Black v. Commissioner Social Security Administration
Filing
17
Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 28 U.S.C. § 405(g) for further proceedings consistent with this Opinion and Order. IT IS SO ORDERED. Signed on 10/30/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DONNA JEAN B. , 1
Plaintiff,
6:17-cv-01704-BR
OPINION AND ORDER
v.
Commissioner, Social
Security Administration,
Defendant.
ARID. HALPERN
Halpern Law Group, PC
62910 OB Riley Rd
Suite 100
Bend, OR 97703
(541) 388-8410
Attorney for Plaintiff
1
In the interest of privacy and pursuant to the
recommendation of the Judicial Conference of the United States,
this Opinion and Order uses only the first name and the initial
of the last name of the nongovernmental parties.
The same
designation will be used to identify nongovernmental family
members named in this case.
1 - OPINION AND ORDER
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1021
MICHAEL W. PILE
Acting Regional Chief Counsel
SARAH ELIZABETH MOUM
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2531
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Donna B. 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.
For the reasons that follow,
the Court REVERSES the
Commissioner's decision 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 March 10, 2014,
alleging a disability onset date of December 1, 2011.
2 - OPINION AND ORDER
Tr. 133-
35. 1
The application was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on August 22, 2016.
Tr. 30-53.
was represented by an attorney.
At the hearing Plaintiff
Plaintiff and a vocational
expert (VE) testified.
The ALJ issued a decision on October 12, 2016, in which she
found Plaintiff was not disabled before her December 31, 2012,
date last insured and, therefore, is not entitled to benefits.
Tr. 18-29.
Pursuant to 20 C.F.R. § 404.984(d), that decision
became the final decision of the Commissioner on August 29, 2017,
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 on September 15, 1955, and was 60 years
old at the time of the hearing.
high school.
Tr. 151.
Tr. 133.
Plaintiff completed
The ALJ found Plaintiff has past relevant
work experience as a volunteer coordinator.
Tr. 24.
Plaintiff alleges disability during the relevant period due
to "degenerative disease of the lumbar spine, status post three
lumbar surgeries; and right shoulder adhesive capsulitis."
Pl.'s
Brief at 1.
1
Citations to the official transcript of record filed by
the Commissioner on November 15, 2017, are referred to as "Tr."
3 - OPINION AND ORDER
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
See Tr. 22-24.
medical evidence.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110 (9 th
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
has lasted or can be expected to last for
impairment which .
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 (9 th Cir. 2011) (quoting Mayes v. Massanari, 276 F.3d
453, 459-60
(9 th 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 (9 th Cir. 2012).
Substantial evidence is
"relevant evidence that a reasonable mind might accept as
4 - OPINION AND ORDER
adequate to support a conclusion."
(quoting Valentine v. Comm'r Soc.
( 9 th Cir . 2 0 0 9 ) ) .
Molina,
674 F.3d. at 1110-11
Sec. Admin., 574 F.3d 685,
690
"It is more than a mere scintilla [of
Id.
evidence] but less than a preponderance."
(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. Ast rue, 5 7 2 F . 3 d 5 8 6, 5 91 ( 9 th Cir .
The court must weigh all of the evidence whether it
supports or detracts from the Commissioner's decision.
Comm'r of Soc. Sec., 528 F.3d 1194, 1198
Ryan v.
(9 th 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 (9 th Cir. 2012).
The court may not substitute its judgment for that of the
Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070 (9 th 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.
5 - OPINION AND ORDER
Parra v. Astrue, 481 F.3d 742, 746 (9 th Cir.
2007).
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 (9 th 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).
See also Keyser,
20 C.F.R. §§ 404.1509,
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 her limitations.
§ 404.1520(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
6 - OPINION AND ORDER
"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 (9 th Cir. 2011) (citing Fair v. Bowen, 885
F.2d 597, 603 (9~ 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.
See also Keyser,
20 C.F.R.
§
404.1520(a) (4) (iv).
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.
648 F.3d at 724-25.
§
404.1520(a) (4) (v).
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 th 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.
7 - OPINION AND ORDER
§
404.1520(g) (1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff did not engage in
substantial gainful activity (SGA) from her December 1, 2011,
alleged onset date through her December 31, 2012, date last
insured.
