Neder v. Commissioner Social Security Administration
Filing
23
Opinion and Order: The Commissioner's decision is reversed and remanded for further administrative proceedings. Signed on 9/30/2015 by Magistrate Judge Thomas M. Coffin. (plb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MARIE C. NEDER,
Case No. 1:14-cv-00282-TC
OPINION AND ORDER
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
COFFIN, Magistrate Judge:
This
action is brought pursuant to
42
U.S. C.
§
4 05 (g)
to
obt.ain judicial review of the final decision of the Commissioner
denying plaintiff's application for Supplemental Security Income
(SSI)
set
and Disability Insurance Benefits
forth
below,
the
Commissioner's
(DIB).
decision
remanded fo'r further administrative proceedings.
1 - OPINION AND ORDER
For the reasons
is
reversed
and
Background
On June 12, 2009, plaintiff protectively filed applications
for
DIB and SSI,
158,
165-67.
alleging disability as of that date.
Both
claims
were
denied
Tr.
and
initially
20,
on
reconsideration, and plaintiff requested a hearing regarding her
DIB
application.
Plaintiff
subsequently
filed
another
SSI
application and alleged disability as of June 23, 2011. Tr. 178.
On December 29, 2011, plaintiff appeared unrepresented before an
Administrative
Law
allow
plaintiff
April
24,
Judge
to
2012,
(ALJ) ,
obtain
who
continued
representation.
plaintiff
appeared
the
hearing
to
21,
41-51.
On
Tr.
with
her
attorney
and
testified before the ALJ. Tr. 52-91. No other witness testified.
After
the
hearing,
the
ALJ
sought
further
evidence
and
referred plaintiff for a consultative neurological examination;
the ALJ also reopened plaintiff's prior SSI application. Tr.
21.
On September 14, 2012, the ALJ issued a written decision finding
plaintiff
not
disabled
because
she
could
relevant work as a chiropractic assistant.
then
sought
additional
considered
rendering
review
medical
the
the
from
the
evidence.
supplemental
ALJ's
decision
Appeals
perform
Tr.
20-34.
Council
and
past
Plaintiff
submitted
1-6.
The
Appeals
Council
evidence
but
denied
review,
Tr.
as
the
final
decision
Commissioner. Plaintiff now seeks judicial review.
2 - OPINION AND ORDER
her
of
the
Standard of Review
The court must affirm the Commissioner's decision if it is
based on proper legal
by
substantial
F. 2d
4 98,
than
a
501
mere
reasonable
standards
evidence
(9th
Cir.
scintilla.
mind
conclusion."
in
findings
record.
Hammock
the
198 9) .
It
Substantial
means
accept
might
Richardson
and the
v.
such
Perales,
relevant
402
U.S.
(citation and internal quotations omitted).
"both
the
evidence
[Commissioner's]
772
(9th
Cir.
insignificant
supports
that
and
conclusion." Martinez v.
1986).
if the
Burch v. Barnhart,
Variable
400 F.3d 676,
679
Bowen,
is
879
"more
evidence
as
support
to
389,
401
a
a
(1971)
The court must weigh
from
detracts
Heckler,
interpretations
Commissioner's
v.
supported
evidence
adequate
as
are
the
807 F.2d 771,
of
evidence
interpretation is
are
rational.
(9th Cir. 2005).
Commissioner's Decision
The
initial
establish
(9th
disability.
Cir.
198 6) .
demonstrate an
activity
burden
by
To
of
proof
Howard
meet
of
any
v.
Heckler,
this
"inability to
reason
rests
engage
upon
burden,
7 82
the
the
F. 2d
claimant
14 8 4,
148 6
claimant
must
in any substantial
medically
to
determinable
gainful
physical
or
mental impairment which can be expected ... to last for a continuous
period of not less than 12 months." 42 U.S. C. § 423 (d) (1) (A) .
The
Commissioner
3 - OPINION AND ORDER
has
establ.ished
a
five-step
sequential
process for determining whether a person is disabled.
Yuckert,
482
416.920.
At
engaged
U.S.
137,
step
in
140
one, ·the
"substantial
(1987);
ALJ
At
step
two,
the
impairments
of
chemotherapy
treatment
lower
and
However,
equal
a
the
Tr.
ALJ
24;
acknowledges
activity."
are
found
20
severe
Yuckert,
with
482
C.F.R.
