The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RICHARD LEE H.,1 6:18-cv-02144-BR
Plaintiff, OPINION AND ORDER
v.
Commissioner, Social
Security Administration,
Defendant.
KEVIN KERR
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
(503) 255-9092
Attorneys 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) 727-1021
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.
1 - OPINION AND ORDER
MICHAEL W. PILE
Acting Regional Chief Counsel
MICHAEL S. HOWARD
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-2539
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Richard Lee H. seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which he denied Plaintiff's application
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act.
For the reasons that follow, the Court REVERSES the
Commissioner's decision and REMANDS this matter pursuant to
sentence four of 42 U.S.C. § 405(g) for further proceedings.
ADMINISTRATIVE HISTORY
Plaintiff filed an application for DIB on March 31, 2015,
alleging a disability onset date of May 13, 2012. Tr. 220.1 The
application was denied initially and on reconsideration. An
Administrative Law Judge (ALJ) held a hearing on September 14,
2017. Tr. 35-74. At the hearing Plaintiff amended his
1 Citations to the official transcript of record filed by
the Commissioner on May 29, 2019, are referred to as "Tr."
2 - OPINION AND ORDER
disability onset date to January 24, 2015. Tr. 39. Plaintiff
was represented at the hearing. Plaintiff and a vocational
expert (VE) testified.
The ALJ issued a decision on December 1, 2017, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits. Tr. 13-34. Pursuant to 20 C.F.R. § 404.984(d),
that decision became the final decision of the Commissioner on
October 11, 2018, when the Appeals Council denied Plaintiff's
request for review. Tr. 1-6. See Sims v. Apfel, 530 U.S. 103,
106-07 (2000).
BACKGROUND
Plaintiff was born on June 8, 1971, and was 46 years old at
the time of the hearing. Tr. 220. Plaintiff completed high
school. Tr. 41. Plaintiff has past relevant work experience as
an auto-body helper and transportation equipment/autobody
painter. Tr. 28.
Plaintiff alleges disability due to a “pinched nerve at C6-
C7,” chronic nerve damage, “right arm problems,” and “breathing
problems.” Tr. 113.
Except when 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. 19-20, 26-28.
3 - OPINION AND ORDER
STANDARDS
The initial burden of proof rests on the claimant to
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, 459–60 (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. Comm’r 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 determining credibility,
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
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
2007). See also 20 C.F.R. § 404.1520. Each step is potentially
dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser v.
5 - OPINION AND ORDER
Comm’r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments. 20 C.F.R. §§ 404.1509,
404.1520(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.
§ 404.1520(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, he 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.
§ 404.1520(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. Bowen, 885
6 - OPINION AND ORDER
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. § 404.1520(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists in
the national economy. 20 C.F.R. § 404.1520(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 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. § 404.1520(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since his January 24, 2015, alleged
onset date. Tr. 19.
At Step Two the ALJ found Plaintiff has the severe
impairments of morbid obesity, “multilevel cervical degenerative
7 - OPINION AND ORDER
disc disease with uncovertebral joint hypertrophy at C6-7,” a
“history of right shoulder strain,” chronic pain syndrome, and
“mild multilevel lumbar degenerative disc disease.” Tr. 19. The
ALJ found Plaintiff’s mental impairments of “a history of
depression - opioid dependence, and cannabis dependence” are
nonsevere. Tr. 21. The ALJ found Plaintiff’s physical issues of
“migraine headaches, hypertension, hyperlipodemia, opioid
dependence, cannabis dependence, and history of depression” are
not impairments. Tr. 20.
At Step Three the ALJ concluded Plaintiff's medically
determinable impairments during the relevant period did not meet
or medically equal one of the listed impairments in 20 C.F.R.
part 404, subpart P, appendix 1. Tr. 22. The ALJ found
Plaintiff has the RFC to perform light work with the following
limitations: Plaintiff can sit for six hours in an eight-hour
workday; can stand and/or walk for six hours in an eight-hour
workday; can frequently lift and/or carry 10 pounds; can
occasionally balance, stoop, kneel, crouch, crawl, reach overhead
with his right upper extremity, lift and/or carry 20 pounds, and
climb ramps, stairs, ropes, or scaffolds; and can never perform
work that has “exposure to workplace hazards, such as working
around hazardous machinery or unprotected heights.” Tr. 23-24.
At Step Four the ALJ found Plaintiff cannot perform his past
relevant work. Tr. 28.
