Slabaugh v. Commissioner Social Security Administration
Filing
18
Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for the immediate calculation and payment of benefits. IT IS SO ORDERED. See attached order for further details. Signed on 6/11/19 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MOLLY ANN S.,1
Plaintiff,
6:18-cv-00572-BR
OPINION AND ORDER
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
KATHERINE L. EITENMILLER
Harder, Wells, Baron & Manning, P.C.
474 Willamette St.
Eugene, OR 97401
(541) 686-1969
Attorneys 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 this Court uses only the first
name and the initial of the last name of the nongovernmental
party in this case. Where applicable, this Court uses the same
designation for the nongovernmental party's immediate family
member.
1
1 - OPINION AND ORDER
MICHAEL W. PILE
Acting Regional Chief Counsel
ALEXIS L. TOMA
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2950
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Molly Ann S. 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 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 pursuant to
sentence four of 42 U.S.C. § 405(g) for the immediate
calculation and payment of benefits.
ADMINISTRATIVE HISTORY
On March 17, 2014, Plaintiff protectively filed her
2 - OPINION AND ORDER
application for SSI benefits.
Tr. 21, 168-78.2
alleged a disability onset date of May 1, 2010.
Plaintiff
Tr. 21, 168.
Plaintiff=s application was denied initially and on
reconsideration.
An Administrative Law Judge (ALJ) held a
hearing on November 1, 2016.
Tr. 21, 41-82.
Plaintiff, a
vocational expert (VE), and a medical expert testified at the
hearing.
Plaintiff was represented by an attorney.
At the
hearing Plaintiff amended her alleged disability onset date to
March 17, 2014.
Tr. 21, 46.
On December 7, 2016, the ALJ issued a partially favorable
decision in which she found Plaintiff became disabled and is
entitled to benefits starting on June 2, 2015.3
The ALJ,
however, found Plaintiff was not disabled and not entitled to
benefits between March 17, 2014 and June 2, 2015.
Tr. 21, 29.
On December 21, 2016, Plaintiff requested review by the
Citations to the official Transcript of Record (#10)
filed by the Commissioner on October 30, 2018, are referred to
as "Tr."
2
Although Plaintiff amended her alleged disability onset
date to March 17, 2014, the ALJ considered the claim from the
initial alleged onset date of May 1, 2010. Tr. 23-27. The
relevant period, however, is from March 17, 2014, which is the
amended alleged onset disability and application date, to
June 2, 2015, which is the established onset disability date.
3
3 - OPINION AND ORDER
Appeals Council.
Tr. 166-67.
On January 29, 2018, 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.
Tr. 1-3.
See Sims v. Apfel, 530 U.S. 103, 106-07
(2000).
On April 4, 2018, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner=s decision.
BACKGROUND
Plaintiff was born on June 3, 1960.
Tr. 168.
Plaintiff
was 55 years old on her disability onset date of June 2, 2015.
Tr. 27.
Plaintiff has at least a high-school education.
Tr. 27, 200.
Plaintiff has past relevant work experience as a
babysitter, grounds guard, and clean-up worker.
Tr. 50-52, 74.
Plaintiff alleges disability due to a broken tailbone, back
problems, anxiety, and depression.
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. 25-27.
4 - OPINION AND ORDER
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
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.
U.S.C. § 405(g).
42
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
5 - OPINION AND ORDER
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.
(9th Cir. 2009).
Vasquez v. Astrue, 572 F.3d 586, 591
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).
20 C.F.R. § 416.920(a)(4)(i).
See also
Keyser v. Comm=r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
6 - OPINION AND ORDER
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.
§ 416.920(a)(4)(ii).
20 C.F.R.
See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant=s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 416.920(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.
§ 416.920(e).
20 C.F.R.
See also Social Security Ruling (SSR) 96-8p.
AA
>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.
7 - OPINION AND ORDER
Taylor v. Comm=r of Soc. Sec. Admin.,
659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work she has done in the past.
20 C.F.R. § 416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
20 C.F.R. § 416.920(a)(4)(v).
Keyser, 648 F.3d at 724-25.
See also
Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.
Lockwood v.
