Jones v. Commissioner Social Security Administration
Filing
25
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 10/19/2012 by Judge Anna J. Brown. See attached 14 page Opinion and Order. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LAURA JONES,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
MERRILL SCHNEIDER
P.O. Box 14490
Portland, OR 97293
(503) 255-9092
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1 - OPINION AND ORDER
3:11-CV-01106-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
KATHRYN ANN MILLER
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 901
Seattle, WA 98104
(206) 615-2240
Attorneys for Defendant
BROWN, Judge.
Plaintiff Laura Jones seeks judicial review of a final
decision of the Commissioner of the Social Security Administration (SSA) in which he denied Plaintiff's application for
Disability Insurance Benefits (DIB) under Title II of the Social
Security Act and Plaintiff's application for Supplemental
Security Income (SSI) under Title XVI of the Social Security Act
for the period before August 1, 2008.
This Court has
jurisdiction to review the Commissioner's final decision pursuant
to 42 U.S.C. § 405(g).
Following a review of the record, the Court REVERSES the
decision of the Commissioner and REMANDS this matter for further
proceedings.
ADMINISTRATIVE HISTORY
Plaintiff protectively filed her applications for SSI and
DIB on February 24, 2003, and alleged a disability onset date of
2 - OPINION AND ORDER
February 1, 2001.
Tr. 16, 66.1
The applications were denied
initially and on reconsideration.
An Administrative Law Judge
(ALJ) held a hearing on September 4, 2009.
Tr. 1130-50.
hearing, Plaintiff was represented by an attorney.
At the
Plaintiff and
a vocational expert (VE) testified.
The ALJ issued a decision on September 16, 2009, in which he
found Plaintiff is not entitled to DIB and is entitled to SSI
benefits only for the period after August 1, 2008.
Tr. 16-28.
That decision became the final decision of the Commissioner on
July 13, 2011, when the Appeals Council denied Plaintiff's
request for review.
Tr. 1-5.
BACKGROUND
Plaintiff was born on August 2, 1967, and was 48 years old
at the time of the hearing.
education.
Tr. 1134.
Tr. 66.
Plaintiff has a tenth-grade
Plaintiff has past relevant work
experience as a sales clerk.
Tr. 26.
Plaintiff alleges disability due to depression, a brain
tumor, panic attacks, post-traumatic stress disorder (PTSD), and
a heart condition.
Tr. 92.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
1
After carefully reviewing the
Citations to the official transcript of record filed by
the Commissioner on January 30, 2012, are referred to as "Tr."
3 - OPINION AND ORDER
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 19, 22-25.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
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."
§ 423(d)(1)(A).
42 U.S.C.
The ALJ must develop the record when there is
ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.
McLeod v. Astrue, 640 F.3d
881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (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.
U.S.C. § 405(g).
42
See also Brewes v. Comm’r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is
“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”
Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
4 - OPINION AND ORDER
(9th Cir. 2009)).
It is more than a mere scintilla [of evidence]
but less than a preponderance.
Id. (citing Valentine, 574 F.3d
at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
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
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I).
See
also Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
2011).
5 - OPINION AND ORDER
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii), 416.920(a)(4)(ii).
20 C.F.R. §§ 404.1509,
See also Keyser, 648 F.3d
at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.
20 C.F.R.
See also Keyser, 648
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.
See also Social Security Ruling
“A 'regular and continuing basis' means 8 hours a
day, for 5 days a week, or an equivalent schedule."
at *1.
20 C.F.R.
SSR 96-8p,
In other words, the Social Security Act does not require
complete incapacity to be disabled.
Taylor v. Comm’r of Soc.
Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
6 - OPINION AND ORDER
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At 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.
416.920(a)(4)(iv).
20 C.F.R. §§ 404.1520(a)(4)(iv),
See also Keyser, 648 F.3d at 724.
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.
416.920(a)(4)(v).
20 C.F.R. §§ 404.1520(a)(4)(v),
See also Keyser, 648 F.3d at 724-25.
Here the
burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010).
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 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 February 1, 2001, onset
date.
Tr. 18.
