Kirkland v. Commissioner Social Security Administration
Filing
34
Opinion and Order - The Commissioner's decision that Plaintiff was not disabled is REVERSED AND REMANDED for further proceedings consistent with this Opinion and Order. Signed on 12/18/2018 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Joshua K.1,
Case No. 3:17-cv-01729-SI
Plaintiff,
OPINION AND ORDER
v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations, performing the
duties and functions not reserved to the
Commissioner of Social Security,
Defendant.
Merrill Schneider, SCHNEIDER KERR & ROBICHAUX, P.O. Box 14490, Portland, Oregon 97293.
Of Attorney for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;
Lisa Goldoftas, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL, Social
Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.
Michael H. Simon, District Judge.
1
In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party in this case. Where applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.
PAGE 1 – OPINION AND ORDER
Plaintiff Joshua K. (“Plaintiff”) seeks judicial review of the final decision by the Social
Security Commissioner (“Commissioner”) denying Plaintiff’s application for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI
of the Social Security Act, 42 U.S.C. §§ 401-33, 1381-83f. This Court has jurisdiction to review
the Commissioner’s decision pursuant to 42 U.S.C. § 405(g). In this case, both parties agree that
the ALJ’s decision is flawed, and therefore this case must be reversed and remanded. The parties
disagree, however, on whether the case must be remanded for further proceedings, as Defendant
advocates, or for an award of benefits, as Plaintiff urges. For the reasons discussed below, the
Commissioner’s decision denying Plaintiff’s application for DIB and SSI is REVERSED and
REMANDED for further proceedings.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
PAGE 2 – OPINION AND ORDER
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
BACKGROUND
A. Plaintiff’s Application
Plaintiff was born on July 28, 1979. AR 46. He has a limited education (up to ninth
grade), can communicate in English, and has performed construction work and temporary labor
sporadically, but has not worked since 2012. AR 47, 53-58. He filed for DIB and SSI on June 26,
2013, alleging disability due to degenerative disc disease status post microdiscectomy, cannabis
abuse, opiate abuse, and major depressive disorder. AR 17.
Plaintiff’s application was denied initially and upon reconsideration, and he requested a
hearing before an administrative law judge (“ALJ”). AR 40. An administrative hearing was held
on November 10, 2015. Id. Plaintiff was represented by counsel and testified. Id. In March of
2016, the ALJ issued a written decision denying Plaintiff’s application. AR 158-79. Plaintiff
sought review by the Appeals Council. The Appeals Council granted Plaintiff’s request for
review and remanded to the ALJ to rectify the issues it identified with the ALJ’s initial decision.
AR 180-85. The ALJ held another hearing, on December 20, 2016, at which Plaintiff was once
again represented by counsel and he again testified. The ALJ issued a written decision once
again denying Plaintiff’s application on March 1, 2017. AR 17-31. Plaintiff now seeks judicial
review of that decision.
PAGE 3 – OPINION AND ORDER
B. The Sequential Analysis
A claimant is disabled if he or she is unable 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[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
PAGE 4 – OPINION AND ORDER
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
4.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
PAGE 5 – OPINION AND ORDER
C. The ALJ’s Decision
The ALJ’s issued its most recent decision in response to an order of remand from the
Appeals Council in this case. The Appeals Council found that the ALJ’s residual functional
capacity finding that Plaintiff can “stand and walk 1 hour at one time up to less than 2 hours in
an 8-hour workday; he can sit 2 hours at one time up to no more than 6 hours in an 8-hour
workday” was vague “because it does not specify how much less than 2 hours the claimant is
capable of standing and walking.” AR 182. Additionally, the Appeals Council found that
Plaintiff’s limitations of “less than 2 hours standing and walking” and “up to 6 hours sitting”
equates to less than a full eight-hour workday as required by Social Security Ruling 96-9p.
The Appeals Council also found error with the ALJ’s phrasing of the hypothetical
question posed to the vocational expert, because the ALJ asked about a hypothetical individual
who can sit for two hours at one time up to “more than 6 hours total.” AR 183. This appears to
be inconsistent with the ALJ’s residual functional capacity finding that Plaintiff could only sit for
“up to 6 hours” not “more than 6 hours.” AR 183. Thus, the Appeals Council remanded this case
the ALJ to correct these issues and issue a new opinion.
