Eaton v. Commissioner Social Security Administration
Filing
19
Opinion and Order: The ALJs finding that plaintiff is not disabled within themeaning of the Act is not supported by substantial evidence in therecord. Accordingly, the decision of the Commissioner is REVERSEDand REMANDED for an award of benefits. Signed on August 11, 2011 by Chief Judge Ann L. Aiken. (cp)
Filed:
8/22/11
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RAYETTE B. EATON,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Laurie B. Mapes
P.O. Box 1241
Scappoose, OR 97056
Attorney for plaintiff
Dwight C. Holton
United States Attorney
District of Oregon
Adrian L. Brown
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
Jordan D. Goddard
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-7075
Attorneys for defendant
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- OPINION AND ORDER
Civ. No. 10-789-AA
OPINION AND ORDER
AIKEN, Chief Judge:
Plaintiff brings this action pursuant to the Social Security
Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a
final
decision
(Commissioner)
of
the
denying
Commissioner
plaintiff's
of
Social
application
for
Security
Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI)
benefits.
For the reasons set forth below, the Commissioner's
decision is reversed and remanded for an award of benefits.
BACKGROUND
On October 4, 2004 and January 27, 2005, plaintiff filed
applications for DIB and SSI, respectively.
Tr. 83-87, 657-60.
Her applications were denied initially and on reconsideration. Tr.
49-65.
After
timely
requesting
a
hearing,
plaintiff
and
a
vocational expert appeared and testified before an administrative
law judge (ALJ) on February 14, 2008.
Tr. 668-704.
On April 8,
2008, the ALJ issued a decision finding plaintiff not disabled
within the meaning of the Act.
Tr. 8-24.
The Appeals Council
denied plaintiff's request for review, rendering the ALJ's decision
the final decision of the Commissioner.
Tr. 3-6.
Plaintiff now
seeks judicial review.
Plaintiff was thirty-eight years old at the time of the ALJ's
decision.
Tr. 22.
Plaintiff has a limited education and past
relevant work as a bus driver, cashier, bartender, secretary, van
driver, and waitress.
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Tr. 22.
She alleges disability since
September 1, 2005 due to various physical and mental impairments.
Tr. 672.
STANDARD OF REVIEW
This court must affirm the Commissioner's decision if it is
based on the proper legal standards and the findings are supported
by substantial evidence in the record.
498, 501 (9th Cir. 1989).
mere scintilla.
Hammock v. Bowen, 879 F.2d
Substantial evidence is "more than a
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) (quoting Consolidated Edison
v. NLRB, 305 U.S. 197, 229 (1938)).
The court must weigh "both the
evidence that supports and detracts from the [Commissioner's]
conclusions."
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.
1986). Where the evidence is susceptible to more than one rational
interpretation,
the
Commissioner's
conclusion
must
be
upheld.
Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982).
COMMISSIONER'S DECISION
The
initial
burden
establish disability.
Cir. 1986).
of
proof
rests upon the
claimant
to
Howard v. Heckler, 782 F.2d 1484, 1486 (9th
To meet this burden, a 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 . . . ."
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- OPINION AND ORDER
42 U.S.C. § 423(d)(1)(A).
The
ALJ
evaluated
plaintiff’s
allegation
of
disability
pursuant to the relevant five-step sequential process.
See Bowen
v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,
416.920. At step one, the ALJ found that plaintiff had not engaged
in "substantial gainful activity" during the period of alleged
disability.
Tr. 13; 20 C.F.R. §§ 404.1520(b), 416.920(b).
At steps two and three, the ALJ found that plaintiff has
impairments of coronary heart disease, chronic neck pain postcervical
laminectomy,
degenerative
disc
disease,
seizures
of
unclear etiology, obesity, a dysthymic disorder, and a history of
amphetamine abuse which in combination are severe, but that these
impairments did not meet or equal any listed impairment that the
Commissioner acknowledges as disabling under the Act.
Tr. 14-18;
20 C.F.R. §§ 404.1520(c) and (d), 416.920(c) and (d).
At step four, the ALJ found that plaintiff retained the
residual functional capacity (RFC) to perform simple, sedentary
work with one or two step instructions and no high intensity
concentration,
climbing.
with
only
occasional
reaching,
crawling,
Tr. 18-22; 20 C.F.R. §§ 404.1520(e), 416.920(e).
or
Based
on these findings, the ALJ found that plaintiff could not perform
her
past
relevant
work.
Tr.
22;
20
C.F.R.