U.S.
since
had
her
plaintiff
not
alleged
her
had
post
bilateral
upper
likely
secondary
404.1520(c),
§§
impairments
that
to
preclude
at
141;
severe
status
and
residual
impairments
as
404.1520,
§§
plaintiff
lymphoma
same
that
listed
so
that
neuropathy
found
"number of
that
activity"
"non-Hodgkins'
for
C.F.R.
404.1520(b), 416.920(b).
§§
ALJ
extremity
chemotherapy."
found
gainful
onset date. Tr. 24; 20 C.F.R.
20
Bowen v.
did
the
416.920(c).
not
meet
or
[Commissioner]
substantial
Tr.
to
26;
20
gainful
C.F.R.
§§
404.1520 (d)' 416.920 (d) .
The
ALJ
functional
work
then
determined
capacity
with
404.1520 (e),
certain
(RFC)
that
plaintiff
to perform a
restrictions.
416.920 (e).
Tr.
Specifically,
had
27;
the
residual
range
reduced
the
of light
20
ALJ
C.F.R.
found
§§
that
plaintiff "can lift and/or carry 20 pounds occasionally and 10
pounds
frequently,
cumulatively
in
an
can
stand
eight-hour
and
workday,
walk
and
for
can
four
sit
for
hours
four
hours in an eight-hour workday." Tr. 27. The ALJ also found that
4 - OPINION AND ORDER
"can
plaintiff
"frequently
pulling,
occasionally
perform
and
all
perform
handling,
other
fingering,
reaching
reaching,"
overhead
feeling,
activities."
Tr.
pushing,
2 7.
The
ALJ
also made additional RFC findings regarding plaintiff's ability
to work in certain environments. Tr. 27.
Based on this RFC finding,
plaintiff
was
chiropractic
Tr.
ALJ
32-33;
did
able
to
assistant
20 C.F.R.
not
perform
"as
it
her
was
to
step
past
relevant
work
as
actually performed by her."
404.1520(f),
§§
proceed
at step four the ALJ found that
five
416.920(f).
and
found
Therefore,
the
plaintiff
not
disabled under the Act.
Discussion
Plaintiff
plaintiff
alleges
argues
that
sufficient
reasons
physician,
Dr.
plaintiff's
Plaintiff
the
to
errors
ALJ
accept
Dossey,
treating
also
numerous
failed
the
while
that
the
to
opinion
rejecting
physicians,
argues
by
Drs.
the
ALJ.
provide
of
an
legally
examining
opinions
the
of
and
Kohler.
medical
evidence
Moline
supplemental
First,
submitted to the Appeals Council undermines the ALJ's assessment
of the medical evidence.
Second,
improperly
rejected
her
neuropathy,
fatigue,
and pain.
ALJ
improperly
rejected
5 - OPINION AND ORDER
plaintiff argues that the ALJ
subjective
the
Third,
lay
complaints
regarding
her
plaintiff argues that the
opinion
of
her
friend,
Mr.
Tedrow.
Fourth,
plaintiff argues that the ALJ erred by failing
to elicit vocational expert
(VE)
testimony regarding her ability
to perform her past work at step four.
at
step
four
and
that
remand
I find that the ALJ erred
for
further
administrative.
proceedings is required.
Plaintiff argues the ALJ was
required to obtain testimony
from a vocational expert to determine whether plaintiff's nonexertional
presumably neuropathic
limitations
symptoms,
pain
and fatigue - affected her ability to perform her past relevant
work.
Defendant
responds
that
plaintiff
bears
the
burden
of
establishing the inability to perform past relevant work at step
four,
and that vocational
determine
whether
expert
plaintiff
was
testimony is
able
not
required to
to
perform
her
Ninth
Circuit
does
past
relevant work as it was actually performed.
Defendant
is
correct
that
the
not
require VE testimony at step four in all instances. See Matthews
v.
Shalala,
10
F.3d
678,
681
(9th
Cir.
1993)
(if
plaintiff
cannot show the inability to perform past relevant work at step
four,
a vocational expert's testimony,
required . 11 )
;
see a 1 so 2 0 C . F . R .
§§
though "useful,
4 0 4 . 15 6 0 (b ) ( 2 ) ,
[is]
not
4 1 6 . 9 6 0 (b ) ( 2 )
("We may use ... vocational experts ... to obtain evidence we need to
help us
given
determine whether you can do
your
residual
6 - OPINION AND ORDER
functional
your past
capacity.
