Kilbane v. Commissioner Social Security Administration
Opinion and Order: The Commissioner's final decision is therefore reversed and this matter is remanded for an award of benefits. Signed on 9/7/2017 by Judge Michael J. McShane. (cp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
BROOKE SHARLENE KILBANE,
Civ. No. 6:16-cv-00538-MC
OPINION AND ORDER
NANCY A. BERRYHILL,
Acting Commissioner of the Social Security
Plaintiff Brooke Kilbane brings this action for judicial review of the Commissioner’s
decision denying her application for supplemental security income (“SSI”) and disability
insurance benefits (“DIB”). This court has jurisdiction under 42 U.S.C. §§ 405(g) and
1383(c)(3). On September 12, 2012, Kilbane filed an application for SSI and DBI, alleging
disability as of August 27, 2012. After a hearing, the administrative law judge (“ALJ”)
determined Kilbane was not disabled under the Social Security Act from August 27, 2012
through January 21, 2015. Tr. 24. 1
Kilbane argues the ALJ made numerous legal errors. As discussed below, the ALJ erred
in assigning little or no weight to the only relevant treating medical opinions in the record.
Accorded proper weight, those opinions, along with the testimony of the vocational expert
“Tr” refers to the Transcript of Social Security Administrative Record provided by the Commissioner.
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(“VE”), demonstrate Kilbane is disabled under the Act. Therefore, the Commissioner’s decision
is REVERSED and this matter is REMANDED for an award of benefits.
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 in the record.
42 U.S.C. § 405(g); Batson v. Comm’r of 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, we review the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can
reasonably support either affirming or reversing, ‘the reviewing court may not substitute its
judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d
519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).
The Social Security Administration utilizes a five-step sequential evaluation to determine
whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of
proof rests upon the claimant to meet the first four steps. If the claimant satisfies his burden with
respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. §
404.1520. At step five, the Commissioner must show that the claimant is capable of making an
adjustment to other work after considering the claimant’s residual functional capacity (RFC),
age, education, and work experience. Id. If the Commissioner fails to meet this burden, then the
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claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262
F.3d 949, 953-54 (9th Cir. 2001).
Here the ALJ determined Kilbane could perform light work. Tr. 16-17. The critical
question here is whether Kilbane would have to: miss more than four days of work per month
due to her ailments; or routinely elevate or rest her feet during the workday? On both issues, only
two treating physicians offered an opinion. Both unequivocally answered “yes” to both
questions. The only contradicting opinions—to the extent they even contradict the treating
opinions on those two specific issues—come from the state reviewing physicians, who opined
Kilbane could perform light work. In reviewing the record, it is clear the ALJ erred in weighing
the medical opinions. Due to the complex nature of Kilbane’s ailments, I briefly outline her
health issues in the months surrounding the alleged onset date.
Prior to May 2012, Kilbane worked for 20 years as an elementary school teacher. For the
most part, Kilbane was in good health. In May 2012, however, that changed when several
difficult-to-diagnose ailments resulted in several hospitalizations over the following three
months. On May 10, 2012, a then 48 year old Kilbane was admitted to the hospital on the referral
of her primary care physician following abnormal lab results. Tr. 244. Kilbane later learned she
had acute renal failure. Kilbane also had pancytopenia (decreased platelets and red and white
blood cells), a rash, and arthralgias. Tr. 244-45. Three days later, her condition improved enough
for her to be discharged from the hospital.
One week later, Kilbane was readmitted with multisystem illness, leukocytoclastic
vasculitis, arthralgias, pancytopenia, possibly cirrhotic appearing liver, dyspnea, and lower
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extremity edema. Tr. 260. This hospitalization lasted eight days, upon which “she was felt to be
stable for discharge with outpatient evaluation.” Tr. 262. As the doctors were still unsure of the
exact nature or severity of her illness, Kilbane “underwent [a] plethora of further testing . . . .”
Tr. 261. At this point, Kilbane reported pain and swelling in her hands, feet, and knees “to the
point where it was too painful to walk.” Tr. 265.
One month later, Kilbane was hospitalized again, this time for three days. Tr. 291.
Doctors still lacked a firm diagnosis, noting only that it was “likely the diagnosis will be mixed
cryoglobulinemia vasculitis” and that it was unclear whether it and her “underlying liver disease”
were related. Tr. 292.