Specifically, the Appeals Council ordered that, upon remand, the ALJ will obtain
additional evidence concerning Plaintiff’s impairments, give further consideration to Plaintiff’s
maximum residual functional capacity and provide appropriate rationale with specific references
to evidence of record in support of the assessed limitations, and, if warranted by the record,
obtain supplemental evidence from a vocational expert to clarify the effect of the limitations on
Plaintiff’s occupational base. AR 183.
On remand, the ALJ went through the five-step sequential analysis. At step one, the ALJ
found that Plaintiff meets the insured status requirements of the Social Security Act through June
30, 2012. AR 20. At step two, the ALJ found that Plaintiff had not engaged in substantial gainful
PAGE 6 – OPINION AND ORDER
activity since June 30, 2012, the alleged onset date of Plaintiff’s disability. Id. At step three, the
ALJ determined that Plaintiff has the following severe impairments: degenerative disc disease
status-post microdiscectomy, cannabis abuse, opiate abuse, and major depressive disorder. Id.
The ALJ found that the impairments are severe because they have caused more than minimal
vocational limitations for 12 consecutive months. Id. The ALJ noted that Plaintiff has also been
treated for other symptoms and complaints, which have not lasted or are not expected to last for
12 consecutive months. These include Plaintiff’s fractured right foot, hypothyroidism, renal
stones, and substance abuse in remission. Id. At step four, the ALJ determined that Plaintiff does
not have an impairment or combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 21.
The ALJ determined that Plaintiff has the residual functional capacity to perform
sedentary work, except that:
He can stand and walk 1 hour at one time, up to less than 2 hours
total in an 8 hour workday. He can sit 2 hours at one time, up to
more than 6 hours total in an 8-hour workday. He can occasionally
climb ramps and stairs. He should not climb ladders, ropes, and
scaffolds. He can frequently balance. He can occasionally stoop,
kneel, and crouch. He should not crawl. He can understand and
remember simple instructions. He has sufficient concentration,
persistence, and pace to complete simple, routine tasks for a
normal workday and workweek with normal breaks. He should
have only occasional brief, superficial interactions with the general
public and coworkers. He is able to accept supervision. He should
be in a workplace with few changes to the work setting.
AR 23.
At step four, the ALJ determined that Plaintiff has no past relevant work. At step five, the
ALJ determined that there are jobs that exist in significant numbers in the national economy that
Plaintiff can perform. AR 30. The vocational expert testified that Plaintiff would be able to
perform the requirements of inspector of eyeglass frames and optical goods (DOT 731.684-038)
PAGE 7 – OPINION AND ORDER
and inspection of small parts assembly (DOT 713.684-018). AR 30. Therefore, the ALJ
concluded that Plaintiff was not disabled. AR 31.
DISCUSSION
Both parties agree that the ALJ failed to correct the overly-vague limitation of standing
and walking to “less than 2 hours.” The Appeals Council ordered the ALJ to correct this vague
language, and the ALJ, without explanation, failed to make the ordered correction. On this basis,
both parties agree that the ALJ’s decision should be reversed. The Court agrees that the ALJ
failed to clarify the vague language and indeed repeated the same error when given a second bite
at the apple. Accordingly, the ALJ’s decision must be reversed and remanded.2
However, neither party contends that the ALJ’s errors ended there. Both parties also
agree that the ALJ erred in improperly rejecting the findings of Plaintiff’s treating physician, Dr.
Ryan Petering, M.D. The ALJ gave little weight to Dr. Petering’s assessment of Plaintiff’s
mental limitations because Dr. Petering is a medical doctor, not a psychiatrist. TR 28. However,
a treating physician’s opinion of a claimant’s mental limitations “constitutes ‘competent
psychiatric evidence’ and may not be discredited on the ground that he is not a board certified
psychiatrist.” Lester v. Chater, 81 F.3d 821, 833 (9th Cir. 1995) (quoting Sprague v. Bowen, 812
F.2d 1226, 1232 (9th Cir. 1987)). Thus, the ALJ should not have discredited Dr. Petering’s
assessment of Plaintiff’s mental limitations on the grounds that Dr. Petering is a medical doctor,
not a psychiatrist. On remand, the ALJ should further consider Dr. Petering’s opinions, including
his opinion testimony regarding Plaintiff’s mental and physical impairments. The ALJ should
consider whether Dr. Petering’s medical opinions are contradicted or unsupported by other
2
Additionally, the ALJ provided no explanation for the change in residual functional
capacity from “up to no more than” six hours sitting per day to “more than” six hours sitting per
day.
