Neder v. Commissioner Social Security Administration, No. 1:2014cv00282 - Document 23 (D. Or. 2015)
Court Description: Opinion and Order: The Commissioner's decision is reversed and remanded for further administrative proceedings. Signed on 9/30/2015 by Magistrate Judge Thomas M. Coffin. (plb)
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Neder v. Commissioner Social Security Administration Doc. 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MARIE C. NEDER, Case No. 1:14-cv-00282-TC OPINION AND ORDER Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. COFFIN, Magistrate Judge: This action is brought pursuant to 42 U.S. C. § 4 05 (g) to obt.ain judicial review of the final decision of the Commissioner denying plaintiff's application for Supplemental Security Income (SSI) set and Disability Insurance Benefits forth below, the Commissioner's (DIB). decision For the reasons is reversed and remanded fo'r further administrative proceedings. 1 - OPINION AND ORDER Dockets.Justia.com Background On June 12, 2009, plaintiff protectively filed applications for DIB and SSI, 158, 165-67. alleging disability as of that date. Both claims were denied Tr. and initially 20, on reconsideration, and plaintiff requested a hearing regarding her DIB application. Plaintiff subsequently filed another SSI application and alleged disability as of June 23, 2011. Tr. 178. On December 29, 2011, plaintiff appeared unrepresented before an Administrative Law allow plaintiff April 24, Judge to 2012, (ALJ) , obtain who continued representation. plaintiff appeared the hearing to 21, 41-51. On Tr. with her attorney and testified before the ALJ. Tr. 52-91. No other witness testified. After the hearing, the ALJ sought further evidence and referred plaintiff for a consultative neurological examination; the ALJ also reopened plaintiff's prior SSI application. Tr. 21. On September 14, 2012, the ALJ issued a written decision finding plaintiff not disabled because she could relevant work as a chiropractic assistant. then sought additional considered rendering review medical the the from the evidence. supplemental ALJ's decision Appeals perform Tr. 20-34. Council and past Plaintiff submitted 1-6. The Appeals Council evidence but denied review, Tr. as the final decision Commissioner. Plaintiff now seeks judicial review. 2 - OPINION AND ORDER her of the Standard of Review The court must affirm the Commissioner's decision if it is based on proper legal by substantial F. 2d 4 98, than a 501 mere reasonable standards evidence (9th Cir. scintilla. mind conclusion." in findings record. Hammock the 198 9) . It Substantial means accept might Richardson and the v. such Perales, relevant 402 U.S. (citation and internal quotations omitted). "both the evidence [Commissioner's] 772 (9th Cir. insignificant supports that and conclusion." Martinez v. 1986). if the Burch v. Barnhart, Variable 400 F.3d 676, 679 Bowen, is 879 "more evidence as support to 389, 401 a a (1971) The court must weigh from detracts Heckler, interpretations Commissioner's v. supported evidence adequate as are the 807 F.2d 771, of evidence interpretation is are rational. (9th Cir. 2005). Commissioner's Decision The initial establish (9th disability. Cir. 198 6) . demonstrate an activity burden by To of proof Howard meet of any v. Heckler, this "inability to reason rests engage upon burden, 7 82 the the F. 2d claimant 14 8 4, 148 6 claimant must in any substantial medically to determinable gainful physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S. C. § 423 (d) (1) (A) . The Commissioner 3 - OPINION AND ORDER has establ.ished a five-step sequential process for determining whether a person is disabled. Yuckert, 482 416.920. At engaged U.S. 137, step in 140 one, ·the "substantial (1987); ALJ At step two, the impairments of chemotherapy treatment lower and However, equal a the Tr. ALJ 24; acknowledges activity." are found 20 severe Yuckert, with 482 C.F.R. U.S. since had her plaintiff not alleged her had post bilateral upper likely secondary 404.1520(c), §§ impairments that to preclude at 141; severe status and residual impairments as 404.1520, §§ plaintiff lymphoma same that listed so that neuropathy found "number of that activity" "non-Hodgkins' for C.F.R. 404.1520(b), 416.920(b). §§ ALJ extremity chemotherapy." found gainful onset date. Tr. 24; 20 C.F.R. 20 Bowen v. did the 416.920(c). not meet or [Commissioner] substantial Tr. to 26; 20 gainful C.F.R. §§ 404.1520 (d)' 416.920 (d) . The ALJ functional work then determined capacity with 404.1520 (e), certain (RFC) that plaintiff to perform a restrictions. 