Brown v. Commissioner Social Security Administration
Filing
20
OPINION AND ORDER. Signed on 07/09/2014 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
3:13-cv-00904-MA
BRENDA BROWN,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MERRILL SCHNEIDER
Schneider Kerr & Gibney Law Offices
P.O. Box 14490
Portland, Oregon 97293
Attorneys for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
GERALD J. HILL
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge
Plaintiff,
Brenda
Brown,
brings
this
action
for
judicial
review of a final decision of the Commissioner of Social Security
(the
Commissioner)
denying
her
application
for
supplemental
security income (SSI) disability benefits under Title XVI of the
Social Security Act (the Act).
See 42 U.S.C.
§§
Court has jurisdiction pursuant to 42 U.S.C.
reasons
set
forth
below,
I
reverse
the
§
1381-1383f.
405(g).
final
This
For the
decision of
the
Commissioner and remand for further proceedings consistent with
this Opinion and Order.
PROCEDURAL BACKGROUND
Plaintiff protectively filed the instant application for SSI
on November 20, 2008, alleging disability due to bipolar disorder,
clinical
depression,
diabetes,
borderline personality disorder.
Osgood-Schlatter
disease,
and
Tr. 277.
Plaintiff's claim was
denied initially and upon reconsideration.
An Administrative Law
Judge
(ALJ) presided over a hearing on February 25,
supplemental
hearing
on May 20,
2011.
At
the
2011,
first
Plaintiff testified but was not represented by counsel.
At
the
second
hearing,
Plaintiff
represented by counsel.
Tr. 67-77.
Ryan,
present
Ph.D.,
was
also
testified
again
hearing,
Tr. 78-91.
and
was
Vocational Expert (VE) James
throughout
both
testified at the conclusion of the first hearing.
hearings
and
On June 7, 2011,
the ALJ issued a decision denying Plaintiff's application.
2 - OPINION AND ORDER
and a
The
Appeals
Council,
however,
reversed
and
remanded
for
further
consideration.
On remand, a different ALJ held a new hearing on January 2,
2013, at which Plaintiff testified and was represented by counsel.
VE Gary Jesky was present throughout the hearing and testified.
January
23,
Plaintiff's
2013,
the
claim.
The
ALJ
issued
Appeals
an
opinion
Council
again
declined
On
denying
review
and
Plaintiff timely appealed to this Court.
FACTUAL BACKGROUND
Born on December 13, 1971, Plaintiff was 36 years old on the
alleged onset date of disability and 41 years old on the date of
the most recent hearing.
Tr.
250.
Plaintiff has a 12th grade
education with past relevant work as a Call Center Telemarketer,
Plastic Bottle Production Worker, and Chips and Nuts Manufacturing
or Processing Quality Assurance Technician.
Tr. 283.
alleges her conditions became disabling on August 1,
Plaintiff
2008.
Tr.
250.
In addition to her testimony at the three hearings, Plaintiff
submitted an Adult
friend,
Shardell
Report.
Function Report.
Bodda,
Tr. 286-93.
also
Tr.
submitted a
302-07.
Third
Plaintiff's
Party
Function
On March 24, 2009, Paul S. Stoltzfus, Ph.D.,
performed a psychodiagnostic evaluation and submitted an opinion as
to Plaintiff's mental impairments.
Tr. 485-91.
On March 21, 2009,
Yin Kan Hwee, M.D., performed a comprehensive physical evaluation
3 - OPINION AND ORDER
and submitted an opinion as to Plaintiff's physical impairments.
Tr.
557-61.
reviewed
Finally,
the
Functional
on April 8,
medical
record
2009,
and
Capacity Assessment,
Joshua J.
submitted
a
and on April
Boyd,
Psy. D.,
Mental
13,
Residual
2009,
Martin
Kehrli, M.D., reviewed Plaintiff's records and submitted a Physical
Residual Functional Capacity Assessment.
Tr. 513-24.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
sequential
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140-42 (1987); 20 C. F.R.
(v).
§
Bowen v.
416. 920 (a) (4) (i)-
Each step is potentially dispositive.
The claimant bears the
burden of proof at Steps One through Four.
Tackett v. Apfel, 180
F.3d
1094,
1098
(9th
Cir.
1999).
