Shanabarger v. Colvin

Filing 21

ORDER REMANDING THE CASE FOR FURTHER PROCEEDINGS re 20 - Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 8/31/2017. "For the reasons set forth above, the court REMANDS the case for further proceedings on an open record. The Clerk of Court shall close the case file." (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
BRENDA K. SHANABARGER

Civ. No. 16-00567 JMS-KJM

Plaintiff,

ORDER REMANDING THE CASE
FOR FURTHER PROCEEDINGS

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

ORDER REMANDING THE CASE FOR FURTHER PROCEEDINGS
I. INTRODUCTION
This is an action brought under 42 U.S.C. § 405(g) to review a final
decision of the Acting Commissioner of Social Security, Nancy A. Berryhill
(“Commissioner” or “Defendant”). Brenda K. Shanabarger (“Plaintiff”) appeals
Defendant’s adoption of the Administrative Law Judge’s (“ALJ”) July 9, 2015
decision finding Plaintiff not disabled under the Social Security Act, 42 U.S.C.
§§ 401-34, 1381-83f (“July 9 Decision”). Plaintiff argues that the July 9 Decision
must be overturned because the ALJ erroneously identified (and subsequently
rejected) examining physician opinions as non-examining physician opinions.
Based on the following, the court REMANDS the case for further proceedings.
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II. BACKGROUND
A.

Factual Background
On November 15, 2012, Plaintiff filed an application for disability

insurance benefits, alleging disability since December 6, 2007. Admin. R. (“AR”)
153-59, ECF No. 13. Plaintiff later amended the alleged onset date of her
disability to November 24, 2011. Id. at 20. Her claim was denied twice -- once on
July 19, 2013, and again upon reconsideration on May 1, 2014. Id. at 95-98, 10204. On May 23, 2014, Plaintiff filed a request for a hearing. Id. at 105. ALJ
Nancy Lisewski conducted the hearing on June 11, 2015, at which Plaintiff
testified. Id. at 20.
In the July 9 Decision, the ALJ found that Plaintiff had the following
severe impairments: “degenerative disc disease with mild disc protrusion at L2-3,
back pain, and radiculopathy.” Id. at 22. But the ALJ ultimately found that
Plaintiff had “the residual functional capacity to perform light work” and “was
capable of performing her past relevant work as a Housekeeper cleaner/Night
auditor.” Id. at 25, 27. Consequently, she determined that Plaintiff “was ‘not
disabled’ under sections 216(i) and 223(d) of the Social Security Act through
March 31, 2013, the last date insured.” Id. at 28.

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Plaintiff does not dispute the severe impairments found in the July 9
Decision. She only contests the subsequent residual functional capacity (“RFC”)
finding that her limitations (resulting from those severe impairments) were not
extensive enough to qualify her for disability insurance benefits. Thus, the court
first focuses on the evidence relevant to the RFC finding, and then turns to the
RFC finding itself.
1.

The Evidence Before the ALJ
a.

Examining Physicians Lee & Taylor

On October 20, 2012, Dr. Mark Lee (“Dr. Lee”) conducted a physical
examination of Plaintiff for the State of Hawaii Department of Human Services
(“Hawaii DHS”). Id. at 394. Under “ESTIMATED FUNCTIONAL
LIMITATIONS,” Dr. Lee checked boxes to indicate that Plaintiff: (1) can
occasionally lift/carry less than ten pounds; (2) cannot lift/carry frequently; (3) can
stand/walk for less than two hours with an assistive device; and (4) can sit
continuously with breaks every two hours for less than six hours. Id. at 397. As a
result, Dr. Lee concluded that Plaintiff “is unable to participate in any activities,
except treatment or rehabilitation.” Id.
On February 6, 2013, Dr. Christopher Taylor (“Dr. Taylor”)
conducted another physical examination of Plaintiff for Hawaii DHS. Id. at 388.
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Dr. Taylor’s findings were identical to Dr. Lee’s, with one exception: Dr. Taylor
found that Plaintiff could occasionally lift/carry exactly ten pounds, whereas Dr.
Lee found that Plaintiff could occasionally lift/carry less than ten pounds.
Compare id. at 397 with id. at 391.
b.

