Case Name in Social Security Case - Unavailable

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
DUSTIN W. CLARK, )
)
Plaintiff, )
)
vs. )
)
COMMISSIONER OF SOCIAL SECURITY )
ADMINISTRATION, )
) No. 3:18-cv-0224-HRH
Defendant. )
_______________________________________)
O R D E R
This is an action for judicial review of the denial of disability benefits under Title II
and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff
Dustin Clark has timely filed his opening brief,1 to which defendant, the Commissioner of
Social Security, has timely responded.2 Oral argument was not requested and is not deemed
necessary.
Procedural Background
On March 23, 2015, plaintiff filed applications for disability benefits under Title II
and Title XVI of the Social Security Act, alleging that he became disabled on November 1,
2011. Plaintiff alleged that he is disabled due to seizures/epilepsy, cervical spine
1Docket No. 12.
2Docket No. 17.
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impairment, and severe back pain. Plaintiff’s applications were denied initially, and plaintiff
requested a hearing. Administrative hearings were held on November 21, 2016 and October
13, 2017. An administrative law judge (ALJ) then denied plaintiff’s applications. Plaintiff
sought review of the ALJ’s unfavorable decision. On September 6, 2018, the Appeals
Council denied plaintiff’s request for review, thereby making the ALJ’s November 16, 2017
decision the final decision of the Commissioner. On October 1, 2018, plaintiff commenced
this action in which he asks the court to review the Commissioner’s final decision.
General Background
Plaintiff was born on December 19, 1968. He was 47 years old at the time of the first
administrative hearing and 48 years old at the time of the second administrative hearing.
Plaintiff has a high school education and one year of trade school. Plaintiff’s past relevant
work includes work as a mortgage loan officer, a branch manager, and a charter boat
operator.
The ALJ’s Decision
The ALJ first determined that plaintiff met “the insured status requirements of the
Social Security Act through December 31, 2017.”3
The ALJ then applied the five-step sequential analysis used to determine whether an
individual is disabled.4
3Admin. Rec. at 18.
4The five steps are as follows:
(continued...)
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At step one, the ALJ found that plaintiff had “not engaged in substantial gainful
activity since November 1, 2011, the alleged onset date. . . .”5
At step two, the ALJ found that plaintiff had “the following severe impairments:
degenerative disc disease of the cervical and lumbar spine, episodic seizures, alcohol abuse,
status-post carpal tunnel syndrome and cubital tunnel syndrome surgery on the left. . . .”6
The ALJ found plaintiff’s hand tremor and thoracic kyphosis non-severe.7 The ALJ found
4(...continued)
Step one: Is the claimant presently engaged in substantial
gainful activity? If so, the claimant is not disabled. If not,
proceed to step two.
Step two: Is the claimant’s alleged impairment sufficiently
severe to limit . . . h[is] ability to work? If so, proceed to step
three. If not, the claimant is not disabled.
Step three: Does the claimant’s impairment, or combination of
impairments, meet or equal an impairment listed in 20 C.F.R.,
pt. 404, subpt. P, app. 1? If so, the claimant is disabled. If not,
proceed to step four.
Step four: Does the claimant possess the residual fun ctional
capacity (“RFC”) to perform . . . h[is] past relevant work? If so,
the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant’s RFC, when considered with the
claimant’s age, education, and work experience, allow . . . h[im]
to adjust to other work that exists in significant numbers in the
national economy? If so, the claimant is not disabled. If not,
the claimant is disabled.
Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).
5Admin. Rec. at 18.
6Admin. Rec. at 18.
7Admin. Rec. at 18.
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that plaintiff’s “medically determinable mental impairment of alcohol abuse does not cause
more than minimal limitation in the claimant’s ability to perform basic mental work activities
and is therefore nonsevere.”8 However, the ALJ found that plaintiff’s “alcohol abuse has
been found to be a severe impairment based on physical ramifications of [his] drinking,
including seizures[.]”9 The ALJ considered the “paragraph B” criteria and found that
plaintiff had no limitation as to understanding, remembering, or applying information; no
limitations as to interacting with others; no limitations as to concentrating, persisting, or
maintaining pace; and no limitations as to adapting or managing oneself.10
At step three, the ALJ found that plaintiff did not “have an impairment or combination
of impairments that meets or medically equals the severity of one of the listed impairments
in 20 CFR Part 404, Subpart P, Appendix 1. . . .”11 The ALJ considered Listings 1.04
(disorders of the spine), 11.02 (epilepsy), 1.02 (major dysfunction of a joint), and 11.14
(peripheral neuropathy).
