Johnson v. Commissioner Social Security Administration
Filing
23
OPINION AND ORDER: The Commissioner's decision is REVERSED and REMANDED for immediate award of benefits. Signed on 9/30/2019 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
Case No. 6:18-cv-00307-AA
OPINION AND ORDER
Tana J., 1
Plaintiff,
vs.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
AIKEN, District Judge:
Plaintiff Tana J. seeks judicial review of the final decision of the Commissioner
of Social Security ("Commissioner") denying her claim for Disability Insurance
Benefits. This Court has jurisdiction under 42 U.S.C. §§ 405(g), 1383(c). For the
reasons below, the Commissioner's decision is REVERSED and the case REMANDED
for an award of benefits.
1 In the interest of privacy, this opinion uses only the first name and the initial of the last name
of the non-governmental party or parties in this case. When applicable, this opinion uses the same
designation for the non-governmental party's immediate family member.
Page 1- OPINION AND ORDER
BACKGROUND
On October 3, 2013, plaintiff applied for Disability Insurance Benefits. Tr.
210. 2 She alleged disability beginning October 1, 2012, due to complications from
hysterectomy surgery, chronic pelvic and abdominal pain, urinary and bowel pain,
stage III endometriosis, fibromyalgia, anxiety, and depression. Tr. 80-81. After a
hearing, the administrative law judge ("ALJ") determined that Plaintiff was not
disabled under the Social Security Act. Tr. 37. The Appeals Council denied review,
making the ALJ's decision the final decision of the Commissioner.
This action
followed.
STANDARD OF REVIEW
A reviewing court shall affirm the decision of the Commissioner if it is based
on proper legal standards and the findings are supported by substantial evidence in
the record. 42 U.S.C. § 405(g); Batson v. Comm 'r Soc. Sec. Admin., 359 F.3d 1190,
1193 (9th Cir. 2004). "Substantial evidence is 'more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a reasonable mind might accept
· as adequate to support a conclusion."' Hill v. Astru.e, 698 F.3d 1153, 1159 (9th Cir.
2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, the
district court must review the
administrative record as a whole, weighing both the evidence that supports and
detracts from the decision of the ALJ. Davis v. Hee/lier, 868 F.2d 323, 326 (9th Cir.
1989).
2
"Tr." refers to the Transcript of the Social Security Administrative Record provided by the
Commissioner.
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DISCUSSION
The Social Security Administration uses a five-step sequential evaluation to
determine whether a claimant is disabled.
See 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4). The burden of proof fall to the claimant at steps one through four, and
with the Commissioner at step five. Id.; Bustamante u. lvlassanari, 262 F.3d 949,
953-54 (9th Cir. 2001) (citing Taclwtt u. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
At step five, the Commissioner must show that the claimant can adjust to other work
after considering the claimant's residual functional capacity ("RFC"), age, education,
and work experience.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
Commissioner fails to meet this burden, then the claimant is disabled.
If the
Id.
If,
however, the Commissioner proves that the claimant can perform other work existing
in significant numbers in the national economy, the claimant is not disabled. Id.; see
also Bustamante, 262 F.3d at 953-54.
Here, the ALJ found that plaintiff was not disabled. The ALJ first determined
that plaintiff met the insured status requirements of the Social Security Act through
December 31, 2018. Tr. 23. At step one, the ALJ found that plaintiff had not
performed substantial gainful activity since October 1, 2012, her alleged onset date.
Id. At step two, the ALJ found that plaintiff had the following severe impairments:
pelvic pain disorder of female genital organs, back pain with radiculopathy,
fibromyalgia, depression, anxiety, and post-traumatic stress disorder. Id. At step
three, the ALJ found that plaintiffs impairments or combination of impairments did
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not meet or medically equal the severity of one of the impairments listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Tr. 24-25.
Before proceeding the step four, the ALJ determined that plaintiffs RFC
allowed her to perform sedentary work with these limitations:
[Plaintiff] can lift 10 pounds occasionally and less than 10 pounds
frequently. She can stand and walk for two hours in an eight-hour day,
and sit for six hours in an eight-hour day. She can occasionally climb
ramps and stairs, but never climb ladders, ropes, or scaffolds. She can
occasionally crawl. She must avoid concentrated exposure to vibrations.
She can never tolerate exposure to workplace hazards such as exposed
moving machinery and unprotected heights. She can perform simple,
routine tasks, and can have occasional contact with the general-public."
Tr. 25.