Tr. 20.
At Step Two the ALJ found Plaintiff has the severe
impairments of degenerative disc disease "status-post three
lumbar surgeries (including two lumbar surgeries in December
2011)" and right-shoulder adhesive capsulitis.
Tr. 20.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments during the relevant period did not meet
or medically equal one of the listed impairments in 20 C.F.R.
part 404, subpart P, appendix 1.
Tr. 21.
The ALJ found
Plaintiff had the RFC to perform the full range of sedentary work
during the relevant period.
Tr. 21.
At Step Four the ALJ found Plaintiff could perform her past
relevant work as a volunteer coordinator during the relevant
period.
Tr. 324.
Accordingly, the ALJ concluded Plaintiff was
not disabled from December 1, 2011, through December 31, 2012.
DISCUSSION
Plaintiff contends the ALJ erred when she (1) partially
rejected Plaintiff's testimony;
(2) gave "no weight" to the
statements of Plaintiff's husband Earl B.;
8 - OPINION AND ORDER
(3) gave "little
weight" to the opinion of Kathleen Moore, M.D., Plaintiff's
treating physician;
(4) failed to include all of Plaintiff's
limitations in her hypothetical to the VE; and (5) found at Step
Four that Plaintiff could perform her past relevant work as a
volunteer coordinator.
I.
The ALJ did not err when she partially rejected Plaintiff's
testimony.
Plaintiff alleges the ALJ erred when she partially rejected
Plaintiff's testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:
The claimant must produce objective medical evidence
of an impairment or impairments, and she must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cotton, 799 F.2d 1403 (9 th Cir.
1986), aff'd in Bunnell v. Sullivan,
1991).
947 F.2d 341 (9 th Cir.
The claimant, however, need not produce objective medical
evidence of the actual symptoms or their severity.
Smolen, 80
F.3d at 1284.
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if she provides clear and
convincing reasons for doing so.
Parra v. Astrue, 481 F.3d 742,
750 (9 th Cir. 2007) (citing Lester v. Chater, 81 F.3d 821, 834
9 - OPINION AND ORDER
(9 th
Cir. 1995)).
General assertions that the claimant's testimony is
not credible are insufficient.
Id.
The ALJ must identify "what
testimony is not credible and what evidence undermines the
claimant's complaints."
Id.
(quoting Lester, 81 F.3d at 834)
Plaintiff testified at the hearing that during the relevant
period she could not lift more than five pounds, she could only
sit for half an hour, she could stand for five-to-ten minutes
before she had to move around, she did not drive "very often"
because it caused her back to hurt, and she had to lie down for
over one quarter of the day to alleviate her back pain.
Tr. 37-
38, 41-42.
The ALJ found Plaintiff's "medically determinable
impairments could reasonably be expected to cause [Plaintiff's]
alleged symptoms" during the relevant period, but that
Plaintiff's "statements concerning the intensity, persistence and
limiting effects of [her] symptoms are not entirely consistent
with the medical evidence and other evidence in the record."
Tr. 22.
Specifically, the ALJ found the record does not support
the severity of Plaintiff's back-impairment symptoms during the
relevant period.
The ALJ noted Plaintiff underwent two surgeries
in December 2011 to repair a recurrent disc herniation.
The
record reflects Plaintiff experienced pain and weakness following
surgery, but she improved gradually until she suffered a third
disc herniation.
For example, on January 27, 2012, Dr. Moore
10 - OPINION AND ORDER
reported Plaintiff had some improvement "of her nerve," but she
still had "symptoms in her right leg especially surrounding her
right foot with kind of a dysesthesia and some weakness in her
right anterior tib and EHL."
Tr. 342.
Dr. Moore decided to
"keep [Plaintiff] in a brace" and "proceed with caution."
Tr. 342.
On March 2, 2012, Plaintiff reported to her physical
therapist that she had slept overnight on an air mattress that
"went soft"; she stood on concrete "all day"; and, as a result,
she was "very sore."
Tr. 281.
On March 15, 2012, however,
Dr. Moore reported Plaintiff "had some increase in her strength
and her right leg for sure."
Tr. 340.
Dr. Moore's examination
showed Plaintiff had "maybe some breaking weakness of her right
anterior tib[, but it is] a lot better than it was.
walk now without difficulty."
