Tessier-Escalante v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER: the Court REVERSES the decision of the Commissioner, GRANTS as modified the Commissioner's Motion (#14) to Remand for further administrative proceedings, 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 4/26/16 by Judge Anna J. Brown. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DIAHN TESSIER-ESCALANTE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

ALAN STUART GRAF
208 Pine St.
Floyd, VA 24091
[phone]
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
DAVID MORADO
Regional Chief Counsel
ERIN F. HIGHLAND
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/A 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
1 - OPINION AND ORDER

6:15-CV-00124-BR
OPINION AND ORDER

BROWN, Judge.
Plaintiff Diahn Tessier-Escalante seeks judicial review of a
final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's applications
for Supplemental Security Income (SSI) and Disability Insurance
Benefits (DIB) under Titles XVI and II of the Social Security
Act.
This matter is now before the Court on Plaintiff’s Complaint
in which she seeks review of the Commissioner’s decision and
(2) the Commissioner's Motion to Remand (#15) for further
administrative proceedings on the grounds that the Administrative
Law Judge (ALJ) Marilyn Mauer erred when she failed to develop
the record and ALJ John Michaelson erred when he failed to
address the opinion of Darryl George, D.O.
Following a review of the record, the Court REVERSES the
Commissioner's decision, GRANTS as modified the Commissioner's
Motion to Remand for further administrative proceedings, 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.

ADMINISTRATIVE HISTORY
Plaintiff filed her applications for DIB and SSI on

2 - OPINION AND ORDER

January 14, 2011.

Tr. 208, 215.1

onset date of August 31, 2009.

Her applications were denied

initially and on reconsideration.
January 25, 2013.
May 14, 2013.
hearing.

Plaintiff alleged a disability

ALJ Mauer held a hearing on

ALJ Michaelson held a supplemental hearing on

Tr. 34, 75.

Plaintiff testified at the first

Plaintiff and a vocational expert (VE) testified at the

second hearing.

Plaintiff was represented by an attorney at both

hearings.
On May 30, 2013, ALJ Michaelson issued an opinion in which
he found Plaintiff is not disabled and, therefore, is not
entitled to benefits.

Tr. 8-16.

On November 21, 2014, that

decision became the final decision of the Commissioner when the
Appeals Council denied Plaintiff's request for review.

Tr. 1-4.

See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

BACKGROUND
Plaintiff was born on August 8, 1968.

Tr. 208.

was 44 years old at the time of both hearings.
high-school diploma and two years of college.

Plaintiff

Plaintiff has a
Tr. 82.

Plaintiff

has past relevant work experience as “a secretary and school
secretary.”

Tr. 15.

Plaintiff alleges disability due to chronic

lower-back pain status post-lumbar laminectomy and fusion,

1

Citations to the official transcript of record filed by the
Commissioner on July 9, 2015, are referred to as "Tr."
3 - OPINION AND ORDER

hernia, and anxiety.

Tr. 10-11.

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. 13-14.

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).
4 - OPINION AND ORDER

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.

Id. (citing Valentine, 574 F.3d

at 690).
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
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

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
At Step One the claimant is not disabled if the Commissioner

determines the claimant is engaged in substantial gainful
5 - OPINION AND ORDER

activity.

20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I).

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 impairments or combination of impairments.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

20 C.F.R.

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), 416.920(a)(4)(iii).
F.3d at 724.

20 C.F.R.

See also Keyser, 648

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 her limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.

20 C.F.R.

See also Social Security Ruling

“A 'regular and continuing basis' means 8 hours a

day, for 5 days a week, or an equivalent schedule."

6 - OPINION AND ORDER

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 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.
416.920(a)(4)(iv).

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.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

See also Keyser, 648 F.3d at 724-25.

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),

416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
7 - OPINION AND ORDER

substantial gainful activity since her August 31, 2009, alleged
onset date.

Tr. 10.

At Step Two the ALJ found Plaintiff has the severe
impairment of chronic lower-back pain status post-lumbar
laminectomy and fusion.

Tr. 10.

The ALJ found Plaintiff’s

hernia is nonsevere and Plaintiff’s anxiety is not an impairment.
Tr. 11.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do did not meet or medically equal one
of the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 13.

The ALJ found Plaintiff has the RFC to

perform “a range of light work” with no more than occasional
stooping, kneeling, crouching, crawling, or climbing.

Tr. 12.

At Step Four the ALJ concluded Plaintiff could perform her
past relevant work as “a secretary and school secretary.”
Tr. 15.
The ALJ made an alternative Step Five finding that Plaintiff
could perform jobs that exist in significant numbers in the
national economy.

Tr. 15.

Accordingly, the ALJ found Plaintiff

is not disabled.

DISCUSSION
Plaintiff contends ALJ Mauer erred when she failed to
develop the record and ALJ Michaelson erred when he

8 - OPINION AND ORDER

(1) improperly rejected Plaintiff’s testimony; (2) found at Step
Two that Plaintiff’s anxiety is not an impairment; and (3) failed
to address the opinion of treating physician Darryl George, D.O.
In her Motion to Remand the Commissioner concedes ALJ
Michaelson erred when he failed to address Dr. George’s opinion.
The Commissioner moves the Court to remand this matter for
further proceedings on that issue.
I.

