United States District Court, D. Oregon
Katherine L. Eitenmiller Brent Wells HARDER, WELLS, BARON
& MANNING, P.C. Attorneys for Plaintiff.
J. Williams UNITED STATES ATTORNEY District of Oregon Janice
E. Hebert ASSISTANT UNITED STATES ATTORNEY.
A. Boden SPECIAL ASSISTANT UNITED STATES ATTORNEY Attorneys
OPINION & ORDER
A. Hernandez United States District Judge.
Deborah Perdew brings this action seeking judicial review of
the Commissioner's final decision to deny disability
insurance benefits (DIB). This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). Defendant concedes that
the denial decision must be reversed and remanded. The
parties, disagree, however, as to whether remand should be
for additional proceedings or for an award of benefits.
Because I agree with Plaintiff, I reverse the
Commissioner's decision and remand for benefits.
may set aside the Commissioner's denial of benefits only
when the Commissioner's findings are based on legal error
or are not supported by substantial evidence in the record as
a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th
Cir. 2009). "Substantial evidence means 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." Id. (internal quotation
marks omitted). The court considers the record as a whole,
including both the evidence that supports and detracts from
the Commissioner's decision. Id.;
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). "Where the evidence is susceptible to more
than one rational interpretation, the ALJ's decision must
be affirmed." Vasquez, 572 F.3d at 591
(internal quotation marks and brackets omitted); see also
Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
("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") (internal quotation marks
Plaintiff's Arguments re: ALJ Errors In her Opening
Memorandum, ECF 15, Plaintiff argues that the Administrative
Law Judge (ALJ) made three errors in adjudicating her
disability claim. First, she contends that the hypothetical
given by the ALJ to the vocational expert (VE) was
incomplete. Second, she contends that the ALJ improperly
rejected the opinion of her treating physician. Third, she
argues that the ALJ improperly found her subjective testimony
the first argument, she notes that the ALJ gave "great
weight" to the opinions of two state agency
non-examining consultants, Sharon Meyers, D.O., and Martin
Kehrli, M.D. Tr. 26. Although both of these practitioners
concluded that Plaintiff did not meet the standards for
establishing disability, they nonetheless recommended that
Plaintiff, who has Crohn's disease, have "close
proximity to a private bathroom due to frequent and at times
unexpected bowel movements" to be able to work. Tr. 74,
87. The ALJ found their opinions "consistent with the
medical evidence as a whole." Tr. 26. However, the ALJ
failed to include the need for a private bathroom in her
hypothetical to the VE and in her residual functional
capacity (RFC). Tr. 24 (including in the RFC that Plaintiff
have "easy access to a bathroom (within 45 feet of her
work station)[.]); Tr. 60 (posing hypothetical to the VE
which included the requirement of "close proximity"
to a bathroom and defining "close proximity" to
require up to forty-five feet).
notes that this private bathroom limitation is consistent
with the opinion of examining psychologist Manuel Gomes,
Ph.D., who stated that "[w]ith the proper conditions,
" Plaintiff could maintain a regular work schedule. Tr.
412. Those conditions included a nearby bathroom and an
environment allowing her to be "devoid of opportunities
to feel embarrassed." Tr. 411, 412.
argues that the ALJ's failure to account for the private
bathroom limitation contained in the two opinions credited by
the ALJ, resulted in a defective hypothetical and VE
testimony which cannot support the ALJ's determination.
Bray v. Comm'r, 554 F.3d 1219, 1228 (9th Cir.
2009) (VE expert opinion evidence is reliable if the
hypothetical sets out all the limitations and restrictions of
the particular claimant); Nguyen v. Chater, 100 F.3d
1462, 1466 n.3 (9th Cir. 1996) (an incomplete hypothetical
cannot "constitute competent evidence to support a
finding that claimant could do the jobs set forth by the
vocational expert"). II. Defendant's Response and
Concession of Error In her Response Memorandum & Motion
to Remand, ECF 22, Defendant concedes that the ALJ erred in
her consideration of the opinions of Dr. Meyers and Dr.