8 - OPINION AND ORDER
At Step Five the ALJ found Plaintiff can perform other work
that exists in the national economy. Accordingly, the ALJ
concluded Plaintiff is not disabled. Tr. 29.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
partially rejected the opinion of treating physician Travis
Buzzard, M.D., and (2) failed to include all of Plaintiff’s
limitations in his evaluation of Plaintiff’s ability to perform
work.
I. The ALJ did not err when he partially rejected Dr. Buzzard’s
opinion.
Plaintiff asserts the ALJ erred when he partially rejected
the opinion of Dr. Buzzard, Plaintiff’s treating physician.
An ALJ may reject a treating physician's opinion when it is
inconsistent with the opinions of other treating or examining
physicians if the ALJ makes "findings setting forth specific,
legitimate reasons for doing so that are based on substantial
evidence in the record." Thomas v. Barnhart, 278 F.3d 947, 957
(9th Cir. 2002). When the medical opinion of a treating
physician is uncontroverted, however, the ALJ must give "clear
and convincing reasons" for rejecting it. Thomas, 278 F.3d at
957. See also Lester v. Chater, 81 F.3d 821, 830-32 (9th Cir.
1996).
9 - OPINION AND ORDER
On August 17, 2017, Dr. Buzzard completed a disability form
in which he opined Plaintiff can lift and/or carry less than 10
pounds frequently; lift and/or carry 10 pounds occasionally; can
stand and/or walk three hours in an eight-hour workday; can sit
six hours in an eight-hour workday; can occasionally balance,
stoop, kneel, crouch, reach overhead, and reach at shoulder
height; and can never crawl or climb. Tr. 1114-15. Dr. Buzzard
stated Plaintiff needed a cane to ambulate “all of the time.”
Tr. 1115. Dr. Buzzard estimated “the percentage of a standard
workweek . . . that [Plaintiff’s] attention and concentration
would be impaired to such a degree that he could not be expected
to perform even simple work tasks” was “negligible.” Tr. 1116.
Nevertheless, Dr. Buzzard stated he would “expect [Plaintiff] to
miss 16 hours . . . or more per month from even a simple, routine
job because of his impairments, symptoms, or medications and
their side effects.” Tr. 1116. Specifically, Dr. Buzzard noted
Plaintiff’s “significant pain flair[s] would require time off.”
Tr. 1116.
The ALJ noted the various limitations set out by Dr. Buzzard
including his opinion that Plaintiff’s “subjective pain flares
would result in absences for at least two or more workdays per
month.” Tr. 27. The ALJ found Dr. Buzzard’s
opinions regarding [Plaintiff’s] sedentary
exertional level, standing and walking
limitations, sitting at one time limitations,
frequent fine or gross manipulations, and reaching
10 - OPINION AND ORDER
at shoulder height are not consistent with or
supported by the longitudinal evidence of record,
including Dr. Buzzard's own examination notes,
and are given little weight. . . . However,
Dr. Buzzard's remaining opinions are consistent
with and supported by the longitudinal record,
including the evidence received at the hearing
level.
Tr. 27. The ALJ noted Dr. Buzzard saw Plaintiff “on only three
to six month[] intervals” from January 2015 through August 2017
for a total of only seven visits before Dr. Buzzard offered his
opinion. See 20 C.F.R. § 404.1527(c)(2)(i)(“Generally, the
longer a treating source has treated you and the more times you
have been seen by a treating source, the more weight we will give
to the source’s medical opinion.”).
The ALJ also noted examining physician Derek Leinenbach
stated in October 2015 that Plaintiff was able to walk and to get
on and off the examination table without assistance. Tr. 961.
Dr. Leinenbach noted Plaintiff “takes slow and deliberate steps,
which seem exaggerated and out of proportion to his exam. Tandem
gait is steady. [Plaintiff] can walk on heels and toes . . .
[and] squat without assistance.” Tr. 961. Ultimately,
Dr. Leinenbach concluded Plaintiff can stand, walk, and sit
“without limitation”; can lift/carry 20 pounds occasionally and
10 pounds frequently”; cannot crawl or climb ladders or
scaffolding; and can reach occasionally with his right upper
extremity. Tr. 962.
In addition, an August 2016 MRI of Plaintiff’s cervical
11 - OPINION AND ORDER
spine showed there were not any abnormalities at C2-C3 or C7-T1,
a “minimal generalized disc bulge” without root compromise at C4-
C5, a “generalized disc bulge” with “moderate foraminal narrowing
without definite nerve root compromise” at C5-C6, and a “mild
generalized disc bulge” that “causes severe bilateral foraminal
narrowing and probable nerve root compromise” at C6-C7. An
August 2016 x-ray of Plaintiff’s lumbar spine showed degenerative
disc disease “is present and is worse at the level of L2-L3.”
