Krossman v. Colvin

Filing 14

OPINION AND ORDER. The Commissioners decision is remanded for furtherproceedings below. Signed on 2/3/16 by Chief Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

DARREN KROSSMAN,
Plaintiff,

No. 6:14-cv-01870-MO

v.

OPINION AND ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Administration,
Defendant.
MOSMAN, J.,
Darren Krossman challenges the Commissioner’s decision denying his claim for
Supplemental Security Income (“SSI”). I have jurisdiction under 42 U.S.C. § 405(g) and now
remand for further proceedings.
PROCEDURAL BACKGROUND
On August 24, 2010, Mr. Krossman filed for an application for SSI. The application was
denied. An administrative law judge (“ALJ”) held a hearing on March, 28, 2013. On April 18,
2013, the ALJ issued her decision denying the claim.

1 – OPINION AND ORDER

THE ALJ’S FINDINGS
The ALJ made her decision based upon the five-step sequential process established by
the Commissioner. See Bowen v. Yuckert, 482 U.S. 137, 140–41 (1987); 20 C.F.R. §§ 404.1520,
416.920 (establishing the five-step evaluative process for DIB and SSI claims). The ALJ
discounted the opinion of Mr. Krossman’s treating physician and determined Mr. Krossman was
eligible for jobs that required Level 3 reasoning.
STANDARD OF REVIEW
I review the Commissioner’s decision to ensure the Commissioner applied proper legal
standards and the ALJ’s findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
“‘Substantial evidence’ means more than a mere scintilla, but less than a preponderance; it is
such relevant evidence as a reasonable person might accept as adequate to support a conclusion.”
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. Sec. Admin.,
466 F.3d 880, 882 (9th Cir. 2006)). The Commissioner’s decision must be upheld if it is a
rational interpretation of the evidence, even if there are other possible rational interpretations.
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The reviewing court may not
substitute its judgment for that of the Commissioner. Robbins, 466 F.3d at 882.
DISCUSSION
Mr. Krossman presents four issues on appeal:
1. Did the ALJ provide specific and legitimate reasons for discounting the
conclusions of Mr. Krossman’s treating physician?
2. Did the ALJ properly assess Mr. Krossman’s subjective complaints of pain?
3. At step five, did the ALJ err by failing to include all of Mr. Krossman’s
limitations?
4. At step five, was the ALJ’s error in failing to reconcile the requirement of Level
3 reasoning with Mr. Krossman’s limitations harmless?

2 – OPINION AND ORDER

Each is addressed below.
I.

The ALJ did not provide specific and legitimate reasons for discounting the
conclusions of Mr. Krossman’s treating physician
Dr. Rowley, a treating physician of Plaintiff’s, opined that Mr. Krossman would miss

four of more days of work per month as a result of his impairments and noted Mr. Krossman’s
ability to concentrate was impaired by pain. This testimony, if credited, would likely require the
ALJ to find that Plaintiff is disabled. The ALJ rejected this part of Dr. Rowley’s opinion,
stating “I find this is not supported by the findings on examination, level of treatment, diagnostic
imaging or the claimant’s own reported symptoms.” (Tr. at 27.)
In rejecting a treating or examining doctor’s opinion which is contradicted by another
doctor's opinion, an ALJ must provide specific and legitimate reasons that are supported by
substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Here, the ALJ
has not provided specific reasons. Taken together, her explanation could encompass the entire
record. The government, in its brief, combed through the record and provided several specific
examples of conflict with Dr. Rowley’s opinion. However, these are post hoc explanations with
which the ALJ may or may not agree. While an ALJ need not restate everything, slightly more
care is required to reach the “specific and legitimate” standard. In light of the lack of
specificity, I remand for further explanation.
II.

Plaintiff’s subjective complaints were not properly assessed
Plaintiff argues the ALJ neither discredited his complaints of pain nor reconciled his pain

with his mental impairment. I find the ALJ did have substantial evidence to question Plaintiff’s
credibility, but she should have developed the record further as to any potential connection
between his pain and mental impairment.

