Pixley v. Commissioner of Social Security Administration, No. 3:2012cv00877 - Document 23 (D. Or. 2013)

Court Description: OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 08/26/2013 by Judge Malcolm F. Marsh. (pvh)

Download PDF

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON AARON A. PIXLEY, Plaintiff, v. COMNISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. LINDA S. ZISKIN Ziskin Law Office P.O. Box 753833 Las Vegas, Nevada 89136 Attorney for Plaintiff S. AMANDA NARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 BENJAMIN J. GROEBNER Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900, M/S 221A Seattle, Washington 98104-1075 Attorneys for Defendant 1 - OPINION AND ORDER 3:12-cv-00877-NA OPINION AND ORDER MARSH, Judge Pixley, brings this action for judicial Plaintiff, Aaron A. review of a final decision of the Commissioner of Social Security (the denying Commissioner ) his for application supplemental security income (SSI) disability benefits under Title XVI of the See 42 U.S.C. Social Security Act (the Act). §§ court has jurisdiction pursuant to 42 U.S.C. reasons set below, forth I reverse the § final This 1381-1383f, 405(g). For the decision of the Commissioner and remand for further proceedings consistent with this opinion. PROCEDURAL BACKGROUND Plaintiff protectively filed an application for SSI on August 30, 2005 alleging cardiomyopat hy, due disability to [attention deficit disorder), apnea, obesity." Tr. 251-52. dystrophy, "[m)uscular depression, sleep The claim was denied initially and prior ALJ issued a decision on December 3, 2008, denying plaintiff's claim. Tr. 113- upon reconsiderati on. After a hearing, a 22. On November 2, 2010, the Appeals Council vacated the decision and remanded for further proceedings. Tr. 126-28. A second hearing was held by a different ALJ on February 7, 2011, at which plaintiff was represented by counsel and testified. In addition, plaintiff's vocational rehabilitatio n counselor, Donna Ray Luckett, and mother, Melody Ann Pixley, 2 - OPINION AND ORDER testified on plaintiff's behalf. Vocational the throughout present was Jesky Gary (VE) Expert hearing and testified. 2011, the ALJ issued a decision once again On February 16, The Appeals Council denying plaintiff's application. declined review, and plaintiff timely appealed. FACTUAL BACKGROUND Born on April 9, 1984, plaintiff was 21 years old on the date of the application and 26 years old on the date of the hearing. Plaintiff has a bachelor's degree in English and no past relevant work. Plaintiff alleges his conditions became disabling on his date 1984. of birth, April 9, plaintiff submitted an In addition to his hearing testimony, Report, Function Adult Questionnair e, and Pain Questionnair e. Fatigue Tr. 224-31, 232-35, 236-38. In addition to her hearing testimony, plaintiff's mother submitted Tr. 263-70. a Third Party Function Report. Tr. David Pixley, also submitted a letter. Plaintiff's father, 379~80. As relevant to this case, plaintiff's treating psychologist , Jay Edwards, Ph. D., submitted two opinions that assigned functional limitations, one dated October September 30, 2008. PMHNP, 18, 2007, Tr. 641-44, 646-50. plaintiff's treating the other dated In addition, Anita Katz, psychiatric practitioner , submitted an opinion. and mental Tr. 552-55. health nurse Ronald D. Duvall, Ph.D., examined plaintiff and submitted an evaluative opinion. 3 - OPINION AND ORDER Tr. 652-61. Finally, the record contains one page of a opinion by Dr. Luahra Ude, Ph.D. four-page Tr. 667. THE ALJ'S DISABILITY ANALYSIS The Commissioner established has a sequential five-step process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140-42 (1987); 20 C.F.R. § Bowen v. 416.920(a) (4) (i)- Each step is potentially dispositive. The claimant bears the burden of proof at Steps One through Four. Tackett v. Apfel, 180 (v). F. 3d 1094, 1098 (9th Cir. The 1999). burden shifts to the Commissioner at Step Five to show that a significant number of jobs exist in the national economy that the claimant can perform. See Yuckert, 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that plaintiff has not engaged in substantial gainful activity since the application date, August 30, 2005. At See 20 C.F.R. Step Two, the §§ ALJ 416.971 et seq.; Tr. 18. determined plaintiff's that Becker muscular dystrophy; "Asperger's disorder vs. an anxiety disorder;" cardiomyopat hy; obesity; obstructive sleep apnea; depression; an avoidant personality disorder; personality disorder are severe