PAGE 8 – OPINION AND ORDER
evidence in the record. If the ALJ concludes that is the case, the ALJ must provide “specific and
legitimate reasons that are supported by substantial evidence.” See Bayliss v. Barnhart, 427 F.3d
1211, 1216 (9th Cir. 2005).
Plaintiff also argues that the ALJ erred in rejecting some of Plaintiff’s subjective
symptom testimony.3 The ALJ may “reject the claimant’s testimony about the severity of [his]
symptoms only by offering specific, clear and convincing reasons for doing so.” Brown-Hunter
v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Lingenfelter v. Astrue, 504 F.3d 1029,
1036 (9th Cir. 2007)). This means that the ALJ’s finding must be supported by substantial
evidence, and the ALJ must identify what testimony is not credible and what evidence
undermines the claimant’s complaints. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998).
The ALJ “must state specifically which symptom testimony is not credible and what facts in the
record lead to that conclusion.” Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).
The ALJ concluded that the medical record does not support the severity of the
claimant’s alleged physical symptoms. The ALJ discussed Plaintiff’s testimony that he
experiences severe back pain that limits his ability to sit, stand, walk, lift, and carry objects. AR
24. The ALJ found that Plaintiff’s statements concerning the intensity, persistence, and limiting
effects of his symptoms were not entirely consistent with the medical evidence and other
evidence in the record. AR 23-24. The ALJ gave moderate weight to the CDIU investigator,
finding that the CDIU investigator’s observations were generally consistent with the record as a
whole. AR 29. Plaintiff told the CDIU investigator that he walks to the grocery store, gets his
mail, and occasionally interacts with friends, all activities inconsistent with the severity of his
symptom testimony. The ALJ also considered inconsistencies in Plaintiff’s subjective symptom
3
The ALJ did not conclude that Plaintiff was malingering.
PAGE 9 – OPINION AND ORDER
testimony, Dr. Button’s opinion that the MRI did not explain Plaintiff’s reported symptoms, a
history of drug-seeking behavior, and evidence from Dr. Petering that Plaintiff may have not
given full effort in examinations. TR 24-27. The ALJ’s has provided clear and convincing
reasons for discrediting some of Plaintiff’s subjective symptom testimony as it relates to
intensity, persistence, and limiting effects of his symptoms. See Thomas v. Barnhart, 278 F.3d
947, 959 (9th Cir. 2002).
Finally, Plaintiff argues that the ALJ erred at step five by accepting a vocational expert’s
testimony that Plaintiff could perform a job that does not exist in the Dictionary of Occupational
Titles (“DOT”). See Davis v. Astrue, 10-cv-742, 2012 WL 10512, at *1 (D. Or. Jan. 3, 2012).
The vocational expert identified the job “optical goods inspector” which does not exist in the
DOT. An ALJ may not accept vocational expert testimony that contradicts the DOT unless the
record contains “persuasive evidence to support the deviation.” Tommasetti v. Astrue, 533 F.3d
1035, 1042 (9th Cir. 2008) (quoting Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)).
Neither the vocational expert nor the ALJ attempted to justify this deviation with evidence.
However, the Court need not reach this claim of error. Based on the ALJ’s errors in considering
Dr. Petering’s medical opinion evidence and in formulating the residual functional capacity, this
case must be remanded so that the ALJ may determine a new residual functional capacity and
pose a new hypothetical to a vocational expert.
The record does not clearly require a finding of disability and leaves factual questions
regarding key issues in the record unresolved. Although Plaintiff urges the Court to apply the
credit-as-true rule and remand for an award of benefits, this Court believes that further
proceedings are necessary in this case. On remand, the ALJ should hold a de novo hearing and
PAGE 10 – OPINION AND ORDER
further consider the medical opinion of Dr. Petering, reformulate Plaintiff’s residual functional
capacity, and obtain new vocational expert testimony.
CONCLUSION
The Commissioner’s decision that Plaintiff was not disabled is REVERSED AND
REMANDED for further proceedings consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 18th day of December, 2018.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 11 – 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?