Versteeg v. Colvin

Filing 12

ORDER re 3 Complaint; this matter is Reversed and Remanded for further administrative proceedings; signed by Judge Ronald B. Leighton. (DN)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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DEBRA RAE VERSTEEG,
Case No. 3:16-cv-05075-RBL

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Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

ORDER REVERSING AND
REMANDING DEFENDANT’S
DECISION TO DENY BENEFITS

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Defendant.

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THIS MATTER is before the Court on Plaintiff Versteeg’s Complaint [Dkt. 3] for review

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of the Social Security Commissioner’s denial of her application for disability insurance benefits.
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Versteeg suffers from mild degenerative disc disease of the cervical spine, bipolar

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disorder, depression, and anxiety. See Dkt. 7, Administrative Record 21. She applied for

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disability insurance benefits in August 2012, alleging she became disabled beginning in August

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2010. See AR 19. Those applications were denied upon initial administrative review and on

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reconsideration. See id. A hearing was held before Administrative Law Judge Paul G. Robeck in
May 2014. See id. Versteeg, represented by counsel, appeared and testified, as did a vocational

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expert. See AR 33-60.
The ALJ determined Versteeg to be not disabled. See AR 19-28. The Appeals Council

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denied Versteeg’s request for review, making the ALJ’s decision the final decision of the

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Commissioner of Social Security. See AR 1-6; 20 C.F.R. § 404.981. In February 2016, Versteeg

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ORDER - 1

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filed a complaint in this Court seeking judicial review of the Commissioner’s final decision. See

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Dkt. 3.

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Versteeg argues the Commissioner’s decision to deny benefits should be reversed and
remanded for further administrative proceedings, because the ALJ erred: (1) in evaluating

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Versteeg’s severe impairments; (2) in evaluating the medical evidence in the record; (3) in
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evaluating Versteeg’s credibility; and (4) in finding her to be capable of performing work

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available in the national economy at step five. Specifically, Versteeg argues the ALJ failed to

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give a sufficient reason to discount the opinion of treating physician Anne Scott, M.D. Versteeg

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argues the error affected the ultimate disability determination and is therefore not harmless.
The Commissioner argues the ALJ did not err in evaluating Scott’s opinion, Versteeg’s
credibility, or Versteeg’s severe impairments, so the ALJ’s RFC and step-five finding that

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Versteeg could perform other work were supported by substantial evidence and should be
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affirmed.
DISCUSSION

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The Commissioner’s determination that a claimant is not disabled must be upheld by the
Court if the Commissioner applied the “proper legal standards” and if “substantial evidence in
the record as a whole supports” that determination. See Hoffman v. Heckler, 785 F.2d 1423, 1425
(9th Cir. 1986); see also Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.

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2004); Carr v. Sullivan, 772 F.Supp. 522, 525 (E.D. Wash. 1991) (“A decision supported by
substantial evidence will, nevertheless, be set aside if the proper legal standards were not applied

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in weighing the evidence and making the decision.”) (citing Brawner v. Sec’y of Health and

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Human Services, 839 F.2d 432, 433 (9th Cir. 1987)).

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Substantial evidence is “such relevant evidence as a reasonable mind might accept as
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adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation

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omitted); see also Batson, 359 F.3d at 1193 (“[T]he Commissioner’s findings are upheld if

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supported by inferences reasonably drawn from the record.”). “The substantial evidence test

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requires that the reviewing court determine” whether the Commissioner’s decision is “supported

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by more than a scintilla of evidence, although less than a preponderance of the evidence is
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required.” Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). “If the evidence

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admits of more than one rational interpretation,” the Commissioner’s decision must be upheld.

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Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) (“Where there is conflicting evidence

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sufficient to support either outcome, we must affirm the decision actually made.”) (quoting

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Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971)).1

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I.

The ALJ’s Evaluation of the Medical Evidence in the Record

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The ALJ determines credibility and resolves ambiguities and conflicts in the medical
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evidence. See Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Where the medical evidence

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in the record is not conclusive, “questions of credibility and resolution of conflicts” are solely the

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functions of the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such cases, “the

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ALJ’s conclusion must be upheld.” Morgan v. Comm’r, Soc. Sec. Admin., 169 F.3d 595, 601 (9th

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Cir. 1999). Determining whether inconsistencies in the medical evidence “are material (or are in

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As the Ninth Circuit has further explained:
. . . It is immaterial that the evidence in a case would permit a different conclusion than that
which the [Commissioner] reached. If the [Commissioner]’s findings are supported by
substantial evidence, the courts are required to accept them. It is the function of the
[Commissioner], and not the courts to resolve conflicts in the evidence. While the court may
not try the case de novo, neither may it abdicate its traditional function of review. It must
scrutinize the record as a whole to determine whether the [Commissioner]’s conclusions are
rational. If they are . . . they must be upheld.