11
)
relevant work,
Defendant
is
also
correct
that
plaintiff bears
through step four.
the
Nonetheless,
burden of proving disability
"[a]lthough the burden of proof
lies with the claimant at step four,
the ALJ still has a duty to
make the requisite factual findings to support his conclusion."
Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001).
To do so,
the ALJ must make "specific findings
as to the
claimant's residual functional capacity, the physical and mental
demands
of
residual
the
past
relevant
functional
capacity
(citing SSR 82-62) .
perform
past
perform" ·the
to
work,
"actual
relevant
job,"
the
past
relation
work."
of
at
Id.
the
845
finding that a plaintiff can
the
functional
and
the
To support a
relevant
particular past
work,
plaintiff
demands
or
the
"must
and
be
job
able
duties
"functional
to
of
demands
a
and
job duties of the occupation as generally required by employers
throughout
other
the
national economy."
the
words,
ALJ
must
Id.
make
(citing
specific
SSR
82-61).
findings
In
that
a
plaintiff can perform her past relevant work as it is "actually"
performed or as it is "generally" performed.
The
relevant
finding
ALJ
found
that
work
as
is
that
it
plaintiff
plaintiff
actually
Tr.
the
Occupational
of
7 - OPINION AND ORDER
33-34.
perform
performed;
could perform her
generally performed.
Dictionary
could
Indeed,
Titles
the
past
her
ALJ
work
past
made
as
it
no
is
the ALJ did not consult
or
obtain
vocational
expert
testimony
regarding this
2010 WL 5348737,
at *2
(C. D.
issue.
Cal.
See
21,
Dec.
Yarri to
2010)
v.
As true,
("Information
from the DOT, or the testimony of a vocational specialist,
may
be used to ascertain the demands of an occupation as ordinarily
required by employers throughout the national economy at steps
four
and
five
Therefore,
the
regarding
of
the
ALJ
the
was
manner
sequential
required
in
which
evaluation
to
make
procedure.").
sufficient
plaintiff's
past
findings
work
as
a
chiropractic assistant was actually performed.
"Social
information
relevant
Security
that
work
may
as
vocational report,
SSR 82-41." Pinto,
her
Significantly,
report
her
sit
for
a
to
ALJ
a
define
a
sources
two
a
claimant's
properly
8 4 5.
Here,
report
and her
chiropractic
admitted
of
past
completed
that
the ALJ purportedly
own testimony
assistant.
plaintiff's
"her chiropractic assistant
total
of
and the claimant's own testimony,
vocational
as
name
performed:
2 4 9 F. 3d at
duties
the
used
SSR 82-61,
indicated that
to
be
actually
relied on plaintiff's
regarding
Regulations
Tr.
33.
vocational
job required
seven hours ... and perform fine
and
gross manipulation activities for a total of eight hours... each
day...
which
at
first
blush,
arguably
appears
to
exceed
limitations described" in the ALJ's RFC assessment. Tr.
95.
Thus,
as admitted by the ALJ,
8 - OPINION AND 'ORDER
the
33, 194-
plaintiff's vocational report
establishes that plaintiff would be unable
to perform her past
relevant
as
work
as
a
chiropractic
assistant
it
was
actually
performed.
However,
hours
she
the ALJ found that plaintiff's description of the
spent
"performing
inaccurate" because
per day.
various
Tr.
job
33.
various
activities"
she worked at the
job for
was
"patently
only eight hours
The ALJ did not explain why her description of
duties
and
the
amount
of
rendered her description inaccurate.
time
she
performed
Regardless,
them
given the ALJ's
rejection of plaintiff's vocational report,
the ALJ was
limited
to
information
used to
plaintiff's
define
the
testimony
duties
as
the
of plaintiff's
source
past
of
work as
it
was
actually
performed.
Plaintiff's
testimony
duties of her job as a
testified that,
patient
utilized
not
sufficiently
chiropractic assistant.
or two ultrasound treatments;
progress
computer
skills
notes,
to
and
things
perform her
Tr.
of
required
no more
than
four
hours
of
walking and no more than four hours of sitting,
9 - OPINION AND ORDER
"records,
that
and
kind";
sometimes
63-64.
did not clarify whether plaintiff's past work as a
assistant
the
office work,
kept
duties;
lifted objects weighing up to three pounds.
define
Plaintiff simply
in addition to performing general
she performed one
files,
did
The ALJ
chiropractic
standing
and/or
as set forth in
the
ALJ' s
whether
RFC
assessment.
plaintiff's
handling
or
past
manipulating;
plaintiff's
limitations
working
a
on
Similarly,
work
a
and
computer
the
required
more
significant
the
and
ALJ did
than
omission
accepted
clarify
''frequent"
light
of
requirements
job
maintaining
not
of
files
in
and
progress
notes.
