Linn v. Commissioner Social Security Administration

Filing 18

Opinion and Order: The Commissioner's final decision is Reversed and this matter is Remanded under sentence four of 42 U.S.C. § 405(g) for further proceedings. Signed on 7/28/2015 by Judge Michael J. McShane. (cp)

IN TBE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MARY EDA LINN,
Plaintiff,
v.

Civ. No. 3:14-cv-00856-MC
OPINION AND ORDER

CAROLYNW. COLVIN,
Acting Commissioner of the Social Security
Administration,
Defendant.

MCSHANE, Judge:
Plaintiff Mary Eda Linn brings this action for judicial review of a final decision of the
Commissioner of Social Security denying her application for disability insurance benefits (DIB)
and supplemental security income payments (SSI) under Titles II and XVI of the Social Security

· Act: This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
The issues before this Court are: (1) whether the Administrative Law Judge (ALJ) erred
in evaluating the medical opinion of consultative examiner Dr. Nolan; (2) whether the ALJ erred
in evaluating plaintiffs credibility; and (3) whether the ALJ erred in evaluating a lay witness's
credibility. Because the ALJ failed to fully and fairly develop plaintiffs medical record after
finding it ambiguous and incomplete, the Commissioner's decision is REVERSED, and this
matter is REMANDED for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff applied for DIB and SSI on September 20, 2010, alleging disability since April
19, 2007. Tr. 75, 87. Both claims were denied initially and upon reconsideration. Tr. 20. Plaintiff
1 -OPINION AND ORDER

timely requested a hearing before an Administrative Law Judge (ALJ) and appeared before the
· Honorable Verrell Dethloff on December 5, 2012. Tr. 39-7 4. ALJ Dethloff denied plaintiffs
claims by a written decision dated December 10,2012. Tr. 17-34. Plaintiff sought review from
the Appeals Council, which was subsequently denied, thus rendering the ALI's decision final.
Tr. 1. Plaintiff now seeks judicial review.
Plaintiff, born April 22, 1953, tr. 204, graduated from high school, tr. 228, and attended
some community college, tr. 291. Plaintiffs recent work includes: full-time employment as an
office specialist (2006-2007), tr. 228, and part-time employment as a home caregiver (20082012), tr. 42-43. Plaintiff was fifty-four years old at the time of the alleged disability onset; she
was fifty-nine at the time of her hearing. See tr. 204. Plaintiff alleges disability due to:
"dextroscoliosis and degenerative disc disease of the lumbar and thoracic spine, bilateral carpal
tunnel syndrome, dysthymic disorder, and aiLxiety disorder." Pl.'s Br. 2, ECF No. 15.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner's decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence on the record.
See 42 U.S.C. § 405(g); Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.

2004). To determine whether substantial evidence exists, this Court reviews the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALI's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
DISCUSSION
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520,416.920. The initial burden of proof rests
upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with

2 - OPINION AND ORDER

respect to the first four steps, then the burden shifts to the Commissioner for step five. 20 C.F.R.

§ 404.1520. At step five, the Commissioner's burden is to

d~monstrate

that the claimant is

capable of making an adjustment to other work after considering the claimant's residual
functional capacity (RFC), age, education, and work experience. Jd.
Plaintiff argues that the ALJ' s disability decision is not supported by substantial evidence
and is based on an application of improper legal standards. In particular, plaintiff argues that: (1)
the ALJ erred in evaluating the medical opinion of consultative examiner Dr. Nolan; (2) the ALJ
erred in evaluating plaintiffs testimony; and (3) the ALJ erred in evaluating a lay witness's
credibiliti'
I. Dr. Nolan's Medical Opinion

