Eyers v. Commissioner 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 42 U.S.C. 405(g) for further administrative proceedings consistent with this Opinion and Order. Signed on 03/25/2014 by Judge Anna J. Brown. See attached Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KATHLEEN FAYE EYERS,
Plaintiff,
6:12-cv-02031-BR
OPINION AND ORDER
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.
KATHRYN TASSINARI
ROBERT A BARON
Harder, Wells, Baron & Manning, P.C.
474 Willamette
Suite 200
Eugene, OR 97401
(541) 686-1969
Attorneys for Plaintiff
1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case. No
further action need be taken to continue this case by reason of
the last sentence of section 205(g) of the Social Security Act,
42 U.S.C. § 405.
1 - OPINION AND ORDER
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
DAVID MORADO
Regional Chief Counsel
GERALD J. HILL
LARS J. NELSON
Assistant Regional Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2139
(206) 615-2909
Attorneys for Defendant
BROWN, Judge.
Plaintiff Kathleen Faye Eyers seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act.
This Court has jurisdiction to review the Commissioner's
decision pursuant to 42 U.S.C. § 405(g).
Following a thorough
review of the record, the Court REVERSES the Commissioner's final
decision and REMANDS this matter pursuant to sentence four of 42
U.S.C. § 405(g) for further administrative proceedings.
2 - OPINION AND ORDER
ADMINISTRATIVE HISTORY
Plaintiff filed her application for DIB on June 23, 2009.
Tr. 11.
The application was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on June 7, 2011.
Tr. 11.
represented by an attorney.
At the hearing Plaintiff was
Plaintiff testified at the hearing.
Tr. 11.
The ALJ issued a decision on July 26, 2011, in which he
found Plaintiff was not disabled and, therefore, is not entitled
to benefits.
Tr. 17.
That decision became the final decision of
the Commissioner on September 20, 2012, when the Appeals Council
denied Plaintiff's request for review.
Tr. 2.
BACKGROUND
Plaintiff was born on June 29, 1961, and was 49 years old at
the time of the hearing.
years of college.
June 30, 2005.
Tr. 16, 43.
Tr. 168.
Plaintiff completed two
Plaintiff’s date last insured was
Tr. 170.
Plaintiff alleges disability since December 30, 1997, due to
migraine headaches.
Tr. 145-46.
Except when 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. 13-17.
3 - OPINION AND ORDER
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 her
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.”
§ 423(d)(1)(A).
42 U.S.C.
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.
at 690).
4 - OPINION AND ORDER
Id. (citing Valentine, 574 F.3d
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).
Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.
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
if they are supported by inferences reasonably drawn from the
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).
record.
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
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 20 C.F.R. § 404.1520.
Each step is potentially
dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.
20 C.F.R. § 404.1520(a)(4)(I).
5 - OPINION AND ORDER
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).
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
6 - OPINION AND ORDER
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 she 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
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 December 30, 1997, her
alleged onset date, through June 30, 2005, her date last insured.
Tr. 13.
At Step Two the ALJ found Plaintiff had the medically7 - OPINION AND ORDER
determinable impairments of PTSD and “complaints of headaches”
through the last date insured.2
Tr. 13.
The ALJ concluded
these impairments, however, were not severe, and, accordingly,
Plaintiff was “not under a disability . . . at any time from
. . . the alleged onset date, through
insured.”
Tr. 16.
. . . the date last
Because of his finding at Step Two, the ALJ
did not proceed with the remaining steps of the sequential
analysis.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
rejected the opinion of examining psychologist Judith Eckstein,
Ph.D.; (2) improperly concluded at Step Two that Plaintiff did
not have any severe impairments; and (3) improperly discredited
Plaintiff’s testimony.
I.
Medical opinion testimony of Dr. Eckstein
Plaintiff contends the ALJ erred when he did not give clear
and convincing reasons for rejecting the opinion of examining
psychologist, Dr. Eckstein.
