Cheney v. Commissioner Social Security Administration
Filing
21
Opinion And Order. The decision of the Acting Commissioner denying Deborah Cheney's application for DIB must be REVERSED and REMANDED FOR FURTHER PROCEEDINGS consistent with this ruling and the parameters provided herein. Signed on 9/11/13 by Judge Ancer L. Haggerty. (cib)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DEBORAH C. CHENEY,
Plaintiff,
Case No. 3:12-cv-01794-HA
OPINION At"'D ORDER
v.
CAROLYN W. COLYIN,
Acting Commissioner of Social Security,
Defendant.
HAGGERTY, District Judge:
Plaintiff Deborah Cheney seeks judicial review of a final decision by the Acting
Commissioner of the Social Security Administration denying her application for Disability
Insurance Benefits (DIB). This court has jurisdiction to review the Acting Commissioner's
decision under 42 U.S.C. § 405(g). After reviewing the record, this court concludes that the
Acting Commissioner's decision must be REVERSED AND REMANDED for futiher
proceedings.
OPINION AND ORDER- 1
STAI"\'DARDS
A claimant is considered "disabled" under the Social Security Act if: (1) he or she is
unable to engage in any substantial gainful activity (SGA) "by reason of any medically
determinable physical or mental impairment 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 impainnent 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 P.3d 1144,
1149-50 (9th Cir. 2012) (citing 42 U.S. C.§ 1382c(a)(3); Tackett v. Apfel, 180 P.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
determining if a person is eligible for benefits. 20 C.P.R. §§ 404.1520(a), 416.920(a). In steps
one through four, the Commissioner must detennine 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
impairments that automatically qualify as disabilities under the Social Security Act; and (4) has a
residual functional capacity (RFC) that prevents the claimant from perfmming his or her past
relevant work. Id 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.P.R. §§ 404.1545(a)(l), 416.945(a)(l), and
Social Security Ruling (SSR) 96-8p. The claimant bears the burden of proof in the first four
steps to establish his or her disability.
At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist
OPINION AND ORDER - 2
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. Chafer, 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. !d.
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 a preponderance; it is "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).
When reviewing the decision, the court must weigh all of the evidence, whether it
supports or detracts from the Commissioner's decision. Tacke/1, 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 supports either
outcome. Reddick v. Chater, !57 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. !d. at 720.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff was born on September 8, 1956 and is a highschool graduate. Plaintiff
protectively filed her application for DIB on Februmy 27, 2009, alleging that she has been
OPINION AND ORDER- 3
disabled since February 1, 2009. The claim was denied initially on May 13,2009, and upon
reconsideration on August 3, 2009. At plaintiffs request, an Administrative Law Judge (ALJ)
conducted a hearing on Februaty 8, 2011. The ALJ heard testimony from plaintiff, who was
represented by counsel, as well as an independent vocational expert (VE).
On March 2, 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 Febmary 27, 2009, her application date. Tr. 13, Finding 1. 1 At step two, the ALJ
found that plaintiff suffers from the following medically detetminable severe impahments:
bipolar disorder, anxiety disorder, alcohol and marijuana use, and post-traumatic stress disorder.
Tr. 13, Finding 2. After considering plaintiffs severe and non-severe impairments, the ALJ
determined that plaintiff does not have an impairment or combination of impairments that meets
or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 13-14, Finding
3. After consulting the record, the ALJ concluded that plaintiff has the RFC to perform a full
range of work at all exertionallevels but with the following nonexertionallimitations: she is
limited to simple and routine tasks no greater than reasoning level 3 as defined in the Dictionary
of Occupational Titles; she can have only occasional public and co-worker contact; and she
cannot have any exposure to heights or hazards. The ALJ found that plaintiff has no past
relevant work. Tr. 18, Finding 5. Based on plaintiffs age, the ALJ found that she is an
individual closely approaching advanced age, pursuant to 20 C.F.R. § 416.963. Tr. 18, Finding
6. Based on plaintiffs RFC and testimony from the VE, the ALJ determined that plaintiff is able
1
"Tr." refers to the Transcript of the Administrative Record.
OPINION AND ORDER- 4
to perform work existing in significant numbers in the national economy, such as garment sotter,
shelver/shelving clerk, and collating of printed products Tr. 19, Finding 9. Therefore, the ALJ
concluded that plaintiff is not disabled. Tr. 19, Finding I 0.
