Rodgers v. Commissioner Social Security Administration

Filing 21

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(g) for further administrative proceedings. Signed on 2/7/2017 by Judge Anna J. Brown. (pg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DARL N. RODGERS,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

ALAN STUART GRAF
208 Pine Street
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]

1 - OPINION AND ORDER

6:15-CV-02236-BR
OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
JORDAN D. GODDARD
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/A 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN, Judge.
Plaintiff Darl N. Rodgers 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 further proceedings.

ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB on August 3, 2012,
alleging a disability onset date of April 6, 2010.

Tr. 135. 1

The application was denied initially and on reconsideration.

An

Administrative Law Judge (ALJ) held a hearing on June 16, 2014.

1

Citations to the official transcript of record filed by
the Commissioner on May 24, 2016, are referred to as "Tr."
2 - OPINION AND ORDER

Tr. 35-61.

Plaintiff was represented at the hearing.

and a vocational expert (VE) testified.

Plaintiff

The ALJ issued a

decision on July 23, 2014, in which she found Plaintiff is not
disabled and, therefore, is not entitled to benefits.
Pursuant to 20 C.F.R.

§

Tr. 21-30.

404.984(d), that decision became the

final decision of the Commissioner on September 25, 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 December 17, 1959, and was 54 years old
at the time of the hearing.
school.

Tr. 40.

a cabinet maker.

Tr. 135.

Plaintiff completed high

Plaintiff has past relevant work experience as
Tr. 58.

Plaintiff alleges disability due to Perth's disease, leg and
foot pain, and lower-back pain.

Tr. 151.

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. 25-27.

STANDARDS

The initial burden of proof rests on the claimant to
establish disability.

3 - OPINION AND ORDER

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

Cir. 2012).

To meet this burden, a claimant must demonstrate his

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 (9ili 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.n

Molina,

674 F.3d. at 1110-11

(quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685,
(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.

690

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

4 - OPINION AND ORDER

2009).

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
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).

Comm' r of Soc. Sec.,

See also Keyser v.

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
5 - OPINION AND ORDER

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 his 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 *l.

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

6 - OPINION AND ORDER

work he 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.
Keyser,

20 C.F.R. § 404.1520(a) (4) (v).

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 (9'h 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 his April 6, 2010, alleged
onset date.

Tr. 23.

At Step Two the ALJ found Plaintiff has the severe
impairments of "left femoral acetabular impingement with mildly
reduced hip range of motion; bilateral plantar pain of
undetermined etiology; and cervicalgia with spasm but no
associated neurological deficits."

7 - OPINION AND ORDER

Tr. 23.

The ALJ found

Plaintiff's impairment of "borderline diabetes mellitus" is
nonsevere.

Tr. 24.

The ALJ also found Plaintiff's alleged

mental limitations are not a medically determinable impairment.
Tr. 24.
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. 24.

The ALJ found Plaintiff has the RFC to

perform "less than light work" and that Plaintiff can frequently
lift 20 pounds, climb ramps and stairs, and "reach all planes";
can occasionally stoop, crouch, kneel, and crawl; and can sit,
stand, and walk "each for six hours for a combined total of eight
hours .

. in an eight-hour work day."

Tr. 24.

The ALJ found

Plaintiff "requires the option to change positions from stand to
sit approximately two times per hour without interrupting
essential tasks."

Tr. 24.

The ALJ also found Plaintiff should

never operate foot controls or be exposed to hazards.

Tr. 24.

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

Tr. 28.

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. 28.

DISCUSSION
Plaintiff contends the ALJ erred when she (1) implicitly
rejected the opinion of Christopher Corbett, Psy.D., examining
psychologist and (2) found at Step Two that Plaintiff's mental
limitations are nonsevere.

I.

The ALJ erred when she failed to address Dr. Corbett's
opinion.
Plaintiff asserts the ALJ erred when she implicitly rejected

Dr. Corbett's September 2013 opinion.
An ALJ may reject an examining 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 an examining

physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
957.

