Lape v. Commissioner Social Security Administration

Filing 16

Opinion and Order. Signed on 4/20/2017 by Judge Malcolm F. Marsh. (ma2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

GARY LAPE,

Case No. 3:16-cv-00712-MA
Plaintiff,

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
GEORGE J. WALL
1336 E. Burnside St., Suite 130
Portland, OR 97214
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
District of Oregon
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
JORDAN D. GODDARD
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 MIS 221A
Seattle, WA 98104-7075
Attorneys for Defendant

1 - OPINION AND ORDER

OPINION AND ORDER

MARSH, Judge
Plaintiff Gary Lape seeks judicial review of a decision of the Commissioner of Social
Security denying in part his claim for Supplemental Security Income ("SSI") disability benefits
pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has
jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, I reverse
and remand the Commissioner's decision for further administrative proceedings.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was struck by an automobile while he was crossing the street on April 22, 2012;
resulting in fractures to his spine, pelvis, legs, and hips. Tr. Soc. Sec. Admin. R. ("Tr.") at 244-46,
252-60, ECF No. 9. Plaintiff had multiple surgeries and spent a month in the hospital. In his three
months in a rehabilitation center, Plaintiff made excellent progress in occupational and physical
therapy, and he was discharged August 28, 2012. Tr. 486. On May 28, 2013, Plaintiff underwent
an additional surge1y to excise a bony growth from his right hip and to remove a screw from his left
femur. Tr. 637-42.
On July 6, 2012, Plaintiffprotectively filed an application for SSI disability benefits, alleging
disability beginning April 22, 2012. 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 October 21, 2014, at which Plaintiff appeared with his attorney and testified. A
vocational expert, Thomas P. Weiford, also attended the hearing and testified. On December 3,
2014, the ALJ issued a partially favorable decision, finding Plaintiff disabled from April 22, 2012
through May 30, 2013. However, the ALJ found medical improvement of his condition that ended
his disability on May 31, 2013, such that Plaintiff had the residual functional capacity to perform

2 - OPINION AND ORDER

other jobs that exist in significant numbers in the national economy. Tr. 35-36. 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.
Born in 1966, Plaintiff was 46 years old on the date the ALJ found is disability ended, and
48 years old on the date of the ALJ's decision. Plaintiff has obtained a GED, has worked in the past
in various manual labor positions on a.temporary basis, and has no past relevant work.
THE ALJ'S DISABILITY ANALYSIS
In this case, the ALJ found Plaintiff disabled for a closed period from April 22, 2012 through
May 30, 2013, and that Plaintiff experienced medical improvement and is no longer disabled as of
May 31, 2013. See Attmore v. Colvin, 827 F.3d 872, 874 (9th Cir. 2016) (referring to "closed
period" cases as those "where the ALJ finds in a single decision that the claimant was disabled for
a closed period of time but has since medically improved") (emphasis in the original). The ALJ first
applied the familiar five-step sequential evaluation process for determining disability. See Nfolina

v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) (describing five steps). At step one, the ALJ found
that Plaintiff has not engaged in substantial gainful activity since April 22, 2012. At step two, the
ALJ found that from April 22, 2012 through May 30, 2013, Plaintiff has the following severe
impairments: pelvic fracture, tibial plateau fracture, left knee ligament tear and bunion. At step
three, the ALJ found that Plaintiffs impairment or combination of impairments, did not meet or
medically equal a listed impairment.
The ALJ assessed that from April 22, 2012 through May 30, 2013, Plaintiff had the residual
functional capacity ("RFC") to perform sedentary work but with the following limitations:

3 - OPINION AND ORDER

[Plaintiffj has to change positions at will. He can never climb ladders, ropes or
scaffolds, kneel, crouch or crawl. He can no more than occasionally climb ramps and
stairs or stoop. He must avoid concentrated exposure to hazards. He must be
permitted to take three extra breaks per day for 15 minutes each.
Tr. at 28.
At step four, the ALJ found that Plaintiff has no past relevant work. At step five, the ALJ
determined that from April 22, 2012 through May 30, 2013, considering Plaintiffs age, education,
work experience, and residual functional capacity, there were no jobs that existed in significant
numbers in the national economy that Plaintiff could perform. Plaintiff does not challenge this
determination.
The ALJ then followed the seven step sequential evaluation process for determining whether
a claimant's disability continues or ends. See Owen v. Comm'r Soc. Sec. Admin., No. 3:08-cv06208-KI, 2013 WL 1149535, *1 (D. Or. Mar. 19, 2013) (describing seven step medical
improvement standard for SSI claims); 20 C.F.R. § 416.994 (same). The ALJ determined that
Plaintiff has not developed any new impairments since May 31, 2013, and that his impairments do
not meet or medically equal a listed impairment. The ALJ found that medical improvement occurred
as of May 3 I, 2013, and that it is related to his ability to work because there has been an increase in
Plaintiffs RFC. The ALJ found that as of May 31, 2013, Plaintiff has the RFC to perform sedentary
work with the following additional restrictions:
[Plaintiff! has to change positions at will. He can never climb ladders, ropes or
scaffolds, kneel, crouch or crawl. He can no more than occasionally climb ramps and
stairs or stoop. He must avoid concentrated exposure to hazards.
The ALJ found that Plaintiff has no past relevant work, his age and education have not
changed, and considering these factors, there are jobs that exist in significant numbers in the national

