Broadbent v. Commissioner of Social Security Administration

Filing 26

OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 05/07/2013 by Judge Malcolm F. Marsh. (pvh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LEAH E. BROADBENT,
Plaintiff,

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
JEFFREY HUGH BAIRD
Dellert Baird Law Office, PLLP
4346 Southwest Willow Street
Seattle, Washington 98136
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
CHRISTOPHER J. BRACKETT
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administratio n
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, Washington 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER

2:12-cv-00770 -MA
OPINION AND ORDER

MARSH, Judge
Plaintiff, Leah E. Broadbent , brings this action for judicial
review of a final decision of the Commissio ner of Social Security
(the Commissio ner) denying her applicatio n for disability insurance
benefits (DIB) under Title II of the Social Security Act (the Act)
and supplemen tal security income (SSI) disability benefits under
See 42 U.S.C.

Title XVI of the Act.

§§

401-434, 1381-1383 f.

court has jurisdicti on pursuant to 42 U.S.C.
reasons

set

forth

below,

I

reverse

the

§

final

This

For the

405{g).

decision of the

Commissio ner, and remand for further proceeding s consisten t with
this opinion.
PROCEDURAL BACKGROUND

Plaintiff protectiv ely filed applicatio ns for DIB and SSI on
2008,

June 17,

alleging disability due to fibromyal gia,

"maybe

Asperger' s," migraines , three tumors in her right breast, plantar
Tr. 170.

Her applicatio ns were denied

initially and upon reconside ration.

A hearing was held before an

fasciitis, and depression .

Administr ative

Law

Judge

(ALJ)

on

October

8,

at

2010,

plaintiff was represente d by counsel and testified .

which

Vocationa l

Expert (VE) Nancy Bloom was also present throughou t the hearing and
testified .
On

October

25,

2010,

the

ALJ

issued

a

decision

plaintiff not disabled within the meaning of the Act.

2 - OPINION AND ORDER

finding

After the

Appeals Council declined review of the ALJ's decision,

plaintiff

timely filed a complaint in this court.
FACTUAL BACKGROUND

Born on June 1,

plaintiff was

1968,

years old on the

39

alleged onset date of disability and 42 years old on the date of
the hearing.

Plaintiff has a high school diploma with one year of

college, and has past relevant work as an administrativ e assistant,
medication aide, and office worker.
Plaintiff
September

30,

her

alleges

In

2007.

Tr. 57, 175.

disabilities

addition

to

disabling

became

testimony,

hearing

the

plaintiff submitted an Adult Function Report.

Tr.

on

As

200-08.

relevant to this case, Richard Wernick, M.D., evaluated plaintiff
in November of 2008 at the request of plaintiff's primary care
provider, and wrote an additional opinion on December 9, 2010 that
was submitted to the Appeals Council.

Tr. 287-91, 408-11.

Susan

Peeples, FNP, submitted a form regarding plaintiff's fibromyalgia
on May 18, 2010, and a second similar form to the Appeals Council
on February 14, 2011.

Tr. 358-62, 403-07.

THE ALJ'S DISABILITY ANALYSIS

The

Commissioner

has

established

a

five-step

process for determining whether a person is disabled.
Yuckert,

482

U.S.

404.1520(a) (4) (i)-(v),
potentially dispositive.
3 - OPINION AND ORDER

137,

140-42

(1987);

416.920 (a) (4) (i)- (v).

20
Each

sequential
Bowen v.
C.F.R.
step

§§

is

The claimant bears the burden of proof at

Steps One through Four.

The· burden shifts to the Commissio ner at Step Five to

Cir. 1999).
a

that

show

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th

number

significan t

of

jobs

exist

in

the

482 U.S. at

See Yuckert,

economy that the claimant can perform.

national

141-42; Tackett, 180 F.3d at 1098.
At Step One, the ALJ determined that plaintiff has not engaged
in

substanti al gainful

September 30, 2007.

activity

the

since

alleged onset

date,

See 20 C.F.R. §§ 404.1571 et seq., 416.971 et

seq.; Tr. 16.
At Step Two, the ALJ determined that plaintiff 's fibromyal gia,
depression , and obesity are severe impairmen ts.

See 20 C.F.R. §§

404.1520( c), 416.920(c ); Tr. 16-17.
At Step Three, the ALJ determined that plaintiff does not have
an impairmen t or combinatio n of impairmen ts that meet or medically
equal

listed

any

impairmen t.

