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Kilbane v. Berryhill

United States District Court, D. Oregon

September 7, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Michael McShane, United States District Judge.

         Plaintiff 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.[1]

         Kilbane 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.


         The 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. 1996)).


         The 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).

         Here 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.

         Prior 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.

         One 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.” Tr. 265.

         One 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.

         Upon 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”).[2] Tr. 307-08. Kilbane at this point complained of mild tingling in her toes. Tr. 364.

         One 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 flushed.”[3]

         In 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.

         Dr. 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.

Tr. 360.

On August 30, 2012, Dr. Maier drafted the ...

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