Cagle v. Commissioner Social Security Administration
Filing
21
OPINION AND ORDER: The Commissioner's decision is REVERSED AND REMANDED for further proceedings and this appeal is dismissed. Signed on 4/23/2018 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
WYLIE C. CAGLE,
Case No. 6:17-cv-00231-AA
OPINION AND ORDER
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
AIKEN, Judge:
Plaintiff Wylie C. Cagle, brings this action pursuant to the Social Security Act, 42 U.S.C.
§ 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security
("Commissioner"). The Commissioner denied plaintiffs applications for Disability Insurance
Benefits ("DIB") and Supplemental Security Income ("SSI"). For the reasons set forth below,
the Commissioner's decision is reversed and remanded for further proceedings.
BACKGROUND
In March 2013, plaintiff applied for DIB and SSL He alleged disability beginning
September 10, 2008.
In 1982, plaintiff had a traumatic injury in which his left hand was
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completely severed; it was later surgically reattached. His disability application was based on
several issues related to that ittjury (atthritis, weakness, and carpal tunnel syndrome in his left
hand), as well as on sciatic nerve issues in his right leg, abdominal pain, chest pains, generalized
pain, fatigue, depression, and prediabetes. Plaintiffs applications were denied initially and upon
reconsideration. On July 22, 2015, plaintiff appeared at a hearing before an ALJ. At the hearing,
plaintiff testified and was represented by an attorney. Tluough his attorney, plaintiff amended
his disability onset date to May 18, 2013, his fiftieth birthday, and the day on which he was
reclassified as an individual closely approaching advanced age under the Social Security
regulations. A vocational expe11 also testified. The ALJ found plaintiff not disabled in a written
decision issued September 25, 2015. After the Appeals Council denied review, plaintiff filed a
complaint in this Cou11.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if it is based upon proper
legal standards and the findings are suppo1ted by substantial evidence in the record. 42 U.S.C. §
405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "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." Gutierrez v. Comm 'r of Soc. Sec., 740 F.3d
519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the
evidence that supports and the evidence that detracts from the ALJ' s conclusion."
~Mayes
v.
1\!fassanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one
interpretation but the Commissioner's decision is rational, the Commissioner must be affomed,
because "the comt may not substitute its judgment for that of the Commissioner." Edlund v.
Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
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COMMISSIONER'S DECISION
The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impahment which can be expected ... to last for a continuous period of not
less than 12 months[.]" 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4);
id § 416.920(a)(4). At step one, the ALJ found plaintiff had not engaged in "substantial gainful
activity" since the alleged disability onset date. Tr. 21; 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id.
§§ 416.920(a)(4)(i), (b).
At step two, the ALJ found plaintiff had the following severe
impairments: "osteoaiihritis or degenerative joint disease; obesity; left carpal tunnel syndrome;
and depression[.]" Tr. 21; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c); id§§ 416.920(a)(4)(ii), (c). The
ALJ considered the record evidence of diabetes but concluded it was not a severe impairment
because "[t]he overall record indicates that the claimant was not diagnosed with diabetes until
February 2014, well after his amended onset date of disability, and once he was diagnosed he
learned quickly to control his symptoms with diet, exercise and compliance with prescribed
medication." Tr. 22.
At step three, the ALJ determined plaintiffs impairments, whether considered singly or
in combination, did not meet or equal "one of the listed impairments" that the Commissioner
acknowledges are so severe as to preclude substantial gainful activity. Tr. 23; 20 C.F.R. §§
404.1520(a)(4)(iii), (d); id. §§ 416.920(a)(4)(iii), (d).
residual functional capacity ("RFC") to
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The ALJ found plaintiff retained the
perform less than light work as defined in 20 CFR 404.1567(b) and 416.967(b).
The claimant is fmther limited to no more than occasional climbing, and no more
than occasional pushing, pulling, handling, grasping and fingering with his left
upper extremity. The claimant would also be limited to jobs where he has no
more than occasional interaction with coworkers and the general public.
Tr. 25; 20 C.F.R. § 404.1520(e); id. § 416.920(e). At step four, the ALJ concluded plaintiff
could not perform any of his past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), (±); id. §§
416.920(a)(4)(iv), (±). At step five, the ALJ found that plaintiff could perform other jobs existing
in significant numbers in the national economy, such as mold machine attendant and stenciler.