On August 7, 2012, the Appeals Council denied plaintiffs request for review, making the
AU's decision the final decision of the Acting Commissioner. Plaintiff subsequently initiated
this action seeking judicial review.
DISCUSSION
Plaintiff asserts that the ALJ erred by (1) rejecting one opinion of treating physician, Dr.
Alfredo Soto, M.D.; (2) rejecting the opinion of examining physician, Dr. Jerome Gordon, Ph.D.;
(3) relying on the opinion of non-examining physicians, Drs. Sandra Lundblad, Psy.D, and
Robet1 Henry, Ph.D.; and ( 4) incorrectly assessing plaintiffs RFC. Each of plaintiffs
assignments of error is addressed in tum.
1.
Treating Physician Alfredo Soto, M.D.
Doctor Soto, plaintiffs treating physician, submitted a Mental Status Repot1 in May 2009
and a Functional Assessment of Work-Related Mental Activities in November 2010. The May
2009 repot1 states that plaintiff had improved mood and improved cognitive functioning. It also
stated that her social functioning is "within normal limits when symptoms of depression are
under control." Tr. 249. The ALJ found that the November 2010 report described impaitments
that were more profound. The November 2010 report states that plaintiff "experiences episodes
of significant mood change that negatively impact her ability to maintain a routine work
schedule." Tr. 431.
The ALJ found that Dr. Soto's November 2010 opinion was inconsistent with plaintiffs
OPINION AND ORDER- 5
treatment history. An ALJ may reject the contradicted opinion of a treating physician only by
providing specific and legitmate reasons that are supp01ied by substantial evidence in the record .
Conley v. Astrue, 471 Fed. Appx. 758, 760 (9th Cir. 2012). In this case, the ALJ's reasoning for
rejecting Dr. Solo's November 2010 opinion was not supported by substantial evidence.
First, the May 2009 repoti does not describe plaintiff's impairments as less profound than
the November 20 I 0 report, as the ALJ opined. In fact, the May 2009 report states that plaintiff
exhibited "symptoms of severe depression" and her social function is within n01mallimits only
"when symptoms of depression are under control." Tr. 249. Similarly, the May 2009 report
explains that plaintiff's concentration, persistence, and pace are appropriate only when plaintiff's
"mood is under control." Tr. 250. Additionally, it states that "when depressed, patient reports
episodes of memory loss, making employment difficult." Tr. 250. These observations are not
inconsistent with the November 2010 report, which states that plaintiff experienced episodes of
significant mood change. Tr. 431. The reports' congruence is even more apparent in light of Dr.
Soto's opinion that plaintiff's mood changes "vary in frequency and duration, and remain
unpredictable." Tr. 431. While plaintiff is not always in a depressed state, the rep01is agree that
when she is depressed, impairment results.
Second, the ALJ stated that the treatment notes accompanying Dr. Soto's May 2009
opinion indicate that claimant did not display significant symptoms of depression throughout
March 2010. However, the notes on March 2, 2010 indicate that plaintiff was always "either
laughing or crying." Tr. 253. Moreover, on February 18, 2010, Dr. Soto rep01ied worsening
symptoms of depression. Tr. 256. While the ALJ attributes plaintiff's ability to arrange
transportation for herself as a sign that her impairments were improving, the record makes clear
OPINION AND ORDER- 6
that dependable transportation is a constant struggle for plaintiff. Tr. 254, 257-260,262-263,
267. The ALJ also cited progress notes dated February 5, 2010 to demonstrate that plaintiff was
able to engage in problem solving despite feeling depressed. However, the progress notes do not
support this. Rather, the progress notes state that plaintiff "faces a multitude of problems" and
she was "urged" to address them. Tr. 260. In sum, the ALJ's reasons for rejecting Dr. Soto's
November 2010 opinion are not supported by substantial evidence, and the November 2010
opinion should be afforded appropriate weight on remand.
2.
Jerome Gordon, Ph.D.
Dr. Gordon perf01med a Psychodiagnostic Evaluation on plaintiff in July 2009. He
observed that plaintiff has difficulty focusing on a simple task that is under a minute in duration,
concluding that she has difficulty with persistence and attention. Tr. 225-226. Plaintiff claims
that the ALJ erred in assigning little weight to Dr. Gordon's opinion.