Plaintiff contends that the ALJ improperly rejected functional limitations identified by
examining physician Raymond P. Nolan, M.D., Ph.D. Pl.'s Br. 9, ECF No. 15. In response,
defendant argues that the ALJ properly assessed Dr. Nolan's opinion. Def.'s Br. 6, ECF No. 16.
"To reject an uncontradicted opinion of a treating or examining doctor, an ALJ must
state clear and convincing reasons that are supported by substantial evidence." Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chafer, 81 F.3d 821, 830-31 (9th

Cir. 1995)). "If a treating or examining doctor's opinion is contradicted by another doctor's
opinion, an ALJ may only reject it by providing specific and legitimate reasons that are
supported by substantial evidence." Id. (citation omitted). When evaluating conflicting medical
opinions, an ALJ need not accept a brief, conclusory, or inadequately supported opinion. Id.
(citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)). Furthermore, "the ALJ has a
special duty to fully and fairly develop the record and to assure that the claimant's interests are
considered." Brown v. Heckler, 713 F.2d 441,443 (9th Cir. 1983) (per curiam). Because Dr.

3 -OPINION AND ORDER

Nolan's opinion is contradicted in the record, 1 the ALJ can only reject it by providing specific
and legitimate reasons that are supported by substantial evidence.
Plaintiff met with consultative examiner Dr. Nolan for an administrative examination on
December 6, 2010. See tr. 298-99. As a result of that examination, Dr. Nolan opined that
plaintiff was able to: sit at least six hours in an eight-hour day; stand and/or walk between two
and four hours in an eight-hour day; and carry 20 pounds occasionally and 10 pounds frequently.
Tr. 299. Dr. Nolan also assessed plaintiff with "[b]ilateral carpal tunnel syndrome" and opined
that "[s]he should probably avoid repetitive hand and wrist activity." ld
The ALJ, after reviewing these findings, rejected Dr. Nolan's opined functional
limitations on "repetitive hand and wrist activity" and instead adopted the "more particularized
hand limitations" identified by nonexamining physician Peter M. Schosheim, M.D. See tr. 29. In
according "significant weight" to Dr. Schosheim's opined hand limitations, the ALJ relied on
two bases, including: (1) Dr. Schosheim's specialization as an orthopedic surgeon; and (2) Dr.
Schosheim's testimony during the administrative hearing. See tr. 28-29.
First, the ALJ noted that Dr. Schosheim was a board-certified orthopedic surgeon. See tr.
28; see also tr. 183-89 ("Medical Expert Resume"). As such, his opinion may be entitled to more
weight than that of a nonspecialist physician, e.g., Dr. Nolan. See 20 C.P.R.§ 416.927(c)(5)
("We generally give more weight to the opinion of a specialist about medical issues related to his
or her area of specialty than to the opinion of a source who is not a specialist.").

1

See tr. 82-84, 94-96 (On January 6, 2011, Mary Ann Westfall, M.D., opined that plaintiffs exertionallimitations
restricted her to: occasionally lifting and/or carrying up to 20 pounds; frequently lifting and/or carrying 10 pounds;
standing and/or walking about six hours in an eight-hour day; sitting about six hours in an eight-hour day; and
frequent, not constant, handling and fingering.); tr. II 0-12, 122-24 (On April 26, 20 II, Richard Alley, M.D.,
affirmed Dr. Westfall's RFC findings.); tr. 62 (On December 5, 2012, Peter M. Schosheim, M.D., opined that
plaintiffs exertionallimitations restricted her to: occasionally lifting and/or carrying up to 10 pounds; frequently
lifting and/or carrying up to 10 pounds; standing and/or walking about four hours in an eight-hour day; sitting about
six hours in an eight-hour day; occasionally balancing, stooping, kneeling, crouching, crawling and climbing; and
frequently using both hands for fine manipulation.).