An ALJ may reject an examining or treating physician's
opinion when it is inconsistent with the opinions of other
2
The Court notes the ALJ based his findings as to these
impairments on the medical diagnoses of Plaintiff that are in the
record rather than the impairments listed in her applications.
See Tr. 13, 145.
8 - OPINION AND ORDER
treating or examining physicians if the ALJ makes “findings
setting forth specific, legitimate reasons for doing so that are
based on substantial evidence in the record.”
Thomas v.
Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(quoting Magallanes v.
Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).
When the medical
opinion of an examining or treating physician is uncontroverted,
however, the ALJ must give “clear and convincing reasons” for
rejecting it.
Thomas, 278 F.3d at 957.
See also Lester v.
Chater, 81 F.3d 821, 830-32 (9th Cir. 1995).
Generally the more
consistent an opinion is with the record as a whole, the more
weight an opinion should be given.
20 C.F.R. § 416.927(c)(4).
Medical sources are divided into two categories:
"acceptable" and "not acceptable.”
20 C.F.R. § 416.902.
Acceptable medical sources include licensed physicians and
psychologists.
20 C.F.R. § 416.902.
Medical sources classified
as "not acceptable" include, but are not limited to, nurse
practitioners, therapists, licensed clinical social workers, and
chiropractors.
SSR 06-03p, at *2.
The Social Security
Administration notes:
With the growth of managed health care in recent years
and the emphasis on containing medical costs, medical
sources who are not acceptable medical sources, such as
nurse practitioners, physician assistants, and licensed
clinical social workers, have increasingly assumed a
greater percentage of the treatment and evaluation
functions previously handled primarily by physicians
and psychologists. Opinions from these medical
sources, who are not technically deemed acceptable
medical sources under our rules, are important and
9 - OPINION AND ORDER
should be evaluated on key issues such as impairment
severity and functional effects, along with the other
relevant evidence in the file.
SSR 06-03p, at *3.
Factors the ALJ should consider when determining the weight
to give an opinion from those "important" sources include the
length of time the source has known the claimant and the number
of times and frequency that the source has seen the claimant, the
consistency of the source's opinion with other evidence in the
record, the relevance of the source's opinion, the quality of the
source's explanation of his opinion, and the source's training
and expertise.
SSR 06-03p, at *4.
On the basis of the
particular facts and the above factors, the ALJ may assign a notacceptable medical source either greater or lesser weight than
that of an acceptable medical source.
SSR 06-03p, at *5-6.
The
ALJ, however, must explain the weight assigned to such sources to
the extent that a claimant or subsequent reviewer may follow the
ALJ's reasoning.
SSR 06-03p, at *6.
Dr. Eckstein performed a Comprehensive Psychological
Evaluation of Plaintiff on May 16, 2011, at the request of
Plaintiff’s attorney.
Tr. 640.
Dr. Eckstein gave Plaintiff Axis
I diagnoses of PTSD and dysthymia, Axis II diagnoses of
obsessive-compulsive and paranoid traits, and Axis III diagnoses
of migraine headaches and asthma.
Tr. 647.
Dr. Eckstein
concluded Plaintiff was markedly limited in her ability to
understand and to remember detailed instructions; to carry out
10- OPINION AND ORDER
detailed instructions; to maintain attention and concentration
for extended periods; to perform activities within a schedule, to
maintain regular attendance, and to be punctual within customary
tolerance; and to accept instructions and to respond
appropriately to criticism from supervisors.
Tr. 648-49.
Dr. Eckstein noted although Plaintiff had “been through some
counseling, she still appears symptomatic with ongoing nightmares
and panic attacks as well as remaining hypervigilant and
distrustful of others.”
Tr. 647.
Dr. Esptein opined because of
Plaintiff’s symptoms would cause a strain in “working
relationships,” and “it is unlikely [that she] could work a
regular schedule because of her frequent migraines.”
Tr. 647.
Dr. Epstein recommended further counseling to resolve Plaintiff’s
past trauma.
Tr. 647.
