Taylor v. Commissioner Social Security Administration
Filing
16
Opinion and Order. The Court the Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for the immediate calculation and award of benefits. Signed on 09/08/2015 by Judge Anna J. Brown. See attached 17 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAYSHIA TAYLOR,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.
MERRILL SCHNEIDER
Schneider Kerr Law Offices
P.O. Box 14490
Portland, OR 97293
(503) 255-9092
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 97204-2902
(503) 727-1003
1 - OPINION AND ORDER
3:14-CV-01472-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
JORDAN D. GODDARD
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2733
Attorneys for Defendant
BROWN, Judge.
Plaintiff Dayshia Taylor 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
Social Security Act.
This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
Following a review of the record, the Court REVERSES the
decision of the Commissioner and REMANDS this matter pursuant to
sentence four of 42 U.S.C. § 405(g) for the immediate calculation
and award of benefits.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for SSI on November 1, 2010,
and alleged a disability onset date of January 1, 2008.
77, 179. 1
Tr. 173-
Her applications were denied initially and on
1
Citations to the official transcript of record filed by
the Commissioner on January 29, 2015, are referred to as "Tr."
2 - OPINION AND ORDER
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on December 6, 2012.
Tr. 31-82.
At the hearing
Plaintiff and a vocational expert (VE) testified.
Plaintiff was
represented by an attorney.
On March 1, 2013, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 14-30.
On July 25, 2014, that decision became
the final decision of the Commissioner 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 31, 1992, and was 20 years old
at the time of the hearing.
education.
experience.
Tr. 40.
Tr. 83.
Plaintiff has a tenth-grade
She does not have any past relevant work
Tr. 26.
Plaintiff alleges disability due to epilepsy.
Tr. 83.
Except when 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. 23-25.
STANDARDS
The initial burden of proof rests on the claimant to
3 - OPINION AND ORDER
establish disability.
Cir. 2012).
Molina v. As true,
67 4 F. 3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate her
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}.
42
See also Brewes v. Comm'r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9'" Cir. 2012).
Substantial evidence is
"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
(9~
Cir. 2009)).
It 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,
resolving conflicts in the medical evidence, and resolving
4 - OPINION AND ORDER
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.
528 F.3d 1194, 1198 (9th Cir. 2008).
Comm'r of Soc. Sec.,
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
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 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.
Soc. Sec.,
648 F.3d 721, 724 (9th Cir. 2011).
§
416.920(b).
See also Keyser v. Comm'r of
At Step Two the claimant is not disabled if the Commis5 - OPINION AND ORDER
sioner determines the claimant does not have any medically severe
impairment or combination of impairments.
§
416.920(c).
See also Keyser,
20 C.F.R.
648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant's impairments meet or equal one of a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
C.F.R. § 416.920(a)(4)(iii).
See also Keyser,
20
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.
§
416.945(a).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
"A
'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule.''
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 (9ili Cir. 1989)).
At Step Four the claimant is not disabled if the
6 - OPINION AND ORDER
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
See also Keyser,
20 C.F.R. § 416.920(a) (4) (iv).
648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do other work that exists in the
national economy.
Keyser,
20 C.F.R. § 416.920(a) (4) (v).
648 F.3d at 724.
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,
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 noted Plaintiff testified at the hearing
that she earned approximately $1,200 per month babysitting her
niece and two nephews from February 2012 through November 2012,
which
2012.n
~rises
above the level of substantial gainful activity for
Tr. 19.
Nevertheless, the ALJ found Plaintiff had not
engaged in substantial gainful activity since her November 1,
2010, application date because there was not any documentation of
7 - OPINION AND ORDER
Plaintiff's alleged earnings in the record.
Tr. 19.
At Step Two the ALJ found Plaintiff has the severe
impairments of epilepsy, borderline intellectual functioning, and
depression.
Tr. 19.
The ALJ found Plaintiff's impairment of
obesity is not severe.
Tr. 19.
