Opinion

Epperson v. Commissioner Social Security Administration

Court
District Court, D. Oregon
Filed
Mar 30, 2022
Cited by
0 cases
Authority
More cited than 28.7%

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CANDICE E.,!

Plaintiff,

Civ. No 6:20-cv—01082-CL

Vv. OPINION AND ORDER

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

MARK D. CLARKE, Magistrate Judge.

Plaintiff Candice E. seeks judicial review of the final decision of the Commissioner of the □

Social Security Administration denying her claim for disability insurance benefits under Title II

of the Social Security Act, 42 U.S.C. 401-34. Full consent to Magistrate jurisdiction was entered

on August 3, 2020. The Commissioner concedes that this case should be remanded but asserts

that further proceedings are necessary. For the reasons below, the Commissioner’s decision is

REVERSED and REMANDED for immediate calculation and payment of benefits.

‘In the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name

of the non-governmental party or parties, and any relations, in this case.

Page | of 9— OPINION and ORDER

BACKGROUND?

Plaintiff protectively applied for benefits on September 4, 2014, alleging a disability

onset date of December 18, 2012. Tr. 13, 164. The Commissioner denied the claim initially and

upon reconsideration. Tr. 67-100. Plaintiff requested a hearing before an administrative law

judge (“ALJ”), Tr. 113. After holding a hearing, ALJ Rauenzahn issued a decision dated May 10,

2017, that Plaintiff was not disabled. Tr. 10-32. The Appeals Council denied Plaintiff's request

for review of that ALJ decision on May 24, 2018, and ALJ Rauenzahn’s decision became the

final decision of the Commissioner. Tr, 1-6. Plaintiff appealed to this Court. Tr. 873-75. The

Court reversed ALJ Rauenzahn’s decision and remanded Plaintiff's claim to the Commissioner

for further proceedings. Tr. 877-96. On remand, ALJ Weatherly issued a decision dated April 28,

2020, that Plaintiff was not disabled. Tr. 805-25. Plaintiff timely appealed to this Court. Tr. 806;

Doc. No. 1.

DISABILITY ANALYSIS

A claimant is disabled if he or she is unable 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). “Social Security Regulations set out a five-step sequential process for

determining whether an applicant is disabled within the meaning of the Social Security Act.”

Keyser v. Comm’r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially

dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks

the following series of questions:

2 The following recitation constitutes a summary of the pertinent evidence within the Administrative

Record and does not reflect any independent finding of fact by the Court. Citations to “Tr.” refer to the

page(s) indicated in the official transcript of the administrative record filed herein as Docket No. 9.

Page 2 of 9— OPINION and ORDER

1. Is the claimant performing “substantial gainful activity’? 20 C.F.R.

$§ 404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving

significant mental or physical duties done or intended to be done for pay or

profit. 20 C.F.R. §§ 404.1510; 416.910, If the claimant is performing such

work, she is not disabled within the meaning of the Act. 20 CFR.

$§ 404.1520(a)(4)i); 416.920(a)(4)(). If the claimant is not performing

substantial gainful activity, the analysis proceeds to step two,

2. Is the claimant’s impairment “severe” under the Commissioner’s

regulations? 20 C.F.R. §§ 404.1520(a)(4)Gi); 416.920(a)(4)~i). Unless

expected to result in death, an impairment is “severe” if it significantly

limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or

must be expected to last for a continuous period of at least 12 months. 20

C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe

impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)GD;

416.920(a)(4)G1). If the claimant has a severe impairment, the analysis

proceeds to step three.

3. Does the claimant’s severe impairment “meet or equal” one or more of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then

the claimant is disabled. 20 CFR. §§ 404.1520(a)(4)(iii);

416.920(a)(4)(iii). If the impairment does not meet or equal one or more of

the listed impairments, the analysis proceeds to the “residual functional

capacity” (“RFC”) assessment.

a. The ALJ must evaluate medical and other relevant evidence to assess

and determine the claimant’s RFC. This is an assessment of work-

related activities that the claimant may still perform on a regular and

continuing basis, despite any limitations imposed by his or her

impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e);

416.945(b)-(c). After the ALJ determines the claimant’s RFC, the

analysis proceeds to step four.

4, Can the claimant perform his or her “past relevant work” with this RFC

assessment? If so, then the claimant is not disabled. 20 C.F.R.

8§ 404.1520(a)(4)(iv); 416.920(a)(4 iv). Ifthe claimant cannot perform his

or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant’s RFC and age, education, and work experience,

is the claimant able to make an adjustment to other work that exists in

significant numbers in the national economy? If so, then the claimant is not

Page 3 of 9 — OPINION and ORDER

disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c);

416.960(c). Ifthe claimant cannot perform such work, he or she is disabled.

