The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ROBERT F.,1 3:18-cv-01439-BR
Plaintiff, OPINION AND ORDER
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
BRUCE W. BREWER
Law Offices of Bruce W. Brewer P.C.
P.O. Box 421
West Linn, OR 97068
(503) 621-6633
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
1 In the interest of privacy this Court uses only the first
name and the initial of the last name of the nongovernmental
party in this case. Where applicable, this Court uses the same
designation for the nongovernmental party's immediate family
member.
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MICHAEL W. PILE
Acting Regional Chief Counsel
LEISA A. WOLF
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-3621
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Robert F. seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied
Plaintiff's applications for Supplemental Security Income (SSI)
under Title XVI of the Social Security Act. This Court has
jurisdiction to review the Commissioner's final decision
pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the
decision of the Commissioner and REMANDS this matter for further
administrative proceedings.
ADMINISTRATIVE HISTORY
I. Prior Administrative Proceedings
On March 10, 2010, Plaintiff protectively filed his
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application for SSI benefits. Tr. 144.2 Plaintiff alleged a
disability onset date of August 5, 2007. Tr. 144, 242.
Plaintiff=s application was denied initially and on
reconsideration. An Administrative Law Judge (ALJ) held a
hearing on March 28, 2012. Tr. 48-82. Plaintiff and a
vocational expert (VE) testified at the hearing. Plaintiff was
represented by an attorney at the hearing.
On April 9, 2012, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits. Tr. 123-32. Plaintiff requested review by the
Appeals Council. The Appeals Council granted Plaintiff=s request
and on June 7, 2013, remanded the matter to the ALJ for a new
hearing. Tr. 137-40.
On January 8, 2014, a second hearing was held. Tr. 26-47.
Plaintiff testified at the hearing and was again represented by
an attorney.
On February 3, 2014, the ALJ issued an opinion and again
found Plaintiff is not disabled and, therefore, is not entitled
to benefits. Tr. 9-20. Plaintiff again requested review by the
2 Citations to the official Transcript of Record (#10)
filed by the Commissioner on December 20, 2018, are referred to
as "Tr."
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Appeals Council. On June 10, 2015, the Appeals Council denied
Plaintiff's request to review the ALJ's decision, and the ALJ=s
decision became the final decision of the Commissioner. Tr. 1-
3. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On August 13, 2015, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner=s decision. United
States District Court, Case No. 3:15-cv-01532.
On December 2, 2016, this Court reversed the decision of
the Commissioner and remanded the matter for further
administrative proceedings. Tr. 816-30.
On January 24, 2017, pursuant to this Court's Order, the
Appeals Council remanded the case to the ALJ for further review.
Tr. 831-33.
II. Current Administrative Proceedings
Following remand by the Appeals Council, an ALJ held a
hearing on June 28, 2017. Tr. 738-62. Plaintiff and a VE
testified at the hearing. Plaintiff was represented by a non-
attorney representative at the hearing.
On October 5, 2017, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits. Tr. 713-24. Plaintiff requested review by the
Appeals Council. On May 29, 2018, the Appeals Council denied
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Plaintiff's request to review the ALJ's decision, and the ALJ=s
decision became the final decision of the Commissioner.
Tr. 703-05. See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
On August 1, 2018, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner=s decision.
BACKGROUND
Plaintiff was born on July 15, 1955. Tr. 242. Plaintiff
was 52 years old on his alleged disability onset date.
Plaintiff has completed the 11th grade. Tr. 271. Plaintiff
has past relevant work experience as a janitor, maintenance man,
agricultural laborer, and freelance painter. Tr. 272, 280-81,
610.
Plaintiff alleges disability due to depression, anxiety,
social phobia, neurological stroke, and Hepatitis C. Tr. 270.
Except as noted, Plaintiff does not challenge the ALJ's
summary of the medical evidence. After carefully reviewing the
medical records, this Court adopts the ALJ=s summary of the
medical evidence. See Tr. 719-23.