4- OPINION AND ORDER

Second, the ALJ determined that Dr. Schosheim's testimony during the administrative

~

hearing was "amply supported by the record." Tr. 28 n.8. During the administrative hearing, Dr.
Schosheim opined, based on a "lack[] of medical evidence," that plaintiff "has no limitations of
gross manipulation [with both hands], but would have only frequent use of both hands for fine
manipulation." Tr. 62. Dr. Schosheim explained that he could not confirm carpal tunnel
syndrome because plaintiff "did not have a nerve conduction study or any physical examinations
with regard to her hand to indicate any significant loss of sensation or any significant grip
strength loss." Tr. 66. Nonetheless, Dr. Schosheim acknowledged that plaintiff had reported
tingling and pain in her fingers and hands, and he allegedly considered those symptoms when
formulating his opined limitation on fine manipulation. See tr. 61, 66. Because the ALJ adopted
this reasoning-i.e., that the record is inadequate to evaluate whether or not plaintiff has carpal
tunnel syndrome-the ALl's own findings triggered his duty to conduct an appropriate inquiry.
See Tonapetyan, 242 F.3d at 1150 ("Given this reliance [on Dr. Walter's opinion], the ALJ was

not free to ignore Dr. Walter's equivocations and his concern over the lack of a complete record
upon which to assess Tonapetyan's mental impairment.").
The ALJ' s duty to conduct an appropriate inquiry is further required by the presence of
two different assessments of carpal tunnel syndrome. First, in a report dated June 30, 2009,
plaintiffs primary care physician, Robyn Dreibelbis, D.O., wrote that plaintiffs Phalen's test

2

was positive at 30 seconds; Dr. Dreibelbis assessed plaintiff with possible carpal tunnel
syndrome. Tr. 306-07. At that time, Dr. Dreibelbis also recommended that a nerve conduction
study be performed to evaluate the severity of plaintiffs carpal tunnel syndrome. Id. at 307.
2

Phalen's test is "[a] test for determining median nerve compression in the carpal tunnel of the wrist; the wrist is
placedin an acute flexed position; if there is median nerve compression, paresthesias [i.e., pins-and-needles
sensations] of the thumb and adjacent two fingers usually occur after several seconds; normal individuals may
develop paresthesias after a few minutes of sustained acute wrist flexion." Attorney's Illustrated Medical Dictionary
T25 (Ida G. Dox, Ph.D., et al. eds., 1997).

5 -OPINION AND ORDER

Second, in December 2010, upon examining plaintiffs wrists, Dr. Nolan reported that plaintiffs
Tinel's sign3 was positive bilaterally, tr. 298; he assessed her with bilateral carpal tunnel
syndrome, tr. 299.
In sum, the ALJ erred by crediting Dr. Schosheim's opinion, as well as Dr. Schosheim's
rationale for that opinion, without fully and fairly developing plaintiffs medical record. Even
though Dr. Schosheim is a medical specialist, his repeated caveats regarding the sparseness of
the record, combined with the assessments of carpal tunnel syndrome from both Dr. Dreibelbis
and Dr. Nolan, triggered the ALl's duty to develop the record more fully. The ALl's failure to
do so therefore constitutes a reversible error. See Tonapetyan, 242 F.3d at 1150 ("Ambiguous
evidence, or the ALl's own finding that the record is inadequate to allow for proper evaluation of
the evidence, triggers the ALl's duty to 'conduct an appropriate inquiry.'" (quoting Smolen v.

Chater, 80 F.3d 1273, 1288 (9th Cir. 1996))).
II. Plaintiff's Credibility
Plaintiff contends that the ALJ erred in evaluating her credibility. Pl.'s Br. 11-16, ECF
No. 15. In response, defendant argues that the ALl's findings are supported by substantial
evidence. Def.'s Br. 9, ECF No. 16.
An ALJ must consider a claimant's symptom testimony, including statements regarding

pain and workplace limitations. See 20 C.F.R. §§ 404.1529,416.929. "In deciding whether to
accept [this testimony], an ALJ must perform two stages of analysis: the Cotton analysis 4 and an
analysis of the credibility of the claimant's testimony regarding the severity ofher symptoms."

