Humphries v. Commissioner Social Security Administration
Filing
16
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. See attached order for further details. Signed on 12/11/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
AMBER CHRISTINE H.1,
Plaintiff,
6:18-cv-00215-BR
OPINION AND ORDER
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ARI D. HALPERN
Halpern Law Group
61910 OB Riley Rd., Ste 100
Bend, OR 97703
(541) 388-8410
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
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 non-governmental parties. The same
designation will be used to identify nongovernmental family
members named in this case.
1
1 - OPINION AND ORDER
MICHAEL W. PILE
Acting Regional Chief Counsel
MICHAEL S. HOWARD
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2539
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Amber Christine H. seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied
Plaintiff's applications for Disability Insurance Benefits (DIB)
under Title II of the Social Security Act and Supplemental
Security Income (SSI) under Title XVI 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.
ADMINISTRATIVE HISTORY
On May 14, 2012, Plaintiff filed an application for DIB
benefits.
In that application Plaintiff alleged a disability
2 - OPINION AND ORDER
onset date of January 1, 2007.
denied on September 6, 2012.
Tr. 121.2
That application was
Tr. 121-33.
request reconsideration of that denial.
Plaintiff did not
Tr. 230.
On March 18, 2013, Plaintiff protectively filed her
application for SSI benefits.
Tr. 15, 84.
In her application
Plaintiff alleges a disability onset date of May 1, 2008.
Tr. 15.
Plaintiff=s application was denied initially and on
reconsideration.
On January 26, 2017, Plaintiff amended her
alleged onset date to March 14, 2012, and requested her prior
application be reopened.
Tr. 15, 44, 230.
An Administrative
Law Judge (ALJ) held a hearing on February 9, 2017.
83.
Tr. 15, 38-
Plaintiff, a vocational expert (VE), and a medical expert
testified.
Plaintiff was represented by an attorney at the
hearing.
On March 29, 2017, the ALJ issued an opinion in which she
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Council.
Tr. 27.
Plaintiff requested review by the Appeals
On December 5, 2017, the Appeals Council denied
Plaintiff=s request to review the ALJ=s decision, and the ALJ=s
decision became the final decision of the Commissioner.
Citations to the official transcript of record filed by
the Commissioner on July 20, 2018, are referred to as "Tr."
2
3 - OPINION AND ORDER
Tr. 1-3.
See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On February 1, 2018, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner=s decision.
BACKGROUND
Plaintiff was born on October 27, 1980.
Tr. 26.
Plaintiff
was thirty-two years old on the date that she filed her
application for SSI benefits.
school through the 11th grade.
Tr. 26.
Plaintiff attended
Tr. 26, 238.
The ALJ found
Plaintiff has past relevant work experience as a sandwich-maker,
cashier, and service-station attendant.
Tr. 25-26.
Plaintiff alleges disability due to bipolar disorder,
depression, post-traumatic stress disorder, acid reflux, nerve
pain, anxiety issues, and asthma.
Tr. 84.
Except as 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. 20-25.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2012).
Molina v. Astrue, 674 F.3d 1104, 1110
To meet this burden, a claimant must
4 - OPINION AND ORDER
demonstrate her inability Ato 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.@
U.S.C. § 423(d)(1)(A).
42
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, 459B60 (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.
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 Arelevant 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 evaluating a claimant=s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
5 - OPINION AND ORDER
Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir. 2009).
The court must weigh all of the evidence
whether it supports or detracts from the Commissioner's
decision.
Cir. 2008).
Ryan v. Comm=r of Soc. Sec., 528 F.3d 1194, 1198 (9th
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.
1047, 1051 (9th Cir. 2012).
Ludwig v. Astrue, 681 F.3d
The court may not substitute its
judgment for that of the Commissioner.
Widmark v. Barnhart, 454
F.3d 1063, 1070 (9th Cir. 2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the
Commissioner determines the claimant is engaged in substantial
gainful activity (SGA).
416.920(a)(4)(i).
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.
20 C.F.R.
§§ 404.1509, 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
Keyser, 648 F.3d at 724.
6 - OPINION AND ORDER
See also
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), 416.920(a)(4)(iii).
648 F.3d at 724.
20 C.F.R.
See also Keyser,
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, he 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), 416.920(e).