§§
404.1520(f),
416.920(f).
If the claimant is unable to perform past relevant work, the
inquiry proceeds to step five, where the Commissioner bears the
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- OPINION AND ORDER
burden to establish that the claimant is capable of performing
other work that exists in significant numbers in the national
economy.
Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(g),
416.920(g). Relying on the testimony of the vocational expert, the
ALJ found that plaintiff was able to perform other work as an
information clerk and check cashier.
Tr. 23.
Therefore, the ALJ
found that plaintiff was not disabled under the Act.
DISCUSSION
Plaintiff asserts that the Commissioner's decision should be
reversed and remanded for the payment of benefits.
Plaintiff
argues that the ALJ erred in finding her not disabled at step
three, because her impairments meet or equal listing 12.05, given
plaintiff’s performance IQ score of 68 and full-scale IQ of 69, her
longtime deficits in adaptive functioning, and her additional
impairments of coronary disease and obesity.
I need not address
this argument, however, because I agree with plaintiff’s additional
arguments that the ALJ erred in discounting the opinion of a
treating physician and plaintiff’s subjective complaints.
Plaintiff’s treating physician twice rendered the opinion that
plaintiff was incapable of performing full-time work due to the
combination of her various and chronic health problems, including
neck and back pain, heart disease, seizures, and anxiety. Tr. 202,
318.
Dr. Losli has treated plaintiff for over twenty years, and
the
record
contains
numerous
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treatment
records
documenting
plaintiff’s most recent visits.
Tr. 284-339.
The ALJ discounted
Dr. Losli's opinion, finding it inconsistent with the "largely
normal" findings of plaintiff’s cardiologists and based merely on
plaintiff’s “attendance history” rather than objective, medical
findings.
Tr. 21.
The relative weight given to medical source opinions depends
on the opportunity for the provider to observe and know the
patient.
Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996).
Accordingly, the opinion of a treating physician deserves more
weight than that of an examining physician, and a non-examining
physician's opinion receives the least weight.
Id.
Further, the
medical opinion of a claimant's treating physician is entitled to
"special weight" because "he is employed to cure and has a greater
opportunity to know and observe the patient as an individual."
Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989) (citation
omitted); Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).
Thus, an ALJ must provide clear and convincing reasons, supported
by
substantial
evidence
in
the
record,
for
uncontradicted opinion of a treating physician.
rejecting
the
If contradicted,
the ALJ must provide specific and legitimate reasons, supported by
substantial evidence in the record, for rejecting a treating
physician's opinion. See Lester, 81 F. 3d at 830; see also Andrews
v. Shalala, 53 F.3d 1035, 1043 (9th Cir.1995).
I find that the ALJ did not provide legally sufficient reasons
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- OPINION AND ORDER
to discount the opinion of Dr. Losli.
As plaintiff notes, her
cardiologists did not render any opinions inconsistent or contrary
to Dr. Losli’s opinion regarding plaintiff’s ability to perform
full-time work as a result of the combined effect of her health
issues.
Further, Dr. Losli treated plaintiff’s coronary-related
complaints prior to and after her cardiac procedures, managed her
heart medications, and treated plaintiff on numerous occasions for
a myriad of complaints. Tr. 218-339.
Thus, I agree with plaintiff
that the “record before the ALJ reflected Dr. Losli’s substantial
familiarity with Plaintiff, his multitude of observations and chart
notes,
his
possession
of
reports
of
neurosurgeons
cardiologists, and his long-term service to Plaintiff.”
Opening Brief, p. 24.
and
Pl.’s
The record does not reflect an opinion
lacking in objective medical basis.
Plaintiff also testified that she could not sustain full-time
work due to the combined effects of her health issues. Tr. 678-80,
682, 685-87. The ALJ discredited her testimony because she was not
compliant with medical advice to lose weight, exercise, and stop
smoking, and the record did not document her complaints of fatigue.
Tr. 19-20.
The ALJ also found that plaintiff’s activities - such
as swimming thrice weekly, one occasion of “rolling baled hay” and
preparing meals and driving - and her sporadic work history reduced
her credibility.
Tr. 20-21.
The Ninth Circuit employs two-stage analysis to assess a
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claimant's subjective complaints of pain, fatigue, and the like.
See, e.g., Lingenfelter v. Astrue, 504 F.3d 1028, 1035-1036 (9th
Cir. 2007); Smolen, 80 F.3d at 1281.