Tr. 340.
She can toe
Plaintiff had
"definitely improved a lot with physical therapy."
Tr. 340.
On
April 5, 2012, Dr. Moore reported Plaintiff "ha[d] been doing
great, gradually getting better," but she had a "flare up after a
trip over to The Valley.
She just took approximately a three-
hour drive, slept on an air mattress that really did not have a
lot of air, and then went to a party the next day where she was
standing on concrete a lot."
Tr. 338.
Plaintiff reported pain
in her back "but primarily in her left leg."
Tr. 338.
Dr. Moore
noted Plaintiff's "pain before has always been in her right leg.
This is left buttock, left posterior thigh pain."
11 - OPINION AND ORDER
Tr. 338.
In
her examination of Plaintiff Dr. Moore found swelling in
Plaintiff's back, and a
neurologic exam in her left leg shows just a
mildly diminished left patellar reflex.
She still
has a diminished right ankle jerk reflex.
Her
motor exam is 5/5 in both of her legs.
I am real
happy to see that her right anterior tib appears
to have fully improved, but she has a positive
straight-leg raise on the left now, seated and
supine. She still has diminished sensation over
her right lateral calf and right dorsum and
plantar foot.
Tr. 338.
Dr. Moore expressed concern that Plaintiff had a new
disc herniation, but she noted "we are going to try to manage
this.
This should get better.
any MRI.
We are going to hold off on
We will hold off on any injections.
We are
going to try her with antiinflammatory [sic] medications."
Tr. 338.
On June 12, 2012, Dr. Moore reported Plaintiff still
had "some numbness in her right left [but her] right foot is
super strong."
Tr. 337.
On September 17, 2012, however,
Dr. Moore reported Plaintiff was suffering "progressive right
lower extremity pain with numbness and tingling traveling along
the right lateral thigh and into the anterior calf and foot.
pain is worse with extended sitting or standing.
about progressive weakness."
Tr. 336.
The
She is worried
Dr. Moore's examination
of Plaintiff reflected "deep tendon reflexes mildly diminished
over the right ankle.
downgoing ...
Otherwise, 2+ throughout.
Babinski's arc
Strength is 5/5 with the exception of right
anterior tib, which is 4/5.
12 - OPINION AND ORDER
Sensation is diminished over the
right lateral thigh and calf.
throughout to light touch.
Otherwise grossly intact
Motor exam, mildly positive right
seated straight-leg raise, negative on the left."
Tr. 336.
Dr. Moore expressed concern about Plaintiff's "progressive lower
extremity weakness" and recommended a lumbar MRI.
Tr. 336.
On
October 1, 2012, Dr. Moore noted Plaintiff's MRI reflected
Plaintiff had "a re-herniation on the right L4-L5'' and "LS
radiculopathy."
Tr. 335.
Dr. Moore recommended an epidural
steroid injection, which Plaintiff underwent shortly afterwards.
On November 1, 2012, Plaintiff reported to Dr. Moore that the
epidural steroid "ha[d] worked great" and "ha[d] taken away
nearly 100% of the pain."
Tr. 334.
Plaintiff did not have any
motor weakness, her "neuro exam [was] intact [sic]," and she was
walking much better.
Tr. 334.
On December 4, 2012, Plaintiff
reported to Dr. Moore that she was "doing really well" and "had
no pain."
Tr. 333.
Plaintiff was going to physical therapy,
exercising in the pool, and planning an extended trip to Oklahoma
to be with her daughter after her granddaughter was born.
Dr. Moore's records do not reflect complaints from Plaintiff
about her back again until December 3, 2013, nearly one year
after her date last insured.
In addition, on February 4, 2013,
Plaintiff reported to her physical therapist that she had just
spent 45 days in Oklahoma with her daughter helping to care for
Plaintiff's newborn granddaughter.
13 - OPINION AND ORDER
Tr. 256.
Plaintiff had some
"occasional L leg pain" after her visit to Oklahoma, but she was
"able to heel and toe walk on the R which she previously ha[d]
not been able to do.
to be 4/5).
The R dorsiflexion is now 5/5 (which used
She is not 5/5 LEs."
Tr. 256.