Accordingly, the ALJ found plaintiff not disabled and denied his applications for benefits.
DISCUSSION
Plaintiff contends that the Commissioner committed three hannful errors in evaluating
his application for disability benefits. First, plaintiff argues that the post-hearing opinion of his
treating physician, Molly Tveite, M.D., establishes that the ALJ's evaluation of plaintiffs RFC
and conclusion at step five are not supported by substantial evidence. Second, plaintiff contends
that the ALJ impermissibly gave little weight to his testimony about his symptoms without
providing clear and convincing reasons for doing so. Finally, plaintiff avers that the ALJ erred in
failing to deem his diabetic neuropathy a severe impairment at step two, leading to additional
errors in evaluating plaintiffs RFC. Although I am unpersuaded by plaintiffs second and third
arguments, I agree that remand is necessary to permit the ALJ to evaluate Dr. Tveite's opinion.
I.
Dr. Tveite 's Post-Hearing Opinion
Plaintiffs primary argument on appeal is that the ALJ' s ultimate disability determination
is unsuppmted by substantial evidence in light of the post-hearing opinion of his treating
physician, Dr. Tveite. On January 21, 2016, after the ALJ found plaintiff not disabled, Dr.
Tveite completed a five page Medical Evaluation. Plaintiff submitted Dr. Tveite's opinion to the
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Appeals Council. In its order denying review, the Appeals Council stated that it had "looked at"
Dr. Tveite's opinion but that the new info1mation was "about a later time" and thus "does not
affect the decision about whether you were disabled beginning on or before September 25,
2015," the hearing date. Tr. 2. As an initial matter, the Appeals Council was inconect about the
period of time addressed by Dr. Tveite's opinion; although Dr. Tveite completed the evaluation
post-hearing, she specifically stated in the opinion that the limitations she described had been
present since she began treating plaintiff, in July 2013-just two months after the amended
disability onset date.
The governn1ent argues that the Appeals Council's en·or on that point is harmless,
however, because plaintiff has not shown either that the evidence is material to the disability
decision or that there is good cause for plaintiffs failure to obtain an opinion from Dr. Tveite
before the ALJ issued his written decision.
The government locates the "good cause"
requirement in the Social Security Act's judicial review provision, which provides, in relevant
part, that when a court reviews a denial of Social Security disability benefits, "it may at any time
order additional evidence to be taken before the Commissioner ... , but only upon a showing
that there is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g).
Section 405(g) requires a plaintiff to show good cause for failure to present new evidence
to the Commissioner before introducing that evidence in district cou1i. But, contrary to the
government's contention, it does not require a Social Security claimant to show good cause for
failure to present new evidence to the ALJ before presenting it to the Appeals Council. Brewes
v. Comm'r ofSoc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012). Indeed, the Social Security
regulations state, without any reference to "good cause," that "[t]he Appeals Council will
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consider all evidence in the administrative law judge hearing record as well as any new and
material evidence submitted to it which relates to the period on or before the date of the
administrative law judge hearing decision." 20 C.F.R. § 404.976(b). Plaintiff is not required to
show good cause for submitting Dr. Tveite' s opinion after the hearing.
Materiality, by contrast, does matter. To be clear, my task is not to determine whether
the Appeals Council violated the Social Security regulations in failing to deem Dr. Tveite's
opinion material; federal comts lack jurisdiction to review non-final agency actions, including
the Appeals Council's denial of a request for review. Brewes, 682 F.3d at 1161. Rather, I must
determine whether the ALJ' s decision-which became the final decision of the Commissioner
when the Appeals Council denied review-is supported by substantial evidence "based on the
record as a whole." Id at 1162. The "record as a whole" includes any evidence submitted to the
Appeals Council before the Commissioner makes her final disability decision. Id (internal
quotation marks omitted). I must determine whether Dr. Tveite's opinion is material to that
decision because, if it is not, the Commissioner's failure to either adopt its findings or reject
those findings for specific, legitimate reasons is harmless error. See }.;folina v. Astrue, 674 F.3d
1104, 1111 (9th Cir. 2012) ("[W]c many not reverse an ALJ's decision on account of an error
that is harmless.") Evidence is material in a Social Security case if it bears "directly and
substantially on the matter in dispute" and if "there is a 'reasonable possibility' that the new
evidence would have changed the outcome of the administrative hearing." }.;fayes, 276 F.3d at
462.
