Kipps v. Commissioner Social Security Administration
Filing
16
OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 12/20/2012 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
COLETTE D. KIPPS,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
PHIL BROCKETT
P.O. Box 96
Bend, Oregon 97709-0096
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97204-2902
JEFFREY R. MCCLAIN
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104-2113
Attorneys for Defendant
1 - OPINION AND ORDER
6:12-cv-00043-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff, Colette D. Kipps, brings this action for judicial
review of a final decision of the Commissioner of Social Security
(the
Commissioner)
denying
her
applications
for
disability
insurance benefits (DIB) under Title II of the Social Security Act
(the
Act)
and
Supplemental
Security
benefits under Title XVI of the Act.
1383f.
(SSI)
42 U.S.C.
§§
disability
401-434, 1381-
This court has jurisdiction pursuant to 42 U.S.C.
and 1383(c) (3).
final
Income
For the reasons set forth below,
decision
of
the
Commissioner
and
§§
405(g)
I REVERSE the
REMAND
for
further
proceedings consistent with this opinion.
PROCEDURAL BACKGROUND
On October 23, 2008, plaintiff protectively filed applications
for DIB and SSI, alleging disability due to arthritis and mental
impairments.
Tr.
170.
The
Commissioner
applications initially and upon rehearing.
Administrative Law Judge
hearing,
plaintiff
Additionally,
and
Expert
was
(VE)
plaintiff's
A hearing before an
(ALJ) was held on May 4,
testified
Vocational
denied
2011.
represented
by
Lynn
was
Jones
At the
counsel.
present
throughout the hearing and testified.
On July 11, 2011, the ALJ issued a decision finding plaintiff
not disabled within the meaning of the Act.
request for review to the Appeals Council.
Plaintiff filed a
Plaintiff submitted
additional evidence for the Council's consideration.
2 - OPINION AND ORDER
The Appeals
Council considered the evidence but determined that it did not
provide a basis for changing the ALJ's decision, and accordingly
denied review.
Plaintiff timely filed a petition for review in
this court.
FACTUAL BACKGROUND
Born on December 1, 1959, plaintiff was 48 years old on the
alleged onset date of disability and 51 years old on the date of
the hearing.
past
Tr.
relevant
188.
work
Plaintiff has a high school diploma and
as
a
survey
detailer/cleaner II, housekeeper,
30,
174.
Plaintiff
alleges
worker,
retail
clerk,
auto
janitor, and farm worker.
her
various
disabilities
Tr.
became
disabling on June 15, 2008.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
sequential
process for determining whether a person is disabled.
Yuckert,
482
U.S.
137,
404.1520(a) (4) (i)-(v),
Cir. 1999).
show that
(1987);
416.920(a) (4) (i)-(v).
potentially dispositive.
Steps One through Four.
140-42
20
Bowen v.
C.F.R.
Each
§§
step
is
The claimant bears the burden of proof at
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th
The burden shifts to the Commissioner at Step Five to
a
significant
number of
jobs exist
economy that the claimant can perform.
141-42; Tackett, 180 F.3d at 1098.
3 - OPINION AND ORDER
in the national
See Yuckert,
482 U.S. at
At Step One, the ALJ determined that plaintiff has not engaged
in substantial gainful activity since the alleged onset ,date of
June
15,
See
2008.
416.920 (a) (4) (i),
20
C.F.R.
§§
404.1520(a){4)(1),
(b),
(b); Tr. 20.
At Step Two, the ALJ determined that plaintiff's degenerative
disc disease of the cervical and lumbar spine, history of fractures
in her feet bilaterally, history of left distal radius fracture,
and generalized osteoarthritis were severe impairments.
See 20
C.F.R. §§ 404.1520 (c), 416.920 (c); Tr. 20.
At Step Three, the ALJ found that plaintiff did not have an
impairment or combination of impairments that met or medically
equaled any listed
impairment.
See
20
C.F.R.
§§
404.1520(d),
404.1525, 404.1526, 416.920{d), 416.925, 416.926; Tr. 22.
The ALJ found
that
plaintiff
had the
residual
functional
capacity (RFC) to perform the full range of light work as defined
in 20 C.F.R. §§ 404.1567(b) and 416.967{b).
Tr. 22.
At Step Four, the ALJ determined that plaintiff was capable of
performing past relevant work as a survey worker, retail clerk, and
housekeeper.
See 20 C.F.R. §§ 404.1565, 416.965; Tr. 30.
Accordingly,
the ALJ found that plaintiff was not disabled
within the meaning of the Act.
