Robertson v. Commissioner of Social Security Administration

Filing 18

Opinion and Order. This court concludes that pursuant to sentence four of 42:405(g), the decision of the Commissioner denying Kevin Robe1ison's application for disability benefits must be REVERSED and REMANDED FOR FURTHER PROCEEDINGS consistent with this ruling and the parameters provided herein. Signed on 4/18/2013 by Judge Ancer L. Haggerty. (sss)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

KEVIN ROBERTSON,

Case No. 3:12-cv-00669-HA

Plaintiff,
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

HAGGERTY, District Judge:
Plaintiff Kevin Robettson seeks judicial review of a final decision by the Commissioner
of the Social Security Administration denying his applications for Supplemental Security Income
(SSI) and Disability Insurance Benefits (DIB). This court has jurisdiction to review the
Commissioner's decision under 42 U.S. C. § 405(g). For the following reasons, the
Commissioner's decision must be reversed and remanded for fmther proceedings.

OPINION AND ORDER - 1

STANDARDS
A claimant is considered "disabled" under the Social Security Act if: (1) he or she is
unable to engage in any substantial gainfi.Jl activity (SGA) "by reason of any medically
determinable physical or mental impahment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve months," and
(2) the impahment is "of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." Hill v. Astrue, 688 F.Jd 1144,
1149-50 (9th Cir. 2012) (citing 42 U.S.C. § 1382c(a)(3); Tackettv. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999)); 42 U.S.C. § 423(d)(l )(A).
The Commissioner has established a five-step sequential evaluation process for
detetmining if a person is eligiblefor benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a). In steps
one through four, the Commissioner must determine whether the claimant: (1) has not engaged in
SGA since his or her alleged disability onset date; (2) suffers from severe physical or mental
impahments; (3) has severe impairments that meet or medically equal any of the listed
impahments that automatically qualifY as disabilities under the Social Security Act; and (4) has a
residual functional capacity (RFC) that prevents the claimant from performing his or her past
relevant work. !d. An RFC is the most an individual can do in a work setting despite the total
limiting effects of all his or her impairments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l), and
Social Security Ruling (SSR) 96-8p. The claimant bears the burden of proof on the first four
steps to establish his or her disability.

OPINION AND ORDER- 2

At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist
in a significant number in the national economy that the claimant can perform given his or her
RFC, age, education, and work experience. Gomez v. Chater, 74 F.3d 967,970 (9th Cir. 1996).
If the Commissioner cannot meet this burden, the claimant is considered disabled for purposes of
awarding benefits. 20 C.F.R. §§ 404.1520(±)(1), 416.920(a). On the other hand, if the
Commissioner can meet its burden, the claimant is deemed to be not disabled for purposes of
determining benefits eligibility. Id.
The Commissioner's decision must be affirmed if it is based on the proper legal standards
and its findings are supported by substantial evidence in the record as a whole. 42 U.S.C. §
405(g); Tackett, 180 F.3d at 1097; Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is more than a scintilla but less than apreponderance; it is "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Sandgathe v.

Chafer, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).
When reviewing the decision, the court must weigh all of the evidence, whether it
supp01is or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The
Commissioner, not the reviewing court, must resolve conflicts in the evidence, and the
Commissioner's decision must be upheld in instances where the evidence supp01is either
outcome. Reddickv. Chafer, 157 F.3d 715,720-21 (9th Cir. 1998). If, however, the
Commissioner did not apply the proper legal standards in weighing the evidence and making the
decision, the decision must be set aside. Id. at 720.