STANDARDS
The initial burden of proof rests on the claimant to
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establish disability. Molina v. Astrue, 674 F.3d 1104, 1110
(9th Cir. 2012). To meet this burden, a claimant must
demonstrate his inability "to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected to
last for a continuous period of not less than 12 months." 42
U.S.C. § 423(d)(1)(A). The ALJ must develop the record when
there is ambiguous evidence or when the record is inadequate to
allow for proper evaluation of the evidence. McLeod v. Astrue,
640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari,
276 F.3d 453, 459B60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin.,
682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is
"relevant evidence that a reasonable mind might accept as
adequate to support a conclusion." Molina, 674 F.3d. at 1110-11
(quoting Valentine v. Commr Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)). "It is more than a mere scintilla [of
evidence] but less than a preponderance." Id. (citing
Valentine, 574 F.3d at 690).
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The ALJ is responsible for evaluating a claimant's
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir. 2009). The court must weigh all of the evidence
whether it supports or detracts from the Commissioner's
decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th
Cir. 2008). Even when the evidence is susceptible to more than
one rational interpretation, the court must uphold the
Commissioner=s findings if they are supported by inferences
reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d
1047, 1051 (9th Cir. 2012). The court may not substitute its
judgment for that of the Commissioner. Widmark v. Barnhart, 454
F.3d 1063, 1070 (9th Cir. 2006).
DISABILITY ANALYSIS
I. The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the
Commissioner determines the claimant is engaged in substantial
gainful activity (SGA). 20 C.F.R. § 416.920(a)(4)(i). See also
Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir.
2011).
At Step Two the claimant is not disabled if the
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Commissioner determines the claimant does not have any medically
severe impairment or combination of impairments. 20 C.F.R.
§416.920(a)(4)(ii). See also Keyser, 648 F.3d at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant=s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. 20 C.F.R.
§ 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724. The
criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant=s residual functional capacity (RFC). The
claimant=s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations. 20 C.F.R.
§ 416.920(e). See also Social Security Ruling (SSR) 96-8p. "A
'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule." SSR 96-8p, at *1. In other
words, the Social Security Act does not require complete
incapacity to be disabled. Taylor v. Comm'r of Soc. Sec.
Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v.
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Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past. 20 C.F.R. § 416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy. 20 C.F.R. § 416.920(a)(4)(v). See also
Keyser, 648 F.3d at 724-25. Here the burden shifts to the
Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform. Lockwood v.
Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony
of a VE or by reference to the Medical-Vocational Guidelines (or
the grids) set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2. If the Commissioner meets this burden,
the claimant is not disabled. 20 C.F.R. § 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since March 10, 2010, Plaintiff=s
alleged disability onset date. Tr. 715.
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At Step Two the ALJ found Plaintiff has the severe
impairments of "hepatitis C, alcohol abuse, a social anxiety
disorder, a depressive disorder, and status post cerebral
trauma." Tr. 715.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1. Tr. 716. The ALJ found Plaintiff has the RFC to
perform light work with the following limitations: can perform
only simple routine work with superficial contact with coworkers
and with no teamwork or collaboration and cannot have any public
contact. Tr. 717.
At Step Four the ALJ concluded Plaintiff is able to perform
his past relevant work as a janitor. Tr. 724.
Accordingly, the ALJ found Plaintiff is not disabled.
Tr. 724.
DISCUSSION
Plaintiff contends the ALJ did not comply with this Court's
Order of remand and failed to properly address the medical
opinions of Daniel Scharf, Ph.D., and Karla Rae Causeya, Psy.
D., examining psychologists. Plaintiff also contends the ALJ
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erred at Step Four when he found Plaintiff could perform his
past relevant work as a janitor.
I. The ALJ failed to comply with the Court's Order of remand
and erred regarding his analysis of the opinions of
Drs. Scharf and Causeya.
Plaintiff contends the ALJ did not comply with the Court's
Order of remand with regard to the opinions of Drs. Scharf and
Causeya regarding Plaintiff's limitations.
A. Standards
"In disability benefits cases . . . physicians may
render medical, clinical opinions, or they may render opinions
on the ultimate issue of disability C the claimant's ability to
perform work." Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir.