416.920 (e). Tr. Specifically, had 27; the residual range reduced the of light 20 ALJ C.F.R. found §§ that plaintiff "can lift and/or carry 20 pounds occasionally and 10 pounds frequently, cumulatively in an can stand eight-hour and workday, walk and for can four sit for hours four hours in an eight-hour workday." Tr. 27. The ALJ also found that 4 - OPINION AND ORDER "can plaintiff "frequently pulling, occasionally perform and all perform handling, other fingering, reaching reaching," overhead feeling, activities." Tr. pushing, 2 7. The ALJ also made additional RFC findings regarding plaintiff's ability to work in certain environments. Tr. 27. Based on this RFC finding, plaintiff was chiropractic Tr. ALJ 32-33; did able to assistant 20 C.F.R. not perform "as it her was to step past relevant work as actually performed by her." 404.1520(f), §§ proceed at step four the ALJ found that five 416.920(f). and found Therefore, the plaintiff not disabled under the Act. Discussion Plaintiff plaintiff alleges argues that sufficient reasons physician, Dr. plaintiff's Plaintiff the to errors ALJ accept Dossey, treating also numerous failed the while that the to opinion rejecting physicians, argues by Drs. the ALJ. provide of an legally examining opinions the of and Kohler. medical evidence Moline supplemental First, submitted to the Appeals Council undermines the ALJ's assessment of the medical evidence. Second, improperly rejected her neuropathy, fatigue, and pain. ALJ improperly rejected 5 - OPINION AND ORDER plaintiff argues that the ALJ subjective the Third, lay complaints regarding her plaintiff argues that the opinion of her friend, Mr. Tedrow. Fourth, plaintiff argues that the ALJ erred by failing to elicit vocational expert (VE) testimony regarding her ability to perform her past work at step four. at step four and that remand I find that the ALJ erred for further administrative. proceedings is required. Plaintiff argues the ALJ was required to obtain testimony from a vocational expert to determine whether plaintiff's nonexertional presumably neuropathic limitations symptoms, pain and fatigue - affected her ability to perform her past relevant work. Defendant responds that plaintiff bears the burden of establishing the inability to perform past relevant work at step four, and that vocational determine whether expert plaintiff was testimony is able not required to to perform her Ninth Circuit does past relevant work as it was actually performed. Defendant is correct that the not require VE testimony at step four in all instances. See Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (if plaintiff cannot show the inability to perform past relevant work at step four, a vocational expert's testimony, required . 11 ) ; see a 1 so 2 0 C . F . R . §§ though "useful, 4 0 4 . 15 6 0 (b ) ( 2 ) , [is] not 4 1 6 . 9 6 0 (b ) ( 2 ) ("We may use ... vocational experts ... to obtain evidence we need to help us given determine whether you can do your residual 6 - OPINION AND ORDER functional your past capacity. 11 ) relevant work, Defendant is also correct that plaintiff bears through step four. the Nonetheless, burden of proving disability "[a]lthough the burden of proof lies with the claimant at step four, the ALJ still has a duty to make the requisite factual findings to support his conclusion." Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). To do so, the ALJ must make "specific findings as to the claimant's residual functional capacity, the physical and mental demands of residual the past relevant functional capacity (citing SSR 82-62) . perform past perform" ·the to work, "actual relevant job," the past relation work." of at Id. the 845 finding that a plaintiff can the functional and the To support a relevant particular past work, plaintiff demands or the "must and be job able duties "functional to of demands a and job duties of the occupation as generally required by employers throughout other the national economy." the words, ALJ must Id. make (citing specific SSR 82-61). findings In that a plaintiff can perform her past relevant work as it is "actually" performed or as it is "generally" performed. The relevant finding ALJ found that work as is that it plaintiff plaintiff actually Tr. the Occupational of 7 - OPINION AND ORDER 33-34. perform performed; could perform her generally performed. Dictionary could Indeed, Titles the past her ALJ work past made as it no is the ALJ did not consult or obtain vocational expert testimony regarding this 2010 WL 5348737, at *2 (C. D. issue. Cal. See 21, Dec. Yarri to 2010) v. As true, ("Information from the DOT, or the testimony of a vocational specialist, may be used to ascertain the demands of an occupation as ordinarily required by employers throughout the national economy at steps four and five Therefore, the regarding of the ALJ the was manner sequential required in which evaluation to make procedure."). sufficient plaintiff's past findings work as a chiropractic assistant was actually performed. "Social information relevant Security that work may as vocational report, SSR 82-41." Pinto, her Significantly, report her sit