Deaton v. Commissioner Social Security Administration
Filing
15
Opinion and Order signed on 9/4/2014 by Judge Ancer L. Haggerty.The decision of the Acting Commissioner denying Rebecca Deaton's applications for DIB and SSI must be REVERSED and REMANDED FOR FURTHER PROCEEDINGS consistent with this ruling and the parameters provided herein. (sp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
REBECCA DEATON,
Plaintiff,
Case No. 6:13-cv-00894-HA
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Acting Connnissioner of Social Security,
Defendant.
HAGGERTY, District Judge:
Plaintiff Rebecca Deaton seeks judicial review of a final decision by the Acting
Commissioner of the Social Security Administration denying her application for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits. This court has
jurisdiction to review the Acting Connnissioner's decision under 42 U.S.C. § 405(g). After
reviewing the record, this comi concludes that the Acting Connnissioner's decision must be
reversed and remanded for fmiher proceedings.
OPINION AND ORDER - 1
STANDARDS
A claimant is considered "disabled" under the Social Security Act if: (1) he or she is
unable to engage in any substantial gainful activity (SGA) "by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve months," and
(2) the impairment is "of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." Hill v. Astrue, 688 F.3d 1144,
1149-50 (9th Cir. 2012) (citing 42 U.S.C. § 1382c(a)(3); Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999)); 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.l 520(a), 416.920(a). In steps
one through four, the Commissioner must dete1mine whether the claimant (1) has not engaged in
SGA since his or her alleged disability onset date; (2) suffers from severe physical or mental
impairments; (3) has severe impairments that meet or medically equal any of the listed
impairments that automatically qualify as disabilities under the Social Security Act; and (4) has a
residual functional capacity (RFC) that prevents the claimant from performing his or her past
relevant work. Id An RFC is the most an individual can do in a work setting despite the total
limiting effects of all his or her impahments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l), and
Social Security Ruling (SSR) 96-8p. The claimant bears the burden of proof in the first four
steps to establish his or her disability.
At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist
OPINION AND ORDER - 2
in a significant number in the national economy that the claimant can perform given his or her
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(f)(l), 416.920(a). On the other hand, ifthe
Commissioner can meet its burden, the claimant is deemed to be not disabled for purposes of
determining benefits eligibility. Id
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, 180 F.3d at 1097; Andrews v. Sha/ala, 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 supp01i a conclusion." Sandgathe v.
Chafer, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).
When reviewing the decision, the court must weigh all of the evidence, whether it
supp01is or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The
Commissioner, not the reviewing court, must resolve conflicts in the evidence, and the
Commissioner's decision must be upheld in instances where the evidence supports either
outcome. Reddick v. Chater, 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.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff was born in 1968 and was forty-one years old at the time of the alleged onset
date. Plaintiff graduated from high school and completed some college course work. Plaintiff
OPINION AND ORDER - 3
protectively filed her applications for benefits on April 7, 2010, alleging that she has been
disabled since March 12, 20 I 0. The claim was denied initially and upon reconsideration. At
plaintiffs request, an Administrative Law Judge (ALJ) conducted a hearing on January 18, 2012.
The ALJ heard testimony from plaintiff, who was represented by counsel, as well as an
independent vocational expert (VE).
On February 21, 2012, the ALJ issued a decision finding that plaintiff was not disabled
under the Social Security Act. At step one of the sequential analysis, the ALJ found that plaintiff
had not engaged in SGA since March 12, 20 I 0, her alleged onset date. Tr. 22. 1 At step two, the
ALJ found that plaintiff suffers from the following medically determinable severe impairments:
history of asthma with continued tobacco use, migraines, mild degenerative disc disease of the
lumber spine, major depressive disorder, and posttraumatic stress disorder (PTSD). Tr. 23.