Other Medical Evidence

On October 31, 2012, Plaintiff visited the Kalihi-Palama Health
Center for a mammogram follow-up. Id. at 440-43. As part of the visit’s physical
examination, Malia A. Ribeiro APRN observed, “Gait and Station: walking w/
cane foot drop on right.” Id. at 442.
On December 25, 2012, Plaintiff was admitted to Queen’s Medical
Center for “weakness” resulting from someone falling on her the previous week,
which caused her to fall and land on her hands and knees. Id. at 347-48. Dr. Erica
M. Garcia (“Dr. Garcia”) was her attending provider. Id. at 347. Dr. Garcia’s
notes state: “Coordination and gait normal. . . . Patient is able to stand on tip-toes
and heels, but complains of left leg pain, that is chronic, while doing this. Perineal
sensation intact. No apparent facial droop, moving ext symmetrically.” Id. at 350.
She was discharged that same day. Id. at 347.
On March 21, 2013, Plaintiff visited with Dr. James W. Pearce (“Dr.
Pearce”) for “followup of lumbar radiculopathy.” Id. at 331. Under “Progress
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Notes,” Dr. Pearce wrote: “There is no motor asymmetry and no pronator drift.
Ankle jerk appears to be absent on the right but present on the left as was present
elsewhere one to 2+[.]” Id. at 332. Because “her imaging show[ed] apparently
nothing that would lend itself to surgical repair,” Dr. Pearce “refer[red] her to
physiatry for assistance in controlling her back and leg pain.” Id.
c.

Non-Examining Physicians Fujikami & Shibuya

On July 18, 2013, Dr. N. Shibuya (“Dr. Shibuya”) conducted an RFC
assessment by reviewing Plaintiff’s medical records, primarily relying on the
evidence discussed above. Id. at 76-79. Dr. Shibuya concluded that Plaintiff had a
“light” RFC, specifically finding that Plaintiff could: (1) occasionally lift/carry 20
pounds; (2) frequently lift/carry 10 pounds; (3) stand/walk for 6 hours in an 8-hour
workday; and (4) sit for 6 hours in an 8-hour workday. Id. at 76-77. On April 29,
2014, Dr. R. Fujikami (“Dr. Fujikami”) conducted another RFC assessment,
reviewing the same records, and came to the same conclusion as Dr. Shibuya. Id.
at 88-92.
2.

The ALJ’s RFC Finding
In the July 9 Decision, the ALJ weighed the medical evidence and

made the following findings:
State of Hawai’i Department of Human Services reviewing
physicians (including but not limited to Mark Lee, M.D., Bryan
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Yamashiro, M.D., and Christopher Taylor, M.D.) stated in 2013
that the claimant should be limited to less-than-sedentary work
(e.g., she cannot lift and/or carry frequently, she cannot stand
and/or walk more than 2 hours in an 8-hour workday, and she
needs a cane) and would be disabled (Exhibit B3F). I give little
weight to these medical source statements, however, because
they were prepared for State of Hawai’i general assistance
purposes and not Social Security Administration disability, and
they are not consistent with the medical evidence prior to the
March 31, 2013 date last insured.
Progress notes indicated that, prior to the March 31, 2013 date
last insured, the claimant walked with a cane and had foot drop
on the right, and her gait was slow (e.g., Exhibits B4F/4;
B6F/28, 131). Physical examinations showed normal gait and
coordination, however, she was able to stand on tiptoes and
heels, perineal sensation was intact, there was no pronator drift,
and her extremities moved symmetrically (e.g., Exhibits B2A;
B4A; B1F; B2F). There is little medical evidence from the
November 24, 2011 amended alleged onset date of disability
through the date last insured.
....
State Agency medical consultants R. Fujikami, M.D. and N.
Shibuya, M.D., concluded that the claimant could perform light
work with occasional postural limitations (Exhibits B2A; B4A),
as adopted above. I include a limitation against exposure to
vibration to reduce the claimant’s pain (as also adopted in the
prior final and binding September 2011 unfavorable decision),
but other than that, I give great weight to the medical source
statements of Dr. Fujikami and Dr. Shibuya, because they are
not contradicted by the aforementioned medical evidence prior
to the date last insured of March 31, 2013.
In sum, I find the objective medical evidence and the subjective
evidence support the residual functional capacity adopted
above.
Id. at 26-27.
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B.