“Between steps three and four, the ALJ must, as an intermediate step, assess the
claimant’s RFC.” Bray v. Comm’r of Social Security Admin., 554 F.3d 1219, 1222–23 (9th
Cir. 2009). The ALJ found that plaintiff had
8Admin. Rec. at 19.
9Admin. Rec. at 19 (emphasis added).
10Admin. Rec. at 19-20.
11Admin. Rec. at 20.
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the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) with the
following exceptions. The claimant requires a sit/stand option
allowing the claimant to alternate sitting or standing positions at
one-hour intervals throughout the day. The claimant can
frequently balance, and occasionally climb ramps or stairs,
stoop, kneel, crouch, and crawl. The claimant can never climb
ladders, ropes, or scaffolds. The claimant can have frequent
exposure to moving machinery and no exposure to unprotected
heights.[12]
The ALJ found plaintiff’s pain and symptom statements to be less than credible
because they were inconsistent with the medical evidence, because his testimony about when
he stopped drinking was inconsistent, and based on his daily activities.13
The ALJ gave great weight14 to Dr. Jessen’s opinions.15 The ALJ gave great weight
to Dr. Lebeau’s opinion.16 ALJ gave little weight17 to Dr. Rullman’s opinion.18 The ALJ also
12Admin. Rec. at 21.
13Admin. Rec. at 22, 28.
14Admin. Rec. at 23-24.
15Dr. Jessen treated plaintiff for his seizures. On April 15, 2015, she opined that
plaintiff’s prognosis was good “if no alcohol.” Admin. Rec. at 958. The ALJ also treated
her June 7, 2017 treatment notes, Admin. Rec. at 1156-1161, as an “opinion that the
claimant’s seizures disorder was not disabling[.]” Admin. Rec. at 23-24.
16Admin. Rec. at 29. Dr. Lebeau’s opinion is discussed below in detail.
17Admin. Rec. at 25.
18Dr. Rullman was plaintiff’s PCP for a short period of time. On September 10, 2014,
he noted that plaintiff’s “[e]xpected recovery to take > 12 months.” Admin. Rec. at 504.
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gave little weight to Dr. Humphreys’ opinions.19 And, the ALJ gave little weight20 to Dr.
Caldwell’s opinion.21
At step four, the ALJ found that plaintiff was “capable of performing past relevant
work as a mortgage loan officer and branch manager.”22
Thus, the ALJ concluded that plaintiff had “not been under a disability, as defined in
the Social Security Act, from November 1, 2011, through the date of this decision. . . .”23
Standard of Review
Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or reversing the decision of
the Commissioner. . . .” The court “properly affirms the Commissioner’s decision denying
benefits if it is supported by substantial evidence and based on the application of correct legal
standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence
19Admin. Rec. at 25-27. Dr. Humphreys’ opinions are discussed below in detail.
20Admin. Rec. at 30.
21On October 31, 2015, Jay E. Caldwell, M.D., opined that plaintiff could occasionally
lift/carry 20 pounds, frequently lift/carry 10 pounds, stand/walk for 6 hours, sit for 6 hours,
push/pull with left upper extremities occasionally, was unlimited as to climbing ramps/stairs,
balancing, kneeling, and crawling; could never climb ladder/scaffolds; could frequently
stoop; that prior to 12/13/15, handling/fingering was unlimited in the right but was limited
to never on the left; that after 12/13/15, reaching overhead, handling, and fingering was okay
on the right but limited to occasionally on the left; feeling was unlimited at all times; and he
should avoid concentrated exposure to vibration and hazards. Admin. Rec. at 886-889.
22Admin. Rec. at 30.
23Admin. Rec. at 30.
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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.’” Id. (quoting Andrews
v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence
supports the ALJ’s decision, [the court] review[s] the administrative record as a whole,
weighing both the evidence that supports and that which detracts from the ALJ’s conclu-
sion.’” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than
one reasonable interpretation, the court must uphold the Commissioner’s decision. Id. But,
the Commissioner’s decision cannot be affirmed “‘simply by isolating a specific quantum of
supporting evidence.’” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).
Discussion
Plaintiff first argues that the ALJ erred as to Dr. Humphreys’ opinions. Dr.
Humphreys was a treating physician and provided three opinions that the ALJ considered.