4 - OPINION AND ORDER

economy that claimant can perform, such as wafer breaker and taper. Therefore, the ALJ concluded
that a finding of "not disabled" was warranted and that his disability ended on May 31, 2013.
Plaintiff challenges this unfavorable portion of the ALJ's decision.
STANDARD OF REVIEW

The district court must affirm the Commissioner's decision if the Commissioner applied the
proper legal standards and the findings are supported by substantial evidence in the record. 42
U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 20!0). "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 v. Astrue, 698 F.3d 1153, 1159 (9th
Cir. 2012) (internal quotations omitted); Valentine v. Comm 'r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009). The court must weigh all the evidence, whether it supports or detracts from the
Commissioner's decision.

lvfartinez v. 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 ). If the evidence supports the Commissioner's conclusion, the Commissioner must be
affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir.
2014).
DISCUSSION

In this closed period case, the ALJ's decision necessarily entails two separate analyses: (1)
the familiar five step sequential analysis for assessing disability; and (2) the seven step sequential
evaluation for determining whether disability continues or has ended. Compare 20 C.F.R. § 416.920

5 - OPINION AND ORDER

with 20 C.F.R. § 416.994. The difficulty for the court in this particular instance is that Plaintiffs
arguments challenging the ALJ's findings that he medically improved and his disability ended in the
seven step sequential evaluation are largely undeveloped and lack specificity.
In his briefing before me, Plaintiff broadly argues that the ALJ's findings pertaining to the
unfavorable portion of the decision are not supported by substantial evidence. Pl. 's Opening Br. at
2, ECF No. 10. Plaintiff contends that the ALJ erred in evaluating the opinion of his treating
physician David Pierce, M.D., failed to identify any medical source to support the RFC in the
unfavorable portion of the decision, and failed to provide clear and convincing reasons for the
adverse credibility determination. Id at 7.
Based on the ALJ's decision, and the fact that Plaintiff purports to be appealing the ALJ's
unfavorable pmiion of the decision only, Plaintiff should have directed his arguments to the ALJ's
seven step analysis of medical improvement pursuant to 20 C.F.R. § 416.994. Yet, in Plaintiffs
Opening Brief, he fails to cite 20 C.F.R. § 416.994, case law applying the relevant regulations, or
even allude to the standards for evaluating continuing disability and medical improvement. Instead,
Plaintiff discusses the ALJ's five-step portion of the ALJ analysis, and then summarily refers to the
ALJ's finding that Plaintiff has not been under a disability after May 30, 2013. See Pl. 's Opening
Br. at 6. For its part, the Commissioner has responded only to Plaintiffs arguments, and likewise
fails to analyze the ALJ's findings in the context of the medical improvement standards set forth in
20 C.F.R. § 416.994.
Because I have identified legal error in the ALJ's decision, and conclude that one of
Plaintiffs arguments is well-taken, I conclude reversal is required. See Al/more, 827 F.3d at 875

6 - OPINION AND ORDER

(holding ALJ's findings may be reversed if based on legal error or are not supported by substantial
evidence); Molina, 674 F.3d at 1110 (same).

I.

The ALJ Erred in Analyzing Medical Improvement and the RFC is not Supported by
Substantial Evidence
In a closed period case, the "ALJ should compare the medical evidence used to determine

that the claimant was disabled with the medical evidence existing at the time of asserted medical
improvement." Attmore, 827 F.3d at 874; Waters v. Barnhart, 276 F.3d 716, 718-19 (5th Cir. 2002)
(holding that "in closed period cases, the ALJ engages in the same decision-making process as in
termination case" and thus medical improvement standard applies to the cessation date); accord

1VfcCalmon v. Astrue, 319 Fed. App'x 658, 659 (9th Cir. 2009) (describing standard for medical
improvement). As the Ninth Circuit recently explained:
A Social Security disability benefits claimant is no longer entitled to benefits when
substantial evidence demonstrates ( 1) "there has been any medical improvement in
the [claimant's] impairment" and (2) the claimant "is now able to engage in
substantial gainful activity." 42 U.S.C. § 423(£)(1 ). To detetmine whether there has
been medical improvement, an administrative law judge (ALJ) must "compare the
current medical severity" of the claimant's impaitment to the medical severity of the
impairment "at the time of the most recent favorable medical decision that [the
claimant] w[as] disabled or continued to be disabled." 20 C.F.R. § 404.1594(b)(7).

