Correia v. Commissioner of Social Security Administration
Filing
20
Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to Sentence Four of 28 U.S.C. § 405(g) for further proceedings consistent with this Opinion and Order. IT IS SO ORDERED. Signed on 3/27/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JASON VEACH,
Plaintiff,
3:17-cv-00729-BR
OPINION AND ORDER
v.
COMMISSIONER, Social
Security Administration,1
Defendant.
JOHN E. HAAPALA, JR.
401 E. 10th Ave.
Eugene, OR 97401
(541) 345-8474
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1
Nancy A. Berryhill’s term as the Acting Commissioner of
the Social Security Administration ended on November 17, 2017,
and a new Commissioner has not been appointed.
1 - OPINION AND ORDER
MICHAEL W. PILE
Acting Regional Chief Counsel
LISA GOLDOFTAS
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-3858
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Jason Veach seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied Plaintiff's
application for Disability Insurance Benefits (DIB) under Title
II of the Social Security Act.2
This Court has jurisdiction to
review the Commissioner's final decision pursuant to 42 U.S.C.
§ 405(g).
For the reasons that follow, the Court REVERSES the decision
of the Commissioner and REMANDS this matter for further
proceedings.
ADMINISTRATIVE HISTORY
Plaintiff protectively filed his initial application for DIB
2
Although Plaintiff alleged a claim for review of the
denial of Supplemental Social Security Benefits (SSI) in his
Complaint, the record does not reflect a claim for such benefits.
The Court, therefore, disregards any claim related to SSI
benefits.
2 - OPINION AND ORDER
benefits on December 14, 2012.
Tr. 31, 187.3
a disability onset date of February 2, 2012.
Plaintiff alleged
Plaintiff’s
application was denied initially and on reconsideration.
An
Administrative Law Judge (ALJ) held a hearing on February 6,
2015.
Tr. 51-77.
testified.
Plaintiff and a vocational expert (VE)
Plaintiff was represented by an attorney at the
hearing.
On May 22, 2015, the ALJ issued an opinion in which he found
Plaintiff is not disabled and, therefore, is not entitled to
benefits.
Tr. 31-45.
On June 24, 2015, Plaintiff requested review by the Appeals
Council.
Tr. 24.
On September 16, 2016, the Appeals Council denied
Plaintiff’s request to review the ALJ’s decision, and the ALJ’s
decision became the final decision of the Commissioner.
14.
Tr. 11-
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On November 3, 2016, Plaintiff requested an extension of
time to file a civil action.
On March 2, 2017, the Appeals Council extended the time to
file a civil action for 30 days.
Tr. 1-2.
On March 31, 2017, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner’s decision.
3
Citations to the official transcript of record filed by
the Commissioner on September 7, 2017, are referred to as "Tr."
3 - OPINION AND ORDER
BACKGROUND
Plaintiff was born on January 24, 1979.
was 36 years old at the time of the hearing.
Tr. 43.
Plaintiff
Plaintiff has a
high-school education and two years of college.
Tr. 72.
The ALJ
found Plaintiff has past relevant work as a computer sales
representative.
Tr. 43.
Plaintiff alleges disability due to a right-knee injury,
ruptures in his neck, degenerative disc disease of the lumbar
spine with disc herniation, obesity, and two hernias with radial
myopathy.
Tr. 218.
Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.
After carefully reviewing the
medical records, this Court adopts the ALJ’s summary of the
medical evidence.
See Tr. 35-42.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9th
To meet this burden, a claimant must demonstrate his
inability “to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months.”
4 - OPINION AND ORDER
42 U.S.C.
§ 423(d)(1)(A).
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 (9th 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
(9th 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 evaluating a claimant’s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
Cir. 2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Ryan v.
Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Even
when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
5 - OPINION AND ORDER
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
At Step One the claimant is not disabled if the Commis-
sioner determines the claimant is engaged in substantial
gainful activity (SGA).
20 C.F.R. § 404.1520(a)(4)(I).
See also
Keyser v. Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii).
20 C.F.R. §§ 404.1509,
See also Keyser, 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 the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).
20 C.F.R.
See also Keyser, 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).
6 - OPINION AND ORDER
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.
§ 404.1520(e).
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 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.
20 C.F.R. § 404.1520(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 404.1520(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
7 - OPINION AND ORDER
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. § 404.1520(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since February 2, 2012, the alleged
date of onset.
Tr. 33.
At Step Two the ALJ found Plaintiff has the severe
impairments of “status-post right knee surgery, degenerative disk
disease of the cervical spine (status-post fusion), degenerative
disk disease of the lumbar spine with disk herniation, and
obesity.”
Tr. 33.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.
Tr. 34.
The ALJ found Plaintiff has the RFC to
perform sedentary work.
The ALJ also found Plaintiff requires a
sit/stand option that allows him to alternate sitting and
standing positions throughout the day.
The ALJ also found
Plaintiff can frequently climb ramps or stairs, frequently stoop,
and occasionally kneel and crouch.
The ALJ found Plaintiff
cannot climb ladders, ropes, or scaffold; cannot crawl; can
8 - OPINION AND ORDER
occasionally push and pull with both arms; cannot reach overhead
or above shoulder level; must avoid concentrated exposure to
nonweather-related extreme cold; and must avoid exposure to
excessive vibration, unprotected heights, and hazardous
machinery.
Tr. 35.