In sum,
the ALJ failed to "make specific findings
record at each phase of the step four
analysis
[to]
on the
provide []
for meaningful judicial review," Pinto, 2 4 9 F. 3d at 8 4 7 (quoting
Winfrey
v.
Chater,
Consequently,
92
the ALJ' s
F.3d
1017,
1025
(9th
Cir.
1996)) .
finding that plaintiff can perform her
past relevant work as a chiropractic assistant is not supported
by substantial evidence
the
ALJ
did
not
elicit
regarding
the
generally
performed.
cannot
be
duties
upheld,
in the
of
record.
testimony
a
As
from
a
chiropractic
Therefore,
regardless
the
of
noted by plaintiff,
vocational
assistant
ALJ's
step
plaintiff's
as
four
expert
it
is
finding
non-exertional
limitations.
Due to the error at step four,
outstanding issues preclude
the determination of disability and require remand for
proceedings.
2000).
error
Harman
v.
Apfel,
211
F.3d
1172,
1178
further
(9th
Cir.
I further find that plaintiff's additional assignments of
raise
outstanding
10 - OPINION AND ORDER
issues,
particularly
in
light
of
the
supplemental evidence submitted to the Appeals Council.
Plaintiff
medical
argues
opinions
Specifically,
accepted
were
by
not
of
the
ALJ,
ALJ
argues
improperly
and
that
assessed
treating
Dr.
Dossey's
opinion,
internal
inconsistencies
the
In
2012,
ALJ.
June
the
physicians.
contained
by
Dr.
that
Dossey,
examined plaintiff at the request of the ALJ.
Dossey conducted a
clinical testing.
plaintiff's
the
examining
plaintiff
resolved
neurologist,
that
sixty-minute examination that
Tr.
728-33.
"[m]aximum
Ultimately,
standing
and
Dr.
a
Dr.
included some
Dossey found that
walking
capacity
is
two
hours in an eight-hour workday," and that her "[m]aximum sitting
capacity
However,
is
four
hours
in
an
eight-hour
workday."
in an accompanying assessment sheet,
Tr.
732.
Dr. Dossey checked
boxes indicating that plaintiff had the ability to sit for four
hours,
stand for
interruption.
Tr.
four
hours,
7 35.
Dr.
could
stand
interrogatories
and
walk
requestinq
for
four
hours
without
Dossey also checked boxes indicating
that plaintiff could sit for
and
and walk
four and six hours in a workday,
for
two
hours.
additional
Id.
In
response
information,
Dr.
to
Dossey
stated that plaintiff could sit for a maximum of four hours and
that plaintiff's
condition would not
require additional breaks
in an eight-hour work day. Tr. 756.
The
ALJ
did
11 - OPINION AND ORDER
not
note
or
address
the
alleged
inconsistencies,
supported his
instead
RFC
finding
finding
that
Dr.
Dossey's
evaluation
that plaintiff could stand and walk
cumulatively for a four-hour period and that she could sit for a
four-hour
remand,
period
during
an
eight-hour
workday.
Tr.
28-30.
On
the ALJ shall consider and resolve the inconsistencies
identified
by
plaintiff
in
Dr.
Dossey's
evaluation
and
the
accompanying assessment sheet.
Plaintiff
submitted
to
also
the
argues
Appeals
statements
complaints,
Council
of plaintiff's
subjective
that
supplemental
the
supports
the
treating physicians,
and
detracts
from
the
evidence
opinions
as
and
well
as
her
findings
of
the
ALJ.
In 2009,
and walk,
has
had
symptoms
but
Dr. Moline opined that plaintiff could sit, stand,
she
weight
"cannot concentrate,
loss,
and
she
of chemotherapy... At
is
she
gets
fatigued,
experiencing
the present
time
many
she
and I
suspect will be permanently disabled." Tr.
2012,
Dr.
of
she
the
is
disabled
417.
In April
Kohler asserted that plaintiff could sit,
walk for six hours during an eight-hour work day.
stand and
Tr.
721.
Dr.