for a to ALJ a define a sources two a claimant's properly 8 4 5. Here, report and her chiropractic admitted of past completed that the ALJ purportedly own testimony assistant. plaintiff's "her chiropractic assistant total of and the claimant's own testimony, vocational as name performed: 2 4 9 F. 3d at duties the used SSR 82-61, indicated that to be actually relied on plaintiff's regarding Regulations Tr. 33. vocational job required seven hours ... and perform fine and gross manipulation activities for a total of eight hours... each day... which at first blush, arguably appears to exceed limitations described" in the ALJ's RFC assessment. Tr. 95. Thus, as admitted by the ALJ, 8 - OPINION AND 'ORDER the 33, 194- plaintiff's vocational report establishes that plaintiff would be unable to perform her past relevant as work as a chiropractic assistant it was actually performed. However, hours she the ALJ found that plaintiff's description of the spent "performing inaccurate" because per day. various Tr. job 33. various activities" she worked at the job for was "patently only eight hours The ALJ did not explain why her description of duties and the amount of rendered her description inaccurate. time she performed Regardless, them given the ALJ's rejection of plaintiff's vocational report, the ALJ was limited to information used to plaintiff's define the testimony duties as the of plaintiff's source past of work as it was actually performed. Plaintiff's testimony duties of her job as a testified that, patient utilized not sufficiently chiropractic assistant. or two ultrasound treatments; progress computer skills notes, to and things perform her Tr. of required no more than four hours of walking and no more than four hours of sitting, 9 - OPINION AND ORDER "records, that and kind"; sometimes 63-64. did not clarify whether plaintiff's past work as a assistant the office work, kept duties; lifted objects weighing up to three pounds. define Plaintiff simply in addition to performing general she performed one files, did The ALJ chiropractic standing and/or as set forth in the ALJ' s whether RFC assessment. plaintiff's handling or past manipulating; plaintiff's limitations working a on Similarly, work a and computer the required more significant the and ALJ did than omission accepted clarify ''frequent" light of requirements job maintaining not of files in and progress notes. In sum, the ALJ failed to "make specific findings record at each phase of the step four analysis [to] on the provide [] for meaningful judicial review," Pinto, 2 4 9 F. 3d at 8 4 7 (quoting Winfrey v. Chater, Consequently, 92 the ALJ' s F.3d 1017, 1025 (9th Cir. 1996)) . finding that plaintiff can perform her past relevant work as a chiropractic assistant is not supported by substantial evidence the ALJ did not elicit regarding the generally performed. cannot be duties upheld, in the of record. testimony a As from a chiropractic Therefore, regardless the of noted by plaintiff, vocational assistant ALJ's step plaintiff's as four expert it is finding non-exertional limitations. Due to the error at step four, outstanding issues preclude the determination of disability and require remand for proceedings. 2000). error Harman v. Apfel, 211 F.3d 1172, 1178 further (9th Cir. I further find that plaintiff's additional assignments of raise outstanding 10 - OPINION AND ORDER issues, particularly in light of the supplemental evidence submitted to the Appeals Council. Plaintiff medical argues opinions Specifically, accepted were by not of the ALJ, ALJ argues improperly and that assessed treating Dr. Dossey's opinion, internal inconsistencies the In 2012, ALJ. June the physicians. contained by Dr. that Dossey, examined plaintiff at the request of the ALJ. Dossey conducted a clinical testing. plaintiff's the examining plaintiff resolved neurologist, that sixty-minute examination that Tr. 728-33. "[m]aximum Ultimately, standing and Dr. a Dr. included some Dossey found that walking capacity is two hours in an eight-hour workday," and that her "[m]aximum sitting capacity However, is four hours in an eight-hour workday." in an accompanying assessment sheet, Tr. 732. Dr. Dossey checked boxes indicating that plaintiff had the ability to sit for four hours, stand for interruption. Tr. four hours, 7 35. Dr. could stand interrogatories and walk requestinq for four hours without Dossey also checked boxes indicating that plaintiff could sit for and and walk four and six hours in a workday, for two hours. additional Id. In response information, Dr. to Dossey stated that plaintiff could sit for a maximum of four hours and that plaintiff's condition would not require additional breaks in an eight-hour work day. Tr. 756. The ALJ did 11 - OPINION AND ORDER not note or address the alleged inconsistencies, supported his instead RFC finding finding that Dr. Dossey's