Comm=r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony
of a VE or by reference to the Medical-Vocational Guidelines (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. § 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since May 1, 2010, Plaintiff=s
8 - OPINION AND ORDER
original alleged disability onset date.
Tr. 23.
At Step Two the ALJ found Plaintiff has the severe
impairments of degenerative disc disease, fracture of the
coccyx, microscopic hematuria, and depression.
Tr. 23.
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. 24.
The ALJ found Plaintiff has the RFC to
perform light work with the following limitations:
can
occasionally climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl; can never climb ladders, ropes, or scaffolds;
and cannot tolerate exposure to extreme cold or vibrations or to
workplace hazards such as machinery and unprotected heights.
The ALJ also found due to Plaintiff's mental-health impairments,
pain, and the side-effects of medication, Plaintiff can
understand, remember, and carry out only short and simple
instructions and can only make simple, work-related judgments
and decisions.
Tr. 24.
At Step Four the ALJ concluded Plaintiff is unable to
perform her past relevant work.
Tr. 27.
At Step Five the ALJ found prior to June 2, 2015, Plaintiff
could perform other jobs that exist in the national economy such
9 - OPINION AND ORDER
as electronic worker, basket-filler, and garment-sorter.
Tr. 28.
Accordingly, the ALJ found Plaintiff was not disabled
before June 2, 2015.
Tr. 29.
The ALJ, however, found
Plaintiff's age category changed on June 2, 2015; there were not
any jobs in the national economy that Plaintiff could perform
after that date; and, therefore, Plaintiff was disabled on
June 2, 2015, through the date of the ALJ's decision
(December 7, 2016).
Tr. 29.
DISCUSSION
Plaintiff contends the ALJ erred when she failed (1) to
provide clear and convincing reasons for discounting Plaintiff's
subjective symptom testimony; (2) to provide clear and
convincing reasons for rejecting the medical opinions of Peter
Kosek, M.D., Plaintiff's treating physician, and Keith Holan,
M.D., the medical expert who testified at the hearing; and
(3) to consider properly the lay-witness testimony of Rick
Slabaugh, Plaintiff's husband.
I.
The ALJ did not err when he found Plaintiff's testimony was
not fully credible.
Plaintiff contends the ALJ erred when she failed to provide
clear and convincing reasons for discounting Plaintiff=s symptom
testimony.
10 - OPINION AND ORDER
A.
Standards
The ALJ engages in a two-step analysis to determine
whether a claimant's testimony regarding subjective pain or
symptoms is credible.
AFirst, the ALJ must determine whether the
claimant has presented objective medical evidence of an
underlying impairment >which could reasonably be expected to
produce the pain or other symptoms alleged.=@
Garrison v.
Colvin, 759 F.3d 995, 1014 (9th Cir. 2014)(quoting Lingenfelter
v. Astrue, 504 F.3d 1028, 1035B36 (9th Cir. 2007)).
The claimant
is not required to show that her Aimpairment could reasonably be
expected to cause the severity of the symptom she has alleged;
she need only show that it could reasonably have caused some
degree of the symptom.@
Garrison, 759 F.3d at 1014 (quoting
Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)).
A
claimant is also not required to produce Aobjective medical
evidence of the pain or fatigue itself, or the severity thereof.@
Id.
If the claimant satisfies the first step of this
analysis and there is not any affirmative evidence of
malingering, Athe ALJ can reject the claimant's testimony about
the severity of [his] symptoms only by offering specific, clear
and convincing reasons for doing so.@
11 - OPINION AND ORDER
Garrison, 759 F.3d at
1014-15.
See also Robbins v. Soc. Sec. Admin., 466 F.3d 880,
883 (9th Cir. 2006)(A[U]nless an ALJ makes a finding of
malingering based on affirmative evidence thereof, he or she may
only find an applicant not credible by making specific findings
as to credibility and stating clear and convincing reasons for
each.@).
General assertions that the claimant's testimony is not
credible are insufficient.
(9th Cir. 2007).
Parra v. Astrue, 481 F.3d 742, 750
The ALJ must identify "what testimony is not
credible and what evidence undermines the claimant's
complaints."
Id. (quoting Lester v. Chater, 81 F.3d 821, 834
(9th Cir. 1995)).
B.