Sorenson, 514 F.2d at 1119 n.10.

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fact inconsistencies at all) and whether certain factors are relevant to discount” the opinions of

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medical experts “falls within this responsibility.” Id. at 603.

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In resolving questions of credibility and conflicts in the evidence, an ALJ’s findings
“must be supported by specific, cogent reasons.” Reddick, 157 F.3d at 725. The ALJ can do this

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“by setting out a detailed and thorough summary of the facts and conflicting clinical evidence,
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stating his interpretation thereof, and making findings.” Id. The ALJ also may draw inferences

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“logically flowing from the evidence.” Sample, 694 F.2d at 642. Further, the Court may draw

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“specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. Bowen, 881 F.2d

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747, 755 (9th Cir. 1989).
The ALJ must provide “clear and convincing” reasons for rejecting the uncontradicted
opinion of either a treating or evaluating physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.

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1996). Even when a physician’s opinion is contradicted, that opinion “can only be rejected for
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specific and legitimate reasons that are supported by substantial evidence in the record.” Id. at

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830–31. More weight is generally given to a treating physician’s opinion than to the opinions of

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those who do not treat the claimant. See Lester, 81 F.3d at 830.

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Versteeg argues the ALJ erred by giving little weight to the opinion of treating physician
Scott. See Dkt. 9, pp. 13-15. Scott completed a functional capacity assessment in May 2014 and
opined that Versteeg’s low cortisol levels and depression caused marked limitations in

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concentration, persistence, and pace. See AR 519-23. The ALJ gave Scott’s opinion little weight
because it was not supported by objective evidence and because Scott acknowledged she had

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limited knowledge of Versteeg’s functionality. See AR 25. The ALJ also noted that Scott

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appeared to have accepted Versteeg’s subjective complaints and was advocating for Versteeg.

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See id. None of these reasons is specific, legitimate, and supported by substantial evidence.
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First, substantial evidence does not support the ALJ’s finding that Scott’s opinion was not

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supported by objective medical evidence. When asked on the assessment form what findings

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supported the marked limitations to which Scott opined, Scott wrote that a diagnostic lab test

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showed low cortisol levels. See AR 521. This finding is in Scott’s notes from a May 2013 visit

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by Versteeg. See AR 422. This finding directly contradicts the ALJ’s statements that Scott’s
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opinion was not explained, was not supported by objective evidence, or was based on Versteeg’s
subjective complaints.
Next, while the ALJ stated that Scott acknowledged having limited knowledge of the

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claimant’s functionality, Scott only noted that she could not assess certain physical postural

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limitations. See AR 520. Scott could provide an opinion regarding Versteeg’s cognitive

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limitations and provided findings that supported her opinion, however. See AR 521. Scott’s

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recognition that she could not opine to certain categories of Versteeg’s abilities is not a
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legitimate reason to discount the opinions she provided.
Last, no substantial evidence supports the ALJ’s statement that Scott appeared to be

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acting as an advocate for Versteeg. Nothing in the assessment form indicates that Scott acted as

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an advocate, as she provided objective medical evidence that supported her opinions. See AR

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519-22. That Scott chose not to opine on areas of functionality of which she had no knowledge
further bolsters her credibility. See AR 520. Neither the ALJ nor the Commissioner identifies a

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piece of evidence showing that Scott was failing to act impartially. See AR 25; Dkt. 10, p. 7.
Therefore, the ALJ erred by failing to provide a specific and legitimate reason supported by
substantial evidence for discounting Scott’s opinion.
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) (citing Stout v.
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Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (collecting cases)). It “adhere[s]

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to the general principle that an ALJ’s error is harmless where it is ‘inconsequential to the

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ultimate nondisability determination.’” Id. (quoting Carmickle v. Comm’r, Soc. Sec. Admin., 533

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F.3d 1155, 1162 (9th Cir. 2008)) (other citations omitted). Courts must review cases “‘without

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regard to errors’ that do not affect the parties’ ‘substantial rights.’” Id. at 1118 (quoting Shinseki
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v. Sanders, 556 U.S. 396, 407 (2009) (quoting 28 U.S.C. § 2111) (codification of the harmless

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error rule)). Courts “look at the record as a whole to determine [if] the error alters the outcome of

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the case.” Molina, 674 F.3d at 1115.