Ill
Ill
OPINION AND ORDER - 3

FACTUAL AND PROCEDURAL HISTORY
Plaintiff was bom on January 7, 1959. He graduated from high school and has prior work
experience as a water worker for a municipality. Plaintiff has acquired sufficient quarters of
coverage to remain insured through December 31, 2010.
Plaintiff applied for SSI on January 28, 2010 and for DIB on February 9, 2010. In both
applications, he alleged a disability onset date of June 15,2005. His applications were denied
initially and upon reconsideration. At plaintiff's request, an Administrative Law Judge (ALJ)
conducted a hearing on November 29, 2011. The ALJ heard testimony from plaintiff, who was
represented by counsel, as well as an independent vocational expert (VE).
On December 19, 2011, the ALJ issued a decision finding that plaintiff was not disabled
under the Act. At step one of the sequential analysis, the ALJ found that plaintiff had not
engaged in SGA since his alleged disability onset date. Tr. 15, Finding 2. 1 At step two, the ALJ
found that plaintiff suffered from the following medically dete1minable severe impairments:
cervical degenerative disc disease; thoracic degenerative disc disease; peripheral neuropathy;
depression; and anxiety. Tr. 15, Finding 3. The ALJ found that plaintiff's present lung condition
was a non-severe impairment because it did not meet the durational requirement. Tr. 15. After
considering plaintiff's severe and non-severe impairments, the ALJ determined that plaintiff did
not have an impairment or combination of impairments that meets or equals a listed impairment
in 20 C.F.R. Pmi 404, Subpmi P, Appendix 1. Tr. 15 Finding 4.

1

"Tr." refers to the Transcript of the Administrative Record.

OPINION AND ORDER- 4

The ALJ then dete1mined that plaintiff had the RFC to perform less than a full range of
light work. Tr. 17, Finding 5. The ALJ found that plaintiff can left twenty pounds occasionally,
and ten pounds frequently. Id He can occasionally climb ramps, stairs, ladders, ropes, and
scaffolds; he can occasionally stoop, kneel, crouch, and crawl; he can frequently balance; he can
occasionally reach overhead bilaterally; he should avoid even moderate exposure to hazards; he
can understand, remember, and carry out simple instructions; and he should have only occasional
contact with the public. !d.
Based on plaintiffs RFC and testimony from the VE, the ALJ found that plaintiff was
incapable of performing his past relevant work. Tr. 20, Finding 6. However, the ALJ found that
plaintiff could perform other work existing in significant numbers in the national economy, such
as small product assembly and light janitorial work. Tr. 21, Finding 10. Therefore, the ALJ
concluded that plaintiff was not disabled. The Appeals Council denied plaintiffs request for
administrative review, making the AU's decision the final decision of the Commissioner.
Plaintiff subsequently initiated this action seeking judicial review.
DISCUSSION
Plaintiff asserts that the ALJ ened at steps four and five of the sequential analysis by
rejecting medical opinion evidence, improperly discrediting plaintiffs testimony, and ignoring
relevant lay witness testimony. Plaintiff contends that these errors resulted in an incomplete RFC
and deficient questioning of the VE.

1.

Medical opinion evidence

Plaintiff asserts that the ALJ improperly rejected medical opinion evidence in this case.
Where a treating or examining physician's opinion is not contradicted by another doctor's

OPINION AND ORDER- 5

opinion, the ALJ may reject it only by stating clear and convincing reasons supp01ied by
substantial evidence in the record. Regennitter v. Comm'r. ofSoc. Sec. Admin., 166 F.3d 1294,
1298-99 (9th Cir. 1999); Lester v. Chafer, 81 F.3d 821,830 (9th Cir. 1995). If the treating
physician's opinion is contradicted by another doctor, it can be rejected for specific and legitimate
reasons supported by substantial evidence in the record. !d. In general, less weight should be
given to the opinion of a non-examining source than to an examining or treating source. Hill v.
As/rue, 698 F.3d 1153, 1160 (9th Cir. 2012) (citation omitted) .. Therefore, the opinion of a non-

examining physician cannot by itself constitute substantial evidence that justifies an AU's
rejection of a treating or examining physician's opinion. Lester, 81 F.3d at 831.

A.

Treating physician

Plaintiff contends that the ALJ failed to discuss any evidence from Paul J. Haddeland,
M.D., who had been plaintiffs treating physician from 2000 through 2011. Defendant responds
that because the ALJ cited to Dr. Haddeland's treatment notes, no error exists. This comi agrees
that the ALJ has appropriately considered Dr. Haddeland's observations and treatment records.
See Tr. 16, 18. Moreover, the records do not contain any opinions or evaluations regarding

plaintiffs ability to work, or his physical limitations and mental limitations that would affect his
ability to work. At most, the records supp01i the diagnoses of depression, anxiety, and neck pain
that the ALJ incorporated into his findings.

B.

