Meile v. Colvin

Filing 27

IT IS ORDERED THAT the Commissioner's decision is reversed, and this matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion. Signed by Magistrate Judge Jeremiah C. Lynch on 3/13/2017. (APP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
KELLY N. MEILE,

CV 15-170-M-JCL
Plaintiff,
ORDER

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

Plaintiff Kelly Meile this action under 42 U.S.C. § 405(g) seeking judicial
review of the decision of the Commissioner of Social Security denying her
application for disability insurance benefits and supplemental security income
under Titles II and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401-33,
1381-1383f.
I.

Procedural Background
Meile protectively filed her disability applications in April 2012, alleging

disability since July 15, 2010, due to diabetes, nausea, low weight, high blood

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pressure, high cholesterol, and diabetic neuropathy. (AR 211). Meile’s
application was denied initially and on reconsideration, and she appeared with
counsel at her administrative hearing in December 2013. (AR 36-145). On April
7, 2014, an ALJ issued a decision finding Meile not disabled within the meaning
of the Act. (AR 19-30). The Appeals Council denied Meile’s request for review,
making the ALJ’s decision the agency’s final decision for purposes of judicial
review. (AR 8-13). Jurisdiction vests with this Court pursuant to 42 U.S.C. §
405(g).
Meile was 28 years old at the time of her alleged onset date, and 32 years
old at the time of the ALJ’s decision.
II.

Standard of Review
This Court’s review is limited. The Court may set aside the Commissioner’s

decision only where the decision is not supported by substantial evidence or where
the decision is based on legal error. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1
(9th Cir. 2005); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).
“The ALJ is responsible for determining credibility, resolving conflicts in
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medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). This Court must uphold the Commissioner’s findings
“if supported by inferences reasonably drawn from the record.” Batson v.
Commissioner of Social Security Administration, 359 F.3d 1190, 1193 (9th Cir.
2004). “[I]f evidence exists to support more than one rational interpretation,” the
Court “must defer to the Commissioner’s decision.” Batson, 359 F.3d at 1193
(citing Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir. 1999). This Court
“may not substitute its judgment for that of the Commissioner.” Widmark, 454
F.3d at 1070 (quoting Edlund, 253 F.3d at 1156).
III.

Burden of Proof
To establish disability, a claimant bears “the burden of proving an ‘inability

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.’” Batson, 359 F.3d at
1193-94 (quoting 42 U.S.C. § 423(d)(1)(A)).
In determining whether a claimant is disabled, the Commissioner follows a
five-step sequential evaluation process. 20 C.F.R. § 404.1520. The claimant bears
the burden of establishing disability at steps one through four of this process.
Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
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At the first step, the ALJ

will consider whether the claimant is engaged in “substantial gainful activity.” 20
C.F.R. § 404.1520(a)(4)(I). If not, the ALJ must determine at step two whether the
claimant has any impairments that qualify as “severe” under the regulations. 20
C.F.R. § 404.1520(a)(4)(ii). If the ALJ finds that the claimant does have one or
more severe impairments, the ALJ will compare those impairments to the
impairments listed in the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the ALJ
finds at step three that the claimant has an impairment that meets or equals a listed
impairment, then the claimant is considered disabled. 20 C.F.R. §
404.1520(a)(iii). If, however, the claimant’s impairments do not meet or equal the
severity of any impairment described in the Listing of Impairments, then the ALJ
must proceed to step four and consider whether the claimant retains the residual
functional capacity (RFC) to perform his or her past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant establishes an inability to engage in past work,
the burden shifts to the Commissioner at step five to establish that the claimant
can perform other work in the national economy. 20 C.F.R. § 404.1520(a)(4)(v).
III.

Discussion
The ALJ found at step one that Meile met the insured status requirements of

the Act through June 30, 2013, and had not engaged in substantial gainful activity
since the time of her application in October 2010. (AR 22). At step two, the ALJ
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found that Meile’s diabetes mellitus, carpal tunnel syndrome, and gastroparesis
were severe impairments. (AR 22). The ALJ determined at step three that Meile
did not have an impairment or combination of impairments that met or medically
equaled any impairment described in the Listing of Impairments. (AR 22). The
ALJ then found Meile’s subjective testimony only partially credible, and
determined that she had the residual functional capacity to perform a reduced
range of sedentary work. (AR 24). At step four, the ALJ found that Meile was not
disabled because she was capable of performing past relevant work as a cashier
and telemarketer. (AR 28). Alternatively, the ALJ concluded at step five that
Meile was not disabled because she could perform the representative jobs of
charge account clerk and document scanner. (AR 29).
A.