Thus, although the
record reflects Plaintiff was suffering pain and weakness during
part of the relevant period after she had undergone two back
surgeries and then again when she suffered another herniation,
Plaintiff also experienced nearly complete relief from pain and
weakness during the relevant after she had an epidural injection.
The pain relief and improved strength lasted for at least a year
after the end of the relevant period.
Accordingly, the Court finds on this record that the ALJ did
not err when she partially rejected Plaintiff's testimony
regarding the intensity, persistence, and limiting effects of her
symptoms during the relevant period.
II.
The ALJ did not err when she gave "no weight" to Earl B.'s
statement.
Plaintiff contends the ALJ erred when she gave "no weight"
to the August 15, 2016, statement of Earl B.
Lay-witness testimony regarding a claimant's symptoms is
competent evidence that the ALJ must consider unless she
"expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so."
236 F.3d 503, 511 (9 th Cir. 2001).
Lewis v. Apfel,
See also Merrill ex rel.
Merrill v. Apfel, 224 F.3d 1083, 1085 (9 th Cir. 2000) ("[A]n ALJ,
14 - OPINION AND ORDER
in determining a claimant's disability, must give full
consideration to the testimony of friends and family members.").
The ALJ's reasons for rejecting lay-witness testimony must also
be "specific."
2006).
Stout v. Comm'r, 454 F.3d 1050, 1054 (9 th Cir.
When "the ALJ's error lies in a failure to properly
discuss competent lay testimony favorable to the claimant, a
reviewing court cannot consider the error harmless unless it can
confidently conclude that no reasonable ALJ, when fully crediting
the testimony, could have reached a different disability
determination."
Stout, 454 F.3d at 1056.
Earl B. stated Plaintiff "struggled to function" for two
years after her surgeries.
Tr. 209.
As examples he stated
Plaintiff could not sit, stand, or walk for more than 30 minutes
without needing to take a break to lie down or to move around for
two years after surgery.
Earl B. also noted he had to help
Plaintiff go to the bathroom for six months after her surgeries.
The ALJ did not give any weight to Earl B.'s statement on
the ground that it was not supported by the medical record.
Specifically, the ALJ noted the medical record reflects Plaintiff
had significant limitations for a few weeks after her December
2011 surgeries, but those limitations "did not persist at a
disabling level for more than 12 months" during the relevant
period.
As noted, the record reflects Plaintiff experienced some
15 - OPINION AND ORDER
improvement after her December 2011 surgeries until she suffered
a third herniated disc in mid-2012.
After Plaintiff received a
steroid injection in October 2012, however, she experienced full
pain relief, much less weakness, and improved strength and range
of motion.
Accordingly, the Court concludes on this record that the ALJ
did not err when she did not give any weight to Earl B.'s
statement regarding the severity of Plaintiff's impairments for
two years after her December 2011 surgeries.
III. The ALJ did not err when she gave "little weight" to
Dr. Moore's opinion.
Plaintiff asserts the ALJ erred when she gave little weight
to Dr. Moore's September 14, 2015, opinion.
An ALJ may reject a treating 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."
(9 th Cir. 2002).
Thomas v. Barnhart, 278 F.3d 947,
957
When the medical opinion of a treating
physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it.
See also Lester v. Chater,
957.
Thomas, 278 F.3d at
81 F.3d 821, 830-32 (9 th Cir.
1996).
On September 14, 2015, Dr. Moore completed a Request for
Medical Opinion in which she stated Plaintiff has "not been able
16 - OPINION AND ORDER
to engage in sedentary, light or medium work.
. on a regular
and sustained basis" from December 2011 through the date of her
opinion.
Tr. 484.
Dr. Moore explained Plaintiff "has hx of two
back surgeries, the most recent in 2011.
[Plaintiff] has
consistent, persistent leg and back pain, which causes the need
for frequent position changes, to include laying down
frequently."
Tr. 484.
In her response to the Request for
Medical Opinion, Dr. Moore noted Plaintiff complained of "[m]uch
difficulty sitting or standing [for] 30 minutes without needing
to walk around," the need to "lie down three to four times a day
for at least 30 minutes," and the "inability to lift 20 pounds on
even an occasional basis."
Tr. 484.