Examining physicians

Plaintiff also asserts that the ALJ failed to give proper weight to the opinions of two
examining physicians, Raymond Nolan, M.D., Ph.D., P.C., and Nick Dietlein, Psy.D. In June of
2010, Dr. Nolan conducted a physical examination of plaintiff. Tr. 277. The examination

OPINION AND ORDER - 6

revealed mild to moderate stenosis in plaintiff's cervical spine, some posterior pain in his hips, a
wide gait, and that plaintiff had difficultly with a tandem gait. Tr. 277-78. Doctor Nolan opined
that plaintiff had chronic neck pain, chronic low back pain, possible carpal tunnel syndrome,
peripheral neuropathy, and a wide based gait with a history of alcoholism that suggests some
cerebellar dysfunction. Tr. 278. He recommended that plaintiff minimize his bending, twisting,
turning, activities involving head and neck movement, pushing and pulling with upper
extremities, and the overhead use of his upper extremities. I d. He opined that plaintiff could sit
for six hours with the opportunity to change positions for comfort, and stand or walk for two to
four hours. Jd.
Plaintiff was also examined by Dr. Dietlein, a licensed clinical psychologist, in March of
2010. Tr. 272-75. Doctor Dietlein diagnosed plaintiff with generalized anxiety disorder, major
depressive disorder, alcohol abuse in patiial sustained remission (per plaintiff's report), and a
Global Assessment of Functioning (OAF) score of 45. Tr. 275. Doctor Dietlein opined that
plaintiff is able to understand and remember instructions, able to sustain his concentration and
attention, and able to persist. Jd.
The ALJ adopted some aspects of the examining physicians' opinions, but plaintiff
contends that the ALJ improperly rejected Dr. Nolan's walking limitation and Dr. Dietlein's OAF
score. Because these physicians' opinions were contradicted by the opinions of the state agency
physicians, the ALJ could reject the examining physicians opinions by stating specific and
legitimate reasons. See Regennitter, 166 F.3d at 1298-99. In giving only partial weight to the
examining physicians' opinions, the ALJ concluded that their findings were inconsistent with the

OPINION AND ORDER - 7

objective medical record and plaintiffs rep01ied activities. This court disagrees with respect to
the walking limitation, but agrees with the ALI's finding as to the GAF score.
Doctor Nolan's walking restrictions are consistent with his objective findings, plaintiffs
testimony, and third patiy observations. Plaintiffs statements that he was able to complete
household chores and daily activities "in spmis" or with frequent breaks are consistent with Dr.
Nolan's assessment. See Tr. 33-34, 278. Although the non-examining agency physician opined
that plaintiff could stand or walk for six hours, this opinion alone is insufficient to reject the
examining physician's opinion. Lester, 81 F.3d at 831. Accordingly, the ALJ's rejection of Dr.
Nolan's standing and walking limitation is not supported by substantial evidence.
The ALI, however, appropriately discussed Dr. Dietlein's GAF score and accompanying
findings. The ALJ acknowledged that plaintiffs GAF score indicated serious symptoms, but also
noted that Dr. Deitlein observed normal cognitive functioning, normal memory, and opined that
plaintiff was able to understand, concentrate, and persist. Tr. 19,275. The ALI properly
incorporated all of those findings into plaintiffs RFC. Accordingly, the ALI did not need to
provide specific and legitimate reasons for rejecting Dr. Dietlein's GAF score because the ALI
incorporated all of his opinions about plaintiffs limitations into the RFC. Turner v. Comm'r, 613
F.3d 1217, 1222-23 (9th Cir. 2010).

3.

Plaintiffs hand limitations

Plaintiff contends that the ALI improperly excluded any limitations related to plaintiffs
hands in the RFC. Although defendant's response addresses issues of plaintiffs credibility in
general, plaintiff only challenged the ALI's failure to include functional limitations in plaintiffs
hands that arose from his peripheral neuropathy. See Pl.'s Br. at 14-15. Upon review of the
OPINION AND ORDER- 8

record, substantial evidence supports the ALJ's decision to exclude hand limitations. Dr. Nolan's
examination revealed normal wrist, arm, hand, and finger movement, and plaintiff points to no
other evidence indicating that he has hand limitations. Tr. 277-78; see also Tr. 213 (step-mother
reports no hand limitations). To the extent that plaintiff relies on his own testimony about his
hand issues, the ALJ gave clear and convincing reasons for rejecting those limitations. See Light
v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (noting that an ALJ may reject a
claimant's subjective complaints based on the claimant's daily activities and the observations of
physicians or other third parties regarding the claimant's symptoms).

