Lague v. Commissioner Social Security Administration
Opinion and Order. Signed on 1/23/2017 by Judge Malcolm F. Marsh. (ma2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:15-cv-02234-MA
COMMISSIONER SOCIAL SECURITY
P.O. Box 14490
Portland, OR 97293
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204-2902
JORDAN D. GODDARD
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, MIS 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
Plaintiff Alfred Lague seeksjudiciaLreview of the final decision of the Conunissioner of
Social Security denying his application for a period of disability and disability insurance benefits
("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). For the reasons that follow, I reverse the Commissioner's decision
and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
In this case, the period under review is a single date - December 31, 2011. Plaintiff alleges
he became disabled on December 31, 2011, which also is his date last insured ("DLI") under Title
II. Thus, the question for this court is whether substantial evidence supports the ALJ's conclusion
that Plaintiff was not disabled as of December 31, 2011.
Here, Plaintiff protectively filed an application for a period of disability and disability
insurance benefits on April 5, 2012, 1 alleging disability beginning December 31, 2011, due to
difficulty with his legs, hands, shoulders, back, hearing and asthma. Plaintiffs claim was denied
initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law
judge ("ALJ"). An ALJ held a hearing on April 18, 2014, at which Plaintiff appeared with his
attorney and testified. A vocational expeti, Paul Mon-ison, also attended the hearing and testified.
On May 28, 2014, the ALJ issued an unfavorable decision. The Appeals Council denied Plaintiffs
request for review, and therefore, the ALJ' s decision became the final decision of the Commissioner
for purposes of review.
Plaintiff also filed for Supplemental Security Income ("SSI") benefits on April 5, 2012.
Plaintiff was awarded SSI benefits. Transcript of Social Security Administrative Record ("Tr.")
at 41, 193-94, ECF No. 13. Plaintiffs SSI benefits are not pmi of this action.
2 - OPINION AND ORDER
Bom in 1960, Plaintiff was 51 years old on his alleged disability onset date and 54 years old
on the date of the ALJ's decision. Plaintiff has obtained a GED, and has past relevant work as a
truck driver, material handler, forklift driver, and assembler.
THE ALJ'S DISABILITYANALYSIS
The Commissioner has established a five-step sequential process for detetmining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. Each step
is potentially dispositive. The claimant bears the burden of proof at steps one through four. i'vfolina
v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Valentine v. Commissioner Soc. Sec. Admin., 574
F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner to show that the
claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153,
1161 (9th Cir. 2012).
Plaintiffmeets insured status requirements for a DIB application through December 31, 2011.
At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since his
alleged onset date through his date last insured, December 31, 2011. At step two, the ALJ found
Plaintiff does not have any severe impaitments. In an abundance of caution, the ALJ made
altemative step two findings, determining that Plaintiff's intetmittent leg cellulitis is a severe
impairment. At step three, the ALJ found that Plaintiff's intermittent leg cellulitis does not meet or
medically equal a listed impaitment.
The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perfotm light work
but with the following limitations:
lift and carry 20 pounds occasionally and l 0 pounds frequently; stand and walk for
2 hours in an 8 hour day; sit for 6 hours in an 8 hour day; occasionally perform all
3 - OPINION AND ORDER
postural activities, except never climb ladders, ropes or scaffolds; and must avoid
concentrated exposure to extremes of temperature, wetness, and hazards.
Transcript of Social Security Administrative Record ("Tr.") at 46, ECF No. 13.
At step four, the ALJ found that Plaintiff is able to perform his past relevant work as a forklift
driver as actually performed. The ALJ also made alternative step five findings, concluding that other
jobs exist in the national economy that Plaintiff could perform, such as the representative
occupations of companion and food assembler. Accordingly, the ALJ concluded that Plaintiff has
not been under a disability under the Social Security Act at any time prior to December 31, 2011.
ISSUES ON REVIEW
On appeal to this court, Plaintiff contends the following enors were committed: (I) the ALJ
ened at step two; (2) the ALJ improperly evaluated the opinions of Martin Kehrli, M.D., and
Brandon Markus, D.O.; (3) the ALJ enoneously concluded he could perform his past relevant work
as a forklift driver as actually performed; and (4) substantial evidence does not support the ALJ's
alternative step five finding that Plaintiff can perform the occupation of companion because there
is no finding that he possesses the requisite transferrable skills. The Commissioner argues that even
ifthe ALJ erred, Plaintiff has not demonstrated hmmful enor.
