Jaynes v. Commissioner Social Security Administration
Filing
21
Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. 405(g) for further administrative proceedings consistent with this Opinion and Order. Signed on 04/29/2011 by Judge Anna J. Brown. See 19 page Opinion and Order. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
JULIET JAYNES,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
DAVID B. LOWRY
9900 S.W. Greenburg Road
Columbia Business Center
Suite 130
Portland, OR 97223
(503) 245-6309
Attorney for Plaintiff
1 - OPINION AND ORDER
10-CV-568-BR
OPINION AND ORDER
DWIGHT C. HOLTON
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1053
DAVID MORADO
Regional Chief Counsel
DAVID R. JOHNSON
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 901
Seattle, WA 98104
(206) 615-2545
Attorneys for Defendant
BROWN, Judge.
Plaintiff Juliet Jaynes seeks judicial review of a final
decision of the Commissioner of the Social Security Administration (SSA) in which he denied Plaintiff's applications for
Supplemental Security Income (SSI) and Disability Insurance
Benefits (DIB) under Titles XVI and II of the Social Security
Act.
This Court has jurisdiction to review the Commissioner's
final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the decision
of the Commissioner and REMANDS this matter pursuant to sentence
four of 42 U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion and Order.
2 - OPINION AND ORDER
ADMINISTRATIVE HISTORY
Plaintiff filed her application for SSI on August 19, 2005,
and her application for DIB on August 24, 2005, and alleged a
disability onset date of August 16, 2005.
Tr. 104, 110.1
The
applications were denied initially and on reconsideration.
An
Administrative Law Judge (ALJ) held a hearing on October 25,
2007.
Tr. 761-801.
an attorney.
At the hearing, Plaintiff was represented by
Plaintiff, a lay witness, and a VE testified.
The ALJ issued a decision on April 16, 2008, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 12-26.
Pursuant to 20 C.F.R. § 404.984(d),
that decision became the final decision of the Commissioner on
April 29, 2010, when the Appeals Council denied Plaintiff's
request for review.
BACKGROUND
Plaintiff was born on November 8, 1964, and was 42 years old
at the time of the hearing.
Tr. 149.
helper.
Tr. 24.
Plaintiff obtained a GED.
She has past relevant work experience as a baker's
Tr. 24.
Plaintiff alleges disability due to a panic disorder,
depression, anxiety, agoraphobia, fibromyalgia, and Raynaud's
1
Citations to the official transcript of record filed by
the Commissioner on August 1, 2010, are referred to as "Tr."
3 - OPINION AND ORDER
disease.
Tr. 17-18.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 18, 21-23.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2005).
Ukolov v. Barnhart, 420 F.3d 1002, 1004
To meet this burden, a claimant must
demonstrate her 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."
42 U.S.C. § 423(d)(1)(A).
developing the record.
The Commissioner bears the burden of
Reed v. Massanari, 270 F.3d 838, 841
(9th Cir. 2001).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g).
See also Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial
evidence means more than a mere scintilla, but less than a
preponderance, i.e., such relevant evidence as a reasonable mind
4 - OPINION AND ORDER
might accept as adequate to support a conclusion."
Robbins v.
Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)(internal
quotations omitted).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2001).
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
466 F.3d at 882.
Robbins,
The Commissioner's decision must be upheld even
if the evidence is susceptible to more than one rational
interpretation.
2005).
Webb v. Barnhart, 433 F.3d 683, 689 (9th Cir.
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.
2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 20 C.F.R. §§ 404.1520, 416.920.
Each step is
potentially dispositive.
In Step One, the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful
5 - OPINION AND ORDER
activity.
Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1052
(9th Cir. 2006).
See also 20 C.F.R. §§ 404.1520(a)(4)(I),
416.920(a)(4)(I).
In Step Two, the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe
impairment or combination of impairments.
1052.
Stout, 454 F.3d at
See also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii),
416.920(a)(4)(ii).
In Step Three, the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
454 F.3d at 1052.
416.920(a)(4)(iii).