Analysis
The ALJ found Plaintiff's "statements concerning the
intensity, persistence and limiting effects of [her] symptoms
are not fully supported" by the medical record or by her
reported activities.
Tr. 25, 26.
As noted, Plaintiff alleged she is disabled due to a
broken tailbone, back problems, anxiety, and depression.
Tr. 84, 199.
2010.
Plaintiff testified she has not worked since March
Tr. 49.
She stated she drove once every two weeks to
grocery shop and has difficulty lifting and carrying the
groceries.
Tr. 58.
Plaintiff testified she had a vegetable
12 - OPINION AND ORDER
garden, but her ability to tend the garden was affected by her
pain level, and she worked in the garden for 15 minutes per day
at most.
Tr. 61-62.
In her Function Report Plaintiff indicated
she could sit for 15 minutes at a time and would then have to
stand up or lie down.
Tr. 223.
Plaintiff also testified she can stand for about 30
minutes at one time and for a total of three hours in an eighthour day, but she cannot maintain that level of functioning
every day and would require additional pain medication.
Tr. 63.
She also stated if she has to lift 20 pounds "on and off"
throughout the day, she would "have to take a whole lot of pain
medications."
Tr. 64-65.
She also testified when her legs
start hurting, she rests in a typical day for at least an hour
before being able to work again for half an hour and rests again
for another half hour.
Tr. 65.
Plaintiff also testified her pain medication affects
her focus, concentration, and memory.
1.
Tr. 57-58, 66.
Medical Evidence
The ALJ concluded the medical record does not
support the reported severity of Plaintiff's symptoms.
For
example, imaging of Plaintiff's lumbar spine in May 2010 showed
"mild facet joint degenerative disease with straightening of the
13 - OPINION AND ORDER
lumbar lordosis."
Tr. 25, 590.
MRIs in 2011 showed "mild disc
bulge without neurological involvement," sacrum bruising, and a
previous coccyx fracture.
Tr. 25.
An MRI of Plaintiff's lumbar
spine in September 2014 showed mildly progressive multilevel
degenerative changes with some neurological involvement.
Tr. 25, 446-47.
The ALJ acknowledges musculoskeletal
examinations revealed some tenderness to palpation, but noted
Plaintiff has a normal gait; full range of motion; full muscle
strength; intact sensation and reflexes; and positive straightleg raising on the right, but a negative indication on the left.
Tr. 25.
The ALJ acknowledges Plaintiff "tried multiple
treatment modalities including steroid injections, gabapentin,
muscle relaxers, and a TENS unit, as well as over-the-counter
and prescription pain medication."
The ALJ notes, however, that
Plaintiff had "some reported improvement of her symptoms, and in
fact, her doctor planned to wean her medications down."
Tr. 26.
The effectiveness of treatment or medication is a
relevant factor in determining the severity of a claimant's
symptoms.
20 C.F.R. § 416.929(c)(3).
A favorable response to
conservative treatment undermines a claimant's reports of
disabling pain or limitations.
1035, 1040 (9th Cir. 2008).
14 - OPINION AND ORDER
Tommasetti v. Astrue, 533 F.3d
2.
Activities of Daily Living
The ALJ also discounted Plaintiff's symptom
testimony based on her reported activities.
Tr. 26.
For
example, the ALJ notes Plaintiff could perform adequate selfcare, take care of her son, prepare simple meals, do household
chores, and go to the store.
Plaintiff also indicated she
engaged in canning activities.
Tr. 26.
Daily activities are a
proper ground for gauging or determining the reliability of a
claimant's subjective allegations.
See Molina, 674 F.3d at 1113
("[e]ven when those activities suggest some difficulty
functioning, they may be grounds for discrediting the claimant's
testimony to the extent they contradict claims or a totally
debilitating impairment").
Although Plaintiff's argument constitutes an
alternative interpretation of the evidence contained in the
record, such an alternative interpretation is not sufficient.
As long as there is substantial evidence to support the ALJ's
interpretation of the evidence and that interpretation is based
on correct legal standards, the court must uphold the ALJ's
determination.
See Burch v. Barnhart, 400 F.3d 676, 680-81 (9th
Cir. 2005).