The
burden
shifts
to
the
Commissioner at Step Five to show that a significant number of jobs
exist in the national economy that the claimant can perform.
See
Yuckert, 482 U.S. at 141-42; Tackett, 180 F.3d at 1098.
At Step One, the ALJ determined Plaintiff has not engaged in
substantial gainful activity since the application date, November
20, 2008.
See 20 C.F.R.
§§
416.920(b), 416.971 et seq.; Tr. 21.
At Step Two, the ALJ determined Plaintiff's degenerative disc
disease with a history of a microdiscectomy, diabetes, depressive
disorder not otherwise specified,· borderline personality disorder,
amphetamine
dependence,
4 - OPINION AND ORDER
cannabis
dependence,
and
history
of
polysubstance abuse were
severe
impairments.
See
20 C.F.R.
§
416.920(c); Tr. 21-22, 27.
At Step Three, the ALJ determined Plaintiff does not have an
impairment or combination of impairments that meet or medically
equal any listed impairment.
See 20 C.F.R.
§§
416.920(d), 416,925,
416.926; Tr. 22-23, 27-28.
The ALJ found Plaintiff has the residual functional capacity
(RFC)
to perform light work, but further limited Plaintiff to no
climbing of ropes, ladders, or scaffolds; and occasional climbing
of stairs and ramps.
routine,
The ALJ further limited Plaintiff to simple,
repetitive work without public contact,
occasional or
minimum contact with coworkers and supervisors, and working best
alone and without teamwork to complete a task.
found that
attention
Finally, the ALJ
Plaintiff would occasionally have periods of marked
and
concentration
deficits.
Tr.
23-25.
The
ALJ,
however, found that if Plaintiff ceased substance abuse she would
no longer experience occasional periods of marked attention and
concentration deficits.
Tr. 28-29.
At Step Four, the ALJ found Plaintiff cannot perform her past
relevant work.
See 20 C.F.R.
§
416.965; Tr. 26, 29.
At Step Five, however, the ALJ found that jobs do not exist in
significant numbers in the national economy that
perform if she continues substance abuse.
Tr. 26-27.
Plaintiff can
If Plaintiff
ceased substance abuse, however, the ALJ found jobs would exist in
5 - OPINION AND ORDER
significant numbers
perform,
in the
national economy that
Plaintiff can
including Janitor and Small Product Assembler.
See 20
C.F.R. §§ 416.969, 416.969(a); Tr. 29-30.
Accordingly, the ALJ found Plaintiff was not disabled within
the meaning of the Act.
ISSUES ON REVIEW
Plaintiff raises three issues on appeal.
First,
Plaintiff
submits the ALJ erred at Step Three by failing to provide rationale
for the "paragraph B" criteria findings.
Second, Plaintiff asserts
the ALJ erred in considering Plaintiff's testimony because the ALJ
impermissibly made two separate credibility findings and ultimately
cited
insufficient
Finally,
reasons
Plaintiff
argues
to
the
reject
ALJ's
Plaintiff's
RFC
is
not
testimony.
supported
by
substantial evidence because the ALJ failed to account for the most
recent evidence in the medical record and failed to obtain new
evidence concerning Plaintiff's impairments.
STANDARD OF REVIEW
The
court must
affirm the
Commissioner's
decision
if
the
Commissioner applied proper legal standards and the findings are
supported by substantial
405(g); Andrews v.
''Substantial
evidence
Shalala,
e~idence
in the
53 F.3d 1035,
record.
1039
42
U.S. C.
(9th Cir.
§
1995).
means more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion."
6 - OPINION AND ORDER
Id.
The
court must
weigh all
of the
evidence,
whether
detracts from the Commissioner's decision.
807 F.2d 771, 772 (9th Cir. 1986).
to
more
than
one
rational
supports
or
Martinez v. Heckler,
If the evidence is susceptible
interpretation,
Andrews,
decision must be upheld.
it
the
Commissioner's
53 F.3d at 1039-40.
If the
evidence supports the Commissioner's conclusion, the Commissioner
must be affirmed;
"the court may not substitute its judgment for
that of the Commissioner."
Edlund v. Massanari,
253 F.3d 1152,
1156 (9th Cir. 2001).
DISCUSSION
I.