In the January 2016 evaluation, Dr. Tveite explained that she had been plaintiffs
physician since July 2013, and that she had seen him every three months since that date. She
diagnosed "post traumatic osteoarthritis of left hand with limited functionality due to extensive
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re-attachment procedure m 1982 with tendon repair, carpal tunnel syndrome (severe) with
weakness, left lumbar radiculopathy, hepatitis C, diabetes, depression, [and] learning
disability[.]" Pl.'s Br. Ex. A at 2 (capitalization and alterations nonnalized). Dr. Tveite opined
that plaintiff could walk less than one block without a rest or significant pain, could sit for only
fifteen minutes at a time, could stand for only fifteen minutes at a time, and could sit or
stand/walk for zero hours in an eight-hour workday. She further predicted that plaintiff would
need a fifteen minute break at least once an hour; could use his hands, fingers, and arms for
grasping, turning, fine manipulation, and reaching for zero percent of the workday; and would
miss more than four days of work per month due to his impairments. Finally, Dr. Tveite stated
that the limitations identified in the evaluation have been present since she began treating
plaintiff in July 2013.
The Commissioner argues that the limitations in Dr. Tveite's opinion are inconsistent
with her own treatment notes, with plaintiffs other medical records, and with plaintiffs
testimony about his activities of daily living. At a minimum, the conclusions the Commissioner
urges this Court to draw are not compelled by the record. Dr. Tveite is plaintiffs treating
physician.
"By rule, the Social Security Administration favors the opinion of a treating
physician over non-treating physicians." Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Even
when a treating physician's opinion is contradicted by substantial evidence in the record, that
opinion is "still entitled to deference and must be weighed using all the factors" provided in the
Social Security regulations. Lingenfelter v. Astrue, 504 F.3d 1028, 1038 n.10 (9th Cir. 2007).
Impo1tantly, Dr. Tveite's opinion conflicts with the opinions of the agency reviewing physicians,
but not with the opinion of any other treating or examining physician. I find that Dr. Tveite's
opinion is material because there is a reasonable possibility that the opinion would have changed
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the ALJ' s evaluation of plaintiffs RFC as well as the analysis at step five.
Remand 1s
appropriate to allow the ALJ to address the conflicts in the medical record in the first instance.
II.
Plaintiff's Subjective Symptom Statements
Plaintiff next challenges the ALJ' s decision to give little weight to his testimony about
the severity of his symptoms. When a claimant's medically documented impairments reasonably
could be expected to produce some degree of the symptoms complained of, and the record
contains no affinnative evidence of malingering, "the ALJ can reject the claimant's testimony
about the severity of ... symptoms only by offering specific, clear and convincing reasons for
doing so." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). A general assertion that the
claimant is not credible is insufficient; the ALJ must "state which ... testimony is not credible
and what evidence suggests the complaints are not credible." Dodrill v. Shala/a, 12 F.3d 915,
918 (9th Cir. 1993). If the "ALJ's credibility finding is supported by substantial evidence in the
record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959
(9th Cir. 2002).
Plaintiff testified that he experiences "tingling [in his hands] all the time; like, shooting
pain." Tr. 51. The pain is constant and made worse by lifting something too heavy or gripping
something for very long. He drops things like pens, pencils, paper, food, and utensils. At the
hearing, plaintiff reported that he had experienced the symptoms for four to five years (since
2010 or 2011) and that the symptoms were growing worse over time. Plaintiff also stated that
his medications caused dizziness, extreme tiredness, and loose bowels. He testified that he
sleeps four to five hours a day, and that his symptoms have been consistent since he was
diagnosed with diabetes. In an adult function rep01i completed April 4, 2013 (about a month
before the amended disability onset date), plaintiff reported that he was in pain a lot and had
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trouble sleeping. Nevertheless, he was able to wash and dry clothes, use a weedeater, and stack
:firewood. He repmted that he had no side effects from any of his medications. He was unable to
use his left hand much due to weakness and pain.
The ALJ found that although plaintiffs "medically determinable impahments could
reasonably be expected to cause the alleged symptoms," plaintiffs "statements concerning the
intensity, persistence and limiting effects of these symptoms are not entirely credible[.]" Tr. 26.