Procedural Background
On July 9, 2015, the ALJ issued her decision finding Plaintiff not

disabled. Id. at 20-28. The Appeals Council subsequently rejected Plaintiff’s
request to review the July 9 Decision, and the July 9 Decision became the final
decision of the Commissioner on September 1, 2016. Id. at 1-3.
On October 19, 2016, Plaintiff filed her Complaint seeking judicial
review of the July 9 Decision. Compl., ECF No. 1. On April 17, 2017, Plaintiff
filed her Opening Brief, and on June 6, 2017, Defendant filed its Answering Brief.
Pl.’s Opening Br., ECF No. 15; Def.’s Answering Br., ECF No. 16. Plaintiff filed
her Reply Brief on June 20, 2017. Pl.’s Reply Br., ECF No. 17.
A hearing was held on August 14, 2017.
III. STANDARD OF REVIEW
Congress has provided a limited scope of judicial review of the
Commissioner’s decision to deny benefits under the Social Security Act. See 42
U.S.C. § 405(g). In reviewing findings of fact with respect to such determinations,
the court must uphold the Commissioner’s decision, made through an ALJ, “unless
it is based on legal error or is not supported by substantial evidence.” Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). “Substantial evidence
is more than a mere scintilla but less than a preponderance.” Id. (quoting Bayliss v.
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Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005)). Stated differently,
“[s]ubstantial evidence means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Burch v. Barnhart, 400 F.3d 676, 679
(9th Cir. 2005) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989))
(quotation marks omitted). With that said, however, “a reviewing court must
consider the entire record as a whole and may not affirm simply by isolating a
‘specific quantum of supporting evidence.’” Ryan, 528 F.3d at 1198 (quoting
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)).
IV. DISCUSSION
Disability insurance benefits are available under Title II of the Social
Security Act when an eligible claimant is unable “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment . . . 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). An individual is disabled
only if her impairments are of such severity that she is unable to do her previous
work, and cannot, considering her age, education, and work experience, engage in
any other substantial gainful activity existing in the national economy. Id.
§ 423(d)(2)(A).

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The Social Security Administration has established a five-step
sequential analysis to assess disability claims, which asks:
(1) Is the claimant presently working in a substantially gainful activity? If
yes, the claimant is “not disabled.”
(2) Is the claimant’s impairment severe? If no, the claimant is “not
disabled.”
(3) Does the impairment “meet or equal” one of a list of specific
impairments described in the regulations? If yes, the claimant is
“disabled.”
(4) Is the claimant able to do any work that he or she has done in the past?
If yes, the claimant is “not disabled.”
(5) Is the claimant able to do any other work? If yes, the claimant is “not
disabled.”
See Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). For steps one
through four, the burden of proof is on the claimant, and if “a claimant is found to
be ‘disabled’ or ‘not disabled’ at any step in the sequence, there is no need to
consider subsequent steps.” Id. at 1098. If the claimant reaches step five, the
burden shifts to the Commissioner. Id.
The ALJ’s July 9 Decision found that Plaintiff: (1) was not engaged in
a substantial gainful activity; (2) had three severe impairments: degenerative disc
disease with mild disc protrusion at L2-3, back pain, and radiculopathy; (3) did not
have an impairment meeting one of the list of specific impairments described in the
regulations; but (4) had the RFC to perform light work and thus was able to

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perform past relevant work as a “Housekeeper cleaner/Night auditor.” AR at 2227. Thus, Plaintiff survived steps one through three, but failed at step four.
Plaintiff now argues that the ALJ erroneously identified (and
subsequently rejected) examining physician opinions as non-examining (also
known as reviewing) physician opinions. Pl.’s Opening Br. at 7-15. The court
agrees.
A.