After considering plaintiffs severe and non-severe impairments, the ALJ determined that
plaintiff does not have an impairment or combination of impairments that meets or medically
equals a listed impairment in 20 C.F.R. Part 404, Subpaii P, Appendix I. Tr. 24. After
considering the entire record, the ALJ found that plaintiff has the RFC to perform medium work
as defined in 20 C.F.R. § 404.1567(c) and 416.967( c) except: plaintiff must avoid concentrated
exposure to fumes, odors, dusts, gases, chemical irritants, environments with poor ventilation,
and hot or cold temperature extremes. Tr. 27. The ALJ also limited plaintiff to "unskilled or low
semi-skilled work." Tr. 27. Based on plaintiffs RFC and the testimony of the VE, the ALJ
found that plaintiff is capable of performing past relevant work as a home health aide, as actually
1
"Tr." refers to the Transcript of the Administrative Record.
OPINION AND ORDER - 4
and generally performed. Tr. 32-33. Therefore, the ALJ concluded that plaintiff is not disabled.
As an alternative basis for her finding that plaintiff is not disabled, the ALJ also found that
plaintiff could perfo1mjobs existing in significant numbers in the national economy, considering
her age, education, work experience, and residual functional capacity. Tr. 33-34. Specifically,
the ALJ found that plaintiff would be able to perfo1m the requirements ofrepresentative
occupations such as cook's helper, floor waxer, and kitchen helper. Tr. 34.
On April 12, 2013, the Appeals Council denied plaintiffs request for review, making the
ALJ's decision the final decision of the Acting Commissioner. Plaintiff subsequently initiated
this action seeking judicial review.
DISCUSSION
Plaintiff argues that the decision of the Acting Commissioner is not supported by
substantial evidence for the following reasons: (!) the Appeals Council did not consider new
evidence that plaintiff submitted after the ALJ's decision; (2) the ALJ en-ed in assigning
significant weight to the opinions of state agency doctors; (3) the ALJ erred by omitting mental
health limitations from plaintiffs RFC; and (4) the ALJ improperly analyzed plaintiffs migraine
symptoms. Each of plaintiffs arguments will be addressed in tum.
1.
New Evidence Submitted to the Appeals Council
Plaintiff argues that the ALJ's decision is not suppmied by substantial evidence in light of
the new evidence that she submitted to the Appeals Council. After the ALJ issued her decision
in February 2012, plaintiff submitted to the Appeals Council treatment records, which document
that plaintiff underwent a laminectomy surgery in October 2012.
OPINION At"\/D ORDER - 5
Pursuant to 20 C.F.R. § 404.976(b)(l), evidence that is newly submitted to the Appeals
Council will be considered as follows:
The Appeals Council will consider all the evidence in the administrative law
judge hearing record as well as any new and material evidence submitted to it
which relates to the period on or before the date of the administrative law judge
hearing decision. If you submit evidence which does not relate to the period on or
before the date of the administrative law judge hearing decision, the Appeals
Council will return the additional evidence to you with an explanation as to why it
did not accept the additional evidence and will advise you of your right to file a
new application ....
When the Appeals Council denies review, the decision of the ALJ is the final decision of the
Commissioner. Russell v. Brown, 856 F.2d 81, 83-84 (9th Cir.1988). However, any additional
evidence considered by the Appeals Council in denying the request for review becomes part of
the administrative record for review by the district comt. Brewes v. Astrue, 682 F.3d 1157, 1163
(9th Cir. 2012). New evidence is material if it bears directly and substantially on the matter in
dispute. Borrelli v. Comm'r ofSoc. Sec., No. 12-16189, 2014 WL 1492736, *1 (9th Cir. Apr. 8,
2014) (citations omitted). "Remand is necessaiy where the material evidence gives rise to a
'reasonable possibility' that the new evidence might change the outcome of the administrative
hearing." Id (citing Booz v. Sec'y ofHealth & Human Servs., 734 F.2d 1378, 1380-81 (9th
Cir.1984)).
Defendant argues that the new treatment records do not undermine the ALJ's findings
because the records show that plaintiffs symptoms have worsened since the time of the hearing.