15 - OPINION AND ORDER
On this record the Court concludes the ALJ did not err
when he discounted Plaintiff's symptom testimony and found it
was not fully credible because the ALJ provided clear and
convincing reasons supported by substantial evidence in the
record for doing so.
II.
The ALJ erred when he failed to provide clear and
convincing reasons to reject the medical opinions of
Drs. Kosek and Holan.
Plaintiff contends the ALJ erred when he rejected the
opinions of Dr. Kosek, Plaintiff's treating physician, and
Dr.
Holan, the medical expert who testified at the hearing.
A.
Standards
AIn disability benefits cases . . . physicians may
render medical, clinical opinions, or they may render opinions
on the ultimate issue of disability C the claimant's ability to
perform work.@
2014).
Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
AIn conjunction with the relevant regulations, [courts]
have . . . developed standards that guide [the] analysis of an
ALJ's weighing of medical evidence.@
Ryan v. Comm'r of Soc.
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).
Specifically, the
court must Adistinguish among the opinions of three types of
physicians:
(1) those who treat the claimant (treating
physicians); (2) those who examine but do not treat the claimant
16 - OPINION AND ORDER
(examining physicians); and (3) those who neither examine nor
treat the claimant (nonexamining physicians).@
F.3d at 1012.
Garrison, 759
AAs a general rule, more weight should be given to
the opinion of a treating source than to the opinion of doctors
who do not treat the claimant.@
Id.
Although the opinion of a
treating physician is entitled to greater weight than that of an
examining physician, the opinion of an examining physician is
entitled to greater weight than that of a nonexamining
physician.
Ryan, 528 F.3d at 1198.
AThe weight afforded a
nonexamining physician's testimony depends >on the degree to
which [he] provide[s] supporting explanations for [his]
opinions.=@
Id. (quoting 20 C.F.R. § 404.1527(d)(3)).
AIf a treating or examining doctor's opinion is
contradicted by another doctor's opinion, an ALJ may only reject
it by providing specific and legitimate reasons that are
supported by substantial evidence.@
Id.
Even when contradicted,
a treating or examining physician's opinion is still owed
deference and will often be Aentitled to the greatest weight
. . . even if it does not meet the test for controlling weight.@
Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007).
An ALJ can
satisfy the Asubstantial evidence@ requirement by Asetting out a
detailed and thorough summary of the facts and conflicting
17 - OPINION AND ORDER
clinical evidence, stating his interpretation thereof, and
making findings.@
Reddick, 157 F.3d 715, 725 (9th Cir. 1998).
AThe ALJ must do more than state conclusions.
He must set forth
his own interpretations and explain why they, rather than the
doctors' are correct.@
B.
Id. (citation omitted).
Analysis
1.
Dr. Kosek
Dr. Kosek has been Plaintiff's treating physician
since 2010.
On October 7, 2016, he completed a Medical
Evaluation form regarding Plaintiff's lumbosacral radiculopathy
and coccygeal pain.
Tr. 555-56.
Dr. Kosek indicated Plaintiff
was not capable of performing either medium- or light-exertion
work and stated Plaintiff's medically determinable impairments
are sufficiently severe that she is unable to maintain a regular
work schedule for "more than 4 days per month."
Tr. 556.
The ALJ gave partial weight to Dr. Kosek's
opinion and agreed Plaintiff "would be unable to perform medium
work."
Tr. 27.
The ALJ, however, rejected the remainder of
Dr. Kosek's opinion on the ground that he "provides no support
or explanation for his opinion regarding [Plaintiff's] ability
to perform light work or the need for significant workplace
absences."
Tr. 27.
The ALJ also noted "these limitations are
18 - OPINION AND ORDER
inconsistent with the doctor's own treating records which show
normal strength and normal range of motion with no guarding."
Tr. 27, 560.
The Commissioner asserts Dr. Kosek's opinion is
merely a check-box report without explanation, and, therefore,
the ALJ may properly reject it.
See Molina v. Astrue, 674 F.3d
1104, 1111 (9th Cir. 2012)(the ALJ may reject a "check-off
report that does not contain any explanation of the bases" for
the physician's conclusions).
The ALJ, however, may reject the
physician's opinion only with "substantial evidence"; i.e.,
"such relevant evidence as a reasonable mind might accept to
support a conclusion."