Upon discharge, Kilbane was referred to Dr. William Maier, a rheumatologist. Dr. Maier
first treated Kilbane on June 28, 2012, commented on the unclear etiology of Kilbane’s
symptoms and noted that although Kilbane previously suffered arthralgias, she was not in pain
on that date. Tr. 292-93. Near this time, Dr. Gregory Knecht, a gastroenterologist, noted
“Possible cirrhosis of the liver in the context of cryoglobulenemia and a systemic inflammatory
illness.” Tr. 295. One month later, Dr. Knecht commented Kilbane was “much better than when I
saw her in the hospital” and “she is simply much better and pleased.” Tr. 307. Kilbane’s
improvement appears to be due to Dr. Maier’s prescription of Rituxan for cryoglobulinemia
vasculitis (“CV”). 2 Tr. 307-08. Kilbane at this point complained of mild tingling in her toes. Tr.
One week later, on August 8, 2012, Kilbane established care with her primary care
physician, Dr. Molly Tveite. Tr. 344. By this time, doctors determined Kilbane suffered from,
amongst other ailments, CV, cirrhosis due to nonalcoholic steatohepatitis, and leukocytoclasic
As noted in Kilbane’s brief, cryoglobulinemia vasculitis is a thickening of blood and plasma due to abnormal
immune proteins. Br., n.1. CV “causes pain and damage to the skin, joints, peripheral nerves, kidneys, and liver.”
Id. (quoting Nat’l Heart, Lunc, and Blood Inst.).
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vasculitis. To say the least, Kilbane’s condition remained serious. Although Kilbane was
certainly better than when she was hospitalized, she was nowhere near back to full strength. Dr.
Tveite noted Kilbane’s energy level and strength “are not anywhere near baseline.” Tr. 344.
Kilbane also suffered from insomnia, possibly from medications, and anxiety, possibly from
work stressors. Tr. 344. On physical examination, Kilbane’s cheeks were “a little bit flushed.” 3
In mid-August 2012, Kilbane attempted to return to work. She had to move her classroom
and testified she simply could not handle returning to work. Her attempt to work did not last
long. On August 24, 2012, Kilbane again sought treatment from Dr. Tveite. As she recently
attempted, without success, returning to work, it is understandable that Kilbane’s chief complaint
at this time was “situational anxiety and depression” regarding returning to work. Tr. 342.
Adding to Kilbane’s anxiety was her knowledge that if she could not return to work, she and her
family would lose their health insurance. Tr. 360. Dr. Tveite noted Kilbane’s CV was being
managed by Dr. Maier, the specialist. Tr. 342.
Dr. Maier treated Kilbane on August 28, 2012, just days after her unsuccessful attempt at
returning to her classroom. Kilbane complained of “increasing joint pain, peripheral edema and
numbness, palpatations, and fatigue.” Tr. 360. While Kilbane self-reported numbness, objective
results demonstrated “some decreased light touch over her feet.” Tr. 360. Taking everything into
account, Dr. Maier provided the following assessment:
Brooke is having persistent symptoms, which is making it very difficult for her to
work. I agree with her that she is immunocompromised from her cirrhosis and
In finding Kilbane less-than credible, the ALJ pounced on Kilbane’s reported conflicts with her boss and her
“flushed cheeks.” The ALJ insinuated Kilbane quit due to that conflict rather than her symptoms, which the ALJ
described simply as flushed cheeks. Tr. 18. Looking past all of the medical evidence from the three months
immediately before Kilbane’s alleged onset date, the ALJ found, “The claimant’s alleged onset date and her
explanation for her inability to work were not convincing.” Tr. 18. These findings ignore Kilbane’s complex
symptomology and her recent life-threatening illnesses requiring multiple hospitalizations. As explained below,
because the ALJ’s error in weighing the medical opinions is dispositive, I need not discuss the ALJ’s questionable
credibility finding in detail.
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medications, and I have recommended that she consider disability for at least a
year of two while her disease is treated. She will investigate health insurance
options during this period of disability. We will plan to re-assess in 2 weeks’ time
with updated laboratory at that time.
