Mercado v. Commissioner, Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

MALYNDA M.,1 Case No. 3:21-cv-00366-HL

Plaintiff, OPINION AND

ORDER

v.

COMMISSIONER, SOCIAL

SECURITY ADMINISTRATION,

Defendant.

_________________________________________

HALLMAN, United States Magistrate Judge:

Plaintiff Malynda B. brings this action under the Social Security Act (“the Act”), 42

U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social

Security (“Commissioner”). The Commissioner denied Plaintiff’s application for Disability

Insurance Benefits (“DIB”) and Supplemental Social Security Income (“SSI”) under Title II of

the Act. 42 U.S.C. § 401 et seq. For the following reasons, this case is reversed and remanded

for further proceedings.

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

last name for non-governmental parties.

STANDARD OF REVIEW

42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration’s

disability determinations: “The court shall have power to enter . . . a judgment affirming,

modifying, or reversing the decision of the Commissioner of Social Security, with or without

remanding the cause for a rehearing.” The 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. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more

than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation

omitted). The court must weigh “both the evidence that supports and detracts from the

[Commissioner’s] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “Where

the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its]

judgment for the ALJ’s.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation

omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the

court “must uphold the ALJ’s decision where the evidence is susceptible to more than one

rational interpretation”). “[A] reviewing court must consider the entire record as a whole and

may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue,

495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

BACKGROUND

I. Plaintiff’s Application

Plaintiff alleges disability based on bones spur; osteoarthritis in her right shoulder;

complete rotator cuff tear in her right shoulder; major depression; anxiety; chronic pain;

insomnia; three herniated discs; and a torn meniscus in her right knee. Tr. 270.2 At the time of

her alleged onset date, she was 52 years old. Tr. 42. She has a high school education and past

relevant work experience as a desk clerk. Tr. 41-42.

Plaintiff protectively applied for DIB and SSI on July 8, 2016, alleging an onset date of

April 15, 2015. Tr. 235-48. Her application was denied initially on March 15, 2017, and on

reconsideration on June 23, 2017. Tr. 118-19; 150-51. Plaintiff subsequently requested a

hearing, which was held on November 29, 2018, before Administrative Law Judge (“ALJ”)

Cynthia D. Rosa. Tr. 52-85. Plaintiff appeared and testified at the hearing, represented by

counsel; a vocational expert (“VE”), Patricia Ayerza, also testified. Id. On February 22, 2019,

the ALJ issued a partially favorable decision in Plaintiff’s favor, finding that Plaintiff was not

disabled before August 1, 2017, but became disabled on that date and through the date of the

decision. Tr. 23-44. Plaintiff requested Appeals Council review, which was denied on March

13, 2020. Tr. 1-6. Plaintiff then sought review before this Court.3

II. Sequential Disability Process

The initial burden of proof rests upon the claimant to establish disability. Howard v.

Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must

demonstrate an “inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected . . . to last for a continuous

period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

2 Citations to “Tr.” are to the Administrative Record. ECF 9-1.

3 The parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. §

636. ECF 21.

The Commissioner has established a five-step process for determining whether a person

is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At

step one, the Commissioner determines whether a claimant is engaged in “substantial gainful

activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b),

416.920(b).

At step two, the Commissioner determines whether the claimant has a “medically severe

impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§

404.1520(c), 416.920(c). A severe impairment is one “which significantly limits [the claimant’s]

physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c).

If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.

At step three, the Commissioner determines whether the impairments meet or equal “one

of a number of listed impairments that the [Commissioner] acknowledges are so severe as to

preclude substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the

claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at

141. At this point, the Commissioner must evaluate medical and other relevant evidence to

determine the claimant’s “residual functional capacity” (“RFC”), an assessment of work-related

activities that the claimant may still perform on a regular and continuing basis, despite any

limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),

416.945(b)-(c).

At step four, the Commissioner determines whether the claimant can perform “past

relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant

can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the

Commissioner. Yuckert, 482 U.S. at 146 n. 5.