Listed Impairments

Meile argues the ALJ erred because he used an outdated listing when
determining whether her impairments were of listing-level severity. The ALJ
considered whether Meile’s condition met or medically equaled the criteria for
diabetes mellitus as set forth in Listing 9.08. To establish disability under Listing
9.08, a claimant would have to show that she had been diagnosed with diabetes
mellitus and suffered from neuropathy, episodes of acidosis at least every two
months, or visual impairment. 20 C.F.R. Pt. 404, Subpt. P, App 1, § 9.08 (2010).
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Effective June 7, 2011, however, the Social Security Administration deleted
Listing 9.08 and replaced it with Listing 9.00. See Revised Medical Criteria for
Evaluating Endocrine Disorders, 76 Fed. Reg. 19,692 (Apr. 8. 2011). Under
Listing 9.00, a claimant with an endocrine disorder like diabetes mellitus must
show that her endocrine disorder has caused her to meet or equal the criteria of a
listing for another body system. See 20 C.F.R. Pt. 404, Subpt. P, App 1, §
9.00(B)(5). For example, a claimant with diabetes that results in neuropathy may
satisfy Listing 9.00 by showing that her neuropathy meets or equals the criteria of
Listing 11.14 for peripheral neuropathies. See Listing 9.00B(5)(a)(ii).
New listings apply “to new applications filed on or after the effective date
of the final rules and to claims that are pending on and after the effective date.”
Revised Medical Criteria for Evaluating Endocrine Disorders, 76 Fed. Reg. 19,692
(Apr. 8, 2011). Because Listing 9.00 went into effect in June 2011 and Meile
protectively filed her applications for benefits in April 2012, the ALJ should have
assessed Meile’s diabetes mellitus under Listing 9.00 instead of Listing 9.08.
The Commissioner argues that even if the ALJ applied the wrong listing,
any error was harmless because Meile has not pointed to evidence showing that
she meets or equals the criteria of Listing 9.00. “An error is harmless only if it is
inconsequential to the ultimate nondisability determination, or if despite the legal
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error, the agency’s path may reasonably be discerned.” Brown-Hunter v. Colvin,
806 F.3d 487, 494 (9th Cir. 2015). The court “cannot substitute [its] conclusions
for the ALJ’s, or speculate as to the grounds for the ALJ’s conclusions.” BrownHunter, 806 F.3d at 495. The ALJ in this case erred by considering an outdated
listing and applying the wrong legal standard. It is not for this Court to apply the
correct legal standard in the first instance and make its own determination as to
whether Meile meets the requirements of Listing 9.00. Because the ALJ applied
the wrong legal standard, the Court cannot say the ALJ’s error was
inconsequential and reversal is thus warranted. See e.g. Christiansen v. Colvin,
2015 WL 875427 * 3-4 (N.D. Ala. March 2, 2015) (reversing where ALJ applied
Listing 9.08 to a claim filed after Listing 9.00 went into effect).
B.

Medical Opinions

Meile contends the ALJ also erred because he did not provide specific and
legitimate reasons for rejecting opinions provided by treating physician Dr. Terry
Smith and examining physician Dr. Heather Maddox.1
1.

Dr. Terry Smith

1

To reject the controverted opinion of a treating or examining physician, the
ALJ must provide "specific and legitimate reasons that are supported by substantial
evidence in the record." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
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Dr. Terry Smith is a general practitioner who saw Meile several times in
2012 and 2013. (AR 376-81, 511-19). In December 2013, Dr. Smith completed a
medical source statement form setting forth Meile’s functional limitations. He
identified lifting and carrying limitations consistent with sedentary work, but
wrote that Meile usually had to lie down for two hours twice during the day. He
also identified manipulative limitations due to decreased sensation and grip
strength in Meile’s hands, and indicated that she could never perform handling,
fingering, or feeling activities. (AR 522).
The ALJ gave Dr. Smith’s opinion partial weight. He adopted the lifting
and carrying limitations Dr. Smith identified, but found that Meile had “not lost all
ability to use her hands for handling and fingering.” He found that Dr. Smith’s
opinion that Meile could never handle, finger, or feel was not consistent with her
activities of daily living or the objective findings of consultative examiner Dr.
Heather Maddox. As the ALJ noted elsewhere in his decision, Dr. Maddox
observed that Meile’s grip strength, finger adduction and finger abduction were all
normal bilaterally, her fine manual motor dexterity was intact, and her joints
showed no signs of tenderness, effusion, swelling, redness, or increased warmth.
(AR 23, 571-77). This was a sufficiently specific and legitimate basis for
discounting Dr. Smith’s opinion could never perform handling, fingering, or
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feeling. Notably, however, the ALJ did not provide any reasons whatsoever for
also discounting Dr. Smith’s statement that Meile has to lie down for two hours at
a time twice a day. The ALJ simply stated that he “does not accept” such a
limitation.
While this Court might well be able to provide reasons of its own for
discounting Dr. Smith’s opinion, the Ninth Circuit has made clear that reviewing
courts are “constrained to review the reasons the ALJ asserts” and should not
engage in an independent analysis of the medical records. Connett v. Barnhart,
340 F.3d 871, 874 (9th Cir. 2003). It would be error for this Court to identify
reasons for rejecting these medical opinions that could have been provided by the
ALJ, but were not. See Stout v. Commissioner of Social Security, 454 F.3d 1050,
1054 (9th Cir. 2006). See also Pinto v. Massannari, 249 F.3d 840, 847 (9th Cir.
2001) (a reviewing court “cannot affirm the decision of an agency on a ground that
the agency did not invoke in making its decision”). The ALJ erred by not giving
any reasons for rejecting Dr. Smith’s opinion that Meile would have to lie down
for two hours at a time twice a day.
2.

