Weaver v. Commissioner Social Security Administration

Filing 26

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 consistent with this Opinion and Order. IT IS SO ORDERED. Signed on 10/17/2017 by Judge Anna J. Brown. (ecp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JANET FAE WEAVER,
Plaintiff,

6:16-cv-01471-BR
OPINION AND ORDER

v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
Defendant.

ALAN STUART GRAF
208 Pine St.
Floyd, VA 24091
[phone]
Attorney for Plaintiff

1

On January 23, 2017, Nancy A. Berryhill was appointed
Acting Commissioner of Social Security and pursuant to Federal
Rule of Civil Procedure 25(d) is substituted as Defendant in this
action.
1 - OPINION AND ORDER

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
LISA GOLDOFTAS
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 Janet Fae Weaver 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 administrative proceedings
consistent with this Opinion and Order.

ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB on February 22, 2012,
2 - OPINION AND ORDER

alleging a disability onset date of April 30, 2011.

Tr. 102.2

The application was denied initially and on reconsideration.

An

Administrative Law Judge (ALJ) held a hearing on April 16, 2014.
Tr. 41-97.
hearing.

Plaintiff was represented by an attorney at the

Plaintiff and a vocational expert (VE) testified.

The ALJ issued a decision on October 16, 2014, in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 25-34.

Pursuant to 20 C.F.R. § 404.984(d) that

decision became the final decision of the Commissioner on May 16,
2016, when the Appeals Council denied Plaintiff's request for
review.

Tr. 1-7.

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

(2000).

BACKGROUND
Plaintiff was born on November 11, 1961, and was 52 years
old at the time of the hearing.

Tr. 135.

Plaintiff completed

either eighth, ninth, or tenth grade3 and received training as a
certified nurse assistant (CNA) and a certified medication aide.
Tr. 245.

Plaintiff has past relevant work experience as a

and certified medication aide.

CNA

Tr. 32.

2

Citations to the official transcript of record filed by
the Commissioner on January 30, 2017, are referred to as "Tr."
3

Plaintiff stated at various points in the record that she
completed eight, ninth, or tenth grade. See, e.g., Tr. 69, 238,
245, 661.
3 - OPINION AND ORDER

Plaintiff alleges disability due to fibromyalgia,
depression, anxiety, high blood pressure, and arthritis.
Tr. 102.
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. 28, 30-32.

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.
4 - OPINION AND ORDER

42

U.S.C. § 405(g).

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."

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).

5 - OPINION AND ORDER

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).

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
6 - OPINION AND ORDER

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
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

7 - OPINION AND ORDER

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 had not engaged in
substantial gainful activity since her April 30, 2011, alleged
onset date.

Tr. 72.

At Step Two the ALJ found Plaintiff has the severe
impairments of degenerative disc disease and obesity.

Tr. 27.

The ALJ found Plaintiff’s hypertension, depression, and anxiety
are nonsevere.

Tr. 28-29.

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. 29.

The ALJ found Plaintiff has the RFC to perform light

work with the following limitations:

Plaintiff can stand and

walk for six hours in an eight-hour work day; can sit for six
hours in an eight-hour work day “with normal breaks”; can push
and pull “within light exertional limits”; can occasionally reach
overhead, stoop, kneel, crouch, and crawl; and can never climb
ladders, ropes, or scaffolds.

Tr. 29.

At Step Four the ALJ found Plaintiff can perform her past
relevant work as a certified medication aide.

8 - OPINION AND ORDER

Tr. 32.

At Step Five the ALJ found, in the alternative, that
Plaintiff can perform jobs that exist in significant numbers in
the national economy.

Tr. 34.

Accordingly, the ALJ found

Plaintiff is not disabled.

DISCUSSION
Plaintiff contends (1) the Appeals Council erred when it
failed to remand this case to the ALJ for consideration of new
evidence submitted by Plaintiff to the Appeals Council after the
ALJ’s decision; (2) the ALJ erred when she partially rejected
Plaintiff’s testimony; (3) the ALJ erred when she gave “little
weight” to the opinion of Plaintiff’s treating physician, Magha
Dissanayake, M.D.; and (4) the ALJ erred when she gave little
weight to the opinion of Devon Parks, P.A.C.
I.

The Appeals Council erred when it failed to remand this case
to the ALJ for consideration of new evidence submitted by
Plaintiff to the Appeals Council after the ALJ’s decision.
On February 10, 2015, almost ten months after the hearing

and almost eight months after the ALJ issued her opinion,
Plaintiff submitted additional evidence to the Appeals Council
including the psychological evaluation and mental RFC opinion of
Scott Alvord, Psy.D., examining psychologist.

