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Roberts v. Colvin

United States District Court, D. Oregon

June 17, 2015

JANNA L. ROBERTS, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.


MICHAEL McSHANE, District Judge.

Plaintiff Janna L. Roberts filed this action October 15, 2010, seeking judicial review of the Commissioner of Social Security's final decision denying her application for disability benefits under Title II and supplemental security income ("SSI") under Title XVI of the Social Security Act (the "Act"). This court has jurisdiction over plaintiff's action pursuant to 42 U.S.C. ยง 405(g) and 1383(c)(3).

The Commissioner concedes that the ALJ erred in several respects and moves (# 18) for remand. The parties disagree on whether the court should remand for further administrative proceedings or for payment of benefits. For the reasons stated below, the Commissioner's decision is REVERSED and this matter is remanded for payment of benefits.


The decision whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 172, 1178 (9th Cir. 2000), cert. denied, 531 U.S. 1038 (2000). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate when no useful purpose would be served by further administrative proceedings or when the record has been fully developed and the evidence is insufficient to support the Commissioner's decision. Strauss v. Comm'r, 635 F.3d 1135, 1138-39 (9th Cir. 2011)(quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)). The court may not award benefits punitively, and must conduct a "credit-as-true" analysis to determine if a claimant is disabled under the Act. Id. at 1138.

Under the "credit-as-true" doctrine, evidence should be credited and an immediate award of benefits directed where: (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 "credit-as-true" doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award of benefits upon reversing the Commissioner's decision. Connett v. Barnhart, 340 F.3d 871, 876 (citing Bunnell v. Sullivan, 947 F.2d 871 (9th Cir. 2003) (en banc)). The reviewing court should decline to credit testimony when "outstanding issues" remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir. 2010).

The Commissioner concedes that the ALJ did not properly assess the medical opinion of an examining physician, the disability opinion of the Vocational Rehabilitation Division, Plaintiff's credibility, and lay witness statements, resulting in an improper residual functional capacity assessment. The Commissioner argues unresolved issues remain and there is serious doubt as to whether Plaintiff is in fact disabled.

A. Frances J. Storrs, M.D.

Dr. Storrs, a dermatologist, examined Plaintiff in April 2003, and conducted patch tests of Plaintiff's skin. Tr. 574-99. He diagnosed an allergic contact dermatitis to formaldehyde, quaternium-15, cinnamic aldehyde, and fragrance. Tr. 580. Dr. Storrs told Plaintiff to avoid products containing formaldehyde and provided lists of products to avoid. Tr. 581, 589-94. The ALJ did not address Dr. Storrs' opinion.

The Commissioner concedes that the ALJ erred, but argues that Dr. Storrs' opinion should not be credited as true because the record is ambiguous. The Commissioner contends that the August 2008 examination of Plaintiff by John French, M.D., did not result in limitations arising from an allergy to formaldehyde. Dr. French examined Plaintiff at the request of Vocational Rehabilitation to assess functional limitations. Tr. 612-14. Dr. French noted in the first paragraph of his report that Plaintiff showed him "some records that she brought in from the medical school dermatology clinic where she was noted to have a formaldehyde allergy and an allergy to Quaternium-15, various fragrance[s], cinnamic aldehyde, and nickel." Tr. 612. Under "Allergies, " Dr. French wrote "aloe." Tr. 613. Under "Dermatologic" he wrote "Positive for nail changes. Type: splitting. Puritus, " and under "Immunology" he wrote "positive for contact dermatitis. Type: latex." Tr. 614.

The Commissioner cites a May 2010 chart note where a treating physician and treating nurse did not assess Plaintiff with any limitations in work-related exposure to formaldehyde. Tr. 763. The cited records indicate that Plaintiff called Kaiser Permanente requesting a note excusing her from court mandated community service. Tr. 762. Mark W. Olson, M.D., noted Plaintiff should "avoid latex gloves but non-latex gloves are ok, " and limited her to lifting no more than 20 pounds due to tendonitis. Tr. 763.

The Commissioner contends that the evidence regarding Dr. Storrs' diagnosis is ambiguous and contradictory. It is not. The ALJ failed to state any reason for rejecting Dr. Storrs' uncontradicted opinion, and the opinion is credited as true.

B. Oregon Vocational Rehabilitation Division

Ronald Kittelson is a counselor at the Oregon State Office of Vocational Rehabilitation Services where Plaintiff received intermittent services from January 2008 to December 2013. Tr. 304-520. In September 2008 Mr. Kittelson found Plaintiff "Most Significantly Disabled, " and determined Plaintiff had impediments to employment, including social isolation, cognitive ...

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