Kevan v. Astrue

Filing 28

MEMORANDUM DECISION AND ORDER granting 1 Petition for Review. This action is REMANDED to the Commissioner for further proceedings consistent with this opinion. This remand is a sentence four remand, consistent with 42 U.S.C. § 405(g). Signed by Judge Candy W. Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RHONDA R. KEVAN,
Case No. 1:08-cv-00292-CWD
Petitioner,
MEMORANDUM DECISION AND
ORDER

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

Before the Court is Petitioner Rhonda Kevan’s appeal of Respondent’s final
determination that Petitioner is no longer entitled to Title II disability benefits, because
her disability ended as of March 1, 2001. Petitioner has disputed that determination for 14
years, and this is the third time she has sought judicial review. The Court has reviewed
the Petition for Review and the Answer, the parties’ memoranda, and the administrative
record (AR), and for the reasons that follow, will remand to the Commissioner for further
proceedings consistent with this decision.
PROCEDURAL AND FACTUAL HISTORY
Petitioner filed an application for Disability Insurance Benefits and Supplemental
Security Income on December 28, 1993, alleging inability to work since September 15,
MEMORANDUM DECISION AND ORDER - 1

1991. In February of 1994, the Social Security Administration (SSA) determined
Petitioner was disabled due to malignant melanoma, which met the criteria for Listing
13.05B in the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.
Following a review of Petitioner’s medical records, the SSA determined in July of 1997
that Petitioner’s melanoma had metastasized to her lungs and continued to meet the
criteria for Listing 13.05B. The SSA began another continuing disability review in
August of 2000. Following this review, the SSA concluded that medical records after
1997 established Petitioner’s melanoma was in sustained remission and thus no longer
met the criteria of Listing 13.05B. Accordingly, the SSA notified Petitioner that she was
no longer disabled as of March 1, 2001, and that her benefits would terminate on May 31,
2001.
At the time of the termination of benefits, Petitioner was 39 years of age. She had
completed high school and attended some college. Her prior work experience at the time
included work on an assembly line from 1981 until 1988. Petitioner had no other work
experience as of March 1, 2001.
Petitioner requested reconsideration in April of 2001, and a reconsideration
hearing was held in late October of 2001. Following the hearing, the SSA affirmed its
determination that Petitioner was no longer disabled as of March 1, 2001. Petitioner
requested a hearing before an ALJ, a hearing was held before ALJ John Arkoosh on
December 6, 2002, and ALJ Arkoosh issued a decision denying Petitioner continuing
disability benefits on February 7, 2003. Petitioner then sought review by the Appeals
Council, which issued a denial in May of 2003.
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In August of 2003, Petitioner filed in this Court a Petition to Review ALJ
Arkoosh’s decision. Kevan v. Barnhart, No. 1:03-cv-00319-LMB (D. Idaho filed Aug. 1,
2003). Prior to completion of the briefing, however, the parties filed a stipulation for
remand under “sentence four” of 42 U.S.C. § 405(g), which the Court approved on March
17, 2004. Id. at Dkt. 20. On remand, a second hearing was held before ALJ Robin
Henrie. In a decision issued on April 8, 2005, ALJ Henrie also found Petitioner was no
longer disabled as of March 1, 2001. Petitioner again requested review by the Appeals
Council, but, in May of 2008, the Appeals Council concluded the request was not timely.
As a result, ALJ Henrie’s decision became the final decision of the Commissioner.
On July 16, 2008, Petitioner opened this action by filing a petition for judicial
review of ALJ Henrie’s decision. (Dkt. 1.) Before briefing commenced, the parties filed a
Stipulation for Remand, explaining that one of the two tapes recording the hearing before
ALJ Henrie was lost. (Dkt. 12.) On November 3, 2008, the Court remanded the case for a
de novo hearing under “sentence six” of 42 U.S.C. § 405(g). (Dkt. 14.)
On remand, a third hearing was held, this time before ALJ Kurt Schuman on
December 10, 2009. ALJ Schuman issued an unfavorable decision on December 29,
2010, again finding that Petitioner was no longer disabled as of March 1, 2001. On
February 3, 2011, Petitioner sent the Appeals Council exceptions to ALJ Schuman’s
decision and requested further review, but for reasons that are not clear in the record it
appears this request languished until March 9, 2013. 1 Almost nine months later, the

