United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge.
Kellie Keebler brings this action for judicial review of a
final decision of the Commissioner of Social Security denying
her application for disability insurance benefits (DIB) under
Title II of the Social Security Act and Supplemental Security
Income (SSI). The Court has jurisdiction under 42 U.S.C.
§§ 405(g) and 1383(c)(3). After the ALJ's
decision, Keebler submitted new evidence, a medical
questionnaire completed by his treating physician, Stephen K.
Knapp, M.D., included in plaintiff's request for Appeals
Council to review the ALJ's decision. For the reasons
stated below, the Commissioner's decision is reversed and
remanded for further proceedings for the ALJ to weigh the new
evidence in light of the original evidence.
AND FACTUAL BACKGROUND
filed an application for disability insurance benefits on
July 20, 2012, alleging disability beginning January 1, 2011.
Tr. 19. The claim was denied initially on October 9, 2012 and
upon reconsideration on March 1, 2013. Id. A hearing
was held on May 30, 2014 and on June 19, 2014 the ALJ issued
a decision finding plaintiff was not disabled. Tr. 19-29. In
early August 2014, Plaintiff requested a review of the
ALJ's decision by the Appeals Council. Tr. 14. Following
the request, in late August 2014 Stephen L. Knapp, M.D.
completed a medical questionnaire from Plaintiff's
counsel. Tr. 435-441. In September 2014 Dr. Knapp submitted a
second opinion questionnaire from Plaintiff's counsel
which was submitted to the Appeals Council in October 2014.
Tr. 181-82. The Appeals Council subsequently denied the
request for review, making the ALJ's decision the final
decision of the Commissioner. Tr. 1. This appeal followed.
reviewing court shall affirm the Commissioner's decision
if the decision is based on proper legal standards and the
legal findings are supported by substantial evidence on the
record. 42 U.S.C. § 405(g); Batson v. Comm'r for
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘more than a mere
scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Hill v. Astrue,
698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, this Court reviews the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Martinez v. Heckler, 807 F.2d 771, 772
(9th Cir. 1986).
Commissioner's findings are upheld if supported by
inferences reasonably drawn from the record; if evidence
exists to support more than one rational interpretation, the
court must defer to the Commissioner's decision.
Batson, 359 F.3d at 1193; Aukland v.
Massanari, 257 F.3d 1033, 1034-35 (9th Cir. 2000) (when
evidence can rationally be interpreted in more than one way,
the court must uphold the Commissioner's decision). A
reviewing court, however, “cannot affirm the
Commissioner's decision on a ground that the
Administration did not invoke in making its decision.”
Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050,
1054 (9th Cir. 2006) (citation omitted). A court may not
reverse an ALJ's decision on account of an error that is
harmless. Id. at 1055-56. “[T]he burden of
showing that an error is harmful normally falls upon the
party attacking the agency's determination.”
Shinseki v. Sanders, 556 U.S. 396, 409 (2009).
Social Security Administration uses a five step sequential
evaluation to determine whether a claimant is disabled. 20
C.F.R. §§ 404.1520; 416.920. The initial burden of
proof rests upon the claimant to meet the first four steps.
If claimant satisfies his or her burden with respect to the
first four steps, the burden shifts to the Commissioner at
step five. 20 C.F.R. § 404.1520. At step five, the
Commissioner's burden is to demonstrate the claimant is
capable of making an adjustment to other work after
considering the claimant's residual functional capacity,
age, education, and work experience. Id.
the ALJ found at step one of the sequential analysis that
Plaintiff had not engaged in substantial gainful activity
(SGA) since the alleged onset date. Tr. 21. At step two, the
ALJ found Plaintiff suffered from the following severe
impairments: degenerative disc disease of the thoracolumbar
spine; fibromyalgia; and diabetes mellitus. Id. The
ALJ further found depression to be a non-severe impairment.
Tr. 22-23. At step three, the ALJ found that none of
Plaintiff's impairments, alone or in combination, met or
medically equaled one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. Between steps three and
four, the ALJ determined Plaintiff had the residual
functional capacity to perform medium work, except she was
limited to no more than occasional stooping and climbing, and
no more than frequent kneeling, crouching, and crawling. Tr.
23-24. At step four, the ALJ found that Plaintiff was capable
of performing her past relevant work as a network analyst.