evaluation that plaintiff could stand and walk cumulatively for a four-hour period and that she could sit for a four-hour remand, period during an eight-hour workday. Tr. 28-30. On the ALJ shall consider and resolve the inconsistencies identified by plaintiff in Dr. Dossey's evaluation and the accompanying assessment sheet. Plaintiff submitted to also the argues Appeals statements complaints, Council of plaintiff's subjective that supplemental the supports the treating physicians, and detracts from the evidence opinions as and well as her findings of the ALJ. In 2009, and walk, has had symptoms but Dr. Moline opined that plaintiff could sit, stand, she weight "cannot concentrate, loss, and she of chemotherapy... At is she gets fatigued, experiencing the present time many she and I suspect will be permanently disabled." Tr. 2012, Dr. of she the is disabled 417. In April Kohler asserted that plaintiff could sit, walk for six hours during an eight-hour work day. stand and Tr. 721. Dr. Kohler also found that plaintiff had impaired short term memory, could tasks. not Tr. neuropathy complete 720. detailed, Finally, stemmed from 12 - OPINION AND ORDER Dr. her complicated Kohler tasks, opined chemotherapy or that and fast-paced plaintiff's would likely persist. Tr. 719. The ALJ generally gave "significant weight" to their opinions regarding plaintiff's physical limitations, but only to the extent consi.stent with the ALJ' s RFC findings; the ALJ also rejected any finding of mental limitation. Tr. 29-30. With respect to her subjective complaints, plaintiff generally complained of continuing neuropathy in her extremities and feelings,' of anxiety. Tr. 7 2-7 6, 8 3-8 4. Plaintiff further alleged that she could not walk for long without having pain and swelling, limited could in her not sit daily for more activities weakness in her arm and hand. Tr. than a few due to 74, 81-84. hours, was numbness ongoing and and Notably, plaintiff was diagnosed with lymphoma and received chemotherapy and other treatments, resulting in documented neuropathy and fatigue. submitted by plaintiff arguably the treating E.g., Tr. 697-703, 719. The supports supplemental her physicians. allegations In particular, practitioner reflect of suicide repeated evidence the 2012 of by plaintiff, swelling in tingling and numbness in her hands. records from Dr. findings of records symptoms of depression, expressed complaints and as her from a nurse including thoughts well her ankles Tr. 7 57-817. as and plaintiff's feet, Further, and 2012 Kohler indicate continued cognitive issues and ongoing neuropathy. Tr. 13 - OPINION AND ORDER 818, 821. In September 2012, neurologist Dr. Kevin Sullivan examined plaintiff "essentially areflexive right." 820. suffered Tr. from sensory, Dr. except Sullivan for a electrodiagnostic no that knee that she was on the jerk plaintiff likely polyneuropathy, primarily changes significant studies. trace opined "chemotherapy-induced despite and noted seen Medications are being unlikely to alter this feeling of altered sensation in her extremities." Tr. Ultimately, Dr. Sullivan stated plaintiff's that on 82 0. symptoms "significantly impact her ability to return to computer work." Tr. 820. Finally, the December 2012 treatment record provided by Dr. Gleffe Dan weakness, such as near the reflects and tingling typing, end plaintiff's of plaintiff's in her hands buttoning her the anxiety day. and Tr. complaints numbness, and difficulty with tasks clothes, 822-24. depression, of for and using Dr. her Gleffe which fingers also she was noted taking medication. Accordingly, the on remand the ALJ shall supplemental medical evidence review and consider submitted to the Appeals Council, along with the other evidence of record, when assessing plaintiff's physical and mental limitations and determining her RFC. Further, in light of the possible symptoms and diagnosis of depression, the ALJ shall develop the record with plaintiff's alleged mental impairments and limitations. 14 - OPINION AND ORDER regard to Finally, medical given evidence the ALJ' s in heavy assessing reliance plaintiff's on the objective credibility along with the questionable findings that plaintiff's daily activities and medical treatment contradict the severity of her complaints the ALJ witness shall reassess statement including the in plaintiff's light supplemental of the evidence credibility and entire medical submitted to the lay evidence, the Appeals Council. Conclusion The ALJ'S finding that plaintiff was not disabled under the Act is not supported Accordingly, the REMANDED further for by substantial Commissioner's evidence decision administrative is proceedings above. IT IS SO ORDERED. Dated this j() day of September, 2015. United 15 - OPINION AND ORDER agistrate Judge in the record. REVERSED as set AND forth
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