1

On March 9, 2013, the SSA sent Petitioner’s counsel a notice indicating Petitioner did not
timely file exceptions to ALJ Schuman’s decision. (AR 473.) The notice further directed
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parties filed a Joint Motion to Reopen this case, explaining “the Appeals Council
completed the further administrative proceedings on remand.” (Dkt. 17 at 2.)
Accordingly, the Court has jurisdiction to review ALJ Schuman’s decision pursuant to 42
U.S.C. § 405(g).
In early 2014, the Court granted the motion to reopen the appeal, Respondent filed
an Answer and the administrative record, and the parties filed briefs on the merits. In
addition, the parties consented in writing to proceed before a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c).
SEQUENTIAL PROCESS
After a claimant is awarded disability benefits, the SSA periodically evaluates the
claimant’s impairments to determine whether the claimant remains entitled to disability
benefits. 20 C.F.R. § 404.1589. Under 20 C.F.R. § 404.1594(f), the ALJ uses an eightstep sequential process to determine whether a claimant continues to be disabled.
At step one, the ALJ must determine whether the claimant is engaging in
substantial gainful activity. ALJ Schuman found Petitioner had not engaged in substantial
gainful activity from the date of her most recent favorable disability decision, July 1,
1997, through March 1, 2001.

Petitioner’s counsel to prove that exceptions to ALJ Schuman’s decision were timely filed. There
is no record of whether the Petitioner or the Appeals Counsel took further action in connection
with the March 9, 2013 notice. To the extent this gap in the record calls into question Petitioner’s
exhaustion of administrative remedies, the Court finds the Commissioner effectively waived the
exhaustion requirement by moving to reopen this appeal and proceeding to litigate it on the
merits. See Johnson v. Shalala, 2 F.3d 918, 921 (9th Cir. 1993) (“The exhaustion requirement . . .
is not jurisdictional, and thus, is waivable by either the Secretary or the courts.”).
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Step two asks whether the claimant has an impairment or combination of
impairments that meets or equals a listing in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ found Petitioner had the following medically determinable impairments as of
March 1, 2001: hypertrophic cardiomyopathy, a history of seizures, a history of fractured
left distal femur with surgery, insomnia, hyperthyroidism, depression, and adjustment
disorder with mixed emotional features of anxiety. However, the ALJ found that these
impairments, individually or in combination, did not meet or equal a listed impairment.
Because of this finding, the ALJ proceeded to step three, which asks whether there
has been a medical improvement in the claimant’s disabling impairment after the date of
the most recent favorable disability decision. The ALJ determined there was medical
improvement in Petitioner’s melanoma, because medical evidence showed the cancer was
in sustained remission.
At step four, the ALJ must determine whether the claimant’s medical
improvement relates to the claimant’s ability to work—that is, whether the improvement
resulted in an increase of the claimant’s residual functional capacity (RFC) compared to
the claimant’s condition at the time of the most recent favorable disability decision. Here,
the ALJ found Petitioner’s medical improvement related to her ability to work because
her impairments no longer met or equaled Listing 13.05B, which was the only basis for
Petitioner’s most recent favorable disability decision. In cases where medical
improvement relates to the claimant’s ability to work, the regulations direct the ALJ to
skip step five and proceed to step six.

