Erevia v. Commissioner Social Security Administration

Filing 18

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 for the immediate calculation and award of benefits. Signed on 08/29/2016 by Judge Anna J. Brown. See attached 17 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WENDY EREVIA,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

MERRILL SCHNEIDER
Schneider Kerr Law Offices
P.O. Box 14490
Portland, OR 97293
[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]
1 - OPINION AND ORDER

6:15-CV-01404-BR
OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
THOMAS M. ELSBERRY
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 901
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff Wendy Erevia 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 final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the decision
of the Commissioner and REMANDS this matter pursuant to sentence
four of 42 U.S.C. § 405(g) for the immediate calculation and
award of benefits.

ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB on November 29, 2011,
alleging a disability onset date of May 10, 2011.

Tr. 93.1

application was denied initially and on reconsideration.

1

The

An

Citations to the official transcript of record filed by
the Commissioner on February 11, 2016, are referred to as "Tr."
2 - OPINION AND ORDER

Administrative Law Judge (ALJ) held a hearing on November 19,
2013.

Tr. 34-77.

attorney.

At the hearing Plaintiff was represented by an

Plaintiff and a vocational expert (VE) testified at

the hearing.
The ALJ issued a decision on December 3, 2013, in which he
found Plaintiff was not disabled and, therefore, is not entitled
to benefits.

Tr. 13-33.

Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner on
May 29, 2015, when the Appeals Council denied Plaintiff's request
for review.

Tr. 1-6.

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

(2000).

BACKGROUND
Plaintiff was born September 17, 1978, and was 34 years old
at the time of the hearing.
Tr. 47.

Tr. 78.

Plaintiff has a GED.

Plaintiff has past relevant work experience as a

cashier/retail clerk.

Tr. 27.

Plaintiff alleges disability due to fibromyalgia; “back and
shoulder muscles”; celiac sprue; and “body, nerve and muscle
pain.”

Tr. 93.

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. 22-26.

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."
574 F.3d at 690).
4 - OPINION AND ORDER

Id. (citing Valentine,

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 her 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 her May 10, 2011, alleged
onset date.

Tr. 18.

At Step Two the ALJ found Plaintiff has the severe
impairments of fibromyalgia with chronic pain syndrome, neck and
7 - OPINION AND ORDER

back problems, and chronic diarrhea.

Tr. 18.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 20.

The ALJ found Plaintiff has the RFC to

perform “less than a full range of sedentary work.”

Tr. 20.

The

ALJ also found Plaintiff could frequently “lift a negligible
amount of weight” and “engage in gross and fine manipulation with
the bilateral upper extremities.”

Tr. 20.

The ALJ found

Plaintiff could occasionally lift up to ten pounds, climb ramps
and stairs, stoop, kneel, crouch, push, pull, and reach overhead.
Tr. 20-21.

The ALJ found Plaintiff must “be allowed to sit or

stand at 30 to 45 minute intervals for 3 to 5 minutes at a time,
during which period she may remain on task.”

Tr. 20.

The ALJ

also found Plaintiff “must avoid more than occasional exposure to
extreme cold, vibration, and hazards” and “requires ready access
to restroom facilities.”

Tr. 21.

At Step Four the ALJ found Plaintiff cannot perform her past
relevant work.

Tr. 27.

At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy.
Accordingly, the ALJ found Plaintiff is not disabled.

8 - OPINION AND ORDER

Tr. 27.

DISCUSSION
Plaintiff contends the ALJ erred when he improperly gave
“little weight” to the October 2013 opinion of Plaintiff’s
treating physician, Lesley Garber, D.O.
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 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 a treating

physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.

Thomas, 278 F.3d at

See also Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir.

957.
1996).

When "the ALJ fail[s] to provide legally sufficient reasons
for rejecting . . . [a] physician['s] opinion[]," the Court
credits the opinion as true.
594 (9th Cir. 2004).

Benecke v. Barnhart

379 F.3d 587,

See also Lester, 81 F.3d at 834 (improperly

rejected physician opinion court credited as matter of law).
In November 2012 Dr. Garber completed a Work Restrictions
Form in which he opined Plaintiff could sit up to four hours in
an eight-hour work day with “a 15 minute break of standing or
walking every 30 minutes.”
9 - OPINION AND ORDER

Tr. 488.