Valentine v. Comm'r Soc. Sec. Admin.,
574 F.3d 685, 690 (9th Cir. 2009).
To support her conclusion
that Dr. Kosek's opinion was not substantiated by his own
treating records, the ALJ pointed to only one of Dr. Kosek's
chart note dated October 7, 2016, and did not cite to any other
evidence in the record.
Tr. 27, 560.
The record, however,
reflects other evidence that supports Dr. Kosek's opinion.
For
example, multiple spinal examinations by Dr. Kosek in 2014
showed Plaintiff had tenderness over the trochanteric region;
sacroiliac joint; gluteal, sacrum, and lumbar regions; and
bilateral piriformis notch.
19 - OPINION AND ORDER
Tr. 405, 398-99, 393, 544-45,
537-38.
In May 2014 Dr. Kosek noted Plaintiff had increased
bilateral hip, leg, and foot pain; burning sensation in her
buttocks and pelvic region; and increased pain with sitting
despite Plaintiff's compliance with prescribed medications.
Tr. 397-99.
In August 2014 Dr. Kosek noted Plaintiff had
increased left hip and leg pain with numbness in her foot and
had difficulty walking or standing for prolonged periods.
Tr. 391.
In February 2015 Dr. Kosek noted Plaintiff continued
to have hip pain radiating down her legs.
Tr. 536-38.
In May
2015 Dr. Kosek also documented Plaintiff's worsening pain and
inability to increase her activity overall due to pain despite
medications.
Tr. 529-31.
On this record the Court concludes the ALJ erred
when she failed to provide clear and convincing reasons
supported by substantial evidence in the record for discounting
the opinion of Dr. Kosek.
2.
Dr. Holan
Dr. Holan reviewed Plaintiff's records at the
request of the Social Security Administration and testified at
the administrative hearing on November 1, 2016.
Tr. 68-73.
Dr. Holan testified Plaintiff has severe impairments of
degenerative disc disease, impaction fracture at the coccyx,
20 - OPINION AND ORDER
microscopic hematuria, and depression.
Tr 68-69.
The
Commissioner contends Dr. Holan's statements were not
"imperative," "definitive," or "specific" and that the ALJ may
reject such opinion evidence when it is inconsistent with other
evidence in the record.
Def.'s Brief (#15) at 12-13.
Dr. Holan identified Plaintiff's functional
limitations caused by her severe impairments:
[O]ccasionally lifting and carrying 20 pounds,
frequently lifting and carrying 10 pounds,
standing and/or walking for six hours in an
eight-hour day, sitting for six hours in an
eight-hour day. The pushing and pulling will be
[INAUDIBLE] within the weight restriction I just
mentioned. Postural limitations would include
occasionally climbing ramps or stairs; never
climbing ladders or scaffolds; occasionally
balancing, occasionally stooping, occasionally
kneeling, occasionally crouching, and
occasionally crawling. There are no
manipulative, no visual, and no communicative
limitations. The environmental limitations that
I feel are present will include avoiding
concentrated exposure to extreme cold, to
vibrations, and to hazards, such as unprotected
heights.
Tr. 70.
Dr. Holan also testified Plaintiff takes "a lot of
medications" that are "closely monitored by a pain management
consultant" and are "being handled appropriately."
Tr. 71.
Dr. Holan testified these medications "might be expected to
interfere with [Plaintiff's] ability to concentrate or to
perform tasks at a rapid pace."
21 - OPINION AND ORDER
Tr. 72.
He also testified
Plaintiff would experience "periodic pain flares" that would
create work absences.
Tr. 72.
Specifically, Dr. Holan
testified he had "no reason to doubt" Dr. Kosek's opinion that
Plaintiff "would be expected to miss four or more days per
month" based on her impairments and that "most people taking
this level of pain - - medications are not working."
Tr. 73.
Although Dr. Holan appears to have misinterpreted Dr. Kosek's
statement that Plaintiff is unable to maintain a regular works
schedule "for more than 4 days per month," Dr. Holan generally
agreed with Dr. Kosek's conclusions regarding Plaintiff's
condition as demonstrated in his opinion that Plaintiff would
experience "periodic pain flares" that would create work
absences.