Legal Standard
1.

Weighing Types of Medical Opinions
Generally, “[t]here are three types of medical opinions in social

security cases: those from treating physicians, examining physicians, and nonexamining physicians.” Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685,
692 (9th Cir. 2009). When assessing medical opinions, “the opinion of a treating
physician must be given more weight than the opinion of an examining physician,
and the opinion of an examining physician must be afforded more weight than the
opinion of a reviewing physician.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th
Cir. 2014).
In cases “[w]here a treating or examining physician’s opinion is
contradicted by another doctor, the ‘Commissioner must determine credibility and
resolve the conflict.’” Valentine, 574 F.3d at 692 (quoting Thomas v. Barnhart,
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278 F.3d 947, 956-57 (9th Cir. 2002)). When rejecting “a treating or examining
doctor’s opinion [that] is contradicted by another doctor’s opinion,” an ALJ must
provide “specific and legitimate reasons that are supported by substantial
evidence.” Bayliss, 427 F.3d at 1216; see also Burrell v. Colvin, 775 F.3d 1133,
1137 (9th Cir. 2014).
When resolving this conflict, “the contrary opinion of a nonexamining medical expert does not alone constitute a specific, legitimate reason for
rejecting a treating or examining physician’s opinion.” Tonapetyan v. Halter, 242
F.3d 1144, 1149 (9th Cir. 2001). A contrary opinion can, however, “constitute
substantial evidence when it is consistent with other independent evidence in the
record.” Id.; see also Thomas, 278 F.3d at 957 (“The opinions of non-treating or
non-examining physicians may also serve as substantial evidence when the
opinions are consistent with independent clinical findings or other evidence in the
record.”).
2.

Harmless Error
“Although we have expressed different formulations of the harmless

error rule depending on the facts of the case and the error at issue, we have adhered
to the general principle that an ALJ’s error is harmless where it is ‘inconsequential
to the ultimate nondisability determination.’” Molina v. Astrue, 674 F.3d 1104,
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1115 (9th Cir. 2012) (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d
1155, 1162 (9th Cir. 2008)). In making this assessment, the court “look[s] at the
record as a whole to determine whether the error alters the outcome of the case.”
Id. And “the more serious the ALJ’s error, the more difficult it should be to show
the error was harmless.” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015).
This rule reflects how “[the Ninth Circuit’s] precedents have been cautious about
when harmless error should be found.” Id.
B.

Application
The ALJ misidentified Dr. Lee and Dr. Taylor as “reviewing

physicians,” AR 26, rather than examining physicians.1 This constitutes error, and
the court cannot confidently conclude that it was “inconsequential to the ultimate
nondisability determination,” Carmickle, 533 F.3d at 1162.
The Ninth Circuit has created a hierarchy for weighing medical
opinions, where “the opinion of an examining physician must be afforded more
weight than the opinion of a reviewing physician.” Ghanim, 763 F.3d at 1160.
Because of this, ALJs must give more deference to an examining physician’s
opinion than a reviewing physician’s opinion. See Tonapetyan, 242 F.3d at 1149
1

Defendant admits that Dr. Lee and Dr. Taylor were examining physicians, rather than
reviewing physicians. Def.’s Answering Br. at 7. In any event, the record clearly shows that Dr.
Lee and Dr. Taylor physically examined Plaintiff. AR 388-99.