-See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).

The claimant bears the burden of proof at steps one through four. Id. at 954. The _

Commissioner bears the burden of proof at step five. Jd. at 953-54. At step five, the

Commissioner must show that the claimant can perform other work that exists in significant

numbers in the national economy, “taking into consideration the claimant’s residual functional

capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir.

1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing “work

which exists in the national economy”). If the Commissioner fails to meet this burden, the

claimant is disabled. 20 C.F.R. $§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the

Commissioner proves that the claimant is able to perform other work existing in significant

numbers in the national economy, the claimant is not disabled, Bustamante, 262 F.3d at 954-55;

Tackett, 180 F.3d at 1099.

THE ALJ’S FINDINGS

Applying the above analysis, the ALJ, Katherine Weatherly, made the following findings:

1. Plaintiff last met the insured status requirements of the Social Security Act on June

20, 2015. Tr. 810.

2. Plaintiff has not engaged in substantial gainful activity during the period from her

alleged onset date of December 18, 2012, through her date last insured of June 30,

2015.

3. Plaintiff has the following severe impairments: obstructive sleep apnea; idiopathic

hypersomnia versus fatigue; diabetes mellitus; obesity; asthma; major depression; and

anxiety. Tr. 811.

4. Through the date last insured, Plaintiff did not have an impairment or combination of

impairments that meets or medically equals the severity of one of the listed

impairments.

Page 4 of 9— OPINION and ORDER

5. Through the date last insured, Plaintiff had the residual functional capacity to perform

a range of sedentary work, except she could not climb ladders, ropes, or scaffolds.

She could occasionally balance, stoop, kneel, crouch, or crawl. She could frequently

push/pull with the bilateral upper extremities. She could engage in gross

manipulation frequently. She had to avoid workplace hazards, including unprotected

heights, or dangerous machinery. She had to avoid exposure to extreme heat, extreme

humidity, or respiratory irritants. She could understand, remember, and carry out

simple, routine, and repetitive instructions that avoided assembly line pace. She

could tolerate few, if any, changes in the workplace. She could tolerate occasional

contact with co-workers, supervisors, or the general public. She had to avoid group

talks involving more than incidental public interaction. Tr. 813.

6. Through the date last insured, the claimant was unable to perform any past relevant

work, Tr. 817,

7. Plaintiff was born on April 1, 1972 and was 43 years old, which is defined as a

younger individual age 18-49, on the date last insured.

8. Plaintiff has at least a high school education and is able to communicate in English,

9. Transferability of job skills is not material to the determination of disability because

using the Medical-Vocational Rules as a framework supports a finding that Plaintiff is

“not disabled” whether or not she has transferable job skills.

10. Through the dated last insured, considering Plaintiff's age, education, work

experience, and residual functional capacity, there were jobs that existed in

significant numbers in the national economy that Plaintiff could have performed, such

as a document preparer, eyeglass final assembler, and jewelry preparer. Tr. $18.

Consequently, the ALJ concluded that Plaintiffis not disabled as defined by the Social

Security Act through June 30, 2015, the date last insured.

DISCUSSION

The Commissioner concedes that it erred by failing to ask the consultative medical

examiner how many days in an average month Plaintiff would expect to be absent from work as .

a result of her impairments. The Commissioner also concedes that the second ALJ, Katherine

Weatherly, failed to provide legally sufficient reasons for rejecting the opinion of the

consultative medical examiner, Dr, Storm and for rejecting Plaintiff's subjective symptom

Page 5 of 9— OPINION and ORDER

testimony. Therefore, the only issue for the Court is to determine if the improperly discounted

evidence should be credited as true and the case remanded for immediate calculations of benefits

or if it should be remanded for further proceedings. For the reasons below, the case is remanded

for immediate calculation and payment of benefits.

Legal Standard.

- Credit-as-true analysis is well settled, longstanding and binding on the district courts. See

Rodriguez v. Bowen, 876 F.2d 759, 763 (9th Cir.1989); Smolen v Chater, 80 F.3d 1273, 1292 □

(9th Cir. 1996); Garrison vy. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). Under the credit-as-true

tule, a reviewing court should remand for a finding of disability and award of benefits if: (1) The □

ALJ has failed to provide legally sufficient reasons for rejecting medical opinions or a claimant's

testimony; (2) there are no outstanding issues to be resolved before a determination of disability

can be made; and (3) the ALJ would be required to find the claimant disabled ifthe improperly □□

rejected evidence were credited. Smolen, 80 F.3d at 1292. .

