Hetherington v. Commissioner Social Security Administration

Filing 30

Opinion and Order - The Commissioner's decision that Plaintiff was not disabled is REVERSED AND REMANDED for an immediate calculation and payment of benefits. Signed on 3/27/2020 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

MARTIN H.1,
Plaintiff,

Case No. 6:18-cv-1076-SI
OPINION AND ORDER

v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant.
Katherine L. Eitenmiller and Brent Wells, HARDER WELLS BARON & MANNING PC,
474 Willamette Street, Eugene, OR 97401. Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 SW Third Avenue, Suite 600, Portland, OR 97204;
Thomas M. Elsberry, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL,
Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.
Michael H. Simon, District Judge.
Martin H. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying his application for disability

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 in this case. When applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.

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insurance benefits (“DIB”). After Plaintiff filed his opening brief, the Commissioner conceded
error and moved for an order remanding for further administrative proceedings. Plaintiff replied,
arguing that the Court should remand this case for a finding of disability and the payment of
benefits. For the reasons stated below, the Court remands for a finding of disability and the
payment of benefits.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
When the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
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BACKGROUND
A. Plaintiff’s Application
Plaintiff applied for DIB in May 2014, alleging disability beginning January 2, 2014.
AR 161. Plaintiff was born on January 27, 1965 and was 48 years old on the alleged disability
onset date. The agency denied his claim both initially and upon reconsideration, and Plaintiff
requested a hearing. AR 103-07, 112-28. He appeared for a hearing before Administrative Law
Judge (“ALJ”) Mark Triplett in November 2016. AR 34-80. On March 6, 2017, the ALJ issued a
decision denying Plaintiff’s claim for benefits. AR 16-33. Plaintiff requested review of the
hearing decision, which the Appeals Council denied in April 2018. AR 1. Accordingly, the
ALJ’s decision became the final decision of the agency. Plaintiff now seeks judicial review of
the agency’s final decision.
B. The Sequential Analysis
A claimant is disabled if he or she is unable to “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[.]” 42 U.S.C.
§ 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.

Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.

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§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2.

Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.

3.

Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.

4.

Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.

5.

Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

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The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
The ALJ found that Plaintiff met the insured status requirements under Title II through
December 31, 2019 and proceeded to the sequential analysis. AR 21. At step one, the ALJ found
that Plaintiff had not engaged in substantial gainful activity since January 2, 2014, the alleged
onset date. AR 21. At step two, the ALJ found Plaintiff had the following severe impairments:
obesity and ligament injury in the shoulder, knee, and ankle. AR 21-22. At step three, the ALJ
found that Plaintiff’s impairments did not meet or equal the requirements of a listed impairment.
AR 22. Between step three and step four, the ALJ formulated Plaintiff’s RFC. The ALJ found that
Plaintiff could perform a range of light work, specifically:

[T]he claimant can lift and/or carry 20 pounds occasionally and 10
pounds frequently. The claimant can stand and/or walk for six
hours out of an eight-hour workday with regular breaks. The
claimant can sit for six hours out of an eight-hour workday with
regular breaks. The claimant is unlimited with respect to pushing
and/or pulling, other than as indicated for lifting and/or carrying.
The claimant is limited to no more than occasional climbing of
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ladders, ropes or scaffolds and no more than occasional kneeling,
crouching and crawling.
Id. At step four, the ALJ found Plaintiff unable to perform his past relevant work as a package
deliverer. AR 26. At step five, the ALJ found that Plaintiff retained the ability to perform
the requirements of jobs existing in significant numbers in the national economy. AR 27. Thus,
the ALJ found that Plaintiff was not disabled. AR 27-28.
DISCUSSION
Plaintiff argues that the ALJ erred by: (1) not accounting for all of Plaintiff’s supported
limitations in his RFC; (2) improperly rejecting the “non-acceptable” medical source opinion of
Janet Kadlecik, Registered and Licensed Occupational Therapist (“OTR/L”); (3) improperly
rejecting the “acceptable” medical source opinion of Dr. Timothy Quiner; (4) improperly
rejecting Plaintiff’s subjective symptom testimony; and (5) improperly rejecting the lay witness
testimony of Plaintiff’s spouse. Because issues (2) and (5) are dispositive, the Court will not
address issues (1), (3), and (4). The Commissioner concedes that the ALJ erred in rejecting
Plaintiff’s subjective symptom testimony and the lay witness testimony of Plaintiff’s wife.
ECF 28 at 4. The Court considers whether the ALJ improperly rejected Ms. Kadlecik’s testimony
and whether to remand the case for further proceedings (as the Commissioner argues) or for
payment of benefits (as Plaintiff argues).
A. “Credit-as-True” Framework
Within the Court’s discretion under 42 U.S.C. § 405(g) is the “decision whether to
remand for further proceedings or for an award of benefits.” Holohan, 246 F.3d at 1210 (citation
omitted). Although a court should generally remand to the agency for additional investigation or
explanation, a court has discretion to remand for immediate payment of benefits. Treichler v.
Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1099-1100 (9th Cir. 2014). The issue turns on the

