Keebler v. Commissioner Social Security Administration

Filing 21

Opinion and Order: The Commissioners decision is reversed and remanded. On remand, the ALJ shall conduct further proceedings on an open record. Signed on 2/13/2017 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
KELLIE KEEBLER,
Plaintiff,
v.

Civ. No. 6:15-cv-02202-MC
OPINION AND ORDER

CAROLYN W. COLVIN,
Commissioner of the Social Security
Administration,
Defendant.
_____________________________
MCSHANE, Judge:
Plaintiff Kellie Keebler brings this action for judicial review of a final decision of the
Commissioner of Social Security denying her application for disability insurance benefits (DIB)
under Title II of the Social Security Act and Supplemental Security Income (SSI). The Court has
jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). After the ALJ’s decision, Keebler
submitted new evidence, a medical questionnaire completed by his treating physician, Stephen
K. Knapp, M.D., included in plaintiff’s request for Appeals Council to review the ALJ’s
decision. For the reasons stated below, the Commissioner’s decision is reversed and remanded
for further proceedings for the ALJ to weigh the new evidence in light of the original evidence.

1 - OPINION AND ORDER

PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff filed an application for disability insurance benefits on July 20, 2012, alleging
disability beginning January 1, 2011. Tr. 19. The claim was denied initially on October 9, 2012
and upon reconsideration on March 1, 2013. Id. A hearing was held on May 30, 2014 and on
June 19, 2014 the ALJ issued a decision finding plaintiff was not disabled. Tr. 19-29. In early
August 2014, Plaintiff requested a review of the ALJ’s decision by the Appeals Council. Tr. 14.
Following the request, in late August 2014 Stephen L. Knapp, M.D. completed a medical
questionnaire from Plaintiff’s counsel. Tr. 435-441. In September 2014 Dr. Knapp submitted a
second opinion questionnaire from Plaintiff’s counsel which was submitted to the Appeals
Council in October 2014. Tr. 181-82. The Appeals Council subsequently denied the request for
review, making the ALJ’s decision the final decision of the Commissioner. Tr. 1. This appeal
followed.
STANDARD OF REVIEW
The reviewing court shall affirm the Commissioner’s decision if the decision is based on
proper legal standards and the legal findings are supported by substantial evidence on the record.
42 U.S.C. § 405(g); Batson v. Comm’r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is
such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978,
980 (9th Cir. 1997)). To determine whether substantial evidence exists, this Court reviews the
administrative record as a whole, weighing both the evidence that supports and that which
detracts from the ALJ’s conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

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The Commissioner's findings are upheld if supported by inferences reasonably drawn
from the record; if evidence exists to support more than one rational interpretation, the court
must defer to the Commissioner's decision. Batson, 359 F.3d at 1193; Aukland v. Massanari, 257
F.3d 1033, 1034-35 (9th Cir. 2000) (when evidence can rationally be interpreted in more than
one way, the court must uphold the Commissioner's decision). A reviewing court, however,
“cannot affirm the Commissioner's decision on a ground that the Administration did not invoke
in making its decision.” Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)
(citation omitted). A court may not reverse an ALJ's decision on account of an error that is
harmless. Id. at 1055–56. “[T]he burden of showing that an error is harmful normally falls upon
the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
DISCUSSION
The Social Security Administration uses a five step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520; 416.920. The initial burden of proof rests
upon the claimant to meet the first four steps. If claimant satisfies his or her burden with respect
to the first four steps, the burden shifts to the Commissioner at step five. 20 C.F.R. § 404.1520.
At step five, the Commissioner’s burden is to demonstrate the claimant is capable of making an
adjustment to other work after considering the claimant’s residual functional capacity, age,
education, and work experience. Id.
Here, the ALJ found at step one of the sequential analysis that Plaintiff had not engaged
in substantial gainful activity (SGA) since the alleged onset date. Tr. 21. At step two, the ALJ
found Plaintiff suffered from the following severe impairments: degenerative disc disease of the
thoracolumbar spine; fibromyalgia; and diabetes mellitus. Id. The ALJ further found depression
to be a non-severe impairment. Tr. 22-23. At step three, the ALJ found that none of Plaintiff’s