STANDARD OF REVIEW
The district court must affom the Commissioner's decision if the Commissioner applied the
proper legal standards and the findings m·e suppmied by substantial evidence in the record. 42 U.S.C.
§ 405(g); Beny v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is 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." Hill, 698 F.3d at 1159 (internal quotations
4 - OPINION AND ORDER
omitted); Valentine, 574 F.3d at 690. The cou1i must weigh all the evidence, whether it suppmis or
detracts from the Commissioner's decision. lvfartinezv. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one
rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). Ifthe evidence suppmis the Commissioner's conclusion, the Commissioner must be affirmed;
"the court may not substitute its judgment for that of the Commissioner." Edlund v. lY!assanari, 253
F.3d 1152, 1156 (9th Cir. 2001); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
The ALJ Diel Not Commit Harmful Error at Step Two
At step two, a claimant is not disabled ifthe Commissioner determines the claimant does not
have any medically severe impairment or combination of impainnents. Stout v. Comm 'r Soc. Sec.
Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). See also 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii).
A severe impaitment "significantly limits" a claimant's "physical or mental ability to do basic work
activities." 20 C.F.R. § 404.152l(a). See also Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir.
2005). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to
do most jobs." 20 C.F.R. §§ 404.152l(a), (b). Step two is a "de minimus screening device used to
dispose of groundless claims." Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).
Plaintiff contends that the ALJ erred in finding that he did not have any medically severe
impairments. According to Plaintiff, he has a long-standing diagnosis of asthma and suffers from
leg edema and that these impairments could reasonably cause more than a minimal impact on his
ability to sustain full time work. If the ALJ had ended the sequential evaluation at step two, I may
be persuaded by Plaintiffs argument.
5 - OPINION AND ORDER
However, as noted above, the ALJ made alternative step two findings, finding that Plaintiffs
inte1mittent cellulitis is a medically determinable impairment, continuing with the sequential
evaluation tlu·ough steps four and five. Thus, the ALJ resolved step two in Plaintiffs favor.
Therefore, even assuming arguendo the ALJ erred at step two, the error is harmless. Burch v.
Barnhart, 400 F.3d 676, 682 (9th Cir. 2005); see also Grayv. Comm 'rofSoc. Sec. Admin., 365 Fed.
App'x 60, 61 (9th Cir. 2010) (rejecting argument that the ALJ erred at step two by determining
certain impairments were nonsevere, because any alleged error was haimless since "the ALJ
concluded that [claimant's] other medical problems were severe impairments"); i\Iondragon v.
Astrue, 364 Fed. App'x 346, 348 (9th Cir. 2010) ("Any alleged error at step two was harmless
because step two was decided in [claimant]'s favor with regard to other ailments."). To the extent
Plaintiff argues that the ALJ improperly evaluated the medical evidence ofhis asthma and leg edema
when considering his RFC, I address those arguments below. In shmi, even if the ALJ erred in
failing to identify his asthma and leg edema as severe, the enor is harmless.
The ALJ's Evaluation of the Medical Evidence is Not Supported by Substantial
Plaintiff argues that the ALJ ened by providing legally insufficient reasons for rejecting the
opinions of examining physician Brandon Markus, D. 0., and nonexamining agency physician Maiiin
Kelu·Ii, M.D. Plaintiff also contends that the ALJ erred in failing to call a medical expe1i to
determine an onset date for Plaintiffs alleged shoulder impahment under Social Security Ruling
The Commissioner contends that substantial evidence suppo1is the ALJ's
assessment of the medical evidence and that SSR 83-20 is inapplicable.
6 - OPINION AND ORDER
I begin by making a two critical observations. First, there is a deatih of medical evidence
concerning Plaintiffs alleged impainnents. The record does not contain records from a primmy care
physician, but instead contains numerous emergency room reports. Indeed, Plaintiff is of limited
means, has no health insurance, and predominantly has used the emergency room for care. Second,
Plaintiff does not challenge the ALJ's adverse credibility detennination. Neve11heless, I have
reviewed the ALJ's adverse credibility detennination and readily conclude that it is suppo1ied by
substantial evidence in the record. The ALJ identified multiple reasons for discounting Plaintiffs
subjective allegations, including: his record of conservative treatment, that he stopped working for
reasons umelated to his disability, his inconsistent and umeliable reports to providers, and that his
activities of daily living are not as limited as expected given his allegations. Although an ALJ may
discount a physician's work restrictions based on a claimant's subjective statements about symptoms
when the ALJ finds the claimant less than fully credible, the ALJ did not do so here. See Tommasetti
v. Astrue, 533 F.3d 1035, 1041 (9th Cir.2008) ("An ALJ may reject a treating physician's opinion
if it is based to a large extent on a claimant's self-reports that have been properly discounted as
incredible.") (internal quotation omitted); Bray v. Comm 'r Soc. Sec. Admin., 554 F.3d 1219, 1228
(9th Cir. 2009) (stating that if the ALJ dete1mines that subjective complaints of claimant are not
credible, this is a sufficient reason for discounting a physician's opinion upon which the complaints
Standards for Examining i\Iedical Evidence
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians' opinions. Carmickle v. Comm 'r Soc. Sec. Admin, 533 F.3d 1155, 1164 (9th Cir.