Step Three "Paragraph B" Findings
Plaintiff first argues the ALJ failed to provide rationale for
the "paragraph B" findings at Step Three.
must
evaluate
the
relevant, evidence
At Step Three, "[a]n ALJ
before
concluding
that
a
claimant's impairments do not meet or equal a listed impairment."
Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001).
"A boilerplate
finding is insufficient to support a conclusion that a claimant's
impairment does not do so."
To satisfy the "paragraph B"
criteria used to evaluate mental impairments at Step Three,
the
claimant's
the
impairments
following:
Ill
Ill
Ill
7 - OPINION AND ORDER
must
result
in
at
least
two
of
(1)
(2)
Marked restriction of activities of daily living;
Marked difficulties in maintaining social
functioning;
Marked difficulties in maintaining concentration,
persistence, or pace; or
Repeated episodes of decompensation, each of
extended duration.
(3)
(4)
20 C.F.R. Pt. 404, Subpt. P, App. 1 at 12.04, i2.os.
The
ALJ
found
that
"in
the
presence
of
substance
abuse
disorders[,] mental health factors result in a mild restriction in
activities of daily living,
social
functioning,
concentration,
and
moderate to marked difficulties in
moderate
persistence
or
difficulties
pace,"
and
history of episodes of decompensation."
with
that
Tr.
regard
"[t] here
23.
is
to
no
If Plaintiff
ceased substance abuse, the ALJ found Plaintiff's limitations with
respect to social functioning would downgrade to "moderate."
Tr.
27.
The ALJ, however, did not provide any explanation for these
findings.
While
the ALJ' s
findings
are
similar
though
not
identical - to the findings of Dr. Boyd, that connection is for the
ALJ
to
draw,
not
for
the
Court
to
infer.
See
Tr.
509.
Accordingly, because the ALJ failed to provide any explanation of
the paragraph B findings,
the ALJ made the sort of "boilerplate
finding" that is insufficient at Step Three.
at 512.
Ill
Ill
8 - OPINION AND ORDER
See Lewis, 236 F.3d
II.
Plaintiff's Credibility
In deciding whether to accept subjective symptom testimony, an
20 C.F.R.
ALJ must perform two stages of analysis.
§
404.1529.
First, the claimant must produce objective medical evidence of an
underlying impairment that could reasonably be expected to produce
the symptoms alleged.
Cir. 1996).
Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th
Second, absent a finding of malingering, the ALJ can
reject the claimant's testimony about the severity of his symptoms
only by offering specific, clear, and convincing reasons for doing
so.
Id. at 1281.
If an ALJ finds that the claimant's testimony regarding his
subjective symptoms is unreliable, the "ALJ must make a credibility
citing
unpersuasive."
(9th Cir.
1999).
reasons
In doing so,
why
testimony
Morgan v. Comm'r Soc. Sec. Admin.,
599
the
the
determination
is
169 F.3d 595,
the ALJ must identify what
testimony is credible and what testimony undermines the claimant's
complaints, and make "findings sufficiently specific to permit the
court to conclude that the ALJ did not arbitrarily discredit [the]
claimant's testimony."
Cir.
2002).
The
ALJ
credibility evaluation
Thomas v. Barnhart, 278 F.3d 947, 958 (9th
may
in
rely
weighing
upon
the
ordinary
techniques
claimant's
credibility.
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008).
Ill
Ill
9 - OPINION AND ORDER
of
A.
February 25, 2011, Hearing Testimony
At the February 25, 2011, hearing Plaintiff testified that she
cooks
during
the
afternoon,
cleans
grocery shopping with her sister.
her
own
laundry,
and
goes
In a typical day she
Tr. 83.
takes care of her dog and does some cleaning around the house, but
spends a significant amount of time sitting while watching movies,
surfing the internet, and playing video games.
testified
that
depression,
she
was
diabetes,
currently
and back pain,
receiving
at
this
hearing
that
she
Plaintiff
treatment
for
and that her treatment for
depression and diabetes seemed to be working.
reported
Tr. 83.
had
Tr. 84.
abused
Plaintiff
illegal
drugs
including marijuana and methamphetamine in the past, but that she
had not done so for over a year.
Tr. 85.
Plaintiff additionally
reported that she has never abused alcohol, but that she used it
"[o) n
and off."
Tr.
85.
As
to
her
ability
to
lift
Plaintiff testified she cannot lift more than five pounds.
