Givens v. Commissioner Social Security Administration
Filing
28
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. See attached 17 page Opinion and Order for full text. Signed on 02/19/2014 by Judge Anna J. Brown. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SHERI ANN GIVENS,
Plaintiff,
3:12-CV-01790-BR
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,1
Defendant.
KATHRYN TASSINARI
MARK A. MANNING
Harder, Wells, Baron & Manning, P.C.
474 Willamette
Suite 200
Eugene, OR 97401
(541) 686-1969
Attorneys for Plaintiff
1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case. No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405.
1 - OPINION AND ORDER
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
DAVID MORADO
Regional Chief Counsel
JEFFREY R. McCLAIN
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2732
Attorneys for Defendants
BROWN, Judge.
Plaintiff Sheri A. Givens seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act and Supplemental Security Income (SSI) under
Title XVI of the Social Security Act.
This Court has juris-
diction 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 protectively filed her applications for SSI and
DIB on October 2, 2008, and alleged a disability onset date of
May 31, 2007.
Tr. 133.2
and on reconsideration.
The applications were denied initially
An Administrative Law Judge (ALJ) held a
hearing on October 8, 2010.
Tr. 35-77.
Plaintiff was
represented by an attorney at the hearing.
Plaintiff and a
vocational expert (VE) testified at the hearing.
The ALJ issued a decision on February 23, 2011, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 13-34.
Pursuant to 20 C.F.R. § 404.984(d),
that decision became the final decision of the Commissioner on
August 8, 2012, when the Appeals Council denied Plaintiff's
request for review.
BACKGROUND
Plaintiff was born on April 15, 1966.
was 44 years old at the time of the hearing.
Tr. 222.
Plaintiff
Plaintiff has a
high-school education with one year of college classes.
324.
Tr. 42,
Plaintiff has past relevant work experience as an assistant
garden manager, bookkeeper, “customer advocate/customer order
clerk,” general office clerk, and warehouseman.
2
Tr. 28.
Citations to the official transcript of record filed by
the Commissioner on May 24, 2013, are referred to as "Tr."
3 - OPINION AND ORDER
Plaintiff alleges disability due to depression, diabetes,
“muscle lain,” and high cholesterol.
Tr. 160.
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. 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.,
4 - OPINION AND ORDER
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
(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
5 - OPINION AND ORDER
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).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairments or combination of impairments.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
20 C.F.R.
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, she 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 her 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
6 - OPINION AND ORDER
day, for 5 days a week, or an equivalent schedule."
at *1.
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
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, she 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.
416.920(g)(1).
7 - OPINION AND ORDER
20 C.F.R. §§ 404.1520(g)(1),
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged
in substantial gainful activity since her May 31, 2007, alleged
onset date.
Tr. 18.
At Step Two the ALJ found Plaintiff has the severe
impairments of obesity, diabetes, chronic pain, anxiety, and
degenerative disc disease of the lumbar spine.
Tr. 19.
The ALJ
found Plaintiff's degenerative disc disease of the cervical and
thoracic spine and carpal tunnel syndrome are not severe
impairments.
Tr. 19.
At Step Three the ALJ found Plaintiff’s impairments do not
meet or equal the criteria for any impairment in the Listing of
Impairments.
work.
Tr. 19.
Tr. 21.
The ALJ found Plaintiff can perform light
The ALJ found Plaintiff can sit, stand, and walk
for six hours in an eight-hour work day; cannot climb ladders,
ropes, or scaffolds; and can occasionally stoop, crouch, crawl,
kneel, and climb ramps and stairs.
Tr. 21.
At Step Four the ALJ concluded Plaintiff can perform her
past relevant work as a bookkeeper, customer-order clerk, and
general office clerk.
Tr. 28.
Accordingly, the ALJ found
Plaintiff is not disabled and, therefore, is not entitled to
benefits.
8 - OPINION AND ORDER
DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
rejected Plaintiff’s testimony, (2) improperly rejected the
opinions of examining and reviewing physicians and psychologists,
and (3) improperly concluded Plaintiff could perform her past
relevant work.
I.
The ALJ gave clear and convincing reasons for partially
rejecting Plaintiff’s testimony.
Plaintiff alleges the ALJ erred when he failed to give clear
and convincing reasons for partially rejecting Plaintiff's
testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).
Cotton, 799 F.2d 1403, 1407 (9th
The claimant, however, need not produce objective
medical evidence of the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so.
9 - OPINION AND ORDER
Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th
Cir. 1995)).
