Mayes v. Commissioner Social Security Administration
Filing
22
OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED for an immediate calculation and award of benefits. IT IS SO ORDERED. Signed on 03/11/2014 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHERYL R. MAYES,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
JAMES S. COON
820 S.W. Second Avenue, Suite 200
Portland, OR 97204
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
HEATHER L. GRIFFITH
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
Case No. 3:13-cv-00181-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff Cheryl R. Mayes seeks judicial review of the final
decision
of
the
Commissioner
of
Social
Security
denying
her
application for disability insurance benefits (DIB) under Title II
of the Social Security Act,
42 U.S.C
jurisdiction pursuant to 42 U.S.C.
§
§§
401-434.
405(g).
This Court has
For the reasons that
follow, this court reverses the decision of the Commissioner, and
remands the case for an immediate award of benefits.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff protectively filed an application for Disability
Insurance Benefits (DIB) on October 22, 2007, alleging a disability
onset date of October 12,
2007.
initially and on reconsideration.
Plaintiff's
claim was denied
Plaintiff filed a request for a
hearing before an administrative law judge (ALJ).
hearing on July 27,
2009,
On July 31,
appeared and testified.
unfavorable decision.
at which plaintiff appeared with her
A vocational expert,
attorney and testified.
An ALJ held a
2009,
Diane Weber,
also
the ALJ issued an
The Appeals Council accepted plaintiff's
request for review, and reversed and remanded the claim for further
consideration,
including
re-evaluation
of
opinion
the
of
plaintiff's treating physician Nicholas Gideonse, M.D.
An
ALJ
held
two
additional
hearings
on
May
3,
2011
and
December 4, 2011, at which plaintiff appeared with her attorney and
testified, as did two vocational experts;
2 - OPINION AND ORDER
On December 22, 2011,
the ALJ issued another unfavorable decision.
The Appeals Council
denied plaintiff's request for review, and the ALJ's December 22,
2011
decision
therefore
became
the
final
decision
of
the
Commissioner for purposes of review.
Plaintiff was 39 years old on her alleged onset date, and 44
years old at the time of the 2011 hearing.
Plaintiff has a high
school education and a steady work history, with past relevant work
as a receptionist, customer service representative, and bartender.
Plaintiff alleges
disability due
to degenerative disc disease,
status post laminectomy L5-Sl, and depression.
THE ALJ'S DISABILITY ANALYSIS
The
ALJ
concluded
that
plaintiff
met
the
insured
status
requirements of the Social Security Act through December 31, 2011.
At
step one,
the ALJ found
that plaintiff has
not
engaged in
substantial gainful activity since her alleged onset of disability.
At step two, the ALJ found that plaintiff had the following severe
impairments:
laminectomy
chronic
syndrome,
back
pain
depression,
borderline personality disorder.
post
laminectomy
somatoform
with
disorder,
postand
At step three, the ALJ found that
plaintiff's impairments, or combination of impairments did not meet
or medically equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity
(RFC)
to perform a limited range of sedentary work with several
non-exertional limitations.
3 - OPINION AND ORDER
At step four, the ALJ found plaintiff
unable to perform any past relevant work.
that
concluded
experience,
and
considering
residual
plaintiff's
functional
At step five,
age,
capacity,
the ALJ
education,
jobs
exist
work
in
significant numbers in the national economy that plaintiff can
Accordingly,
perform.
the ALJ concluded that plaintiff is not
disabled under the meaning of the Act.
ISSUE ON REVIEW
Plaintiff contends that the ALJ failed to properly evaluate
the opinion of her treating physician, Dr. Gideonse, and that when
his opinion is fully credited, she is disabled and entitled to an
immediate award of benefits.
The Commissioner concedes that the
ALJ erred in evaluating Dr. Gideonse's opinion, but maintains that
his opinion should not be credited as true, and that a remand for
further proceedings is warranted.
Thus, the sole issue before me
is whether I must remand this case for an immediate payment of
benefits or for further administrative proceedings.
DISCUSSION
I.
Credit As True
Standards
A.
After finding the ALJ erred, this court has the discretion to
remand
for
benefits.
further proceedings or
Vasquez v. Astrue,
for
an immediate payment of
572 F.3d 586, 593
(9th Cir. 2009);
Harman v. Apfel, 211 F. 3d 1172, 1178 (9th Cir. 2000).
The Ninth
Circuit has established a three-part test for determining when
4 - OPINION AND ORDER
evidence should be credited and an immediate award of benefits
directed.
Strauss v. Comm'r of Soc. Sec. Admin.,
1138 (9th Cir. 2011); Harman, 211 F.3d at 1178.
635 F.3d 1135,
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.
Harman, 211 F.3d at 1178; Benecke v. Barnhart, 379 F.3d 573,
593
(9th Cir. 2004).
The issue turns on the utility of further proceedings.
§_,_g_,_,
Cir.
Brewes v. Comm Soc. Sec. Admin.,
2012);
Benecke,
administrative
379
F.3d
proceedings
at
may
593.
be
enhancement of the record is useful.