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utility of further proceedings. A court may not award benefits punitively and must conduct a
“credit-as-true” analysis on evidence that has been improperly rejected by the ALJ to determine
if a claimant is disabled under the Social Security Act. Strauss v. Comm’r of the Soc. Sec.
Admin., 635 F.3d 1135, 1138 (9th Cir. 2011).
In the Ninth Circuit, the “credit-as-true” doctrine is “settled” and binding on this
Court. Garrison v. Colvin, 759 F.3d 995, 999 (9th Cir. 2014). The court first determines whether
the ALJ made a legal error and then reviews the record as a whole to determine whether the
record is fully developed, the record is free from conflicts and ambiguities, and there is any
useful purpose in further proceedings. Dominguez v. Colvin, 808 F.3d 403, 407 (9th Cir. 2015).
Only if the record has been fully developed and there are no outstanding issues left to be
resolved does the district court consider whether the ALJ would be required to find the claimant
disabled on remand if the improperly discredited evidence were credited as true. Id. Said
otherwise,
the district court must consider the testimony or opinion that the
ALJ improperly rejected, in the context of the otherwise undisputed
record, and determine whether the ALJ would necessarily have to
conclude that the claimant were disabled if that testimony or
opinion were deemed true.
Id. (emphasis added). If so, the district court can exercise its discretion to remand for an award of
benefits. Id. The district court retains flexibility, however, and need not credit statements as true
merely because the ALJ made a legal error. Id. at 408.

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B. Analysis
1. Harmful Legal Error
The Commissioner concedes that the ALJ committed harmful legal error by rejecting the
lay witness testimony of Plaintiff’s wife.2 ECF 28 at 4. The Court also finds that the
Commissioner committed harmful legal error by improperly rejecting the medical source opinion
of Ms. Kadlecik.
Social Security Rule (“SSR”) 06-03p in effect when Plaintiff filed his claim defined
“acceptable medical sources” as licensed physicians, licensed or certified psychologists, licensed
optometrists, licensed podiatrists, and qualified speech pathologists. SSR 06-03p. Health care
providers who are not “acceptable medical sources,” such as “nurse practitioners, physician’s
assistants, chiropractors, audiologists, and therapists,” are still considered “medical sources”
under the regulations, and the ALJ can use these other medical source opinions in determining
the “severity of [the individual’s] impairment(s) and how it affects [the individual’s] ability to
work.” 20 C.F.R. § 404.1513(d). Because Ms. Kadecik is a Registered and Licensed
Occupational Therapist, she is a “non-acceptable,” or “other,” medical source.
An ALJ may not reject the competent testimony of “non-acceptable” or “other” medical
sources without comment. Stout v. Comm’r, 454 F.3d 1050, 1053 (9th Cir. 2006). To reject the
competent testimony of “other” medical sources, the ALJ must give “reasons germane to each
witness for doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Turner v.
Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). In considering how much weight to
give “other” medical source opinion evidence, the ALJ should consider: (1) “how long the

The Commissioner also concedes that the ALJ erred by rejecting Plaintiff’s subjective
symptom testimony for an improper reason. The Court need not reach that issue because the
opinion testimony of Ms. Kadlicek and Plaintiff’s spouse is dispositive.
2

