Boyd v. Commissioner, Social Security Administration
Filing
20
Opinion and Order - This court concludes that the decision of the Commissioner denying Bimla W. Boyd's applications for SSI and DWB must be REVERSED andREMANDED for further proceedings. Signed on 9/24/2013 by Judge Ancer L. Haggerty. (ecp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
BIMLA W. BOYD,
Plaintiff,
Case No. 6:12-cv-01511-HA
OPINION AND ORDER
v.
COMMISSIONER SOCIAL
SECURITY ADMINISTRATION,
Defendant.
HAGGERTY, District Judge:
Plaintiff Bimla W. Boyd seeks judicial review of a final decision by the Commissioner of
the Social Security Administration denying her applications for Supplemental Security Income
(SSI) and Disabled Widow's Benefits (DWB). This comi has jurisdiction to review the
Commissioner's decision under 42 U.S. C. § 405(g). After reviewing the record, this court
concludes that the Commissioner's decision must be REVERSED and REMANDED for further
proceedings.
OPINION AND ORDER- 1
STANDARDS
To establish eligibility for benefits, a plaintiff has the burden of proving an inability to
engage in any substantial gainful activity "by reason of any medically determinable physical or
mental impahment" that has lasted or can be expected to last for a continuous period of not less
than twelve months. 42 U.S. C.§ 423(d)(l)(A). The Commissioner has established a five-step
sequential evaluation process for determining if a person is eligible for benefits. 20 C.F.R. §§
404.1520, 416.920. The claimant bears the burden of proof at steps one through four to establish
his or her disability.
At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist
in a significant number in the national economy that the claimant can perform given his or her
residual functional capacity (RFC), age, education, and work experience. Gomez v. Chafer, 74
F.3d 967, 970 (9th Cir. 1996). If the Commissioner cannot meet this burden, the claimant is
considered disabled for purposes of awarding benefits. 20 C.F.R. §§ 404.1520(£)(1 ), 416.920(a).
On the other hand, if the Commissioner can meet its burden, the claimant is deemed to be not
disabled for purposes of determining benefits eligibility. ld.
The Commissioner's decision must be affirmed if it is based on the proper legal standards
and its findings are supp01ied by substantial evidence in the record as a whole. 42 U.S. C. §
405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999); Andrews v. Shalala, 53 F.3d 1035,
1039 (9th Cir. 1995). Substantial evidence is more than a scintilla but less than a preponderance;
it is "such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Sandgathe v. Chafer, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).
When reviewing the decision, the couti must weigh all of the evidence, whether it
OPINION AND ORDER- 2
suppotis or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The
Commissioner, not the reviewing comi, must resolve conflicts in the evidence, and the
Commissioner's decision must be upheld in instances where the evidence suppmis either
outcome. Reddickv. Chafer, 157 F.3d 715,720-21 (9th Cir. 1998). If, however, the
Commissioner did not apply the proper legal standards in weighing the evidence and making the
decision, the decision must be set aside. Id. at 720.
BACKGROUND
Plaintiff was born on October 1, 1956. She previously received disability benefits
beginning in 1995. She was originally granted benefits secondary to an affective disorder and
had been recommended for a disability review as she was expected to improve. Tr. 22. 1 In 2002
her benefits were tenninated due to her incarceration. She protectively filed the current
applications for benefits on February 11, 2008, alleging a disability onset date of October 1, 1995
based on a number of impairments, including: bipolar disorder, depression, panic disorder,
personality disorder, fibromyalgia, lumbar degenerative disc disease, bilateral knee degenerative
disc disease, peripheral neuropathy, status post gastric bypass, obesity, and diabetes. Her
applications were denied initially and upon reconsideration.
An Administrative Law Judge (ALJ) conducted a hearing on April 8, 2010. The ALJ
heard testimony from plaintiff, who was represented by counsel; plaintiffs friend and caretaker;
and an independent vocational expert (VE). On September 30, 2010, the ALJ issued a decision
finding that plaintiff is not disabled within the meaning of the Social Security Act. First, the ALJ
found that plaintiff r:net the non-disability requirements for DWB through February 28, 2011. Tr.
1
Tr. refers to the Transcript of the Administrative Record.