In assessing the severity of Plaintiff’s alleged mental
impairments, the ALJ considered the opinion of mental-health
specialist, Jane Docken, M.A., L.P.C., who the ALJ noted is “not
an acceptable medical source for the purpose of diagnosis.”
Tr. 16.
Counselor Docken treated Plaintiff for mental-health
issues for approximately one year from November 2003 through
November 2004.
Tr. 587-635.
In November 2003 Counselor Docken
gave Plaintiff an Axis I diagnosis of adjustment disorder and
11- OPINION AND ORDER
assigned Plaintiff a GAF3 of 57.
Tr.
594.
Plaintiff’s symptoms
included fear, hypervigilance, nervousness, irritability,
sleeplessness, sadness, remorse, guilt, self-criticism, and
flashbacks.
Tr. 14, 595.
As noted by the ALJ, Counselor Docken
also reported Plaintiff’s prognosis, however, was good; that she
was living in a safe environment at that time; and that she was
“very bright.”
Tr. 595.
When Plaintiff was discharged from her
treatment program in November 2004, Counselor Docken opined
Plaintiff was “employable” and assigned her a GAF of 65.
Tr. 636.
After considering Counselor Docken’s opinion and other
evidence in the record of Plaintiff’s functional activities, the
ALJ concluded Plaintiff’s alleged mental impairments were not
severe.
Tr. 16.
The ALJ, however, did not address Dr. Eckstein’s opinion and
did not provide any reasons for not considering Dr. Eckstein’s
opinion.
As noted, although an ALJ may assign a not-acceptable
medical source either greater or lesser weight than that of an
acceptable medical source, the ALJ must still provide reasons for
the weight assigned to such sources to allow a claimant or
subsequent reviewer to follow the ALJ's reasoning.
at *5-6.
SSR 06-03p,
Here the ALJ failed to do so.
3
A Global Assessment of Functioning (GAF) score rates a
person’s psychological, social, and occupational functioning on a
hypothetical continuum of mental-health illness. See DSM-1V at
34.
12- OPINION AND ORDER
The Court notes the Commissioner argues any error caused by
the ALJ’s failure to address Dr. Eckstein’s opinion specifically
is harmless because Dr. Eckstein’s examination of Plaintiff
occurred after Plaintiff’s date last insured.
Although this may
be true, it does not mean Dr. Eckstein’s opinion is not relevant.
In fact, contrary to the ALJ’s conclusion, Dr. Eckstein opined
Plaintiff’s prior treatment for mental-health issues in 2003 and
2004 were not entirely successful in treating her prior trauma,
and Plaintiff’s condition would still affect her working
relationships.
Furthermore, Dr. Eckstein recommended Plaintiff
undergo further counseling.
Tr. 647.
The Court concludes on this record that the ALJ erred when
he failed to address Dr. Eckstein’s opinion because the ALJ did
not provide legally sufficient reasons supported by the record
for doing so.
II.
Step Two
As noted, 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.
at 1052.
See also 20 C.F.R. § 404.1520(a)(4)(ii).
Stout, 454 F.3d
A severe
impairment “significantly limits” a claimant's “physical or
mental ability to do basic work activities.”
§ 404.1521(a).
20 C.F.R.
See also Ukolov, 420 F.3d at 1003.
The ability
to do basic work activities is defined as “the abilities and
13- OPINION AND ORDER
aptitudes necessary to do most jobs.”
(b).
20 C.F.R. §§ 404.1521(a),
Such abilities and aptitudes include walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, handling,
seeing, hearing, speaking; understanding, carrying out, and
remembering simple instructions; using judgment; responding
appropriately to supervision, co-workers, and usual work
situations; and dealing with changes in a routine work setting.
Id.
The Step Two threshold is low:
[A]n impairment can be considered as not severe
only if it is a slight abnormality which has such
a minimal effect on the individual that it would
not be expected to interfere with the individual's
ability to work . . . . [T]he severity regulation
is to do no more than allow the Secretary to deny
benefits summarily to those applicants with
impairments of a minimal nature which could never
prevent a person from working.