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source has known and how frequently the source has seen the individual”; (2) “how consistent
the opinion is with other evidence”; (3) “the degree to which the source presents relevant
evidence to support an opinion”; (4) “how well the source explains the opinion”; (5) “whether
the source has a specialty or area of expertise related to the individual’s impairment(s)”; and (6)
“any other factors that tend to support or refute the opinion.” 20 C.F.R. §§ 404.1512(b)(v),
416.912(b)(v).
After applying the factors for weighing “other” medical opinion evidence, an ALJ may
properly find that an opinion from “non-acceptable medical source” outweighs the opinion of the
“acceptable medical source.”
For example, it may be appropriate to give more weight to the
opinion of a medical source who is not an acceptable medical
source if he or she has seen the individual more often . . . and has
provided better supporting evidence and a better explanation for
his or her opinion.
Id.
Ms. Kadlecik examined Plaintiff in December 2016. She catalogued Plaintiff’s physical
impairments in her eight-page report. After diagnosing Plaintiff with a litany of physical
conditions (including left shoulder burstitis and right knee meniscal tear with partial
meniscectomy, among others, AR 478), Ms. Kadlecik opined that Plaintiff could work only part
time and only with accommodations at his work station. AR 483. Ms. Kadlecik identified several
specific limitations to support this opinion. She opined that Plaintiff could stand for two hours
out of an eight-hour work day, could walk for no more than one to three hours out of an eighthour work day, and would not be able to perform any jobs that required high performance in
fingering or handling. Id. Additionally, she noted that Plaintiff would have trouble sitting for
more than 45 minutes at a time and standing for more than 30 minutes at a time. Separately,
Ms. Kadlecik believed that the pain from Plaintiff’s ailments would prevent him from focusing
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on functional work tasks. AR 478. Ms. Kadlecik concluded that Plaintiff would have trouble
sustaining or engaging in gainful employment in either light or medium work. AR 483. She also
opined that Plaintiff’s impairments would result in absenteeism of more than five workdays per
month. Id.
The ALJ gave Ms. Kadlecik’s opinion “little weight.” AR 25. The relevant question is
whether the ALJ provided germane reasons for discounting Ms. Kadlecik’s opinions. The ALJ
reasoned only that this evidence was due “less weight than other qualifying medical source
opinions” because Ms. Kadlecik was not an “acceptable medical source.” Id. The mere fact that a
medical source is not an “acceptable” medical source is not a germane reason to reject their
opinion. Indeed, “an opinion from a medical source who is not an acceptable medical source or
from a nonmedical source may outweigh the medical opinion of an acceptable medical source.”
20 C.F.R. § 404.1527(f). Further, the agency regulations outline specific factors for ALJs to
consider when weighing non-acceptable medical source opinions, see 20 C.F.R.
§§ 404.1512(b)(v), 416.912(b)(v), none of which the ALJ addressed here. These factors support
Ms. Kadlecik’s medical opinion—Dr. Stanley (whose opinion the ALJ afforded “great weight”)
ultimately concurred with Ms. Kadlecik’s opinion. AR 486, 489. Ms. Kadlecik noted specific
physical conditions underlying her findings, explained why the evidence supported her findings,
and is a specialist in physical therapy, a relevant area of expertise. AR 479-87.
2. Fully Developed Record Free from Conflicts and Ambiguities and Utility of
Further Proceedings
a. Ms. Kadlecik’s Medical Source Opinion
Plaintiff submitted additional post-hearing evidence from Dr. Stanley (an examining
physician) agreeing with Ms. Kadlecik’s assessment of Plaintiff. The Commissioner argues that
the additional post-hearing evidence requires further proceedings to allow the ALJ to re-evaluate

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“the record in its entirety.” ECF 28 at 7. Plaintiff responds that the post-hearing evidence does
not affect “the analysis of the medical record as a whole, including the medical opinions from
Drs. Stanley and Quiner and Ms. Kadlecik.” Id. Plaintiff’s argument is more persuasive.
The record—viewed both with and without Dr. Stanley’s addendum agreeing with
Ms. Kadlecik’s opinion—is free from contradictions. The record at the hearing shows that
Dr. Quiner and Dr. Stanley examined Plaintiff and that neither Dr. Quiner nor Dr. Stanley felt
capable of evaluating the severity of Plaintiff’s physical impairments, but Dr. Quiner deferred to
Dr. Stanley on the issue. AR 430. The record also shows that Dr. Stanley, still unsure of the
severity of Plaintiff’s physical impairments, referred Plaintiff to Ms. Kadlecik. AR 477. Indeed,
Dr. Stanley made this referral because he specifically stated that he did not know the extent of
Plaintiff’s physical limitations. AR 429-32. As discussed above, the ALJ erred by rejecting
Ms. Kadlecik’s medical source opinion simply because she was a “non-acceptable medical
source.” Dr. Stanley’s post-hearing approval of Ms. Kadlecik’s opinion does not change the
ALJ’s error or introduce any ambiguities, especially because Dr. Stanley admitted his limitations
and recommended occupational therapy in the first place, essentially deferring to Ms. Kadlecik.
The Commissioner, however, argues, without support, that the ALJ rejected
Ms. Kadlecik’s opinion “in light of” Dr. Stanley’s medical source opinion. ECF 28 at 4-5.
Nothing in the ALJ’s decision supports that reading. The Commissioner offers no cogent
explanation for how Dr. Stanley’s post-hearing concurrence affects, to Plaintiff’s detriment, the
analysis of other evidence in the record such as the medical testimony of Ms. Kadlecik and
Dr. Quiner. In fact, Dr. Stanley’s post-hearing concurrence with Ms. Kadlecik’s opinion does not
contradict the record at the hearing—it strengthens Plaintiff’s case. Thus, the Court credits
Ms. Kadlecik’s medical source opinion as true.

