Marshall v. Colvin

Filing 21

ORDER re 3 Complaint filed by Marion D Marshall by Judge J Richard Creatura. The Court ORDERS that this matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) to the Acting Commissioner for further consideration consistent with this order. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON

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MARION D. MARSHALL,
Plaintiff,

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CASE NO. 2:15-cv-01833 JRC
ORDER ON PLAINTIFF’S
COMPLAINT

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.

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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and
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Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S.
Magistrate Judge and Consent Form, Dkt. 5; Consent to Proceed Before a United States

20 Magistrate Judge, Dkt. 6). This matter has been fully briefed (see Dkt. 11, 19, 20).
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After considering and reviewing the record, the Court concludes that the ALJ

22 erred by failing to credit fully the medical opinion of examining doctor, Dr. Todd
23 Cannon, M.D. The ALJ relied mainly on a finding that there is a lack of evidence that
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ORDER ON PLAINTIFF’S COMPLAINT - 1

1 plaintiff’s knee condition deteriorated since she performed work prior to her amended
2 alleged date of disability onset. However, as even the ALJ found that plaintiff suffered
3 from the severe impairment of degenerative arthritis of the right knee, a condition which
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by definition involves deterioration over time, the ALJ’s finding is not supported by
substantial evidence in the record, especially given plaintiff’s closely approaching

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advanced age for the time period relevant for this appeal.
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Therefore, as this error is not harmless, this matter is reversed and remanded to the
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Administration for further administrative proceedings consistent with this opinion.
BACKGROUND

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Plaintiff, MARION D. MARSHALL, was born in 1956 and was 52 years old on

12 the amended alleged date of disability onset of September 14, 2009 (see AR. 25, 152-62).
13 Plaintiff graduated from high school and had almost two and a half years of college (AR.
14 51). Plaintiff has some work experience as a live-in caregiver (AR. 52-53).
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According to the ALJ, for the period of time relevant for this appeal, plaintiff had

16 at least the severe impairments of “patellofemoral syndrome and degenerative arthritis of
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the right knee; obesity; affective disorder; and posttraumatic stress disorder (PTSD) (20
CFR 416.920(c))” (AR. 605).

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At the time of the first hearing, plaintiff was temporarily homeless and living in
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different shelters and with her daughter (AR. 50).
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PROCEDURAL HISTORY
Plaintiff’s application for Supplemental Security Income (“SSI”) benefits pursuant

24 to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and

ORDER ON PLAINTIFF’S COMPLAINT - 2

1 following reconsideration (see AR. 86-89, 90-93). Plaintiff’s first requested hearing was
2 held before Administrative Law Judge Stephanie Martz (“the ALJ”) on September 22,
3 2011 (see AR. 44-73). On October 14, 2011, the ALJ issued a written decision in which
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the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act (see
AR. AR. 22-43). The Appeals Council upheld this “decision for the period from

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September 14, 2009 to October 14, 2011, but found that, due to an age change, the
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claimant was disabled on October 14, 2011, [after which the] claimant then sought relief
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for the prior period in District Court” (AR. 603). This Court reversed and remanded the
ALJ’s decision, and, after a second hearing on May 19, 2015, the ALJ issued another

11 written decision in which she concluded that plaintiff was not disabled from September
12 14, 2009 to October 14, 2011 (AR. 599-619). It is plaintiff’s appeal of that decision that
13 currently is before this Court.
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In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) Whether or

15 not the ALJ erred in failing to properly address the opinions of record; (2) Whether or not
16 the ALJ erred in concluding that the plaintiff could perform work at the “Light”
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exertional level and in declining to apply grid rule 201.12; (3) Whether or not substantial
evidence supports the ALJ’s conclusion that from September 14, 2009 (i.e., the amended

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onset date) to October 14, 2011 (i.e., the date the Appeals Council found plaintiff
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disabled), plaintiff had the physical and mental residual functional capacity to sustain
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work at the “light” exertional level; and (4) Whether or not the ALJ erred in failing to
provide legitimate reasons supported by the record for her finding on credibility (see Dkt.

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ORDER ON PLAINTIFF’S COMPLAINT - 3

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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's

3 denial of social security benefits if the ALJ's findings are based on legal error or not
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supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir.

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1999)).
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DISCUSSION
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(1)

Whether or not the ALJ erred in failing to properly address the
opinions of record.