20

See

404.1525, 404.1526, 416.920(d ), 416.925,
found

The ALJ
capacity

(RFC)

that

plaintiff

has

to perform light work,

C.F.R.

§§

404.1520( d),

416.926; Tr. 17-19.
the

residual

functiona l

except that plaintiff can

lift 10 pounds frequently , and 20 pounds occasiona lly; is limited
to frequent reaching above shoulder height; can sit for six hours
and stand and walk for three hours in an eight hour workday; must
be able to sit or stand at will; and is limited to no contact with
the public.

Tr. 19-23.

4 - OPINION AND ORDER

At

the ALJ found that plaintiff is

Step Four,

perform any

relevant

past

work.

C.F.R.

20

See

404.1565,

§§

that

to

unable

jobs

416.965; Tr. 23.
At

Step Five,

significant numbers

the ALJ found

however,

in the national economy that plaintiff can

including Small Products Assembler,

perform,

and Price Marker.

in

exist

See 20 C.F.R.

§§

Electronics Worker,

404.1569, 404.1569(a), 416.969,

416.969(a); Tr. 663-64.
Accordingly,

the ALJ found that plaintiff was not disabled

within the meaning of the Act.
ISSUES ON REVIEW

only one assignment

Plaintiff raises
Plaintiff
discuss

argues

the

that

second

the

erroneously

Commissioner

opinions

of

submitted to the Appeals Council.

Dr.

of error on appeal.

Wernick

and

to

failed

Ms.

Peeples

Accordingly, plaintiff argues

remand is necessary.
STANDARD OF REVIEW

The

court must

affirm the Commissioner's decision

if

the

Commissioner applied proper legal standards and the findings are
supported by substantial evidence in the record.
405(g); Andrews v. Shalala,

53 F.3d 1035,

42 U.S. C.

§

1039 (9th Cir. 1995).

"Substantial evidence means more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support
5 - OPINION AND ORDER

a~

conclusion."

Id.

The

whether

evidence,

the

of

all

court must weigh

Andrews,

decision must be upheld.

Commissioner 's

the

interpretatio n,

rational

one

than

or

If the evidence is susceptible

807 F.2d 771, 772 (9th Cir. 1986).
more

supports

Martinez v. Heckler,

detracts from the Commissioner 's decision.

to

it

If the

53 F.3d at 1039-40.

evidence supports the Commissioner 's conclusion, the Commissioner
must be affirmed; "the court may not substitute its judgment for
253 F.3d 1152,

Edlund v. Massanari,

that of the Commissioner ."
1156 (9th Cir. 2001).

DISCUSSION
I.

Evidence Submitted to Appeals Council

When

new

evidence

administrativ e

the

Council,

Appeals

includes the new evidence.
(9th

1162

1157,

F. 3d

considered by

and

submitted to

is

this

before

record

the

court

Brewes v. Comm'r Soc. Sec. Admin, 682
If

2012).

Cir.

the

Council

Appeals

nonetheless declines review, the ALJ's decision becomes the final
Id. at 1161-62.

decision of the Commissioner .
record

into

account,

including

the

evidence

Taking the entire
submitted

to

the

Appeals Council, the court must determine if the ALJ's decision is
still supported by substantial evidence.
After

the

issued

ALJ

his

See id. at 1164.

decision,

plaintiff

submitted

additional evidence to the Appeals Council, including chart notes
from the Center for Human Development, a second opinion from Ms.
Peeples,

and

an

additional

6 - OPINION AND ORDER

chart

note

from

Dr.

Wernick

The Appeals

"reconfirm[in g)" plaintiff's fibromyalgia diagnosis.

Council considered the new evidence, but nonetheless denied review.
Tr. 1-5.
by

Plaintiff argues that the ALJ's opinion is not supported

substantial

because

evidence

it

failed

to

account

for

the

opinions from Dr. Wernick and Ms. Peeples submitted to the Appeals
Council.
A.

Dr. Wernick

In the November 19,

Dr.

2008 evaluation,

plaintiff with fibromyalgia.

Wernick diagnosed

Dr. Wernick noted that

Tr. 287-88.

plaintiff had previously been found by another medical provider to
have

16

of

18

tender

points,

and

that

"read about

plaintiff

fibromyalgia and self-diagnose d that in herself."