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b. Lay-Witness Testimony of Plaintiff’s Wife
Plaintiff’s wife also testified to Plaintiff’s physical limitations. She noted that Plaintiff
experienced constant pain while sitting and walking, and that the pain affected his ability to pay
attention and complete tasks. AR 225, 230. Plaintiff had to alternate between sitting and lying
down to relive the pain. AR 226. Plaintiff reportedly could do household chores for only 30
minutes at a time, and his wife had to help him put on his socks and shoes. AR 226-27. During
the day, he engaged in activities that required no physical exertion like watching television,
going on the computer, and reading. AR 229.
The ALJ rejected this lay testimony because it was “only partially supported by the
medical evidence of record.” AR 26. The Commissioner concedes that the ALJ erred by rejecting
the lay testimony of Plaintiff’s wife for this reason but argues that Dr. Stanley’s post-hearing
concurrence necessarily implicates the assessment of the lay testimony of Plaintiff’s wife. The
Commissioner, however, does not specify how it implicates that lay testimony, especially
because Dr. Stanley ultimately concurred with Ms. Kadlecik’s opinion, which itself was
consistent with the levels of impairment described by Plaintiff’s wife. The Court agrees with
Plaintiff that Dr. Stanley’s post-hearing concurrence has no effect on the lay witness statements,
and certainly not any adverse effect on Plaintiff’s case. Thus, the Court credits the lay witness
statements of Plaintiff’s spouse as true.
3. Required Finding of Disability
The Commissioner also argues that “the ALJ as fact-finder needs to review the record in
its entirety in context with the new evidence submitted post-decision.” ECF 28 at 8. Not so here,
because the record before the ALJ—without Dr. Stanley’s later concurrence—demonstrated that
Plaintiff was disabled during the period at issue. Taking the improperly rejected evidence as true,
the record supports a finding of disability. Ms. Kadlecik opined that Plaintiff would miss four to
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five days of work a month. AR 483. The Vocational Expert testified that such absences would
preclude competitive employment, supporting a disability finding. AR 78. Ms. Kadlecik also
described Plaintiff’s severe physical limitations. Properly credited, Ms. Kadlecik’s opinion states
that Plaintiff cannot maintain full-time light work, and given his age and employment history, is
therefore disabled under Rule 201.12 of the Medical-Vocational Guidelines, 20 C.F.R. Part 404,
Subpart P, Appendix 2. AR 483. The lay testimony of Plaintiff’s wife requires a finding of
disability for a similar reason—it demonstrates that Plaintiff is limited to a sedentary level of
exertion.
4. Serious Doubt as to Plaintiff’s Disability
The Commissioner nonetheless argues that “an evaluation of the record as a whole
creates serious doubt that [Plaintiff] is, in fact, disabled.” Garrison, 759 F.3d at 1021. “Serious
doubt” may exist when “the government has pointed to evidence in the record that the ALJ
overlooked and explained how that evidence casts into serious doubt the claimant’s claim to be
disabled,” even if the ALJ did not consider that evidence at the hearing. Dominguez, 808 F.3d at 407
(quoting Burrell v. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014)). The only additional evidence
here—Dr. Stanley’s post-hearing concurrence with Ms. Kadlecik’s opinion—supports Plaintiff’s
disability claim. Thus, the record does not create “serious doubt” that Plaintiff is disabled.

CONCLUSION
The Commissioner’s decision that Plaintiff was not disabled is REVERSED AND
REMANDED for an immediate calculation and payment of benefits.
IT IS SO ORDERED.
DATED this 27th day of March, 2020.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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