B.
items,
Tr. 89.
May 20, 2011, Hearing Testimony
At the May 20, 2011, hearing Plaintiff testified that the last
time she used illegal drugs was in March of 2011 while she was in
a
mental
hospital,
Christmas in 2010.
and
that
Tr.
71-72.
she
had not
abused alcohol
since
As to her efforts to stop using
drugs, Plaintiff testified thctt she uses resources from Narcotics
Anonymous, although she had not been to a meeting since August of
2010, and that she frequently speaks by telephone with her sponsor.
10 - OPINION AND ORDER
Tr. 72-73.
Plaintiff testified that many of the problems in her
life have been a result of using drugs and alcohol.
C.
Tr. 75.
January 2, 2013, Hearing Testimony
At the January 2,
2013,
hearing on remand from the Appeals
Council, Plaintiff testified that her day-to-day activities depend
on how much pain she is in, and that she frequently has to lay down
during the day.
Tr. 44.
Plaintiff reported that the pain centers
around her hips and down into her feet, and that she had two back
surgeries in 2011 to try to resolve this pain.
noted,
however,
Tr. 44.
Plaintiff
that she had not received any medical treatment
since returning to Oregon in the Spring of 2012, after living in
Virginia.
Tr. 46.
As to her diabetes, Plaintiff reported that she
was in the "early stagesn of diabetic neuropathy that causes sharp,
stabbing pains in her feet and calves, poor circulation, numbness,
and tingling.
Tr. 49.
As to her functional limitations, Plaintiff
testified that she can only stand for 15-20 minutes at a time, and
can sit for less than one hour at a time.
that
when
cannery,
she
returned
to
Oregon
attempted
Plaintiff noted
to
work at
a
but that she was asked to leave because of workplace
problems caused by her back pain.
As
she
Tr. 50.
to
drug
use,
Plaintiff
Tr. 54.
reported
that
she
had
used
methamphetamine three weeks before the hearing, but that such use
had been a relapse and she had not been using regularly since May
of 2012.
Tr.
50-51.
11 - OPINION AND ORDER
Plaintiff reported that she did not use
methamphetamine while she was in Virginia from July of 2009 until
January of
2012.
Tr.
51.
Plaintiff
reported
that
she
used
marijuana three-to-four times per week to help her pain, but that
she had not used alcohol for approximately two years.
to
her mental
health,
Plaintiff testified that
Tr. 54.
As
her depression
symptoms had been particularly bad, and the medications prescribed
by her current mental health provider aggravated her symptoms and
caused her to sleep more than usual.
D.
Tr. 53.
December 19, 2008, Adult Function Report
In her Adult
Function Report,
Plaintiff reported that her
daily activities consist of waking up around 10:00 am, showering,
and looking for part-time work until around 4:00 p.m.
When
she
relaxes
returns
until
home,
Tr.
302.
Plaintiff reported she eats dinner
approximately
10:00
p.m.
Tr.
302.
and
Plaintiff
reported that she has no problems with personal care, and prepares
meals daily for between 20 minutes and one hour.
Tr.
300-01.
Plaintiff noted that she performs household chores on a daily basis
and cleans her own laundry every week.
Tr. 301.
Plaintiff checked that her knee, hip, and back problems limit
her abilities to lift,
stairs, and remember.
squat,
Tr. 307.
bend,
stand,
walk,
kneel,
climb
Plaintiff reported she could walk
ftabout a milen before requiring 15 minutes of rest, and that she
can pay attention ftfor a long time.a
Tr. 307.
Plaintiff reported
no problems getting along with others or following instructions,
12 - OPINION AND ORDER
and noted that she "work[s]
Plaintiff wrote,
however,
that
diabetes and lack of sleep.
E.
well under pressure."
she
felt
Tr.
307-08.
"sluggish" due to her
Tr. 309,
Sufficiency of the ALJ's Credibility Determination
The ALJ found that Plaintiff "is credible concerning the many
symptoms and limitations," but that the credibility determina.tion
was not a "determination of truthfulness, intention, or sincerity,
but
whether the
findings
and
information is
consistent
with
supported by objective medical
actual
findings."
Tr.
24-25.