4.

Lay testimony

Lastly, plaintiff asserts that the ALJ failed to properly evaluate the lay witness statement
from plaintiffs step-mother, Stacy Robe1ison. In dete1mining whether a claimant is disabled, an
ALJ must consider lay witness testimony conceming a claimant's ability to work, limitations, or
symptoms. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (citations omitted). Such
testimony cannot be disregarded unless the ALJ provides specific reasons germane to each lay
witness. I d. at 1115.
Here, the ALJ gave "some weight" to Ms. Robertson's statement. Tr. 20. The ALJ
explained that Ms. Robe1ison repmied that plaintiff has difficulties with physical activities and
completing tasks, but also repmied that plaintiff can walk one to two hundred yards before
needing a break, and can complete most household chores with breaks. Id. The ALJ concluded
that the limitations that Ms. Robertson identified were not greater than those adopted by the ALJ.

Id. This court disagrees. Plaintiffs RFC does not incorporate plaintiffs need for frequent breaks
to perform the activities of daily living described by Ms. Robe1ison, which are consistent with
OPINION AND ORDER- 9

the standing and walking limitations outlined by Dr. Nolan. Tr. 209-13 (noting that plaintiff
takes long periods to complete personal care, cannot stand long enough to complete full meals,
needs frequent rests to complete chores).

5.

Remedy

To meet its burden at step five of the sequential analysis, the Commissioner may rely on
the testimony of a VE. Lockwood v. Comm 'r Soc. Sec. Admin., 616 F .3d 1068, 1071 (9th Cir.
201 0) (citation omitted). To constitute substantial evidence, the ALJ must pose a hypothetical
question to a VE that includes all of the claimant's functional limitations that are supported by the
record. Thomas v. Barnhart, 278 F.3d 947, 956 (9th Cir. 2002). If the hypothetical fails to take
into account all of the claimant's limitations, it is defective and cannot provide substantial
evidence for the ALJ's ultimate disability dete1mination. Valentine, 574 F.3d at 690. Because
the ALJ did not incorporate the standing or walking limitations offered by Dr. Nolan into
plaintiffs RFC or the hypothetical question posed to the VE, the VE's testimony does not
constitute substantial evidence to support the ALJ's findings. See Gallant v. Heckler, 753 F.2d
1450, 1456 (9th Cir. 1984) (noting that the hypothetical question should include all of a
claimant's exertional capabilities that are supported by the medical evidence). Accordingly, a
remand for further proceedings is wananted.
When an ALJ's denial of benefits is not supported by the record, "the proper course,
except in rare circumstances, is to remand to the agency for additional investigation or
explanation." Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (intemal quotation marks
omitted). A remand for further proceedings is unnecessary if the record is fully developed, and it
is clear from the record that the· ALJ would be required to award benefits. Holohan v.

OPINION AND ORDER- 10

lvfassanari, 246 F.3d 1195, 1210 (9th Cir. 2001). The decision whether to remand for fmiher
proceedings turns upon the likely utility of such proceedings. Harman v. Apfel, 211 F.3d 1172,
1179 (9th Cir. 2000).
In this case, the ALI improperly rejected medical opinion evidence as to plaintiffs
standing and walking limitations, and the VE was never given the oppmiunity to address
plaintiffs ability to perform any work with consideration for these limitations. This comi
therefore concludes that outstanding issues remain that must be resolved before a detennination
of disability can be made. See Harman, 211 F.3d at 1180 ("In cases where the testimony of the
[VE] 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."). Upon remand, the ALJ shall address the limitations outlined in Dr. Nolan's opinion
and Ms. Robe1ison's lay witness statement, and may reconsider the weight given to plaintiffs
testimony in light of that evidence.

CONCLUSION
For the reasons provided, this court concludes that pursuant to sentence four of 42 U.S.C.

§ 405(g), the decision of the Commissioner denying Kevin Robe1ison's application for disability
benefits must be REVERSED and REMANDED FOR FURTHER PROCEEDINGS consistent
with this ruling and the parameters provided herein.
IT IS SO ORDERED.
DATED this

_j_%_ day of April, 2013.

Ancer L. Haggerty
United States District Judge
OPINION AND ORDER- 11