Parton v. Commissioner Social Security Administration

Filing 24

Opinion and Order - Because the Commissioner's decision was not based on proper legal standards and not supported by substantial evidence, the decision is REVERSED, and this case REMANDED for further proceedings. Signed on 6/27/2018 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MAELYNN P.1,
Plaintiff,

Case No. 2:17-cv-784-SI
OPINION AND ORDER

v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations, performing the
duties and functions not reserved to the
Commissioner of Social Security,
Defendant.

James S. Coon and Scott A. Sell, THOMAS, COON, NEWTON, & FROST, The Thomas Mann
Building, 820 SW Second Ave., Suite 200, Portland, Oregon 97204. Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 SW Third Avenue, Suite 600, Portland, OR 97204;
Sarah L. Martin, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL,
SOCIAL SECURITY ADMINISTRATION, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA
98104. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Maelynn P. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner
of the Social Security Administration (“Commissioner”) denying her application for Disability
1

In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the non-governmental party in this case. Where applicable, this opinion uses the same
designation for a non-governmental party's immediate family member.
PAGE 1 – OPINION AND ORDER

Insurance Benefits (“DIB”). Because the Commissioner’s decision was not based on the proper
legal standards and the findings were not supported by substantial evidence, the decision is
REVERSED and this case REMANDED for further proceedings.
STANDARD OF REVIEW
The District Court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g);
Molina v. Astrue, 673 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion” and is more
than a “mere scintilla” of the evidence but less than a preponderance. Id. at 1110-11 (quotation
omitted). The Court must uphold the ALJ’s findings if they “are supported by inferences
reasonably drawn from the record[,]” even if the evidence is susceptible to multiple rational
interpretations. Id. at 1110. The Court may not substitute its judgment for that of the
Commissioner. Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“[A] reviewing court must consider the entire record as a whole and may not affirm simply by
isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir.
2007) (quotation omitted).
BACKGROUND
A.

Plaintiff’s Application
Plaintiff filed her application for SSI on June 4, 2013, alleging disability as of January 1,

2010.2 AR 70. The claim was denied initially and upon reconsideration, and Plaintiff timely
requested a hearing before an Administrative Law Judge (“ALJ”), which was held on August 10,
2015. AR 36-69. After the hearing, ALJ Gordon W. Griggs issued an adverse decision dated
2

At the administrative hearing, plaintiff amended her alleged onset date to January 1, 2012.
AR 15, 38.
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September 24, 2015, finding Plaintiff not disabled within the meaning of the Social Security Act
(“the Act”). AR 13-27. The decision became the final decision of the Commissioner when the
Appeals Council denied review. AR 1-3. Plaintiff now seeks review in this Court.
Born in January 1966, Plaintiff was 43 years old on the initial alleged disability onset
date and 49 years old at the time of the administrative hearing. AR 71. She is a high school
graduate. AR 39-40, 189. Plaintiff alleges disability due to: spinal disc bulging and lower back
pain, posttraumatic stress disorder (“PTSD”), shoulder pain, chronic headaches, panic attacks,
anxiety, bipolar disorder, attention deficit disorder (“ADD”), and depression. AR 188.
B.

The Sequential Analysis
A claimant is disabled if he or she is unable 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[.]” 42 U.S.C. §
432(d)(1)(A). “Social Security Regulations set out a five-step sequential process for determining
whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v.
Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. § 404.1520;
Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §
404.1520(a)(4). The five-step sequential process asks the following series of questions:
1.

Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§ 404.1520(a)(4)(i). This activity is work involving significant mental or
physical duties done or intended to be done for pay or profit. 20 C.F.R.
§ 404.1510. If the claimant is performing such work, she is not disabled
within the meaning of the Act. 20 C.F.R. § 404.1520(a)(4)(i). If the
claimant is not performing substantial gainful activity, the analysis
proceeds to step two.

2.

Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. § 404.1520(a)(4)(ii). An impairment or
combination of impairments is “severe” if it significantly limits the
claimant’s physical or mental ability to do basic work activities. 20 C.F.R.