Ill
Ill
Ill
4 - OPINION AND ORDER
ISSUE ON REVIEW
Plaintiff's only assignment of error is that the opinions
submitted by one of her treating physicians to the Appeals Council
require
the
ALJ to
Two
and
consider it in the remaining steps of the sequential analysis.
The
Commissioner
include
her
that
contends
fibromyalgia
remand
is
at
Step
because
unnecessary
substantial evidence supports the ALJ' s determination even when the
opinions submitted to the Appeals Council are considered.
STANDARD OF REVIEW
The
court must
affirm the
Commissioner's
decision
if the
Commissioner applied proper legal standards and the findings are
42
supported by substantial evidence in the record.
405(g); Andrews v.
Shalala,
53 F.3d 1035,
1039
u.s.c.
(9th Cir.
§
1995).
"Substantial evidence means 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."
court must
weigh all
of
the
evidence,
whether it
detracts from the Commissioner's decision.
807 F.2d 771, 772 (9th Cir. 1986).
to
more
than
one
rational
decision must be upheld.
supports
The
or
Martinez v. Heckler,
If the evidence is susceptible
interpretation,
Andrews,
Id.
the
Commissioner's
53 F.3d at 1039-40.
I f the
evidence supports the Commissioner's conclusion, the Commissioner
must be affirmed;
"the court may not substitute its judgment for
5 - OPINION AND ORDER
that of the Commissioner."
Edlund v. Massanari,
253 F.3d 1152,
1156 (9th Cir. 2001).
DISCUSSION
I.
Plaintiff's Fibromyalgia Limitations at Step Two
The claimant bears the burden of proving that he has a severe
medically determinable impairment at Step Two.
Chater, 80 F. 3d 1273, 1289-90 (9th Cir. 1996).
See Smolen v.
Step Two is a de
minimis screening device to dispose of groundless claims.
1290.
Id. at
Once the ALJ has found an impairment medically determinable
it must be considered in the rest of the sequential evaluation.
See
20
C. F.R.
416.945 (a) (2).
Where
the
ALJ
medically determinable impairment at Step Two,
fails
to
list
a
but nonetheless
considers the limitations posed by the impairment in the RFC, any
error at Step Two is harmless.
Lewis v. Astrue, 498 F.3d 909, 911
(9th Cir. 2007).
The ALJ did not list fibromyalgia as a medically determinable
impairment at Step Two because it had not been diagnosed at the
time of the hearing.
Tr. 23-24.
On September 20, 2011, two months
after the ALJ's adverse decision and five months after the hearing,
plaintiff submitted evidence to the Appeals Council that included
a diagnosis of fibromyalgia from Dr. Martin Smart, M.D.
Tr. 554-
69.
The
additional
evidence
consisted
of
plaintiff's
Oregon
Medical Marijuana Program Registry Identification Card, pharmacy
6 - OPINION AND ORDER
records from Rite Aid pharmacy, and two opinions dated September
19, 2011 from Dr. Smart, a treating physician.
Tr. 540-69.
The
opinions consisted of an Arthritis Impairment Questionnaire and a
Fibromyalgia
Impairment
Questionnaire.
Tr.
552-69.
In
the
Fibromyalgia Impairment Questionnaire, Dr. Smart acknowledged that
he
first
treated plaintiff on April
stated that
2008.
1
her fibromyalgia
Tr. 564, 569.
plaintiff
met
fibromyalgia.
the
Tr.
15,
2009,
but nonetheless
symptoms date back to January of
In the opinion, Dr. Smart checked a box that
American
564.
Rheumatological
Dr.
Smart
opined
criteria
that
for
plaintiff's
fibromyalgia causes her fatigue and pain in the neck, thighs, hips,
lumbar spine, and cervical spine.
Tr. 565.
Dr. Smart stated that
his findings are supported by x-rays of the cervical and lumbar
spine.
Tr. 565.
As to plaintiff's functional limitations,
in the September
2011 opinions Dr. Smart indicated he thought plaintiff would only
be able to sit for one to two hours during a normal workday with
frequent breaks, and stand or walk for two to three hours, but only
for fifteen minutes at a time.
Tr. 567.
Dr. Smart further stated
that plaintiff could lift zero to five pounds, and carry five to
ten pounds,
occasionally.
Dr.
Smart opined that plaintiff was
incapable of even low stress jobs due to her mental limitations.
1
I note that Dr. Smart's treatment notes do not appear to
mention fibromyalgia until August 2, 2010. Tr. 525.