Tr. 287.

Dr.

Wernick noted that plaintiff had diffuse pain that was worse with
weather change, and caused stiffness in the mornings and soreness
in the evenings.
"' [ j) ust

Id.

Dr. Wernick noted that plaintiff reported

about everything'

is

impacted regarding activities of

daily living" due to pain and fatigue,

but that plaintiff walks

between one-half mile and one mile per day because she does not
have a car.

Id.

Dr. Wernick concluded that plaintiff is "not able

to do her past highly physical work," but that plaintiff "would
like to be retrained to do something else."
On December 9,

2010,

Tr. 288.

approximately six weeks after the ALJ

issued his decision, plaintiff presented to Dr. Wernick to "back
up" Ms.

Peeples's opinion for plaintiff's disability case.

7 - OPINION AND ORDER

Tr.

408.

Plaintiff reported that her pain had worsened over the past

year,

and said she had a "scare" with rheumatoid arthritis,

but

that her hand pain had resolved and her rheumatoid factor was "not
concerning."

Id.

Plaintiff reported several tender points, that

her pain worsened with cold, and that the pain and fatigue caused
"difficulty with most activities of daily living."

Id.

On the

basis of this examination, Dr. Wernick "reconfirm [ed] the diagnosis
of [f)ibromyalgia," and stated that plaintiff was "having obvious
pain and reports

significant

fatigue."

Tr.

410.

Dr.

Wernick

opined that plaintiff did not have malingering tendencies,
"per the patient," she is unable to work due to pain.

and,

Tr. 411.

I conclude that this second opinion by Dr. Wernick does not
render

the

ALJ' s

decision

unsupported

by

substantial

evidence

because it is materially duplicative of his first opinion.
there

were

some

different

symptoms

While

reported by plaintiff,

Wernick's opinion was largely the same.

Dr.

Dr. Wernick's explicit

opinion in December of 2010 that plaintiff was not a malingerer and
was in pain were implicit in his earlier opinion, as a finding of
malingering or disbelief that plaintiff suffered pain would have
precluded the diagnosis of fibromyalgia and recommended treatment
at that time.

Dr.

Wernick's statement that he "does not doubt

[plaintiff's) pain and fatigue hinder her daily life," similarly
does not establish any functional limitations that were not already
considered

in

the

8 - OPINION AND ORDER

RFC.

Otherwise,

Dr.

Wernick

merely

"reconfirm[ed)"

plaintiff's

fibromyalgia

diagnosis,

which,

as

plaintiff does not challenge, the ALJ sufficiently accounted for by
listing fibromyalgia as a severe impairment and limiting plaintiff
to light work.

Dr. Wernick's 2010 opinion, then, was materially

duplicative of his 2008 opinion, and does not necessitate reversal
under Brewes.
B.

Ms .

Peeples

The record also contains two opinions

from Ms.

Peeples,

a

Family Nurse Practitioner who was one of plaintiff's primary care
providers.

Because Ms. Peeples is a Nurse Practitioner, she is not

an acceptable medical source, and is considered an "other source."
20 C.F.R.

§§

404.1513(d) (1),

416.913(d) (1).

The ALJ must cite

germane reasons for discrediting the testimony of "other sources,"
such as Ms.

Peeples.

See Turner v. Comm'r Soc. Sec. Admin.,

613

F.3d 1217 (9th Cir. 2010).
In a May 18, 2010 opinion, Ms. Peeples stated that plaintiff
met

the

American

fibromyalgia,

College

of

Rheumatology's

criteria

but opined that her prognosis was good.

Tr.

for
358.

Ms. Peeples reported that plaintiff experienced pain bilaterally in
her lumbrosacral,
legs.

Tr. 359.

cervical,

and thoracic spine,

hips,

and lower

Ms. Peeples reported that the pain was variable,

can be precipitated by changing weather, stress, fatigue, hormonal
changes, movement and overuse, static position, and cold, and would
frequently interfere with plaintiff's ability to concentrate on
9 - OPINION AND ORDER

work tasks.

Tr.

While Ms.

359.

Peeples opined that plaintiff

could only walk one block without severe pain or needing rest, she
also stated that during a workday plaintiff would need to walk for
15 minutes after every 20 minutes of work.

Tr. 360.

Ms. Peeples

stated that plaintiff could only sit or stand for 15 minutes at a
time,

and would need to take a 30 to 60 minute break every two

hours.