“As a general rule, more weight should be given to the opinion of a treating source than to
the opinion of doctors who do not treat the claimant.” Lester v. Chater, 81 F.3d 821, 830
(9th Cir. 1995). “At least where the treating doctor’s opinion is not contradicted by another
doctor, it may be rejected only for ‘clear and convincing’ reasons.” Id. (quoting Baxter v.
Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). “[I]f the treating doctor’s opinion is
contradicted by another doctor, the Commissioner may not reject this opinion without
providing ‘specific and legitimate reasons’ supported by substantial evidence in the record
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for so doing.” Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). Dr.
Humphreys’ opinions were contradicted by Dr. Lebeau’s opinion and Dr. Caldwell’s opinion;
and so, the ALJ was required to give specific and legitimate reasons for rejecting Dr.
Humphreys’ opinions.
On June 13, 2014, Dr. Humphreys wrote that plaintiff
initially presented to our office on 3/27/14. He was diagnosed
with neck pain and C7 radiculopathy with questionable ulnar
neuropathy. Per his symtomology [sic] and imaging studies,
surgical intervention was medically necessary. [H]e underwent
an Anterior Cervical Discectomy and Fusion C6-7. Post
operatively he has been having steady improvement in muscular
strength on the left. Unfortunately, he has continued to have a
seizure disorder that is being followed by Dr. Kristen Jessen. In
regards to his disability, he is still recovering post operatively
for his cervical spine. He is unable to work currently and will
be re-evaluated at his next appointment on 7/8/14. We cannot
predict at this time that he will be disabled for the next 12
months for his cervical spine or left hand.[24]
The ALJ rejected Dr. Humphreys’ opinion that plaintiff could not work because “it
[was] not consistent with the overall objective medical evidence.”25 The ALJ explained that
“[t]he treatment records do support [that] the claimant was improving” and cited Dr.
Humphreys’ May 19, 2015 treatment note.26 On that day, Dr. Humphreys noted that plaintiff
came in
24Admin. Rec. at 506.
25Admin. Rec. at 25.
26Admin. Rec. at 25.
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with increased pain since October. He has pain to his arm and
does appear to have more atrophy in his arm, first web space,
and thenar musculature. He began to have pain with motion of
his neck that goes into this left arm. He had plain films, which
show good alignment.[27] He has more difficulty walking with
a bit of a tremor.[28]
The ALJ then somewhat confusingly stated that “[i]n addition, when the claimant saw Dr.
Humphreys on May 19, 2015, he reported increased pain since October . . . , which supports
he did have improvement in his symptoms following surgery.”29
While the ALJ’s explanation of why he was rejecting Dr. Humphreys’ 2014 opinion
was confusing and may have been error, any error as to Dr. Humphreys’ 2014 opinion was
harmless. “[H]armless error . . . exists when it is clear from the record that the ALJ’s error
was inconsequential to the ultimate nondisability determination.” Garcia v. Comm’r of
Social Sec., 768 F.3d 925, 932 (9th Cir. 2014) (citation omitted). In his 2014 note, Dr.
Humphreys expressly stated that he did not know if plaintiff’s left upper extremity
impairment would continue for more than 12 months. An impairment must have lasted or
be expected to last for 12 continuous months in order to be considered disabling. Molina v.
Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). Because Dr. Humphreys was not sure if
plaintiff’s left upper extremity would last for longer than 12 months, even if the ALJ had
given more weight to his 2014 opinion, it would not have changed the ALJ’s ultimate
27Admin. Rec. at 654.
28Admin. Rec. at 622.
29Admin. Rec. at 25.
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nondisability determination.
The ALJ next considered Dr. Humphreys’ May 2015 opinion. On May 21, 2015, Dr.
Humphreys opined that plaintiff could sit for less than one hour; stand/walk for less than one
hour; could occasionally lift/carry 10 pounds; could occasionally lift up to 20 pounds; could
not walk one block at a reasonable pace on rough or uneven surfaces; could not climb a few
stairs; must use a cane while standing or walking; could rarely grasp, finger, or overhead
reach with his left hand; could frequently grasp, finger, and overhead reach on the right;
would frequently experience fatigue or pain that would be severe enough to interfere with
attention and concentration; and would need unscheduled breaks.30
The ALJ rejected Dr. Humphreys’ 2015 opinion because “it [was] not consistent with
the overall objective medical evidence” and because plaintiff “was found to have
improvement of his symptoms following” his June 2015 surgery on his ulnar nerve.31 The
ALJ again relied on Dr. Humphreys’ May 19, 2015 treatment note, but this treatment note
does not show that plaintiff’s condition was improving. Rather, it indicates that plaintiff had
increased pain and atrophy. The ALJ also cited to Dr. Bote’s July 30, 2015, treatment note,
in which Dr. Bote indicated that plaintiff reported that he “continues to have eccymosis along
30Admin. Rec. at 968-971.