and an obsessive-com pulsive impairments. See 20 C.F.R. § 416.920(c); Tr. 19-20. At Step Three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meet or medically 4 - OPINION AND ORDER equal any listed impairmen t. See 20 C.F.R. §§ 416.920(d ), 416.925, 416.926; Tr. 21-22. The ALJ found that the plaintiff has residual functiona l capacity (RFC) to perform less than the full range of light work, including limitation s that plaintiff can only lift and carry 20 pounds occasiona lly and 10 pounds frequently ; can stand, walk, or sit at least stoop or balance, six hours can only climb, in an eight-hou r day; occasiona lly; cannot in work a hazardous environme nt; and can have no more than occasiona l interactio n with the public. The ALJ additiona lly limited plaintiff to unskilled or low semi-skil led work. Finally, the ALJ noted that plaintiff works best alone, and not as part of a team. At Step relevant work. At Step Four, the found ALJ See 20 C.F.R. Five, § Tr. 22-28. that plaintiff no past 416.965; Tr. 28. the ALJ found however, has that jobs exist in significan t numbers in the national economy that plaintiff can perform, including Janitoria l Worker Assembler . See 20 C.F.R. According ly, §§ (light) and Small Product 416.969, 416.969(a ); Tr. 29. the ALJ found that plaintiff \vas not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff raises five arguments on appeal. First, plaintiff alleges the ALJ failed to follow the instructio ns contained in the Appeals Council's remand order. 5 - OPINION AND ORDER Second, plaintiff asserts that the ALJ improperly rejected opinion the Third, Edwards. Dr. of plaintiff argues that the ALJ improperly rejected the opinion of Dr. Fourth, Ude. plaintiff maintains that the ALJ improperly rejected the opinion of Ms. Katz. Finally, plaintiff asserts that the ALJ improperly rejected the testimony of plaintiff's vocational rehabilitation counselor, Ms. Lockett. STANDARD OF REVIEW The affirm the Commissioner's court must decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence 405(g); Andrews v. in the 53 F.3d 1035, Shalala, 42 u.s.c. record. 1039 (9th Cir. § 1995). ''Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). to more than one rational decision must be upheld. supports The or Martinez v. Heckler, If the evidence is susceptible interpretation, Andrews, it Id. the Commissioner's 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." 1156 (9th Cir. 2001). Ill 6 - OPINION AND ORDER Edlund v. Massanari, 253 F.3d 1152, DISCUSSION I. Compliance with the Appeals Council Order Plaintiff first argues Appeals Council's remand order. follow the ALJ failed to that the The Appeals Council ordered the ALJ to: 1) Evaluate Dr. Edwards' 2008 opinion; 2) Further evaluate plaintiff's subjective complaints; 3) Evaluate plaintiff's mental impairments in accordance with the special technique described in 20 C.F.R. § 416.920a and document the evaluation accordingly; 4) Further evaluate plaintiff's residual functional capacity (RFC) in light of the medical source opinions; "evidence" from a medical expert; and additional vocational expert testimony. Obtain, 5) if necessary, If warranted, 6) Plaintiff 126-27. Tr. obtain specifically argues that the ALJ failed to consider Dr. Edwards' opinion, failed to obtain evidence erroneously relied on some of from a the medical expert, prior ALJ's and findings. Plaintiff's arguments are without merit. The ALJ clearly considered Dr. Edwards' 2008 opinion. The ALJ's opinion contains nearly a page of discussion of Dr. Edwards' 1 opinions, much of which focuses on the 2008 opinion. Tr. 26. The Appeals Council did not order the ALJ to ascribe any particular weight to Dr. Edwards' opinion, but rather instructed the 2011 ALJ To the extent plaintiff argues the ALJ cited inadequate reasons to discredit Dr. Edwards opinions, that argument is addressed below. 1 7 - OPINION AND ORDER to consider the 2008 opinion. The ALJ plainly complied with that The ALJ also clearly obtained additional evidence instruction. from a medical expert, as the 2011 ALJ obtained an evaluation and report from Dr. Duvall. Tr. Obtaining this evaluation 651-61. also clearly satisfies the Appeals Council's mandate. Finally, the simple fact that the 2011 ALJ made some of the same findings and reached some of the same conclusions, even if in the same terms, as the 2008 ALJ does not establish that the 2011 ALJ failed to follow I conclude that the 2011 ALJ the Appeals Council's remand order. sufficiently complied with the remand order. II. Consideration of Medical Testimony Plaintiff next argues that the ALJ erred in his consideration of the medical testimony by improperly rejecting the opinions of Drs. Edwards and Ode. convincing reasons to The Commissioner must provide clear and reject treating or examining physician. 