The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DANA W.,1 3:19-cv-01178-BR
Plaintiff, OPINION AND ORDER
v.
Commissioner, Social Security
Administration,
Defendant.
H. PETER EVANS
Evans & Evans, PC
520 S.W. Sixth Ave
Suite 1050
Portland, OR 97204
(503) 200-2723
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) 727-1003
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.
1 - OPINION AND ORDER
MICHAEL W. PILE
Acting Regional Chief Counsel
DIANA SWISHER ANDSAGER
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
(206) 615-3708
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Dana W. seeks judicial review of a final decision
of the Commissioner of the Social Security Administration (SSA)
in which he denied Plaintiff's application 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
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 SSI on April 22, 2016,
and alleged a disability onset date of April 22, 2016. Tr. 149.2
Her application was denied initially and on reconsideration. An
Administrative Law Judge (ALJ) held a hearing on August 24, 2018.
2 Citations to the official transcript of record filed by
the Commissioner on December 17, 2019, are referred to as "Tr."
2 - OPINION AND ORDER
Tr. 30-62. Plaintiff and a vocational expert (VE) testified at
the hearing, and Plaintiff was represented by an attorney.
On September 27, 2018, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits. Tr. 10-29. On May 28, 2109, that decision became
the final decision of the Commissioner 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 7, 1975, and was 41 years old at
the time of the hearing. Tr. 149. Plaintiff has a ninth-grade
education. Tr. 37. The ALJ found Plaintiff has past relevant
work experience as a fast-food worker. Tr. 23.
Plaintiff alleges disability due to gout, blood clots in her
left leg, a “blood disease,” “autiphospholipid [sic] antibody
syndrome,” and “eye cancer choroidal melanoma.” Tr. 65.
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. 51, 17-22.
STANDARDS
The initial burden of proof rests on the claimant to
3 - OPINION AND ORDER
establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th
Cir. 2012). To meet this burden a claimant must demonstrate her
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).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
4 - OPINION AND ORDER
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. § 416.920. 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. § 416.920(b). 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 Commis-
5 - OPINION AND ORDER
sioner determines the claimant does not have any medically severe
impairment or combination of impairments. 20 C.F.R.
§ 416.920(c). 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 a
number of listed impairments that the Commissioner acknowledges
are so severe they 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, 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 her limitations. 20 C.F.R.
§ 416.945(a). 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
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
6 - OPINION AND ORDER
Commissioner determines the claimant retains the RFC to perform
work she 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, he 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. 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. § 416.920(g)(1).
ALJ'S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since her April 22, 2016, alleged
onset date. Tr. 15.
At Step Two the ALJ found Plaintiff has the severe
impairments of
amelanotic choroidal lesion of the left eye;
malignant neoplasm of the left eye, status post
radiation and surgical intervention; hepatitis;
fatty liver; alcohol abuse; antiphospholipid
7 - OPINION AND ORDER
antibody syndrome; history of gout; history of
liver disease; history of deep venous thrombosis;
and history of pulmonary embolism.
Tr. 15. The ALJ found Plaintiff’s cellulitis and “status post
hysterectomy” are nonsevere. Tr. 15-16.
At Step Three the ALJ concluded Plaintiff's impairments do
not meet or equal the criteria for any Listed Impairment from 20
C.F.R. part 404, subpart P, appendix 1. The ALJ found Plaintiff
has the RFC to perform light work with the following limitations:
She can perform work that does not require
climbing of ladders, ropes, or scaffolds. She has
limited near and far acuity in the left eye, which
means that she is reduced to monocular vision.
She can perform work that requires no more than
occasional depth perception. She can perform
tasks that requires no exposure to unprotected
heights, dangerous moving machinery, or driving.
Tr. 16.
At Step Four the ALJ found Plaintiff is unable to perform
her past relevant work. Tr. 23.
At Step Five the ALJ found Plaintiff can perform jobs that
exist in significant numbers in the national economy. Tr. 24.
Accordingly, the ALJ found Plaintiff is not disabled.
