Jacoby v. Commissioner Social Security Administration

Filing 19

Opinion and Order. The decision of the Commissioner is REVERSED and this matter is REMANDED pursuant to Sentence Four, 42 USC 405(g). Signed on 12/5/2014 by Judge James A. Redden. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

YVETTE URSULA JACOBY,

Plaintiff,

3:13-cv-01526- RE

OPINION AND ORDER

v.

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

REDDEN, Judge:
Plaintiff Yvette Ursula Jacoby brings this action to obtain judicial review of a final
decision of the Commissioner of the Social Security Administration ("Commissioner") denying
her claim for Disability Insurance Benefits. For the reasons set f01ih below, the decision of the
Commissioner is reversed and this matter is remanded for the calculation and payment of
benefits.

1 - OPINION AND ORDER

BACKGROUND
Jacoby filed her application in December 2009, alleging disability since June 15, 2004,
due to "diabetes, colitis, depression, migraines, blind left eye, right rotator cuff injmy, right
tennis elbow, neuropathy both hands, thyroid." Tr. 171. Born in 1966, Jacoby was 43 years old
on her date last insured. Her application was denied initially and upon reconsideration. A
hearing was held on November 23, 2011. Tr. 31-85. The Administrative Law Judge ("ALJ")
found her not disabled. Jacoby's request for review was denied, making the ALJ's decision the
final decision of the Commissioner.

ALJ's DECISION
The ALJ found Jacoby had the medically dete1minable severe impairments of diabetes
type I, blind in the left eye, right shoulder rotator cuff syndrome with adhesive capsulitis. Tr.
14. The ALJ dete1mined Plaintiff met the insured status requirements of the Social Security Act
through December 31, 2009.

Id

The ALJ found that Jacoby's impairments did not meet or medically equal one of the
listed impahments in 20 C.F.R. Part 404, Subpart P, App. 1. Tr. 17.
The ALJ determined that Jacoby retained the residual functional capacity ("RFC") to
perfo1m a limited range of light work and is able to lift and /or cany 20 pounds occasionally and
10 pounds frequently, sit for six hours and stand and/or walk for two hours in an eight hour day.
Tr. 18.

The ALJ found Jacoby is limited to no pulling and occasional overhead reaching with

her right upper extremity. Tr. 18. The ALJ found Jacoby could climb no ladders, and was
limited to occasional crouching, stooping, kneeling, crawling and climbing ramps and stairs. She

2 - OPINION AND ORDER

could do no work requiring binocular vision or depth perception. She must avoid hazardous
machinery and extreme vibration. Id.
At step five, the ALJ found Jacoby was unable to perform her past relevant work as a
sales clerk or teachers aide, but was capable of performing other work that exists in significant
numbers in the national economy, including information clerk. Tr. 24.
Jacoby argues that the ALJ etTed by failing to find her mental impairments severe at step
two and by providing legally insufficient reasons to discount opinions.
MEDICAL EVIDENCE AND TESTIMONY

On December 20, 2010, Patrick Tester, M.D., Plaintiffs treating physician since October
2008, completed a form in which he opined Plaintiffs Type 1 Diabetes was complicated and the
prognosis was progressive. Tr. 800. Dr. Tester stated Plaintiff had symptoms including fatigue,
general malaise, extremity pain and numbness, difficulty walking, muscle weakness, diminished
manual dexterity, episodic blurred vision, retinopathy, dianhea, difficulty thinking and
concentrating, psychological problems, excessive thirst, abdominal pain, dizziness and loss of
balance, swelling, kidney problems, frequent urination and episodes of high and low blood
sugars. Tr. 800-01. Dr. Tester stated Plaintiff was not a malingerer, and her symptoms would
frequently interfere with her attention and concentration. Dr. Tester stated Plaintiff could stand
for 20 minutes before needing to change position, and would miss more than three days a month
of work due to symptoms. Tr. 804.
In November, 2011, Dr. Tester completed a form in which he opined Plaintiff was
extremely impaired in the ability to understand and remember detailed instructions, the ability to
maintain attention and concentration, and the ability to complete a normal workday. Tr. 807. Dr.
3 - OPINION AND ORDER