Dr. Heather Maddox

Consultative examiner Dr. Heather Maddox saw Meile in February 2014
and completed a medical source statement form. (AR 571-84). Dr. Maddox
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indicated that Meile could perform a range of light to medium work subject to
certain limitations. Of particular note, she found that Meile had no difficulty
reaching but would be limited to occasional handling, fingering, and feeling due to
neuropathy. (AR 580).
The ALJ found that except for Meile’s ability to lift and carry, Dr.
Maddox’s opinion was “generally consistent with the objective results of her
examination,” (AR 27). Although the ALJ specifically stated that Dr. Maddox’s
opinion was consistent with the results of her physical examination, he did not
adopt the manipulative limitations set forth in that opinion. In particular, Dr.
Maddox limited Meile to only occasional handling, fingering, and feeling, but the
ALJ found without any explanation that Meile could frequently use her “upper
extremities bilaterally,” which by definition includes the use of her hands.2 (AR
24). The ALJ erred by failing to explain why he chose not to adopt Dr. Maddox’s
opinion with respect to Meile’s manipulative limitations. Because the vocational
expert testified that a claimant who was limited to only occasional handling,
fingering, and feeling would not be able to perform any of the jobs the ALJ found
Meile capable of performing, the ALJ’s error was not harmless.
2

The upper extremities include fingers, wrists, hands, arms, and shoulders. 20
C.F.R. Part 404, Subpart P, Appendix 1, Listing 11.00(D)(2)(c).

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C.

Remand

As set forth above, the ALJ erred because he applied the wrong legal
standard at step three and did not provide specific and legitimate reasons for
discounting opinions provided by Dr. Smith and Dr. Maddox. Remand is thus
warranted.
A remand for an immediate award of benefits is appropriate “only in rare
circumstances.” Brown-Hunter, 806 F.3d at 495. Before ordering such an
extreme remedy, three requirements must be met: (1) the court must conclude that
the ALJ “failed to provide legally sufficient reasons for rejecting evidence,
whether claimant testimony or medical opinion”; (2) the court must conclude that
“the record has been fully developed and further administrative proceedings would
serve no useful purpose;” and (3) the court must conclude that “if the improperly
discredited evidence were credited as true, the ALJ would be required to find the
claimant disabled on remand.” Brown-Hunter, 806 F.3d at 495 (citations omitted).
Even if all three requirements are satisfied, the court retains flexibility in
determining the appropriate remedy, and may remand “for further proceedings
when the record as a whole creates serious doubt as to whether the claimant is, in
fact, disabled with the meaning of the Social Security Act.” Brown-Hunter, 806

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F.3d at 495 (citation and internal quotation omitted).
The record here has not been fully developed, and remanding for further
administrative proceedings will serve the useful purpose of allowing the ALJ to
apply the correct legal standard as set forth in Listing 9.00. Remanding for
further proceedings will also give the ALJ the opportunity to reevaluate the
opinions provided Dr. Smith and Dr. Maddox. See e.g. Perry v. Astrue, 2009 WL
435123 (S.D. Cal. 2009) (remanding for further proceedings where the ALJ failed
to cite sufficient reasons for rejecting the treating physician’s opinion); Salvador
v. Sullivan, 917 F.2d 13, 15 (9th Cir. 1990) (in the exercise of its discretion, the
Ninth Circuit remanded for further proceeding “because there may be evidence in
the record to which the ALJ can point to provide the requisite specific and
legitimate reasons for disregarding [the treating physician’s] opinion.”). Under the
circumstances, remand for further for further administrative proceedings rather
than for an immediate award of benefits is the appropriate remedy.3
IV.

Conclusion
For the reasons set forth above,

3

Having so concluded, the Court need not consider Meile’s remaining
arguments regarding the ALJ’s credibility determination and the alleged violation of
her due process rights.

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IT IS ORDERED THAT the Commissioner’s decision is reversed, and this
matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with this opinion.
DATED this 13th day of March, 2017

Jeremiah C. Lynch
United States Magistrate Judge

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