Metzler v. Commissioner Social Security Administration

Filing 19

OPINION AND ORDER: Pursuant to 42 U.S.C. § 405(g), sentence four, the Court REVERSES the Commissioners decision and REMANDS for further administrative proceedings. (See 13 page opinion for more information.) Signed on 8/24/17 by Magistrate Judge Patricia Sullivan. (dsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

STEPHEN J. METZLER,

Case No. 3:16-cv-02000-SU

Plaintiff,
OPINION
AND ORDER
v.
COMMISSIONER, Social
Security Administration,
Defendant.
_________________________________________
SULLIVAN, United States Magistrate Judge:
Plaintiff Stephen J. Metzler brings this action pursuant to the Social Security Act (the
“Act”), 42 U.S.C. § 405(g), for judicial review of a final decision by the Commissioner of Social

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Security (the “Commissioner”).

The Commissioner denied plaintiff Disability Insurance

Benefits (“DIB”) under Title II of the Act. 42 U.S.C. § 401 et seq. For the following reasons,
the Court REVERSES the Commissioner’s decision and REMANDS for further proceedings.
PROCEDURAL BACKGROUND
Plaintiff applied for DIB on November 30, 2012, with an alleged disability onset date of
July 1, 2007.

Tr. 166-72.1

His claim was denied initially on March 18, 2013, and on

reconsideration on July 25, 2013. Tr. 89-101, 102-16. Administrative Law Judge (“ALJ”) Riley
J. Atkins held a hearing on February 25, 2015. Tr. 39-88. Plaintiff testified at the hearing,
represented by counsel; a vocational expert (“VE”), Gary R. Jesky, also testified, as did
plaintiff’s wife, Emily Anne Metzler-Somervell. Id. On April 1, 2015, the ALJ issued a
decision finding plaintiff not disabled under the Act and denying him DIB. Tr. 24-34. Plaintiff
requested review before the Appeals Council, Tr. 19, which was denied August 18, 2016, Tr. 14. Plaintiff then sought review before this Court.2
FACTUAL BACKGROUND
Born in 1970, plaintiff is married and has two young children. Tr. 43, 55, 166, 221, 234.
He graduated from high school and has completed some college coursework. Tr. 196, 544.
Plaintiff previously worked as a warehouse manager and test/service center manager, and in
contracting and sales. Tr. 44, 49, 100, 176, 188, 247, 288. Plaintiff suffers from multiple
sclerosis (“MS”), which causes intense fatigue and significant vision problems. Tr. 43, 46-48,
186, 196.

Plaintiff has also experienced depression, post-traumatic stress disorder, and an

anxiety disorder. Tr. 54, 94, 306, 335, 410, 547, 551.
1

Citations “Tr.” refer to indicated pages in the official transcript of the administrative record
filed with the Commissioner’s Answer. (Docket Nos. 14, 15).
2
The parties have consented to the Magistrate Judge’s jurisdiction pursuant to 28 U.S.C. § 636.
(Docket No. 4).
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LEGAL STANDARD
The 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. Hammock v.
Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court
must weigh “both the evidence that supports and detracts from the [Commissioner’s]
conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where the evidence as a
whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the
ALJ’s.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); Burch v.
Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (“[The court] must uphold the ALJ’s decision
where the evidence is susceptible to more than one rational interpretation”). The “court must
consider the entire record as a whole and may not affirm simply by isolating a specific quantum
of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986).

To meet this burden, the claimant must

demonstrate an “inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected . . . to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step process for determining whether a
person is disabled.

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,

416.920. First, the Commissioner determines whether a claimant is engaged in “substantial
gainful activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R.

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§§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the claimant
has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 14041; 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe impairment is one “which significantly
limits [the claimant’s] physical or mental ability to do basic work activities[.]” 20 C.F.R.
§§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At
step three, the Commissioner determines whether the impairment meets or equals “one of a
number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude
substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is
conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.
At this point, the ALJ must evaluate medical and other relevant evidence to determine the
claimant’s “residual functional capacity” (“RFC”), an assessment of work-related activities the
claimant may still perform on a regular and continuing basis despite any limitations his
impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c).
The Commissioner proceeds to the fourth step to determine whether the claimant can perform
“past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the
claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts
to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must
establish that the claimant can perform other work that exists in significant numbers in the
national economy.

Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f).