Dr. Moore stated
Plaintiff's complaints are "associated with clinically
demonstrated impairments that could reasonably be expected to
produce the claimed symptoms."
Tr. 484.
Dr. Moore, however,
left blank the section of the Request that asked her to "identify
the clinically demonstrated impairments/diagnosis that could
reasonably be expected to produce the claimed symptoms."
Dr. Moore noted she did not consider Plaintiff to be a malingerer
and that she considered Plaintiff's complaints to be reasonable.
The ALJ, however, gave little weight to Dr. Moore's opinion
as to the relevant period.
The ALJ noted Dr. Moore's opinion
is inconsistent with her own treating notes, which
show by December 2012 ([Plaintiff's] date last
insured) that [Plaintiff's] back was doing well
and
. she reported no pain, and [Dr. Moore]
17 - OPINION AND ORDER
reported normal motor, reflect, and sensory
examinations.
Tr. 24.
As noted, the record reflects Plaintiff suffered pain
and weakness during part of the relevant period after she had
undergone two back surgeries in December 2011 and then again when
she suffered another herniation in 2012.
Plaintiff, however,
experienced nearly complete relief from pain and weakness during
the relevant after she had an epidural injection.
The pain
relief and improved strength lasted for at least a year after the
end of the relevant period.
For example, on November 1, 2012,
Plaintiff reported to Dr. Moore that the epidural steroid "ha[d]
worked great" and "ha[d] taken away nearly 100% of the pain."
Tr. 334.
Plaintiff did not have any motor weakness, her "neuro
exam [was] intact [sic]," and she was walking much better.
Tr. 334.
On December 4, 2012, Plaintiff reported to Dr. Moore
that she was "doing really well" and "had no pain."
Tr. 333.
As
noted, Plaintiff was going to physical therapy, exercising in the
pool, and planning an extended trip to Oklahoma to. be with her
daughter after her granddaughter was born.
Dr. Moore's records
do not reflect complaints from Plaintiff about her back again
until December 3, 2013, nearly one year after her date last
insured.
In addition, on February 4, 2013, Plaintiff reported to
her physical therapist that she had just spent 45 days in
Oklahoma with her daughter helping to care for Plaintiff's
newborn granddaughter.
18 - OPINION AND ORDER
Tr. 256.
Plaintiff had some "occasional
L leg pain" after her visit to Oklahoma, but she was "able to
heel and toe walk on the R which she previously ha[d] not been
able to do.
4/5).
The R dorsiflexion is now 5/5 (which used to be
She is not 5/5 LEs."
Tr. 256.
Accordingly, on this record the Court concludes the ALJ did
not err when she gave little weight to that portion of
Dr. Moore's September 2015 opinion relating to the relevant
period.
IV.
The ALJ did not err when she failed to include all of
Plaintiff's limitations in her hypothetical to the VE.
Plaintiff alleges the ALJ erred when she failed to include
all of Plaintiff's limitations in her hypothetical to the VE.
Specifically, Plaintiff alleges the ALJ failed to include
limitations identified by Plaintiff, her husband, and Dr. Moore.
The Court has already concluded the ALJ did not err when she
rejected portions of Plaintiff's alleged limitations asserted by
Plaintiff, her husband, and Dr. Moore.
On this record,
therefore, the Court also concludes ALJ did not err when she did
not include those limitations in her hypothetical to the VE.
V.
The ALJ erred at Step Four when she found Plaintiff could
perform her past relevant work as a volunteer coordinator.
Plaintiff testified at the hearing that she last worked from
2002 through 2007 as a Smart Coordinator for the Oregon
Children's Foundation.
Tr. 35.
Plaintiff testified she "got
volunteers to come in and read to children, kindergarten to .
19 - OPINION AND ORDER
third grade," answered telephones, read to students, and
occasionally lifted up to forty pounds.
Plaintiff worked six
hours a day for four days per week.
The VE testified "[t]he job [in the Dictionary of
Occupational Titles (DOT)] that appear[ed] to best fit
[the job
of Smart Coordinator] is a Volunteer Coordinator
[DOT code]
187.167-022."
Tr. 49.
Volunteer Coordinator is a sedentary,
skilled job with an SVP of 7.
Tr. 49.