An ALJ may discredit even a treating physician's opinion if he provides specific and
legitimate reasons. Batson v. Comm'r ofSoc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004).
In this case, the ALJ found that Dr. Gordon's opinion was inconsistent with the fact that plaintiff
was "active in community groups and activities of daily living." Tr. 17. In fact, plaintiff served
as the Director of the New Hope Community Outreach Center during the time she was examined
by Dr. Gordon. Therefore, the ALJ provided specific and legitimate reasons for assigning little
weight to Dr. Gordon's opinion that plaintiff has difficulty with persistence and attention, and he
committed no error.
Ill
Ill
OPINION AND ORDER- 7
3.
Nonexamining Physicians, Drs. Sandra Lundblad, Psy.D, and Robert Henry,
Ph.D.
In May 2009, Dr. Lundblad prepared a Psychiatric Review Technique and Mental
Residual Capacity Assessment based on records available at that time. Doctor Lundblad found
that plaintiff was "able to cany out simply, routine instructions" and "able to have brief,
incidental public contact." Tr. 201. Doctor Henry prepared a Psychiatric Review Technique in
which he affirmed Dr. Lundblad's assessment. The ALJ assigned great weight to both opinions.
Plaintiff asserts that the ALJ ened by attributing great weight to these opinions at the
expense of the opinions of treating and examining physicians. The opinions of nonexamining
physicians may serve as substantial evidence when they are consistent with independent clinical
findings or other evidence in the record. !Vfendoza v. Astrue, 371 Fed. Appx. 829, 831 (9th Cir.
201 0). However, the ALJ may reject the opinion of an examining physician, if it is contradicted
by nonexamining physicians, only if the ALJ gives specific and legitimate reasons that are
suppmied by substantial evidence. !d. In this case; the ALJ made a conclusory finding that the
opinion of Drs. Lundblad and Hemy were thorough and consistent with the substantial evidence
of record. This does not amount to specific and legitimate reasons. Therefore, the ALJ must
reevaluate the medical evidence on remand.
4.
RFC Assessment
Plaintiff argues that the ALJ erred by failing to include all nonexertional functional
limitations in plaintiffs RFC. Specifically, plaintiff asserts that the ALJ failed to properly limit
plaintiffs public and co-worker contact and failed to include a functional limitation as to
plaintiffs concentration, persistence, and pace.
OPINION AND ORDER- 8
The ALJ limited the frequency of public and co-worker interaction to "occasional," but
plaintiff argues that the limitation should be "brief and incidental." Plaintiff relies on the opinion
of Dr. Lundblad, which limited plaintiff to brief and incidental public contact. This court agrees
with defendant that such a distinction is merely semantic. Additionally, defendant's discussion of
Allen v. Astrue is persuasive. No. 3:10-cv-01377-KI, 2012 WL 253209, at *3 (D. or. Jan. 26,
2012). In Allen, the comi affirmed an ALJ's limitation to "occasional interaction with the public"
when the state agency psychologist limited the plaintiff to "brief, incidental contact with the
public." !d. Therefore, the ALJ did not err by limiting plaintiff to occasional public and coworker contact.
Finally, plaintiff argues that the ALJ erred by failing to include any limitation as to her
concentration, persistence, and pace. However, the ALJ did limit plaintiff to simple and routine
tasks no greater than reasoning level 3 as defined in the Dictionmy of Occupational Titles. While
the ALJ properly considered the opinion of Dr. Gordon in making that determination, the ALJ
did not properly reject the November 2010 opinion of Dr. Soto, as explained above. Therefore,
on remand, the ALJ shall consider Dr. Soto's November 2010 opinion when establishing a
limitation for concentration, persistence, and pace.
Ill
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Ill
Ill
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OPINION AND ORDER- 9
CONCLUSION
For the reasons provided, this court concludes that pursuant to sentence four of 42 U.S.C.
§ 405(g), the decision of the Acting Commissioner denying Deborah Cheney's application for
DIB must be REVERSED and REMANDED FOR FURTHER PROCEEDINGS consistent with
this ruling and the parameters provided herein.
IT IS SO ORDERED.
DATED this _[l_ day of September, 2013.
Ancer L. Hagge1ty
United States District Ju ge
OPINION AND ORDER- 10
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