DISCUSSION
Plaintiff contends the ALJ erred when he (1) partially
rejected the opinion of treating physician Stanford Taylor, M.D.;
(2) partially rejected the opinions of reviewing physicians Peter
Bernardo, M.D., and Neal Berner, M.D.; and (3) found at Step Five
8 - OPINION AND ORDER
that Plaintiff could perform other jobs that exist in the
national economy.
I. The ALJ erred when he partially rejected the opinion of
Dr. Taylor, treating physician.
Plaintiff asserts the ALJ erred when he partially rejected
the opinion of Dr. Taylor, 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 an examining
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).
On August 8, 2018, Dr. Taylor provided a Vision Impairment
Medical Source Statement in which he noted Plaintiff has
choroidal melanoma in her left eye and her prognosis is unknown.
Plaintiff’s “visual field is very constricted in [her] left eye”;
she has “poor vision in [her] left eye, no depth perception[;]
[and she has] . . . trouble with accommodation in the right
eye.” Tr. 941. Dr. Taylor noted Plaintiff could never
perform work that involves “near acuity,” depth perception,
9 - OPINION AND ORDER
or “accommodation.”3 Dr. Taylor stated Plaintiff has difficulty
walking down stairs and is not “capable of avoiding ordinary
hazards in the workplace, such as boxes on the floor, doors ajar,
[and] approaching people and vehicles.” Tr. 942. Dr. Taylor
explained Plaintiff
has poor depth perception which makes it hard to
climb stairs. [She has] very limited vision in
the left eye which makes it hard to avoid ordinary
hazards [and] . . . poor accommodation which makes
it hard to work with small objects.
Tr. 942.
The ALJ gave Dr. Taylor’s opinion “partial weight.” Tr. 23.
Although the ALJ stated Dr. Taylor’s opinion was “consistent with
[Plaintiff’s] medical history of undergoing surgeries, receiving
radiation treatment, and seeing specialists for her left eye,”
the ALJ asserted Dr. Taylor failed “to take into account
[Plaintiff’s] ability to perform work activities [using] her
right eye, which is still in good condition.” Tr. 23. The ALJ
found Plaintiff’s “ability to ambulate well and completely [sic]
her activities of daily living independently” indicates
Plaintiff’s “depth perception is not as limited as reflected in
[Dr. Taylor’s] assessment.” Tr. 23.
Dr. Taylor, however, specifically noted in his assessment of
3 Accommodation is the “[a]djustment of [the] lens of [the]
eye to bring an object into sharp focus” and “is required when
doing near point work at varying distances from the eye.”
Selected Characteristics of Occupations, Revised Dictionary of
Occupational Titles (DOT), Appendix C.
10 - OPINION AND ORDER
Plaintiff’s condition that she also had trouble with
“accommodation in [her] right eye.” Dr. Taylor, therefore,
considered the condition of Plaintiff’s right eye when he
evaluated her ability to perform “work activities.”
In addition, the references in the record on which the ALJ
relies to support his conclusion that Plaintiff ambulates well
occurred in Spring 2016 before Plaintiff underwent numerous eye
surgeries, including a surgery in March 2018 to address retinal
detachment. Moreover, none of those references arose from
examinations that were conducted for the purpose of assessing
Plaintiff’s visual limitations. Tr. 236, 238, 240, 245. Social
Security Regulations provide the Commissioner will not consider
normal test results from visual-field screening tests to be
consistent with other evidence in the record when “the clinical
findings indicate that your visual disorder has progressed to the
point that it is likely to cause visual field loss, or you have a
history of an operative procedure for retinal detachment.” 20
C.F.R. Part 404, Subpart P, Appendix 1, Listing 2.00(A)(6)(f).
As noted, the record reflects Plaintiff had an operation for
retinal detachment, and she has visual-field loss.