OPINION AL'ID ORDER- 3
18, Findings 1-2. Second, the ALJ concluded that plaintiff has not engaged in SGA since her
alleged onset date. Tr. 18, Fi!Jding 3. Third, the ALJ found that plaintiff suffers from the
following severe impairments: depression, panic disorder NOS, personality disorder, mild lumbar
degenerative disc disease, mild bilateral knee degenerative joint disease, fibromyalgia, status post
gastric bypass surgery, obesity, bipolar disorder, rule-out undifferentiated somatof01m disorder,
and diabetes mellitus II with history of peripheral neuropathy. Tr. 18, Finding 4. However, the
ALJ concluded that those impairments did not meet or equal a listed impairment in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Tr. 19, Finding 5. The ALJ concluded that plaintiff has the
RFC to lift and carry up to twenty pounds occasionally and up to ten pounds frequently, sit for
six hours per eight-hour work day, and stand and/or walk for up to four hours in an eight-hour
work day. Tr. 20, Finding 6. Additionally, the ALJ found that plaintiff has certain postural
limitations, should avoid work place hazards such as heights and moving machinery, and is
limited to performing simple, repetitive, routine tasks that do not involve any more than
occasional contact with the public or co-workers. ld. Based on plaintiff's RFC and testimony
from the VE, the ALJ detetmined that plaintiff is able to perform work existing in significant
numbers in the national economy. Tr. 27, Finding 11. Therefore, the ALJ concluded that
plaintiff is not disabled.
DISCUSSION
Plaintiff contends that (1) the ALJ ened in rejecting the opinions of Dr. Mark
Dukeminier, M.D. and Dr. DeWayde Peny, M.D.; (2) the ALJ erred in evaluating plaintiff's
mental impairments; (3) in the alternative, post-hearing treatment records submitted to the
appeals council support plaintiff's claims of disabling mental impahments; and (4) the ALJ failed
OPINION AND ORDER- 4
to prove that plaintiff retains the ability to perform work in the national economy.
(1) Physician's Opinions
An ALJ may reject the contradicted opinion of a treating or examining physician by
stating specific and legitimate reasons, and may reject an uncontradicted opinion from a treating
or examining physician by providing clear and convincing reasons, supported by substantial
evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ must
give weight not only to the treating physician's clinical findings and interpretation oftest results,
but also to the doctor's subjective judgments. Lester v. Chafer, 81 F.3d 821, 832-33 (9th Cir.
1995) (citation omitted).
The opinion of a non-examining physician alone cannot constitute substantial evidence
that justifies the rejection of the opinion of a treating physician. !d. at 831 (citations omitted).
However, the ALJ may reject a treating physician's opinion in cases in which objective test
results, reports from other physicians, testimony from the claimant, or other evidence conflicts
with the opinion. lvfagallanes v. Bowen, 881 F.2d 747, 751-52 (9th Cir. 1989); see also
Burkhart v. Bowen, 856 F.2d 1335, 1339-40 (9th Cir. 1988) (holding that an ALJ may reject a
treating physician's opinion that is unsupported by medical findings, personal observations, or
objective testing). A physician's disability opinion may be disregarded if it is premised upon the
claimant's subjective symptoms and limitations that were properly discredited. lvforgan v.
Comm'r ofSoc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citations omitted).
In this matter, plaintiff contends that the ALJ erred in rejecting the opinions of treating
physicians Drs. Dukeminier and Peny. Doctor Dukeminier wrote a letter opining that plaintiff
was unable to engage in full-time employment as a result of her chronic pain syndrome and
OPINION AND ORDER- 5
multiple mental health diagnoses. The ALJ rejected his opinion because of the sh011 duration of
his treatment relationship with plaintiff, because his opinion was based on plaintiff's subjective
complaints (which were properly discredited) and was inconsistent with clinical findings, and
because Dr. Dukeminier did not conduct a mental health evaluation.
Because it appears Dr. Dukeminier's opinion is contradicted, the ALI need only provide
specific and legitimate reasons for rejecting his opinion. Nevertheless, this court finds that the
ALI provided clear and convincing reasons for rejecting Dr. Dukeminier's opinion. In pmticular,
the ALI rejected his opinion because it was contradicted by the objective medical evidence, was
unsupported by clinical conoboration, and because he did not conduct a mental health
evaluation. In fact, the mental health assessment referenced in Dr. Dukeminier's disability letter
(and upon which he apparently relied) was conducted by a Qualified Mental Health Professional
(QMHP), was based entirely on plaintiff's subjective complaints, and was unsupported by any
objective testing. The QMHP's assessment was properly rejected by the ALI as was Dr.