2014).
"If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, an ALJ may only reject
it by providing specific and legitimate reasons that are
supported by substantial evidence." Id. Even when
contradicted, a treating or examining physician's opinion is
still owed deference and will often be "entitled to the greatest
weight . . . even if it does not meet the test for controlling
weight." Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007). An
ALJ can satisfy the "substantial evidence" requirement by
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"setting out a detailed and thorough summary of the facts and
conflicting clinical evidence, stating his interpretation
thereof, and making findings." Reddick, 157 F.3d 715, 725 (9th
Cir. 1998). "The ALJ must do more than state conclusions. He
must set forth his own interpretations and explain why they,
rather than the doctors' are correct." Id. (citation omitted).
B. Analysis
1. Dr. Scharf
Dr. Scharf examined Plaintiff on June 3, 2010.
Tr. 455-58. Dr Scharf specifically noted Plaintiff "is able to
sustain concentration and attention although would have
difficulties with persistence." Tr. 458.
On December 2, 2016, this Court found the ALJ erred in
his February 3, 2014, opinion when he failed to include a
limitation regarding persistence in his assessment of
Plaintiff's RFC. Tr. 821-20. The Court also noted the ALJ's
restriction to SVP 1-4 level jobs "does not, without more,
incorporate . . . a limitation of difficulties with
persistence." Tr. 820 (quotation and citation omitted). In
addition, the Court noted the ALJ did not include a persistence
limitation in his hypothetical to the VE. The Court found these
errors were not harmless and remanded the case for further
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proceedings. Tr. 821-22.
On remand the ALJ referenced Dr. Scharf's opinion and
noted Dr. Scharf's assessment of Plaintiff's "difficulty with
persistence." The ALJ, however, did not include any persistence
limitation in his evaluation of Plaintiff's RFC. The ALJ also
failed to give specific and legitimate reasons for rejecting
Dr. Scharf's opinion regarding this limitation and did not
include such a limitation in his hypothetical posed to the VE.
Tr. 717, 720, 756-59.
On this record the Court concludes the ALJ failed to
comply with the Court's Order regarding Dr. Scharf's opinion,
failed to include in Plaintiff's RFC any limitation regarding
persistence, failed to provide specific and legitimate reasons
supported by substantial evidence in the record for rejecting
Dr. Scharf's opinion, and failed to include the persistence
limitation in his hypothetical to the VE. Accordingly, the
Court remands this matter for further administrative proceedings
regarding this issue.
2. Dr. Causeya
Dr. Causeya examined Plaintiff on October 22, 2013.
Tr. 609-17. Dr. Causeya found, among other things, Plaintiff
would have difficulty dealing with the public or accepting
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criticism from a supervisor. Tr. 616.
On December 2, 2016, this Court found the ALJ erred in
his February 3, 2014, opinion when he included in his assessment
of Plaintiff's RFC a limitation merely on public contact and
teamwork but failed to include a limitation regarding
interactions with supervisors. Tr. 826. The Court, however,
noted limitations on contact with coworkers does not include a
limit on supervisors and "does not address the separate dynamic
created by the supervisory relationship." Tr. 825.
On remand the ALJ again reviewed Dr. Causey's opinion
but the ALJ gave it "little weight." Tr. 722. The ALJ again
did not include in his assessment of Plaintiff's RFC any
limitation on interaction with supervisors and noted such a
restriction was "unwarranted based on [Plaintiff's] ability to
have engaged successfully in multiple volunteer activities and
therapy modalities." Tr. 722. The ALJ, however, did not
explain his reasoning further.
The Commissioner contends Dr. Causeya did not provide
any explanation of how she arrived at her "conclusory opinion,"
and, therefore, according to the Commissioner, the ALJ properly
disregarded Dr. Causeya's opinion. The Court, however, noted in
its December 2, 2016, Opinion that Dr. Causeya's opinion was
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based on her interview of Plaintiff and tests she conducted,
including a mental-status examination of Plaintiff. Tr. 609-17.
