Seiber v. Commissioner Social Security Administration

Filing 20

Opinion and Order. The Court REVERSES the final decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order. Signed on 08/19/2015 by Judge Anna J. Brown. See attached 14 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MIKE SEIBER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Conunissioner, Social Security
Administration,
Defendant.

RICHARD F. MCGINTY
McGinty & Belcher, PC
P.O. Box 12806
Salem, OR 97309
(503) 371-'9636
Attorneys for Plaintiff
BILLY J. WILLIAMS
Acting United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204
[phone]

1 - OPINION AND ORDER

3:14-cv-01149-BR
OPINION AND ORDER

DAVIb MORADO
Regional Chief Counsel
ALEXIS L. TOMA
Special Assistant United States Attorneys
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104-7075
[phone]
Attorneys for Defendant

BROWN, Judge.
Plaintiff Mike Seiber seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Act.
This Court has jurisdiction to review the Commissioner's
decision pursuant to 42 U.S.C. § 405(g).

Following a thorough

review of the record, the Court REVERSES the final decision of
the Commissioner and REMANDS this matter for further
administrative proceedings consistent with this Opinion and
Order.

ADMINISTRATIVE HISTORY
Plaintiff filed his application for SSI on April 27, 2011.
Tr. 141. 1

His application was denied initially and on

1

Citations to the official transcript of record filed by
the Commissioner on October 8, 2014, are referred to as "Tr."
2 - OPINION AND ORDER

reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on February 6, 2013.

Tr. 24.

was represented by an attorney.

At the hearing Plaintiff

Plaintiff and a vocational

expert (VE) testified at the hearing.

Tr. 25.

The ALJ issued a decision on February 22, 2013, in which he
found Plaintiff is not entitled to benefits.

Tr. 11-20.

That

decision became the final decision of the Commissioner on May 22,
2014, when the Appeals Council denied Plaintiff's request for
review.

Tr. 1-4.

See Sims v. Apfel, 530 U.S. 103, 106-07

(2000).

BACKGROUND

Plaintiff was born on October 5, 1970; was 42 years old on
the date of the hearing; and has a ninth-grade education.
Tr. 42, 141, 147.
work experience.

Plaintiff does not have any prior relevant
Tr. 19.

Plaintiff alleges disability since April 27, 2011, due to a
herniated disc in his lower back, hip dysplasia, right-wrist
arthritis, "learning disab[ilities]," hernias, "vascular disorder
in legs," depression, and restless-leg syndrome.

Tr. 141, 146.

Except as noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ's summary of the
medical evidence.

See Tr. 15-19.

3 - OPINION AND ORDER

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden a claimant must demonstrate his

inability ''to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which .

. . has lasted or can be expected to last for

a continuous period of not less than 12 months."
§

423(d) (1) (A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011) (quoting Mayes v. Massanari, 276 F.3d
453, 459-60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).

See also Brewes v. Comm'r,

(9th Cir. 2012).

Substantial evidence is

42

682 F.3d 1157, 1161

~relevant

evidence that

a reasonable mind might accept as adequate to support a
conclusion."

Molina,

674 F.3d. at 1110-11 (quoting Valentine v.

Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)).
is ''more than a mere scintilla'' of evidence but less than a
preponderance.

Id.

(citing Valentine, 574 F.3d at 690).

The ALJ is responsible for determining credibility,
4 - OPINION AND ORDER

It

resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner's findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006) .

DISABILITY ANALYSIS

Social Security Regulations set out a five-step sequential
process for determining whether an applicant is disabled within
the meaning of the Social Security Act.
Soc. Sec. Admin., 648 F.3d 721, 724

Keyser v. Comm'r of

(9th Cir. 2011).

See also

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R.
§

416.920.

Each step is potentially dispositive.

At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 416.920(a) (4) (I).

F.3d at 724.
5 - OPINION AND ORDER

See also Keyser, 648

At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.

Stout v. Comm'r Soc.

Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).

C.F.R. § 416.920(a) (4) (ii); Keyser,

See also 20

648 F.3d at 724.

At Step Three the Commissioner must determine whether a
claimant's impairments meet or equal one of the listed
impairments and are so severe that they preclude substantial
gainful activity.

The claimant is disabled if the Commissioner

determines the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§

416. 920 (a) (4) (iii).

See also Keyser,

20 C.F.R.

648 F.3d at 724.

The

criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant's residual functional capacity (RFC).

The

claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§

416.920(e).

See also Social Security Ruling (SSR)

20 C.F.R.
96-8p.

"A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule.''

6 - OPINION AND ORDER

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm'r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011) (citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).

The assessment of a claimant's

RFC is at the heart of Steps Four and Five of the sequential
analysis when the ALJ is determining whether a claimant can still
work despite severe medical impairments.