Finally, at step five, the Commissioner must establish that the claimant can perform other

work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§

404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not

disabled. 20 C.F.R. §§ 404.1566, 416.966.

III. The ALJ’s Decision

At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful

activity since her alleged onset date. Tr. 30.

At step two, the ALJ determined that Plaintiff has the following severe impairments:

obesity, right shoulder tendinopathy and partial tear status post

arthroscopic acromioplasty, rotator cuff repair and distal clavicle

resection; osteoarthritis of the right knee. As of October 13, 2017,

she was also diagnosed with sciatica and left shoulder strain. As of

January 2018, she was further diagnosed with degenerative disc

disease of the cervical spine; osteoarthritis of the knees;

fibromyalgia; degenerative joint disease of the bilateral shoulders;

and, degenerative disc disease of the bilateral hips (20 CFR

404.1520(c) and 416.920(c)).

Id.

At step three, the ALJ determined that Plaintiff’s impairments did not meet or medically

equal the severity of a listed impairment since April 15, 2015. Tr. 33-34.

The ALJ then assessed Plaintiff’s residual functional capacity (“RFC”) before and after

August 1, 2017. Tr. 34-39. Before August 1, 2017, the ALJ found that Plaintiff had the residual

capacity to perform light work as defined in 20 CFR § 404.1567(b) and 416.967(b) with the

following limitations:

She can occasionally climb ramps and stairs, but never ropes,

ladders or scaffolds; she can occasionally balance, stoop, crouch

and kneel, but never crawl; she should avoid concentrated

exposure to hazards and vibration.

Tr. 34. Beginning on August 1, 2017, the ALJ found that Plaintiff had a residual capacity to

perform sedentary work as defined in 20 CFR 404.1567(a) and 426.967(2) with the following

limitations:

she can occasionally climb ramps and stairs, but never ropes,

ladders or scaffolds; she can occasionally balance, stoop, crouch,

kneel, but never crawl; she can occasionally reach overhead

bilaterally; she should avoid concentrated exposure to hazards and

vibration.

Tr. 39.

At step four, the ALJ found that Plaintiff could have performed her past relevant work as

a desk clerk before August 1, 2017. Tr. 41. Beginning August 1, 2017, the ALJ determined that

Plaintiff could not perform her past relevant work. Tr. 43.

Before August 1, 2017—considering Plaintiff’s age, education, work experience, and

RFC—the ALJ found at step five that a significant number of jobs existed in the national

economy that Plaintiff could have performed, including work as a mailroom sorter, cashier, and

self-service attendant. Tr. 42. Beginning on August 1, 2017, the ALJ determined at step five

that there are no jobs that exist in significant numbers in the national economy that Plaintiff

could perform. Tr. 43.

Thus, the ALJ concluded that Plaintiff was not disabled before August 1, 2017, but she

became disabled on that date and continued to be disabled through the date of the ALJ’s

decision. Tr. 43.

DISCUSSION

Plaintiff argues that the ALJ committed two errors in concluding that Plaintiff was not

disabled before August 1, 2017: (1) failing to consider the medical opinions of Dr. Thomas P.

McWeeney, M.D., and Dr. Bart Rask, M.D., and (2) rejecting Plaintiff’s subjective symptom

testimony regarding her physical limitations. Pl.’s Open. Br. 5-21, ECF 12. Plaintiff requests

that the Court credit the improperly rejected evidence as true and remand for an immediate

payment of benefits. Id. at 21.

The Commissioner concedes that the ALJ committed harmful error in failing to discuss

the opinions of Dr. McWeeney and Dr. Rask.4 Def.’s Br. & Mot. Remand 2-7, ECF 18. Thus,

the sole issue on review is the proper legal remedy. Upon review of the record, the Court finds

that remand for further proceedings is proper.

I. Credit-as-True Standard

“The decision whether to remand a case for additional evidence, or simply to award

benefits is within the discretion of the court.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.