In so doing, it appears that defendant is arguing that, pursuant to 20 C.F.R. § 404.976(b)(l), the
new treatment records do not relate to the period before the ALJ's hearing because plaintiffs
symptoms have worsened since that time. However, 20 C.F.R. § 404.976(b)(l) identifies the
OPINION AND GRDER - 6
instances in which the Appeals Council is required to consider new evidence. Here, the Appeals
Council already considered the new evidence and found "no reason under our rules to review the
Administrative Law Judge's decision." Tr. 1. Therefore, under defendant's theory, plaintiffs
conditions have severely worsened since the ALJ's decision, but a remand is not appropriate
because the new evidence does not relate to the period before the ALJ's decision, and any new
application would be precluded because the Appeals Council already based its denial on this new
evidence. Such a result is unreasonable.
As noted above, a remand is necessary if the evidence at issue is new and material and it
raises a reasonable possibility that the outcome of the hearing would change. First, the evidence
at issue was created after the ALJ's determination and is indisputably new. Second, the new
evidence sheds light on previous gaps in the medical record. As the ALJ noted, plaintiff did not
seek any significant medical treatment for her back pain from September 2010 through October
2011, a period during which she also struggled with mental health issues. Tr. 29. Prior to that
period, MRI images revealed only mild degenerative changes in the lumbar spine with neural
foraminal stenosis at the 13-14 and 14-15 vertebrae. Tr. 504. In contrast, MRI images
conducted in October 2012, just eight months after the ALJ's decision, revealed significantly
more severe· symptoms. Those evaluations revealed severe lumbar steno sis at 14-15 vertebrae as
well as claudicat01y symptoms. Tr. 689. The cou1i finds that this new evidence is material to the
period before the ALJ's determination, especially in light of the gap in the medical record closest
to the time of the hearing. Third, the new evidence raises a reasonable possibility that the
outcome of the hearing would change. As defendant admits, the new evidence demonstrates that
plaintiff experiences nerve decompression, a symptom not addressed by the ALJ. Def. 's Brief at
OPINION AND ORDER - 7
6. Similarly, defendant admits that the new evidence demonstrates additional functional
limitations, such as plaintiffs inability to stand or sit for any length of time. Def.'s Brief at 7.
Because the new evidence could influence the outcome of the ALJ's determination, her previous
opinion is not suppotted by substantial evidence, and the matter is remanded to provide an
oppo1tunity to address the new evidence. These proceedings will allow the ALJ to review her
step five detennination in light of the new evidence.
2.
State Agency Doctors
Plaintiff argues that the ALJ ened in affording significant weight to the opinions of two
state agency consulting physicians, Gary W. Coleman, M.D., and C.A. Parsons, M.D. In part,
plaintiff argues that the ALJ's analysis of their opinions is not suppotted by substantial evidence
because neither the state agency doctors nor the ALJ had the opporhmity to review plaintiffs new
evidence. In affording these opinions great weight, the ALJ noted that plaintiff's other treating
sources had not provided an assessment of plaintiff's functional limitations. As discussed above,
defendant agrees that the new evidence shows a significant worsening of plaintiff's symptoms
and functioning. Def.'s Brief at 6-7. Because the ALJ relied on the lack of evidence of plaintiff's
limitations in considering the state agency doctors' opinions and the new evidence relates to that
very topic, the ALJ's decision is not supported by substantial evidence. Therefore, on remand,
the ALJ shall consider the state agency doctors' opinions in light of the new evidence.
3.
Plaintiff's Mental Limitations
Plaintiff argues, and defendant concedes, that the ALJ erred by affording significant
weight to the opinions of state agency psychologists Nonnan Jessop, Ph.D., and George Stern,
Ph.D., without incorporating all of the limitations that they propounded into plaintiff's RFC.
OPINION Al"\/D ORDER - 8
Doctor Stem opined that plaintiff suffered from depression and was moderately limited in social
functioning and mildly limited in maintaining concentration, persistence, or pace. Tr. 294, 301,
307. He also opined that plaintiff could understand and follow simple instructions. Tr. 307.
These opinions were affirmed by Dr. Jessop. Tr. 310. The ALJ assigned significant weight to
these opinions, but she e!Ted by omitting certain mental limitations from plaintiff's RFC. While
the ALJ limited plaintiff to unskilled or low semi-skilled work, she did not include any limitation
related to contact with the public. Tr. 27. The ALJ compounded this error in step four by
finding that plaintiff could return to her past relevant work as a home health aide, an occupation
that requires significant customer interaction.