Accordingly, with respect to Plaintiff's functioning if she ceased
substance use, the ALJ found Plaintiff's credibility "low because
of
[Plaintiff's]
denial
of
consistent
substance
abuse
history
despite
of
manipulative
contrary
evidence,
behavior,
and
her
history of refusing to take responsibility for her own actions."
Tr. 28-29.
reasons
I
conclude these reasons are not clear and convincing
supporting
the
manner
in
which
the
ALJ
discredited
Plaintiff's testimony.
At the outset,
I reject Plaintiff's suggestion that the ALJ
conducted two separate credibility analyses.
Read as a whole, the
ALJ's credibility analysis found that Plaintiff was being truthful
about her symptoms, but that her reported symptoms and limitations
described her functionality when she was using illegal drugs and
did not provide an accurate report of her functionality in the
absence of substance abuse.
13 - OPINION AND ORDER
Nonetheless,
the ALJ's reasons for discrediting Plaintiff's
testimony are insufficient because they are not logically related
to the manner in which the ALJ rejected Plaintiff's testimony.
of
the
reasons
cited
by
the
ALJ
(Plaintiff's
history
All
of
manipulative behavior, denial of substance abuse, and refusal to
take
responsibility
for
her
actions)
truthfulness of Plaintiff's testimony.
are
relevant
to
the
They do not, however, speak
to the ALJ's finding that Plaintiff was telling the truth about her
symptoms and limitations, but that her testimony was not reflective
of her
functional
capacity in the absence of substance abuse.
Properly explained,
this
it is possible that the ALJ' s conclusion in
respect may find sufficient support in the
again,
record.
that explanation is for the ALJ to provide,
Court to infer.
convincing
Accordingly,
reasons
in
But,
not for the
the ALJ failed to cite clear and
support
of
his
conclusion
concerning
Plaintiff's credibility. 1
III. Remand
After finding the ALJ erred,
remand
for
benefits.
further
proceedings
this Court has discretion to
or
for
immediate
payment
of
Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000).
"Remand for further administrative proceedings is appropriate if
1
Because the ALJ failed to cite clear and convincing
reasons for the manner in which he rejected Plaintiff's
testimony, the RFC is insufficient. Accordingly, the Court need
not reach Plaintiff's additional arguments concerning the RFC.
14 - OPINION AND ORDER
enhancement of the record would be useful."
379 F.3d 587, 593 (9th Cir. 2004)
Benecke v. Barnhart,
When, however, "the record has
been developed fully and further administrative proceedings would
serve no useful purpose," a remand for an award of benefits is
appropriate.
Id.
It is well settled that a court will:
[C]redit
evidence
that
was
rejected
during
the
administrative process and remand for an immediate award
of benefits if ( 1) the ALJ failed to provide legally
sufficient reasons for rejecting the 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.
(citing Harman, 211 F.3d at 1178).
is not entitled to benefits .
disabled,
no
matter
how
Nonetheless, "[a] claimant
. unless the claimant is, in fact,
egregious
the
ALJ' s
errors
may
be."
Strauss v. Comm'r Soc. Sec. Admin., 635 F.3d 1135, 1138 (9th Cir.
2011).
Thus,
a . remand
for
further
proceedings
is
generally
appropriate unless, in light of the ALJ' s errors, it is clea·r from
the record that the claimant is disabled within the meaning of the
Act.
See id.
Further administrative proceedings are useful in this case
because the record requires additional development and the ALJ's
findings require additional explanation.
On remand,
in light of
the age of the prior examining opinions and potential changes in
Plaintiff's condition, the·ALJ shall order new mental and physical
examinations and permit
15 - OPINION AND ORDER
Plaintiff to submit additional medical
evidence.
In addition, the ALJ shall explain the rationale for the
paragraph B findings,
citing specific record evidence.
the ALJ shall reconsider Plaintiff's testimony and,
again chooses
to discredit
Plaintiff's testimony,
Finally,
if the ALJ
cite
legally
sufficient reasons relevant to the credibility determination.
CONCLUSION
Based
on
the
foregoing,
the
Commissioner's
decision
is
REVERSED, and this case is REMANDED pursuant to sentence four of 42
U.S.C.
§
405(g) for further administrative proceedings consistent
with this opinion.
IT IS SO ORDERED.
DATED this~ day of July, 2014.
Malcolm F. Marsh
United States District Judge
16 - OPINION AND ORDER
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