Here, plaintiff contends that the ALJ erred by failing to credit fully the medical
opinion of examining doctor, Dr. Todd Cannon, M.D., in addition to other medical
opinions (Dkt. 11, pp. 14-15). Defendant responds that “the ALJ reasonably gave little

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weight to Dr. Cannon’s opinion regarding plaintiff’s standing and walking restrictions [as
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she] pointed to evidence that plaintiff worked in the restaurant business subsequent to
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injuring her knee at 16, and that there was no objective evidence of worsening” (Dkt. 19,
p. 13 (citing AR. 613)). However, since plaintiff worked in the restaurant business prior

18 to her amended alleged onset date and, as acknowledged by the ALJ, plaintiff suffers
19 from degenerative arthritis of the right knee as a severe impairment, defendant’s
20 argument is not persuasive.
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When an opinion from an examining doctor is contradicted by other medical

22 opinions, the examining doctor’s opinion can be rejected only “for specific and legitimate
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reasons that are supported by substantial evidence in the record.” Lester v. Chater, 81

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1 F.3d 821, 830-31 (9th Cir. 1996) (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir.
2 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).
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On October 12, 2008, Dr. Cannon completed a consultative examination of
plaintiff (AR. 331-37). Among other limitations, Dr. Cannon opined that due to “right
knee osteoarthritis” and “range of motion dysfunction,” plaintiff was limited to two hours

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of standing and walking per eight-hour workday (AR. 336). The ALJ gave significant
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weight to Dr. Cannon’s opinions regarding lifting and sitting abilities, but failed to credit
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fully Dr. Cannon’s opinion regarding standing and walking limitations, noting that it was
“based solely on her right knee condition” (AR. 613). The ALJ noted that plaintiff’s knee

11 condition “which was due to a basketball injury at age 16, did not prevent her from being
12 able to work subsequently in various positions of the restaurant industry,” and that there
13 was no evidence that plaintiff’s knee condition deteriorated since that time (id.).
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Defendant counters plaintiff’s argument by noting that the ALJ “pointed to

15 evidence that plaintiff worked in the restaurant business subsequent to injuring her knee
16 at 16, and that there was no objective evidence of worsening” (Dkt. 19, p. 13 (citing AR.
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613)). This is the only argument presented by defendant in support of the ALJ’s failure to
credit fully Dr. Cannon’s opinion regarding standing/walking limitations (see id.).

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However, the Court notes that decades have passed since plaintiff’s knee injury, and the
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ALJ found that plaintiff suffers from the severe impairment of degenerative arthritis of
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the right knee, an impairment that, by definition, results in degenerative changes over
time. The record demonstrates that plaintiff’s degenerative arthritis is backed by objective

24 evidence consisting of “an x-ray of her right knee,” as well as by the opinion from

ORDER ON PLAINTIFF’S COMPLAINT - 5

1 examining doctor, Dr. Cannon, and his observations of “range of motion limitation, and
2 crepitus on that side” (AR. 336). Therefore, this reasoning of a lack of deterioration over
3 time is not supported by substantial evidence in the record. This reason, along with
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plaintiff’s ability to stand and walk at work performed before her amended alleged date
of disability onset, is the only rationale offered by the ALJ for failing to credit fully Dr.

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Cannon’s opinion regarding standing/walking limitation that is defended by defendant
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(see Dkt. 19, p. 13). This rationale does not entail specific and legitimate reasons
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supported by substantial evidence in the record as a whole for failure to credit fully his
opinions regarding standing/walking limitations. Plaintiff’s ability to perform standing

11 and walking prior to her amended alleged onset date is not a legitimate reason for failing
12 to credit fully Dr. Cannon’s opinion regarding her ability to stand and walk years later,
13 when she suffers from degenerative arthritis of the right knee.
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Although not defended by defendant, the Court also notes that the ALJ supported

15 her finding that there was a lack of evidence for plaintiff’s knee condition deteriorating
16 by characterizing plaintiff’s treatment as “minimal” (AR. 613). However, the ALJ does
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not cite to any evidence in the record that there was any treatment recommended by any
doctor regarding her knee condition that plaintiff failed to follow. Although the ALJ

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indicates that plaintiff did not undergo physical therapy or receive any injections, the ALJ
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does not cite to any evidence in the record that these treatments were offered to plaintiff;
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that they were recommended by any doctor; or that any doctor opined that such
treatments would help her knee condition. Similarly, although the ALJ characterizes

24 imaging results and physical examination results as “benign,” Dr. Cannon described