31Admin. Rec. at 25. Dr. Bote did left cubital tunnel decompression and ulnar nerve
transposition surgery on June 26, 2015. Admin. Rec. at 634.
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the arm” and “some slight numbness to the digits, but [i]t is not severe.”32 Dr. Bote also
noted that plaintiff “explain[ed] that he has good and bad days. Patient complains . . . that
he is in pain [but is] starting to have some movement in fingers.”33
The reasons the ALJ gave for rejecting Dr. Humphreys’ 2015 opinions were not
legitimate. The medical evidence of record does not show that plaintiff’s left upper extremity
impairment was improving, but rather that plaintiff was continuing to have pain and
numbness and other problems associated with his left upper extremity.
The ALJ also considered Dr. Humphrey’s February 2017 opinion. On February 21,
2017, Dr. Humphreys opined that plaintiff could sit less than one hour; could stand/walk less
than one hour; could occasionally lift up to 20 pounds; could occasionally carry up to 10
pounds; could not walk one block at a reasonable pace on rough or uneven surfaces; could
not climb a few stairs; must use a cane when standing or walking; could never grasp, finger,
or reach overhead with his left arm/hand; could frequently grasp, finger, and reach overhead
with his right arm/hand; would frequently experience pain or fatigue severe enough to
interfere with concentration and attention; would need to take unscheduled breaks; and would
miss more than 3 days of work per month.34
The ALJ rejected Dr. Humphreys’ February 2017 opinion because “it [was] not
32Admin. Rec. at 956.
33Admin. Rec. at 956.
34Admin. Rec. at 1014-1017.
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consistent with the overall objective evidence.”35 In support of this finding, the ALJ cited
to Dr. Humphreys’ April 13, 2017 treatment note that plaintiff “had 5/5 strength in the
muscles tested in the upper extremities and lower extremities. He also had normal
sensation.”36 But, at the April 13, 2017 appointment, Dr. Humphreys noted that plaintiff
“continues to have weakness and pain, patient also has left hand atrophy. Patient is
ambulating with a cane today.”37 And, at plaintiff’s August 2017 appointment with Dr.
Humphreys, the doctor noted that plaintiff “continue[s] to have ulnar radiculopathy in his left
hand which [has] now left him with clawing deformity.”38 The ALJ also cited to Dr.
Hansen’s October 9, 2015 finding that plaintiff “had normal bilateral grip strength of both
hands.”39 But, Dr. Hansen also found that “[t]he extension of [plaintiff’s] left fingers 2, 3,
4, & 5 is weaker than the right” and that “[t]here is atrophy of the left hand thenar muscles.”40
There is not substantial evidence supporting the ALJ’s finding that Dr. Humphreys’ February
2017 opinion was inconsistent with the medical evidence of record. Rather, the medical
evidence of record supports Dr. Humphreys’ opinion that plaintiff had significant limitations
35Admin. Rec. at 26.
36Admin. Rec. at 26.
37Admin. Rec. at 1018.
38Admin. Rec. at 1228.
39Admin. Rec. at 26.
40Admin. Rec. at 876-877.
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as a result of his left upper extremity impairment.41
If the ALJ erred as to Dr. Humphrey’s 2015 and 2017 opinions, which he did, plaintiff
argues that this error was not harmless. Plaintiff argues that if the ALJ had given Dr.
Humphreys’ opinions greater weight, the ALJ would have included in plaintiff’s RFC the
limitation that plaintiff could rarely or never grasp, finger, or reach overhead with his left
arm/hand. If such a limitation would have been included in his RFC, plaintiff argues that it
is possible that the ALJ would have reached a different conclusion as to disability.
Defendant, however, argues that any error as to Dr. Humphreys’ 2015 and 2017
opinions was harmless because the vocational expert testified that plaintiff could still perform
his past relevant work as a mortgage loan officer or branch manager even if he could not use
his left upper extremity. Weiss was given a hypothetical person who could use his “left
upper extremity, regarding overhead reaching, handling, and fingering,” as “more of an assist
in his non-dominant upper extremity than full usage.”42 Weiss testified that such a person
could perform plaintiff’s past relevant work as a branch manager or mortgage loan officer.43
Plaintiff’s lawyer then asked about the “need for keyboarding, any use of both hands” for the
41The ALJ also treated a form Dr. Humphreys completed on May 21, 2017 as a
medical opinion. Admin. Rec. at 27. On the form, Dr. Humphreys indicated that plaintiff
was not expected to recover from his condition. Admin. Rec. at 1237. The ALJ rejected this
“opinion” for the same reason and based on the same evidence as Dr. Humphreys’ February
2017 opinion. The ALJ erred as to this “opinion” for the same reasons the ALJ erred as to
Dr. Humphreys’ February 2017 opinion.