At Step Two the ALJ found Plaintiff had the severe
7 - OPINION AND ORDER
impairments of depression, "brain tumor status post surgery in
2003," obesity, and headaches from her February 1, 2001, onset
date to August 1, 2008.
Tr. 18.
The ALJ also found Plaintiff
has suffered from the severe impairments of "brain tumor status
post surgeries in 2003 and 2008," myocardial infarction,
congestive heart failure, depression, anxiety disorder, obesity,
and headaches since August 1, 2008.
Tr. 18.
At Step Three the ALJ concluded Plaintiff's impairments do
not meet or equal the criteria for any Listed Impairment from 20
C.F.R. part 404, subpart P, appendix 1.
The ALJ found Plaintiff
had the RFC to perform light work before August 1, 2008, "except
that [Plaintiff] was limited to only occasional stooping,
crouching, crawling, kneeling, balancing, or climbing" and was
able to understand, to remember, and to carry out only short,
simple instructions.
Tr. 21.
The ALJ found Plaintiff had the
ability to perform sedentary work after August 1, 2008, but "due
to fatigue, she is unable to sustain the persistence and pace of
full-time employment."
Tr. 25.
At Step Four the ALJ concluded Plaintiff was able to perform
her past relevant work as a sales clerk before August 1, 2008,
but after August 1, 2008, Plaintiff was unable to perform that
past relevant work.
Tr. 26.
At Step Five the ALJ found Plaintiff could not perform any
jobs that exist in significant numbers in the national economy
8 - OPINION AND ORDER
after August 1, 2008.
Tr. 27.
Accordingly, the ALJ found
Plaintiff is disabled and eligible for SSI benefits beginning
August 1, 2008.2
DISCUSSION
Plaintiff contends the ALJ erred (1) at Step Three when he
improperly found Plaintiff's impairments did not equal any
Listing and (2) improperly and implicitly rejected the opinion of
James V. Makker, M.D., treating surgeon.
I.
The ALJ erred when he improperly found at Step Three that
Plaintiff's impairments did not equal a Listing.
At Step Three the Commissioner must determine whether a
claimant’s impairments meet or equal one of the listed
impairments that the Commissioner acknowledges are so severe as
to preclude substantial gainful activity.
20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
Social Security
Ruling 96-6P provides in pertinent part:
[L]ongstanding policy requires that the judgment
of a physician (or psychologist) designated by the
Commissioner on the issue of equivalence on the
evidence before the administrative law judge or
the Appeals Council must be received into the
record as expert opinion evidence and given
appropriate weight.
The signature of a State agency medical or
psychological consultant on an SSA-831-U5
2
Plaintiff's date last insured is September 20, 2005. The
ALJ, therefore, concluded Plaintiff was not disabled before her
date last insured and, thus not entitled to DIB.
9 - OPINION AND ORDER
(Disability Determination and Transmittal Form) or
SSA-832-U5 or SSA-833-U5 (Cessation or Continuance
of Disability or Blindness) ensures that
consideration by a physician (or psychologist)
designated by the Commissioner has been given to
the question of medical equivalence at the initial
and reconsideration levels of administrative
review. Other documents, including the
Psychiatric Review Technique Form and various
other documents on which medical and psychological
consultants may record their findings, may also
ensure that this opinion has been obtained at the
first two levels of administrative review.
When an administrative law judge or the Appeals
Council finds that an individual's impairment(s)
is not equivalent in severity to any listing, the
requirement to receive expert opinion evidence
into the record may be satisfied by any of the
foregoing documents signed by a State agency
medical or psychological consultant
As noted, the ALJ found at Step Three that Plaintiff's
impairments do not medically equal one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The record
reflects Plaintiff's "original file was lost and [was]
reconstructed to the extent possible[; however,] the record does
not contain any opinion from State Agency medical or
psychological consultants."
Tr. 24.
SSR 96-6P makes clear that
the ALJ may not make an equivalency finding without obtaining the
opinion of a "[s]tate agency medical or psychological consultant"
or an updated medical opinion from a medical expert.