Attmore, 827 F.3d at 873; accord 42 U.S.C. § 1382c(a)(4) (providing that if claimant's condition
improves medically and he is able to engage in substantial gainful activity, he is no longer disabled);
20 C.F.R. § 416.994(b) (same).
Once a claimant has been found to be disabled, a presumption of continued disability arises
in the claimant's favor. Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007); Murrayv. Heckler, 722
F.2d 499, 500 (9th Cir. 1993). The Commissioner bears the burden of establishing that a claimant
has experienced medical improvement that would allow him to engage in substantial gainful activity.

7 - OPINION AND ORDER

Murray, 722 F.2d at 500. "A determination that there has been a decrease in medical severity must
be based on changes (improvement) in the symptoms, signs and/or laborato1y findings associated
with [a claimant's] impairment(s)." 20 C.F.R. § 416.994(b)(l)(i).
The court finds that the ALJ has committed harmful legal error m finding medical
improvement. The ALJ's finding of medical improvement rests on CT scans and x-rays showing
"healing fractures and no problems or issues with non-union" obtained during Plaintiffs multiple
emergency room visits after his May 28, 2013 surge1y. Tr. 32, 732, 735, 748. The ALJ also cited
Plaintiffs lack of treatment for pain related complaints. Tr. 32. However, the ALJ did not undertake
a proper comparison of Plaintiffs disability finding with the current medical information. Attmore,
827 F.3d at 876; 20 C.F.R. § 416.994(1 )(b)(i). In the decision, the ALJ focused on the lack of pain
complaints, and the new imaging of Plaintiffs fractures without discussing how the signs, symptoms
and laborat01yfindings compared to earlier reports. See Purnell v. Colvin, No. CV-14-02716-PHXESW, 2016 WL 8671597, *6 (D. Ariz. June 17, 2016) (noting the ALJ's finding of medical
improvement "must not be given short shrift.").
"[A]n ALJ may not move to the evaluation ofa claimant's RFC without first finding medical
improvement, and the Act does not authorize an ALJ to find medical improvement without making
the comparison of prior and current medical evidence." A1edina v. Colvin, No. l 4-cv-01967-DMR,
2015 WL 5448498, *8, 11 (N.D. Cal. Aug. 21, 2015) (holding that lack of treatment for
musculoskeletal complaints, CT scan, and physician reports of improvement in the record cannot
support finding of medical improvement absent proper comparative analysis by the ALJ).
Here, the ALJ's finding medical improvement rests almost entirely on the lack of Plaintiffs

8 - OPINION AND ORDER

subjective complaints of pain, and lack of treatment. Indeed, the medical record in this case after
Plaintiff's May 28, 2013 surge1y consists largely of Plaintiff's emergency room visits for falls
involving Plaintiff's intoxication and his complaints to treating providers appear unrelated to his
earlier disability impairments. However, a lack of treatment and' a negative credibility determination
do not satisfy the Commissioner's burden of showing medical improvement, particularly where the
ALJ fails to undertake the necessmy comparison of prior and current medical evidence. Pumell,
2016 WL 8671597 at *6-7; see also Anderson v. As/rue, No. EDCV-07-1505-AJW, 2008 WL
4500882, *4 (C.D. Cal. Oct. 6, 2008) (distinguishing finding of medical improvement with finding
that claimant has RFC to perform work); Threet v. Barnhart, 353 FJcl 1185, 1190 n.7 (10th Cir.
2003) (noting that medical improvement finding based solely on claimant's lack of treatment and
adverse credibility was "dubious").
Furthermore, as Plaintiff correctly argues, the ALJ erred in partially crediting the opinion of
nonexamining physician Roy Brown, M.D., at step seven when considering Plaintiff's current
impairments and fashioning the RFC. Tr. 34-35. Dr. Brown reviewed the medical evidence in the
record at the time, and found that the latest evidence showed Plaintiff was being released to normal
activities. Tr. 79. On May 30, 2013, in a Physical Residual Functional Capacity Assessment, Dr.
Brown opined that Plaintiff could occasionally lift and carry 25 pounds, frequently lift and carry 20
pounds, and could stand, walk, and sit for six of eight hours in a work clay. Tr. 78. Dr. Brown
further opined that Plaintiff could occasionally crawl, crouch, kneel or climb ladders, ropes and
scaffolds, and nor more than frequently stoop or climb ramps and stairs. Tr. 78. In the decision,
the ALJ gave Dr. Brown's opinion some weight, but noted that for the period after May 30, 2013,