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(“[T]he contrary opinion of a non-examining medical expert does not alone
constitute a specific, legitimate reason for rejecting a treating or examining
physician’s opinion.”).
By misidentifying Dr. Lee and Dr. Taylor as reviewing physicians, the
ALJ did not afford their opinions sufficient weight relative to the opinions of Dr.
Fujikami and Dr. Shibuya. And in failing to recognize that Dr. Lee and Dr. Taylor
physically examined Plaintiff, the ALJ ignored medical evidence, a mistake that
further compromised the ALJ’s subsequent findings.
First, the ALJ found that the opinions of Dr. Lee and Dr. Taylor were
“not consistent with the medical evidence prior to the March 31, 2013 date last
insured.” AR 26. Second, the ALJ stated that “[t]here is little medical evidence
from the November 24, 2011 amended alleged onset date of disability through the
date last insured.” AR 26. And third, the ALJ gave “great weight to the medical
source statements of Dr. Fujikami and Dr. Shibuya, because they are not
contradicted by the aforementioned medical evidence prior to the date last insured
of March 31, 2013.” AR 27.
All three of these findings were only possible because the ALJ failed
to recognize that Dr. Lee and Dr. Taylor were examining physicians. Because Dr.
Lee and Dr. Taylor physically examined Plaintiff -- rather than just reviewed her
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medical records -- their examinations are medical evidence. And they also fall
within the relevant time period, as they physically examined Plaintiff on October
20, 2012, and February 8, 2013, respectively. AR 388, 394. Thus, the medical
source statements of Dr. Fujikami and Dr. Shibuya were contradicted by at least
some medical evidence prior to the date last insured of March 31, 2013.
To affirm, the court must be able to find that the ALJ’s error is
harmless, or “inconsequential to the ultimate disability determination.” Carmickle,
533 F.3d at 1162. And where -- as here -- “the magnitude of an ALJ error is more
significant, then the degree of certainty of harmlessness must also be heightened
before an error can be determined to be harmless.” Marsh, 792 F.3d at 1173.
Because this error is so fundamental, and because it compromises so
much of the ALJ’s July 9 Decision, the court cannot confidently conclude that the
ALJ’s error is harmless.2 Remand is therefore appropriate to allow the ALJ to
appropriately weigh the relative evidence in the first instance. 3

2

The Tenth Circuit encountered a similar error, where the ALJ mistakenly identified a
treating physician as an examining physician. Winick v. Colvin, 674 F. App’x 816, 820 (10th
Cir. 2017). The court found that such an error could not be harmless:
The Commissioner argues that the ALJ’s error was harmless because the
ALJ provided reasons for discounting Dr. Ganzell’s opinion that would
have applied even if he had analyzed the opinion as a treating source
opinion. But we cannot treat this error as harmless. To do so would
ignore the ALJ’s duties not only to determine whether to assign a treating
physician’s opinion controlling weight, but to give deference to a treating
(continued . . .)

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V. CONCLUSION
For the reasons set forth above, the court REMANDS the case for
further proceedings on an open record. The Clerk of Court shall close the case file.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 31, 2017.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

Shanabarger v. Berryhill, Civ. No. 16-00567 JMS-KJM, Order Remanding the Case for Further
Proceedings
(. . . continued.)
physician’s opinion even if he does not assign it controlling weight. The
exercise of such deference might have changed the relative weight
assigned to all the medical opinions, including the non-examining
consultants to whose opinions the ALJ assigned great weight.
Id. (internal citations omitted); see also Johnson v. Colvin, 2016 WL 3922025, at *4 (W.D.N.Y.
July 21, 2016) (“I disagree with the government’s assertion that the record in this case permits
the Court to divine how the ALJ would have weighed [the doctor]’s opinion had he appreciated
[the doctor]’s established relationship with [the plaintiff].”).
3

Plaintiff also argues that the ALJ erroneously rejected Plaintiff’s testimony as not
credible. Pl.’s Opening Br. at 15-21. Because the court finds that the ALJ erred in identifying
Dr. Lee and Dr. Taylor as non-examining physicians, rather than examining physicians, the court
does not reach this argument. Because the remand is an open remand, however, the ALJ should
reconsider or reweigh evidence as appropriate, including evidence as to Plaintiff’s credibility.

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