At step four, the ALJ found that plaintiff could not perform any of her past
relevant work. Tr. 30. At step five, the ALJ found that based on plaintiffs age,
education, work experience, and RFC, jobs existed in significant numbers in the
national economy that plaintiff could sustain substantial gainful employment despite
her impairments. Tr. 31. Specifically, the ALJ found that plaintiff could perform the
representative occupations of addresser and semiconductor wafer breaker. Id. As a
result, the ALJ concluded that plaintiff was not disabled under the Act.
Plaintiff contends that the ALJ erred by improperly discounting the opinions
of plaintiffs treating physician and physical therapist and plaintiffs subjective
symptom testimony.
I,
Treating Physician Opinion
Plaintiff argues that the ALJ erred in discounting the opinion of Dr. Versage,
Gynecologist, who has been plaintiffs primary treating physician for her chronic
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pelvic pain, endometriosis, and chronic interstitial cystitis since April 2014. Tr. 789.
On October 13, 2016, Dr. Versage provided a medical evaluation form that described
plaintiffs gynecological diagnoses, symptoms, and signs and answered a series of
questions about how Plaintiffs impairments might limit her work performance. Tr.
1016-19. As relevant to this Court's review, Dr. Versage opined that plaintiff would
be unable to maintain a regular work schedule on more than four days per month.
Tr. 1019.
The ALJ gave "little weight" to that opinion, reasoning that it was
"speculative at best" and "not supported by the totality of the medical evidence in the
record." Tr. 29.
If a treating physician's opinion 1s supported by medically acceptable
techniques and is not inconsistent with other substantial evidence in the record, the
treating physician's opinion is given controlling weight. Holohan u. l\!Iassanari, 246
F.3d 1195, 1202 (9th Cir. 2001); see also 20 C.F.R. § 404.1527(d)(2). To reject the
uncontradicted opinion of a treating doctor, an ALJ must state "clear and convincing
reasons that are supported by substantial evidence." Ryan u. Comm'r of Soc. Sec.,
528 F.3d 1194, 1198 (9th Cir. 2008).
If, however, a treating doctor's opinion is
contradicted by the opinion of another physician, the ALJ must provide "specific and
legitimate reasons" for discrediting the treating doctor's opinion. Id.
Dr. Versage's opinion on plaintiffs ability to maintain a regular work schedule
is not contradicted by another physician's opinion. But even if it were, the ALJ erred
in discounting that opinion because the reasons the ALJ gave were clear and
convincing, nor specific and legitimate. Specific, legitimate reasons for rejecting a
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physician's opinion may include its reliance on a claimant's discredited subjective
complaints, inconsistency with medical records, inconsistency with a claimant's
testimony, inconsistency with a claimant's daily activities, or that the opinion is brief,
conclusory, and inadequately supported by clinical findings. Bray v. Comm'r of Soc.
Sec., 554 F.3d 1219, 1228 (9th Cir. 2009); Tommasetti v. Astrue, 533 F.3d 1035, 1040
(9th Cir. 2008); Andrews v. Sha/ala, 53 F.3d 1035, 1042-43 (9th Cir. 1995). Here, the
ALJ did not rely on any of those reasons, and instead assigned the opinion minimal
weight by "criticizing it with boilerplate language that failed to offer a substantive
basis" for the ALJ's conclusion. Garrison v. Colvin, 759 F.3d 995, 1013 (9th Cir. 2014);
see also id. at 1012 ("An ALJ can satisfy the 'substantial evidence' requirement by
'setting out a detailed and thorough summary of the facts and conflicting clinical
evidence, stating his interpretation thereof, and making findings." (quoting Reddick
v. Chater, 157 F.3d 715, 725 (9th Cir. 1998))); Reddich, 157 F.3d at 725 ("The ALJ
must do more than offer his conclusions. He must set forth his own interpretations
and explain why they, rather than the doctors', are correct.").
As a result, the ALJ erred in rejecting Dr. Versage's opinion. And I agree with
plaintiff that this improperly rejected opinion should be credited as true and the case
remanded for benefits, making discussion of plaintiffs remaining assignments of
error unnecessary.
II.
Type of Remand
While reviewing courts generally remand to the agency for "additional
investigation or explanation," Florida Power & Light Co. v. Lorio, 470 U.S. 729, 744
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(1985); see also Lingenfelter v. Astru.e, 504 F.3d 1028, 1044 (9th Cir. 2007) (the
ordinary remand rule applies to Social Security cases), Congress has granted courts
some additional flexibility in§ 405(g) "to reverse or modify an administrative decision
without remanding the case for further proceedings." Hannan v. Apfel, 211 F.3d
1172, 1177-78 (9th Cir. 2000).