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§ 404.1521(a). Unless expected to result in death, this impairment must
have lasted or be expected to last for a continuous period of at least 12
months. 20 C.F.R. § 404.1509. If the claimant does not have a severe
impairment, the analysis ends. 20 C.F.R. § 404.1520(a)(4)(ii). If the
claimant has a severe impairment, the analysis proceeds to step three.
3.

Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(iii). If the
impairment does not meet or equal one or more of the listed impairments,
the analysis continues. At that point, the ALJ must evaluate medical and
other relevant evidence to assess and determine the claimant’s “residual
functional capacity” (“RFC”). This is an assessment of work-related
activities that the claimant may still perform on a regular and continuing
basis, despite any limitations imposed by his or her impairments. 20
C.F.R. §§ 404.1520(e), 404.1545(b)-(c). After the ALJ determines the
claimant’s RFC, the analysis proceeds to step four.

4.

Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant cannot perform his or her past relevant
work, the analysis proceeds to step five.

5.

Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.920(a)(4)(v), 404.1560(c). If the claimant
cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. § 404.1566 (describing
“work which exists in the national economy”). If the Commissioner fails to meet this burden, the
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claimant is disabled. 20 C.F.R. § 404.1520(a)(4)(v). If, however, the Commissioner proves that
the claimant is able to perform other work existing in significant numbers in the national
economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d
at 1099.
C.

The ALJ’s Decision
The ALJ performed the sequential analysis. At step one, the ALJ found Plaintiff had not

engaged in substantial gainful activity since the amended alleged onset date, January 1, 2012.
AR 15. At step two, the ALJ concluded that Plaintiff had the following severe impairments:
cervical spine degenerative disc disease; status post-surgeries of the foot; bipolar disorder; and
panic disorder. Id. At step three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or equaled a listed impairment. AR 16. The ALJ next
assessed Plaintiff’s RFC and found that she: (a) could perform light work, with occasional
stooping crouching, crawling, and climbing of ladders, ropes or scaffolds; (b) was limited to at
most occasional: (i) overhead reaching and exposure to vibrating tools, machines, and vehicles;
(ii) exposure to hazardous conditions such as proximity to unprotected heights and moving
machinery; (iii) public interaction and superficial interaction with co-workers; and (c) would not
be well-suited to placement in a highly interactive or interdependent work group. AR 18.
At step four, the ALJ found that Plaintiff was able to perform her past relevant work as a
quality control technician. AR 25. At step five, the ALJ alternatively concluded that considering
her age, education, work experience, and RFC, Plaintiff could perform the following jobs which
existed in significant numbers in the national economy: agricultural sorter and final assembler.
AR 26. Accordingly, the ALJ concluded that Plaintiff was not disabled within the meaning of the
Act from January 1, 2012, through the date of the decision, January 4, 2017. Id.

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DISCUSSION
Plaintiff contends that the ALJ erred by: (1) failing to incorporate into the RFC, and into
the hypothetical questions posed to the VE, all of plaintiff’s functional limitations; and (2) failing
properly to evaluate the medical source opinion of treating physician Russell Harrison, M.D.
A.

RFC Formulation and Hypothetical Questions to VE
The RFC represents the most that a claimant can do despite his or her physical or mental

impairments. 20 C.F.R. § 404.1545. In formulating the RFC, the ALJ must consider all
medically determinable impairments, including those that are not “severe,” and evaluate “all of
the relevant medical and other evidence.” Id. In determining a claimant’s RFC and posing
corresponding hypothetical questions to the VE, the ALJ is responsible for resolving conflicts in
the medical testimony and translating the claimant’s impairments into concrete functional
limitations. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Only those
limitations that are supported by substantial evidence must be incorporated into the RFC and
hypothetical questions to the VE. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001).
“The [VE’s] opinion about a claimant’s [RFC] has no evidentiary value if the assumptions in the
[decisive] hypothetical are not supported by the record.” Magallanes v. Bowen, 881 F.2d 747,
756 (9th Cir. 1989) (citation omitted).
Plaintiff argues that the ALJ erroneously omitted from the RFC a limitation regarding
“need[ing] a predictable work setting,” as opined by reviewing physician Joshua J. Boyd, Psy.D.
AR 83. The Commissioner responds that the ALJ either reasonably omitted the limitation or that
to the extent the ALJ erred in omitting the limitation, the error was harmless. In support of the
former, the Commissioner contends that the ALJ did not give Dr. Boyd’s opinion full weight,
and notes that the ALJ provided a sufficient explanation for deviating from Dr. Boyd’s

