Johnston v. Commissioner Social Security Administration
Filing
27
OPINION & ORDER: The Commissioner's decision is reversed and remanded for additional proceedings. See 10-page opinion & order attached. Signed on 8/9/2011 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
RUTH ANN JOHNSTON
No. 03:10-CV-6175-HZ
Plaintiff,
OPINION & ORDER
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security
Defendant.
Kathryn Tassinari
Robert A. Baron
HARDER, WELLS, BARON & MANNING
474 Willamette, Suite 200
Eugene, OR 97401
Attorneys for Plaintiff
1 - OPINION & ORDER
Adrian L. Brown
U.S. ATTORNEY’S OFFICE
District of Oregon
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204
David J. Burdett
SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
701 Fifth Avenue, Suite 2900 M/S 901
Seattle, WA 98104-7075
Attorneys for Defendant
HERNANDEZ, District Judge:
Plaintiff Ruth Ann Johnston brings this action seeking judicial review of the
Commissioner’s final decision to deny disability insurance benefits (DIB). This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). I reverse
the Commissioner’s decision and remand for additional proceedings.
PROCEDURAL BACKGROUND
Plaintiff filed for DIB on November 15, 2005, alleging an onset date of September 29,
2005. Tr. 144. Her application was denied initially and on reconsideration. Tr. 110-14, 116-19.
On January 18, 2008 and again on May 8, 2009, plaintiff appeared for a hearing before an
Administrative Law Judge (ALJ). Tr. 19-107. On May 30, 2008, the ALJ found plaintiff not
disabled. Tr. 6-18. The Appeals Council denied review. Tr. 1-5.
FACTUAL BACKGROUND
Plaintiff alleges disability based on her impairments of diabetes and fibromyalgia1. Tr.
159, 221. At the time of the hearing, she was forty-seven years old. Tr. 22. She is a high school
1
The diagnosis was originally one for lupus. Tr. 317
2 - OPINION & ORDER
graduate and completed some college courses. Tr. 163, 367. Because the parties are familiar
with the medical and other evidence of record, I refer to any additional relevant facts necessary to
my decision in the discussion section below.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if 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. § 423(d)(1)(A).
Disability claims are evaluated according to a five-step procedure. See Valentine v.
Commissioner, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the ultimate burden of proving disability.
Id.
In the first step, the Commissioner determines whether a claimant is engaged in
“substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S.
137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner
determines whether the claimant has a “medically severe impairment or combination of
impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the
claimant is not disabled.
In step three, the Commissioner determines whether the impairment meets or equals “one
of a number of listed impairments that the [Commissioner] acknowledges are so severe as to
preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d),
416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner
proceeds to step four. Yuckert, 482 U.S. at 141.
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In step four, the Commissioner determines whether the claimant, despite any
impairment(s), has the residual functional capacity (RFC) to perform “past relevant work.” 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant is able to perform “past relevant work”, the
claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to
the Commissioner. In step five, the Commissioner must establish that the claimant can perform
other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If
the Commissioner meets his burden and proves that the claimant is able to perform other work
which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566,
416.966.
THE ALJ’S DECISION
The ALJ determined that plaintiff’s date of last insured (DLI) was December 31, 20102.
Tr. 9. At step one, the ALJ determined that plaintiff had not engaged in substantial gainful
activity since her alleged onset date. Tr. 11. Next, at step two, the ALJ determined that plaintiff
had the severe impairments of fibromyalgia, diabetes mellitus, obesity, costochonditis, tendinitis,
bursitis, torn meniscus of the right-knee status post arthroscopic meniscectomy, chondromalacia,
depression, and a history of physical abuse as an adult. Id. As part of that determination, the
ALJ considered the medical evidence and plaintiff’s hearing testimony. Tr. 11-14. At step three,
the ALJ found that the impairments, singly or in combination, did not meet or equal the
requirements of any listed impairment. Id.. Next, the ALJ determined that plaintiff had a light
exertion residual functional capacity (RFC) to lift and carry 20 pounds occasionally and 10
pounds frequently; stand and walk 40 minutes at a time for a total of three to four hours in an
2
According to the record, plaintiff’s DLI is December, 31, 2009. Tr. 165.