However,
"where the
682 F.3d 1157,
Remanding
appropriate
Benecke,
See,
1164
(9th
for
further
if
further
379 F.3d at 593.
record has been fully developed and where
further administrative proceedings would serve no useful purpose,"
the
district
benefits.
B.
court
should
remand
for
an
immediate
payment
of
Smolen v. Chater, 80 F. 3d 1273, 1292 (9th Cir. 1996).
Dr. Gideonse's opinion.
The Commissioner concedes that the ALJ erred in evaluating the
opinions of Dr. Gideonse.
a physician assistant,
2007.
Dr. Gideonse and Emily Jacobsen, P.A.,
began treating plaintiff in December of
Plaintiff established care with Ms. Jacobsen after plaintiff
was terminated from her previous job due to excessive absences and
5 - OPINION AND ORDER
exhausting her Family Medical Leave Act leave,
and consequently
losing her insurance coverage with her previous treating physician.
Plaintiff's primary diagnoses included degenerative disc disease
and depression.
In a
opined
July 9,
that
2009 opinion,
plaintiff
disorders of the
spine.
met
the
Tr.
Dr.
Gideonse and Ms.
requirements
4 92.
of
Additionally,
Listing
Dr.
opined that plaintiff had the following limitations:
stand or walk for 45 minutes at one time,
Jacobsen
1.04,
Gideonse
she could
for a total of three
hours in an eight hour day; she could sit for 45 minutes at one
time before needing to stretch, for a total of three hours in an
eight hour day; she could occasionally lift 10 pounds, frequently
carry no weight, and could never stoop, bend or crouch.
95.
Dr.
Gideonse
persistence,
and
also
opined
pace
would
that
be
plaintiff's
moderately
Tr. 493-
concentration,
limited
by
her
depression, and that plaintiff may experience some mental slowing
due to her medications.
The limitations described by Dr. Gideonse
limit plaintiff to less than eight hours of work each day, and if
credited, plaintiff would be unable to perform sedentary work.
C.F.R.
§
20
404.1567(a); Tackett v. Apfel, 180 F.3d 1094, 1103 (9th
Cir. 1999) (finding that "sedentary workn requires the ability to
sit through most or all of an eight hour day).
Additionally, Dr.
Gideonse opined that plaintiff would miss more than two days of
work in each month because of her limitations.
6 - OPINION AND ORDER
Vocational Expert
Diane
Weber
absences
testified
or more
at
the
each month
July
would
sustain competitive employment.
In
an
April
20,
2011
27,
2009
render
hearing
plaintiff
that
two
unable
to
Tr. 99.
letter,
Dr.
Gideonse,
who
remains
plaintiff's treating physician, opined that plaintiff continues to
meet the definition of Listing 1.04.
Gideonse
opined
that
plaintiff
Tr. 568-69.
continues
to
Moreover,
have
the
Dr.
same
functional limitations as described in his February 2009 opinion,
and that plaintiff would miss more than two days a month from even
a simple, routine, sedentary job due to her limitations.
71.
Tr. 570-
Vocational Expert Paul Morrison testified at the December 14,
2011 hearing that an employee who has two or more absences each
month is unable to sustain competitive employment in any capacity.
Tr. 99.
In the December 22, 2011 decision, the ALJ gave Dr. Gideonse's
opinion
"some
weight"
because
the
functional
limitations
he
described were "consistent with the medical evidence of record" and
the ALJ limited plaintiff to less than a full range of sedentary
work in the RFC.
Tr. 33.
The ALJ disagreed with Dr. Gideonse's
opinion that plaintiff met Listing 1.04 because:
the treatment records do not contain any
objective documentation of a compromise of a
nerve root. 1
An MRI of the claimant's
1
I note that in the December 22, 2011 decision, the ALJ did
not discuss a May 5, 2004 CT lumbar spine scan which showed an
L5-Sl disc extrusion likely impinging bilaterally on the S1 nerve
7 - OPINION AND ORDER
lumbosacral
spine
on
October
13,
2007,
revealed that there was no evidence of
recurrent disc protrusion with significant
impingement of the thecal sac or exiting nerve
root.
Id.
The Commissioner concedes that the ALJ erred in evaluating Dr.
Gideonse's opinion, but contends that outstanding issues must be
addressed
before
an
award
of
benefits
can
be
made.
The
Commissioner argues that because the ALJ based the nondisability
determination on other evidence in the record that plaintiff does
challenge, the case should be remanded for further evaluation.
I
disagree for two reasons.
First, I reject the Commissioner's argument that because the
ALJ gave "great weight" to examining psychologist Ronald Duvall,
Ph.D., and only "some weight" to Dr. Gideonse's opinion, a remand
to resolve their allegedly conflicting opinions is necessary.
Dr.
Duvall conducted a one-time psychological examination of plaintiff,
with intelligence testing and an MMPI-2.