Kohler also found that plaintiff had impaired short term memory,
could
tasks.
not
Tr.
neuropathy
complete
720.
detailed,
Finally,
stemmed
from
12 - OPINION AND ORDER
Dr.
her
complicated
Kohler
tasks,
opined
chemotherapy
or
that
and
fast-paced
plaintiff's
would
likely
persist. Tr. 719. The ALJ generally gave "significant weight" to
their
opinions
regarding plaintiff's
physical
limitations,
but
only to the extent consi.stent with the ALJ' s RFC findings;
the
ALJ also rejected any finding of mental limitation. Tr. 29-30.
With
respect
to
her
subjective
complaints,
plaintiff
generally complained of continuing neuropathy in her extremities
and
feelings,' of
anxiety.
Tr.
7 2-7 6,
8 3-8 4.
Plaintiff
further
alleged that she could not walk for long without having pain and
swelling,
limited
could
in
her
not
sit
daily
for
more
activities
weakness in her arm and hand.
Tr.
than
a
few
due
to
74,
81-84.
hours,
was
numbness
ongoing
and
and
Notably,
plaintiff
was diagnosed with lymphoma and received chemotherapy and other
treatments,
resulting
in
documented
neuropathy
and
fatigue.
submitted by plaintiff
arguably
the
treating
E.g., Tr. 697-703, 719.
The
supports
supplemental
her
physicians.
allegations
In
particular,
practitioner reflect
of
suicide
repeated
evidence
the
2012
of
by
plaintiff,
swelling
in
tingling and numbness in her hands.
records from Dr.
findings
of
records
symptoms of depression,
expressed
complaints
and
as
her
from
a
nurse
including thoughts
well
her
ankles
Tr.
7 57-817.
as
and
plaintiff's
feet,
Further,
and
2012
Kohler indicate continued cognitive issues and
ongoing neuropathy. Tr.
13 - OPINION AND ORDER
818,
821.
In September 2012, neurologist
Dr.
Kevin
Sullivan
examined plaintiff
"essentially
areflexive
right."
820.
suffered
Tr.
from
sensory,
Dr.
except
Sullivan
for
a
electrodiagnostic
no
that
knee
that
she
was
on
the
jerk
plaintiff
likely
polyneuropathy,
primarily
changes
significant
studies.
trace
opined
"chemotherapy-induced
despite
and noted
seen
Medications
are
being
unlikely
to
alter
this feeling of altered sensation in her extremities." Tr.
Ultimately,
Dr.
Sullivan
stated
plaintiff's
that
on
82 0.
symptoms
"significantly impact her ability to return to computer work."
Tr. 820.
Finally, the December 2012 treatment record provided by
Dr.
Gleffe
Dan
weakness,
such
as
near
the
reflects
and tingling
typing,
end
plaintiff's
of
plaintiff's
in her hands
buttoning her
the
anxiety
day.
and
Tr.
complaints
numbness,
and difficulty with tasks
clothes,
822-24.
depression,
of
for
and using
Dr.
her
Gleffe
which
fingers
also
she
was
noted
taking
medication.
Accordingly,
the
on
remand the ALJ shall
supplemental
medical
evidence
review and consider
submitted
to
the
Appeals
Council, along with the other evidence of record, when assessing
plaintiff's physical and mental limitations and determining her
RFC.
Further, in light of the possible symptoms and diagnosis of
depression,
the
ALJ
shall
develop
the
record
with
plaintiff's alleged mental impairments and limitations.
14 - OPINION AND ORDER
regard
to
Finally,
medical
given
evidence
the ALJ' s
in
heavy
assessing
reliance
plaintiff's
on
the
objective
credibility
along
with the questionable findings that plaintiff's daily activities
and medical treatment contradict the severity of her complaints
the
ALJ
witness
shall
reassess
statement
including
the
in
plaintiff's
light
supplemental
of
the
evidence
credibility and
entire
medical
submitted
to
the
lay
evidence,
the
Appeals
Council.
Conclusion
The ALJ'S finding that plaintiff was not disabled under the
Act
is
not
supported
Accordingly,
the
REMANDED
further
for
by
substantial
Commissioner's
evidence
decision
administrative
is
proceedings
above.
IT IS SO ORDERED.
Dated this
j()
day of September, 2015.
United
15 - OPINION AND ORDER
agistrate Judge
in
the
record.
REVERSED
as
set
AND
forth
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