Finally, the ALJ relies on an April 2016 note regarding
Plaintiff’s visit to the emergency room (ER) for “lower extremity
pain and swelling” to support his assertion that Plaintiff can
perform activities of daily living without assistance. The ER
11 - OPINION AND ORDER
physician, Emily Weber, M.D., noted Plaintiff did not report any
decline in “ADL function,” mobility, or ambulation “within past 7
days.” Tr. 303. Dr. Weber, however, was not focused on
Plaintiff’s vision problems, and there is not any indication in
the record that Dr. Weber is an eye doctor. In addition, a note
that Plaintiff was not experiencing any decrease in “ADL
functioning,” mobility, or ambulation in the previous seven days
does not provide any insight into the daily activities that
Plaintiff was able to perform at that time nor her ability to
ambulate at that time.
On this record the Court concludes the ALJ erred when he
gave only partial weight to Dr. Taylor’s opinion because he did
not provide legally sufficient reasons supported by substantial
evidence in the record for doing so.
II. The ALJ erred when he partially rejected the opinions of
Drs. Bernardo and Berner, reviewing physicians.
Plaintiff alleges the ALJ erred when he partially rejected
the opinions of Drs. Bernardo and Berner, reviewing physicians.
A nonexamining physician is one who neither examines nor
treats the claimant. Lester, 81 F.3d at 830. "The opinion of a
nonexamining physician cannot by itself constitute substantial
evidence that justifies the rejection of the opinion of either an
examining physician or a treating physician." Id. at 831. When
a nonexamining physician's opinion contradicts an examining
physician's opinion and the ALJ gives greater weight to the
12 - OPINION AND ORDER
nonexamining physician's opinion, the ALJ must articulate his
reasons for doing so. See, e.g., Morgan v. Comm'r of Soc. Sec.
Admin, 169 F.3d 595, 600-01 (9th Cir. 1999). A nonexamining
physician's opinion can constitute substantial evidence if it is
supported by other evidence in the record. Id. at 600.
On August 12, 2016, Dr. Bernardo reviewed Plaintiff’s
medical record and concluded Plaintiff “should not perform job
tasks that require good depth perception or significant fine
visual tasks,” but Plaintiff “is able to avoid ordinary hazards
in the workplace.” Tr. 69. On October 4, 2016, Dr. Berner
reviewed Plaintiff’s medical record and reached the same
conclusion.
The ALJ found the opinions of Drs. Bernardo and Berner were
“consistent with the overall medical evidence of record,
including the claimant's medical history of undergoing surgeries,
receiving radiation treatment, and seeing specialists for her
left eye.” Tr. 22. Nevertheless, the ALJ gave their opinions
“little weight” on the grounds that “their opinions are
nonspecific and use undefined vocational terms, which are not
helpful in assessing the claimant's functioning given her left
eye condition.” Id. Numerous ALJs, however, have used the term
“fine visual” tasks, and district courts in the Ninth Circuit,
including this district, have not found they erred in doing so.
See, e.g., Vega v. Berryhill, No. CV 18- 00928-JEM, 2019 WL
13 - OPINION AND ORDER
1099781, at *4 (C.D. Cal. Mar. 8, 2019)(ALJ did not err at Step
Three when he included a limitation in Plaintiff’s RFC of “no
jobs requiring fine visual detail.”); Barraza v. Berryhill,
No. 2:16-CV-2286 DB, 2018 WL 1256719, at *1 (E.D. Cal. Mar. 12,
2018)(plaintiff “cannot work at jobs that require depth
perception or fine visual acuity.”); Rivera v. Colvin, No. 2:13-
CV-0163-TOR, 2014 WL 4546043, at *3 (E.D. Wash. Sept. 12, 2014)
(plaintiff cannot do “work requiring constant, fine visual
acuity.”); Massengill v. Colvin, No. 6:13-CV-00791-HZ, 2014 WL
3695541, at *7 n.1 (D. Or. July 23, 2014)(“[T]the ALJ properly
accommodated Dr. Plotz's limitation on fine visual acuity.”).
The Court adopts the reasoning of these cases and concludes the
ALJ erred when he found the opinions of Drs. Bernardo and Berner
did not contain specific, defined visual limitations.
