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.
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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