SSR 85-28, at *2 (Nov. 30, 1984)(internal quotations omitted).
As noted, the ALJ found Plaintiff has the medicallydeterminable impairments of PTSD and “complaints of headaches,”
but the ALJ concluded these alleged impairments were not severe.
Tr. 13-14.
Plaintiff, however, asserts the ALJ erred at Step Two
when he did not find Plaintiff's alleged impairments of PTSD,
depression, anxiety, and migraine headaches were severe.
The ALJ noted Plaintiff’s testimony regarding her migraines,
but he concluded the evidence did not establish that Plaintiff
had mental limitations.
14- OPINION AND ORDER
Tr. 22.
The ALJ pointed out that
“Plaintiff’s complaints of headache symptoms are not well
documented . . . as of the date last insured.”
Tr. 14.
For
example, although Plaintiff sought care on numerous occasions
between her alleged onset date and date last insured, she seldom,
if ever, mentioned headache symptoms.
The ALJ concluded,
therefore, that if Plaintiff’s “headache symptoms had truly been
debilitating, one would reasonably expect her to have discussed
them with a medical treatment provider” and “the fact she did not
do so suggests that her symptoms were not as disabling as she
alleges.”
Tr. 15.
The Court concludes the ALJ provided
sufficient reasons supported by substantial evidence in the
record for concluding Plaintiff’s alleged impairment of migraine
headaches was not severe.
Although the ALJ acknowledged some evidence of Plaintiff’s
alleged mental symptoms, the Court, as noted, finds the ALJ
failed to consider the opinion of Dr. Eckstein that supports
Plaintiff’s allegations of mental impairments.
Accordingly, the
Court concludes the ALJ erred when he found Plaintiff's mental
impairments to be nonsevere because he did not provide legally
sufficient reasons supported by substantial evidence in the
record for doing so.
III. Plaintiff’s Testimony
Plaintiff alleges the ALJ erred by failing to give clear and
convincing reasons for rejecting her testimony as to the
15- OPINION AND ORDER
intensity, persistence, and limiting effects of her migraine
symptoms.
As noted, however, the ALJ considered Plaintiff’s
testimony, but he properly concluded Plaintiff’s migraines were
not severe because of the lack of evidence in the record to
support Plaintiff’s allegations.
Accordingly, the Court concludes on this record that the ALJ
did not err when he rejected Plaintiff’s testimony as to the
severity of her headaches because he provided legally sufficient
reasons for doing so.
REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for calculation of benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
See, e.g., Brewes v. Comm’r Soc.
Sec. Admin., 682 F.3d 1157, 1164 (9th Cir. 2012).
The court may
“direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose.”
Id. (quoting Smolen v. Chater, 80 F.3d
1273, 1292 (9th Cir. 1996)).
The Ninth Circuit has established a three-part test for
determining when evidence should be credited and an immediate
award of benefits directed.
16- OPINION AND ORDER
Strauss v. Comm’r of Soc. Sec.
Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
The court should
grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting such
evidence, (2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
Id.
The second and third prongs of the test often merge into a
single question:
Whether the ALJ would have to award benefits if
the case were remanded for further proceedings.
See, e.g.,
Harman v. Apfel, 211 F.3d 1172, 1178 n.2 (9th Cir. 2000).
On this record the Court concludes further proceedings are
necessary because it is not clear whether the ALJ would have
found Plaintiff can perform other work that exists in significant
numbers in the national economy if the ALJ had properly
considered the opinion of Dr. Eckstein.
Based on the foregoing, the Court concludes a remand for
further proceedings consistent with this Opinion and Order is
required to permit the ALJ (1) to consider the opinion of
Dr. Eckstein, (2) to determine whether Plaintiff’s mental
impairments are severe in light of Dr. Eckstein’s opinion, and
(3) to consider whether any new findings made by the ALJ require
him to proceed to Steps Three, Four, and Five of the sequential
evaluation.
17- OPINION AND ORDER
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
42 U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 25th day of March, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
18- OPINION AND ORDER
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