Accordingly, on this record the Court concludes the ALJ
erred when he gave little weight to the opinions of Drs. Bernardo
and Berner.
III. The ALJ erred at Step Five when he found Plaintiff could
perform other jobs that exist in the national economy.
Plaintiff asserts the ALJ erred at Step Five when he found
Plaintiff could perform other jobs that exist in the national
economy.
The ALJ found at Step Five that Plaintiff could perform the
jobs of addresser, cutter-and-paster, and document preparer.
Plaintiff, however, points out that courts have held the jobs of
14 - OPINION AND ORDER
addresser and cutter-and-paster are obsolete. See, e.g., Candice
E. v. Berryhill, No. 6:18-CV-01261-YY, 2019 WL 2550318, at *4 (D.
Or. June 20, 2019)(ALJ erred at Step Five when he concluded the
plaintiff could perform other work that exists in the national
economy because the addresser and cutter-and-paster jobs
identified by the ALJ are obsolete); Skinner v. Berryhill,
No. CV 17-3795-PLA, 2018 WL 1631275, at *5-6 (C.D. Cal. Apr. 2,
2018); Scott v. Colvin, No. 14-cv-04051-EDL, 2015 WL 11438598, at
*13 (N.D. Cal. Dec. 9, 2015)(same); Burney v. Berryhill, 276 F.
Supp. 3d 496, 500 (E.D.N.C. 2017); Read v. Comm’r, No. GJH-
15-2684, 2016 WL 2610117, at *5 (D. Md. May 6, 2016). Defendant
concedes in his Response that courts have found the jobs of
addresser and cutter-and-paster are obsolete and does not
challenge that conclusion. This Court, therefore, adopts the
reasoning of Candice E. and concludes the jobs of addresser and
cutter-and-paster are obsolete. Accordingly, the Court concludes
the ALJ erred when he relied on those jobs at Step Five.
Plaintiff also asserts the ALJ erred at Step Five when he
found Plaintiff could perform the job of document preparer.
Specifically, Plaintiff notes the Dictionary of Occupational
Titles (DOT) defines the job of document preparer in relevant
part as follows:
Prepares documents, such as brochures, pamphlets,
and catalogs, for microfilming, using paper
cutter, photocopying machine, rubber stamps, and
other work devices: Cuts documents into
15 - OPINION AND ORDER
individual pages of standard microfilming size and
format when allowed by margin space, using paper
cutter or razor knife.
DOT #249.587-018. In light of Plaintiff’s visual impairment as
described by Drs. Taylor, Bernardo, and Berner, Plaintiff asserts
using a paper cutter or razor knife would constitute a hazard
that Dr. Taylor opined Plaintiff was not “capable of avoiding”
and that conflicts with the limitation of monocular vision that
is included in the ALJ’s evaluation of Plaintiff’s RFC.
The ALJ relied on the VE’s testimony when he found Plaintiff
could perform work as a document preparer. The ALJ, however,
provided a hypothetical to the VE that did not include all of
Plaintiff’s visual limitations as set out by Drs. Taylor,
Bernardo, and Berner. The Court has already concluded the ALJ
erred when he gave only partial weight to Dr. Taylor’s opinion
and little weight to the opinions of Drs. Bernardo and Berner.
The Court, therefore, also concludes the ALJ erred at Step Five
when he failed to include all of Plaintiff’s limitations in his
hypothetical posed to the VE and found Plaintiff could perform
work as a document preparer based on the VE’s testimony.
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
16 - OPINION AND ORDER
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
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.
Here the Court concludes further proceedings are necessary
because it is unclear from this record whether the ALJ would be
required to find Plaintiff is unable to perform other work that
exists in the national economy when the ALJ properly credits the
opinions of Drs. Taylor, Bernardo, and Berner. Thus, the Court
concludes a remand for further proceedings consistent with this
Opinion and Order is required to permit the ALJ to resolve that
17 - OPINION AND ORDER
question.
CONCLUSION
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 16th day of July, 2020.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
18 - OPINION AND ORDER