3 - OPINION AND ORDER

impairments, alone or in combination, met or medically equaled one of the listed impairments in
20 C.F.R. Part 404, Subpart P, Appendix 1. Between steps three and four, the ALJ determined
Plaintiff had the residual functional capacity to perform medium work, except she was limited to
no more than occasional stooping and climbing, and no more than frequent kneeling, crouching,
and crawling. Tr. 23-24. At step four, the ALJ found that Plaintiff was capable of performing her
past relevant work as a network analyst. Tr. 26. The ALJ then continued on to make alternative
step five findings, determining that there were other jobs that Plaintiff was capable of performing
that existed in significant numbers in the national economy, specifically identifying the
representative occupations of hand packager, dining room attendant, and cashier II. Tr. 27-28.
Plaintiff contends that the ALJ’s decision to deny Plaintiff’s claim for disability is not
supported by substantial evidence because new evidence submitted to the Appeals Council
changes the weight of the evidence. Pl.’s Br. 4-7. The new evidence is a functional questionnaire
completed by Plaintiff’s treating physician of 30 years, Dr. Stephen Knapp. Id.; Tr. 435-41. Dr.
Knapp endorsed the diagnoses of fibromyalgia, chronic back and knee pain, diabetes, depression,
and anxiety. Tr. 435. He opined plaintiff’s symptoms of pain and fatigue constantly interfered
with her ability to sustain attention and concentration, and that depression and anxiety frequently
interfered. Tr. 436. He further opined that over an 8 hour workday, 5 days per week, plaintiff
would be unable to lift any weight on an occasional or frequent basis, could stand 20 minutes at a
time for a total of one hour in a work day, and could sit for two hours at a time for a total of three
hours in a workday. Id. Among other findings, Dr. Knapp stated that plaintiff’s fingers got numb
and she experienced arm and shoulder pain. Id. Pain and fatigue caused a significant impact on
Plaintiff’s ability to concentrate and maintain social functioning and daily activities. Tr. 437-38.

4 - OPINION AND ORDER

In light of her pain and mood symptoms he expected she would miss more than two days per
month from even a simple, routine, sedentary job. Tr. 438.
Defendant responds that the ALJ’s decision is supported by substantial evidence
notwithstanding the new evidence submitted to the Appeals Council. Def.’s Br. 4. Defendant
submits that Dr. Knapp’s opinion is undermined by the plaintiff’s daily activities. She reports an
ability to participate in college class, study groups, and other projects. She is able to pay
attention for “many hours.” Tr. 150. In addition, plaintiff does household chores, prepares meals,
shops, drives, yard work and arts and crafts. Tr. 146-49. She does report though that she cannot
stand for more than 15 or 20 minutes or walk for more than 15 minutes. Tr. 150. She has to take
frequent breaks when doing physical work such as cleaning, yard work, or shopping. Tr. 148.
Plaintiff has not alleged any mental limitations such as problems remembering, completing tasks,
concentrating, understanding, following instruction, or getting along with others. Tr. 150. Her
stated effected conditions are lifting, standing, walking, stair climbing and using hands. Tr. 150.
Defendant argues that while Plaintiff alleges she became disabled in January 2011 as of
late 2010, she was able to work 25 hours per week and go to school while taking oxycodone. Tr.
127, 349-52. Further, Plaintiff experienced a gap in treatment between at least August 2011 and
the fall of 2012. Tr. 198, 433. The treatment notes from this period do not pertain to her alleged
disabling impairments. The ALJ assigned the opinions of Linda L. Jenson, M.D. and Neal E.
Berner, M.D. great weight, because the opinions were consistent with plaintiff’s responses to
treatment and ability to attend school during the relevant period. Tr. 26. Defendant argues that
the inconsistency with the evidence in the record is a valid basis to discount the medical opinion
of Dr. Knapp’s. 20 C.F.R. § 404.1527(c)(4). Defendant further argues the ALJ only needs to
provide specific and legitimate reasons for discounting a treating physician’s opinion. See Lester

5 - OPINION AND ORDER

v. Chater, 81 F.3d 821, 830 (9th Cir. 1996); Widmark v. Barnhart, 454 F.3d 1063, 1066-67 (9th
Cir. 2006). “[W]hen evaluating conflicting medical opinions, an ALJ need not accept the opinion
of a doctor if that opinion is brief, conclusory, and inadequately supported by clinical findings.”
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). Here the ALJ discounted Dr. Knapp’s
initial opinion because they found it to be conclusory. Tr. 26. Although Dr. Knapp was a longtime treating source, the ALJ gave his opinion little weight because “he did not provide specific
limitations that could be the basis of a residual functional capacity.” Tr. 26. Plaintiff counters
that that rationale no longer applies, because the record now contains a detailed functional
assessment of Plaintiff’s abilities from a long-term treating source.
I find the ALJ here issued a well-reasoned decision based on the evidence before him at
the time. However, I also find the ALJ must weigh the new evidence in light of the original
evidence. Because it is not clear that the ALJ would have to find plaintiff disabled even with the
new medical opinion, this matter is remanded to the ALJ for further proceedings.
CONCLUSION
The Commissioner’s decision is reversed and remanded. On remand, the ALJ shall
conduct further proceedings on an open record.
IT IS SO ORDERED.
DATED this 13th day of February, 2017.

______/s/Michael J. McShane_______
Michael J. McShane
United States District Judge

6 - OPINION AND ORDER