830-31 (9th Cir. 1995). opinion uncontradicte d the of a Lester v. Chater, 81 F.3d 821, Where a physician's opinion is contradicted by that of another physician, the ALJ may reject the physician's opinion by providing specific and legitimate reasons supported by substantial evidence in the record. Id. "'The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.'" 661, 671 (9th Cir. 2012) 8 - OPINION AND ORDER Chaudhry v. Astrue, 688 F.3d (quoting Bray v. Comm' r Soc. Sec. Admin"' 554 F. 3d 1219, 1228 the record "'Where 2009)). (9th Cir. the ALJ is charged with contains conflictin g medical evidence, determinin g credibilit y and resolving the conflict. '" Id. (quoting Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003)). The ALJ is responsib le for translatin g the claimant' s medical condition s into functiona l limitation s in the RFC. See Stubbs-Da nielson v. Ultimately , the RFC Astrue, 539 F. 3d 1169, 1174 (9th Cir. 2008). is sufficien t if it is ~consistent with restrictio ns identified in Id. the medical testimony ." Dr . Edwards A. The record contains three opinions from Dr. Edwards. July 2006 19, evaluation , diagnosed psycholog ist, Dr. plaintiff 's Disabilit ies and Asperger Syndrome. with Tr. 469. treating Nonverbal Edwards, plaintiff After a Learning Dr. Edwards did not directly ascribe any functiona l limitation s to plaintiff at that but time, did describe some character istics of plaintiff 's diagnoses , and made recommend ations for plaintiff 's performan ce in school. Tr. 469-70. On October 18, 2007, plaintiff 's functiona l Dr. Edwards submitted an opinion as to limitation s. Dr. Edwards checked that plaintiff 's abilities in skills required for unskilled work were largely ~good" with only ~fair" abilities to work in coordinat ion with, or proximity to others, make simple work-rela ted decisions , perform at a consisten t pace, 9 - OPINION AND ORDER and deal with normal work stress. Tr. Dr. 641-42. explained that Edwards plaintiff's "Asperger negatively affects spontaneous peer interactions and Disorder . . the ability to respond efficiently in stressful conditions," and that his muscular dystrophy "negatively affects his stamina and motor speed skills." skilled work, abilities with Dr. 642. Tr. With respect to semi-skilled and Edwards opined that plaintiff had only "fair" to respect those Tr. requirements . 643. Dr. Edwards noted, however, that plaintiff's abilities to interact with the general public, maintain socially appropriate behavior, adhere to basic standards of neatness and cleanliness, and use public transportatio n were also "good," while his ability to adhere to travel in unfamiliar places was only "fair" "difficulty spontaneously adapting to change." because I d. he has Dr. Edwards also noted that "motor incoordinatio n and speed of processing are also areas of weakness." Tr. 644. Finally, on September 30, 2008, Dr. Edwards conducted another He noted that plaintiff evaluation and submitted another opinion. generally fell in the average range of intelligence and the working memory index, but found that plaintiff had a relative weakness in processing speed. tasks, Tr. 648. Thus, Dr. Edwards noted that "[t)imed especially those that require visual scanning and copying will slow [plaintiff's) performance. " with plaintiff's mother, Dr. Id. Edwards Based on an interview found that plaintiff's Adaptive Behavior Composite scores were "typical of individuals 10 - OPINION AND ORDER functioning in the range of mild mental retardation," and noted that plaintiff functions · teenager." Tr. Dr. Edwards concluded that plaintiff supervision and require "will Thus, 650. level more typical of an early "at a support in order to continue to Id. develop age appropriate independent living skills." The ALJ discredited Dr. Edwards' opinion because it was vague Specifically , the ALJ and inconsistent with the record as a whole. noted that Dr. Edwards' opinion that plaintiff was significantly limited in his activities of daily living was inconsistent with other evidence of plaintiff's activities, and relied on an interview with plaintiff's mother that contradicted her Third Party Function Report. Tr. 26. Because much of Dr. Edwards' opinion was contradicted by that of Dr. Duvall, the ALJ was required to cite specific and legitimate reasons for rejecting Dr. Edwards' opinion. Lester, 81 F.3d at 830-31. I conclude that the ALJ did so. The ALJ reasonably cited inconsistency with plaintiff's level of daily activity as a reason to discredit Dr. Edwards' opinion. As the ALJ noted, plaintiff earned an approximately 3.0 grade point average in college and worked part-time during that period. 