If the

Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ’S DECISION
The ALJ first found that plaintiff last met the Act’s insured status requirements on
December 31, 2012. Tr. 26. At step one, the ALJ found that plaintiff did not engage in

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substantial gainful activity from the alleged onset date through the date last insured. Id. At step
two, the ALJ found that plaintiff had the severe impairment of MS. Id. The ALJ found that the
following were medically determinable but not severe impairments for plaintiff: depression,
post-traumatic stress disorder, alcohol and drug use, and an anxiety disorder. Tr. 27. At step
three, the ALJ found that plaintiff did not have an impairment or combination thereof that met or
medically equaled a listed impairment. Tr. 28. The ALJ found that plaintiff had the RFC to
perform light work, with certain physical and social limitations. Tr. 28-29. At step four, the ALJ
found plaintiff unable to perform past relevant work. Tr. 31. At step five, the ALJ found that
plaintiff could perform jobs that exist in significant numbers in the national economy, including
janitor and packager/sorter, and so determined that plaintiff was not disabled under the Act
during the period of the alleged onset date through the date last insured. Tr. 33.
ANALYSIS
Plaintiff argues that the Commissioner erred in two regards: (1) the ALJ failed to treat
Somervell’s lay witness testimony as competent evidence, despite crediting her uncontradicted
testimony as credible; and (2) the Commissioner rejected, without providing specific and
legitimate reasons supported by substantial evidence, the opinion of plaintiff’s treating physician,
Robert Rosenbaum, M.D., that plaintiff was limited to only 30 hours of work per week. The
Court finds that the Commissioner erred in both respects.
I.

Emily Anne Metzler-Somervell’s Lay Witness Testimony
Plaintiff’s wife, Emily Anne Metzler-Somervell, testified at the hearing regarding

plaintiff’s limitations. Tr. 63-81. She testified to plaintiff’s need to nap at least two or three
times per day due to exhaustion; his frequent irritability, difficulty thinking, frustration, problems
interacting with others, impaired vision, and slowed functioning; his exacerbated symptoms

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during “flare-ups” and “bad days”; and “horrible days” when he is unable to function. Tr. 65-66,
70-76.3
In evaluating Somervell’s testimony, the ALJ stated that although there was “no doubt”
that her “observations of the symptoms are genuine, there is simply insufficient evidence they
disable [plaintiff] from all work based on the evidence currently contained in the medical
record.” Tr. 30. Plaintiff argues that the ALJ, despite finding Somervell’s testimony “genuine,”
did not treat her testimony as competent lay witness testimony because he neither properly
considered it nor gave germane reasons to reject it.
“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). “Such testimony is competent evidence and cannot be disregarded without comment.”
Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009) (quotation omitted, emphasis in original).
“[F]riends and family members in a position to observe a claimant’s symptoms and daily
activities are competent to testify as to her condition.” Dodrill v. Shalala, 12 F.3d 915, 918-19
(9th Cir. 1993). “Disregard of this evidence violates the [Commissioner’s] regulation that he
will consider observations by non-medical sources as to how an impairment affects a claimant’s
ability to work.” Id. at 919 (quotation omitted); see also Knepper v. Massanari, 18 F. App’x
3