Tr. 26. The ALJ then continued on to make alternative step
five findings, determining that there were other jobs that
Plaintiff was capable of performing that existed in
significant numbers in the national economy, specifically
identifying the representative occupations of hand packager,
dining room attendant, and cashier II. Tr. 27-28.
contends that the ALJ's decision to deny Plaintiff's
claim for disability is not supported by substantial evidence
because new evidence submitted to the Appeals Council changes
the weight of the evidence. Pl.'s Br. 4-7. The new
evidence is a functional questionnaire completed by
Plaintiff's treating physician of 30 years, Dr. Stephen
Knapp. Id.; Tr. 435-41. Dr. Knapp endorsed the
diagnoses of fibromyalgia, chronic back and knee pain,
diabetes, depression, and anxiety. Tr. 435. He opined
plaintiff's symptoms of pain and fatigue constantly
interfered with her ability to sustain attention and
concentration, and that depression and anxiety frequently
interfered. Tr. 436. He further opined that over an 8 hour
workday, 5 days per week, plaintiff would be unable to lift
any weight on an occasional or frequent basis, could stand 20
minutes at a time for a total of one hour in a work day, and
could sit for two hours at a time for a total of three hours
in a workday. Id. Among other findings, Dr. Knapp
stated that plaintiff's fingers got numb and she
experienced arm and shoulder pain. Id. Pain and
fatigue caused a significant impact on Plaintiff's
ability to concentrate and maintain social functioning and
daily activities. Tr. 437-38. In light of her pain and mood
symptoms he expected she would miss more than two days per
month from even a simple, routine, sedentary job. Tr. 438.
responds that the ALJ's decision is supported by
substantial evidence notwithstanding the new evidence
submitted to the Appeals Council. Def.'s Br. 4. Defendant
submits that Dr. Knapp's opinion is undermined by the
plaintiff's daily activities. She reports an ability to
participate in college class, study groups, and other
projects. She is able to pay attention for “many
hours.” Tr. 150. In addition, plaintiff does household
chores, prepares meals, shops, drives, yard work and arts and
crafts. Tr. 146-49. She does report though that she cannot
stand for more than 15 or 20 minutes or walk for more than 15
minutes. Tr. 150. She has to take frequent breaks when doing
physical work such as cleaning, yard work, or shopping. Tr.
148. Plaintiff has not alleged any mental limitations such as
problems remembering, completing tasks, concentrating,
understanding, following instruction, or getting along with
others. Tr. 150. Her stated effected conditions are lifting,
standing, walking, stair climbing and using hands. Tr. 150.
argues that while Plaintiff alleges she became disabled in
January 2011 as of late 2010, she was able to work 25 hours
per week and go to school while taking oxycodone. Tr. 127,
349-52. Further, Plaintiff experienced a gap in treatment
between at least August 2011 and the fall of 2012. Tr. 198,
433. The treatment notes from this period do not pertain to
her alleged disabling impairments. The ALJ assigned the
opinions of Linda L. Jenson, M.D. and Neal E. Berner, M.D.
great weight, because the opinions were consistent with
plaintiff's responses to treatment and ability to attend
school during the relevant period. Tr. 26. Defendant argues
that the inconsistency with the evidence in the record is a
valid basis to discount the medical opinion of Dr.
Knapp's. 20 C.F.R. § 404.1527(c)(4). Defendant
further argues the ALJ only needs to provide specific and
legitimate reasons for discounting a treating physician's
opinion. See Lester v. Chater, 81 F.3d 821,
830 (9th Cir. 1996); Widmark v. Barnhart, 454 F.3d
1063, 1066-67 (9th Cir. 2006). “[W]hen evaluating
conflicting medical opinions, an ALJ need not accept the
opinion of a doctor if that opinion is brief, conclusory, and
inadequately supported by clinical findings.”
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.
2005). Here the ALJ discounted Dr. Knapp's initial
opinion because they found it to be conclusory. Tr. 26.
Although Dr. Knapp was a longtime treating source, the ALJ
gave his opinion little weight because “he did not
provide specific limitations that could be the basis of a
residual functional capacity.” Tr. 26. Plaintiff
counters that that rationale no longer applies, because the
record now contains a detailed functional assessment of
Plaintiff's abilities from a long-term treating source.
the ALJ here issued a well-reasoned decision based on the
evidence before him at the time. However, I also find the ALJ
must weigh the new evidence in light of the original
evidence. Because it is not clear that the ALJ would have to
find plaintiff disabled even with ...