(SSR) 96-8p.
See also Social Security Ruling
AA >regular and continuing basis= means 8 hours a
day, for 5 days a week, or an equivalent schedule.@
at *1.
20 C.F.R.
SSR 96-8p,
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.
7 - OPINION AND ORDER
20 C.F.R. §§ 404.1520(a)(4)(iv),
416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).
20 C.F.R. §§ 404.1520(a)(4)(v),
See also Keyser, 648 F.3d at 724-25.
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 MedicalVocational Guidelines (or the grids) set forth in the
regulations at 20 C.F.R. part 404, subpart P, appendix 2.
If
the Commissioner meets this burden, the claimant is not
disabled.
20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since March 18, 2013, Plaintiff=s
application date.
Tr. 17.
At Step Two the ALJ found Plaintiff has the severe
impairments of anxiety, depression, “polysubstance abuse,”
borderline personality disorder, somatic symptoms, and obesity.
Tr. 17.
The ALJ specifically found Plaintiff’s fibromyalgia is
8 - OPINION AND ORDER
a “non-medically determinable impairment.”
Tr. 18.
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. 18-20.
The ALJ found Plaintiff has the RFC to
perform medium work with the following limitations:
never climb
ladders, ropes, and scaffolds; no exposure to hazards such as
machinery and unprotected heights; and no concentrated exposure
to airborne irritants.
The ALJ found Plaintiff able to
understand, to remember, and to carry out only short and simple
instructions and to make simple work-related judgments and
decisions.
The ALJ also found Plaintiff can have no more than
occasional interactive contact with the public, coworkers, and
supervisors and only occasional changes in a routine work
setting.
Tr. 20.
At Step Four the ALJ concluded Plaintiff is unable to
perform her past relevant work.
Tr. 25.
At Step Five the ALJ found Plaintiff could perform other
jobs that exist in the national economy such as linen-room
attendant, sorter, and hand-packager.
Tr. 26-27.
the ALJ found Plaintiff is not disabled.
9 - OPINION AND ORDER
Tr. 27.
Accordingly,
DISCUSSION
Plaintiff contends the ALJ erred when she (1) failed to
“explicitly” address Plaintiff’s request to reopen her prior
application for benefits; (2) failed at Step Two to conclude
Plaintiff’s fibromyalgia is a medically determinable and severe
impairment; (3) failed at Step Three to find Plaintiff’s severe
impairments and her fibromyalgia meet or equal the Listing
requirements; (4) improperly rejected Plaintiff’s testimony;
(5) improperly evaluated the medical evidence; and
(6) improperly concluded at Step Five that Plaintiff is able to
perform other work.
I.
There was a de facto reopening of Plaintiff’s prior
application for benefits.
Plaintiff contends the ALJ accepted the amended disability
onset date of March 14, 2012, and considered evidence of alleged
disability from that date, which constitutes a de facto
reopening of Plaintiff’s May 14, 2012, application for benefits.
The Commissioner did not respond to this issue.
A.
The Law
A de facto reopening of a Commissioner’s earlier
decision can occur when “the Commissioner considers ‘on the
merits’ the issue of the claimant’s disability during the
already-adjudicated period.”
10 - OPINION AND ORDER
Brown v. Barnhart, 61 F. App’x
503, 503 (9th Cir. 2003)(citing Lester v. Chater, 81 F.3d 821,
827 n.3 (9th Cir. 1995)).
B.
Analysis
As noted, Plaintiff filed an application for benefits
on May 14, 2012, which was denied.
On March 18, 2013, Plaintiff
filed the current application that alleged a disability onset
date of May 1, 2008.
On January 26, 2017, Plaintiff amended her
disability onset date to March 14, 2012, which was also prior to
her May 2012 application, and she requested her prior
application to be reopened.
Plaintiff also presented and the
ALJ actually considered medical evidence dated March 14, 2012.
In Lewis v. Apfel the Ninth Circuit found a prior
application was de facto reopened when the ALJ knew about the
prior application, considered evidence of disability that
predated the current application, and accepted without comment
the alleged disability onset date that predated the current
application.
236 F.3d 503, 510 (9th Cir. 2001).
Here even though the ALJ did not explicitly reopen
Plaintiff’s prior application, the ALJ knew about the prior
application, allowed amendment of the alleged onset date, and
considered evidence that predated the original disability onset
date.