4 - OPINION & ORDER
eight-hour day; sit 45 minutes at time for a total of six hours in an eight-hour day, with an
opportunity to change positions; prohibited from climbing ladders and scaffolds; limited to
occasional climbing of stairs, negotiating of ramps, balancing, stooping, kneeling, crouching, and
crawling; unable to follow complex or detailed instructions; unable to interact appropriately with
the general public other than occasionally; unable to engage in ongoing, interactive, cooperative,
teamwork endeavors; and limited to predictable work tasks. Tr. 12. The ALJ also determined a
sedentary RFC that was similar to the light exertion RFC, with the additional limitation of
occasional firm grasping and repetitive manipulation. Tr. 15. At step four, the ALJ found that
the plaintiff could not return to her past relevant work as a cashier, retail sales associate, and
assistant manager. Tr. 16. At step five, the ALJ concluded that the plaintiff was not disabled.
Tr. 17. Considering plaintiff’s age, education, work experience, and light exertion RFC, the ALJ
found that plaintiff could perform work as an assembler or software sorter. Id. For the sedentary
RFC, the ALJ found that plaintiff could perform work as an optical goods worker or surveillance
system monitor. Id.
STANDARD OF REVIEW
A court may set aside the Commissioner’s denial of benefits only when the
Commissioner’s findings are based on legal error or are not supported by substantial evidence in
the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “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 a conclusion.” Id. (internal
quotation omitted). The court considers the record as a whole, including both the evidence that
supports and detracts from the Commissioner’s decision. Id.; Lingenfelter v. Astrue, 504 F.3d
5 - OPINION & ORDER
1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational
interpretation, the ALJ’s decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal
quotation and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir.
2007) (“Where the evidence as a whole can support either a grant or a denial, [the court] may not
substitute [its] judgment for the ALJ’s”) (internal quotation omitted).
DISCUSSION
Plaintiff contends that the ALJ erred in concluding the she was not disabled. Specifically,
she contends that the ALJ (1) failed to give clear and convincing reasons for rejecting plaintiff’s
testimony regarding her pain and limitations, (2) failed to give clear and convincing reasons for
rejecting the opinion of Dr. Mark Litchman, (3) failed to properly credit the opinion of Dr.
Pamela Joffe, and (4) erred in finding that the Commissioner met his burden of proving that
plaintiff can perform work in the national economy. In response, defendant argues that the case
should be remanded for additional proceedings so that the ALJ can reconsider all the medical
evidence, with special attention to plaintiff’s ability to respond appropriately to work pressures,
and to reconsider the credibility of plaintiff’s testimony. Def.’s Resp. Br. 4-5.
Plaintiff first argues that the ALJ erred by rejecting Dr. Litchman’s opinion that plaintiff
would miss work more than two days a month. Pl.’s Br. 16. Social security law recognizes three
types of physicians: (1) treating, (2) examining, and (3) nonexamining. Holohan v. Massanari,
246 F.3d 1195, 1201-02 (9th Cir. 2001) (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
1995)). Generally, more weight is given to the opinion of a treating physician than to the opinion
of those who do not actually treat the claimant. Id. at 1202. If the treating physician’s opinion is
not contradicted, the ALJ may reject it only for “clear and convincing” reasons. Widmark v.
6 - OPINION & ORDER
Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).
In November 2006, Dr. Litchman noted that plaintiff was capable of light work, which
was explicitly defined as missing less than two days per month. Tr. 290. However, on the same
form, Dr. Litchman contradicted himself by noting that plaintiff would miss more than two days
per month. Id. Later in January 2008, Dr. Litchman noted that plaintiff would miss work about
three times per month due to her impairments. Tr. 364. The ALJ rejected that plaintiff would
miss three days of work per month by specifically citing to Dr. Litchman’s following treatment
notes by. Tr. 15.