9 - OPINION AND ORDER

Dr. Brown's opinion was not consistent with the severity of Plaintiffs original injuries or Plaintiffs
continuing, though infrequent pain complaints. Tr. 35.
As Plaintiff correctly highlights, Dr. Brown provided the May 30, 2013 opinion before
reviewing the objective medical evidence relating to Plaintiffs May 28, 2013 surgery to remove
painful hardware and excise bony growth on Plaintiffs right hip. Additionally, Dr. Brown did not
review or rely upon any of Plaintiffs medical records post-dating that surgery in his May 30, 2013
opinion when assessing Plaintiffs physical capacity. Therefore, Dr. Brown's opinion does not
provide substantial evidence to support an RFC purportedly reflecting Plaintiffs functioning for the
period after May 30, 2013. Accordingly, the ALJ has erred.
This error is not harmless. Molina, 674 F.3d at 1111 (holding thatthe court may reverse only
for harmful errors). The ALJ discounted the opinions of Plaintiffs treating physicians Dr. Pierce,
Amy Asher, M.D., and nurse practitioner Jacquelyn Quetal, F.N.P., leaving no medical evidence or
assessment of Plaintiffs physical capacities to support the ALJ's RFC. Therefore, on the record
before me, I conclude that the ALJ' s finding that Plaintiffs RFC improved such that he can perform
substantial gainful activity is not supported by substantial evidence.

II.

Remand
After finding the ALJ erred, this comt has the discretion to remand for further proceedings

or for immediate payment of benefits. Garrison, 759 F.3d at 1021. The issue turns on the utility of
further proceedings. Harman v.

A1~fel,

211 F.3d 1172, 1179 (9th Cir. 2000). Generally, the proper

course is to remand for further proceedings. Beneke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004).
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. Garrison, 759 F.3d at

10- OPINION AND ORDER

1021. The Ninth Circuit has established a three part test to determine whether to credit evidence and
remand for payment of benefits:
(1) the record has been fully developed and further administrative proceedings would
serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons
for rejecting evidence, whether claimant testimony 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, 759 F.3d at I 020. It is an abuse of discretion to "remand[] for an award of benefits when

not all factual issues have been resolved." Treichler v. Comm 'r Soc. Sec. Admin., 775 F.3d 1090,
1101 n.5 (9th Cir. 2014). Even if the "credit-as-true" criteria are met, the court retains the
"flexibility" to remand for further proceedings where "an evaluation of the record as a whole creates
serious doubt that a claimant is, in fact, disabled." Garrison, 759 F.3d at 1021; Connell v. Barnhart,
340 F.3d 871, 876 (9th Cir. 2003) (holding court retains discretion whether to credit evidence).
On this record, I conclnde that outstanding issues must be resolved before a final
determination of disability can be made. I have concluded that the ALJ erred in the medical
improvement analysis. The ALJ did not undertake the appropriate comparison of the medical
evidence of Plaintiffs prior and current medical evidence. The record also lacks a physical
consultative examination. A complete physical capacities assessment may clarify whether Plaintiff
has experienced medical improvement. Additionally, the ALJ erred in partially crediting Dr.
Brown's opinion. Thus, on the record presently before me, substantial evidence does not support
the ALJ's assessment of Plaintiffs current physical functioning and RFC. Accordingly, the proper
remedy is to remand for further administrative proceedings. Furthermore, I decline to order
immediate award of benefits because the record as a whole creates serious doubt as to whether
Plaintiff is, in fact, disabled. Garrison, 759 F.3d at 1020.
11 - OPINION AND ORDER

Based on the foregoing, I exercise my discretion and conclude a remand for further
proceedings is required to permit the ALJ: (1) to further develop the record by obtaining a
consultative physical capacities examination to assess Plaintiffs current physical functioning; (2)
reassess whether Plaintiffs disability benefits should be terminated based upon Plaintiffs medical
improvement; (3) continue with the seven step sequential evaluation; (3) evaluate whether Plaintiff
is capable of performing other work that exists in significant numbers in the national economy, with
assistance of a vocational expert if necessary; and (4) any other actions necessary to complete the
record and issue a decision consistent with applicable law as set forth above.

CONCLUSION
For the reasons stated above, the Commissioner's final decision denying benefits to Plaintiff
is REVERSED and this proceeding is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g)
for futther administrative proceedings consistent with this opinion.
IT IS SO ORDERED.
DATED this

Zr:> dayofAPRIL,2017.

u~-rt?r~

Malcolm F. Marsh
United States District Judge

12 - OPINION AND ORDER