3

"Tinel's sign [is a test] in which median nerve paresthesias [i.e., pins-and-needles sensations] are reproduced by
tapping at the volar surface of the wrist over the site of the median nerve in the carpal tunnel." The Merck Manual of
Diagnosis and Therapy 335 (Mark H. Beers, M.D., et al. eds., 18th ed. 2006).
4
"The Cotton test imposes only two requirements on the claimant: (1) she must produce objective medical evidence
of an impairment or impairments; and (2) she must show that the impairment or combination of impairments could
reasonably be expected to (not that it did in fact) produce some degree of symptom." Smolen, 80 F.3d at 1282 (citing
Cotton v. Bowen, 799 F.2d 1403, 1407-08 (9th Cir. 1986)).

6 - OPINION AND ORDER

Smolen, 80 F .3d at 1281. If a claimant meets the Cotton analysis and there is no evidence of
malingering, "the ALJ can reject the claimant's testimony about the severity of her symptoms
only by offering specific, clear and convincing reasons for doing so." !d. (citing Dodrill v.

Shalala, 12 F.3d 915, 918 (9th Cir. 1993). This Court "may not engage in second-guessing,"
Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citations omitted), and "must uphold the
ALI's decision where the evidence is susceptible to more than one rational interpretation,"

Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (citations omitted).
The ALJ found that plaintiffs statements concerning her alleged limitations were not
credible to the extent that they were inconsistent with the RFC. See tr. 26-28. In making this
determination, the ALJ relied on three bases, including: (1) plaintiffs activities of daily living,
including part-time work as a home caregiver, were not consistent with her alleged degree of
impairment; (2) testimony from Gregory A. Cole, Ph.D., the consultative expert who performed
a psychodiagnostic evaluation of plaintiff, demonstrated that plaintiffs statements about her
impairments were "exaggerated [and] partly without any objective support"; and (3) plaintiffs
receipt of unemployment benefits indicated that she had held herself out as capable of
maintaining full-time employment. Tr. 26-28. Because defendant does not dispute that the third
reason was invalid, this Court's analysis will focus on the first two reasons.
First, the ALJ found that plaintiffs daily activities, including her part-time work, were
not consistent with her alleged degree of impairment. See tr. 27. The ALJ explained in part:
[P]laintiff described her job duties as providing transportation for her
clients, taking them shopping, reminding them to take medication, fixing
dinner "4 nights a week" and cleaning wounds "on a daily basis." The
claimant further testified that she helped a lady with taking showers "once
every two weeks." Actual performance of the above job duties on a
sustained basis for at least three years after the alleged onset date
contravenes the claim of total disability.

7- OPINION AND ORDER

Tr. 27 (citation omitted). These findings, if supported in the record, can support an adverse
credibility determination. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).
Plaintiff, who alleges a disability onset date in 2007, worked as a part-time home
caregiver between 2008 and 2011. See tr. 27, 42-43, 228. In that role, as discussed by the ALJ,
plaintiff performed many duties that can be reasonably interpreted as inconsistent with her
alleged degree of impairment. For example, plaintiff alleged incapacitating anxiety, tr. 51, yet
assisted with clients' medication, tr. 43; plaintiff alleged that she could not walk safely for more
than half of one block, tr. 54, yet routinely took clients shopping, tr. 43.
In addition to these work-related activities, plaintiff reported that she regularly: shopped;
read; watched movies; socialized with friends, e.g., telephone conversations, personal visits, and
get-togethers for "dinner/snacks"; and maintained a typical hygiene routine that included
washing hair, brushing teeth, applying make-up, and inserting contact lenses. See tr. 234, 23637. These daily activities, like plaintiffs part-time work duties, can be reasonably interpreted as
inconsistent with her alleged degree of mental impairment. For example, at her administrative
hearing, plaintiff reported that her anxiety prevented her from thinking and functioning, and that
she was "terrified" that she would freeze up during the hearing. See tr. 51. Yet, when asked to
describe her "ability to express herself' at that same hearing, plaintiff testified that she felt she
was "doing better-far better than [she] thought was possible." Tr. 51-52.
Second, the ALJ discredited plaintiffs testimony because he found it "exaggerated [and]
partly without any objective support." See tr. 27-29. For example, plaintiffreported continuous
debilitating anxiety that prevented her from performing even the simplest of tasks. See tr. 51-52.
Yet Dr. Cole, upon conducting plaintiffs psychodiagnostic evaluation, found that plaintiff "was
able to sustain simple routine tasks" and had "only mild problems completing a simple multiple-