General assertions that the claimant's testimony is
not credible are insufficient.
Id.
The ALJ must identify "what
testimony is not credible and what evidence undermines the
claimant's complaints."
Id. (quoting Lester, 81 F.3d at 834).
The ALJ found Plaintiff’s “medically determinable
impairments could reasonably be expected to cause [Plaintiff's]
alleged symptoms,” but he concluded Plaintiff’s testimony
“concerning the intensity, persistence, and limiting effects” of
her symptoms “are not credible to the extent they are
inconsistent with the [RFC]."
Tr. 21.
The ALJ noted the most
recent MRI of Plaintiff’s lumbar spine found only moderate disc
narrowing at the L4-5 and a moderate disc protrusion at L5 with
“mild face degenerative change.”
Tr. 23, 396.
According to the
ALJ, the record reflects Plaintiff’s pain was effectively managed
with medication and “fairly routine and conservative treatment.”
Tr. 23, 28.
For example, on June 2, 2010, Plaintiff described
her pain level as a four and stated the combination of Darvocet
and Lyrica made her pain bearable.
Tr. 23, 474.
Although
Plaintiff reported to the emergency room on August 17, 2010,
complaining of back pain, the record reflects Plaintiff had run
out of Lyrica and her prescription was renewed.
Tr. 23, 441.
The ALJ points out that none of Plaintiff’s treating doctors
“proffer[ed] any limitations” and “consistently encouraged”
10 - OPINION AND ORDER
movement and exercise.
Tr. 23.
The ALJ noted Plaintiff’s treating physician described
Plaintiff in September 2009 as “nonadherent much of the time”
with diabetic dietary and exercise recommendations and
“nonadherent some of the time” with her diabetes medication.
Tr. 23, 460.
Nevertheless, Plaintiff’s treating doctors
concluded Plaintiff did not require insulin because her diabetes
is “uncomplicated and controlled.”
Tr. 24, 457.
In addition, the ALJ noted Plaintiff’s treating physician,
Annette Stephens, M.D., concluded Plaintiff’s “pain diagram is
extremely not consistent with [her] MRI or exam findings and just
does not appear to make sense.”
Tr. 28, 477.
On this record the Court finds the ALJ provided clear and
convincing reasons supported by substantial evidence in the
record for finding Plaintiff's testimony was not entirely
credible as to the intensity, persistence, and limiting effects
of her conditions.
The Court, therefore, concludes the ALJ did
not err when he rejected Plaintiff's testimony in part.
II.
Examining and reviewing physicians’ opinions.
Plaintiff contends the ALJ erred when he gave little weight
to the opinion of examining psychologist Ryan Coon, Psy.D., and
failed to address portions of the assessment of reviewing
psychologist James Bailey, Ph.D.
An ALJ may reject an examining physician's opinion when it
11 - OPINION AND ORDER
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 or
treating physician is uncontroverted, however, the ALJ must give
"clear and convincing reasons" for rejecting it.
F.3d at 957.
Thomas, 278
See also Lester v. Chater, 81 F.3d 821, 830-32 (9th
Cir. 1995).
A nonexamining physician is one who neither examines nor
treats the claimant.
Lester, 81 F.3d at 830.
"The opinion of a
nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician."
Id. at 831.
When
a nonexamining physician's opinion contradicts an examining
physician's opinion and the ALJ gives greater weight to the
nonexamining physician's opinion, the ALJ must articulate his
reasons for doing so.
See, e.g., Morgan v. Comm'r of Soc. Sec.
Admin, 169 F.3d 595, 600-01 (9th Cir. 1999).
A nonexamining
physician's opinion can constitute substantial evidence if it is
supported by other evidence in the record.
A.
Id. at 600.
Dr. Coon
On December 3, 2008, Dr. Coon conducted a psychological
12 - OPINION AND ORDER
diagnostic evaluation of Plaintiff.
Dr. Coon concluded Plaintiff
was “struggling with a high degree of depression and anxiety” and
assessed Plaintiff with a GAF of 46.3
Tr. 326.
Dr. Coon noted
“unless [Plaintiff] is able to stabilize her mood via effective
treatment, her prognosis is poor.”
Tr. 326.
The ALJ gave
“little weight” to Dr. Coon’s opinion because Plaintiff “has a
network of friends through her church and a strong connection to
family.”
Tr. 25.
Dr. Coon, however, specifically found
Plaintiff to be “somewhat impaired by a high degree of
helplessness . . . which makes her very dependent on others”
including her family and members of her church.
