Mergenthaler v. Berryhill

Filing 14

ORDER that the Commissioners decision is reversed and this matter is remanded pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings. Signed by Magistrate Judge Jeremiah C. Lynch on 11/9/2017. (APP)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION
GREGORY J. MERGENTHALER ,

CV 17–29–M–JCL

Plaintiff,
ORDER

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

Plaintiff Gregory Mergenthaler brings this action under 42 U.S.C. § 405(g)
seeking judicial review of the decision of the Commissioner of Social Security
denying his application for disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-433. Mergenthaler alleges disability since May 7,
2009. Mergenthaler’s claim was denied initially and on reconsideration, and he
requested an administrative hearing. On December 23, 2015, the Administrative
Law Judge (ALJ) issued a decision finding Mergenthaler not disabled within the
meaning of the Act. The Appeals Council denied Mergenthaler’s request for
review, making the ALJ’s decision the agency’s final decision for purposes of
judicial review. Jurisdiction vests with this Court pursuant to 42 U.S.C. § 405(g).
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Mergenthaler was 44 years old at the time of his alleged onset date, and 50
years old at the time of the ALJ’s decision.
I.

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
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
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F.3d at 1070 (quoting Edlund, 253 F.3d at 1156).
II.

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). 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. §
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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 Mergenthaler last met the insured status

requirements of the Act on September 30, 2011, and had not engaged in
substantial gainful activity since his alleged onset date. At step two, the ALJ
found that Mergenthaler had the following severe impairments: tachycardia with
syncope, depression, and post traumatic stress disorder (“PTSD”). The ALJ
concluded at step three that Mergenthaler did not have an impairment or
combination of impairments that met or medically equaled any impairment
described in the Listing of Impairments. The ALJ also found that while
Mergenthaler’s impairments could reasonably be expected to cause the alleged
symptoms, his statements regarding the severity of those symptoms were not
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entirely credible. The ALJ concluded that Mergenthaler had the residual
functional capacity to perform a reduced range of medium work. Based on that
residual functional capacity assessment, the ALJ found at step four that
Mergenthaler could perform past relevant work as a bulk fuel dispatcher.
Alternatively, the ALJ found at step five that Mergenthaler was not disabled
because there were a significant number of jobs in the national economy that he
was capable of performing, including light work as a general office clerk or
shipping order clerk, and medium work as a hand packager. (Doc. 6, at 23-35).
A.

Medical Opinions

Mergenthaler first contends the ALJ erred by not giving more weight to the
opinion of his treating psychologist, Dr. Julie Hergenrather. The weight given a
treating physician’s opinion depends on whether it is supported by sufficient
medical data and is consistent with other evidence in the record. 20 C.F.R. §
404.1527(d)(2). An ALJ may reject the uncontradicted opinion of a treating
physician only for clear and convincing reasons. Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1995). To discount the controverted opinion of a treating physician,
the ALJ must provide specific and legitimate reasons supported by substantial
evidence in the record." Lester, 81 F.3d at 830.
Dr. Hergenrather was Mergenthaler’s treating psychologist from September
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2006 through October 2010. (Doc. 6, at 811-859). In September 2009, Dr.
Hergenrather completed a Physician Statement for Work Site Accommodation
form. (Doc. 6, at 956-58). At that time, Mergenthaler was working as a custodian
at the University of Montana and had requested that reasonable accommodations
for his PTSD be implemented in order for him to perform the essential functions of
his job. Mergenthaler’s employer expected him to “build and maintain a work
atmosphere of trust and respect by establishing open communication with coworkers,” refrain from outbursts, “take steps to prevent destructive conflict and
handle conflict in an appropriate manner,” and not spy or eavesdrop on his coworkers. Dr. Hergenrather wrote that Mergenthaler would not be able to comply
with those work expectations at that time because of the symptoms associated with
his PTSD. Dr. Hergenrather indicated there were no accommodations for
Mergenthaler’s PTSD that would effectively enable him to perform his job duties
at that time, and wrote that he had a full medical restriction from work duties for
one year – from September 2009 to September 2010 – to undergo treatment for his
PTSD. Dr. Hergenrather explained that Mergenthaler was engaging in weekly
cognitive behavior therapy for his PTSD and anticipated that his condition would
improve over time. (Doc. 6, at 956-59).
The ALJ gave Dr. Hergenrather’s opinion little weight for two reasons.
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First, the ALJ found Dr. Hergenrather’s opinion was “inconsistent with the record
which shows that [Mergenthaler] did not begin therapy for his PTSD until late
2009, and that he quickly reported improvement in his symptoms with medications
and treatment.” (Doc. 6, at 33). This is not an accurate statement. The ALJ
overlooked the fact that Dr. Hergenrather diagnosed Mergenthaler with PTSD in
September 2006, and treated him with cognitive behavior therapy at various
intervals until October 2010.
Dr. Hergenrather saw Mergenthaler a handful of times in 2009 before
referring him to Dr. Willoughby for additional psychiatric treatment in December
of that year. (Doc. 6, at 817-24). The fact that Dr. Willoughby did not begin
treating Mergenthaler until December 2009 may be what the ALJ was referring to
when he said that Mergenthaler did not begin therapy for his PTSD until late 2009.
But in making that statement, the ALJ failed to discuss records reflecting that Dr.
Hergenrather had been treating Mergenthaler for PTSD since September 2006.
Thus, the ALJ’s statement that Mergenthaler did not begin therapy for his PTSD
until late 2009 was not a specific and legitimate reason for discounting Dr.
Hergenrather’s opinion.
Second, the ALJ gave Dr. Hergenrather’s opinion little weight because she
did not support it with any “specific examples.” (Doc. 6, at 33). An ALJ need not
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accept a medical opinion that is brief, conclusory, and inadequately supported by
clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). While
some of Dr. Hergrenrather’s opinion is made up of check mark conclusions and
brief responses to the questions set forth on the form, she also attached a
description of the functions she believed Mergenthaler was unable to perform. For
the ALJ to simply discount Dr Hergenrather’s opinion because she did not provide
any more “specific examples” from her treatment notes is not, by itself, a specific
and legitimate reason for discounting her assessment as to the severity of
Mergenthaler’s PTSD.
B.