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At step six, the ALJ must determine whether the claimant’s current impairments
are “severe”—meaning the impairments cause a more than minimal limitation in the
claimant’s ability to do basic work activities. See 20 C.F.R. § 404.1521. The ALJ found
Petitioner’s medically determinable impairments as of March 1, 2001—hypertrophic
cardiomyopathy, a history of seizures, a history of fractured left distal femur with
surgery, insomnia, hyperthyroidism, depression, and adjustment disorder with mixed
emotional features of anxiety—were severe. Moving to step seven, the ALJ assessed
Petitioner’s RFC in light of her severe impairments and determined whether Petitioner
could perform past relevant work. ALJ Schuman found that Petitioner had no past
relevant work but otherwise had the RFC to perform a limited range of sedentary work.
In addition to various physical and environmental limitations, the ALJ determined that
Petitioner’s mental impairments limited her RFC to “simple, routine, and repetitive tasks”
at a “low stress job, defined as having only occasional complex decision making
required, and only occasional complex judgment required on the job.” (AR 488.)
Finally, step eight requires an assessment of whether the claimant can perform
other work, considering her RFC, age, education, and past work experience. At this step,
the SSA bears the burden of presenting substantial evidence that demonstrates the
claimant can perform other work that is available at significant numbers in the national
economy. If the claimant can perform such other work, she does not have a continuing
disability. After hearing testimony from a vocational expert concerning other work
available in the national economy, ALJ Schuman determined Petitioner did not have a
continuing disability as of March 1, 2001. This conclusion rested on the finding that
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Petitioner could perform jobs such as “document preparer,” “food and beverage order
clerk,” and “addressor,” despite her severe physical and mental impairments. (Id. at 495.)
STANDARD OF REVIEW
A claimant with no past relevant work will be determined to be disabled only if
her physical or mental impairments are of such severity that she is unable, considering
her age, education, and work experience, to engage in any kind of substantial gainful
work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A). On review, the
Court is instructed to uphold the decision of the Commissioner if the decision is
supported by substantial evidence and is not the product of legal error. 42 U.S.C. §
405(g); Universal Camera Corp. v. Nat’l Labor Relations Bd., 340 U.S. 474 (1951);
Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (as amended); DeLorme v. Sullivan,
924 F.2d 841, 846 (9th Cir. 1991).
DISCUSSION
Once a claimant has been found disabled, “a presumption of continuing disability
arises.” Bellamy v. Sec’y of Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir.
1985). This presumption shifts the burden of production to Respondent, who can rebut
the presumption by producing evidence of medical improvement. Murray v. Heckler, 722
F.2d 499, 500–01 (9th Cir. 1983). Here, it is undisputed that Respondent presented
sufficient evidence of medical improvement to rebut the presumption of continuing
disability due to Petitioner’s melanoma. The parties’ dispute centers on whether the ALJ
committed legal error in determining that Petitioner could adapt to other work despite her
remaining impairments.
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Notwithstanding the medical improvement of her melanoma, Petitioner claims she
remained disabled in 2001 due to a combination of other physical and mental
impairments. In particular, Petitioner argues the ALJ ignored medical opinion evidence
supportive of this claim—namely, a neuropsychological evaluation prepared by
examining psychologist Dr. Craig Beaver on February 3, 2003. Although the ALJ’s 13page decision includes a detailed discussion of Petitioner’s medical records—both before
and after March 1, 2001—it does not mention Beaver’s report. Petitioner’s position is
that the ALJ’s failure to discuss Beaver’s report constitutes reversible legal error, because
the ALJ must “explain why significant probative evidence has been rejected.” Vincent ex
rel. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (per curiam) (internal
quotation omitted).
After two days of testing and examination in late January of 2003, Beaver found
Petitioner’s overall mental functioning was in the average range. Consistent with
examining psychologist Charles Kaufman’s findings in November of 2000, Beaver also
found that Petitioner’s memory tested within normal limits. But, unlike Kaufman, Beaver
opined that Petitioner exhibited “significant problems with executive functioning,”
including “poor attention and concentration, and . . . significant difficulty with higherlevel reasoning, organizing, and problem solving.” (AR 462.) He also concluded that
Petitioner “does demonstrate evidence of neurocognitive deficits that appear organic in
nature, complicated by psychological issues.” (Id.)
Respondent argues Beaver’s report is neither significant to nor probative of
Petitioner’s continuing disability in 2001, because he did not examine Petitioner until
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January of 2003. Respondent also points out that Petitioner’s insured status expired in
December of 2001, more than one year before Beaver examined her. On the other hand,
Petitioner contends Beaver’s report is probative of “the severity and continuity of her
condition prior to the date last insured.” (Dkt. 27 at 3.)
Under the SSA’s regulations, the ALJ must consider all relevant evidence. 20
C.F.R. § 404.1520b. The regulations also make it clear that the ALJ must evaluate “every
medical opinion” in the record. Id. § 404.1527(c). Specifically, the regulations provide
that, unless a treating source’s opinion is given controlling weight, the ALJ must explain
in the decision the weight given to the opinions of examining or non-examining medical
sources. Id. § 404.1527(e)(2)(ii). It is undisputed that Beaver qualifies as an examining
medical source. Accordingly, Beaver’s opinion may not be rejected without “specific and
legitimate reasons . . . supported by substantial evidence in the record.” Lester v. Chater,
81 F.3d 821, 830 (9th Cir. 1995).
Citing Turner v. Commissioner, 613 F.3d 1217 (9th Cir. 2010), Respondent
nevertheless argues ALJ Schuman properly disregarded Beaver’s report because it was
prepared after Petitioner’s date last insured. But Turner did not address whether an ALJ
may ignore a medical opinion without explanation; rather, the relevant portion of the case
addressed an ALJ’s decision to disregard a social worker’s opinion that the claimant
could not tolerate employment. 613 F.3d at 1223–24. The Ninth Circuit found no error,
explaining that the ALJ provided several germane reasons for this decision: the social
worker was not an acceptable medical source, his conclusions about the claimant’s
disability were unsupported and self-contradictory, and he did not evaluate the claimant
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during the relevant time period. Id. Thus, timing was neither the exclusive nor the
primary reason for disregarding the opinion. And, even if timing was the critical factor in
Turner, it does not follow that a medical source opinion may be disregarded based on
timing alone.
The Ninth Circuit has repeatedly and “specifically held that ‘medical evaluations
made after the expiration of a claimant’s insured status are relevant to an evaluation of
the pre-expiration condition.’” Lester, 81 F.3d at 832 (quoting Smith v. Bowen, 849 F.2d
1222, 1225 (9th Cir. 1988)). This holding flows from the fact that “medical reports are
inevitably rendered retrospectively and should not be disregarded solely on that basis.”
Smith, 849 F.2d at 1225. As recognized in Smith, the principle that a medical source’s
later diagnosis is relevant to a claimant’s earlier condition was widely accepted in the
caselaw decades ago. Id. at 1225–26 (collecting cases).
Indeed, ALJ Schuman applied the principle to some of the medical evidence in
this case. Despite the expiration of Petitioner’s insured status in December of 2001, the
ALJ discussed the September 2002 report of Dr. Kurt Seppi, who noted that Petitioner
suffered a breakthrough seizure due to noncompliance with her medications. (AR 490.)
Likewise, the ALJ’s discussion of Petitioner’s hypertrophic cardiomyopathy specifically
cites an endocardiogram and the examination findings of Dr. Robert Duerr—both
prepared in December of 2002. (Id. at 489–90.) Yet the ALJ inexplicably disregarded
Beaver’s report, issued less than two months after Duerr’s examination. This is puzzling
in light of the December 2009 hearing, during which ALJ Schuman specifically