On August 30, 2012, Dr. Maier drafted the following note:
To Whom it may concern,
Ms. Brooke Kilbane is completely disabled until Oct 31, 2012 due to life
threat[en]ing disease called cryoglobulinemia vasculitis and cirrhosis. She is
receiving immune suppressive therapy that increases her risk for infection and
cognitive dysfunction. She will be re evaluated at the end of Oct 2012.
Dr. Tveite treated Kilbane three times over the next three months. In September, Dr.
Tveite noted Kilbane had cognitive dysfunction of some sort, but generally deferred to Dr.
Maier’s thought that this was caused by either the CV or the CV medication. Tr. 339-40. Dr.
Maier noted Kilbane complained of some achiness and soreness, along with some dysesthesias in
her feet. Tr. 358. Dr. Maier concluded Kilbane’s CV was “currently stable” and noted Kilbane
“is walking on a daily basis.” Tr. 358. 4
In October, Kilbane was off prednisone and appeared to be doing better. Tr. 337.
Although she was doing better, Kilbane still suffered from insomnia and fatigue. Tr. 337. Dr.
Maier noted that although Kilbane reported she was stable, she “still has a lot of dysesthesias in
her hands and feet that worsen through the day. She has substantial fatigue.” Tr. 358. Although
Kilbane’s CV continued to improve, Dr. Maier spent some of this appointment discussing “her
disability secondary to her neurologic complaints and fatigue.” Tr. 356. On October 31, 2012,
The ALJ pointed to this note, that Kilbane walked daily, in finding Kilbane not credible. I agree with the ALJ that
Dr. Maier had no reason to make this comment up and that it contrasts with Kilbane’s testimony at the hearing.
That Dr. Maier understood Kilbane was walking daily does not provide a legitimate reason to assign his medical
opinion, based on his long-standing treating relationship with Kilbane, little weight. As noted, the outcome here
rests solely on the medical opinions concluding Kilbane would need to rest or regularly elevate her feet and would
miss numerous days of work each month on account of her ailments.
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Dr. Maier wrote a letter stating, “To Whom it May Concern, Ms. Brooke Kilbane remains
completely disabled from her autoimmune disease. Her period of disability will be
approximately one year.” Tr. 370.
In November 2012, Dr. Tveite again noted Kilbane continued to suffer from insomnia
and “continues to feel fatigued and tired and drained.” Tr. 335. Dr. Maier noted Kilbane’s
complaints of “persistent numbness and tingling in her toes and fingers.” Tr. 354. Despite her
complaints of tingling and numbness in her extremities, Kilbane’s CV “seems to be under good
control.” Tr. 354. Understandably, Kilbane was anxious because she would lose her health
insurance at the end of the month. Tr. 354.
In January 2013, Kilbane saw Dr. Maier again. She had lost 30 pounds, but “continues to
have numbness and tingling in her hands and feet, worse with activity. Feet are improved with
elevation.” Tr. 352. Dr. Maier concluded that although her CV was stable, the numbness and
tingling in her hands and feet “could be residual effects of the peripheral neuropathy associated
with her vasculitis.” Tr. 352. One month later, Kilbane again denied any join pain, but
complained of “a lot of numbness and tingling in her hands and feet.” Tr. 350. During this visit,
Dr. Maier “discussed her symptoms of peripheral neuropathy and cognitive dysfunction which
are quite disabling to her currently.” Tr. 350.
Two months later, Dr. Maier noted Kilbane reported being “reasonably stable.” Tr. 387.
Kilbane still suffered from fatigue and cognitive difficulties. She denied any leg swelling or joint
pain, but still had “some symptoms of peripheral neuropathy in her feet.” Tr. 387. Once again,
Dr. Maier noted Kilbane “seems to be stable.” Tr. 387. The plan was for a follow up appointment
in four months.
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At the follow up appointment, Kilbane complained of “flu-like symptoms much of the
time. She has chronic pain in her feet and legs whenever she stands for greater than an hour or
does prolonged walking.” Tr. 385. After a normal physical examination, Dr. Maier opined:
Brooke’s cryoglobulinemia and vasculitis seems to be in remission.
Unfortunately, she has chronic extremity pain associated with previous vasculitic
neuropathy. Her cirrhosis also is contributing to the fatigue. We discussed these
issues in some detail. I do feel she is disabled from teaching due to her cognitive
difficulties and her inability to stand for prolonged periods of time.