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assessment that plaintiff was limited to simple work. AR 22; Def.’s Br. 5. The Commissioner’s
point is not responsive to plaintiff’s argument, however. Although the ALJ provided a rationale
to reject Dr. Boyd’s opinion regarding simple work, the ALJ failed to provide any explanation
for rejecting Dr. Boyd’s opinion regarding a predictable work setting. This omission constitutes
error. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (“Where an ALJ does not
explicitly reject a medical opinion or set forth specific, legitimate reasons for crediting one
medical opinion over another, he errs.”) (citing Nguyen v. Chater, 100 F.3d 1462, 1464 (9th
Cir. 1996)). Indeed, the Commissioner concedes that “the ALJ should have included this
limitation or some variation of it in the [RFC] finding and the hypothetical questions to the
[VE].” Def.’s Br. 6. The question, then, is whether the ALJ’s error was harmless.
The Commissioner argues that the error was harmless because at step five, the ALJ
identified two jobs which, by virtue of their Specific Vocational Preparation (“SVP”) level,
“account for a limitation to a predictable work setting.” Def.’s Br. 2.3 Specifically, the
Commissioner argues that the jobs identified at step five are SVP 2, and therefore correspond to
“unskilled” work, the basic demands of which require no more than “routine” work settings and
“usual work situations.” Def.’s Br. 6 (citing SSR 85-15, 1985 WL 56857, at *4).
The Commissioner’s argument misstates, however, SSR 85-15. It is not that unskilled
work requires no more than routine work settings and usual work situations. Rather, even
unskilled work requires the capacity “to deal with changes in a routine work setting.”
SSR 85-15, at *4 (emphasis added). Presumably, if a worker were limited to a predictable work
setting, the worker would be unlikely adequately to deal with changes in even a routine work

The Court notes that despite the ALJ’s alternative findings at step five, the ALJ found at step
four that plaintiff could return to her past relevant work as a quality control technician, which is
SVP 4. See AR 25.
3

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setting. In other words, had the limitation been included in the RFC and hypothetical question
posed to the VE, the VE’s answer likely would have been different. Therefore, the Court cannot
find that the ALJ’s omission was necessarily inconsequential to the non-disability decision. See
Stout v. Comm’r of the Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). Remand is
required to address this issue.
B.

Medical Opinion Evidence
The ALJ is responsible for resolving conflicts in the medical record, including conflicts

among physicians’ opinions. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th
Cir. 2008). The Ninth Circuit distinguishes between the opinions of three types of physicians:
treating physicians, examining physicians, and non-examining physicians. Generally, “a treating
physician’s opinion carries more weight than an examining physician’s, and an examining
physician’s opinion carries more weight than a reviewing physician’s.” Holohan v. Massanari,
246 F.3d 1195, 1202 (9th Cir. 2001). If a treating physician’s opinion is supported by medically
acceptable techniques and is not inconsistent with other substantial evidence in the record, the
treating physician’s opinion is given controlling weight. Id.; see also 20 C.F.R. § 404.1527(d)(2).
A treating doctor’s opinion that is not contradicted by the opinion of another physician can be
rejected only for “clear and convincing” reasons. Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194,
1198 (9th Cir. 2008). If a treating doctor’s opinion is contradicted by the opinion of another
physician, the ALJ must provide “specific and legitimate reasons” for discrediting the treating
doctor’s opinion. Id.
Treating physician Dr. Harrison opined on February 14, 2014, that plaintiff would likely
miss three days per month based on the medical impairments of “bipolar, depression, and pain.”