At Step Three the ALJ concluded Plaintiff's impairments or
combination of impairments do not meet or equal the criteria for
any Listed Impairment from 20 C.F.R. part 404, subpart P,
appendix 1.
work.
The ALJ found Plaintiff has the RFC to perform light
Tr. 21.
The ALJ found Plaintiff can climb ramps or stairs
occasionally and should never climb ladders, ropes, or scaffolds.
Tr. 21.
The ALJ also found Plaintiff should avoid "workplace
hazards such as dangerous machinery and unprotected heights."
Tr. 21-22.
The ALJ found Plaintiff is limited to "simple to
moderately complex tasks, which for example could mean the amount
of decision making involved in childcare, but not extremely
complex tasks."
Tr. 22.
Finally the ALJ found Plaintiff
"requires the flexibility to be absent for medical reasons one
day per month."
Tr. 22.
At Step Four the ALJ found Plaintiff does not have any past
relevant work experience.
Tr. 26.
At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy.
Accordingly, the ALJ found Plaintiff is not disabled.
8 - OPINION AND ORDER
Tr. 26.
DISCUSSION
Plaintiff contends the ALJ erred when she improperly gave
limited weight to the opinions of Barbara Long, M.D., and Juliana
Lockman, M.D., treating physicians and to the opinion of Ronal
Duvall, Ph.D., examining psychologist.
An ALJ may reject a treating or examining physician's
opinion when it is inconsistent with the opinions of other
treating or examining physicians if the ALJ makes "findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record."
Thomas v.
Barnhart, 278 F. 3d 94 7, 957 (9th Cir. 2002) (quoting Magallanes v.
Bowen, 881 F. 2d 747, 751 (9th Cir. 1989)).
When the medical
opinion of an examining or treating physician is uncontroverted,
however, the ALJ must give "clear and convincing reasons" for
rejecting it.
Thomas, 278 F.3d at 957.
See also Lester v.
Chater, 81 F.3d 821, 830-32.
When ''the ALJ fail[s] to provide legally sufficient reasons
for rejecting .
[a] physician['s] opinion[],'' the Court
credits the opinion as true.
594
(9th Cir. 2004).
Benecke v. Barnhart
379 F.3d 587,
See also Lester, 81 F.3d at 834 (court
credited the improperly rejected physician opinion as a matter of
law).
9 - OPINION AND ORDER
I.
Drs. Long and Lockman
On November 28, 2012, Dr. Long, Plaintiff's treating
physician, completed a Medical Source Statement in which she
indicated Plaintiff suffered approximately one seizure per month
lasting 30 minutes on average.
Tr. 774.
Dr. Long noted
Plaintiff reported she suffered confusion, exhaustion, and/or
irritability for "variable" lengths of time after a seizure.
Tr. 774.
Dr. Long stated Plaintiff was compliant with taking her
seizure medications, and she was "not aware" of any side effects
that Plaintiff experienced as a result of her seizure medication.
Tr. 774.
Dr. Long opined the seizure symptom that would
interfere with Plaintiff's ability to sustain "the basic
attention and concentration needed to perform even simple work
tasks" is a concern of Plaintiff because of the "unpredictable
nature of occurrence [sic] of seizure activity."
Tr. 775.
Dr. Long stated she did not know whether Plaintiff's seizures
would likely increase if she was placed in a competitive work
environment, but Plaintiff's "anxiety level [was] likely to
increase" in a competitive work environment.
Tr. 775.
Dr. Long
found Plaintiff's seizures were likely to disrupt coworkers and
that Plaintiff would need to take unscheduled breaks during an
eight-hour work day.
Tr. 775-76.
Dr. Long opined Plaintiff
might initially have to take unscheduled breaks frequently, but
that "should improve over time given experience with working."
10 - OPINION AND ORDER
Tr. 776.
Finally Dr. Long opined Plaintiff would likely miss 16
hours or more of work per month.