57-58, 82-84, 87. Dr. Edwards' independent The ALJ reasonably found this inconsistent with finding living that skills plaintiff such as has time "glaring and money deficits in management, hygiene and self-care, [and] social and communicatio n skills." 650. Tr. Tr. In addition, plaintiff admitted in his Adult Function Report 11 - OPINION AND ORDER that he has no problem with personal care, including hygiene and his lunch every day, Moreover, Plaintiff represented that he prepares Tr. 225. feeding himself. Tr. and makes easily prepared meals. laundry, plaintiff reported that he does his 226. changes sheets, cleans the house, vacuums, and performs household repairs. Id. Plaintiff also represented that he is able to pay bills, count and use a checkbook and money change, handle a savings account, orders. Tr. The ALJ reasonably discredited Dr. 227. Edwards' opinion because his conclusions were inconsistent with plaintiff's admitted activities of daily living. The ALJ also properly discredited Dr. Edwards' opinion because the most portion limiting it of interview with plaintiff's mother. was Indeed, an on based unreliable the portion of Dr. Edwards' exam that assessed plaintiff's "Adaptive Functioning" was based on an interview with plaintiff's mother. Tr. 648. This portion of the evaluation is the only portion in which plaintiff's functional limitations were significant. deficits" by found Dr. Edwards in Tr. 647-50. this section The "glaring based on the interview with plaintiff's mother, however, are in stark contrast to her Third Party Function Report, in which she reported that he has no problems with personal care, prepares breakfast and lunch on a daily basis, performs house and yard work, and can take care of his finances. Edwards' Tr. opinion The ALJ reasonably discredited Dr. 264-66. because 12 - OPINION AND ORDER it was based on an interview with plaintiff's mother that was inconsistent with Ms. Pixley's previous statements. Finally, found the ALJ also noted that Dr. that plaintiff had generally "good" unskilled and work capacity to perform perform semiskilled or Indeed, the RFC is largely consistent with Tr. 26. skilled work. to capacity "fair" 2007 opinion Edwards' these findings, as it limits plaintiff to "unskilled to low semiTr. 22. skilled work." Dr. Edwards' thoroughly Thus, the extent to which the ALJ rejected opinion was limited to The discussed. that he most the portion ALJ properly Dr. weighed Edwards' opinions. B. Dr. Ude's Opinion Plaintiff argues that the ALJ erred in rejecting Dr. Ude's opinion, There is only one page entitled "Psychologic al plaintiff has sensitivities , a Review," number slowed of processing in the record from Dr. in which social speed, Dr. Ude opined that limitations, poor Ude, sensory visual-spati al organization abilities, and is slow to adapt to change. Tr. 667. The ALJ rejected Dr. Ude's opinion because only one of four pages were present in the record, making the context in which she made her assessment unclear, and because her opinion was inconsistent with plaintiff's daily activities and the record as a whole. 27. 13 - OPINION AND ORDER Tr. Plaintiff argues, howeve~, that the ALJ erred in discrediting Dr. Ude's opinion because the partial opinion triggered the ALJ's duty to develop the record. I agree. In social security cases, the ALJ "has an independent 'duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'n Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen v. 1996)) . Chater, 80 F.3d 1273, 1288 (9th Cir. The duty to develop the record is triggered where the record contains ambiguous evidence or the ALJ finds the record is inadequate to allow for a proper evaluation of the evidence. Here, as the ALJ's rejection suggests, the record was of Dr. inadequate Ude's to opinion properly Id. strongly evaluate her opinion because "it is not clear in what context she made her Tr. assessment." 