1987). Generally, when the ALJ denies benefits and the court finds error, “‘the proper course,

except in rare circumstances, is to remand to the agency for additional investigation or

explanation.’” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citing INS v. Ventura,

537 U.S. 12, 16 (2002)).

In a number of cases, however, the Ninth Circuit has “stated or implied that it would be

an abuse of discretion for a district court not to remand for an award of benefits when [the three-

part credit-as-true standard is] met.” Garrison v. Colvin, 759 F.3d 995, 1021 (9th Cir. 2014)

(citations omitted). The credit-as-true standard is met if three conditions are satisfied:

(1) the record has been fully developed and further administrative proceedings

would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient

reasons for rejecting evidence, whether claimant testimony or medical opinion; and

(3) if the improperly discredited evidence were credited as true, the ALJ would be

required to find the claimant disabled on remand.

Id. at 1020 (citations omitted). Even when the credit-as-true standard is met, the district court

4 The Commissioner does not concede any error as to the ALJ’s evaluation of Plaintiff’s

subjective symptom testimony. Def.’s Br. & Mot. Remand 6.

retains the “flexibility to remand for further proceedings when the record [evidence] as a whole

creates serious doubt as to whether the claimant is, in fact, disabled within the meaning of the

Social Security Act.” Id. at 1021.

II. Credit-as-True Analysis

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

rejecting evidence and that the second prong of the credit-as-true standard has been satisfied.

Def.’s Br. & Mot. Remand 4. The Commissioner nevertheless argues that further proceedings

are necessary because the record contains significant factual conflicts. Def.’s Br. & Mot.

Remand 4. In particular, the Commissioner contends that Dr. McWeeney’s and Dr. Rask’s

opinions conflict with the opinions of state agency medical consultants Jacqueline Farwell, M.D.,

and Roy Brown, M.D. Id.

In April 2015, Dr. Rask opined that Plaintiff was limited to light work with a one-pound

lifting limit. Tr. 387. He further noted that Plaintiff should not lift her right arm above her chest

or use it repetitively. Id. In August 2016, Dr. McWeeney indicated that Plaintiff could not lift

any amount of weight, perform overhead work, or push and pull with her right arm. Tr. 519. He

further opined that Plaintiff could only perform sedentary work. Id. Subsequently, two state

agency examiners, Dr. Farwell and Dr. Brown, opined that during the relevant period, Plaintiff

could have performed light work that involved occasionally lifting twenty pounds, frequently

carrying ten pounds, sitting and standing for six hours, and walking for six hours in an eight-hour

workday. Tr. 86-101, 94, 97, 127-28, 131.

The Commissioner concedes that the ALJ committed harmful error in failing to discuss

the opinions of either Dr. McWeeney or Dr. Rask in determining Plaintiff’s limitations before

August 1, 2017. Def. Br. & Mot. Remand 3. The Court agrees with the Commissioner’s

contention that further proceedings are necessary because the record contains significant factual

conflicts. The Ninth Circuit has observed that “[w]here there is conflicting evidence, and not all

essential factual issues have been resolved, a remand for an award of benefits is inappropriate.”

Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1101 (9th Cir. 2014). Here, conflicting

medical evidence exists that concerns an essential factual issue: the scope of Plaintiff’s

limitations before August 1, 2017.

Plaintiff asserts that the conflicting medical opinions are not significant enough to justify

further proceedings. Pl.’s Reply Br. 4-7. The Court disagrees. Here, the ALJ assigned moderate

weight to both state agency examiners’ opinions concerning Plaintiff’s limitations before August

1, 2017. Tr. 36. In relying on those opinions, the ALJ computed Plaintiff’s RFC and determined

that Plaintiff could have performed light work before August 1, 2017. Tr. 34. The ALJ did not,

however, discuss or meaningfully evaluate either Dr. McWeeney’s or Dr. Rask’s opinions in her

decision. And, as noted above, the relevant medical opinions provided conflicting evidence of

Plaintiff’s limitations before August 1, 2017.

The conflicting medical opinions concerning Plaintiff’s limitations before August 1,

2017, present a significant conflict that warrants further proceedings. Although Plaintiff points

to several cases for the proposition that the mere presence of conflicting medical opinions does

not preclude the application of the credit-as-true rule, Pl.’s Reply Br. 3-4, ECF 19 (citing

Garrison, 759 F.3d at 1021-23; Benecke v. Barnhart, 379 F.3d 587 (9th Cir. 2004)), she does not

identify cases that involve an ALJ’s failure to discuss relevant, conflicting medical opinions.