Dr. Alvord

conducted psychological evaluations of Plaintiff in December 2014
and January 2015.

Dr. Alvord concluded Plaintiff functions “in

the low average range regarding IQ and memory . . . [and]
9 - OPINION AND ORDER

globally regarding neurocognitive abilities.”

Tr. 667.

Dr. Alvord noted Plaintiff’s “primary limitations related to
every day adaptive functioning are judged secondary to pain
issues. . . .

[A] combination of physical issues as well as

psychiatric stress manifested physically is contributing to pain
that is several days a week keeping her in bed.”

Tr. 667.

Dr. Alvord completed a Mental Residual Functional Capacity checkthe-box report in which he opined Plaintiff was moderately
limited in her ability to understand and to remember detailed
instructions, to carry out detailed instructions, to maintain
concentration and attention for extended period, to perform
activities within a schedule, to maintain regular attendance, to
be punctual within “customary tolerances,” to sustain an ordinary
routine without special supervision, to work in coordination with
or in proximity to others without being distracted by them, to
complete a normal workday and workweek without interruptions from
psychologically based symptoms, to perform at a consistent pace
without an unreasonable number and length of rest periods, to
interact appropriately with the general public, to respond
appropriately to changes in the work setting, to travel in
unfamiliar places, and to set realistic goals.

Tr. 669-71.

Dr. Alvord did not find Plaintiff suffered marked limitations in
any area of understanding and memory, sustained concentration and
persistence, social interaction, or adaptation.

10 - OPINION AND ORDER

The Appeals Council considered Dr. Alvord’s opinion and
concluded it “does not provide a basis for changing the [ALJ’s]
decision.”

Tr. 2.

Plaintiff contends the Appeals Council erred

when it failed to remand this case to the ALJ for consideration
of Dr. Alvord’s opinion.
The Ninth Circuit has held
when a claimant submits evidence for the first
time to the Appeals Council, which considers the
evidence in denying review of the ALJ’s decision,
the new evidence is part of the administrative
record, which the district court must consider in
determining whether the Commissioner’s decision is
supported by substantial evidence.
Brewes, 682 F.3d at 1159-60.
Plaintiff asserts Dr. Alvord’s opinion establishes the ALJ’s
decision was not based on substantial evidence in the record.
Specifically, Plaintiff notes the ALJ did not find Plaintiff had
any mental impairments and concluded Plaintiff’s only severe
impairments were degenerative disc disease and obesity.

In

reaching that conclusion the ALJ noted Plaintiff’s mental status
examinations in the record were “relatively unremarkable” and
Plaintiff’s depression “was asymptomatic in June and September
2014.”

Tr. 28.

The ALJ also relied on the May and August 2012

opinions of nonexamining psychologists who stated Plaintiff had
only mild limitations in her activities of daily living and
social functioning and no limitations in concentration,
persistence, or pace.

11 - OPINION AND ORDER

Tr. 28.

The ALJ did not cite to the

opinion of any treating or examining psychiatrist or psychologist
to support her conclusion that Plaintiff does not have any mental
impairments.

Dr. Alvord is an examining psychologist and,

therefore, the opinions of the nonexamining psychologists alone
are insufficient to reject Dr. Alvord’s opinion.

See Lester v.

Chater, 81 F.3d 821, 831 (9th Cir. 1996)("The opinion of a
nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician.").

In addition, the

opinion of Dr. Dissanayake, treating physician, supports
Dr. Alvord’s concerns regarding Plaintiff’s mental impairments.
Specifically, Dr. Dissanayake opined Plaintiff’s symptoms would
interfere with her concentration, persistence, and focus.
Tr. 32.
On this record the Court concludes Dr. Alvord’s opinion
establishes the ALJ’s decision is not supported by substantial
evidence.

The Court, therefore, concludes the Appeals Council

erred when it failed to remand this case to the ALJ for
consideration of Dr. Alvord’s opinion.
II.

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).

12 - OPINION AND ORDER

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
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.
13 - OPINION AND ORDER

Id. at 1178 n.2.

Because the Appeals Council erred when it failed to remand
this case to the ALJ for consideration of Dr. Alvord’s opinion
and because the ALJ’s errors alleged by Plaintiff were based in
part on the absence in the record of evidence of Plaintiff’s
mental impairments, the Court remands this matter for the ALJ to
conduct further administrative proceedings consistent with this
Opinion and Order and specifically to consider Dr. Alvord’s
opinion and to reevaluate Plaintiff’s alleged mental impairments,
Plaintiff’s testimony, and the opinions of Dr. Dissanyake and
P.A.C. Parks in light of Dr. Alvord’s opinion.

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 17th day of October, 2017.

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

14 - OPINION AND ORDER