2008). To reject the uncontroverted opinion of a treating or examining physician, the ALJ must
7 - OPINION AND ORDER
present clear and convincing reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If
a treating or examining doctor's opinion is contradicted by another doctor's opinion, it may be
rejected by specific and legitimate reasons. Garrison, 759 F.3d at 1012; Ghanim v. Colvin, 763 F.3d
1154, 1161 (9th Cir. 2014). When evaluating conflicting opinions, an ALJ is not required to accept
an opinion that is not supported by clinical findings, or is brief or concluso1y. Thomas v. Barnhart,
278 F.3d 947, 957 (9th Cir. 2002).
The ALJ Appropriately Discounted Dr. Jvfarkus 's Opinion
On July 21, 2012, Dr. Markus perfo1med a consultative physical capacities examination.
Plaintiffs primary complaints at that examination were back pain, leg edema with pain, and shoulder
and hand pain with tendonitis. Tr. 199. During the examination, Plaintiff informed Dr. Markus that
he had not been to a doctor in ten years. Plaintiff described that he has long-standing back pain, and
has been told it is muscular in origin. Plaintiff noted that his back pain is worse with any activity
and that he gets numbness in his lower extremities. Plaintiff stated that he rests when his back is
painful. Tr. 199. Plaintiff also informed Dr. Markus that he has suffered pitting edema for the
previous six years, and that his legs swell ifhe stands for more than four hours. Plaintiff indicated
that if his legs get really swollen, he has numbness and burning pain. Tr. 199. Likewise, Plaintiff
explained that he has a histo1y of carpal tunnel surge1y and that his hands get swollen and sore with
use, and that he frequently drops things. Plaintiff described a decreased range of motion in his
shoulders, and that lifting his arms above 90 degrees causes a shooting pain in his left mm with
weakness in his arm and hand. Tr. 200. Plaintiff informed Dr. Markus that he is homeless, and has
no health insurance.
8 - OPINION AND ORDER
On examination, Dr. Markus observed that Plaintiff had difficulty getting up from his chair
with stiffness and pain in his back. Dr. Markus noted that Plaintiff sat comfortably, and had no
difficulty removing his shoes, but did have difficulty putting his socks back on after the examination.
Dr. Markus noted that Plaintiff had significant pitting 4+ edema in his lower extremities bilaterally,
without ulcerations. Tr. 201. Dr. Markus indicated that Plaintiff could tandem walk with a no1mal
gait with mild imbalance, could walk on toes and heels, was able to fully squat, but required
assistance from a chair when rising. Tr. 201.
Dr. Markus assessed that in Plaintiffs right shoulder, he had some discomfort and limited
range of motion; and in Plaintiffs left shoulder, he was limited to 90 degrees abduction, 50 degrees
adduction; extension 50 degrees and flexion 90 degrees. Tr. 202. Dr. Markus found that Plaintiff
could grip objects securely to his palm with the last three digits and could grasp and manipulate both
large and small objects with the first three digits, but Plaintiff did experience discomfort in his
thumb. Dr. Markus also noted that Plaintiffs grip strength and ability to secure objects rapidly
diminished with repetitive use. Tr. 202. Plaintiff had n01mal sensation in all five digits. Tr. 202.
Dr. Markus found no parave1iebral muscle spasms, tenderness or trigger points in Plaintiffs back,
and 5/5 muscle strength in all upper and lower extremities, except his grip strength decreased with
repetition to 4/5. Plaintiff also had sensory deficits in his toes, in an inconsistent pattern. Tr. 203.