Tester found Plaintiff markedly impaired in the ability to ask simple questions or request
assistance, and the ability to remember locations and work-like procedures. Id.
In November 2011, Colette R. DeLeon, L.C.S.W., Plaintiffs mental health clinician since
October 2011, completed a form in which she opined Plaintiff had generalized anxiety with
difficulty concentrating and recurrent panic attacks. Tr. 809. Ms. DeLeon indicated Plaintiff was
markedly impaired in the ability to remember locations and work-like procedures, extremely
impaired in the ability to remember detailed instructions, the ability to maintain attention and
concentration, the ability to complete a normal workday or work week, and the ability to ask
simple questions or request assistance. Tr. 811.
DISCUSSION

I. Step Two
At step two, the ALJ determines whether the claimant has a medically severe impairment
or combination of impahments. Bowen v. Yuckert, 482 US 13 7, 140-41 (1987). The Social
Security Regulations and Rulings, as well as case law applying them, discuss the step two
severity dete1mination in terms of what is "not severe." According to the regulations, "an
impairment is not severe if it does not significantly limit [the claimant's] physical ability to do
basic work activities." 20 CFR § 404.152l(a). Basic work activities are "abilities and aptitudes
necessary to do most jobs, including, for example, walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying or handling." 20 CFR § 404.152l(b).
The step two inquiry is a de minimis screening device to dispose of groundless claims.
Yuckert, 482 US at 153-54. An impahment or combination of impairments can be found "not

severe" only if the evidence establishes a slight abnormality that has "no more than a minimal
4 - OPINION AND ORDER

effect on an individual's ability to work." See SSR 85-28; Yuckert v. Bowen, 841F2d303, 306
(9'h Cir 1988) (adopting SSR 85-28). A physical or mental impaitment must be established by
medical evidence consisting of signs, symptoms, and laboratoty findings, and cannot be
established on the basis of a claimant's symptoms alone. 20 CFR § 404.1508.
The ALJ found the medical record did not establish a severe mental impaitment. Tr. 22.
The ALJ stated Plaintiff had never been in out or in patient care, her condition waxed and waned
over the years with no evidence of worsening, her symptoms were controlled with treatment and
medication, and her GAF scores suggested only moderate symptoms. Id
The ALJ properly determined that Jacoby had severe impairments at step two and
continued the analysis. Any eJTor in failing to identify other limitations as "severe" at step two is
therefore harmless.

II. The Medical Evidence
Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527( e)(1 );
416.927(e)(1 ). If no conflict arises between medical source opinions, the ALJ generally must
accord greater weight to the opinion of a treating physician than that of an examining physician.
Lester v. Chafer, 81 F.3d 821, 830 (9th Cir. 1995). In such circumstances the ALJ should .also

give greater weight to the opinion of an examining physician over that of a reviewing physician.
Id. But, if two medical source opinions conflict, an ALJ need only give "specific and legitimate

reasons" for discrediting one opinion in favor of another. Id at 830. The ALJ may reject
physician opinions that are "brief, conclusoty, and inadequately suppotied by clinical findings."
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). "[T] opinions ofa specialist about