Defendant argues that the ALJ's error was hannless because it did not affect the ultimate
disability issue. "[A]n ALJ's e!Tor is harmless where it is inconsequential to the ultimate
nondisability determination." iVJo/ina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). The
omission of valid limitations from plaintiff's RFC is harmless error if the occupations listed in
step five do not require a level of functioning higher than those limitations would allow.
Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008) ("[T]o the extent the ALJ's
RFC finding erroneously omitted [ce1iain] postural limitations (only occasional balancing,
stooping, and climbing of ramps and stairs), any e!Tor was harmless since sedentaiy jobs require
infrequent stooping, balancing, crouching, or climbing."). Additionally, although an ALJ's step
four determination may constitute error, it is harmless eiTor if, in step five, the ALJ properly
concluded that the plaintiff could perform other work in the national economy that existed in
significant numbers. Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th Cir. 2008) (citations
omitted).
OPINION AL"\!D ORDER - 9
In this case, after etToneously concluding that plaintiff could return to her past work, the
ALJ proceeded to step five to make alternative findings. In consideration of plaintiffs RFC, the
ALJ identified three occupations that plaintiff could perform: cook's helper (DOT 317 .687-010),
floor waxer (DOT 381.687-034), and kitchen helper (DOT 318.687-010). Each of these
occupations have a Specific Vocational Preparation of two, meaning they involve unskilled
work. Social Security Rule (SSR) 00-4p, available at 2000 WL 1898704. Accordingly, the
occupations identified do not require a skill level inconsistent with Dr. Stern's opinion, which
stated that plaintiff could perfo1m simple tasks. Additionally, the occupations listed do not
involve significant interaction with the public. See 1991WL672752, 1991WL673262, 1991
WL 672755. Therefore, they do not require a social functioning greater than that which Dr. Stern
assigned to plaintiff. Because the jobs listed in the ALJ's step five dete1mination do not require
skills or functioning greater than the limitations that the ALJ erroneously omitted, any e!Tor
related to the failure to include those limitations was harmless.
4.
Plaintiffs Migraines
Finally, plaintiff argues that the ALJ erred in failing to impose workplace limitations in
relation to plaintiffs migraines. In step two, the ALJ found that plaintiffs migraines are a severe
impahment. In so doing, the ALJ noted that plaintiff attributes those migraines to hypertension,
which the ALJ found was generally controlled. Tr. 23. Plaintiff does not challenge this
conclusion. In analyzing plaintiffs RFC, the ALJ again addressed plaintiffs migraines. The ALJ
explained that, while recent medical records indicate that the migraines were not a significant
problem, she found that plaintiff does experience migraines. Tr. 30. The ALJ also found that the
environmental limitations meant to address plaintiff's pulmonary limitations also adequately
OPINION At'ID ORDER- 10
address any limitations that plaintiff may experience due to her migraines. Tr. 30.
Plaintiff argues that the ALJ erred by finding that limitations on pulmonaiy initants
would address plaintiffs migraines, when there is no conelation between plaintiffs headaches
and such irritants. Instead, plaintiff alleges that her migraines are caused by hypertension. Pl.'s
Brief at 13, Tr. 59. As discussed above, the ALJ found that plaintiffs hype1iension was
controlled. Tr. 23. Plaintiff does not challenge this conclusion; therefore, the court will not
require a limitation concerning plaintiffs hype1iension. Accordingly, the court will not fault the
ALJ for placing an additional limitation on another potential cause for plaintiffs migraines,
pulmonaiy irritants, even if they are not the primary cause.
CONCLUSION
For the reasons provided, this comi concludes that pursuant to sentence four of 42 U.S.C.
§ 405(g), the decision of the Acting Commissioner denying Rebecca Deaton's applications for
DIB and SSI must be REVERSED and REMANDED FOR FURTHER PROCEEDINGS
consistent with this ruling and the parameters provided herein.
IT IS SO ORDERED.
DATED this __if_ day of September, 2014.
~w
&b4 '°' ;/_ Jl~Ancer L. Hagge1iy
United States District Judge
OPINION AND ORDER - 11
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