true” rule are met, the court retains “flexibility to remand for further proceedings when 28 the record as a whole creates serious doubt as to whether the claimant is, in fact, disabled within 8 1 the meaning of the Social Security Act.” Id. at 1021; see also Dominguez v. Colvin, 808 F.3d 2 403, 407 (9th Cir. 2015) (“Unless the district court concludes that further administrative 3 proceedings would serve no useful purpose, it may not remand with a direction to provide 4 benefits.”); Treichler v. Commissioner of Social Sec. Admin.,, 775 F.3d 1090, 1105 (9th Cir. 5 2014) (“Where . . . an ALJ makes a legal error, but the record is uncertain and ambiguous, the 6 proper approach is to remand the case to the agency.”). 7 8 9 Here, the court will grant plaintiff’s request that this matter be remanded for further administrative proceedings. Accordingly, IT IS HEREBY ORDERED that: 10 1. Plaintiff’s motion for summary judgment (ECF No. 13) is granted; 11 2. Defendant’s cross-motion for summary judgment (ECF No. 19) is denied; 12 3. The Commissioner’s decision is reversed; 13 4. This matter is remanded for further proceedings consistent with this order; and 14 5. The Clerk of the Court shall enter judgment for plaintiff and close this case. 15 Dated: September 15, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 2 / 22 23 24 25 26 27 28 9

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