Stout,
See also 20 C.F.R. §§ 404.1520(a)(4)(iii),
The criteria for the listed impairments,
known as Listings, are enumerated in 20 C.F.R. part 404, subpart
P, appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, he must
assess the claimant’s Residual Functional Capacity (RFC).
The
claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.
20 C.F.R.
See also Social Security Ruling
"A 'regular and continuing basis' means 8 hours a
day, for 5 days a week, or an equivalent schedule."
6 - OPINION AND ORDER
SSR 96-8p,
at *1.
In other words, the Social Security Act does not require
complete incapacity to be disabled.
1273, 1284 n.7 (9th Cir. 1996).
Smolen v. Chater, 80 F.3d
The assessment of a claimant's
RFC is at the heart of Steps Four and Five of the sequential
analysis engaged in by the ALJ when determining whether a
claimant can still work despite severe medical impairments.
An
improper evaluation of the claimant's ability to perform specific
work-related functions "could make the difference between a
finding of 'disabled' and 'not disabled.'"
SSR 96-8p, at *4.
In Step Four, the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
Stout, 454 F.3d at 1052.
See
also 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy.
Stout, 454 F.3d at 1052.
C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
See also 20
Here the burden
shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can do.
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
The
Commissioner may satisfy this burden through the testimony of a
VE or by reference to the Medical-Vocational Guidelines set forth
in the regulations at 20 C.F.R. part 404, subpart P, appendix 2.
If the Commissioner meets this burden, the claimant is not
7 - OPINION AND ORDER
disabled.
20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
ALJ'S FINDINGS
At Step One, the ALJ found Plaintiff has not engaged in
substantial gainful activity since her August 16, 2005, alleged
onset date.
Tr. 17.
At Step Two, the ALJ found Plaintiff has the severe
impairments of fibromyalgia or myofascial pain, depression,
anxiety, panic attacks, and alcohol abuse.
Tr. 17.
At Step Three, the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P, appendix
1.
Tr. 20.
light work.
The ALJ also found Plaintiff has the RFC to perform
Tr. 20.
The ALJ further found Plaintiff has the RFC
to sit one hour in an eight-hour work day and to stand/walk "one
hour at a time" in an eight-hour work day.
Tr. 20.
The ALJ
found Plaintiff needed to be able to stretch in place "for a
minute or two" and was limited to simple, routine, repetitive
work; occasional contact with large crowds of people; "occasional
close supervision"; and occasional interaction with the public or
coworkers.
Tr. 20.
At Step Four, the ALJ concluded Plaintiff is not capable of
performing her past relevant work.
Tr. 24.
At Step Five, the ALJ found Plaintiff can perform jobs that
8 - OPINION AND ORDER
exist in significant numbers in the national economy.
Tr. 24-25.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred (1) by improperly rejecting
the opinions of Plaintiff's treating physicians, (2) by
improperly rejecting lay-witness testimony, and (3) by finding
Plaintiff capable of performing jobs identified by the VE.
I.
Medical opinion testimony.
Plaintiff contends the ALJ erred when he improperly rejected
the opinions of treating physicians Jill Sheasley, D.O., and
Sheri Laird, M.D.
On June 29, 2004, Dr. Sheasley opined Plaintiff suffered
severe anxiety with panic attacks; had difficulty concentrating;
and, as a result, would miss four days of work per month and was
"incapable of even 'low stress' jobs."
Tr. 616-22.
Similarly,
on October 24, 2007, Dr. Laird opined Plaintiff suffered from
"constant worrying/anxiety, episodes of severe depression, [and]
panic attacks," would miss four days of work per month, and was
"incapable of even 'low stress' jobs."
Tr. 658-64.
The ALJ did
not give any weight to the opinions of Drs. Sheasley and Laird on
the ground that Plaintiff "has not pursued treatment for a
continuous period of 12 months or longer . . . [and Plaintiff]
has responded well when she has been treated."