Here the
ALJ did not obtain either the opinion of a state agency medical
or psychological consultant or an updated opinion from a medical
expert.
10 - OPINION AND ORDER
The Court, therefore, concludes the ALJ erred at Step Three
when he made a finding of equivalence without the required
medical evidence to support such a finding.
II.
The ALJ erred when he improperly rejected Dr. Makker's
opinion.
Plaintiff contends the ALJ erred when he improperly failed
to provide legally sufficient reasons for rejecting the opinion
of Dr. Makker, Plaintiff's treating physician.
An ALJ may reject an examining physician's opinion when it
is inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial
evidence in the record."
Thomas v. Barnhart, 278 F.3d 947, 957
(9th Cir. 2002)(quoting Magallanes v. Bowen, 881 F.2d 747, 751
(9th Cir. 1989)).
When the medical opinion of an examining
physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
957.
Thomas, 278 F.3d at
See also Lester v. Chater, 81 F.3d at 830-32.
On September 9, 2009, Dr. Makker completed a form3 setting
out Plaintiff's impairments and his opinion as to their effect on
her ability to perform work during the relevant period.
Tr. 1125-29.
Dr. Makker noted he has been Plaintiff's treating
3
Plaintiff's counsel provided Dr. Makker with the form on
August 26, 2009, which was prior to the September 4, 2009,
hearing before the ALJ.
11 - OPINION AND ORDER
surgeon for brain tumors since March 2003.
He reported Plaintiff
suffers from moderate to severe headaches as a result of her
various impairments.
Tr. 1125-26.
Dr. Makker opined the
medications that Plaintiff takes regularly for her headaches
cause her to suffer moderate impairments in her concentration,
persistence, or pace, and Plaintiff's activities of daily living
are markedly limited by her headaches.
Tr. 1128.
Dr. Makker
stated he would expect Plaintiff to miss more than two days of
work per month due to her impairments and medications.
Tr. 1128.
In addition, Dr. Makker opined Plaintiff met Listing 11.05 and
had been limited by her impairments and the side effects from her
medications "since on or before September 30, 2005."
Tr. 1126,
1129.
Although Dr. Makker's form was submitted to the ALJ after
the September 4, 2009, hearing, Plaintiff asserts Dr. Makker's
opinion was, in fact, before the ALJ prior to the issuance of his
September 16, 2009, decision.4
Nevertheless, the ALJ did not
address Dr. Makker's opinion in his decision.
Accordingly, the
Court finds the ALJ erred when he failed to provide legally
sufficient reasons for failing to address and/or to explicitly
reject Dr. Makker's September 9, 2009, opinion.
4
Defendant does not dispute Plaintiff's assertion that the
ALJ had Dr. Makker's form before he issued his September 16,
2009, decision. In addition, it is undisputed that Dr. Makker's
opinion was before the Appeals Council prior to their July 13,
2011, denial of Plaintiff's request for review.
12 - OPINION AND ORDER
REMAND
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
1179 (9th Cir. 2000).
Harman v. Apfel, 211 F.3d 1172,
When "the record has been fully developed
and further administrative proceedings would serve no useful
purpose, the district court should remand for an immediate award
of benefits."
Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.
2004).
The decision whether to remand this case for further
proceedings or for the payment of benefits is a decision within
the discretion of the court.
Harman, 211 F.3d 1178.
The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
Harman, 211 F.3d at 1178.
The
Court should grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting . . .
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.
As noted, the Court has determined the ALJ erred at Step
13 - OPINION AND ORDER
Three when he made an equivalency finding without supporting the
finding with medical evidence.
In addition, the ALJ failed to
address the opinion of Dr. Makker that Plaintiff suffered from
serious impairments that would impact her ability to perform work
in the national economy before her September 30, 2005, date last
insured.
The Court, therefore, remands this matter for further
administrative proceedings consistent with this Opinion and Order
for the purpose of obtaining the required medical evidence to
make a sufficient equivalency finding and to evaluate
Dr. Makker's September 9, 2009, opinion.
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 19th day of October, 2012.
ANNA J. BROWN
United States District Judge
14 - OPINION AND ORDER
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