ORDER ON PLAINTIFF’S COMPLAINT - 6

1 plaintiff’s imaging results and conducted a physical examination and opined that they
2 supported his opinion regarding limitations. As Dr. Cannon is a medical doctor and the
3 ALJ is not, offering her own characterization of the evidence does not entail specific and
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legitimate reasons based by substantial evidence in the record as a whole for failing to
credit fully the opinions from the examining doctor. See Schmidt v. Sullivan, 914 F.2d

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117, 118 (7th Cir. 1990) (“judges, including administrative law judges of the Social
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Security Administration, must be careful not to succumb to the temptation to play doctor.
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The medical expertise of the Social Security Administration is reflected in regulations; it
is not the birthright of the lawyers who apply them. Common sense can mislead; lay

11 intuitions about medical phenomena are often wrong”) (internal citations omitted)).
12 Although the ALJ notes that other doctors provided different opinions, this merely
13 indicates the standard which the ALJ must meet for any failure to credit fully Dr.
14 Cannon’s opinion, that is specific and legitimate reasons based on substantial evidence in
15 the record as a whole.
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Based on the reasons stated and the record as a whole, the Court concludes that the
ALJ erred in her evaluation of the opinion of Dr. Cannon regarding the standing/walking
limitation as she did not offer legitimate rationale for failing to credit it fully. See Lester,

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81 F.3d at 830-31 (citations omitted).
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The Court also concludes that this error is not harmless.
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The Ninth Circuit has “recognized that harmless error principles apply in the
Social Security Act context.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

24 (citing Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th

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1 Cir. 2006) (collecting cases)). Recently the Ninth Circuit reaffirmed the explanation in
2 Stout that “ALJ errors in social security are harmless if they are ‘inconsequential to the
3 ultimate nondisability determination’ and that ‘a reviewing court cannot consider [an]
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error harmless unless it can confidently conclude that no reasonable ALJ, when fully
crediting the testimony, could have reached a different disability determination.’” Marsh

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v. Colvin, 792 F.3d 1170, 1173 (9th Cir. July 10, 2015) (citing Stout, 454 F.3d at 10557

56). In Marsh, even though “the district court gave persuasive reasons to determine
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harmlessness,” the Ninth Circuit reversed and remanded for further administrative
proceedings, noting that “the decision on disability rests with the ALJ and the

11 Commissioner of the Social Security Administration in the first instance, not with a
12 district court.” Id. (citing 20 C.F.R. § 404.1527(d)(1)-(3)).
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Dr. Cannon opined that plaintiff was limited to two hours of standing/walking in

14 an eight-hour shift (AR. 336). This limitation was not included into the ALJ’s residual
15 functional capacity (“RFC”) determination. Including this limitation into the RFC may
16 have resulted in a different disability determination. The Court cannot conclude with
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confidence that “no reasonable ALJ, when fully crediting the [opinion from Dr. Cannon],
could have reached a different disability determination.’” Marsh, 792 F.3d at 1173 (citing

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Stout, 454 F.3d at 1055-56). Therefore, the error is not harmless.
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The medical evidence should be evaluated anew following remand of this matter,
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especially that of Dr. Cannon, for which the ALJ did not offer legitimate rationale for
failing to credit fully. See Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043;

24 Murray, 722 F.2d at 502). However, regarding plaintiff’s request for remand with a

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1 direction to award benefits, because it is not clear that plaintiff would be disabled if this
2 evidence was credited-as-true, this matter should be reversed and remanded for further
3 administrative proceedings. See Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)
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(quoting Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)) (remand with a direction
to award benefits only is appropriate when “it is clear from the record that the ALJ would

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be required to find the claimant disabled were such evidence credited”).
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(2)
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Whether or not the ALJ erred in concluding that the plaintiff could
perform work at the “Light” exertional level and in declining to apply
grid rule 201.12.

Here, plaintiff contends that the ALJ erred by failing to apply grid rule 201.12
after explicitly finding that plaintiff required an additional limitation beyond those of the
full range of light work (Dkt. 11, pp. 15-16). Defendant does not respond to this

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argument and therefore implicitly concedes plaintiff’s contention of error (see Dkt. 19).
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Plaintiff contends that had “the ALJ correctly applied grid rule 201.12 which is
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applicable to individuals limited to ‘sedentary’ work who have attained age 50, a finding
of disability would have been directed” (Dkt. 11, p. 15). Plaintiff’s also notes that a