MEMORANDUM DECISION AND ORDER - 10

referenced Beaver’s report and heard considerable testimony about Beaver’s findings.
(AR 732, 776, 781, 783–86, 790–91.)
Contrary to Respondent’s argument, it makes no difference that the ALJ
“considered comparable medical evidence” in the form of Dr. Kaufman’s November
2000 examination findings. (Dkt. 26 at 4.) The fact that Kaufman’s and Beaver’s findings
are comparable highlights the critical flaw in ALJ Schuman’s decision. Kaufman and
Beaver conducted similar, albeit methodologically distinct, evaluations. While
Kaufman’s findings tend to support the mental limitations the ALJ included in
Petitioner’s RFC, Beaver’s findings arguably support more restrictive limitations.
Further, Kaufman did not address the nature or extent of Petitioner’s executive
dysfunction, whereas one of Beaver’s key findings was that Petitioner’s “complaints of
memory difficulties are primarily related to issues of executive dysfunction.” (AR 460.)
During the hearing before ALJ Schuman, the non-examining psychological expert, Dr.
Kristy Farnsworth, amplified this point: “[Petitioner] obviously had organic [mental]
issues [in 2001] because she did complain all along about problems with memory, but it
really stems from this ability to take in a lot of information and, you know, act on it.” (Id.
at 786.) Given Beaver’s opinion that Petitioner suffered from organic neurocognitive
deficits complicated by psychological issues, it is at least plausible that Petitioner’s workrelated mental functioning in 2001 was more limited than Kaufman’s opinion might
otherwise suggest.
It is the ALJ’s responsibility to resolve conflicting medical evidence, which
necessarily entails an analysis of whether the medical evidence conflicts on issues
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material to the disability claim. Morgan v. Commissioner, 169 F.3d 595, 603 (9th 1999).
In this case, the ALJ’s conclusions about Petitioner’s work-related mental function relied
heavily on testimony from a non-examining psychological expert, Dr. Farnsworth.
Although a non-examining medical expert’s opinion may assist the ALJ in resolving
conflicting medical evidence, the ALJ cannot discount an examining physician’s
uncontradicted opinion in favor of a non-examining expert’s opinion without providing
“clear and convincing reasons” supported by substantial evidence. Lester, 81 F.3d at 830.
And, even if the examining physician’s opinion is contradicted, the opinion may be
rejected only for “specific and legitimate reasons that are supported by substantial
evidence in the record.” Id. at 830–31; see also Pitzer v. Sullivan, 908 F.2d 502, 506 n.4
(9th Cir.1990) (A non-examining physician’s “conclusion, with nothing more, does not
constitute substantial evidence, particularly in view of the conflicting observations,
opinions, and conclusions of an examining physician.”). Because Beaver’s
neuropsychological evaluation is probative of Petitioner’s mental function during the
relevant period, the ALJ should have weighed the evaluation against the other medical
evidence of record and explained the reasons for the weight assigned. The ALJ’s failure
to do so is reversible legal error that must be corrected on remand.

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ORDER
NOW THEREFORE IT IS HEREBY ORDERED:
1)

Petitioner Rhonda Kevan’s Petition for Review (Dkt. 1) is

GRANTED.
2)

This action is REMANDED to the Commissioner for further

proceedings consistent with this opinion.
3)

This remand is a “sentence four remand,” consistent with 42 U.S.C.

§ 405(g) and Akopyan v. Barnhart, 296 F.3d 852, 854 (9th Cir. 2002).

April 27, 2015

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