Other Medical Source Evidence

Mergenthaler next argues the ALJ did not give sufficient weight to the
opinion of his therapist, Greg Shanks, who saw him roughly once every week or
two from February 2010 through his date last insured of September 30, 2011.
(Doc. 6, at 323-476; 995-1002;). In October 2015, Shanks wrote a letter
addressing Mergenthaler’s symptoms and limitations both at the time of the
letter’s writing and during the relevant period prior to September 2011. (Doc. 6, at
995). Shanks explained that he had been Mergenthaler’s treating mental health
clinician since October 14, 2010, and had provided more than 180 hours of
therapy from that time until the time of the letter’s writing in October 2015.
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Shanks provided a detailed assessment of Mergenthaler’s functioning prior to
September 2011, and concluded that his mental health difficulties would have
prevented him from maintaining full-time employment, even of a low stress and
routine nature, without any special employer accommodations on a consistent and
reliable basis.” (Doc. 6, at 999).
As a counselor, Shanks is considered an “other medical source” rather than
an “acceptable medical source.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012); 20 C.F.R. § 404.1513(a), (d). An ALJ may disregard evidence provided by
other medical sources if the ALJ gives germane reasons for doing so. Turner v.
Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010); Lewis v. Apfel, 236 F.3d
503, 512 (9th Cir. 2001).
Here, the ALJ did not even mention Shanks’ opinion, much less provide any
reasons for rejecting it. Although the ALJ summarized Shanks’ treatment records,
he did not consider the October 2015 letter. This was error. Because Shanks’
October 2015 letter referred to his treatment notes and addressed Mergenthaler’s
mental impairments and resulting limitations in clinical terms, it was not simply
duplicative of Mergenthaler’s testimony. Thus, the ALJ’s failure to provide

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germane reasons for rejecting Shanks’ opinion cannot be considered harmless.1
See Molina v. Astrue, 674 F.3d 1104, 1122 (holding that failure to provide
germane reasons for rejecting lay testimony may be harmless error if the ALJ
provides clear and convincing reasons for rejecting the claimant’s symptom
testimony and the lay witness has not described limitations beyond those alleged
by the claimant).
C.