9 - OPINION AND ORDER
Tr. 22.
For
example, in November 2004 Dr. Sheasley reported Plaintiff's
depression was "well controlled" with Effexor.
Tr. 295.
In
February 2005, however, Dr. Laird reported Plaintiff "quit"
taking Effexor and started "to feel worse with increased sadness
and emotional lability."
Tr. 295.
Dr. Laird prescribed Paxil.
In May 2005 Dr. Laird reported Plaintiff's depression and anxiety
were "stable on Paxil."
Tr. 291.
On May 3, 2005, Plaintiff
requested to be able to return to group counseling with Clackamas
County Mental Health, but she had not returned to any group
sessions as of June 13, 2005.
Tr. 341.
Plaintiff resumed group
sessions on June 28, 2005, but stopped going to those sessions in
August 2005.
Tr. 339.
In November 2005 Dr. Laird reported
Plaintiff was feeling better on Paxil.
Tr. 310.
On January 18,
2006, Dr. Laird noted Plaintiff stopped taking Paxil two weeks
earlier, and she was suffering increased stress.
Dr. Laird prescribed Effexor.
Tr. 683.
Tr. 683.
On February 2, 2006,
Dr. Laird noted Plaintiff resumed taking Effexor and was sleeping
better and "crying less."
Tr. 682.
Plaintiff continue to take Effexor.
Dr. Laird recommended
In June 2006 Plaintiff
reported to Dr. Laird that her mood was stable and that she had
begun to exercise.
Tr. 678.
In addition, the ALJ noted David Gostnell, Ph.D., examining
psychiatrist, opined in December 2004 after conducting a
neuropsychological evaluation of Plaintiff that Plaintiff could
10 - OPINION AND ORDER
perform work-related functions satisfactorily except for public
interactions.
Tr. 640-56.
Dr. Gostnell concluded Plaintiff's
medical and psychiatric history and . . . current
symptoms do not explain [Plaintiff's]
neuropsychological test scores. Although her
anxiety and depression are likely to produce some
degree of interference with cognitive performance,
her scores seem disproportionate to expectations,
given her educational background. . . .
[A]lthough [Plaintiff] produced no obvious
behavior signs of inadequate effort on the
testing, some degree of motivational compromise
cannot be ruled out without more thorough
assessment, including the use of specific measures
for this purpose. Given the extent to which she
is able to live semi-independently, her scores
probably do underestimate her true abilities.
Tr. 648.
The Court concludes on this record that the ALJ did not err
when he rejected the opinions of Drs. Sheasley and Laird because
the ALJ provided legally sufficient reasons supported by the
record for doing so.
II.
Lay-witness testimony.
Plaintiff contends the ALJ erred when he rejected the lay-
witness testimony of David Root and the lay-witness statements of
Patricia and Charles Root and Laurie Baird, LCSW.
Lay testimony regarding a claimant's symptoms is competent
evidence that the ALJ must consider unless he "expressly
determines to disregard such testimony and gives reasons germane
to each witness for doing so."
(9th Cir. 2001).
Lewis v. Apfel, 236 F.3d 503, 511
See also Merrill ex rel. Merrill v. Apfel, 224
11 - OPINION AND ORDER
F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a
claimant's disability, must give full consideration to the
testimony of friends and family members.").
A.
David, Patricia, and Charles Root.
At the hearing David Root, Plaintiff's step-father,
testified Plaintiff has difficulty walking, fatigues easily, has
to rest for 15 minutes after vacuuming, can walk only four
blocks, suffers from anxiety, has episodes of crying, is
forgetful, and angers easily.
Tr. 790-93.
In an April 2005
written statement, Patricia Root, Plaintiff's mother, stated
Plaintiff has balance problems, is forgetful, has problems with
concentration, has anxiety attacks when in public places, and
suffers arm and leg weakness and swelling due to Raynaud's
Disease.
Tr. 137-43.