Although the ALJ gave "[f]ull credit" to Dr. Holan's
opinion regarding Plaintiff's diagnosis, the ALJ gave "little
weight" to his opinion that Plaintiff would miss more than four
days of work per month based on Plaintiff's "conservative
treatment history."
Tr. 26.
The ALJ, however, did not provide
any explanation as to why Dr. Holan characterized Plaintiff's
treatment as "conservative."
As noted, the record reflects
Plaintiff "tried multiple treatment modalities" in addition to
high levels of prescription pain medications.
22 - OPINION AND ORDER
Tr. 26.
In
summary, the ALJ does not point to substantial evidence in the
record that contradicts the testimony of Dr. Holan.
Accordingly, the ALJ erred when she failed to provide
clear and convincing reasons supported by substantial evidence
in the record for discounting the medical opinion of Dr. Holan.
III. The ALJ erred when she discounted the lay-witness
statements, but such error was harmless.
Plaintiff contends the ALJ erred when she failed to provide
germane reasons for discounting the lay-witness statements of
Rick Slabaugh, Plaintiff’s husband, regarding Plaintiff’s
limitations.
A.
Standards
Lay-witness testimony regarding a claimant's symptoms
is competent evidence that the ALJ must consider unless he
"expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so."
236 F.3d 503, 511 (9th Cir. 2001).
Lewis v. Apfel,
The ALJ's reasons for
rejecting lay-witness testimony must also be "specific."
Stout
v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir.
2006).
Germane reasons for discrediting a lay-witness's
testimony include inconsistency with the medical evidence and
the fact that the testimony "generally repeat[s]" the properly
23 - OPINION AND ORDER
discredited testimony of a claimant.
F.3d 1211, 1218 (9th Cir. 2005).
Bayliss v. Barnhart, 427
See also Williams v. Astrue,
493 F. App'x 866 (9th Cir. 2012).
B.
Analysis
On June 2, 2014, Rick Slabaugh submitted a written
Third-Party Function Report.
Tr. 231-38.
He reported Plaintiff
had difficulty standing and sitting for "very long" due to pain
and had to lie down "quite a bit through the day."
Tr. 231.
He
also reported Plaintiff was able to complete household tasks, to
garden, and to prepare meals with frequent breaks between active
periods.
Tr. 232, 235.
The ALJ gave "partial weight" to Rick Slabaugh's
statements regarding Plaintiff's limitations, but the ALJ did
not identify any basis for discounting Rick Slabaugh's
testimony.
Tr. 26.
The Commissioner argues Rick Slabaugh's statements
were "analogous" to the statements of Plaintiff that the ALJ
discredited.
When the ALJ errs in considering lay-witness
evidence, the error is "harmless where the same evidence that
the ALJ referred to in discrediting [the claimant's] claim also
discredits [the lay-witness's] claims."
1122.
24 - OPINION AND ORDER
Molina, 674 F.3d at
On this record the Court concludes the ALJ did err
when he discounted the lay-witness statements of Rick Slabaugh
because she did not provide germane reasons for doing so.
The
Court, however, finds this error was harmless because Rick
Slabaugh's testimony was similar to Plaintiff's testimony that
the ALJ discredited earlier.
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.
Carmickle, 533 F.3d 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 (9th Cir. 2000).
25 - OPINION AND ORDER
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.
Id. at 1178
n.2.
As noted, the Court concludes the ALJ failed to provide
legally sufficient reasons supported by substantial evidence in
the record for discounting the opinions of Drs. Kosek and Holan.
The ALJ did not cite to any substantial evidence in the record
to support a contrary determination, and it is clear from the
record that the ALJ would be required to find Plaintiff disabled
were such evidence credited.
The Court, therefore, remands this matter for the immediate
calculation and payment of benefits for the period from
March 17, 2014, the date of Plaintiff's disability onset, to
June 2, 2015, the date the ALJ determined Plaintiff became
disabled.
26 - OPINION AND ORDER
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter to the Commissioner
pursuant to sentence four of 42 U.S.C. § 405(g) for the
immediate calculation and payment of benefits.
IT IS SO ORDERED.
DATED this 11th day of June, 2019.
/s/ Anna J. Brown
______________________________________
ANNA J. BROWN
United States Senior District Judge
27 - OPINION AND ORDER
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