First, the ALJ found plaintiffs testimony about pain and weakness in his hands and fingers
inconsistent with his statement that, until roughly July 2014, he continued using a weedeater and
stacking :firewood. The ALJ concluded that, "[p]er his own testimony, the claimant was not as
limited in his functional abilities as alleged, at least not until about July 2014." Tr. 25. The ALJ
reasonably found plaintiffs statements that he was able to stack wood and use a weedeater, two
activities involving intense use of the fingers and hands, inconsistent with plaintiffs symptom
testimony. That inconsistency is a clear, convincing reason to give less weight to plaintiffs
statements with respect to the period up to July 2014. See Jvfolina, 674 F.3d at 1113 (holding
that pmticipation in activities that are inconsistent with claims of totally disabling impairments is
an appropriate ground to discredit a claimant's testimony).
The ALJ also found plaintiffs description of his symptoms inconsistent with the medical
record. For example, the ALJ found plaintiffs statements that he experiences side effects from
his medications and has had constant extreme tiredness incident to his diabetes since his diabetes
diagnosis in February 2014 inconsistent with a March 27, 2014 medical record expressly stating
that plaintiff reported "no side effects" from his medication and that he was "negative for
fatigue."
Tr. 481.
The ALJ also found plaintiffs report of being a long-time diabetic
inconsistent with the fact that he was not diagnosed with diabetes until 2014. Finally, the ALJ
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found plaintiff's statements about the severity of pain and weakness in his hands and fingers
inconsistent with a 2012 medical note stating that plaintiff reported his numbness and pain were
improving and with a 2013 medical note stating that his carpal tunnel pain was "managed as
needed with hydrocodone."
Tr. 442 (alterations to original).
The ALJ rationally found
plaintiff's testimony on those points to be incompatible with the medical record.
That
inconsistency is a clear, convincing reason to discredit plaintiff's symptom testimony.
Plaintiff attempts to explain the inconsistencies by arguing that his carpal tunnel pain
worsened after March 2012 and his diabetic neuropathy, though once well-controlled with
medication, worsened in April 2015. But at the hearing, plaintiff did not say that his symptoms
had been well-controlled and then gotten worse; he reported having problems beginning four to
five years before the hearing (earlier than March 2012) and that his condition deteriorated over
time. Although the record does not compel the conclusion that plaintiff's hearing testimony was
inconsistent with the medical documentation, the ALJ rationally interpreted it in that way.
Finally, the ALJ noted that plaintiff's initial alleged onset date was in September 2008,
when he was laid off from work. At the hearing, plaintiff explained that he began looking for a
new job at that time but stopped in January 2009 because he was frustrated that nobody wanted
to hire him. The ALJ also cited earnings records showing that plaintiff had only two years of
income at the substantial gainful employment level in the past fifteen years. The ALJ concluded
that "[t]he fact that the claimant reported such easy frustration in a matter of a few months while
looking for work, and his poor work history in the prior 15 years, leads the undersigned to
question whether his medical conditions are what is preventing him from sustaining gainful
employment." Tr. 26. That reason, too, meets the clear and convincing standard. See Thomas,
278 F.3d at 959 (holding that the fact that a Social Security disability claimant has shown "little
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propensity to work" is a valid factor in assessing how much weight to give to subjective
symptom statements).
In sum, the ALJ' s decision gave clear, convincing reasons supported by substantial
evidence in the record to give little weight to plaintiff's testimony about his symptoms.
Ill.
Step Two Analysis ofDiabetes
Plaintiff argues that the ALJ ened at step two by failing to classify his diabetic
neuropathy as a severe impairment. The step two inquiry is a de minimis screening device used
to dispose of groundless claims. Bowen, 482 U.S. at 153-54. The claimant bears the burden of
establishing that he has a severe impaitment at step two by providing medical evidence. 20
C.F.R. §§ 404.1512, 416.912. An impairment or combination of impairments is "not severe only
if the evidence establishes
a slight abnormality that has no more than a minimal effect on the
individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (emphasis in
original).
Where an ALJ fails to identify a severe impairment at step two, but nonetheless
considers at all subsequent steps all of the claimant's impairments, including the enoneously
omitted severe impaitment, the en·or at step two is hannless. Lewis v. Astrue, 498 F.3d 909, 911
(9th Cir. 2007).