Thus, the Court concludes based on this record that the
ALJ reopened de facto Plaintiff’s earlier application.
11 - OPINION AND ORDER
Accordingly, the Court reviews the ALJ’s determination of
nondisability based on Plaintiff’s alleged onset date of
March 14, 2012.
II.
The ALJ erred when she failed to find Plaintiff’s
fibromyalgia was medically determinable and, accordingly,
failed to include it as a severe impairment at Step Two.
Plaintiff contends the ALJ erred at Step Two when she found
Plaintiff=s fibromyalgia was not a medically determinable
impairment and also failed to include it as a severe impairment.
The Commissioner, in turn, contends the ALJ’s determination
that Plaintiff’s alleged fibromyalgia was not a medically
determinable impairment is supported by substantial evidence in
the record.
The Commissioner also contends even if the ALJ
erred by failing to include Plaintiff’s fibromyalgia as a severe
impairment, the error was harmless.
A.
Standards
The inquiry for Step Two is a de minimis screening
device to dispose of groundless claims.
Bowen v. Yuckert, 482
U.S. 137, 153B54 (1987)(Step Two inquiry intended to identify
claimants whose medical impairments are so slight that it is
unlikely they would be found disabled).
See also Webb v.
Barnhart, 433 F.3d 683, 686 (9th Cir. 2005)(Step Two impairment
Amay be found not severe only if the evidence establishes a
slight abnormality that has no more than a minimal effect on an
12 - OPINION AND ORDER
individual's ability to work.@)(emphasis in original).
The claimant bears the burden to provide medical
evidence to establish at Step Two that she has a severe
impairment.
20 C.F.R. § 404.1512.
An impairment or combination
of impairments is Anot severe only if the evidence establishes a
slight abnormality that has no more than a minimal effect on an
individual's ability to work.@
Webb, 433 F.3d at 686.
At Step
Two the ALJ must consider the combined effect of the claimant's
impairments on her ability to function without regard to whether
each alone is sufficiently severe.
Howard ex rel. Wolff v.
Barnhart, 341 F.3d 1006, 1012 (9th Cir.2003).
See also Smolen
v. Chater, 80 F.3d 1273, 1289B90 (9th Cir.1996); 42 U.S.C.
§ 423(d)(2)(B); 20 C.F.R. § 416.923.
If the ALJ determines a claimant is severely impaired
at Step Two, the ALJ continues with the sequential analysis and
considers all of the claimant's limitations.
SSR 96B9p.
Step
Two is Amerely a threshold determination” as to whether the
claimant is able to perform her past work.
Hoopai v. Astrue,
499 F.3d 1071, 1076 (9th Cir. 2007).
To determine whether a claimant has a medically
determinable physical or mental impairment, the alleged
impairment “must result from anatomical, physiological, or
psychological abnormalities that can be shown by medically
13 - OPINION AND ORDER
acceptable clinical and laboratory diagnostic techniques.
Therefore, a physical or mental impairment must be established
by objective medical evidence from an acceptable medical
source.”
20 C.F.R. §§ 404.1521, 416.921.
A “statement of
symptoms, a diagnosis, or a medical opinion” are not enough to
establish a medically determinable impairment.
Id.
See also
SSR 96-4p.
B.
Analysis
SSR 12-2p specifically provides the criteria to
determine whether a claimant has a medically determinable
impairment of fibromyalgia.
SSR 12-2p, § II.B, requires a
claimant to establish a “history of widespread pain,”
“[r]epeated manifestations of six or more [fibromyalgia]
symptoms, signs, or co-occurring conditions,” and “evidence that
other disorders that could cause these repeated manifestations
of symptoms, signs, or co-occurring conditions were excluded.”3
As noted, the ALJ found Plaintiff’s alleged
fibromyalgia to be “a nonmedically determinable impairment” on
the ground that “the record does not include appropriate workup,
including and most importantly that other disorders that could
Plaintiff concedes she is limited to establishing the
medically determinable impairment for fibromyalgia pursuant to
the “specific criteria” of SSR 12-2p, § II.B. Pl.’s Brief at
13.
3
14 - OPINION AND ORDER
cause the reported symptoms be excluded.”