Specifically, Dr. Long stated
she would "expect [Plaintiff) to be out 1-7 days with each
seizure based on severity."
Tr. 776.
On December 3, 2012, Dr. Lockman, Plaintiff's treating
neurologist, provided a Medical Source Opinion in which she noted
Plaintiff suffers 2-3 seizures per month, which can cause
Plaintiff to suffer confusion, exhaustion, and/or headaches for
"up to several hours" afterwards.
Tr. 778.
Dr. Lockman stated
Plaintiff was "not always" compliant with taking her seizure
medication, and her failure to take sufficient medication "ma[de)
a difference in the frequency of [Plaintiff's] seizures."
Tr. 778.
Dr. Lockman stated Plaintiff suffered from side effects
of lethargy, lack of alertness, and poor appetite as a result of
her medication.
Tr. 779.
Dr. Lockman opined Plaintiff's
"difficulty maintaining concentration" could interfere with her
ability to sustain the attention and concentration needed to
perform even simple work tasks.
Tr. 779.
Dr. Lockman also
opined Plaintiff's seizures would likely increase if she was
placed in a competitive work environment because such an
environment would be stressful and "stressful situations are
triggers for [Plaintiff's) seizures."
Tr. 779.
Dr. Lockman
noted Plaintiff would sometimes need to take unscheduled breaks
"up to several hours" in an eight-hour work day, and she expected
11 - OPINION AND ORDER
Plaintiff to miss 16 hours of work a month because of suffering
1-3 seizures per month.
Tr. 780.
The ALJ gave limited weight to the opinions of Drs. Long and
Lockman that Plaintiff's symptoms would interfere with her
ability to perform even simple work tasks in a sustained manner,
that she would need to take unscheduled breaks in an eight-hour
work day, and that she would likely miss at least two days of
work per month as a result of her condition.
The ALJ noted the
frequency and severity of Plaintiff's epilepsy is "difficult to
determine given her noncompliance with recommended medical
treatment.•
Tr. 25.
The ALJ also noted the doctors' opinions
were inconsistent with Plaintiff's daily activities that include
attending online schooling and babysitting her niece and nephews.
The record, however, reflects when Plaintiff was babysitting, her
mother was usually home and available to assist her in case she
had a seizure.
In addition, although Plaintiff had some issues
with compliance with her medication early in the record mainly
due to issues with pharmacies prescribing a generic brand at a
different dosage level and fluctuations in Plaintiff's weight,
the record later reflects Plaintiff was consistently compliant
with taking her medication but still suffered seizures.
For
example, on June 13, 2012, Plaintiff was admitted to the
emergency room for multiple seizures.
Tr. 646.
At that time
Plaintiff's mother reported Plaintiff was completely compliant
12 - OPINION AND ORDER
with her medication, her seizures were in better control than
they had been in three years, and Plaintiff was suffering
approximately two seizures per month.
Tr. 646.
When Plaintiff
was admitted to the emergency room in November 2011 due to
multiple seizures, the doctor noted Plaintiff likely experienced
the seizures because of her admitted noncompliance with
medication.
On the June 13, 2012, occasion, however, Plaintiff's
mother reported Plaintiff took her medications "religiously."
Tr. 681.
On August 19, 2012, Plaintiff was admitted to critical
care for seizures.
It was noted by her treating physician that
she was compliant with her medication, but she had been under
increased stress and suffered a number of seizures that day.
Tr. 542.
On September 30, 2012, Plaintiff reported suffering two
seizures that month even though she had been taking her
medication as prescribed.
Tr. 610, 615.
In addition, the ALJ did not point to any opinion by any
treating or examining physician that contradicts the opinions of
Ors. Long and Lockman as to the frequency and duration of
Plaintiff's seizures, the after-effects of her seizures, or her
likelihood of missing 16 hours per month of work.