27. The ALJ erred in not attempting to re- contact Dr. Ude to obtain a complete opinion. F.3d at 1150 See Tonapetyan, 242 (explaining that the ALJ can discharge the duty by making inquiries of, or subpoenaing the opining physician). III. Consideration of Other Testimony A. Ms. Luckett Plaintiff next argues that the ALJ erroneously rejected the testimony of Donna Ray rehabilitation counselor. symptoms or how an Luckett, plaintiff's Lay testimony regarding a claimant's impairment affects her ability to work competent evidence that an ALJ must take into account. 14 - OPINION AND ORDER vocational is Molina v. Astrue, 674 F. 3d 1104, (9th Cir. 1114 lay To discount 2012}. witness testimony, the ALJ must give reasons that are germane to Id. the witness. At hearing, the plaintiff in a Ms. testified Luckett she that placed but job doing light production packaging, that plaintiff was unable to perform the physical demands of the job because he is unable to multi task in a fast-paced work environment. Tr. 57. Ms. Luckett opined that have not plaintiff does the Tr. 58. physical or emotional stability to handle full-time work. Ms. Luckett further testified that plaintiff is limited in his fine manipulation motor skills. Tr. 63. The ALJ rejected Ms. Luckett's testimony because she is not Tr. qualified to assess plaintiff's medical impairments. conclude this is a germane reason to reject Ms. 28. I Luckett's Indeed, much of Ms. Luckett's testimony was predicated testimony. on an understanding of plaintiff's medical diagnoses. For example, Ms. Luckett testified that plaintiff "does have Asperger's and all of the personality issues and cognitive communication issues that go to play with someone who's a very high functioning Asperger's individual." Tr. 57. Additionally, Ms. Luckett testified that plaintiff's "fine manipulation motor skills are fairly limited. He also has muscular dystrophy," which the ALJ rejected because there was no "evidence in this record that supports manipulative limits." Tr. 63. The ALJ reasonably discredited Ms. 15 - OPINION AND ORDER Luckett's opinion because, as a lay witness, medical judgments. I her testimony was based in part on conclude the ALJ cited germane reasons to reject Ms. Luckett's testimony. B. Ms. Katz's Opinion Anita Katz, a psychiatric mental health nurse practitioner who was one of plaintiff's treating mental health professionals, also submitted an opinion regarding plaintiff's mental limitations. 552-55. As a nurse practitioner, Ms. Tr. Katz is an "other source" whose opinion may only be rejected if the ALJ cites reasons germane to the witness. See Molina, 674 F.3d at 1111. briefly summarized some of Ns. Although the ALJ Katz's chart notes, he did not mention- or provide any reason for rejecting- Ms. Katz's opinion. This was clear error. Because I cannot conclude what effect Ms. Katz's opinion would have on the ultimate disability determination, I cannot find that the ALJ's failure to address f'ls. Katz's opinion was harmless error. IV. Remand After finding the ALJ erred, remand for benefits. further proceedings Harman v. Apfel, this court has discretion to or for immediate 211 F.3d 1172, 1178 payment of (9th Cir. 2000). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate where there is no useful purpose to be served by further proceedings or where the record is fully developed. 16 - OPINION AND ORDER The Ninth Circuit has established a three-part test "for determining when evidence should be credited and an immediate award of benefits directed." Id. The court should grant an immediate award of benefits when: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such 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. Id. (quoting Smolen, 80 F. 3d at 1292). Where it is not clear that the ALJ would be required to award benefits were the improperly rejected evidence credited, credit the evidence. the court has discretion whether to Connett v. Barnhart, 340 F.3d 871, 876 (9th Cir. 2003). On this resolved. Ude, record, there remain outstanding issues to be The ALJ must attempt to obtain the full report from Dr. or seek clarification on the nature of the current report. Additionally, the ALJ must consider Ms. Katz's opinion. If the ALJ accepts either of the opinions, he must determine what effect the opinions have on the RFC, necessary. seeking additional VE testimony, if If the ALJ chooses to reject the opinions of Dr. Ude or Ms. Katz, he must provide legally sufficient reasons for doing so. Ill Ill Ill 17 - OPINION AND ORDER CONCLUSION Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. DATED this ~? day of August, 2013. Malcolm F. Marsh United States District Judge 18 - OPINION AND ORDER

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.