Dukeminier's opinion. While the ALI provided valid reasons for rejecting Dr. Dukeminier's
opinion, he also provided invalid reasons for doing so. In particular, his rejection of Dr.
Dukeminier's opinion on the basis that it relied on plaintiff's subjective complaints was improper
as Dr. Dukeminier explicitly noted that plaintiff was an unreliable historian. As such, it is
umeasonable to presume that Dr. Dukeminier's opinion was based on what he viewed as
umeliable subjective complaints. However, because the ALI also provided valid reasons for
rejecting Dr. Dukeminier's opinion, this error was hannless.
The ALI gave little weight to Dr. Perry's consultative examination report in which he
opined that plaintiff could be expected to stand and walk for up to two hours in an eight-hour
OPINION AND ORDER- 6
work day and sit for up to four hours in an eight-hour work day. Tr. 1475-76. The ALJ rejected
Dr. Peny's opinion because it was based on subjective complaints, because plaintiff did not
cooperate during the examination, because plaintiff was able to sit comfortably during the thirtyfive minute examination and was able to get on and off the examination table without difficulty.
However, the ALJ completely ignored Dr. Perry's objective findings. The ALJ also ignored the
fact that his conclusions regarding her functional limitations were "based on both subjective and
objective findings" and that although not prescribed, the use of a cane by plaintiff "is medically
necessmy based on findings." Tr. 1475-76. In light of these findings, and the fact that Dr. Perry
was able to conduct objective testing despite plaintiffs reluctance, the ALI's reasons for
discounting his opinion were largely irrelevant.
(2) Plaintiff's Mental Impairments
Plaintiff contends that the ALJ erred in evaluating her mental impairments by failing to
include limitations in her RFC consistent with the recommendations of Dorothy Anderson, Ph.D.
and because plaintiff interprets the medical evidence related to her incarceration differently than
the ALJ. Plaintiff contends that the ALJ should have included Dr. Anderson's recommendation
that she receive "suppmiive lay supervision (not overly harsh, highly critical)." Tr. 945. As
defendant correctly responds, the psychologist's recommendation regarding "suppmiive"
supervision does not constitute a limitation that must be incorporated into the RFC and the ALJ
need not discuss every piece of evidence in the record. Valentine v. Comm'r ofSoc. Sec. Admin.,
574 F.3d 691-92 (9th Cir. 2009). Plaintiffs altemative position regarding the medical evidence
related to plaintiffs incarceration is just that, an altemative interpretation, and cannot fmm the
basis for this couti to overturn the ALJ's decision.
OPINION AND ORDER- 7
Plaintiffs remaining arguments, that post-hearing evidence regarding plaintiffs alleged
Factitious Disorder explains the distortion and exaggeration in plaintiffs subjective complaints
and that the ALJ failed to cany his burden at Step Five will not be discussed at length. The first
does not establish that plaintiff does or does not retain the ability to perform work in the national
economy and the second is based on the premise that opinions of Drs. Dukeminier and Peny be
credited as true. As discussed above, the ALJ properly rejected the opinion of Dr. Dukeminier
and although the ALJ ened in rejecting Dr. Perry's opinion, the remainder of the ALJ's
conclusions are supported by substantial evidence and Dr. Peny's opinion is contradicted.
Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). Accordingly, the comi finds that the
matter should be remanded in order to allow the ALJ to specifically address Dr. Perry's objective
findings to determine whether plaintiff is disabled. Upon remand, the ALJ may also consider any
new evidence submitted by plaintiff regarding her alleged impairments, including her Factitious
Disorder.
A remand for further proceedings is unnecessary if the record is fully developed, and it is
clear from the record that the ALJ would be required to award benefits. Holohan v. ,1,/assanari,
246 F.3d 1195, 1210 (9th Cir. 2001). The decision whether to remand for futiher proceedings
turns upon the likely utility of such proceedings. Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir.
2000). In this matter, the comi concludes that a remand is appropriate in order to allow an ALJ
to consider Dr. Peny's objective findings as well as new evidence regarding plaintiffs alleged
impairments.
/Ill
Ill/
OPINION AND ORDER- 8
CONCLUSION
For the reasons provided, this court concludes that the decision of the Commissioner
denying Bimla W. Boyd's applications for SSI and DWB must be REVERSED and
REMAt'IDED for further proceedings.
IT IS SO ORDERED.
DATED this,;2._tf day of September, 2013.
OPINION AND ORDER- 9
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