On this record the Court concludes the ALJ erred when she
gave limited weight to the opinions of Ors. Long and Lockwood
13 - OPINION AND ORDER
that Plaintiff's symptoms would interfere with her ability to
perform even simple work tasks, that she would need to take
unscheduled breaks in an eight-hour work day, and that she would
likely miss at least two days of work per month as a result of
her condition because the ALJ did not provide legally sufficient
reasons supported by substantial evidence in the record for doing
so.
II.
Dr. Duvall
Plaintiff contends the ALJ erred when she gave limited
weight to the opinion of Dr. Duvall, examining psychologist.
On March 28, 2011, Dr. Duvall completed an Intellectual
Assessment of Plaintiff in which he diagnosed Plaintiff with mild
dysthymia and borderline intellectual functioning.
Tr. 289.
Dr. Duvall concluded Plaintiff's "particular combination of
Borderline Intellectual Functioning (I.Q. 74) and her continuing
problems with Epilepsy render her a poor candidate for competing
successfully for a job."
Tr. 290.
Specifically, Dr. Duvall
noted he
expect[ed] Plaintiff to have difficulty following
and recalling complex work instructions;
maintaining and [sic] adequate pace and
persistence; withstanding the stress of a routine
work day; maintaining emotional stability and
predictability; and maintaining appropriate work
relationships and communicating effectively.
Tr. 290.
14 - OPINION AND ORDER
The ALJ gave limited weight to Dr. Duvall's opinion on the
ground that it was "inconsistent with [Plaintiff's] relatively
conservative course of mental health treatment, as well as her
daily activities.
Dr. Duvall's opinion was similarly based
in part on [Plaintiff's] less than fully credible self-report.n
Tr. 25.
Dr. Duvall, however, found Plaintiff's mental-health
condition in combination with her epilepsy kept her from being a
good candidate for employment.
Even if Plaintiff's mental-health
treatment was relatively conservative, the record reflects her
epilepsy caused ongoing issues.
In addition, Dr. Duvall
conducted numerous tests to reach his diagnosis of Borderline
Intellectual Functioning, including the Wechsler IQ test.
Dr. Duvall reported Plaintiff gave good effort on those tests,
and, therefore, he did not rely solely on Plaintiff's self-report
to reach his diagnosis.
Finally, the ALJ did not point to any
opinion by any treating or examining physi.cian that contradicts
Dr. Duvall's opinion.
On this record the Court concludes the ALJ erred when she
gave limited weight to Dr. Duvall's opinion because the ALJ did
not provide legally sufficient reasons supported by substantial
evidence in the record for doing so.
15 - OPINION AND ORDER
REMAND
When "the ALJ fail[s] to provide legally sufficient reasons
for rejecting .
[a] physician['s] opinion[],'' the Court
credits the opinion as true.
594
(9'" Cir. 2004).
Benecke v. Barnhart
379 F.3d 587,
See also Lester, 81 F.3d at 834
(improperly
rejected physician opinion court credited as matter of law) .
Ors. Long and Lockwood opined Plaintiff would miss 16 hours
per month of work due to her impairments, symptoms, or medication
side-effects.
The VE testified at the hearing that Plaintiff would be
unable to maintain jobs in the regional or national economy if
she had to miss work two or more days per month.
Tr. 80.
Accordingly, because the Court credits the opinions of Ors. Long
and Lockwood that Plaintiff would likely miss 16 hours per month
of work and because missing two or more days of work per month
would rule out competitive work, the Court concludes Plaintiff is
disabled.
The Court, therefore, reverses the decision of the
Commissioner and remands this matter for the immediate
calculation and award of benefits.
CONCLUSION
For these reasons, the Court the Court REVERSES the decision
of the Commissioner and REMANDS this matter pursuant to sentence
16 - OPINION AND ORDER
four of 42 U.S.C. § 405(g) for the immediate calculation and
award of benefits.
IT IS SO ORDERED.
DATED this
3th
day of September, 2015.
ANNA J. BROWN
United States District Judge
17 - OPINION AND ORDER
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