Fitzhugh v. Commissioner Social Security Administration

Filing 20

OPINION AND ORDER: As described above, while I disagree with Judge You's interpretation of SSR 85-15, I agree with the rest of her analysis and thus I ADOPT the F&R 16 as supplemented by my opinion here. The Commissioners decision is REVERSED and REMANDED for the immediate calculation and payment of benefits. Signed on 9/30/19 by Judge Michael W. Mosman. (dls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EMILY F.,1
No. 6:18-cv-00620-YY
Plaintiff,
v.

OPINION & ORDER

ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.

MOSMAN, J.,
On August 14, 2019, Magistrate Judge Youlee Yim You issued her Findings and
Recommendation (“F&R”) [16], recommending that the Commissioner’s decision be
REVERSED and REMANDED for the immediate calculation and payment of benefits. The
Commissioner filed objections to the F&R [18] to which Plaintiff responded [19]. Although my
reasoning differs slightly from Judge You’s, I reach the same conclusion.
LEGAL STANDARD
The magistrate judge makes only recommendations to the court, to which any party may
file written objections. The court is not bound by the recommendations of the magistrate judge
but retains responsibility for making the final determination. The court is generally required to

1

In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the nongovernmental party in this case.
1 – OPINION AND ORDER

make a de novo determination regarding those portions of the report or specified findings or
recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the
court is not required to review, de novo or under any other standard, the factual or legal
conclusions of the magistrate judge as to those portions of the F&R to which no objections are
addressed. See Thomas v. Arn, 474 U.S. 140, 149 (1985); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003). While the level of scrutiny under which I am required to
review the F&R depends on whether or not objections have been filed, in either case, I am free to
accept, reject, or modify any part of the F&R. 28 U.S.C. § 636(b)(1)(C).
DISCUSSION
The facts as set out in the F&R guide this discussion. As an initial matter, I disagree with
Judge You with respect to the mandatory nature of SSR 85-15. Judge You concludes that if Dr.
Roman’s opinion were credited as true, the ALJ would be “required” to find Plaintiff disabled
because “the ‘marked’ limitation in plaintiff’s ability to interact appropriately with supervisors
and co-workers qualifies as a ‘substantial loss of ability’ in that area and is disabling pursuant to
SSR 85-15.” F&R [16] at 16. The disputed phrase of SSR 85-15 describes that a relevant
substantial loss of ability “would justify a finding of disability.” SSR 85-15 (emphasis added),
available at 1985 WL 56857. While the analysis of a phrase like this is inherently subjective to
some extent, I disagree that the language “would justify” equates to a mandate and establishes a
per se rule for two reasons.
First, the plain meaning of that phrase is not a synonym of “would require.” In my view,
the meaning is closer to “would support.” At most, the phrase could be interpreted to establish a
presumption of disability where a relevant substantial loss of ability is identified. But that
presumption can be overcome.

2 – OPINION AND ORDER

Second, the context in which the phrase is used does not undermine such a reading. For
instance, the “would justify” sentence concludes with the statement: “ . . . because even
favorable age, education, or work experience will not offset such a severely limited occupational
base” (emphasis added). But that does not mean there is no circumstance where a finding of
disability would be inappropriate despite a relevant substantial loss of ability. To cite one
example, an evaluation of a claimant could reveal a substantial loss of ability that was only
temporary. A finding of disability might not be appropriate in such a case. Therefore, it would be
incorrect to interpret SSR 85-15 as requiring a finding of disability.
While my own reading of SSR 85-15 differs from Judge You’s interpretation, the
analysis in the rest of the F&R reaches the correct result. First, Judge You correctly concluded
that the ALJ—irrespective of SSR 85-15—erred in interpreting Dr. Roman’s evaluation of
Plaintiff. Dr. Roman did not “acknowledge” that Plaintiff “would be able to resume” at least
part-time work. Tr. [7] Ex. 3 at 22. At most, Dr. Roman acknowledged the possibility that
Plaintiff might be able to resume part-time work with treatment. No amount of context or
inference can give Dr. Roman’s words a meaning they will not bear. Second, I agree with Judge
You that the ALJ erred in discounting Plaintiff’s subjective symptom testimony due to her
activities of daily living and a lack of objective medical evidence. F&R [16] at 5-8. As to the
latter, as Plaintiff points out the Ninth Circuit has held that “it is error to reject a claimant’s
testimony merely because symptoms wax and wane in the course of treatment.” Garrison v.
Colvin, 759 F.3d 995, 1017 (9th Cir. 2014). Thus the ALJ cannot rely on a “few isolated
instances of improvement” to discount Plaintiff’s testimony. Id.
Finally, I agree with Judge You that remanding this case for further proceedings would
be inappropriate because the “credit-as-true” doctrine applies here. The ALJ’s finding were

3 – OPINION AND ORDER

premised on the erroneous interpretation of Dr. Roman’s evaluation and the improper
discounting of Plaintiff’s subjective symptom testimony. If the ALJ were required to accept Dr.
Roman’s evaluation and Plaintiff’s testimony, it is clear that a finding of disability would be
required.
CONCLUSION
As described above, while I disagree with Judge You’s interpretation of SSR 85-15, I
agree with the rest of her analysis and thus I ADOPT the F&R [16] as supplemented by my
opinion here. The Commissioner’s decision is REVERSED and REMANDED for the immediate
calculation and payment of benefits.
IT IS SO ORDERED.
30
DATED this ____ day of September, 2019.

___________________________
MICHAEL W. MOSMAN
Chief United States District Judge

4 – OPINION AND ORDER