An improper evaluation

of the claimant's ability to perform specific work-related
functions "could make the difference between a finding of
'disabled' and 'not disabled.'"

SSR 96-8p, at *4.

At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.

20 C.F.R.

§

416.920(a) (4) (iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 416.920(a) (4) (v).

Keyser, 648 F.3d at 724-25.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Comm'r Soc.

Lockwood v.

Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).

The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set
forth in the regulations at 20 C.F.R. part 404, subpart P,

7 - OPINION AND ORDER

appendix 2.

If the Commissioner meets this burden, the claimant

is not disabled.

20 C. F.R. § 416. 920 (g) (1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since April 27, 2011, his alleged
onset date.

Tr. 13.

At Step Two the ALJ found Plaintiff has the severe
impairments of osteoarthritis of the cervical spine, thoracic
spine, lumbar spine, and right wrist; congenital hip dysplasia;
"learning disorder•; and depressive disorder.

Tr. 13.

At Step Three the ALJ found Plaintiff's impairments do not
meet or equal the criteria for any impairment in the Listing of
Impairments.

Tr. 14-15.

In her assessment of Plaintiff's RFC,

the ALJ found Plaintiff has the functional capacity to perform
light work, except that Plaintiff can occasionally push and pull
with the right upper extremity; frequently climb ramps and
stairs, balance, and kneel; occasionally stoop, crouch, and
crawl; never climb ladders, ropes, or scaffolds; occasionally
handle, finger, and feel; should avoid concentrated exposure to
dust, fumes, and chemicals; and can perform only simple, routine
tasks.

Tr. 15-19.

At Step Four the ALJ found Plaintiff does not have any past
relevant work experience.

8 - OPINION AND ORDER

Tr. 19.

At Step Five, however, the ALJ found Plaintiff is capable of
performing other work that exists in significant numbers in the
national economy, including work as a "counter clerk" and a
furniture-rental clerk.

Tr. 19-20.

Accordingly, the ALJ found

Plaintiff is not disabled and, therefore, is not entitled to
benefits.

Tr. 20.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) credited the
opinion of Dr. Ben Kessler,

Psy. D.;

( 2) failed to incorporate the

opinions of nonexamining psychological experts Sandra Lundblad,
Psy.D., and Joshua Boyd, Psy.D., into the ALJ's assessment of
Plaintiff's RFC; and (3) failed to leave the record open to allow
for the submission of an opinion from examining psychological
expert David M.

Freed,

Ph.D., before the ALJ reached his

decision.

I.

Dr. Kessler's Opinion
Plaintiff first contends the ALJ erred when he credited the

opinion of Dr. Kessler because the medical records that
Dr. Kessler relied on were outdated and the conclusions drawn
from the psychological examination that Dr. Kessler performed
were "only valid on the date of the examination."
Plaintiff does not cite any authority and the Court cannot
find any authority to support the proposition that the ALJ is

9 - OPINION AND ORDER

required to provide a specific justification for fully crediting
the opinion of a medical or psychological expert.

Accordingly,

the Court will only find error in the ALJ's decision to fully
credit Dr. Kessler's opinion if that opinion is not "relevant
evidence that a reasonable mind might accept as adequate to
support a conclusion."

See Molina, 674 F.3d. at 1110-11 (quoting

Valentine, 574 F.3d at 690).
Dr. Kessler submitted his opinion after he performed a
psychodiagnositic examination of Plaintiff during which he
conducted an extensive interview with Plaintiff and performed
several psychological tests.
and thoroughly reasoned.

Dr. Kessler's opinion is detailed

The mere fact that some of the

psychological records that he reviewed as part of his examination
were old does not undermine Dr. Kessler's opinion to the extent
that the ALJ could not rely on Dr. Kessler's testimony.
Accordingly, on this record the Court concludes the ALJ did
not err when he credited Dr. Kessler's opinion.

II.

The ALJ's Failure to Incorporate Nonexamining Physician
Testimony into the ALJ's Assessment of Plaintiff's RFC
Plaintiff next contends the ALJ erred when he failed to

incorporate into the assessment of Plaintiff's RFC a limitation
to one-to-two-step instructions found by nonexamining
psychologists Drs. Lundblad and Boyd.
The ALJ's assessment of the evidence in the record must
include:

(1) a thorough discussion and analysis of the objective

10 - OPINION AND ORDER

medical and other evidence,

(2) resolution of inconsistencies in

the evidence, and (3) a logical explanation of the effects of
symptoms on the individual's ability to work.

SSR 96-Bp, at *7.

Drs. Lundblad and Boyd opined Plaintiff "is capable of
understanding/remembering 1-2 step instructions.