8 -OPINION AND ORDER

step task." Tr. 294. Dr. Cole concluded that plaintiffs "claimed problems with pain would be the
primary factors which would impact her overall level of vocational success." Id.
In sum, plaintiffs allegations are contradicted by both her own daily activities and by the
reports of Dr. Cole, a consultative expert. Accordingly, the ALJ properly evaluated plaintiffs
credibility.
III. Lay Witness's Credibility

Plaintiff contends that the ALJ erred when he rejected functional limitations identified by
lay witness Crystal Linn (Crystal), plaintiffs daughter. Pl.'s Br. 16, ECF No. 15. Defendant
contends that the ALJ provided germane reasons for rejecting these limitations. Def.'s Br. 12,
ECF No. 16.
"Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take
into account, unless he or she expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)
(citation omitted); see also Merrill ex rel. Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000)
("[A]n ALJ, in determining a claimant's disability, must give full consideration to the testimony
of friends and family members." (citation omitted)). In determining credibility, an ALJ may
reject lay witness testimony if that testimony is inconsistent with the medical record. See Bayliss,
427 F.3d at 1218.
Crystal submitted a third-party function report, dated October 30, 2010, tr. 250-57, and a
testimonial letter, dated November 29, 2012, tr. 282-85. In these documents, Crystal reported
that plaintiff had difficulty performing basic functions at home and at work because of"chronic,
constant pain." Tr. 283; see also tr. 284 ("[Plaintiff] can not work, she can not use her arms well,

9 - OPINION AND ORDER

and she has very little strength in her legs, and experiences shooting pain and spasms throughout
her whole nervous system. She can not sit, stand or even sleep without chronic, habitual pain.").
The ALJ, after reviewing these observations, rejected Crystal's reported observations
because: (1) they were inconsistent with plaintiffs statements; (2) they were inconsistent with
plaintiffs daily activities, including her part-time employment; and (3) they were inconsistent
with consultative examination reports in the record. Tr. 29-30. Each of these three explanations
represents a germane reason for rejecting Crystal's testimony.
First, the ALJ found that Crystal's reported observations were inconsistent with
plaintiffs statements. Tr. 29. For example, Crystal reported that plaintiff struggled to care for
herself, e.g., "putting in eye contacts, applying cosmetics, and styling[] hair," and was
"becom[ing] very reclusive." Tr. 283. In contrast, plaintiff reported that her impairments did not
affect her ability to "Dress, Bathe, Care for hair, Shave, Feed self, [and] Use the toilet," tr. 235,
and that she continued to spend time with others on a weekly basis, e.g., "phone calls, personal
visits, movies (usually in home), get[ting] together for dinner/snacks, or just talk[ing] and
laugh[ing]," tr. 237.
Second, the ALJ found that Crystal's reported observations were inconsistent with
plaintiffs daily activities, including part-time employment between 2008 and 2011. Tr. 29-30.
For example, Crystal reported that plaintiff was unable to complete many of her duties as a home
caretaker because of her functional limitations. See tr. 283 ("[M]any of [plaintiffs clients']
domestic needs ... were completely impossible for her to complete.").· Yet, plaintiff maintained
consistent part-time employment with a single employer between 2008 and 2011, see tr. 228, and
asserted that she could do "anything that [her employer] could put [her] on," tr. 43.