See also Lester v.

Chater,

Thomas,

278 F.3d at

81 F. 3d 821, 830-32 (9th Cir.

1996) .
In September 2013 Plaintiff was referred to Dr. Corbett for
a vocational rehabilitation evaluation "to determine if
[Plaintiff] has a neurocognitive disorder, deficit in memory,
learning disability, or a mood or personality disorder and to

9 - OPINION AND ORDER

recommend appropriate accommodations and services to enable him
to be successful in educational and employment related
activities."

Tr. 388.

Dr. Corbett concluded Plaintiff is

easily overwhelmed by new or complex tasks and his
effort fades quickly and he becomes anxious and
agitated when he does not believe be can do
something.
[Plaintiff] has a very poor view of
his own cognitive abilities.
The testing showed
that he struggled with some academic tasks, but he
did not do as poorly as he believes.
He reported
multiple times that he is not able to read, but
his testing clearly shows that he is able to read
and write with Passage Comprehension and Writing
Sample subtest scores in the Average Range.
He
did show significant deficits in the fluency
subtests, which measure how quickly he is able to
perform tasks. He doubts himself to the point
where he does not have faith in his ability to
complete a cognitive task quickly without
rechecking it.
[Plaintiff's] testing did not
display a significant discrepancy between his
measured IQ and the Broad Cluster scores on the
achievement testing and he does not meet criteria
for a learning disorder.
Tr. 395.

Dr. Corbett noted Plaintiff was "easily distracted"

during his evaluation, but his "distractibility did not appear to
be overwhelming or uncontrollable.

.

. .

significant deficit in his attention,

Rather than a

[Plaintiff's]

distractibility appears to be a way to change the subject or to
avoid a task that he expects to fail."

Tr. 395.

Dr. Corbett was concerned Plaintiff
is easily overwhelmed by tasks that should not be
too difficult and that he gives up too easily,
believing that he is helpless.
He has very
limited faith in his ability to perform tasks
appropriately. While he does struggle with
academic tasks, he is able to perform many of
10 - OPINION AND ORDER

those tasks adequately.
It is my belief that his
fluency, or speed at which he performs a task,
will significantly improve as he becomes more and
more familiar with a required task.
Tr. 395.

Dr. Corbett, however opined Plaintiff's "mood, anxiety

and self worth will likely improve significantly when he is able
to find gainful employment."

Tr. 395.

Ultimately Dr. Corbett

concluded Plaintiff "did not display any significant learning
disabilities" and diagnosed Plaintiff with an "adjustment
disorder with mixed depression and anxiety."

Tr. 396.

Dr. Corbett noted Plaintiff "would benefit from dictation
software that would allow him to express something much quicker
than if he were to write it."

Tr. 397.

Dr. Corbett recommended

Plaintiff use assistance with completing job applications and
creating a resume because his "academic skills are poor and he
has little faith in them."

Tr. 397.

Dr. Corbett also

recommended Plaintiff use a word-processing program when he has
to perform a writing task because he has poor spelling skills.
The ALJ concluded at Step Two that the record did not
support a "finding of [a] learning disorder that would
functionally limit [Plaintiff']s ability to perform basic work
related tasks."

Tr. 24.

The ALJ noted Plaintiff underwent

"neuropsychological studies" in September 2013 at the request of
a Vocational Rehabilitation Coordinator "in which only some
adjustment disorder with mixed depression and anxiety was
assessed."

Tr. 24.

The ALJ did not directly reference or

11 - OPINION AND ORDER

address Dr. Corbett's opinion, did not evaluate Dr. Corbett's
opinion, and did not find Plaintiff suffered from any mental or
psychological limitations.
The Court concludes on this record that the ALJ erred when
she failed to evaluate Dr. Corbett's opinion because she did not
provide clear and convincing reasons supported by substantial
evidence in the record for not assessing Dr. Corbett's finding
that Plaintiff suffered from an adjustment disorder with mixed
depression and anxiety.

II.