Tr. 18.
The medical evidence, however, reflects Plaintiff has
been diagnosed with fibromyalgia.
For example, in August 2013
Catherine Rojo, a physician’s assistant who treated Plaintiff,
noted Plaintiff “has a complicated medical history with
diagnosis of fibromyalgia.”
Tr. 495.
Rojo’s physical
examination of Plaintiff indicated “18/18 positive fibromyalgia
points,” and Rojo assessed Plaintiff as having lumbar
radiculopathy, fibromyalgia, chronic pain, and major depression.
Tr. 495, 499.
Rojo recommended, among other things, that
Plaintiff be seen by a rheumatologist.
Tr. 499.
On March 14, 2016, Sarah Dawson, M.D., Plaintiff’s
treating physician, indicated Plaintiff’s history of
fibromyalgia “might be the cause” of Plaintiff’s complaints of
blurry vision, dizziness, and fatigue.
Tr. 1107.
On June 7,
2016, Dr. Dawson again “suspected” fibromyalgia as the cause of
Plaintiff’s complaints of chronic fatigue and pain.
Tr. 1078.
On November 9, 2016, Dr. Dawson noted Plaintiff “was seen in
December 2012 by a rheumatologist who felt there was no evidence
of inflammatory arthritis on exam and [Plaintiff’s] symptoms
were consistent with fibromyalgia.”
Tr. 1064.
In addition, on
June 7, 2016, Dr. Dawson summarized laboratory tests related to
Plaintiff’s complaints of “dizziness, near-syncope, tinnitus,
15 - OPINION AND ORDER
fatigue, [and] visual disturbances” as “normal.”
Tr. 1079.
Dr. Dawson also noted “[w]orkup so far has included normal CBC,
TSH, CMP, echocardiogram, brain CT, and [b]rain MRI normal.”
Id.
On November 9, 2016, Dr. Dawson again discussed the
conditions that were excluded as being the cause of her
diagnosis of Plaintiff’s fibromyalgia.
Tr. 1064.
The record does not contain any other disorders that
could cause the symptoms, signs, or conditions.
For example,
the ALJ found Plaintiff’s reported migraines, seizures, and
irritable-bowel syndrome were “nonsevere.”
Tr. 18.
The ALJ
also found “from a musculoskeletal perspective, [Plaintiff] has
had various . . . complaints of wrist, knee, hip, ankle, foot,
and spinal pain, and alleged having arthritis at hearing, but
imaging has shown no or only minor or mild abnormalities.”
Tr. 17.
Thus, the Court notes the ALJ’s assessment of
Plaintiff’s RFC did not take into consideration any limitations
from Plaintiff’s fibromyalgia, and, as a result, each subsequent
step of the sequential evaluation process was adversely
impacted.
On this record the Court concludes the ALJ erred at
Step Two because her determination that Plaintiff’s fibromyalgia
is not a medically determinable impairment is not supported by
substantial evidence in the record.
16 - OPINION AND ORDER
Accordingly, the Court
concludes the ALJ’s error was not harmless.
Inasmuch as the Court has concluded the ALJ erred at
Step Two and such error was not harmless, the Court is not
required to address Plaintiff’s other allegations of error as
they primarily address how the ALJ’s failure to consider
fibromyalgia as a medically determinable impairment adversely
impacted the ALJ’s assessment of Plaintiff’s RFC and the effect
on the ALJ's subsequent sequential evaluation.
REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for the 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."
17 - OPINION AND ORDER
Harman v. Apfel, 211 F.3d 1172,
1178 (9th Cir. 2000).
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.
Id. at 1178
n.2.
Here the ALJ failed to determine whether Plaintiff’s
fibromyalgia equals a Listing Impairment, whether any
limitations as a result of Plaintiff’s fibromyalgia would impact
Plaintiff’s RFC, and how that impact would affect findings at
Step Four and Five of the sequential evaluation.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to Sentence Four
18 - OPINION AND ORDER
of 28 U.S.C. § 405(g) for further proceedings consistent with
this Opinion and Order.
IT IS SO ORDERED.
DATED this 11th day of December, 2018.
/s/ Anna J. Brown
______________________________________
ANNA J. BROWN
United States Senior District Judge
19 - OPINION AND ORDER
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