Somervell’s testimony regarding “bad” and “horrible” days is supported by plaintiff’s own
testimony regarding “bad” and “worse” days, when his symptoms are significantly exacerbated
and he is largely unable to function, and which days occur “[p]robably at least like three days a
week.” Tr. 56-57. Plaintiff also testified that, at his previous job as a warehouse manager, he
addressed his MS-induced fatigue by finding places in the warehouse to discreetly nap, at least as
far back as 2005. Tr. 44-46. The medical record since 2005 and through the relevant period
supports plaintiff’s and Somervell’s testimony regarding MS-related fatigue and its limitation on
functioning despite prescribed medication. See, e.g., 303-07 (July 28, 2005); 300-02 (Oct. 3,
2005); 294-96 (Mar. 17, 2006); 288-90 (Oct. 8, 2007); 327-28 (June 9, 2008); 416-18 (Nov. 20
& 25, 2009); 452-54 (Apr. 27 & 28, 2011); 391-98 (Apr. 23 & 27, 2012); 390 (Nov. 13, 2012).
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561, 562 (9th Cir. 2001) (holding that the ALJ erred in “failing to fully consider lay testimony,
including that of [plaintiff] and her mother, in determining the onset date of” plaintiff’s
impairments, “as the medical experts were unable to determine the onset date”).
The ALJ, other than finding Somervell’s testimony “genuine,” did not discuss it. He did
not discount it, or provide any germane reasons for discounting it. This was error. The ALJ was
required either to accept Somervell’s testimony or provide reasons to discount it. Crediting
Somervell’s testimony regarding plaintiff’s regular napping, along with the VE’s testimony that
a “hypothetical claimant [who], because of a combination of limitations from medicallydeterminable impairments, were absent from the workplace at unpredictable times that such rose
to the level of four to eight hours a week” would not be able to “sustain[] competitive
employment” in any field, Tr. 85, may lead to the conclusion that plaintiff is unable to sustain
any competitive full-time employment and is therefore disabled. Indeed, plaintiff argues that the
ALJ “fully credited” Somervell’s testimony, Pl. Br., at 2 (Docket No. 16), and that this, together
with the VE’s testimony, compels a finding that plaintiff is unable to work. However, the ALJ
did not fully credit Somervell’s testimony, but rather found her observations genuine, i.e.,
sincere or honest. Thus, although the ALJ’s finding of genuineness does not itself require the
ALJ to fully credit Somervell’s testimony, he still had to properly consider it.
The Commissioner argues that the ALJ’s reasons for discounting plaintiff’s own
testimony apply equally to Somervell’s testimony, and that these reasons—despite the ALJ’s not
explicitly stating them—count as valid reasons to discount her testimony. See Valentine v.
Comm’r, 574 F.3d 685, 694 (9th Cir. 2009) (“In light of our conclusion that the ALJ provided
clear and convincing reasons for rejecting [plaintiff’s] own subjective complaints, and because
[plaintiff’s wife’s] testimony was similar to such complaints, it follows that the ALJ also gave

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germane reasons for rejecting [the wife’s] testimony.”). However, none of the reasons the
Commissioner discusses is relevant to Somervell’s testimony regarding plaintiff’s required
napping, which is the key element of her testimony considering the VE’s testimony. That
plaintiff presented at appointments as not in “apparent distress” or with “normal” appearance,
that some of his symptoms were relatively “benign,” that with medication certain symptoms
were “relatively well-managed,” and that one medical report described his MS as “relatively
mild,” see Def. Br., at 7-9 (Docket No. 17), do not provide any reason to conclude that
Somervell was incorrect about plaintiff’s need for napping regularly. Also, plaintiff’s daily
activities do not contradict the severity of the symptoms that Somervell describes.

The

Commissioner describes plaintiff as caring for two young children. In fact, the record shows
Somervell was home from work three days each week; one child was in childcare four days each
week; plaintiff received help from neighbors when needed; and plaintiff was unable to care for
children during flare-ups, requiring Somervell to take extended leave. Tr. 55-58, 75-77. Also,
plaintiff still napped when caring for their youngest child by aligning their nap schedules. Tr.
58. The record’s sparse reference to “Routine physical activity: soccer and running” (from June
2010), Tr. 430, is too cursory to imply anything about plaintiff’s abilities and does not undermine
plaintiff’s or Somervell’s testimony.
The Commissioner also argues that plaintiff’s testimony, and Somervell’s, merits less
weight because plaintiff stopped working only because his employer moved out of state, not
because of MS. However, the evidence is that he stated that he stopped working because “My
employer moved out of state, [and] I was unable to find employment I was able to do with my
MS symptoms.” Tr. 187 (emphasis added). This does not undercut plaintiff’s testimony, and is

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irrelevant to Somervell’s testimony.

Therefore, none of the ALJ’s criticisms of plaintiff’s

testimony is a germane reason to discredit Somervell’s.
On remand, the ALJ must fully consider Somervell’s testimony and determine how much
weight to assign it, if any.
II.

