United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane, United States District Judge.
Brooke Kilbane brings this action for judicial review of the
Commissioner's decision denying her application for
supplemental security income (“SSI”) and
disability insurance benefits (“DIB”). This court
has jurisdiction under 42 U.S.C. §§ 405(g) and
1383(c)(3). On September 12, 2012, Kilbane filed an
application for SSI and DBI, alleging disability as of August
27, 2012. After a hearing, the administrative law judge
(“ALJ”) determined Kilbane was not disabled under
the Social Security Act from August 27, 2012 through January
21, 2015. Tr. 24.
argues the ALJ made numerous legal errors. As discussed
below, the ALJ erred in assigning little or no weight to the
only relevant treating medical opinions in the record.
Accorded proper weight, those opinions, along with the
testimony of the vocational expert (“VE”),
demonstrate Kilbane is disabled under the Act. Therefore, the
Commissioner's decision is REVERSED and this matter is
REMANDED for an award of benefits.
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 in the
record. 42 U.S.C. § 405(g); Batson v. Comm'r of
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, we review the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th
Cir. 1989). “If the evidence can reasonably support
either affirming or reversing, ‘the reviewing court may
not substitute its judgment' for that of the
Commissioner.” Gutierrez v. Comm'r of Soc. Sec.
Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520 & 416.920
(2012). The initial burden of proof rests upon the claimant
to meet the first four steps. If the claimant satisfies his
burden with respect to the first four steps, the burden
shifts to the Commissioner for step five. 20 C.F.R. §
404.1520. At step five, the Commissioner must show that the
claimant is capable of making an adjustment to other work
after considering the claimant's residual functional
capacity (RFC), age, education, and work experience.
Id. If the Commissioner fails to meet this burden,
then 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 v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
the ALJ determined Kilbane could perform light work. Tr.
16-17. The critical question here is whether Kilbane would
have to: miss more than four days of work per month due to
her ailments; or routinely elevate or rest her feet during
the workday? On both issues, only two treating physicians
offered an opinion. Both unequivocally answered
“yes” to both questions. The only contradicting
opinions-to the extent they even contradict the treating
opinions on those two specific issues-come from the state
reviewing physicians, who opined Kilbane could perform light
work. In reviewing the record, it is clear the ALJ erred in
weighing the medical opinions. Due to the complex nature of
Kilbane's ailments, I briefly outline her health issues
in the months surrounding the alleged onset date.
to May 2012, Kilbane worked for 20 years as an elementary
school teacher. For the most part, Kilbane was in good
health. In May 2012, however, that changed when several
difficult-to-diagnose ailments resulted in several
hospitalizations over the following three months. On May 10,
2012, a then 48 year old Kilbane was admitted to the hospital
on the referral of her primary care physician following
abnormal lab results. Tr. 244. Kilbane later learned she had
acute renal failure. Kilbane also had pancytopenia (decreased
platelets and red and white blood cells), a rash, and
arthralgias. Tr. 244-45. Three days later, her condition
improved enough for her to be discharged from the hospital.
week later, Kilbane was readmitted with multisystem illness,
leukocytoclastic vasculitis, arthralgias, pancytopenia,
possibly cirrhotic appearing liver, dyspnea, and lower
extremity edema. Tr. 260. This hospitalization lasted eight
days, upon which “she was felt to be stable for
discharge with outpatient evaluation.” Tr. 262. As the
doctors were still unsure of the exact nature or severity of
her illness, Kilbane “underwent [a] plethora of further
testing . . . .” Tr. 261. At this point, Kilbane
reported pain and swelling in her hands, feet, and knees
“to the point where it was too painful to walk.”
month later, Kilbane was hospitalized again, this time for
three days. Tr. 291. Doctors still lacked a firm diagnosis,
noting only that it was “likely the diagnosis will be
mixed cryoglobulinemia vasculitis” and that it was
unclear whether it and her “underlying liver
disease” were related. Tr. 292.
discharge, Kilbane was referred to Dr. William Maier, a
rheumatologist. Dr. Maier first treated Kilbane on June 28,
2012, commented on the unclear etiology of Kilbane's
symptoms and noted that although Kilbane previously suffered
arthralgias, she was not in pain on that date. Tr. 292-93.
Near this time, Dr. Gregory Knecht, a gastroenterologist,
noted “Possible cirrhosis of the liver in the context
of cryoglobulenemia and a systemic inflammatory
illness.” Tr. 295. One month later, Dr. Knecht
commented Kilbane was “much better than when I saw her
in the hospital” and “she is simply much better
and pleased.” Tr. 307. Kilbane's improvement
appears to be due to Dr. Maier's prescription of Rituxan
for cryoglobulinemia vasculitis
(“CV”). Tr. 307-08. Kilbane at this point
complained of mild tingling in her toes. Tr. 364.
week later, on August 8, 2012, Kilbane established care with
her primary care physician, Dr. Molly Tveite. Tr. 344. By
this time, doctors determined Kilbane suffered from, amongst
other ailments, CV, cirrhosis due to nonalcoholic
steatohepatitis, and leukocytoclasic vasculitis. To say the
least, Kilbane's condition remained serious. Although
Kilbane was certainly better than when she was hospitalized,
she was nowhere near back to full strength. Dr. Tveite noted
Kilbane's energy level and strength “are not
anywhere near baseline.” Tr. 344. Kilbane also suffered
from insomnia, possibly from medications, and anxiety,
possibly from work stressors. Tr. 344. On physical
examination, Kilbane's cheeks were “a little bit
mid-August 2012, Kilbane attempted to return to work. She had
to move her classroom and testified she simply could not
handle returning to work. Her attempt to work did not last
long. On August 24, 2012, Kilbane again sought treatment from
Dr. Tveite. As she recently attempted, without success,
returning to work, it is understandable that Kilbane's
chief complaint at this time was “situational anxiety
and depression” regarding returning to work. Tr. 342.
Adding to Kilbane's anxiety was her knowledge that if she
could not return to work, she and her family would lose their
health insurance. Tr. 360. Dr. Tveite noted Kilbane's CV
was being managed by Dr. Maier, the specialist. Tr. 342.
Maier treated Kilbane on August 28, 2012, just days after her
unsuccessful attempt at returning to her classroom. Kilbane
complained of “increasing joint pain, peripheral edema
and numbness, palpatations, and fatigue.” Tr. 360.
While Kilbane self-reported numbness, objective results
demonstrated “some decreased light touch over her
feet.” Tr. 360. Taking everything into account, Dr.
Maier provided the following assessment:
Brooke is having persistent symptoms, which is making it very
difficult for her to work. I agree with her that she is
immunocompromised from her cirrhosis and medications, and I
have recommended that she consider disability for at least a
year of two while her disease is treated. She will
investigate health insurance options during this period of
disability. We will plan to re-assess in 2 weeks' time
with updated laboratory at that time.
On August 30, 2012, Dr. Maier drafted the ...