Initially, a claimant "must
produce objective medical evidence of an impairment or impairments"
and "show that the impairment or combination of impairments could
reasonably be expected to (not that it did in fact) produce some
degree of symptom."
Smolen, 80 F.3d at 1282. If the claimant does
so, the ALJ may not reject the alleged severity of the symptoms
without
specific
findings
evidence of record.
In
making
supported
by
clear
and
convincing
such
Id. at 1281, 1284.
findings,
the
ALJ
must
be
"sufficiently
specific to permit the reviewing court to conclude that the ALJ did
not arbitrarily discredit the claimant's testimony."
Shalala, 50 F.3d 748, 750 (9th Cir. 1995).
Orteza v.
The ALJ may consider
objective medical evidence and the claimant's treatment history, as
well
as
the
observations
claimant's
of
daily
physicians
and
activities,
third
work
parties
record,
with
knowledge of the claimant's functional limitations.
and
personal
Smolen, 80
F.3d at 1284. Additionally, the ALJ may employ ordinary techniques
of credibility evaluation, such as weighing inconsistent statements
by the claimant.
Id.
Here, the record contains objective evidence of impairments
that could reasonably be found to cause the symptoms alleged by
plaintiff.
8
Thus, the ALJ was required to provide clear and
- OPINION AND ORDER
convincing reasons to reject plaintiff’s complaints.
However,
contrary to the ALJ’s findings, the record reflects that plaintiff
complained of chest pain, fatigue, dizziness, and insomnia on
numerous occasions. Tr. 212, 215, 218, 246, 288-89, 294, 296, 31112, 330. Further, the record reflects plaintiff’s attempts to stop
smoking, and at the time of the hearing she had not smoked for
several months.
Tr. 213, 215, 226-27, 693.
While the ALJ noted
that plaintiff swam three times a week and concluded that plaintiff
must have more stamina than she asserts, plaintiff did so at the
recommendation of her physician, and compliance with treatment
generally enhances rather than detracts from credibility. Tr. 216,
247.
Further,
inconsistent
the
with
record
does
plaintiff’s
not
reflect
complaints.
daily
activities
Though
plaintiff
occasionally drives and cooks meals, these activities do not
indicate an ability to sustain full-time work and do not detract
from her credibility. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th
Cir. 2001) (claimant’s ability to shop, walk an hour, socialize and
swim did not “detract from her credibility as to her overall
disability”).
The Act does not require that claimants be “utterly
incapacitated” to be eligible for benefits, because “many home
activities are not transferable to a work environment where it
might be impossible to rest periodically or take medication.”
Smolen, 80 F.3d at 1284, n.7; Fair v. Bowen, 885 F.2d 597, 603 (9th
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- OPINION AND ORDER
Cir. 1989).
Similarly, the fact that plaintiff has never engaged
in full-time work activity does not detract from her credibility
absent evidence that plaintiff is actually capable of working fulltime.
See Lingenfelter, 504 F.3d at 1036-37.
Finally, plaintiff’s testimony is supported by the statement
of her part-time employer, who employs plaintiff under a very
flexible schedule that averages sixteen hours per week.
Tr. 92.
He asserts that “within her physical limitations, [plaintiff] is
very accommodating and seems motivated to contribute to the work
effort as needed.”
Tr. 92.
However, her employer notes that
plaintiff “requires many days off due to various health concerns”
and “is absent or late for more than 50 percent of her designated
office dates.” Tr. 92. He observes plaintiff appearing “taxed and
tired, sometimes near exhaustion, especially late in her day.
Occasionally, she exhibits mild disorientation or confusion.”
92.
Tr.
While plaintiff’s employer has considered terminating her
employment, he manages to “get by” and considers plaintiff’s
“positive attitude [to be] a valuable asset to the office.”
92.
Tr.
Thus, plaintiff’s complaints are supported by her treating
physician and her current employer.
In sum, I find that the ALJ erred in rejecting Dr. Losli’s
opinion and plaintiff’s testimony. Further, if Dr. Losli’s opinion
and plaintiff’s testimony are credited, no outstanding issues
remain and an award of benefits is appropriate.
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- OPINION AND ORDER
Tr. 700; Vasquez
v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009).
CONCLUSION
The ALJ’s finding that plaintiff is not disabled within the
meaning of the Act is not supported by substantial evidence in the
record.
Accordingly, the decision of the Commissioner is REVERSED
and REMANDED for an award of benefits.
IT IS SO ORDERED.
Dated this 11th day of August, 2011.
/s/ Ann Aiken
Ann Aiken
United States District Judge
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