Tr. 326.
The ALJ also found Dr. Coon’s opinion to be unsupported
by the opinions of reviewing Disability Determination Services
(DDS)4 examiners.
Specifically, Thomas Clifford, Ph.D., and
Dr. Bailey diagnosed Plaintiff with a chronic major depressive
disorder, but they concluded she had only mild restrictions in
activities of daily living and in maintaining concentration,
3
The GAF scale is used to report a clinician’s judgment of
the patient’s overall level of functioning on a scale of 1 to
100. A GAF of 41-50 indicates serious symptoms (suicidal
ideation, severe obsessional rituals frequent shoplifting) or any
serious impairment in social, occupational, or school functioning
(e.g., few friends, unable to keep a job). Diagnostic and
Statistical Manual of Mental Disorders IV (DSM-IV) 31-34 (4th ed.
2000).
4
DDS is a federally funded state agency that makes
eligibility determinations on behalf and under the supervision of
the Social Security Administration pursuant to 42 U.S.C. § 421(a)
and 20 C.F.R. § 416.903.
13 - OPINION AND ORDER
persistence, and pace.
Tr. 25, 342.
The record, however,
reflects various treating medical sources have noted Plaintiff’s
depression is “likely playing a factor in her multiple pain
issues,” “counseling for [Plaintiff’s depression] may help her
[with her pain issues] as much as anything,” and Plaintiff’s
“memory problems are most likely from depression.”
Tr. 377, 381,
385.
On this record the Court concludes the ALJ erred when
he gave little weight to the opinion of Dr. Coon that Plaintiff
is “struggling with a high degree of depression and anxiety”
because he did not provide clear and convincing reasons supported
by substantial evidence in the record for doing so.
B.
Dr. Bailey
“The Commissioner may reject the opinion of a
non-examining physician by reference to specific evidence in the
medical record.”
Cir. 1998).
Sousa v. Callahan, 143 F.3d 1240, 1244 (9th
See also Manzo v. Social Sec. Admin., No. 10-CV-
1062–HZ, 2011 WL 4828818, at *7 (D. Or. Oct. 11, 2011)(same).
As noted, reviewing psychologist Dr. Bailey found
Plaintiff suffers from a chronic major depressive disorder, but
he concluded Plaintiff had only mild restrictions in activities
of daily living and in maintaining concentration, persistence,
and pace.
Tr. 25, 342.
Dr. Bailey also concluded Plaintiff had
moderate restrictions in maintaining social functioning.
14 - OPINION AND ORDER
Tr. 342.
Dr. Bailey also found Plaintiff should have superficial
public contact.
Tr. 342.
The ALJ rejected the portion of Dr.
Bailey’s opinion that limited Plaintiff to superficial public
contact because the record reflects Plaintiff spends between one
and two hours, five days per week at her church working with
others and that individuals from her church and family regularly
assist her and check in on her.
The ALJ noted Plaintiff’s
treating and examining physicians and psychologists also did not
suggest Plaintiff had a need for limited contact with the public.
The Court concludes on this record that the ALJ did not
err when he rejected the portion of Dr. Bailey's opinion that
Plaintiff should have limited public contact because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.
III. The ALJ erred at Step Four.
The Court has concluded the ALJ erred when he gave little
weight to the opinion of Dr. Coon.
The Court, therefore, also
concludes the ALJ erred at Step Four when he concluded Plaintiff
could perform her past relevant work because when the ALJ reached
that conclusion, the ALJ did not include any limitations on
Plaintiff’s ability to perform work as set out by Dr. Coon.
REMAND
The Court must determine whether to remand this matter for
15 - OPINION AND ORDER
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
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 because it is not clear whether the ALJ would have
found Plaintiff can perform her past relevant work or could
perform other work that exists in significant numbers in the
national economy if he had included Dr. Coon’s opinion in his
16 - OPINION AND ORDER
evaluation of Plaintiff’s RFC.
Based on the foregoing, the Court concludes a remand for
further proceedings consistent with this Opinion and Order is
required to permit the ALJ to determine (1) whether there are any
additional limitations to be included in Plaintiff’s RFC if
Dr. Coon’s opinion is fully credited and (2) whether any such
limitations affect the ALJ’s determination as to whether
Plaintiff can return to her past relevant work or is capable of
performing other work that exists in significant numbers in the
national economy.
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 February, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
17 - OPINION AND ORDER
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