Here, the ALJ failed to discuss either Dr. McWeeney’s or Dr. Rask’s opinions, so additional

proceedings would serve a useful purpose to resolve the factual conflicts bearing on Plaintiff’s

disability determination before August 1, 2017. See Dominguez v. Colvin, 808 F.3d 403, 409

(9th Cir. 2015) (remanding for further proceedings because conflicting medical opinions raised

significant questions regarding the extent of the plaintiff’s impairments); Sharon C. v. Comm’r of

Soc. Sec., 3:21-CV-00862-JR, 2022 WL 898617, at *4 (D. Or. Mar. 28, 2022) (remanding for

further proceedings when the ALJ failed to meaningfully address a medical opinion and when

the record contained conflicting medical opinions). Thus, the first element of the credit-as-true

analysis has not been met, and a remand for immediate payment of benefits is inappropriate.

Additionally, Plaintiff argues that because the ALJ committed harmful legal error in

failing to discuss Dr. Weeney’s opinion, the Court should credit the medical opinion regarding

the extent of Plaintiff’s limitations as true. Pl.’s Reply Br. 7-9, ECF 19. Plaintiff further asserts

that if Dr. McWeeney’s opinion is deemed true, then the ALJ would have been required to find

Plaintiff disabled before August 1, 2017. Id. at 8 n.1. However, as the Ninth Circuit has

observed in rejecting an identical argument, “this reverses the required order of analysis.”

Dominguez, 808 F.3d at 409. Instead, a “district court must ‘assess whether there are

outstanding issues requiring resolution before considering whether to hold that the claimant’s

testimony is credible is a matter of law.’ If such outstanding issues do exist, the district court

cannot deem the erroneously disregarded testimony to be true; rather, the court must remand for

further proceedings.” Id. (quoting Treichler, 775 F.3d at 1105) (emphasis in original). Given

that outstanding issues exist,5 a remand for further proceedings is appropriate in this instance.

5 The Commissioner further contends that—although it does not concede any error with respect

to the ALJ’s evaluation of Plaintiff’s subjective symptom testimony—further proceedings are

necessary because factual disputes exist concerning Plaintiff’s activities and her subjective

symptom testimony, which creates serious doubt of Plaintiff’s disability before August 1, 2017.

Def.’s Br. & Mot. Remand 5-6 (citing Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995).

Because the Court already concludes that the first element of the credit-as-true analysis is not

met and that the case should be remanded for further proceedings, the Court declines to discuss

whether this alternative basis also would also warrant remand for further proceedings.

Additionally, on remand, the Commissioner must reconsider Plaintiff’s subjective symptom

testimony in further proceedings.

Ill. Remedy

Because the credit-as-true standard is not met, this case is remanded for further

proceedings. See Burrell vy. Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). The Court finds that

significant factual conflicts exist, making remanding for an immediate payment of benefits

inappropriate. Accordingly, this case is remanded for further administrative proceedings to: (1)

re-evaluate Plaintiffs residual functional capacity; (2) in doing so, explain the weight given to

all the opinion evidence of record, including the opinions of Dr. McWeeney and Dr. Rask; (3)

reassess Plaintiff's subjective symptom testimony; (4) if warranted by the expanded record,

obtain supplemental vocational expert evidence to clarify the effect of the assessed limitations on

Plaintiff’s ability to perform other work in the national economy; and (5) offer Plaintiff the

opportunity for a hearing, address the additional evidence submitted, take any further action

necessary to complete the administrative record, and issue a new decision concerning Plaintiff's

disability status before August 1, 2017.

CONCLUSION

Based on the foregoing, pursuant to 42 U.S.C. § 405(g), sentence four, the Court

REVERSES and REMANDS for further proceedings.

IT IS SO ORDERED.

DATED this 24th day of August, 2022.

United States Magistrate Judge

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