18 physical consultative examiner concluded that plaintiff would not be able to stand and
19 walk sufficiently to perform light work (id., p. 16; see also AR. 336 (the “number of
20 hours the claimant could be expected to stand and walk in eight-hour workday is two
21 hours secondary to right knee osteoarthritis and range of motion dysfunction”)).
22 Plaintiff’s contention has some merit, although the Court notes that although the ALJ
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1 concluded that plaintiff could not perform the full range of light work, she did not
2 conclude that plaintiff was limited to sedentary work.
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The ALJ found that from September 14, 2009 through October 14, 2011, the
relevant time period for this appeal, plaintiff had the RFC for less than a full range of
light work, as plaintiff had the additional limitation of being able only to “stand and/or

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walk for up to 30-minute intervals before needing to sit briefly (i.e. for 5 to 15 minutes)”
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(AR. 608). As noted by plaintiff, “Defendant Agency’s own guidelines state that ‘the full
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range of light work requires standing or walking, off and on, for a total of approximately
6 hours of an 8-hour workday” (Dkt. 20, p. 2 (quoting SSR 83-10, 1983 SSR LEXIS 30

11 at *14)). If plaintiff needed to sit for 15 minutes after every 30 minutes, a limitation
12 contemplated by the ALJ’s RFC, plaintiff would not be capable of standing or walking
13 for 6 hours out of an 8-hour workday, rendering her incapable of the full range of light
14 work and suggesting that she only could perform the full range of sedentary work.
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In addition, as noted by the ALJ, at the amended alleged onset date (“AOD”) of

16 September 14, 2009, plaintiff “was 52 years old” (AR. 617). The ALJ also found that, at
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that time, plaintiff “was unable to perform any past relevant work,” and that
transferability “of job skills is not an issue in this case because the claimant’s past

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relevant work is unskilled” (AR. 617-18).
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According to the relevant federal regulation:
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Individuals approaching advanced age (age 50-54) may be significantly
limited in vocational adaptability if they are restricted to sedentary work.
When such individuals have no past work experience or can no longer
perform vocationally relevant past work and have no transferable skills,
a finding of disabled ordinarily obtains.

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20 C.F.R. § 404, subpart P, Appendix 2, § 201.00(g).
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In addition, according to the relevant table/grid, for a claimant who is closely
approaching advanced age (50-54), who is a high school graduate or more, without

5 transferable skills providing for direct entry into skilled work, whose past relevant work
6 is unskilled, and who is limited to sedentary work, the decision directed by the Rule is
7 “disabled.” Id. at Table 1, Rule 201.12.
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Therefore, as plaintiff was approaching advanced age at her AOD, could not

9 perform past relevant work, had no transferable job skills and could not perform light
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work as defined by the Social Security Administration, this federal regulation suggests
that a finding of disability might have been indicated. See id. However, just because
plaintiff cannot perform the full range of light work does not mean that plaintiff is limited

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to sedentary work. But, because the federal regulations suggest that a determination of
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disability may be warranted due to additional restrictions placed on plaintiff beyond light
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work, the ALJ should address this issue explicitly following remand of this matter.
(3)

Whether or not substantial evidence supports the ALJ’s conclusion
that from September 14, 2009 (i.e., the amended onset date) to October
14, 2011 (i.e., the date the Appeals Council found the plaintiff
disabled), plaintiff had the physical and mental residual functional
capacity to sustain work at the “light” exertional level.

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Because this matter must be reversed and remanded for further administrative
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proceedings, the ALJ’s findings regarding plaintiff’s RFC will, as a necessity, be
revisited following remand of this matter if the ALJ reaches that point in the sequential

24 disability evaluation process.

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(4)

Whether or not the ALJ erred in failing to provide legitimate reasons
supported by the record for her finding on credibility.

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The Court already has concluded that the ALJ erred in reviewing the medical
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evidence and that this matter should be reversed and remanded for further consideration,
see supra, section 1. In addition, the evaluation of a claimant’s statements regarding

6 limitations relies in part on the assessment of the medical evidence. See 20 C.F.R. §
7 404.1529(c); SSR 16-3p, 2016 SSR LEXIS 4. Therefore, plaintiff’s testimony and
8 statements should be assessed anew following remand of this matter.
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CONCLUSION
Based on the stated reasons and the relevant record, the Court ORDERS that this
matter be REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. §
405(g) to the Acting Commissioner for further consideration consistent with this order.
As September 14, 2009, plaintiff’s amended onset date, through October 14, 2011,

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the date the Appeals Council found the claimant disabled, is the relevant time period for
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this appeal, remand of this matter is for consideration of this time period only (see, e.g.,
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AR. 606).
JUDGMENT should be for plaintiff and the case should be closed.
Dated this 25th day of October, 2016.

A

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J. Richard Creatura
United States Magistrate Judge

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