The ALJ erred at Step Two.
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.
1052.

454 F.3d at

Stout,

See also 20 C.F.R. §§ 404.1509, 404.1520(a) (4) (ii).

A

severe impairment "significantly limits" a claimant's "physical
or mental ability to do basic work activities."
§

404.152l(a).

See also Ukolov,

20 C.F.R.

420 F.3d at 1003.

The ability

to do basic work activities is defined as ''the abilities and
aptitudes necessary to do most jobs."
(b).

20 C.F.R. §§ 404.1521(a),

Such abilities and aptitudes include walking, standing,

sitting, lifting, pushing, pulling, reaching, carrying, handling,
seeing, hearing, speaking; understanding, carrying out, and
remembering simple instructions; using judgment; responding
appropriately to supervision, co-workers, and usual work

12 - OPINION AND ORDER

situations; and dealing with changes in a routine work setting.
Id.

The Step Two threshold is low:
[A)n impairment can be considered as not severe only if
it is a slight abnormality which has such a minimal
effect on the individual that it would not be expected
to interfere with the individual's ability to work
[T)he severity regulation is to do no more
than allow the Secretary to deny benefits summarily to
those applicants with impairments of a minimal nature
which could never prevent a person from working.
SSR 85-28, at *2 (Nov. 30, 1984) (internal quotations omitted).
The "step-two inquiry is 'a de minimis screening device to
dispose of groundless claims.'"

Edlund v. Massanari, 253 F.3d

1152, 1158 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d
1273, 1290 (9ili Cir. 1996)).
The Ninth Circuit has held when the ALJ has resolved Step
Two in a claimant's favor, any error in designating specific
impairments as severe at Step Two does not prejudice a claimant
if the ALJ considered the impairments when formulating his
assessment of Plaintiff's RFC.

Burch v. Barnhart,

400 F.3d 676,

682 (9th Cir. 2005) (any error in omitting an impairment from the
severe impairments identified at Step Two was harmless when Step
Two was resolved in claimant's favor).
Plaintiff asserts the ALJ erred at Step Two when she found
Plaintiff did not have any mental limitations that constituted
severe impairments because in so doing the ALJ failed to evaluate
Dr. Corbett's opinion.
13 - OPINION AND ORDER

As noted, the ALJ's sole reference to

Dr. Corbett's opinion was the statement that Plaintiff underwent
neuropsychological evaluation and was assessed with

~only

adjustment disorder with mixed depression and anxiety."

some
Tr. 24.

The Court has already concluded the ALJ erred when she
failed to evaluate Dr. Corbett's opinion.

On this record,

therefore, the Court also concludes ALJ erred at Step Two when
she found Plaintiff's mental limitations are nonsevere because
she did not reach that conclusion based on substantial evidence
in the record.

In addition, the Court concludes the error is not

harmless because the ALJ did not include any mental limitations
in her assessment of Plaintiff's RFC.

See Burch, 400 F.3d at

682.

REMAND
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings.
11 79 (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.

14 - OPINION AND ORDER

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
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 she failed to
address Dr. Corbett's September 2013 opinion.

Dr. Corbett,

however, did not opine Plaintiff is disabled or unable to do any
work as a result of his mental limitations, and it is not clear
on this record whether the ALJ would have found Plaintiff
disabled if the ALJ had credited Dr. Corbett's opinion.
Court, therefore, concludes this matter must be remanded.
15 - OPINION AND ORDER

The

Accordingly, the Court remands this matter for further
administrative proceedings consistent with this Opinion and Order
specifically to allow the ALJ to evaluate Dr. Corbett's opinion,
to reassess Plaintiff's RFC, and to determine whether Plaintiff
is disabled of the ALJ's assessment of Dr Corbett's opinion and
Plaintiff's RFC.

CONCLUSION
For these reasons, the Court REVERSES the decision of
the Commissioner 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 7th day of February, 2017.

ANNA J. BROWN
United States District Judge

16 - OPINION AND ORDER