Dr. Garber also opined

Plaintiff could stand and walk up to two hours in an eight-hour
work day with “a 30 minute break of sitting every hour.”
Tr. 488.

Dr. Garber opined Plaintiff could occasionally lift and

carry up to ten pounds below or at her waist or chest; use a
“simple grasp”; engage in repetitive hand movements; kneel, bend,
and squat; and never lift or carry above her shoulders, use a
“power grasp,” or climb.

Dr. Garber also opined Plaintiff could

work eight hours per day for a maximum of three days.

Tr. 489.

The ALJ gave “great weight” to Dr. Garber’s November 2012
opinion.
In October 2013 Dr. Garber submitted a letter in which he
again opined Plaintiff could sit up to four hours in an eighthour work day.

Tr. 523.

Unlike in his November 2012 opinion,

however, Dr. Garber did not state Plaintiff required any breaks
“of standing or walking” during her four hours of sitting at
work.

In his October 2103 opinion Dr. Garber opined Plaintiff

could stand and walk up to one hour in an eight-hour work day as
opposed to two hours as he opined in November 2012.

Tr. 523.

In

his October 2013 opinion Dr. Garber again opined Plaintiff could
occasionally lift and carry up to ten pounds below or at her
waist or chest and use a “simple grasp.”

Tr. 523.

Dr. Garber

again opined Plaintiff should never climb or lift or carry
anything above her shoulders.

Tr. 523.

Dr. Garber, however,

also opined Plaintiff should never stoop, bend, kneel, crouch, or

10 - OPINION AND ORDER

crawl.

Tr. 523.

Finally, Dr. Garber opined Plaintiff would miss

“two full work days or more per month.”

Tr. 523.

The ALJ gave little weight to Dr. Garber’s October 2013
opinion on the grounds that Dr. Garber “appear[ed] to be trying
to obtain insurance or disability for [Plaintiff],” that he
completed his opinion on a Costco Work Restrictions Form, and
that he “opined greater limitations than he previously stated
without noting any increased symptomatology that would explain
the additional restrictions.”

Tr. 26.

Plaintiff asserts the ALJ engaged in “unwarranted
speculation” that Dr. Garber misrepresented Plaintiff’s condition
in his October 2013 opinion in an effort to help Plaintiff to
obtain benefits.

The Commissioner states in her Response that

she “does not defend the ALJ’s statement that Dr. Garber appeared
to be trying to obtain insurance or disability for Plaintiff.”
The Ninth Circuit has made clear that the Commissioner “may not
assume that doctors routinely lie in order to help their patients
collect disability benefits.”
omitted).

Lester, 81 F.3d at 832 (quotation

Although the Commissioner “may introduce evidence of

actual improprieties,” here the Commissioner does not point to
any such evidence and the record does not indicate any
impropriety with respect to Dr. Garber’s October 2013 opinion.
The Court, therefore, concludes the ALJ erred when he engaged in
unwarranted speculation to support his rejection of Dr. Garber’s

11 - OPINION AND ORDER

October 2013 opinion.
The ALJ’s second basis for giving little weight to
Dr. Garber’s October 2013 opinion is similarly meritless.
As noted, the ALJ relied in part on the fact that Dr. Garber’s
October 2013 opinion was completed on a Costco Work Restrictions
Form.

Dr. Garber’s October 2013 opinion, however, was completed

in letter format.

Only Dr. Garber’s November 2012 opinion was

completed on a Costco Work Restrictions Form.

The ALJ’s

statement casts doubt on whether the ALJ was actually considering
Dr. Garber’s October 2013 opinion when the ALJ gave it little
weight.
Finally, when evaluating Dr. Garber’s October 2013 opinion,
the ALJ relied on the fact that Dr. Garber “opined greater
limitations than he previously stated [in his November 2012
opinion] without noting any increased symptomatology that would
explain the additional restrictions.”

The Commissioner asserts

“an ALJ reasonably rejects a medical opinion that, without
additional evidence or explanation, deviates considerably from an
earlier opinion.”

Def.’s Resp. at 8 (citing Tommasetti v.

Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008)(incongruity between
treating doctor’s questionnaire responses and her medical records
provided a specific and legitimate reason for rejecting the
doctor’s opinion of claimant’s limitations).

A review of

Dr. Garber’s November 2012 and October 2013 opinions, however,

12 - OPINION AND ORDER

reflects little overall deviation between his opinions.

For

example, in his October 2013 opinion Dr. Garber reduced the
number of hours that Plaintiff could stand or walk from two to
one, but he also eliminated the need for Plaintiff to take a
15-minute break every 30 minutes when sitting.

Dr. Garber noted

in his October 2013 opinion that Plaintiff should never kneel,
bend, or squat even though he had previously opined that
Plaintiff could occasionally do so.

Dr. Garber also did not

include any limitation on Plaintiff’s repetitive hand movements
even though he had previously limited Plaintiff to occasional
repetitive hand movements.

Finally, Dr. Garber’s opinion as to

the number of days of work he expected Plaintiff to miss in
October 2013 was actually fewer than he concluded in his November
2012 opinion.

As noted, in November 2012 Dr. Garber concluded

Plaintiff would be unable to work more than three days per week
while he opined in his October 2013 opinion that Plaintiff would
only miss two or more days per month.
In summary, the ALJ’s conclusion that Dr. Garber opined
Plaintiff had greater limitations in his October 2013 opinion
than he previously stated in his November 2012 opinion is
unsupported by the record.
In addition, although the ALJ stated in his conclusion that
Plaintiff’s “[p]hysical exams consistently do not support the
level of pain and functional limitations that . . . Dr. Garber”

13 - OPINION AND ORDER

concludes in his October 2013 opinion, the ALJ fails to point to
any specific medical evidence in the record that supports his
conclusory statement.

The Commissioner points to medical records

from more than a year before Dr. Garber’s October 2013 opinion to
support the ALJ’s statement, but the Court “cannot affirm the
decision of an agency on a ground that the agency did not invoke
in making its decision.”

Stout v. Comm'r, 454 F.3d 1050, 1054

(9th Cir. 2006)(citation and quotation omitted).

The Court,

therefore, rejects the Commissioner’s post hoc argument in
support of the ALJ’s rejection of Dr. Garber’s October 2013
opinion.

REMAND
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."
2004).

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

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
14 - OPINION AND ORDER

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
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.

The Court has determined the ALJ erred when he improperly
gave little weight to Dr. Garber’s October 2013 opinion, which,
the Court notes, is not contradicted by the opinions of other
treating or examining physicians on a fully-developed record.

In

addition, Dr. Garber opined Plaintiff would miss at least two
days of work per month, and the VE, in turn, testified a claimant
who missed two or more days of work per month would find “it
virtually impossible to maintain competitive employment.”
15 - OPINION AND ORDER

The VE

also testified there were not any jobs in the national economy
that such an individual could perform.

Tr. 76.

After giving the October 2013 opinion of Dr. Garber the
weight required by law, the Court concludes Plaintiff cannot work
on a regular and continuing basis and, therefore, is disabled.
See 20 C.F.R. §§ 404.1545(b), 416.945(b)(RFC is ability to work
on “regular and continuing basis”).

See also SSR 96-8p (“regular

and continuing basis” is “8 hours a day, for 5 days a week, or an
equivalent work schedule”).

The Court, therefore, concludes this

matter should not be remanded for further proceedings.
Schneider v. Comm’r, 223 F.3d 968 (9th Cir. 2000).

See

See also

Reddick, 157 F.3d at 729 ("We do not remand this case for further
proceedings because it is clear from the administrative record
that Claimant is entitled to benefits."); Rodriguez v. Bowen, 876
F.2d 759, 763 (9th Cir. 1989)(if remand for further proceedings
would only delay the receipt of benefits, judgment for the
claimant is appropriate).
Accordingly, the Court remands this matter for the immediate
calculation and award of benefits to Plaintiff.

CONCLUSION
For these reasons, the Court REVERSES the decision of
the Commissioner and REMANDS this matter pursuant to sentence

16 - OPINION AND ORDER

four of 42 U.S.C. § 405(g) for the immediate calculation and
award of benefits.
IT IS SO ORDERED.
DATED this 29th day of August, 2016.

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

17 - OPINION AND ORDER