Kehrli. Defendant acknowledges that Dr. Meyers and Dr. Kehrli
each recommended that Plaintiff have "close proximity to
a private bathroom" and that the ALJ did not adopt that
limitation into the RFC which provided only for "easy
access" to any bathroom within forty-five feet of
Plaintiff's work station.
these acknowledgments, Defendant does not actually concede
that the ALJ erred by omitting the private bathroom
limitation contained in the opinions wholly credited by the
ALJ, from the VE hypothetical and the RFC. Instead, Defendant
states that the "ALJ's evaluation of these medical
opinions did not achieve the level of specificity the courts
in this circuit have required for evaluating medical opinion
evidence." Def.'s Resp. Mem. & Mot. for Remand
4. And, even though Plaintiff did not raise error regarding
the ALJ's treatment of Dr. Gomes's opinion, Defendant
"concedes" that the ALJ's evaluation of Dr.
Gomes's opinion also did not meet the specificity
Plaintiff's argument were that the ALJ improperly
rejected the opinions of these practitioners, Defendant's
concession would make more sense. Defendant's
characterization of the ALJ's error as failing to provide
the level of sufficiency required to evaluate these
practitioners' opinions is a response to an argument that
the ALJ failed to give legally sufficient bases to reject
those opinions. But that is not the argument presented,
because here, the ALJ did not reject those opinions. Instead,
the ALJ credited them. The ALJ's error was in failing to
adequately account for the fully credited opinions in her VE
hypothetical and RFC.
on the articulated response and concession of error,
Defendant then argues that remand for further proceedings is
required because it would allow the ALJ to "articulate
her reasons for discounting these opinions."
Id. But, to repeat, these are opinions that the ALJ
has already fully credited. Defendant offers no support for
its position that an ALJ's failure to include a
limitation in an opinion the ALJ has expressly credited and
has found to be consistent with the medical evidence provides
an opportunity for the ALJ upon remand to articulate reasons
to reject those opinions. Case law from the Ninth Circuit
suggests that what is effectively a "do over" for
the ALJ is inappropriate. E.g., Benecke v.
Comm'r, 379 F.3d 587, 595 (9th Cir. 2004)
("Allowing the Commissioner to decide the issue again
would create an unfair 'heads we win; tails let's
play again' system of disability benefits
adjudication"); Moisa v. Comm'r, 367 F.3d
882, 887 (9th Cir. 2004) ("The Commissioner, having lost
this appeal, should not have another opportunity to show that
Moisa is not credible any more than Moisa, had he lost,
should have an opportunity for remand and further proceedings
to establish his credibility.").
type of error that occurred here prompts the question of
whether the record establishes disability when the
erroneously omitted limitation is included in the VE
hypothetical. If it is, then remand for benefits is
appropriate if there are no other outstanding issues. If it
is not, then remand for additional proceedings is required.
See, e.g., Garrison v. Colvin, 759 F.3d 995, 1020
(9th Cir. 2014) (three-part test is used to determine which
type of remand is appropriate; explaining that when the
record is fully developed, further administrative proceedings
would serve no useful purpose, and crediting of the
improperly omitted evidence would require the ALJ to find the
claimant disabled, court should remand for an award of
the VE testified that a private bathroom could not be
accommodated in competitive employment. Tr. 62, 63. The ALJ
made clear that Plaintiff's testimony was that she had a
"private bathroom by default because no other women were
employed there." Id. Plaintiff's counsel
understood that to be Plaintiff's testimony but noted he
was inquiring about jobs as they are generally performed. Tr.
62-63. The VE then confirmed that a private bathroom is not
accommodated in competitive employment. Tr. 63. Given the
credited opinions of Dr. Meyers and Dr. Kehrli which included
the limitation of a private bathroom, the VE's testimony
supports a finding of disability. Even assuming the VE
testimony does not establish disability, however,
Plaintiff's testimony and the opinion of her treating
gastroenterologist, both of which the ALJ improperly
rejected, support a remand for benefits.
testified that she takes three medications for her
Crohn's disease. Tr. 47. She described them as initially
effective but then failing. Tr. 48, 49. Even with medication,
she suffers from "massive diarrhea" and has
problems controlling it. Tr. 48. At the time of the hearing,
she had accidents about once or twice each week.
Id.; see also Tr. 52 (accidents occur even
when taking all medications). Aside from the accidents, she
still experiences having five or six semi-formed stools each
day, usually in the morning and the evening. Tr. 48-49. Some
days, up to one to two days per week, the ...