The VE testified an
individual of Plaintiff's age and education who could perform the
full range of sedentary work would be able to perform the job of
Volunteer Coordinator "not as the job was actually performed [by
Plaintiff], but according to the DOT, she - that being a
sedentary job, yes."
Tr. 49.
Plaintiff's attorney then engaged in the following exchange
with the VE:
Q:
A:
We're looking at between two and four years
of experience to be able to be considered
able to do that job.
Q:
And would that be two to four years of
experience full-time?
A:
Tr. 50.
[W]hat would be required for an SVP of 7 job
to have it count as past relevant work?
Yes.
Plaintiff's attorney then asserted at the hearing:
I'm not sure that [Plaintiff] reached the SVP 7
for the amount of time that - time with her work
history report.
It's a part-time job and the part
of the Volunteer Coordinator was a small .
. so
20 - OPINION AND ORDER
I would argue .
. that's not the accurate
characterization or if it is, [Plaintiff] hasn't
met the SVP requirements based on [the VE's]
answer.
Tr. 52.
The ALJ acknowledged in her decision that Plaintiff
performed her work as a Smart Coordinator on a part-time basis,
but she noted Plaintiff's "earnings record reflects that this
work was performed at the substantial gainful activity level."
Tr. 24.
The ALJ asserted Plaintiff "and her representative both
failed to raise [the] issue [of Plaintiff performing the work at
a level that did not meet the SVP 7 requirements] at the
hearing."
Tr. 24.
Plaintiff contends neither of the ALJ's findings are
accurate.
Plaintiff points out that the transcript reflects
Plaintiff's attorney specifically elicited testimony from the VE
that establishes a job with an SVP of 7 would only qualify as
past relevant work if it had been performed full-time for two to
four years, and the record reflects Plaintiff performed the Smart
Coordinator job only part-time for five years.
The record also
reflects Plaintiff's counsel at the hearing specifically
questioned whether Plaintiff's part-time work was sufficient to
meet the requirements for a SVP 7 job.
Accordingly, the ALJ
erred when she asserted Plaintiff's counsel failed to raise
whether Plaintiff's part-time work met the SVP 7 job criteria.
In addition, Plaintiff's earnings record reflects her
21 - OPINION AND ORDER
earnings as a Smart Coordinator for years 2002-2006 did not reach
the level required to qualify as SGA.
Thus, according to
Plaintiff, her work as a Smart Coordinator did not qualify as
past relevant work for any year except 2007.
The regulations governing Social Security state:
nwe
consider that your work experience applies when it was done
within the last 15 years, lasted long enough for you to learn to
do it, and was substantial gainful activity."
§ 404.1565(a).
20 C.F.R.
In addition, Social Security Ruling (SSR) 82-62
explains:
We consider that your work experience applies
[i.e., is relevant] when it was done within the
last 15 years, lasted long enough for you to learn
to do it, and was substantial gainful activity.
* * *
[A claimant's] [c]apacity to do past work may be
indicative of the capacity to engage in SGA when
that work experience constituted SGA and has
current relevance considering duration and
recency.
Emphasis added.
As noted, Plaintiff performed the work of Smart Coordinator
part-time for five years, and in only one of those years did she
perform it at a level that constituted SGA.
Accordingly, on this
record, the Court concludes the ALJ erred when she concluded
Plaintiff had past relevant work as a Volunteer Coordinator and
that Plaintiff could perform that past relevant work as described
22 - OPINION AND ORDER
in the DOT.
REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for calculation of benefits.
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."
1178 (9 th Cir. 2000).
Harman v. Apfel, 211 F.3d 1172,
The court should grant an immediate award
of benefits when
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting such
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.
23 - OPINION AND ORDER
Id. at 1178 n.2.
On this record the Court concludes further proceedings are
necessary because the ALJ did not ask the VE about other jobs
that Plaintiff could perform and did not proceed to Step Five of
the required Regulatory Sequential Evaluation.
Thus, the Court
concludes a remand for further proceedings consistent with this
Opinion and Order is required to permit the ALJ to complete Step
Five of the analysis.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
28 U.S.C. § 405(g) for further proceedings consistent with this
Opinion and Order.
IT IS SO ORDERED.
DATED this 30 th day of October, 2018.
A N ~
United States Senior District Judge
24 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?