In an April 2005 written statement,
Charles Root, Plaintiff's brother, stated Plaintiff suffers panic
attacks in public places, can stand for ten to fifteen minutes,
and has trouble with concentration and forgetfulness.
Tr. 144-
50.
The ALJ found David Root's testimony and the statements
of Patricia and Charles Root were not "of assisant [sic] to me in
the evaluation of this claim because they have not provided
objective evidence in support of limitations beyond my assessment
of [Plaintiff's] physical and mental residual functional
capacity."
Tr. 23.
The ALJ also noted these witnesses "are not
12 - OPINION AND ORDER
expert in medical or vocational matters."
Tr. 24.
The Ninth Circuit has held an ALJ may not "discredit
. . . lay testimony [because it is] not supported by medical
evidence in the record."
(9th Cir. 2009).
Bruce v. Astrue, 557 F.3d 1113, 1116
Similarly, an ALJ may not reject lay-witness
testimony based on lack of medical expertise.
Id.
The Court concludes on this record that the ALJ erred
when he rejected the lay-witness testimony and statements of
David, Patricia, and Charles Root because the ALJ did not give
reasons germane to each witness for doing so.
B.
Laurie Baird, LCSW.
Plaintiff contends the ALJ erred when he rejected the
May 2005 opinion of Laurie Baird, LCSW, Plaintiff's counselor,
expressed in a check-the-box questionnaire.
Baird found
Plaintiff had marked restrictions in her activities of daily
living and in maintaining social functioning; frequent
deficiencies of concentration, persistence, or pace; and
"continual" episodes of deterioration or decompensation in worklike settings.
Tr. 274.
Baird also opined Plaintiff would be
absent from work four days per month due to her symptoms.
Tr. 272.
Medical sources are divided into two categories:
"acceptable" and "not acceptable."
20 C.F.R. § 416.902.
Acceptable medical sources include licensed physicians and
13 - OPINION AND ORDER
psychologists.
20 C.F.R. § 416.902.
Medical sources classified
as "not acceptable" include licensed clinical social workers.
SSR 06-03p, at *2.
The Social Security Administration notes:
[M]edical sources who are not acceptable medical
sources, such as . . . licensed clinical social
workers, have increasingly assumed a greater
percentage of the treatment and evaluation
functions previously handled primarily by
physicians and psychologists. Opinions from these
medical sources . . . are important and should be
evaluated on key issues such as impairment
severity and functional effects, along with the
other relevant evidence in the file.
SSR 06-03p, at *3.
Factors the ALJ should consider when
determining the weight to give an opinion from those "important"
sources include:
the length of time the source has known the
claimant and the number of times and frequency that the source
has seen the claimant; the consistency of the source's opinion
with other evidence in the record; the relevance of the source's
opinion; the quality of the source's explanation of his opinion;
and the source's training and expertise.
SSR 06-03p, at *4.
On
the basis of the particular facts and the above factors, the ALJ
may assign a not-acceptable medical source either greater or
lesser weight than that of an acceptable medical source.
03p, at *5-*6.
SSR 06-
The ALJ, however, must explain the weight
assigned to such sources to the extent that a claimant or
subsequent reviewer may follow the ALJ's reasoning.
SSR 06-03p,
at *6.
The ALJ did not give any weight to Baird's opinion on
14 - OPINION AND ORDER
the grounds that the questionnaire was "not a form authorized by
the Social Security Administration," Baird is not an acceptable
medical source, and Plaintiff "has not followed consistent and
prolonged treatment for any of her conditions and she has
responded well when she has been treated."
As noted, even though Baird is not an acceptable
medical source, opinions from unacceptable medical sources "are
important and should be evaluated on key issues such as
impairment severity and functional effects."
In addition, the
Commissioner does not offer nor could this Court find any
authority for the proposition that an ALJ may reject an
unacceptable medical source's opinion because it is not on a
specific form.
The ALJ's reasons, therefore, are not sufficient
for rejecting Baird's opinion.