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AR 610.4 The ALJ rejected the opinion, stating that it “primarily relied on mild MRI findings,
which I find insufficient to support a finding of three absences per month.” AR 24.
Dr. Harrison’s opinion, however, was not based solely on the MRI findings. The doctor
expressly indicated that plaintiff’s absenteeism was related to her mental impairments in addition
to her physical pain. To the extent that the ALJ determined plaintiff had the severe impairments
of bipolar disorder and panic disorder, which caused moderate limitation in Plaintiff’s social
functioning and concentration, persistence, and pace, it was not reasonable for the ALJ to
disregard without comment Dr. Harrison’s opinion that mental impairments likely would
contribute to absenteeism. See AR 15, 17. As such, the ALJ’s finding is not supported by
substantial evidence.
Plaintiff also assigns error to the ALJ’s rejection of Dr. Harrison’s opinion that plaintiff
must lie down for two hours, three to four times per week. The ALJ disregarded this assessment,
finding it overly reliant on Plaintiff’s unsubstantiated subjective reports. AR 24. Plaintiff argues
that the medical opinion is supported by the cervical MRI of July 2012, but Dr. Harrison
indicated that the limitation was due to “headaches,” not a cervical spine condition. AR 609.
Accordingly, as the proper arbiter of conflicts and ambiguities in the medical record, the ALJ
was within his authority to reject this asserted limitation. Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995); see also Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (ALJ need not
accept medical opinion that is brief, conclusory, or unsupported by clinical findings) (citation
omitted). The ALJ did not err in assessing plaintiff’s alleged need to lie down.
C.

Remand for Further Proceedings

4

The VE testified that missing two or more days per month would not be acceptable job
performance. AR 65.
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Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation
omitted). Although a court should generally remand to the agency for additional investigation or
explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the
utility of further proceedings. A remand for an award of benefits is appropriate when no useful
purpose would be served by further administrative proceedings or when the record has been fully
developed and the evidence is insufficient to support the Commissioner’s decision. Id. at 1100. A
court may not award benefits punitively and must conduct a “credit-as-true” analysis on evidence
that has been improperly rejected by the ALJ to determine if a claimant is disabled under the Act.
Strauss v. Comm’r of Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this Court.
Garrison, 759 F.3d at 999. The Ninth Circuit articulates the rule as follows:
The district court must first determine that the ALJ made a legal
error, such as failing to provide legally sufficient reasons for
rejecting evidence. If the court finds such an error, it must next
review the record as a whole and determine whether it is fully
developed, is free from conflicts and ambiguities, and all essential
factual matters have been resolved. In conducting this review, the
district court must consider whether there are inconsistencies
between the claimant’s testimony and the medical evidence in the
record, or whether the government has pointed to evidence in the
record that the ALJ overlooked and explained how that evidence
casts into serious doubt the claimant’s claim to be disabled. Unless
the district court concludes that further administrative proceedings
would serve no useful purpose, it may not remand with a direction
to provide benefits.
If the district court does determine that the record has been fully
developed and there are no outstanding issues left to be resolved,
the district court must next consider whether the ALJ would be
required to find the claimant disabled on remand if the improperly
discredited evidence were credited as true. Said otherwise, the

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district court must consider the testimony or opinion that the ALJ
improperly rejected, in the context of the otherwise undisputed
record, and determine whether the ALJ would necessarily have to
conclude that the claimant were disabled if that testimony or
opinion were deemed true. If so, the district court may exercise its
discretion to remand the case for an award of benefits. A district
court is generally not required to exercise such discretion,
however. District courts retain flexibility in determining the
appropriate remedy and a reviewing court is not required to credit
claimant’s allegations regarding the extent of their impairments as
true merely because the ALJ made a legal error in discrediting
their testimony.
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (internal citations and quotation
marks omitted).
Plaintiff does not dispute that if the ALJ’s decision is not upheld, this case should be
remanded for additional proceedings. See Pl.’s Br. 6; Pl.’s Reply 7. The Court agrees. On
remand, the ALJ must explicitly accept or reject the limitation regarding a predictable work
setting, and, if applicable, provide legally sufficient reasons for rejecting Dr. Harrison’s opinion
that Plaintiff’s mental impairments would likely contribute to an average of three days per month
of missed work.
CONCLUSION
Because the Commissioner’s decision was not based on proper legal standards and not
supported by substantial evidence, the decision is REVERSED, and this case REMANDED for
further proceedings.
IT IS SO ORDERED.
DATED this 27th day of June, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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