3 – OPINION AND ORDER

a. Credibility
If the ALJ finds that the claimant’s testimony as to the severity of her pain and
impairments is unreliable, the ALJ must make a credibility determination with findings
sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit
claimant’s testimony. See Bunnell v. Sullivan, 947 F.2d 341, 345–46 (9th Cir. 1991) (en banc).
The ALJ may consider at least the following factors when weighing the claimant's credibility:
“[claimant’s] reputation for truthfulness, inconsistencies either in [claimant’s] testimony or
between [her] testimony and [her] conduct, [claimaint’s] daily activities, [her] work record, and
testimony from physicians and third parties concerning the nature, severity, and effect of the
symptoms of which [claimant] complains.” Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir.
1997). If the ALJ’s credibility finding is supported by substantial evidence in the record, I may
not engage in second-guessing. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600
(9th Cir. 1999).
The ALJ found “the medical evidence does not document the persistence or intensity of
symptoms to the degree he alleges.” (Tr. at 26.) The ALJ properly considered Plaintiff’s daily
activities and testimony from physicians and third parties concerning Plaintiff’s conditions.
There was substantial evidence to conclude that Plaintiff’s subjective complaints were not
entirely credible.
b. Mental impairment and pain
Plaintiff next argues that the ALJ erred in failing to develop the record. SSR 96-79
states:
“The adjudicator must develop evidence regarding the possibility of a medically
determinable mental impairment when the record contains information to suggest
that such an impairment exists, and the individual alleges pain or other symptoms,
4 – OPINION AND ORDER

but the medical signs and laboratory findings do not substantiate any physical
impairment(s) capable of producing the pain or other symptoms.”

SSR 96-79, fn. 3. Plaintiff has met the requirements of the statute and the language of the statute
is clear. On remand, the adjudicator must develop evidence about possible mental impairments
that would cause Plaintiff’s pain.
III.

The inclusion of all of Plaintiff’s limitations in vocational assessment
Plaintiff argues the ALJ did not consider his pain when outlining his functional capacity.

Defendant argues because the ALJ did not include all of the claimant’s limitations, the
vocational expert’s testimony has no evidentiary value. As Plaintiff’s subjective complaints of
pain are in question in light of my ruling above, the question is mooted until the ALJ further
develops the record.
IV.

Conflict between vocational testing and job requirements
Plaintiff alleges the jobs the ALJ identified, all of which required Level 3 reasoning,

conflict with his limitation to simple, routine, or repetitive work. The Ninth Circuit has found a
conflict between a claimant’s requirement for simple, routine, or repetitive work and a Level 3
reasoning requirement. Zavalin v. Colvin, 778 F.3d 842, 847 (9th Cir. 2015). The Commissioner
agrees the ALJ erred by not resolving the conflict, but suggests the error was harmless.
In Zavalin, the court found a special education high school graduate with success in math
presented a “mixed record.” In particular, the Ninth Circuit was concerned about jobs “that
contain situational variables that may not be simple or repetitive.” Id. at 848. The Court found
harmless error was precluded by the combination of the plaintiff’s mixed record and potential
jobs with situational variables.
Here, Plaintiff has a tenth-grade education; his communication skills are “quite
adequate”; and he was able to read and write, although with a “hard time in school spelling.”
5 – OPINION AND ORDER

(Tr. at 24; 227.) He is “not very good” with paper work. (Tr.at 227.) The ALJ found Plaintiff
had mild difficulties in social functioning and moderate difficulties in concentration, persistence,
and pace. (Tr. at 24.) Based on these attributes, Mr. Krossman presents a “mixed record.” As in
Zavalin, Mr. Krossman’s potential jobs have situational variables that may not be simple and
repetitive. The ALJ found Mr. Korssman could be an account clerk, order clerk, or call-out
operator. An account clerk needs to assemble credit information and review that information.
So too does a call-out operator. An order clerk’s duties include social interaction to take
different orders and record those orders on a ticket. They seem to present variable situations and
ones that may lean on Plaintiff’s difficulties in concentration, persistence, or pace; poor spelling;
and weakness with paper work. The vocational expert needs to be asked to reconcile these
apparent conflicts and the ALJ should then determine if the reconciliation is reasonable. I
remand so this can happen.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is remanded for further
proceedings below.
IT IS SO ORDERED.
DATED this 3rd _

day of February, 2016.

/s/ Michael W. Mosman
______________________
MICHAEL W. MOSMAN
United States District Court

6 – OPINION AND ORDER