In January 2014, Dr. Maier filled out a medical evaluation form at the request of
Kilbane’s attorney. The form noted it would be used by the social security administration to
determine how Kilbane could perform on a sustained basis in a work setting. Tr. 397. The form
directed Dr. Maier to ensure any opinion on pain “should be consistent with your diagnoses and
objective findings and how pain contributes to your patient’s limitations.” Tr. 397. In filling out
the form, Dr. Maier noted Kilbane suffered from cryoglobulinemic vasculitis with painful
peripheral neuropathy” and cirrhosis “with fatigue.” Tr. 397. Dr. Maier concluded the “painful
peripheral neuropathy and cirrhosis are irreversible” and would last longer than 12 months. Tr.
397. Dr. Maier noted Kilbane had abnormal sensory exams in lower extremities with symptoms
of numbness, tingling, and pain in lower extremities, and fatigue from cirrhosis. Tr. 398. Dr.
Maier believed “debilitating fatigue requiring frequent rest” required Kilbane to have to rest
throughout the day. Tr. 398. Finally, Dr. Maier concluded Kilbane’s impairments would result in
her being unable to maintain a regular, 40 hour work week on more than four days each month.
Dr. Maier’s notes from Kilbane’s January 2014 appointment show Kilbane had a normal
examination but she complained of painful peripheral neuropathy. Dr. Maier concluded Kilbane
8 – OPINION AND ORDER
could have suffered “a flare” of her CV. Tr. 422. Three months later, Kilbane again had a normal
examination, but still suffered from chronic pain from the neuropathy. Tr. 421.
In June 2014, Kilbane reported significant pain in her feet. Tr. 420. Dr. Maier noted her
cirrhosis appeared to be stable. On examination, Dr. Maier noted Kilbane walked with a limp and
had “decreased light touching in the stocking distribution of her feet.” Tr. 420. In his assessment,
Dr. Maier concluded “Brooke is disabled due to her cirrhosis, fatigue and peripheral
neuropathy.” Tr. 420. One month later, Dr. Maier saw Kilbane again. Kilbane reported
unchanged symptoms, but “still suffers a good deal from her painful peripheral neuopathy.” Tr.
418. Objective results showed Kilbane to have “decreased sensation to light touch over a
stocking glove distribution of the feet.” Tr. 418. Although Kilbane “appears to be reasonably
stable,” Dr. Maier noted she “still struggles with painful peripheral neuropathy.” Tr. 418.
On August 21, 2014, Dr. Tveite saw Kilbane for the first time in one year due to the fact
Kilbane lost her insurance. Tr. 444. Dr. Tveite noted Kilbane continued to see Dr. Maier during
that time period. Dr. Tveite summarized Kilbane’s history and provided notes of her subjective
reports during this visit. Kilbane complained her peripheral neuropathy seemed most painful
when she stood more than 10-15 minutes. Tr. 444. On examination, Dr. Tveite noted “A sensory
deficit is present.” Tr. 445. In the assessment, Dr. Tveite concluded Kilbane “still exhibits
permanent neurologic damage related to past exacerbations.” Tr. 445. Finally, Dr. Tveite noted
Kilbane’s cirrhosis appeared to be resolved, possibly benefited by Kilbane’s better diet. Tr. 445.
That same day, Dr. Tveite drafted a letter stating:
It is my medical opinion that Brooke Kilbane is disabled and unable to work due
to permanent moderate cognitive impairment and irreversible peripheral
neuropathy due to cryoglobulinemic vasculitis. She has not exhibited any
improvement in these symptoms in the last two years and is unlikely to recover or
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On April 9, 2015, Dr. Tveite completed an evaluation form for Kilbane. Dr. Tveite noted
that although she went a year without seeing Kilbane, Dr. Maier continued to treat Kilbane and
forwarded progress notes on to Dr. Tveite. Tr. 464. Answering a question about Kilbane’s ability
to work considering her symptoms, Dr. Tveite commented, “The peripheral neuropathy causes
limitations in ability to stand for even short periods of time. (> 15 mins.).” Tr. 466. In
considering whether Kilbane’s symptoms would cause her to miss work, Dr. Tveite concluded:
It is difficult to predict how these impairments would affect her in a low stress,
full time job. However, based on my interactions with Brooke and her past
attempts to return to work – I suspect that the pain in her feet would require
special accommodation – with frequent breaks, rest periods and light duty. I
suspect that this may cause her to leave work early more than 1-2 x/week. She is
also prone to severe unpredictable bouts of fatigue related to insomnia and
Tr. 466. Like Dr. Maier, Dr. Tveite concluded Kilbane’s impairments would cause her to miss
more than 4 days per month during a regular work schedule. Tr. 467.