Id.

Ms.

Peeples reported that plaintiff could lift or

carry less than ten pounds frequently, and 10 pounds occasionally,
but could never lift more.
hands and arms,

Ms.

Tr.

361.

As to plaintiff's use of

Peeples noted that plaintiff could turn or

grasp with her hands

100% of the

time,

engage

in

fine

finger

manipulation 90% of the time, but could never reach overhead.

Id.

Ms. Peeples opined that plaintiff would miss more than four days of
work per month as a result of her impairments.
In her February 14, 2011 opinion, Ms.
plaintiff

suffered

from

"several

chronic

Id.

Peeples reported that
illnesses

with

medication relief, but will be plagued with the effects .
a lifetime."

Tr.

remained

largely

in

403.

Ms.
the

some
. for

Peeples noted that plaintiff's pain
same

areas

as

in

2010,

additionally included shoulders, hands, and fingers.

although

Tr. 404.

Ms.

Peeples reported that plaintiff could walk for 5 blocks without
rest, but could only sit for 15 minutes and stand for 20 minutes at
a time.
stand,

Tr.

405.

and walk for

Ms.

Peeples stated that plaintiff could sit,

less than two hours each in an eight-hour

10 - OPINION AND ORDER

workday.

During

the workday,

Ms.

Peeples

reported that

plaintiff would have to walk around for three minutes after every
20 minutes of work, required a job that permits shifting positions
at will,

and would need to take unscheduled breaks every 20-30

minutes.
that

Tr.

406.

plaintiff

reaching,
grasp

Most notably, however, Ms. Peeples reported

had

handling,

and

turn

significant
or fingering,

with

her

hands,

manipulation 10% of the time.

limitations

doing

repetitive

opining that plaintiff could
and

Tr. 407.

engage

in

fine

finger

Ms. Peeples concluded that

plaintiff would miss work more than three times per month.

Tr.

407.
Plaintiff does not challenge the rejection of Ms. Peeples's
first opinion, but rather argues that Ms. Peeples's second opinion,
submitted to the Appeals Council, renders the Commissioner's final
decision unsupported by substantial evidence.

I agree.

The handling limitations described in Ms.
opinion were not accounted for in the RFC.

Peeples's second

I cannot conclude that

the reasons cited by the ALJ for rejecting Ms.
opinion

also

confidently
living,

apply
find

to

that

the

second.

plaintiff's

Peepl~s's

Specifically,

stated

activities

I
of

first
cannot
daily

including occasional household chores and shopping,

inconsistent with Ms. Peeples's report of handling limitations.
addition,
medical

the mere
source

is

fact
not

11 - OPINION AND ORDER

that Ms.
an

are
In

Peeples is not an acceptable

independent

reason

to

discredit

her

opinion, but rather only changes the standard by which the court
reviews

the

reasons

cited

for

discrediting

her

testimony.

Accordingly, the Commissioner's failure to comment on Ms. Peeples's
second opinion was harmful error that necessitates a remand. 1
II.

Remand

I

remand

to

the

Commissioner

for

the

consideration of Ms. Peeples's second opinion.

limited purpose

of

On remand, the ALJ

shall consider Ms. Peeples's second opinion, including the handling
limitations, and issue a new decision.

The ALJ shall consider what

impact, if any, Ms. Peeples's opinion has on the remaining steps of
the sequential evaluation.

If the ALJ chooses to discredit Ms.

Peeples's opinion, he must provide legally sufficient reasons for
doing so.

The ALJ need not reconsider other aspects of the record

or his prior decision to the extent they are unaffected by the
consideration of Ms. Peeples's second opinion.

Ill
Ill
Ill
Ill
Ill
Ill
1

It is most unfortunate that the ALJ did not have the
benefit of Ms. Peeples's second opinion.
This remand was not
caused by any error on the ALJ's part, but rather is mandated by
the Commissioner's regulations and attendant case law.
12 - OPINION AND ORDER

CONCLUSION

Based

on

the

foregoing,

the

Commissioner's

decision

is

REVERSED, and this case is REMANDED pursuant to sentence four of 42
U.S.C.

§

405(g) for further administrative proceedings consistent

with this opinion.
IT IS SO ORDERED.
DATED this ~ day of May, 2013.

Malcolm F. Marsh
United States District Judge

13 - OPINION AND ORDER