Dr. Duvall concluded that
plaintiff's MMPI-2 score was technically valid, but her elevated Fscale means that she may present symptoms to her physicians that
could be seen as exaggerated,
and he diagnosed plaintiff with a
roots. Tr. 398, 426.
See also Tr. 429 (a June 5, 2003 CT scan
report showing a large disc protrusion resulting in 60 percent
compression of the left side AP diameter of the thecal sac and
significant displacement and compression of the left S1 nerve
root in the left lateral recess).
Plaintiff underwent a
hemilaminectomy on October 21, 2004 to obtain relief, but that
surgery was unsuccessful, resulting in her post-laminectomy
syndrome diagnosis.
Tr. 387, 420.
I also note that the record
does not contain a post-surgical CT scan.
8 - OPINION AND ORDER
Somatofrom disorder.
Dr.
Duvall's
Gideonse' s
Tr. 578, 580.
opinion
opinion
provides
because
According to the Commissioner,
a
basis
plaintiff
may
for
undermining
Dr.
overstated
her
have
symptoms to Dr. Gideonse.
Even if Dr. Duvall's opinion could be seen as contradicting
Dr. Gideonse's opinion, the ALJ did not cite Dr. Duvall's allegedly
conflicting opinion
More
opinion.
as
a basis
importantly,
for
the
discounting
ALJ did
not
Dr.
Gideonse' s
cite
plaintiff's
negative credibility assessment or her subjective symptoms as a
basis for discounting Dr.
I also note that
Gideonse's opinion.
Dr. Gideonse and Ms. Jacobsen's treatment notes do not reflect that
they believed plaintiff exaggerated her symptoms.
Accordingly, I
reject the Commissioner's post hoc rationale and conclude that Dr.
Duvall's opinion does not create an outstanding issue requiring
further resolution or record development.
Connett v. Barnhart, 340
F. 3d 871, 874 (9th Cir. 2003).
Second, I am not persuaded by the Commissioner's argument that
plaintiff's
unchallenged
immediate
award
plaintiff
evidence.
determination
benefits.
According
"extensive
activities"
described
negative
of
credibility
credibility
assessment
is
to
the
and
supported
prevents
an
Commissioner,
that
by
the
ALJ' s
substantial
For example, the Commissioner cites plaintiff's ability
to walk two miles around a golf course, her search for part-time
work,
and
her
past
9 - OPINION AND ORDER
illegal
drug
use
as
supporting
the
ALJ' s
adverse credibility determination.
suggest
that
the
ALJ' s
The Commissioner appears to
erroneous
evaluation of
Dr.
Gideonse' s
opinion is harmless in light of the ALJ's unchallenged credibility
determination and the evidence in the record as a whole.
Having carefully reviewed the entire record,
ALJ's credibility assessment is flawed at best.
plaintiff's
complains
Gideonse.
physical
exceed
activities
the
about
functional
which
limitations
I conclude the
Indeed, none of
the
Commissioner
described
by
Dr.
There is no evidence in the record establishing that
plaintiff walks for more than 45 minutes at a time or for more than
three hours total in a day.
Additionally, plaintiff testified that
she attempted to find part-time work, but was unable to find such
work that did not exceed her physical capacities.
Tr. 90.
It is
well-settled that an unsuccessful work attempt is not a clear and
convincing reason for discrediting a claimant.
Astrue,
504 F. 3d 1028,
1038-39
(9th Cir.
Lingenfelter v.
2007).
Moreover,
the
evidence in the record is undisputed that plaintiff has been clean
and sober for over 15 years, and the Commissioner fails to cite a
single
instance
of
drug-seeking
behavior
or
a
current
problem, and the record does not reveal such behavior.
bears
repeating
that
the
ALJ did
not
discount
Finally, it
Dr.
Gideonse' s
opinion based on the negative credibility assessment.
the
record
before me,
the
unchallenged
10 - OPINION AND ORDER
Clearly, on
credibility
presents no outstanding issue requiring resolution.
abuse
assessment
See Strauss,
635 F.3d at 1138 (determining that a claimant is only entitled to
benefits under the Act if the claimant is, in fact, disabled, no
matter how egregious an ALJ's errors).
In short, Dr. Gideonse opined that plaintiff has functional
limitations that prevent her from working eight hours a day,
and
that she would be absent from work at least two days a month.
When
Dr.
that
Gideonse' s
plaintiff
opinion
is
incapable
is
of
fully
credited,
sustaining
it
establishes
competitive
employment.
Because there are no outstanding issues that must be resolved and
it
is
clear
from
the
record
that
plaintiff
is
entitled
to
disability benefits, I reverse the ALJ's decision and remand for an
immediate payment of benefits.
Brewes, 682 F.3d at 1164-65.
CONCLUSION
Based
REVERSED,
on
the
foregoing,
the
Commissioner's
decision
is
and this case is REMANDED for an immediate calculation
and award of benefits.
IT IS SO ORDERED.
DATED this
_iL
day of JVJARCH, 2014.
Malcolm F. JVlarsh
United States District Judge
11 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?