The ALJ, however, also relied on
the fact that Plaintiff has not followed consistent and prolonged
treatment for any of her conditions and that she has responded
well when she has been treated as the ALJ noted in his discussion
of the opinions of Drs. Sheasley and Laird.
The Court concludes on this record that the ALJ did not
err because he provided legally sufficient reasons for rejecting
Baird's opinion on the ground that Plaintiff has not followed
consistent and prolonged treatment for any of her conditions and
she has responded well when she has been treated.
15 - OPINION AND ORDER
III. VE's testimony.
Plaintiff contends the ALJ erred when he relied on the VE's
testimony and concluded on that basis that Plaintiff was capable
of performing other jobs in the national economy because the ALJ
(1) failed to address evidence that Plaintiff submitted from the
United States Departments of Labor and Commerce (USDOL) and the
Oregon Employment Division in which, according to Plaintiff,
those agencies indicated they do not track by DOT Code the
numbers of jobs available and (2) did not include all of
Plaintiff's limitations in the hypothetical to the VE.
A.
Plaintiff's evidence from the USDOL and Oregon
Employment Division.
Plaintiff contends the ALJ erred when he failed to
address evidence that Plaintiff submitted from the USDOL and the
Oregon Employment Division in which those agencies indicated they
do not track numbers of jobs available by DOT code.
The Ninth
Circuit, however, has rejected similar arguments and concluded an
ALJ may rely solely on the VE's testimony as to the number of
jobs available in the national economy and does not have to
address additional vocational materials submitted by a claimant.
See, e.g., Howard v. Astrue, 330 F. App'x 128 (9th Cir.
2009)(Letters "from the U.S. Department of Labor's Bureau of
Labor Statistics, the U.S. Census Bureau, and the Oregon
Employment Department establishing that none of these agencies
gathers the precise information with respect to the availability
16 - OPINION AND ORDER
of jobs to which the VE testified and on which the ALJ and
magistrate judge relied . . . submitted by [Plaintiff] did not
provide 'significant probative evidence' regarding how many jobs
were available in the local and national economies.
The ALJ
properly relied on the VE's testimony for that information.");
Crane v. Barnhart, 224 F. App'x 574, 578 (9th Cir. 2007)(same).
Accordingly, the Court concludes the ALJ did not err
when he did not address Plaintiff's evidence from the USDOL and
the Oregon Employment Division.
B.
Hypothetical to the VE.
Plaintiff also contends the ALJ erred because his
hypothetical to the VE did not include Plaintiff's limitations as
set out by the lay-witnesses.
Because the Court already has
concluded the ALJ erred when he rejected the testimony and
statements of David, Patricia, and Charles Root without providing
reasons germane to each of these witnesses for doing so, the
Court also concludes the ALJ erred when his hypothetical to the
VE did not include these limitations.
REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for calculation of benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
17 - OPINION AND ORDER
utility of further proceedings.
Id. at 1179.
The court may
"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."
Smolen, 80 F.3d at 1292.
The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
1178 (9th Cir. 2000).
Harman v. Apfel, 211 F.3d 1172,
The court should grant an immediate award
of benefits when
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting such
evidence, (2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
Id.
The second and third prongs of the test often merge into a
single question:
Whether the ALJ would have to award benefits if
the case were remanded for further proceedings.
Id. at 1178 n.2.
On this record the Court concludes further proceedings are
necessary.
The Roots testified about various symptoms of
Plaintiff, and the ALJ failed to provide legally sufficient
reasons for rejecting that evidence.
Nevertheless, the Court
concludes it is not clear from the record that the ALJ would be
required to find Plaintiff disabled if the testimony and
statements of the Roots was credited because, as the ALJ noted,
Plaintiff's symptoms improve when she consistently engages in
18 - OPINION AND ORDER
therapy and takes medication.
Accordingly, the Court remands this matter for further
proceedings related to whether the ALJ must find Plaintiff to be
disabled if the testimony and statements of the Roots were
credited.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
42 U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 29th day of April, 2011.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
19 - OPINION AND ORDER
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