The ALJs erred with respect to Dr. George’s opinion.
An ALJ may reject a treating physician's opinion when it is

inconsistent with the opinions of other 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, 278 F.3d at 957 (quoting

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

When

the medical opinion of a 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.
On January 9, 2013, Dr. George completed a Spine Medical
Source Statement in which he diagnosed Plaintiff with chronic
“lumbar pain, right sciatica, degenerative disc disease,
degenerative joint disease, grade I arteriosclerosis L5 -S1, post
symptoms L5-S1 Surgery, Anxiety, and Insomnia.”

Tr. 387.

Dr. George opined Plaintiff could sit for four hours in an eight-

9 - OPINION AND ORDER

hour work day for 30 minutes at a time, could stand for less than
two hours in an eight-hour work day for 20 minutes at a time,
would be “off task” for 20 percent of the time during an eighthour work day, and was likely to miss more than four days of work
per month.

Tr. 387-90.

At the first hearing ALJ Mauer noted:
I’m looking at Dr. George’s RFC, which I can give
no credence whatsoever because I looked up every
single symptom that the doctor listed as the basis
for the RFC, and I couldn't find any of them in
his records except for let’s see. I made a note
here. All right. He listed things like abnormal
gait swelling, muscle weakness, tenderness, and
(INAUDIBLE) muscles. He didn’t record any of
these things in his notes.
* * *
Dr. George’s notes consistently just say steady
gait. . . . I just don’t - I mean, there is some of them are barely legible.
Tr. 96-97.

ALJ Mauer, therefore, sent Plaintiff for an

“orthopedic CE . . . with a PCE” and scheduled a supplemental
hearing to take place after completion of those examinations.
Tr. 97-98.

ALJ Mauer, however, failed to further develop the

record to determine the basis of Dr. George’s opinion in light of
the fact that some of Dr. George’s notes were “barely legible.”
ALJ Michaelson, in turn, failed to address Dr. George’s
opinion and did not include Plaintiff’s limitations as set out by
Dr. George in his assessment of Plaintiff’s RFC or in his finding
that Plaintiff could perform her past relevant work.

10- OPINION AND ORDER

As noted, Defendant concedes ALJ Michaelson erred when he
failed to address Dr. George’s opinion in his May 30, 2013,
opinion.

The Court agrees.

On this record, therefore, the Court concludes ALJ Mauer
erred when she failed to seek further development of the record
to determine the basis of Dr. George’s January 2013 opinion and
ALJ Michaelson erred when he failed to address Dr. George’s
opinion.
II.

This matter is remanded for further proceedings.
The decision whether to remand for further proceedings or

for immediate payment of benefits generally turns on the likely
utility of further proceedings.
1179 (9th Cir. 2000).

Harman v. Apfel, 211 F.3d 1172,

When "the record has been fully developed

and further administrative proceedings would serve no useful
purpose, the district court should remand for an immediate award
of benefits."

Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.

2004).
The decision whether to remand this case for further
proceedings or for the payment of benefits is a decision within
the discretion of the court.

Harman, 211 F.3d 1178.

The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.

Id. at 1179.

The court may

"direct an award of benefits where the record has been fully
11- OPINION AND ORDER

developed and where further administrative proceedings would
serve no useful purpose."

Smolen, 80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."

Harman, 211 F.3d at 1178.

The

Court should grant an immediate award of benefits when:
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting . . .
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.

Id. at 1178 n.2.

As noted, the Court has concluded ALJ Mauer erred when she
failed to develop the record to determine the basis for
Dr. George’s opinion and ALJ Michaelson erred when he failed to
address the opinion of Dr. George.

The record, however, contains

medical evidence that may contradict Dr. George’s opinion.

For

example, examining physician Andrea Marshall, D.O., opined in
March 2013 that Plaintiff was capable of a range of medium work.
Tr. 444-46.

Dr. Marshall found Plaintiff can perform “all gait

maneuvers appropriately,” and she has 5/5 strength” in her upper
and lower extremities.

Id.

Accordingly, remand is necessary to

resolve these potentially conflicting opinions.
12- OPINION AND ORDER

In addition, Plaintiff also asserts ALJ Michaelson erred
when he improperly rejected Plaintiff’s testimony and when he
found at Step Two that Plaintiff’s anxiety is not an impairment.
The ALJ found Plaintiff’s testimony as to the intensity,
persistence, and limiting effects of her symptoms was not
entirely credible based, at least in part, on the perceived lack
of medical evidence supporting Plaintiff’s testimony.

Because

ALJ Michaelson failed to address Dr. George’s opinion, which, at
least in part, appears to support some of Plaintiff’s alleged
limitations, the Court cannot determine whether consideration of
Dr. George’s opinion would alter the ALJ’s conclusions as to the
credibility of Plaintiff’s testimony.
Similarly, ALJ Michaelson concluded at Step Two that
Plaintiff’s anxiety is not a medically-supported impairment
because “the record does not contain any medical evidence to
support her subjective complaints.”

Tr. 11.

Dr. George,

however, noted in his January 2013 opinion that Plaintiff
suffered from anxiety.

It is not clear on this record,

therefore, whether ALJ Michaelson considered Dr. George’s opinion
in reaching his conclusion at Step Two.
Accordingly, the Court remands this matter for further
development of the record and evaluation of Dr. George’s opinion,
reassessment of the severity of Plaintiff’s alleged impairments,
reevaluation of Plaintiff’s testimony, reassessment of

13- OPINION AND ORDER

Plaintiff’s RFC, and reconsideration of Plaintiff’s ability to
perform her past relevant work and/or other work in the national
economy.

CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner, GRANTS as modified the Commissioner's Motion (#14)
to Remand for further administrative proceedings, 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 26th day of April, 2016.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

14- OPINION AND ORDER