The opinions of Drs. Tveite and Maier, formed by treating Kilbane’s complex illness
over the course of two years, are the only relevant treating or examining medical opinions in the
record. Dr. Maier, who specializes in treating peripheral neuropathy and CV, treated Kilbane on
more than ten occasions. Dr. Tveite treated Kilbane on just under ten occasions, spending many
hours discussing symptoms with Kilbane. The ALJ gave both opinions little weight, opting
instead to give great weight to the opinions of the reviewing physicians who never saw or
The ALJ is responsible for resolving conflicts in the medical record, including conflicts
among physicians’ opinions. Carmickle v. Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008).
Generally, a treating doctor’s opinion is entitled to more weight than an examining doctor’s
opinion, which in turn is entitled to more weight than a reviewing doctor’s opinion. Garrison v.
Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). When a treating physician’s opinion is contradicted
10 – OPINION AND ORDER
by another medical opinion, the ALJ may reject the opinion of a treating physician only by
providing “specific and legitimate reasons supported by substantial evidence in the record.” Orn
v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).
As noted, the ALJ assigned little weight to the opinions of Drs. Tveite and Maier.
Instead, the ALJ gave “significant weight” to the state agency reviewing doctors “because they
were based on a review of all of the claimant’s medical records available at the time for a
comprehensive opinion of functioning.” Tr. 21. The problem with the ALJ’s reasoning is that
nearly “all of the claimant’s medical records” come from chart notes written by Drs. Tveite and
The opinions of treating source are generally entitled to controlling weight, as “these
sources are likely to be the medical professionals most able to provide a detailed, longitudinal
picture of your medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports of
individual examinations, such as consultative examinations or brief hospitalizations.” 20 C.F.R.
§ 404.1527(c)(2). This is especially true in Kilbane’s case, where her ailments were less-than
Generally, more weight is given “to the medical opinion of a specialist about medical
issues related to his or her area of specialty than to the medical opinion of a source who is not a
specialist.” 20 C.F.R. § 404.1527(c)(5). Considering the length and nature of Dr. Maier’s treating
relationship with Kilbane, his opinions should have been given controlling weight on any
questions regarding the extent of her limitations due to CV and peripheral neuropathy. 20 C.F.R.
§§ 404.1527(2)(i), (ii).
11 – OPINION AND ORDER
Dr. Maier’s opinions were backed, to the extent possible, by objective findings. On
numerous occasions, Dr. Maier noted Kilbane had abnormal sensory exams in the lower
extremities. Tr. 420, 398, 418. Dr. Maier was not alone in noting objective findings backed up
Kilbane’s complaints of painful peripheral neuropathy. Dr. Tveite also noted “A sensory deficit
is present” upon examination. Tr. 445. In fact, Dr. Tveite concluded Kilbane “still exhibits
permanent neurologic damage related to past exacerbations.” Tr. 445.
On numerous occasions, over the course of several years, Drs. Tveite and Maier observed
and examined Kilbane in a treatment setting, and listened to her relatively consistent claims of
painful numbness and tingling in her lower extremities. Contrary to the ALJ’s apparent
conclusion, the extent of one’s painful peripheral neuropathy is not something easily quantified.
But there is a reason treating physician’s opinions, both objective and subjective, are entitled to
“special weight.” Rodriguez v. Bowen, 876 F.2d 759, 761 (9th Cir. 1989). (quoting Embrey v.
Bowen, 849 F.2d 418, 421 (9th Cir. 1989)). Treating physicians are in the best position “to know
and observe the patient as an individual.” Id. (quoting Sprague v. Bowen, 812 F.2d 1226, 1230
(9th Cir. 1987)).