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The ALJ’s improper rejection of the Scott’s opinion affected the case’s outcome. Had the
ALJ fully credited Scott’s opinion, the RFC would have included additional limitations in her
ability to perform even simple tasks. Instead, the ALJ posed hypothetical questions to the

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vocational expert based on an incomplete RFC. See AR 55-56. Based on the vocational expert’s
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answers to those questions, the ALJ found Versteeg could perform work available in the national

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economy. See AR 27-28. As the ALJ’s ultimate determination regarding disability was based on

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a vocational expert’s testimony on an improper hypothetical question, the error is not harmless.

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II.

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The ALJ’s Assessment of Versteeg’s Residual Functional Capacity
The Commissioner employs a five-step “sequential evaluation process” to determine

whether a claimant is disabled. See 20 C.F.R. § 404.1520. If the claimant is found disabled or not

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disabled at any particular step thereof, the disability determination is made at that step, and the
sequential evaluation process ends. See id. If a disability determination “cannot be made on the

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basis of medical factors alone at step three of that process,” the ALJ must identify the claimant’s

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“functional limitations and restrictions” and assess her “remaining capacities for work-related

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activities.” SSR 96-8p, 1996 WL 374184 at *2. A claimant’s RFC assessment is used at step four
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to determine whether she can do past relevant work, and at step five to determine whether she

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can do other work. See id.

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Residual functional capacity is what the claimant can still do despite her limitations. See
id. It is the maximum work that the claimant can perform based on all of the relevant evidence in

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the record. See id. However, an inability to work must result from the claimant’s “physical or
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mental impairment(s).” Id. the ALJ must consider only those limitations and restrictions

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“attributable to medically determinable impairments.” Id. In assessing a claimant’s RFC, the ALJ

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also must discuss why the claimant’s “symptom-related functional limitations and restrictions

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can or cannot reasonably be accepted as consistent with the medical or other evidence.” Id. at *7.

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However, because the ALJ erred in evaluating Scott’s opinion, the RFC assessed by the
ALJ does not necessarily completely and accurately describe all of Versteeg’s capabilities. The

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ALJ erred here, too.
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III.

The ALJ’s Step Five Determination
If a claimant cannot perform her past relevant work, at step five of the disability

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evaluation process the ALJ must show there are a significant number of jobs in the national

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economy the claimant can do. See Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20

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C.F.R. §§ 404.1520(d), (e), 416.920(d), (e). The ALJ can do this through the testimony of a
vocational expert or by reference to defendant’s Medical-Vocational Guidelines. See Osenbrock

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v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2000); see also Tackett, 180 F.3d at 1100-1101.
Based on the testimony of a vocational expert, the ALJ found Versteeg capable of

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performing other work. See AR 27-28. Again, however, because the ALJ erred in evaluating

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Scott’s opinion and in assessing Versteeg’s RFC, the hypothetical question presented did not

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completely and accurately describe all of Versteeg’s capabilities. The ALJ’s step-five

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determination is not supported by substantial evidence and is in error.

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IV.

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This Matter Should Be Remanded for Further Administrative Proceedings
The Court may remand a case “either for additional evidence and findings or to award

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benefits.” Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996). When the Court reverses an
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ALJ’s decision, “the proper course, except in rare circumstances, is to remand to the agency for

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additional investigation or explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004)

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(citations omitted). It is “the unusual case in which it is clear from the record that the claimant is

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unable to perform gainful employment in the national economy,” that “remand for an immediate

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award of benefits is appropriate.” Id.

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Benefits may be awarded where “the record has been fully developed” and “further

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administrative proceedings would serve no useful purpose.” Smolen, 80 F.3d at 1292; Holohan v.
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Massanari, 246 F.3d 1195, 1210 (9th Cir. 2001). Specifically, benefits should be awarded where:
(1) the ALJ has failed to provide legally sufficient reasons for rejecting [the
claimant’s] 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.

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Smolen, 80 F.3d 1273 at 1292; McCartey v. Massanari, 298 F.3d 1072, 1076-77 (9th Cir. 2002).
Here, issues remain regarding conflicts in the medical evidence, Versteeg’s functional

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capabilities, and her ability to perform other jobs existing in significant numbers in the national
economy despite additional limitations. Remand for further consideration is warranted.

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//

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//

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//
ORDER - 8

CONCLUSION

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The Court finds the ALJ improperly concluded Versteeg is not disabled. Defendant’s
decision to deny benefits is REVERSED, and this matter is REMANDED for further
administrative proceedings as detailed in this order.
DATED this 18th day of July, 2016.

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A

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Ronald B. Leighton
United States District Judge

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ORDER - 9