Tr. 1026. A December 2016 x-ray of Plaintiff’s lumbar spine
reflected “mild degenerative disc disease at L2-3, L3-4, and L4-5
with anterior osteophytes and minimal decreased vertical height
of the intervertebral disc.” Tr. 1027.
On this record the Court concludes the ALJ did not err when
he partially rejected Dr. Buzzard’s opinion because the ALJ
provided specific and legitimate reasons for doing so based on
substantial evidence in the record.
II. The ALJ erred when he failed to include all of Plaintiff’s
limitations in his evaluation of Plaintiff’s ability to
perform work.
Plaintiff asserts the ALE erred when he failed to include
all of Plaintiff’s limitations in his evaluation of Plaintiff’s
ability to perform work. Specifically, Plaintiff asserts the ALJ
erred when he failed to consider Dr. Buzzard’s opinion that
Plaintiff would miss more than two days of work per month due to
his impairments.
12 - OPINION AND ORDER
As noted, Dr. Buzzard concluded, among other things, that he
would “expect [Plaintiff] to miss 16 hours . . . or more per
month from even a simple, routine job because of his impairments,
symptoms, or medications and their side effects.” Tr. 1116.
Although the ALJ specifically noted the various limitations
set out by Dr. Buzzard, including his opinion that Plaintiff’s
“subjective pain flares would result in absences for at least two
or more workdays per month,” the ALJ also found Dr. Buzzard’s
opinions regarding [Plaintiff’s] sedentary
exertional level, standing and walking
limitations, sitting at one time limitations,
frequent fine or gross manipulations, and reaching
at shoulder height are not consistent with or
supported by the longitudinal evidence of record,
including Dr. Buzzard's own examination notes,
and are given little weight. . . . However,
Dr. Buzzard's remaining opinions are consistent
with and supported by the longitudinal record,
including the evidence received at the hearing
level. . . . [and] are given great weight.”
Tr. 27 (emphasis added). One of Dr. Buzzard’s “remaining
opinions” was that Defendant would be absent from work two or
more days per month. At the hearing the VE testified an
individual who missed 16 hours of work per month could not
maintain employment. Tr. 73.
As noted, Plaintiff asserts the ALJ erred when he credited
Dr. Buzzard’s opinion regarding Plaintiff missing work and,
nevertheless, concluded Plaintiff could perform work that exists
in the national economy. Defendant, in turn, asserts the Court
may infer the ALJ rejected Dr. Buzzard’s opinion as to Plaintiff
13 - OPINION AND ORDER
missing two work days per month. The ALJ, however, specifically
referred to the part of Dr. Buzzard’s opinion in which he stated
Plaintiff would miss two or more work days per month; the ALJ
specifically pointed out that he adopted the “remaining”
portions of Dr. Buzzard’s opinion, which included the missing
work days; and the ALJ specifically enumerated those portions of
Dr. Buzzard’s opinion that he rejected. Thus, the Court cannot
reconcile the ALJ’s adoption of the “missing work-day” part of
Dr. Buzzard’s opinion with the VE’s testimony and the ALJ’s
ultimate conclusion that Plaintiff can perform other work in the
national economy.
Accordingly, the Court concludes the ALJ erred to the extent
that he adopted Dr. Buzzard’s opinion that Plaintiff would miss
two or more work days per month and still concluded Plaintiff
could perform other work that exists in the national economy.
REMAND
The Court must determine whether to remand this matter for
further proceedings or to remand for 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. Id. at 1179. The court may
"direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
14 - OPINION AND ORDER
serve no useful purpose." Smolen, 80 F.3d at 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.
On this record the Court concludes further proceedings are
necessary because it is unclear from this record whether the ALJ
intended to adopt Dr. Buzzard’s opinion regarding Plaintiff
missing two or more work days per month or whether the ALJ
concluded Plaintiff could perform work that exists in the
national economy in spite of missing two or more work days per
month. Thus, the Court concludes a remand for further
proceedings consistent with this Opinion and Order is required to
permit the ALJ to resolve the ambiguity in his decision.
CONCLUSION
15 - OPINION AND ORDER
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
28 U.S.C. § 405(g) for further proceedings consistent with this
Opinion and Order.
IT IS SO ORDERED.
DATED this 9th day of December, 2019.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
16 - OPINION AND ORDER