10 - OPINION AND ORDER

Third, the ALJ found that Crystal's reported observations were inconsistent with the
consultative examination reports in the record. See tr. 29-30; see also tr. 290-95, 298-99. For
example, Crystal wrote that plaintiff had so much trouble walking and maintaining her balance
that plaintiffs "falling again and sustaining another fracture" was practically inevitable. See tr.
283-84. But after performing diagnostic tests on plaintiffs gait and balance, Dr. Nolan described
plaintiff as being "[a]ble to go from sitting to standing without difficulty .... Able to do a
tandem and Romberg. 5 Able to walk on toes and heels." Tr. 298 Crystal stated that plaintiff lived
in "chronic, constant pain" and that plaintiff"experiences constant fear and anxiety." Tr. 283.
But in contrast, Dr. Cole found "no evidence of psychomotor agitation or slowing, and no
unusual physical mannerisms .... [Plaintiff] also did not exhibit any observable pain behaviors."
Tr. 292.
In sum, the reasons described above represent germane reasons to reject Crystal's
reported observations. Accordingly, the ALJ properly evaluated Crystal's credibility.

IV. Remand
This Court has "discretion to remand a case either for additional evidence and findings or
to award benefits." Smolen, 80 F.3d at 1292 (citing Swenson v. Sullivan, 876 F.2d 683, 689 (9th
Cir. 1989)). Generally, the "decision of whether to remand for further proceedings turns upon the
likely utility of such proceedings." Harman v. Apfel, 211 F .3d 1172, 1179 (9th Cir. 2000) (citing
Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981)). To remand for an award ofbenefits,

three elements must be satisfied:
(1) the record has been fully developed and further administrative
proceedings would serve no useful purpose;
5

Tandem gait is a test in which a patient is instructed "to 'walk a tightrope' or do the 'drunk test' by placing one
foot in front of the other, taking each step with the heel directly in front of the toe." Andrew Tarulli, Neurology: A
Clinician's Approach 145 (20 II). Romberg is a test in which a patient is first instructed to maintain her balance
while standing with her feet placed together, then instructed to close her eyes. I d.

11 - OPINION AND ORDER

(2) the ALJ has failed to provide legally sufficient reasons for rejecting
evidence, whether claimant te~timony or medical opinion; and
(3) if the improperly discredited evidence were credited as true, the ALJ
would be required to find the claimant disabled on remand.
Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014).

The error identified by this Court-the ALJ's failure to fully and fairly develop plaintiffs
medical record-is reversible. That error does not meet the first and third elements identit1ed
above. Even if plaintiffs medical record is fully developed, it is not clear that, if presented with a
more complete medical record, the ALJ would necessarily find plaintiff disabled. Accordingly,
this matter is remanded under sentence four of 42 U.S.C. § 405(g) for further proceedings. See
Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) ("'[T]he proper course, except in rare

circumstances, is to remand to the agency for additional investigation or explanation."') (quoting
Immigration & Naturalization Serv. v. Ventura, 537 U.S. 12, 16 (2002)).
CONCLUSION

For the reasons stated above, the Commissioner's final decision is REVERSED, and this
matter is REMANDED under sentence four of 42 U.S.C. § 405(g) for further proceedings. It is
hereby ordered, upon remand:
1. The ALJ shall obtain additional objective medical evidence regarding

plaintiffs alleged carpal tunnel syndrome and related neurological impairments;
2. If necessary, the ALJ shall reevaluate the medical opinion evidence and explain

the weight given to each opinion;
3. If necessary, the ALJ shall reevaluate plaintiffs RFC;
4. If necessary, the ALJ shall make new findings under step five of the sequential
evaluation and obtain supplemental vocational expert evidence.

IT IS SO ORDERED.
12- OPINION AND ORDER

DATED this Z<i day of July, 2015

l
Michael J. McShane
United States District Judge

13 -OPINION AND ORDER