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Lloyd P. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Portland Division

September 23, 2019

LLOYD P., Plaintiff,
v.
COMMISSIONER, Social Security Administration, Defendant.

          OPINION AND ORDER

          Patricia Sullivan, United States Magistrate Judge.

         Plaintiff Lloyd P.[1] brings this action pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (the "Commissioner") denying him Supplemental Security Income ("SSI") under Title XVI of the Act. 42 U.S.C. § 1381 et seq. The Commissioner agrees that the Administrative Law Judge ("ALJ") committed legal error in his decision, and argues that this case should be reversed and remanded for further administrative proceedings. Def Br. & Mot. Remand, at 1-2 (Docket No. 18). Plaintiff argues the proper remedy is remand for immediate calculation of benefits. (Docket Nos. 15, 19). For the following reasons, the Court REVERSES the Commissioner's decision and REMANDS this action for further administrative proceedings.

         PROCEDURAL BACKGROUND

         On October 22, 2014, plaintiff filed an application for SSI, alleging a disability onset of July 14, 1992. Tr. 17.[2] His claim was denied initially on May 4, 2015, and upon reconsideration on October 5, 2015. Tr. 113, 125. On October 30, 2015, plaintiff requested a hearing, Tr. 139, which was held May 3, 2017, before ALJ Rudolph M. Murgo. Tr. 32-52. Plaintiff appeared and testified, represented by counsel; a vocational expert also testified. Id. On August 2, 2017, the ALJ issued a decision finding plaintiff not disabled under the Act and denying benefits. Tr. 12-31. On October 6, 2017, plaintiff requested Appeals Council review, which was denied June 27, 2018. Tr. 1, 199. Plaintiff then sought review before this Court.[3]

         FACTUAL BACKGROUND

         Plaintiff was born in 1967. Tr. 114.[4] He has a ninth-grade education and has completed no specialized job training. Tr. 235. He has past work experience as a fast food cashier and as a landscaper. Tr. 235. He has been incarcerated six or seven times, the last time ending in 2011. Tr. 240, 309. He suffers from personality disorders, conduct disorders, posttraumatic stress disorder ("PTSD"), anxiety, depression, and Saigonensis disorder. Tr. 240. He has also been assessed as having schizoaffective order, bipolar type, and unspecified psychosis with auditory and occasional visual hallucinations. Tr. 410-11. Plaintiff has a history of suicidal ideation and in 1990 was institutionalized for three months at a state hospital. Tr. 309. He has a history of alcohol, methamphetamine, and cannabis abuse, and the record is unclear on how long he has been sober and when he may have relapsed. Tr. 422, 686, 744.

         LEGAL STANDARD

         The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "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." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court "must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation"). "[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five-step process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity"; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]" 20 C.F.R. §§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines whether the impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Id; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.

         At this point, the Commissioner must evaluate medical and other relevant evidence to determine the claimant's "residual functional capacity" ("RFC"), an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). At the fourth step, the Commissioner determines whether the claimant can perform "past relevant work." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since the application date. Tr. 17. At step two, the ALJ found that plaintiff had these severe impairments: antisocial personality disorder, secondary posttraumatic stress disorder, and schizoaffective disorder. Id. At step three, the ALJ found that plaintiff did not have an impairment or combination thereof that met or equaled a listed impairment. Tr. 18. In particular, the ALJ considered Listing 12.03, "Schizophrenia spectrum and other psychotic disorders."[5] The ALJ found that plaintiff did not meet the Paragraph B criteria of Listing 12.03, nor the Paragraph C criteria. The ALJ called Rita Clark, M.D., a psychiatrist, to review plaintiffs records as an impartial medical expert and to testify at the hearing, and the ALJ adopted her opinions "in part, " giving some "significant weight" and others "limited weight." Tr. 15, 22-23. The ALJ found that plaintiff had the RFC to perform work at all exertional levels, with these non-exertional limitations: he was limited to simple, routine, repetitive tasks; could have no public contact; could have only superficial contact with coworkers regarding trivial matters; was limited to low stress work; and should not work in physical proximity to coworkers. Tr. 20. At step four, the ALJ found that plaintiff could not perform past relevant work. Tr. 24. At step five, the ALJ found that plaintiff could successfully adjust to other jobs that exist in significant numbers in the national economy, including janitor, construction laborer, and lab helper. Tr. 25. The ALJ thus found plaintiff not under a disability since the application date, and not entitled to benefits. Id.