At step two, the ALJ considered medical evidence related to plaintiff's diabetes but
concluded the diabetes was not a severe impairment. The ALJ noted that the record first shows a
report of pre-diabetes in March 2013, with a diagnosis of diabetes in February 2014. At that
point, plaintiff was placed on metfo1min, and medical records show his glucose has been under
good control since. Medical records also show that he reported no side effects from medications.
The ALJ found that, soon after his diagnosis, plaintiff learned to control symptoms of his
diabetes with "diet, exercise and ... medications." Tr. 22.
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Plaintiff concedes that Dr. Tveite reported in March 2014 that his diabetic neuropathy
was "well controlled" with medications. Tr. 482. He contends, however, that his symptoms
from diabetic neuropathy worsened in April 2015 when he reported pain in his shins. Tr. 500.
At that time, Dr. Tveite found "n01mal sensation" on examination and suggested that plaintiff
might benefit from diabetic footwear. Tr. 502-03. By June 2015, he was no longer complaining
of shin pain and reported his pain was "stable" with pain primarily in his hands, knees, and
elbows. Tr. 505. With respect to diabetic neuropathy, Dr. Tveite wrote that she discussed with
plaintiff the importance of regular foot care and reporting increased pain. Tr. 508. The ALJ
reasonably found those medical records insufficient to show anything more than a minimal effect
on plaintiffs ability to work.
Even if the ALJ ened at step two by failing to list diabetic neuropathy as a severe
impahment, that error was harmless. Plaintiff has not explained what additional restrictions the
ALJ should have included in the RFC as a result of his diabetic neuropathy, and no such
restrictions are apparent from the medical record. The ALJ did not ha11nfully err at step two.
IV.
Type ofRemand
In Social Security cases, the Ninth Circuit applies the "credit-as-true" doctrine to
determine whether remand should be for fmiher proceedings or for an immediate award of
benefits. Treichler v. Comm 'r of Soc. Sec. Admin., 775 F.3d 1090, ll05 (9th Cir. 2014). The
doctrine has three steps. First, the court must determine whether the Commissioner's decision
contains hmmful legal error. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015). Second,
the comi reviews the record as a whole to determine whether it is fully developed and free from
conflicts and ambiguities. Id. Finally, if the record has been fully developed "and there are no
outstanding issues left to be resolved, the district comt must next consider whether 'the ALJ
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would be required to find the claimant disabled on remand' if the 'improperly discredited
evidence were credited as true."' Id If so, the district court may remand for an immediate
award of benefits. Id. But even where all tluee steps of the credit-as-true test are satisfied, the
district court "may remand on an open record for further proceedings 'when the record as a
whole creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of
the Social Security Act."' Id at 408.
Here, the first step is satisfied because the Commissioner's decision did not consider the
material opinion of Dr. Tveite. The next question is whether the record is fully developed. Dr.
Tveite's opinion is in substantial tension with the opinions of the reviewing agency physicians.
It is the ALJ's duty to resolve conflicts in the medical evidence. lvfagallanes v. Bowen, 881 F.2d
747, 750 (9th Cir. 1989). Although plaintiff is not required to show good cause for failing to
submit Dr. Tveite's opinion to the ALJ, that failure unde1mines his argument that Dr. Tveite's
opinion should be credited as true. The Ninth Circuit has stated that one justification for the
credit-as-true doctrine is that "[a]llowing the Commissioner to decide the issue again would
create an unfair 'heads we win; tails let's play again' system of disability benefits adjudication."
Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). Here, those fairness concerns are
weakened by plaintiffs belated submission of Dr. Tveite's opinion. This is not a case where the
ALJ had an opinion before him but either ignored it or rejected it without legally sufficient
reason; the ALJ made his initial decision without the benefit of Dr. Tveite's opinion. Remand
for further proceedings is the appropriate remedy to permit the ALJ to evaluate that opinion in
the first instance.
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CONCLUSION
The Commissioner's decision is REVERSED AND REMANDED for futiher
proceedings and this appeal is dismissed.
IT IS SO ORDERED.
Dated this
(l..D
~day of April 2018.
Ann Aiken
United States District Judge
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