In any event, on remand the ALJ failed to give specific and
legitimate reasons supported by substantial evidence in the
record to support his conclusion that a restriction on
Plaintiff's interactions with supervisors was unwarranted.
On this record the Court concludes the ALJ erred when
he rejected Dr. Causeya's opinion. Accordingly, the Court
remands this matter for further administrative proceedings
regarding this issue.
II. The ALJ failed to include all of Plaintiff's limitations in
his hypothetical to the VE.
Plaintiff contends the ALJ erred when he found Plaintiff
could perform his past relevant work as a "janitor." Plaintiff
contends his occupation as a janitor does not exist in the
Dictionary of Occupational Titles (DOT).
A. Standards
As noted, at Step Four the claimant is not disabled if
the Commissioner determines the claimant retains the RFC to
perform work he has done in the past. 20 C.F.R.
§ 416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724. The
burden falls on the claimant to establish he cannot perform his
past relevant work. Pinto v. Massanari, 249 F.3d 840, 844 (9th
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Cir. 2001).
B. Analysis
At the hearing the VE testified Plaintiff could
perform his past relevant work as a janitor, which the VE
classified as DOT 323.687-04. Tr. 755. Based on this
testimony, the ALJ found at Step Four that Plaintiff could
perform his past relevant work as a janitor and that this work
does not require the performance of work-related activities
precluded by Plaintiff's RFC. Tr. 724.
As noted, Plaintiff contends the DOT classification
identified by the VE is for a "cleaner, housekeeper" and that
Plaintiff's past relevant work as a janitor does not exist in
the DOT.
The DOT provides generic occupational title
classifications that may be too broad to accurately describe a
claimant's past relevant work. Pinto v. Massanari, 249 F.3d
840, 845 (9th Cir. 2001). The ALJ must resolve any apparent
conflict between the DOT and VE testimony by "determining if the
explanation given by the VE . . . is reasonable and provides a
basis for relying on the VE . . . rather than the DOT
information." Tommasetti v. Astrue, 533 F.3d 1035, 1042 (9th
Cir. 2008). Accordingly, an ALJ may rely on VE testimony to
16 - OPINION AND ORDER
address an incongruity between a claimant's past relevant work
as performed and the definitions described by the DOT.
Here the VE testified at the hearing that the DOT
classification for "housekeeper" "was the closest to the
description that we have" for Plaintiff's past relevant work of
janitor as performed. Tr. 761.
Accordingly, the Court concludes the ALJ did not
err because he properly relied on the VE's testimony to
determine that Plaintiff could perform his past relevant work
as janitor as it was actually performed regardless of the DOT
classification.
REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for the calculation of
benefits.
The decision whether to remand for further proceedings or
for immediate payment of benefits generally turns on the likely
utility of further proceedings. Carmickle, 533 F.3d at 1179.
The court may "direct an award of benefits where the record has
been fully developed and where further administrative
proceedings would serve no useful purpose." Smolen, 80 F.3d at
17 - OPINION AND ORDER
1292.
The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed." Harman v. Apfel, 211 F.3d 1172,
1178 (9th Cir. 2000). 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. The second and third prongs of the test often merge into a
single question: Whether the ALJ would have to award benefits
if the case were remanded for further proceedings. Id. at 1178
n.2.
Here the ALJ erred when he failed to include in his
assessment of Plaintiff's RFC and in his hypothetical to the VE
the limitations noted by Drs. Scharf and Causeya. If such
limitations were included in the ALJ's hypothetical to the VE,
it could impact the VE's testimony regarding Plaintiff's ability
to perform his past relevant.
Accordingly, on this record the Court remands this matter
for further administrative proceedings to permit the ALJ to
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include the limitations found by Drs. Scharf and Causeya in his
assessment of Plaintiff's RFC and in his hypothetical to the VE
in order to determine at Step Four whether Plaintiff could
perform his past relevant work as it was actually performed.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four
of 42 U.S.C. § 405(g) for further administrative proceedings.
IT IS SO ORDERED.
DATED this 6th day of August, 2019.
/s/ Anna J. Brown
______________________________________
ANNA J. BROWN
United States Senior District Judge
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