         ANALYSIS

         In his Opening Brief, plaintiff asserted two errors: (1) that the ALJ improperly rejected Dr. Clark's opinions, who testified that plaintiff met Listing 12.03; and (2) that the ALJ improperly rejected plaintiffs subjective symptom testimony. (Docket No. 15). Plaintiff argues that the Court should apply the "credit as true" doctrine, see Treichler v. Comm'r, 775 F.3d 1090, 1100-01 (9th Cir. 2014), credit Dr. Clark's opinions and plaintiffs testimony as true, and remand this action for immediate award of benefits. In her Response Brief, the Commissioner agrees that the ALJ erred in discounting Dr. Clark's opinions, but argues that the Court should remand for further administrative proceedings. (Docket No. 18).

         Because the parties' dispute concerns the appropriate remedy and not the existence of reversible error, the Court first lays out the standards for application of the "credit as true" doctrine. It then applies that doctrine to plaintiffs asserted errors.

         I. The "Credit-as-True" Doctrine and Potential Remedies

         It lies within the district court's discretion whether to remand for further proceedings or to order an immediate award of benefits. Harmon v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). "Remand for further administrative proceedings is appropriate if enhancement of the record would be useful. Conversely, where the record has been developed fully and further administrative proceedings would serve no useful purpose, the district court should remand for an immediate award of benefits." Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004) (citation and italics omitted). This "credit-as-true" rule has three steps: first, the court "ask[s] whether the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion"; second, if the ALJ has erred, the court "determine[s] whether the record has been fully developed, whether there are outstanding issues that must be resolved before a determination of disability can be made, and whether further administrative proceedings would be useful"; and third, if the court "conclude[s] that no outstanding issues remain and further proceedings would not be useful, " it may "find[] the relevant testimony credible as a matter of law . . . and then determine whether the record, taken as a whole, leaves not the slightest uncertainty as to the outcome of the proceeding." Treichler, 775 F.3d at 1100-01 (quotations, citations, and alterations omitted). The court may then "remand to an ALJ with instructions to calculate and award benefits." Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014. If, "even though all conditions of the credit-as-true rule are satisfied, an evaluation of the record as a whole creates serious doubt that a claimant is, in fact, disabled, " the court should remand for further proceedings. Garrison, 759 F.3d at 1021.

         The Court now applies these principles specifically to Dr. Clark's opinions and plaintiffs subjective testimony.

         II. Medical Opinions of Reviewing Physician Dr. Clark

         The ALJ called Dr. Clark to review plaintiffs medical record and testify at the hearing. Tr. 36-38.[6] Dr. Clark testified that plaintiff had schizoaffective disorder, PTSD, and a history of alcohol and substance abuse disorder. Id. She testified that plaintiff had moderate limitations in understanding, remembering, or applying information; marked social difficulties; moderate limitations in concentration, persistence, and pace; and moderate limitations in self-care. Id. She testified that plaintiff met the Paragraph C criteria of Listing 12.03. Id. She also testified that it was unclear from the record when plaintiff stopped using drugs and alcohol heavily because his statements at the hearing were inconsistent with the record. Id.

         The ALJ gave significant weight to Dr. Clark's opinions regarding plaintiffs Paragraph B limitations, and "adopted them into this decision." Id. However, the ALJ gave "little weight" to Dr. Clark's opinions that plaintiff met Paragraph C, for several reasons, citing plaintiffs ability to "independently perform a wide variety of daily activities"; the lack of clarity regarding cessation of drug and alcohol use; and the fact that she "did not take into account the claimant's abilities if he maintained long-term sobriety, . . . followed up with consistent treatment for his impairments, and took his medication as prescribed." Tr. 23.

         Plaintiff argues that the ALJ erred in discounting Dr. Clark's opinions for multiple reasons. First, plaintiff argues that his daily activities are minimal and "already part of his daily life, " but do not demonstrate an ability to adapt to changes and are not inconsistent with Listing 12.03 Paragraph C. Second, plaintiff argues that ...


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