42Admin. Rec. at 98.
43Admin. Rec. at 99.
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mortgage loan officer job.44 Weiss testified that “[t]he handbook for analyzing jobs doesn’t
address bilateral hand usage” but that because “you’re talking about dat[a] entry, which is
done with the fingers”, it would be possible to do that job with just one hand, as “[a] lot of
people hunt and peck when they type.”45
While defendant is correct that the outcome here would not have been any different
had the ALJ included a limitation that plaintiff could never use his left upper extremity to
grasp, finger, or reach overhead, that does not necessarily mean that the ALJ’s error as to Dr.
Humphreys’ 2015 and February 2017 opinions was harmless. In both opinions, Dr.
Humphrey opined that plaintiff could sit for one hour, stand for one hour, and walk for one
hour. Weiss testified that if Dr. Humphreys meant that the person could only work a three-
hour day, then that would not be full-time employment.46 So, it is at least possible that if the
ALJ had given more weight to these opinions, the outcome here would have been different.
In addition, in his February 2017 opinion, Dr. Humphreys opined that plaintiff would miss
at least 3 days of work each month, and Weiss testified that there would be no work for such
a person.47 Had the ALJ given more weight to this portion of Dr. Humphreys’ 2017 opinion,
it is possible that the ALJ’s nondisability determination might have been different.
44Admin. Rec. at 99-100.
45Admin. Rec. at 100.
46Admin. Rec. at 103.
47Admin. Rec. at 76.
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Plaintiff next argues that the ALJ erred in giving great weight to Dr. Lebeau’s opinion.
Dr. Lebeau testified at the administrative hearing as a medical expert. Dr. Lebeau opined
that plaintiff could frequently lift/carry 10 pounds; occasionally lift/carry 50 pounds; could
sit for 6 hours; could stand/walk for 3 hours; could occasionally climb stairs/ramps; could
never climb ladders/scaffolds; could balance frequently; could occasionally stoop, kneel,
crouch, and crawl; could not be around unprotected heights; could frequently be around
moving mechanical parts; could frequently operate a motor vehicle; and could continuously
be exposed to humidity, wetness, dust, odors, fumes, heat, cold, and vibrations.48 Dr. Lebeau
noted that plaintiff’s ulnar nerve tunnel had been operated on but that he did not “know
exactly what the status of that is now.”49 In reference to plaintiff’s carpal tunnel syndrome,
Dr. Lebeau testified that plaintiff “had that sort of thing[.]”50 As for any functional
limitations associated with plaintiff’s carpal tunnel syndrome and cubital tunnel syndrome,
Dr. Lebeau testified that although plaintiff “does have perhaps a little arm weakness[,] [i]t
shouldn’t be too severe.”51 Dr. Lebeau testified that “I can’t say that I know of any persisting
or lingering radicular problem and this would be in the arms.”52 Dr. Lebeau further testified
48Admin. Rec. at 50-52.
49Admin. Rec. at 48.
50Admin. Rec. at 48.
51Admin. Rec. at 50.
52Admin. Rec. at 53.
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that he did not “see any reason to restrict” plaintiff’s use of his hands.53
The ALJ gave great weight to Dr. Lebeau’s opinion because he “had the opportunity
to review the longitudinal record” and because he “is familiar with Social Security rules and
regulations.”54 Plaintiff argues that the ALJ erred in giving Dr. Lebeau’s opinion great
weight because he provided no supporting explanations for his opinion and in fact, appeared
to not be familiar with the medical evidence of record. “The weight afforded a
non-examining physician’s testimony depends ‘on the degree to which they provide
supporting explanations for their opinions.’” Ryan v. Comm’r of Social Sec., 528 F.3d 1194,
1201 (9th Cir. 2008) (quoting 20 C.F.R. § 404.1527(d)(3)). Plaintiff emphasizes that Dr.