•
•
•
May 9, 2007 - “Patient’s pain syndrom is markedly improved since switching to
OxyContin”. Tr. 309.
August 21, 2007 - Plaintiff’s pain “is pretty well managed with her present
medical regimen”. Tr. 348.
November 15, 2007 - Plaintiff’s fibromyalgia is “relatively stable”. Tr. 346.
A conflict in treatment notes may justify a decision to not give the treating physician’s opinion
controlling weight. Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). If the rejection
of Dr. Litchman’s opinion is solely based on these treatment notes, I do not find that this is clear
and convincing evidence. If there were other considerations that led the ALJ to reject Dr.
Litchman’s opinion that plaintiff would miss three days per month, the ALJ needs to articulate
those reasons.
Plaintiff also argues that the ALJ erred by not including all of Dr. Joffe’s limitations in
plaintiff’s RFC. Pl.’s Br. 18. Dr. Joffe, an examining psychologist, observed that plaintiff has a
marked limitation to respond appropriately to work pressures in a usual work environment. Tr.
374. Defendant agrees that the case should be remanded so that this potential limitation may be
analyzed further. Def.’s Resp. 4. In determining a claimant’s RFC, an ALJ must assess all the
7 - OPINION & ORDER
relevant evidence, including medical reports and witnesses’ descriptions of limitation, to
determine what capacity the claimant has for work. See 20 C.F.R. § 416.945(a). The ALJ states
that he included this limitation of responding to work pressures in both the light and sedentary
RFCs. Tr. 14. The hypothetical that an ALJ poses to a VE to determine what work a claimant
can perform “must include ‘all of the claimant’s functional limitations, both physical and mental’
supported by the record.” Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002) (quoting Flores
v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)). An RFC that fails to take into account a
claimant’s limitations is defective. Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009). I do not find that either of the ALJ’s RFCs incorporates this limitation, nor does
the ALJ provide any reason for rejecting this part of Dr. Joffe’s opinion. This omission is legal
error.
Plaintiff argues that the case should be remanded with an award of benefits. The decision
whether to remand for further proceedings or for immediate payment of benefits is within the
discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). 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.
Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir. 1989).
Under the “crediting as true” doctrine, evidence should be credited and an immediate
award of benefits directed where “‘(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
8 - OPINION & ORDER
required to find the claimant disabled were such evidence credited.’” Harman, 211 F.3d at 1178
(quoting Smolen, 80 F.3d at 1292). The “crediting as true” doctrine is not a mandatory rule in
the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award of
benefits upon reversing the Commissioner’s decision. Connett v. Barnhart, 340 F.3d 871, 876
(9th Cir. 2003).
Here, the record is unclear as to whether the limitation of responding to work pressures
was adequately presented to the VE. The discussion on this limitation morphed into a discussion
on plaintiff’s ability to pay attention and concentrate, and then into a discussion about the
number of days plaintiff would miss per month. Tr. 92-106. In instances where the VE has not
offered evidence regarding the vocational options, if any, when all of a claimant’s limitations are
presented to the VE, an award of benefits is inappropriate. Harman, 211 F.3d at 1180 (noting
that “[i]n cases where the testimony has failed to address a claimant’s limitations as established
by improperly discredited evidence, we consistently have remanded for further proceedings
rather than payment of benefits.”). The matter must be remanded for further proceedings
addressing the improperly evaluated evidence of Dr. Joffe. If necessary, the ALJ must also
reconsider plaintiff’s testimony to make a specific finding on credibility, revise the RFC analysis,
and apply the correct medical-vocational guideline or obtain VE testimony regarding plaintiff’s
workplace limitations.
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9 - OPINION & ORDER
CONCLUSION
The Commissioner’s decision is reversed and remanded for additional proceedings.
IT IS SO ORDERED.
Dated this 9th
day of August, 2011
/s/ Marco A. Hernandez
Marco A. Hernandez
United States District Judge
10 - OPINION & ORDER
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