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Perdew v. Berryhill

United States District Court, D. Oregon

November 16, 2017

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

          Katherine L. Eitenmiller Brent Wells HARDER, WELLS, BARON & MANNING, P.C. Attorneys for Plaintiff.

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon Janice E. Hebert ASSISTANT UNITED STATES ATTORNEY.

          Martha A. Boden SPECIAL ASSISTANT UNITED STATES ATTORNEY Attorneys for Defendant.

          OPINION & ORDER

          Marco A. Hernandez United States District Judge.

         Plaintiff 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.


         A court 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 omitted).


         I. 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 not credible.

         As to 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).

         Plaintiff 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.

         Plaintiff 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.

         Despite 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 requirements. Id.[1]

         If 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.

         Based 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.").

         The 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 benefits).

         Here, 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.

         III. Plaintiff's Credibility

         Plaintiff 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 ...

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