Remaining Issues

Mergenthaler argues the ALJ did not provide sufficiently clear and
convincing reasons for discounting his subjective symptom testimony. Because
this matter must be remanded for the reasons set forth above, the Court does not
address this argument. See Pola v. Colvin, 2013 WL 4525429 * 3 n. 2 (E.D.
Wash. Aug. 27, 2013).
Mergenthaler challenges the ALJ’s step four finding that he could perform
past relevant work as a bulk fuel dispatcher. While the Court need not address this
argument either, it will do so in part to provide guidance on remand.
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Mergenthaler also argues the ALJ erred by not addressing a letter of
suspension written by his former employer in May 2009. (Doc. 9, at 16). But this
letter simply sets forth Mergenthaler’s infractions and his employer’s expectations.
(Doc. 6, at 269). As such, it was not significant probative evidence that the ALJ
was required to discuss. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,
1012 (9th Cir. 2003) (an ALJ need only discuss evidence that is significant and
probative).
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Mergenthaler claims the ALJ mistakenly found that he worked as a bulk
fuel dispatcher from March 2002 to June 2007, when in fact he had only
performed the job from March 2007 to June 2007. Because he had only worked as
a bulk fuel dispatcher for a few months, Mergenthaler maintains the position does
not qualify as “past relevant work.”
Mergenthaler is correct. His work history report shows that he worked as
bulk fuel dispatcher for approximately four months – from March 2002 through
June 2002. (Doc. 6, at 222). As generally performed, the specific vocational
preparation (SVP) for the bulk fuel dispatcher position is 7, which means that it is
skilled work and corresponds to two to four years of preparation. DOT § 222.387018, Appx. C. (Doc. 6, at 103). The Commissioner concedes that Mergenthaler
did not perform this position for a sufficient duration to have learned how to do
the job. (Doc. 12, at 14). The ALJ thus erred at step four by finding that
Mergenthaler could perform past relevant work as a fuel dispatcher.
The ALJ made alternative findings at step five that Mergenthaler could
perform other jobs that exist in significant numbers in the national economy. The
ALJ found based on the vocational expert’s testimony that Mergenthaler could
perform the representative jobs of general office clerk (light, semi-skilled SVP 3,
DOT § 209.562-010); shipping order clerk (light, semi-skilled SVP 4, DOT §
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219.3367-030); or hand packager (medium, unskilled SVP 2, DOT § 920.587018). Mergenthaler argues the ALJ erroneously premised his step five findings
on the vocational expert’s testimony that Mergenthaler was capable of performing
these representative jobs because he had acquired transferable office skills from
his past relevant work as a bulk fuel dispatcher.
The vocational expert testified that considering “the transferable skills
[Mergenthaler acquired] from the dispatching work that he’s done,” Mergenthaler
could perform the jobs of general office clerk and shipping order clerk. As set
forth above, however, Mergenthaler had not performed the dispatching job long
enough to acquire those skills. Because the vocational expert’s testimony was
premised on the assumption that Mergenthaler had acquired transferable office
skills from the dispatching job, the ALJ erred in relying on that testimony to find
that Mergenthaler could work as a general office clerk or shipping order clerk.
The ALJ further found based on the vocational expert’s testimony that
Mergenthaler could perform the representative job of hand packager (medium,
unskilled SVP 2, DOT § 920.587-018). The vocational expert did not consider
transferable skills in testifying that a person with Mergenthaler’s residual
functional capacity would be able to do unskilled work as a hand packager. After
eroding the job numbers based on Mergenthaler’s limitations, the vocational
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expert testified that 175,000 hand packer jobs existed nationally. This single
finding may have been enough to support the ALJ’s step five conclusion that there
were a significant number of jobs in the national economy that he could perform.
See Gutierrez v. Commissoner of Soc. Sec., 740 F.3d 519, 528 (9th Cir. 2014)
(25,000 national jobs meets the statutory standard); Moncada v. Chater, 60 F.3d
521, 524 (9th Cir. 1995) (64,000 nationwide jobs significant); Moore v. Apfel, 216
F.3d 864, 869 (9th Cir. 2000) (125,000 nationwide jobs significant). But because
this matter must remanded to allow for proper consideration of the opinion
evidence described above, the ALJ should elicit additional vocational expert
testimony for purposes of step four and step five.
D.

Remand

Mergenthaler asserts that this matter should be remanded for immediate
payment of benefits rather than further proceedings. The proper course in most
cases is to remand for further proceedings. Remand for an award of benefits is
appropriate only in “rare circumstances,” when certain conditions are met.
Treichler v. Comm’r of Soc. Sec. Admin, 775 F.3d 1090, 1101-02 (9th Cir. 2014).
Remand for an award of benefits is appropriate only where (1) the ALJ has not
provided legally sufficient reasons for rejecting evidence, such as the claimant’s
testimony or a medical opinion; and (2) the record has been fully developed and
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there are no outstanding issues on which further administrative proceedings would
be useful. Leon v. Berryhill, 2017 WL 5150294 *2 (9th Cir. 2017).

If these two

conditions are satisfied, the court credits the discredited evidence “as true for the
purpose of determining whether, on the record taken as a whole, there is no doubt
as to disability.” Leon, 2017 WL 5150294 *2 (citing Treichler, 775 F.3d at 1101).
Even if the first two conditions are satisfied and the court credits the evidence as
true, “it is within the court’s discretion either to make a direct award of benefits or
to remand for further proceedings.” Leon, 2017 WL 5150294 *2. Remand for an
award of benefits is proper only if there is no serious doubt as to disability.
Here, the conditions of the credit-as-true rule are not met. Given the
conflicting medical evidence and the ALJ’s failure to properly address the opinion
evidence discussed above, the Court cannot conclude that further administrative
proceedings would serve no useful purpose. Pursuant to this remand, the ALJ
shall properly consider the opinions of Mergenthaler’s treating psychologist, shall
properly consider the other medical source evidence of record, and shall elicit
additional vocational expert testimony for purposes of step four and step five.
Even crediting the discredited evidence as true, remand for further proceedings
rather than award of benefits is the proper remedy because there is substantial
doubt based on the record as whole whether Mergenthaler is in fact disabled.
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Under the circumstances, remand for further administrative proceedings rather
than for an immediate award of benefits is the appropriate remedy.
IV.

Conclusion
For the reasons set forth above,
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 9th day of November, 2017

Jeremiah C. Lynch
United States Magistrate Judge

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