[Plaintiff]

would be incapable of remembering more complex instructions."
Tr. 56, 73.

Although the ALJ assigned "significant weight" to

the opinions of Drs. Lundblad and Boyd, the ALJ merely limited
Plaintiff to "simple, routine tasks" in his assessment of
Plaintiff's RFC.
The ability to perform simple, routine tasks represents a
greater degree of functionality than a limitation only being able
to follow one-to-two-step instructions.

See Rounds v. Comm'r

Soc. Sec. Admin., No. 13-35505, 2015 WL 4620150, at *5 (9th Cir.
Aug. 4, 2015) (noting a limitation to "'simple' or 'repetitive'
tasks" is consistent with Reasoning Level Two, but a limitation
to "one-to-two step tasks" is only consistent with Reasoning
Level One).

Accordingly, the ALJ erred when he afforded the

opinions of Drs. Lundblad and Boyd significant weight without
sufficiently incorporating their conclusions as to Plaintiff's
limitations in the assessment of Plaintiff's RFC.
The Court must, nonetheless, determine whether the ALJ's
error is harmless.

"An error is harmless if it is

'inconsequential to the ultimate nondisability determination,' or

11 - OPINION AND ORDER

'if the agency's path may reasonably be discerned,' even if the
agency 'explains its decision with less than ideal clarity.'''
Treichler v. Comm'r Soc. Sec. Admin., 775 F.3d 1090, 1099 (9th

Cir. 2014) (quoting Alaska Dep't of Evntl. Conservation v. Envtl.
Prot. Agency, 540 U.S. 461,

497

(2004), and Molina v. Astrue, 674

F.3d 1104, 1115 (9th Cir. 2012)).
Plaintiff contends the ALJ's error is not harmless because
the two jobs that the ALJ relied on to carry the Commissioner's
burden at Step Five require a Specific Vocational Preparation
(SVP) Level Two while a limitation to one-to-two-step
instructions is only consistent with SVP Level One.
"Specific Vocational Preparation is defined as the amount of
lapsed time required by a typical worker to learn the
techniques, acquire the information, and develop the facility
needed for average performance in a specific
job-worker situation."

U.S. Dep't of Labor, Dictionary of

Occupational Titles App. C (4th ed. 1991).

SVP Level One

requires "[s]hort demonstration only" while SVP Level Two
consists of "[a]nything beyond short demonstration up to and
including 1 month."

Id.

On this record the Court cannot conclude jobs that require
SVP Level 2 are consistent with the opinions of Ors. Lundblad and
Boyd that Plaintiff is limited to "understanding/remembering 1-2
step instructions."

Accordingly, the ALJ's failure to

12 - OPINION AND ORDER

incorporate the opinions of Drs. Lundblad and Boyd into the ALJ's
assessment of Plaintiff's RFC is not harmless and necessitates
remand.
III. Dr. Freed's Opinion

Plaintiff next contends the ALJ erred when he declined to
keep the record open to permit Plaintiff to submit Dr. Freed's
opinion before the ALJ reached his decision.

Plaintiff argues

this error is harmful because Dr. Freed's opinion (first
submitted to the Appeals Council) is material evidence that
undermines the ALJ's decision.
The Court need not resolve this issue, however, in light of
the remand necessitated by the ALJ's error in failing to
incorporate the opinions of Drs. Lundblad and Boyd in the
assessment of Plaintiff's RFC.

Because Dr. Freed's opinion is

now part of the record, the ALJ must address Dr. Freed's opinion
on remand.

REMAND

The decision whether to remand for further proceedings or
for immediate payment of benefits is within the discretion of the
court.

Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000).

issue turns on the utility of further proceedings.

The

A remand for

an award of benefits is appropriate when no useful purpose would
be served by further administrative proceedings or when the

13 - OPINION AND ORDER

record has been fully developed and the evidence is insufficient
to support the Commissioner's decision.

Strauss v. Comm'r, 635

F. 3d 1135, 1138-39 (9th Cir. 2011) (quoting Benecke v. Barnhart,
379 F.3d 587, 593 (9th Cir. 2004)).
As noted, further administrative proceedings are necessary
to resolve the conflict between the ALJ's assessment of
Plaintiff's RFC and the opinions of Drs. Lundblad and Boyd and to
consider the opinion of Dr. Freed.
Accordingly, on this record the Court concludes this matter
must be remanded to the Commissioner for further administrative
proceedings consistent with this Opinion and Order.

CONCLUSION
For these reasons, the Court REVERSES the final decision of
the Commissioner and REMANDS this matter pursuant to sentence
four of 42 U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 19th day of August, 2015.

ANNA J. BROWN
United States District Judge

14 - OPINION AND ORDER