The ALJ rejected Dr. Maier’s opinion in part by concluding the opinion was an opinion
on the ultimate issue of disability, which is a decision reserved for the commissioner. Tr. 21.
While that may be true for Dr. Maier’s opinion that Kilbane was “disabled” or “disabled from
teaching,” Dr. Maier also offered more specific opinions on Kilbane’s functional limitations. As
relevant here, Dr. Maier concluded Kilbane suffered from “debilitating fatigue requiring frequent
rest.” Tr. 398. Dr. Maier described Kilbane’s symptoms as “Numbness, tingling and pain of
lower extremities. Fatigue from cirrhosis.” Tr. 398. Due to her numbness, pain, and fatigue, Dr.
Maier concluded Kilbane would miss more than 4 days of work each month. Tr. 399. Dr. Maier
12 – OPINION AND ORDER
believed Kilbane lacked the ability to “stand for prolonged periods of time.” Tr. 385. Dr. Maier’s
opinions align with those of Dr. Tveite, who concluded Kilbaine’s “peripheral neuropathy causes
limitations in ability to stand for even short periods of time (> 15 mins).” Tr. 466. Dr. Tveite
believed pain in Kilbane’s feet would likely cause her to leave work early once or twice each
week, and Kilbane’s impairments would result in her missing more than 4 days of work each
month. Tr. 466-67. Contrary to the ALJ’s conclusion, when read in conjunction with the
extensive chart notes, the only treating opinions in the record are not “vague.”
The ALJ pointed to the alleged contrast between Dr. Maier’s opinion and chart notes that
Kilbane, at various times, was doing “quite well.” As demonstrated by the outline of Kilbane’s
condition and treating history above, the ALJ’s conclusion misstates the record and ignores the
seriousness of Kilbane’s condition. In the summer of 2012, Kilbane’s condition was “life
threatening.” Tr. 368. That her condition improved enough to be discharged from the hospital is
neither here nor there. That her CV eventually stabilized did not mean she was cured. The chart
notes reveal that over the course of several years, her treating physicians believed Kilbane
suffered from painful peripheral neuropathy. Despite the fact Kilbane improved following
numerous hospital stays, she still had a complex “life threatening disease,” with complex
symptoms requiring ongoing treatment from a specialist over the course of two years.
The ALJ erred in elevating the opinions of the reviewing physicians over those of
Kilbane’s treating physicians. The opinions of Drs. Tveite and Maier are entitled to great weight.
As the ALJ erred, the question is whether to remand for further administrative
proceedings or an award of benefits. The Ninth Circuit recently clarified the “credit-as-true rule.”
See Garrison v. Colvin, 759 F.3d 995, 1019-23 (9th Cir. 2014). When additional proceedings can
13 – OPINION AND ORDER
remedy any errors by the ALJ, the case should be remanded. Id. at 1019. However, remand for
calculation of benefits is appropriate when:
(1) the record has been fully developed and further administrative proceedings
would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient
reasons for rejecting evidence, whether claimant testimony or medical opinion;
and (3) if the improperly discredited evidence were credited as true, the ALJ
would be required to find the claimant disabled on remand.
All three requirements are met in this instance. The record is fully developed. The ALJ
erred in assigning little weight to the only treating opinions in the record. Credited as true, those
opinions, along with the VE’s testimony, establish that Kilbane is disabled under the act.
The VE testified that more than one day of unscheduled absence per month is generally
not acceptable by the employer. Tr. 61, 65. If an employee had to lie down at unpredictable
times, the employee would be let go. Tr. 63. If an employee had to elevate her legs one or two
feet (or higher) for an hour or so each shift, at unpredictable intervals, the employee would not
be able to maintain competitive employment. Tr. 63-64. Because Kilbane would miss more than
four days of work each month and would need to frequently rest her legs throughout the day,
Kilbane is disabled under the act.
The opinions of Kilbane’s treating medical physicians, along with the testimony of the
VE, demonstrate Kilbane is disabled under the act. The Commissioner’s final decision is
therefore REVERSED and this matter is REMANDED for an award of benefits.
IT IS SO ORDERED.
DATED this 7th day of September, 2017.
_______/s/ Michael J. McShane ________
United States District Judge
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