Lebeau testified that he was not sure of the status of plaintiff’s cubital tunnel syndrome and
that he discussed the general treatment of carpal tunnel syndrome, rather than the specifics
of plaintiff’s treatment.55 Plaintiff argues that Dr. Lebeau seemed unsure as to whether
plaintiff had had surgery or whether other more conservative treatments, such as a cock-up
splint, had been used.
But, as defendant points out, when Dr. Lebeau was testifying as to what functional
limitations plaintiff had, Dr. Lebeau explained the basis for each limitation or why he was
53Admin. Rec. at 51.
54Admin. Rec. at 29.
55Admin. Rec. at 48.
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not including any particular limitation.56 The ALJ did not err as to Dr. Lebeau’s opinion, or
at least not for the reason plaintiff argues.
Finally, plaintiff argues that the ALJ erred as to Dr. Hansen. Dr. Hansen did a
consultative exam on October 9, 2015. Dr. Hansen noted that plaintiff could “pick up a
paperclip off the floor by flexing his spine and semi stooping with the index finger and
thumb of each hand easily, although his hands are shaking.”57 Dr. Hansen’s neuromuscular
exam was as follows:
The extension of left fingers 2, 3, 4, & 5 is weaker than the
right. He has good normal bilateral grip strength of both hands.
Motor strength of lower extremities reveals 5+ in dorsal flexion
of both feet at the ankles and in plantar flexion of both feet.
Range of motion – this is normal in all extremity joints.
Atrophy – none evident and both calves are measured with
maximal girth being 33 cm. There is atrophy of the left hand
thenar muscles. Straight leg raising test is normal on the left to
70 degrees and on the right at 60 degrees elevation he has
discomfort in the lower back.[58]
The ALJ considered Dr. Hansen’s examination,59 but plaintiff argues that the ALJ should
have contacted Dr. Hansen to inquire as to whether Dr. Hansen believed that plaintiff had any
functional limitations as a result of his left upper extremity impairment. Plaintiff argues that
Dr. Hansen’s findings, in particular his finding of atrophy of the left hand thenar muscles,
56Admin. Rec. at 50-54.
57Admin. Rec. at 877.
58Admin. Rec. at 877.
59Admin. Rec. at 26.
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were consistent with Dr. Humphreys’ findings with respect to atrophy in the left upper
extremity as well as the clawed left hand and were sufficient to trigger the ALJ’s duty to fully
and fairly develop the record. Plaintiff argues that the ALJ should not have settled for a
report from the agency’s own examining doctor that did not contain any opinion as to
functional limitations.
“The ALJ in a social security case has an independent ‘duty to fully and fairly develop
the record and to assure that the claimant’s interests are considered.’” Tonapetyan v. Halter,
242 F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.
1996)). But, an ALJ’s duty to develop the record further is triggered only when there is
ambiguous evidence or when the “record is inadequate to allow for proper evaluation of the
evidence.” McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (citation omitted).
There was no reason for the ALJ to contact Dr. Hansen regarding any left upper
extremity limitations given that Dr. Hansen did not conclude that plaintiff had any left upper
extremity impairments. Rather, Dr. Hansen concluded that plaintiff had alcoholism, low
back pain, short-term memory loss, and an intermittent hand tremor that was either related
to alcohol withdrawal or was fictitious.60 Moreover, the ALJ did further develop the record
here because he had two medical experts testify at the administrative hearing. The ALJ did
not err as to Dr. Hansen.
But, because the ALJ erred as to Dr. Humphreys’ 2015 and 2017 opinions, the court
60Admin. Rec. at 878.
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must determine whether to remand this matter for further proceedings or for an award of
benefits. “Remand for further administrative proceedings is appropriate if enhancement of
the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004)
(emphasis deleted). “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.” Id.
In 2017, Dr. Humphreys opined that plaintiff would miss more than three days of
work.61 If that opinion were credited as true, plaintiff would be disabled because Weiss
testified that such a person would not be able to maintain full-time employment.62 But, there
is the issue of alcohol abuse in this case. If plaintiff were found to be disabled, he must still
prove that his substance abuse was not “a contributing factor material to the determination
of disability.” 20 C.F.R. § 404.1535(a). Thus, a remand for further proceedings is necessary
here.
Conclusion
The decision of the Commissioner is reversed and this matter is remanded for further
proceedings.
DATED at Anchorage, Alaska, this 7th day of May, 2019.
/s/ H. Russel Holland
United States District Judge
61Admin. Rec. at 1017.
62Admin. Rec. at 76.
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Case 3:18-cv-00224-HRH Document 18 Filed 05/07/19 Page 19 of 19