7 - OPINION AND ORDER
Tr. 567-68.
work
more
Finally, Dr. Smart concluded that plaintiff would miss
than
limitations.
three
Tr.
times
568.
per
month
due
to
her
functional
The Appeals Council determined that the
additional evidence did not provide a basis for changing the ALJ's
decision and denied review.
When the Appeals Council declines review, the ALJ's decision
becomes the final decision of the Commissioner.
of Soc. Sec. Admin.,
659 F.3d 1228, 1231
Taylor v. Comrn'r
(9th Cir.
2011).
This
court must consider the record as a whole, including the evidence
submitted for the first time to the Appeals Council, in determining
whether the ALJ's decision is supported by substantial evidence.
Brewes v. Comrn'r Soc. Sec. Admin., 682 F.3d 1157, 1162-63 (9th Cir.
2012)
0
Plaintiff
argues
that
the
ALJ's
decision
is
no
longer
supported by substantial evidence in light of her fibromyalgia
diagnosis.
The Commissioner contends that remand is unnecessary,
as the ALJ's decision remains supported by substantial evidence
because he considered substantially equivalent symptoms and alleged
limitations as those supporting plaintiff's fibromyalgia diagnosis
in the RFC.
In his decision, the ALJ considered and rejected Dr.
Smart's earlier opinions because they were inconsistent with prior
objective
evidence,
subjective complaints.
and
relied
Tr. 27.
extensively
upon
plaintiff's
Notably, plaintiff does not object
to the ALJ's rejection of Dr. Smart's earlier opinions.
8 - OPINION AND ORDER
The ALJ made an adverse credibility determination to which
plaintiff
also
does
not
object.
Tr.
29.
The
ALJ
rejected
plaintiff's testimony because there was a significant secondary
gain
component
to
plaintiff's
reporting,
several
medical
professionals expressed doubts about the accuracy of plaintiff's
reporting, plaintiff's hobbies and activities of daily living were
inconsistent
with
at
least
some
of
her
alleged
symptoms,
and
plaintiff's reason for leaving the physically demanding job that
immediately preceded her alleged onset
date
of disability was
unrelated to any physical or mental limitations.
I
conclude,
albeit
reluctantly,
that
the
Tr. 29.
ALJ' s
Step
Two
findings are not supported by substantial evidence in light of Dr.
Smart's September 19,
plaintiff
meets
the
2011 opinions.
American
Dr.
Smart's opinion that
Rheumatological
criteria
for
fibromyalgia is enough to satisfy the de minimis level necessary at
Step Two.
See Smolen, 80 F.3d at 1290.
While I acknowledge there seems to be some overlap in the
ALJ' s discussion of plaintiff's osteoarthritis and fibromyalgia
symptoms
as
described
by
Dr.
Smart,
Compare Tr. 554-61 with Tr. 564-69.
they
are
not
identical.
Nor is it possible for this
court to determine from the record whether the pain associated with
plaintiff's generalized osteoarthritis is the same as the pain
associated with her fibromyalgia,
parts of
the body.
9 - OPINION AND ORDER
Therefore,
even when located in the same
it
is
not
clear that
the ALJ
considered the limitations associated with plaintiff's fibromyalgia
in the RFC. 2
See Lewis, 498 F.3d at 911.
Even if by no fault of
the ALJ, in light of Dr. Smart's new opinion indicating increased
physical limitations and a new diagnosis, I conclude that the ALJ's
Step Two finding is not supported by substantial evidence.
II.
Remand
On remand, the ALJ shall consider the evidence submitted to
the Appeals Council and
issue a
new decision.
The ALJ shall
incorporate plaintiff's medically determinable fibromyalgia into
the sequential analysis at Step Two.
what impact,
if any,
the evidence and opinions submitted to the
Appeals Council have on the
evaluation.
The ALJ shall then consider
remaining steps of the
If the ALJ chooses to discredit
sequential
the evidence and
opinions, he must provide legally sufficient reasons for doing so.
Ill
Ill
Ill
Ill
Ill
Ill
2
It is most unfortunate that the ALJ did not have the
benefit of Dr. Smart's opinions in the first instance; Dr.
Smart's opinions do not appear to be based on any new objective
testing or records that could not have been submitted to the ALJ
prior to the decision.
10 - OPINION AND ORDER
CONCLUSION
Based
on
the
foregoing,
the
Commissioner's
decision
is
REVERSED, and this case is REMANDED pursuant to sentence four of 42
U.S.C.
§
405(g) for further administrative proceedings consistent
with this opinion.
IT IS SO ORDERED.
DATED this
Z 0 day of December, 2012.
Malcolm F. Marsh
United States District Judge
11 - OPINION AND ORDER
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