5 - OPINION AND ORDER

medical issues related to his or her area of specialization are given more weight than the opinions
of a nonspecialist." Smolen v. Chafer, 80 F.3d 1273, 1290 (9'h Cir. 1996).
The ALJ noted Dr. Tester's opinion and gave it little weight. Tr. 17. The ALJ stated that
Dr. Tester's "specialty area is internal medicine, and he appears to be proffering an opinion well
outside his area of expertise." Id This is not a valid reason to reject the opinion of the treating
physician. The ALJ stated that Dr. Tester's opinion was contradicted by the opinion of the state
agency examiner, Dorothy Anderson, Ph.D. Dr. Anderson reviewed the medical record and on
April 12, 2010, she opined that Plaintiff had only mild limitations. Tr. 489-501. However, Dr.
Tester's December 2010 opinion was not reviewed by Dr. Anderson, so her review of the record
was not complete. Finally, the ALJ states that Dr. Tester's opinion is given little weight because
it "does not square with the overall treatment record, including the claimant's relatively high
GAF scores and indications of improvement with therapeutic treatment." Tr. 17. However,
careful review of the treatment record reveals that the bulk of the evidence is consistent with Dr.
Tester's opinion. Counseling notes from Western Psychological and Counseling Services, P.C.
indicate that between January 2004 and Plaintiffs date last insured, December 31, 2009,
Plaintiff reported anxiety, memo1y loss, suicidal ideation, and depression. Tr. 265, 280, 277,
268, 264, 446, 445, 441, 439, 438. In October 2008 Dr. Tester noted recurrent depression. Tr.
388. In November 2009 Dr. Tester noted "she obviously has multiple problems, which make her
working effectively impossible." Tr. 390.
Dr. Tester's opinion was corroborated by Leeza Maron, Ph.D. in a Janumy 2011
Neuropsychological evaluation, in which Dr. Maron noted poor frustration tolerance, moderately
impaired processing speed and working memo1y, prominent executive dysfunction, and Plaintiff
6 - OPINION AND ORDER

required help with activities of daily living. Tr. 617-23. The ALJ failed to identify specific and
legitimate reasons to reject Dr. Tester's opinion. Accordingly, on this record, the ALJ's
evaluation of Dr. Tester's opinion was not supported by substantial evidence.

III. Remand
The decision whether to remand for fmiher proceedings or for immediate payment of
benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 172, 1178 (9'h Cir.
2000), cert. denied, 531 U.S. 1038 (2000). The issue turns on the utility of fmiher proceedings.
A remand for an award of benefits is appropriate when no useful purpose would be served by
further administrative proceedings or when the record has been fully developed and the evidence
is insufficient to suppo1i the Commissioner's decision. Strauss v. Comm 'r, 635 F.3d 1135, 113839 (9'h Cir. 201 l)(quoting Benecke v. Barnhart, 379 F.3d 587, 593 (91h Cir. 2004)). The comi
may not award benefits punitively, and must conduct a "credit-as-true" analysis to determine if a
claimant is disabled under the Act. Id at 1138.
Under the "credit-as-true" doctrine, evidence should be credited and an immediate award
of benefits directed where: (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 "credit-as-true"
doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in
determining whether to enter an award of benefits upon reversing the Commissioner's decision.

Connett v. Barnhart, 340 F.3d 871, 876 (citing Bunnell v. Sullivan, 947 F.2d 871(9'h Cir.

7 - OPINION AND ORDER

2003)(en bane)). The reviewing court should decline to credit testimony when "outstanding
issues" remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9 1h Cir. 2010).
The ALJ's assessment of Dr. Tester's opinion is erroneous for the reasons set out above.
It is clear from the record that the ALJ would be required to find Plaintiff disabled if such

evidence were credited as Dr. Tester assessed Plaintiff with multiple functional limitations.

If

credited, those opinions establish that Plaintiff is disabled. Thus, the court concludes Plaintiff is
disabled based on this medical record and no useful purpose would be served by a remand of this
matter for further proceedings. See Harman, 211 F.3d at 117.
CONCLUSION

For these reasons, the Court REVERSES the decision of the Commissioner and
REMANDS this matter to the Commissioner pursuant to Sentence Four, 42 U.S.C. § 405(g) for

the immediate calculation and payment of benefits to Plaintiff.
IT IS SO ORDERED.
Dated this s<fay of December, 2014.

J~REDDEN
United States District Judge

8 - OPINION AND ORDER