The decision whether to remand for further
proceedings or for immediate payment of benefits is within the discretion of the court.
Id. at 1178. The issue turns on the utility of further proceedings. A remand for an
award of benefits is appropriate when no useful purpose would be served by further
administrative proceedings or when the record has been fully developed and the
evidence is insufficient to support the Commissioner's decision. Rodriguez v. Bowen,
876 F.2d 759, 763 (9th Cir.1989). Under the Ninth Circuit's "credit-as-true" doctrine,
I must undertake a three-step inquiry to make that determination. Burrell v. Colvin,
775 F.3d 1133, 1141 (9th Cir. 2014).
First, for the reasons explained above, the ALJ failed to provide sufficient
reasons for rejecting Dr. Versage's opinion about plaintiffs ability to maintain a
regular work schedule. Dominguez v. Colvin, 808 F.3d 403,407 (9th Cir. 2015). That
error was not harmless because, as explained below, if the ALJ had included that
limitation in plaintiffs RFC, the ALJ would have found that plaintiff was disabled
under the Act.
Second, I must determine whether the record has been fully developed and
whether further administrative proceedings would be useful. Icl. The Commissioner
contends that Dr. Versage's opinion was vague and not supported by her clinical
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findings and asserts that the ALJ should call a medical expert to testify about
plaintiffs pelvic impairment and how it interacts with her other impairments and
that the ALJ should then reweigh Dr. Versage's opinion in light of that evidence.
Another medical opinion is not needed because Dr. Versage, who is a gynecological
specialist, already provided her opinion. Her opinion was not vague; in the context
of the whole form, clear that it was based on the severity and frequency of pain that
plaintiff experienced, and it was based on a two-year treatment relationship with
plaintiff, which is well-described in Dr. Versage's treatment notes.
The Commissioner also contends that the record contains ambiguities that the
ALJ must resolve. Specifically, the Commissioner asserts that the opinions of Abigail
Dowd, plaintiffs physical therapist, are inconsistent with Dowel's treatment notes
describing plaintiffs activity level. In a medical evaluation form, Dowd opined that
plaintiff would need to lie down to rest for at least one hour twice a day, that plaintiff
was limited to sitting for 30 minutes at a time for a total of one hour each day, that
plaintiff was limited to walking and standing for five minute at a time for a total of
two hours each day, that plaintiff could never lift 10 pounds or more, and that plaintiff
would be unable to maintain a regular work schedule on four or more days per month.
Tr. 1008-12. The Commissioner points to several of Dowel's notes, which indicate that
plaintiff walked as part of her physical therapy and reported going for a fast walk
along the track in her neighborhood, going for a three-mile hike once, and doing 20minute treadmill walks most nights beginning in March 2016. Although Dowel's
reports of plaintiffs walking and Dowel's opinion that plaintiff is limited to walking
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for five minutes at a time for a total of two hours a day might be inconsistent, that
inconsistency does not extend to Dowd's other opinions. Moreover, the inconsistency
does not create a material ambiguity in this record.
It does not undermine Dr.
Versage's or Ms. Dowel's opinions on plaintiffs ability to maintain a regular work
schedule.
Third, I conclude that if the improperly discredited opinion on Plaintiffs ability
to maintain a regular work schedule were credited as true, the ALJ would be required
to find the claimant disabled on remand. Domingu.ez, 808 F.3d at 407. At the hearing,
the VE testified that, if a person with plaintiffs age, education, work experience, and
RFC needed to be absent from work four days a month on average, that "would
preclude gainful activity." Tr. 77.
Finally, consideration of the record leaves this Court in no doubt concerning
disability.
See Dominguez, 808 F.3d at 408 (noting that a reviewing court may
remand 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"). "Allowing the Commissioner to decide the issue again would create an unfair
'heads we win; tails, let's play again' system of disability benefits adjudication."
Beneclw v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004). Accordingly, this case shall
be remanded for an immediate calculation and award of benefits.
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CONCLUSION
The Commissioner's decision is REVERSED and REMANDED for immediate
award of benefits.
IT rs
so ORDERED.
11-r\-"'-
Datecl this'JJ_ clay of September 2019.
Ann Aiken
United States District Judge
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