Dr. Markus diagnosed back pain, leg edema and pain, should pain predominantly on the left
with a decreased range of motion, and hand pain. Tr. 203. Dr. Markus assessed Plaintiff with the
residual functional capacity to stand and walk for six hours, sit for six hours with frequent position
changes, lift and cany 50 pounds occasionally, 25 pounds frequently, and that he not lift anything
over 20 pounds with his left aim consistently due to his left shoulder deficits; Plaintiff should not
9 - OPINION AND ORDER
climb, with occasional balancing, stooping, kneeling, crouching or crawling. Dr. Markus also
assessed that Plaintiff should not reach with the left arm, and can occasionally reach with the right
ann, and is limited to occasional handling and fingering and feeling with no repetitive movements.
Dr. Markus assessed that Plaintiff is restricted to no work at heights or heavy machine1y, no constant
gripping and turning, and found that he has no limitations working in temperature extremes, dust,
fumes, gases or excessive noise. Tr. 204.
In the decision, the ALJ accurately summarized Dr. Markus's opinion of Plaintiff's physical
capacities. The ALJ noted that Dr. Markus's opinion was provided over six months after Plaintiffs
date last insured and gave it "little weight." Contra1y to Plaintiffs suggestion, the ALJ did not
discount Dr. Markus's opinion solely because it was provided after his date last insured. See Smith
v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988) ("medical reports are inevitably rendered
retrospectively and should not be disregarded solely on that basis"). Here, the ALJ also discounted
Dr. Markus's opinion about the severity of Plaintiffs alleged shoulder impailment because it is not
supported by objective medical evidence. A lack of objective medical support can be a clear and
convincing reason to discount a physician's opinion. See Batson, 359 F.3d at 1195 (explaining that
an ALJ may discredit physician opinions that are conclus01y, brief, and unsuppmied by objective
medical findings). Indeed, as the ALJ correctly stated, there is no objective medical evidence
whatsoever to support the left shoulder limitations assessed by Dr. Markus dating back to December
31, 2011. The ALJ' s findings in this regard are wholly supported by substantial evidence. Carefully
examining Plaintiffs entire medical record reveals that Plaintiff has never sought treatment for
shoulder pain or injmy. And, contra1y to Plaintiff's suggestion, there is absolutely no objective
medical evidence indicating that Plaintiffs alleged shoulder impairment is caused by a progressive
10- OPINION AND ORDER
or chronic condition. Dr. Markus's found a limited range of motion due to pain; thus, as the ALJ
conectlyfound, Plaintiff does not have a medically determinable chronic or progressive impahment
concerning his shoulder. Therefore, based on the complete absence of objective medical evidence
about Plaintiffs shoulder existing on December 31, 2011 - the only date under consideration in this
unique case - the ALJ reasonably rejected Dr. Markus's opinion about Plaintiffs shoulder
impairments. Accordingly, the ALJ did not en.
The ALJFailed to Provide S1!1ficient Reasons for Discounting Nonexamining Agency
Physician Dr. Kehrli 's Opinion
Dr. Kehrli reviewed Plaintiffs application and the consultative physical capacities
examination performed by Dr. Markus. Tr. 56-59. Based on that review, Dr. Kelu·li opined that
Plaintiff would be capable of: lifting and canying 20 pounds occasionally, 10 pounds frequently;
standing, walking, and sitting for six hours in an eight hour day; occasionally push and pull with the
left upper extremity; occasionally climb ramps, stairs, ladders, ropes and scaffolds; occasionally
balance, stoop, kneel, crawl, and crouch; occasionally reach overhead with his left arm; occasionally
handle and finger with both hands; and should avoid concentrated exposure to hazards, such as
machine1y and heights. Tr. 61-62. Dr. Kelu·li indicated that his RFC assessment applies from
December 31, 2011 tlu·ough August 8, 2012. Tr. 61-64.
In the decision, the ALJ discussed that the record contains opinions from agency medical
consultants "which similarly deal with [Plaintiff]'s functioning after the date last insured, and
therefore have also been given little weight when assessing the residual functioning capacity herein."
Tr. 48. Plaintiff contends that the ALJ ened in rejecting Dr. Kehrli's opinion simply because it was
provided after his DLI. Plaintiff is conect.
11 - OPINION AND ORDER
Here, the ALJ provided no other rationale for discounting Dr. Kehrli' s opinion. The fact that
Dr. Kehrli's opinion is provided after Plaintiffs DLI is not a legitimate basis to discount his opinion.