Dr. Robert Rosenbaum’s Opinion
Following the hearing, plaintiff submitted additional medical evidence from his treating

physician, Robert Rosenbaum, M.D., who stated that “[b]ecause of neurological illness,
[plaintiff] should only work 30 hours per week at this time.” Tr. 553. The Appeals Council
considered this evidence and made it part of the administrative record. Tr. 6. Plaintiff argues
that the Commissioner rejected this treating physician opinion without substantial evidence.
“[I]f a treating physician’s medical opinion is supported by medically acceptable
diagnostic techniques and is not inconsistent with other substantial evidence in the record, the
treating physician’s opinion is given controlling weight.” Holohan v. Massanari, 246 F.3d 1195,
1202 (9th Cir. 2001). “An ALJ may reject the uncontradicted medical opinion of a treating
physician only for ‘clear and convincing’ reasons supported by substantial evidence in the
record.” Id. “Similarly, an ALJ may reject a treating physician’s uncontradicted opinion on the
ultimate issue of disability only with ‘clear and convincing’ reasons supported by substantial
evidence in the record.” Id. at 1202-03.
The Commissioner must consider all evidence in the administrative record, Garrison v.
Colvin, 759 F.3d 995, 1009 (9th Cir. 2014), including evidence submitted to and considered by
the Appeals Council after the ALJ’s hearing, Brewes v. Comm’r, 682 F.3d 1157, 1162 (9th Cir.
2012). The court must include such evidence in its review of the “record as a whole” for
“substantial evidence.” Id. If the new evidence changes the record as a whole in a substantial

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manner, the ALJ’s decision no longer reflects substantial evidence in the record. Id. at 1163;
Lingenfelter v. Astrue, 504 F.3d 1028, 1030 n.2 (9th Cir. 2007).
The Commissioner has not presented any justification, much less one based on
substantial evidence, for not crediting Dr. Rosenbaum’s opinion that plaintiff is limited to less
than full-time employment. Dr. Rosenbaum’s opinion does change the record as a whole in a
substantial manner such that the ALJ’s decision no longer reflects substantial evidence in the
record. The ALJ himself stated, in concluding that “the [plaintiff’s] allegations of a total
inability to work [are] less credible and unsupported by the record as a whole,” that “the medical
record does not contain a statement from any physicians stating the [plaintiff] is disabled from all
work.”

Tr. 30.

Dr. Rosenbaum’s opinion provides this statement.

Here, because Dr.

Rosenbaum provides the only treating doctor’s opinion, the ALJ would be required to give it
controlling weight absent a contradictory opinion or other reason to discount it.
The Commissioner’s arguments as to why Dr. Rosenbaum’s opinion does not undermine
the ALJ’s decision are not convincing. The Commissioner argues that the phrasing of Dr.
Rosenbaum’s opinion—that plaintiff “should only work 30 hours per week,” Tr. 553 (emphasis
added)—makes this merely a doctor’s recommendation, not a medical opinion. However, this
interpretation is not persuasive. The letter is from a treating physician to an employer, stating
that the patient’s work capacity is limited “[b]ecause of neurological illness.” Id. This context
of a physician’s letter to an employer, plus the seriousness of the medical condition, indicates
that the letter is not merely a suggestion or proposal about what would work best for the patient,
but is a doctor’s opinion of what amount of work, for medical reasons, the patient is able to
perform. The Commissioner also argues that because Dr. Rosenbaum’s opinion is from March
2006, before the alleged disability onset in July 2007, it is of reduced relevance, especially given

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that plaintiff continued to work full-time through July 2007. Plaintiff, in reply, argues that other
evidence, specifically his need to nap during the day, is consistent with Dr. Rosenbaum’s
opinion. Even assuming that Dr. Rosenbaum’s opinion merits less weight due to these concerns,
his opinion still changes the record as a whole and must be considered. Further, the medical
record, from the alleged disability onset date through the end of the relevant period and on
through to the most recent entries, supports the limitations that plaintiff has suffered from MS
and associated symptoms and that Dr. Rosenbaum endorsed in 2006. E.g., 303-07 (July 28,
2005); 300-02 (Oct. 3, 2005); 294-96 (Mar. 17, 2006); 288-90 (Oct. 8, 2007); 327-28 (June 9,
2008); 416-18 (Nov. 20 & 25, 2009); 452-54 (Apr. 27 & 28, 2011); 391-98 (Apr. 23 & 27,
2012); 390 (Nov. 13, 2012); 499-501 (May 15 & Dec. 17. 2013); 528-34 (Jan. 21 & 24, 2014).
On remand, the ALJ must consider the appropriate weight to assign Dr. Rosenbaum’s opinion,
but the ALJ must nonetheless reevaluate the entire record including this opinion.
Because the Commissioner failed to consider Dr. Rosenbaum’s opinion, her decision was
not based on the entire record. On remand, the ALJ shall consider Dr. Rosenbaum’s opinion,
and whether it establishes that plaintiff is incapable of maintaining full-time employment.4