1) The ALJ failed to provide legally sufficient reasons for rejecting Dr. Storm’s

opinion and Plaintiff's testimony.

The Commissioner concedes that the ALJ failed to provide legally sufficient reasons for

rejecting the medical opinion evidence of Dr. Storm and failed to properly evaluate Plaintiff's

subjective symptom testimony. This prong of the credit-as-true doctrine is met.

2) There are no outstanding issues to be resolved before a determination of

disability can be made, and the ALJ would be required to find Plaintiff disabled

if Dr. Storm’s report and Plaintiff's testimony were credited as true.

- The second and third prong of the analysis are overlapping in this case and the Court will

address them together here. The medical opinion given by Dr. Storm, ordered by the

Commissioner on remand from the previous appeal of this case, was improperly rejected by the

ALJ. If it were credited as true, it clearly establishes the Plaintiff's disability. Additionally, this

Page 6 of 9 — OPINION and ORDER

opinion provides support for Plaintiffs subjective symptom testimony, which also establishes

disability. Therefore, there are no outstanding issues to be resolved, and the second and third

prongs are met.

The Commissioner argues that there are outstanding issues to be resolved on remand.

First, to determine whether Plaintiff became disabled between December 18, 2012, and June 30,

2015, her date last insured. Tr. 808-09. The Commissioner notes that Dr. Storm qualified her

opinion by stating that while the limitations “likely” started more than one year prior to her 2019

opinion, it was “unclear how much longer” they had existed. Tr. 1123. In addition, there is some

contradiction in the record given by the testifying medical expert, Dr. McKenna. Second, the

Commissioner argues that the record is not fully developed because the Court’s prior remand

order was not followed, and the information regarding the number of days Plaintiff would be

absent from work was not sought, evaluated, or received. Third, the Commissioner asserts that

there is serious doubt that the Plaintiff is disabled. The Court disagrees that any of these issues

require remand for further consideration. .

First, Dr. Storm affirmatively opined that it is “likely” that Plaintiffs limitations began

more than one year prior to her examination of Plaintiff, and a review of the record shows that it

is more than likely, based on Plaintiff's medical history, work history, absenteeism, and her own

testimony, which has not been properly discredited. Additionally, there is no finding in the

record that Plaintiff's impairments worsened in the time between her date last insured and the

date Dr. Storm examined Plaintiff in September 2019. Therefore, this is not an issue the Court

finds must be resolved on remand because there is nothing in the record indicating that Plaintiffs

condition was significantly different on her date last insured.

Page 7 of 9— OPINION and ORDER

Second, Dr. Storm’s opinion that Plaintiff could not sustain function for more than five

hours in an eight-hour workday and would have to lie down or sleep for the other three hours

indisputably supports Plaintiff's claim of disability. This limitation is inconsistent with full-time

work. This opinion also supports Plaintiffs specific testimony that her impairments leave her

chronically exhausted and capable of only short periods of productivity followed by hours-long

rest periods. The Commissioner concedes that the ALJ did not give legally sufficient reasons to

discount either Dr. Storm’s opinion or Plaintiff's testimony. If both are credited as true, there are

no issues left to resolve in order to find Plaintiff incapable of full-time work. Therefore, there is

no need to remand for further proceedings.

3} The Court must remand for an award of benefits.

The Court is mindful of its duty not to substitute its discretion for that of the agency. See

Brown-Hunter, 798 F.3d at 754. However, if all three requirements [of the credit-as-true

analysis] are satisfied, the Court must remand for an award of benefits unless “the record as a

whole creates serious doubt that the claimant is, in fact, disabled .. ..” Garrison, 759 F.3d at

1021. The Court has found no serious doubt regarding Plaintiff's disability in this case. It is

clear she has suffered from her impairments for years, and that she understandably struggled to

maintain employment as a result. The Court must remand for an award of benefits.

The Commissioner’s own failure to follow the remand orders of this Court and the ALJ’s

failure to adequately consider the medical and testimony evidence in this case are insufficient

reasons to continue to unnecessarily delay an award of benefits that is clearly required.

ORDER

Page 8 of 9— OPINION and ORDER

Based on the foregoing, the decision of the Commissioner is REVERSED and

REMANDED for an immediate calculation and payment of benefits.

oe -

It is so ORDERED and DATED this sO day of March, 2022.

De wr a □

eo a ue JO

fo Lo 4 oe

MARK D. CLARKE

United States Magistrate Judge

Page 9 of 9 - OPINION and ORDER

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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