Franz v. Colvin, 91F.Supp.3d1200, 1213 (D. Or. 2015) (ALJ erred in rejecting physician's opinion
because it was provided after the date last insured); accord Turner v. Comm 'r Soc. Sec. Admin., 613,
F.3d 1217, 1229 (9th Cir. 2010) (noting evidence post-dating the DLI is probative and should be
considered). Additionally, the ALJ's rationale in discounting Dr. Kehrli's opinion fails to account
for the fact that the assessment purports to relate back to December 31, 2011. The Commissioner
responds that the Dr. Kehrli's opinion is clearly based on Dr. Markus's opinion, which the ALJ
appropriately discounted. The Commissioner contends that because Dr. Markus's opinion does not
specifically relate back to December 31, 2011, Dr. Kehrli could not have relied on Dr. Markus's
opinion as suppo1t for Plaintiffs condition as of the DLI. Although the Commissioner raises a valid
concern that there is no objective medical evidence supporting some of Dr. Kehrli's assessed
limitations as of the DLI, the court'may review only the reasons supplied by the ALJ. See Connett
v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ("We are constrained to review the reasons the ALJ
asse1ts."). Therefore, the ALJ's rationale in discounting Dr. Kehrli's opinion is not supported by
substantial evidence, and the ALJ has el1'ed. 2
Because the error in evaluating the medical evidence may impact Plaintiffs RFC, I decline
to address Plaintiffs remaining arguments and errors.
Although not raised by Plaintiff, it appears that the ALJ also failed to fully explain the
weight accorded to the opinion ofNeal E. Berner, M.D. Tr. 68-75. It appears from the ALJ's
RFC that it is at least pa1tially based on Dr. Berner' s opinion, but the ALJ did not set fotth
reasons for crediting any physician's opinion in the decision. Likewise, the ALJ's rejection of
the handling and fingering limitations assessed by Drs. Kehrli and Markus is not supported by
12 - OPINION AND ORDER
Remand is Appropriate
After finding the ALJ erred, this comi has the discretion to remand for fmiher administrative
proceedings or for an immediate award of benefits. See, e.g., Garrison, 759 F.3d at 1020. The issue
generally turns on the utility of fmiher proceedings. The Ninth Circuit has established a three part
test for determining when evidence should be credited and a calculation of benefits is appropriate:
( 1) the ALJ has failed to provide legally sufficient reasons for rejecting evidence; (2) the record has
been fully developed and further administrative proceedings would serve no useful purpose; and (3)
ifthe improperly discredited evidence were credited as true, the ALJ would be required to find the
claimant disabled on remand. Treichler v. Comm 'r Soc. Sec. Admin, 775 F.3d 1090, 1104-05 (9th
Cir. 2014); Garrison, 759 F.3d at 1020.
On the record before me, I decline to credit Dr. KehrIi' s opinion and conclude that a remand
for further proceedings is required. Although the ALJ provided legally insufficient reasons for
rejecting Dr. KehrIi' s opinion, Plaintiff did not challenge the ALJ' s negative credibility assessment
and the ALJ provided an appropriate reason for rejecting the opinion of Dr. Markus. The record
raises crucial questions about the extent of Plaintiffs limitations on the only date in question December 31, 2011. There are inconsistencies between the medical evidence and Plaintiffs
testimony as to an onset date. Indeed, Plaintiff admitted that he did not stop working in December
2011 due to his alleged impairments. And, as the ALJ discussed with respect to Dr. Markus, there
is no objective medical evidence to suppmi Plaintiffs alleged shoulder limitation. Yet, if Dr.
Kehrli' s opinion is credited, the overhead reaching limitation would stretch back to December 31,
2011 and need to be included in the RFC. Accordingly, there are outstanding issues that must be
resolved before a proper disability determination can be made. Treichler, 775 F.3d at 1107.
13 - OPINION AND ORDER
Moreover, even if all three requisites were met, this case raises serious doubt as to the whether
Plaintiff is disabled. Garrison, 759 F.3d at 1021.
Accordingly, this case is remanded for the ALJ to specifically address the medical evidence
and opinions of Drs. KehrIi and Bemer, to reassess Plaintiffs RFC if necessaiy, and to conduct
another hearing with additional vocational and expert medical testimony, if necessary.
Based on the foregoing, the Commissioner's decision is reversed and remanded for fmiher
IT IS SO ORDERED.
DATED this ~ 3day of JANUARY, 2017.
Malcolm F. Marsh
United States District Judge
14- OPINION AND ORDER
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