4

The Court observes that the ALJ’s assessed RFC (specifically, to perform light work, with
limitations on lifting and carrying, on exposure to heat and hazards, on public interaction, and on
visual acuity, but with the finding that plaintiff “can stand and/or walk with normal breaks
approximately six of eight hours in the day,” and that “[t]here are no specific sitting limitations,”
Tr. 29) does not account for plaintiff’s fatigue. The medical record is consistent that plaintiff
suffers from fatigue due to MS, which the ALJ found to be a severe impairment at step two. The
ALJ also found that plaintiff “consistently experienced MS symptoms such as . . . fatigue . . . ,”
Tr. 30, and that plaintiff’s “fatigue problems necessitate further limitations” than state agency
consulting physicians assessed, Tr. 31. Plaintiff’s wife’s testimony, discussed above, also
supports the claimed level of fatigue and resulting need to nap. Tr. 63-81. On remand, because
the ALJ must consider Somervell’s testimony and Dr. Rosenbaum’s opinions, and thus must
reassess plaintiff’s RFC as implicated by that testimony, the ALJ shall also reevaluate the degree
to which plaintiff’s RFC must account for the fatigue indicated by this evidence and by the
medical record as a whole. This shall include consideration of the VE’s testimony that a
“hypothetical claimant [who], because of a combination of limitations from medicallyPage 11 – OPINION AND ORDER

III.

Remand
It lies within the district court’s discretion whether to remand for further proceedings or

to order an immediate award of benefits. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000).
“Remand for further administrative proceedings is appropriate if enhancement of the record
would be useful.

Conversely, where the record has been developed fully and further

administrative proceedings would serve no useful purpose, the district court should remand for
an immediate award of benefits.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)
(citation and italics omitted). This “credit-as-true” rule, Garrison, 759 F.3d at 1020, has three
steps: first, the court “ask[s] whether the ALJ has failed to provide legally sufficient reasons for
rejecting evidence, whether claimant testimony or medical opinion”; second, if the ALJ has
erred, the court “determine[s] whether the record has been fully developed, whether there are
outstanding issues that must be resolved before a determination of disability can be made, and
whether further administrative proceedings would be useful”; and third, if the court “conclude[s]
that no outstanding issues remain and further proceedings would not be useful,” it may “find[]
the relevant testimony credible as a matter of law . . . and then determine whether the record,
taken as a whole, leaves not the slightest uncertainty as to the outcome of the proceeding.”
Treichler v. Comm’r, 775 F.3d 1090, 1100-01 (9th Cir. 2014) (quotations, citations, and
alterations omitted). The court may then “remand to an ALJ with instructions to calculate and
award benefits.” Garrison, 759 F.3d at 1020.
At the first step of the credit-as-true analysis, the Court finds that the ALJ erred in not
properly considering Somervell’s testimony. The Commissioner then erred in not considering

determinable impairments, were absent from the workplace at unpredictable times that such rose
to the level of four to eight hours a week” would not be able to “sustain[] competitive
employment” in any field, Tr. 85, and whether plaintiff is thus incapable of full-time work.
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Dr. Rosenbaum’s medical opinion. At step two, the Court finds that there remain outstanding
issues to be determined and that further administrative proceedings would be useful, specifically,
regarding whether and how much to credit Somervell’s testimony and Dr. Rosenbaum’s opinion.
Remand for immediate award of benefits is not appropriate. The Court thus remands for further
proceedings in accordance with this Opinion and Order.
CONCLUSION
For these reasons, the Court finds that the Commissioner’s decision did not properly
consider lay third party testimony or medical expert opinion. On remand, the ALJ shall fully
consider Somervell’s testimony and determine how much weight to assign it, if any; shall
consider Dr. Rosenbaum’s opinion, and whether it establishes that plaintiff is incapable of
maintaining full-time employment; and shall reassess plaintiff’s RFC in accordance with this
evidence, with the discussion in this Opinion and Order, and with the VE’s testimony regarding a
hypothetical claimant absent from work with the frequency described above. Pursuant to 42
U.S.C. § 405(g), sentence four, the Court REVERSES the Commissioner’s decision and
REMANDS for further administrative proceedings.
IT IS SO ORDERED.
DATED this 24th day of August, 2017.

/s/ Patricia Sullivan
PATRICIA SULLIVAN
United States Magistrate Judge

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