At Step Four the ALJ concluded Plaintiff is able to perform
his past relevant work.
Tr. 43.
At Step Five the ALJ found, based on Plaintiff’s age,
education, work experience, and RFC, that Plaintiff could also
perform other work in the national economy.
Tr. 43-44.
The ALJ
cited three examples of such work that were identified by the VE:
call-out operator, charge-account clerk, and semiconductor
bonder.
Tr. 44.
Thus, the ALJ concluded Plaintiff is not
disabled and, therefore, is not entitled to benefits.
Tr. 44-45.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) failed to make
specific findings at Step Three, (2) improperly evaluated the
medical evidence, (3) improperly discounted Plaintiff’s symptom
testimony, and (4) improperly discounted the lay-witness
statements of Fawn Veach, Plaintiff’s wife.4
4
Although Plaintiff asserted the ALJ improperly discounted
the lay-witness statement of Fawn Veach, his Opening Brief did
not address this issue. The Court, therefore, disregards this
issue.
9 - OPINION AND ORDER
I.
The ALJ failed to make specific findings at Step Three.
Plaintiff contends the ALJ erred when he failed to make
specific findings at Step Three to support his determination that
Plaintiff’s impairments do not meet or equal a listed impairment.
A.
The Law
At Step Three the ALJ must determine whether
Plaintiff’s severe impairments meet or equal one of the listed
impairments sufficient to preclude substantial gainful activity.
20 C.F.R. § 404.1520(a)(4)(iii).
Plaintiff has the burden to prove that his impairments
meet or equal a listed impairment.
676, 683 (9th Cir. 2005).
Burch v. Barnhart, 400 F.3d
“Listing impairments are purposefully
set at a high level of severity because ‘the listings were
designed to operate as a presumption of disability that makes
further inquiry unnecessary.’”
Kennedy v. Colvin, 738 F.3d 1172,
1176 (9th Cir. 2013)(citing Sullivan v. Zebley, 493 U.S. 521, 532
(1990)).
“Listing impairments set such strict standards because
they automatically end the five-step inquiry, before residual
functional capacity is even considered.”
Kennedy, 738 F.3d at
1176.
A claimant’s impairment is not considered to be a
listed impairment in Appendix I based solely on a diagnosis.
20 C.F.R. § 404.1525(d).
An impairment meets a listed condition
“only when it manifests the specific findings described in the
10 - OPINION AND ORDER
set of medical criteria for that listed impairment.”
§ 404.1525(d).
See also SSR 83-19.
20 C.F.R.
Alternatively, an impairment
equals a listing “if the medical findings are at least equal
in severity and duration to the listed findings.”
20 C.F.R.
§ 404.1526.
B.
Analysis
The ALJ noted the requirements of Listing 1.04 for
spine disorders and concluded Plaintiff’s cervical and lumbarspine impairments do not meet or medically equal the Listing
because “[t]he medical evidence of record does not reveal
findings consistent with the listing 1.04 criteria.”
Tr. 35.
The ALJ did not give any further explanation or analysis to
support his determination.
In Marcia v. Sullivan the Ninth Circuit ruled when
“determining whether a claimant equals a listing under step three
of the Secretary’s disability evaluation process, the ALJ must
explain adequately his evaluation of alternative tests and the
combined effects of the impairments.”
900 F.2d 172, 176 (9th
Cir. 1990).
See also Kennedy v. Colvin, 738 F.3d 1172, 1178 (9th
Cir. 2013).
In Marcia the ALJ merely concluded the plaintiff
“failed to provide evidence of medically determinable impairments
that meet or equal the Listings.”
The court determined the ALJ’s
finding was “insufficient” to show that the ALJ actually
considered equivalence.
11 - OPINION AND ORDER
Marcia, 900 F.2d at 176.
Here the ALJ found at Step Two that Plaintiff has
severe impairments of degenerative disk disease of the cervical
and lumbar spine.
At Step Three the ALJ concluded Plaintiff’s
severe impairments do not meet or equal the listing impairment.
The ALJ, however, did not provide any explanation or evaluation
to show Plaintiff’s impairments or combination of impairments do
not meet or equal the listing impairment as required under
Marcia.
The Commissioner contends any error in this regard was
harmless because the ALJ accounted for Plaintiff’s severe
impairments of degenerative disk disease of the cervical and
lumbar spine in his assessment of Plaintiff’s RFC.
As noted, however, at Step Three a determination that a
claimant has an impairment or combination of impairments that
meet or medically equal the requirements of listed impairments
would result in a finding of disability without further
sequential analysis.
Thus, the harm to Plaintiff in this case is
that the ALJ found Plaintiff is not disabled without providing a
sufficient explanation at Step Three.
On this record the Court concludes the ALJ erred at
Step Three by failing to provide a sufficient explanation to show
that Plaintiff’s impairments or combination of impairments do not
meet or medically equal a listed impairment.
The Court finds the
ALJ's error is not harmless under Marcia and, accordingly,
12 - OPINION AND ORDER
remands this matter for further proceedings on this issue.
Inasmuch as resolution of this issue on remand may affect
the overall determination of Plaintiff’s disability claim, the
Court need not address Plaintiff’s other assignments of error.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to Sentence Four of
28 U.S.C. § 405(g) for further proceedings consistent with this
Opinion and Order.
IT IS SO ORDERED.
DATED this 27th day of March, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
13 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?