Marshall v. Saul

WO IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ROBERT OLIN MARSHALL, )
)
)
Plaintiff, )
)
vs. )
)
ANDREW M. SAUL, Commissioner of Social )
Security Administration, )
) No. 4:18-cv-0043-HRH
Defendant. )
_______________________________________)
O R D E R
This is an action for judicial review of the denial of disability benefits under Title II
of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Robert Olin Marshall has timely
filed his opening brief,1 to which defendant, Andrew M. Saul,2 has timely responded. Oral
argument was not requested and is not deemed necessary.
Procedural Background
On September 30, 2012, plaintiff filed an application for disability benefits under Title
II of the Social Security Act, alleging that he became disabled on November 26, 2009.
1Docket No. 17.
2Docket No. 19.
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Plaintiff alleges that he was disabled because of knee, wrist, elbow, and left clavicle pain.
Plaintiff’s application was denied initially, and plaintiff requested a hearing. After
administrative hearings on April 9, 2014 and July 9, 2014, an administrative law judge (ALJ)
denied plaintiff’s application. Plaintiff sought review of the ALJ’s September 4, 2014
unfavorable decision. On February 17, 2016, the Appeals Council denied plaintiff’s request
for review. Plaintiff sought judicial review, and on March 31, 2017, the court reversed the
Commissioner’s final decision and remanded this matter for further proceedings. On June
30, 2017, the Appeals Council consolidated plaintiff’s 2012 claim with a subsequent claim
plaintiff filed on November 25, 2014 and ordered the ALJ to “consolidate the claim files,
create a single electronic record and issue a new decision on the consolidated claims. . . .”3
The ALJ held an administrative hearing on June 28, 2018, after which he denied plaintiff’s
claims. Plaintiff bypassed written exceptions, thereby leaving the ALJ’s October 25, 2018
decision as the final decision of the Commissioner. On December 31, 2018, plaintiff
commenced this action in which he asks the court to review the Commissioner’s final
decision.
General Background
Plaintiff was born on July 9, 1962. He was 47 years old on his alleged onset date.
Plaintiff has a high school education. Plaintiff’s past relevant work was as a pipe welder and
pipe fitter.
3Admin. Rec. at 930.
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The ALJ’s Decision
The ALJ first determined that plaintiff “last met the insured status requirements of the
Social Security Act on December 31, 2014.”4
The ALJ then applied the five-step sequential analysis used to determine whether an
individual is disabled.5
At step one, the ALJ found that plaintiff “did not engage in substantial gainful activity
during the period from his alleged onset date of November 26, 2009 through his date last
4Admin. Rec. at 772.
5The five steps are as follows:
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 functional
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).
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insured of December 31, 2014. . . .”6
At step two, the ALJ found that “[t]hrough the date last insured, the claimant had the
following severe impairments: osteoarthritis status-post total right knee replacement, history
of left clavicle pain, lumbar spondylosis, and lateral epicondylitis (tennis elbow) in the right
elbow. . . .”7 The ALJ found that complex regional pain syndrome was not a medically
determinable impairment.8 The ALJ found plaintiff’s obesity, left knee pain, wrist pain, and
hernia to be non-severe impairments.9 The ALJ also found plaintiff’s depressive disorder to
be non-severe.10 The ALJ considered the “paragraph B” criteria and found that plaintiff had
no limitations as to understanding, remembering or applying information; no limitations as
to interacting with others; no limitations as to concentration, persistence, or pace; and no
limitations as to adapting or managing oneself.11
At step three, the ALJ found that “[t]hrough the date last insured, the claimant did not
have an impairment or combination of impairments that met or medically equaled the
6Admin. Rec. at 773.
7Admin. Rec. at 773.
8Admin. Rec. at 773.
9Admin. Rec. at 773.
10Admin. Rec. at 774.
11Admin. Rec. at 775.
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severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]”12
“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, through the date last insured, the claimant had the residual
functional capacity to perform light work as defined in 20 CFR
404.1567(b) with the following exceptions. The claimant could
frequently balance, occasionally climb ramps or stairs, stoop,
kneel, crouch, and crawl. The claimant could never climb
ladders, ropes or scaffolds. The claimant could frequently, not
continuously, overhead reach with the left upper extremity. The
claimant could have no exposure to unprotected heights and
occasional exposure to hazardous machinery. The claimant
could have frequent exposure to moving machinery. The
claimant required a sit/stand option allowing him to alternate
sitting/standing positions throughout the day without going off
task.[13]
The ALJ gave little weight14 to Dr. Vermillion’s opinions.15 The ALJ also gave little
12Admin. Rec. at 775.
13Admin. Rec. at 776.
14Admin. Rec. at 779.
15Dr. Vermillion did plaintiff’s right knee replacement. On July 27, 2011, Dr.
Vermillion released plaintiff for work with the following restrictions: 2 hours sitting at a
time, 2 hours standing at a time, 30 minutes of walking, lifting 50 pounds intermittently,
minimal squatting and kneeling, climbing as tolerated, and no jumping or running. Admin.
Rec. at 337. On September 7, 2011, Dr. Vermillion released plaintiff for work with the
following restrictions: “sitting as tolerated 20-40 minutes with a short break,” “standing as
tolerated 20-40 minutes with break,” “walking as tolerated on level surfaces,” “lifting 50 lbs
intermittent,” “stairs as tolerated,” “kneeling minimal as tolerated,” “climbing short ladders
as tolerated,” and no squatting, jumping, or running. Admin. Rec. at 334.
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weight16 to the opinions of physical therapist Carlson.17 The ALJ also gave little weight18
to Dr. Cobden’s opinions19 and Dr. Elson’s opinion.20 The ALJ gave great weight21 to Dr.
16Admin. Rec. at 779.
17On June 9, 2011, Carlson did a physical capacity evaluation and found that plaintiff
could lift up to 100 pounds, could infrequently squat and kneel, was not limited as to sitting
and standing, could climb and crawl occasionally, was not limited in his ability to work
above shoulders, could walk for 30 minutes, and could occasionally use his feet for repetitive
motion. Admin. Rec. at 287-289. On June 22, 2011, Carlson assessed plaintiff’s “sitting and
standing tolerance” and found that he “demonstrated the ability to sit and stand for
alternating 20 minute time periods. He reported significant increased low back pain and knee
pain following 5 hours of these activities. . . . [He] can tolerate no more than 2 hours of
standing and 2 hours of sitting during an 8 hour period.” Admin. Rec. at 286.
18Admin. Rec. at 780-781.
19Dr. Cobden is an orthopedic surgeon. On October 6, 2011, Dr. Cobden opined that
plaintiff “should not return to welding.” Admin. Rec. at 394. On July 14, 2014, Dr. Cobden
opined that plaintiff was “totally and permanently disabled and prevented from performing
the duties of any occupation for which he may be qualified by reason of training or
experience[.]” Admin. Rec. at 675.
20Dr. Elson was plaintiff’s chiropractor. On January 17, 2013, Dr. Elson wrote:
My last treatment of Mr. Marshall took place on July 2, 2012,
during which time I treated him for upper back pain. However,
I have been well aware of his ongoing problems with his knee.
When I last saw the patient, he was hobbled badly by pain and
[had] limited range of motion in that knee, and based on my
observations at that time, I found it difficult to imagine him
working at any job that would require him to stand or walk.
Admin. Rec. at 490.
21Admin. Rec. at 782.
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Lebeau’s opinion.22 The ALJ also gave great weight23 to Dr. Holley’s opinion.24 The ALJ
gave some weight25 to the opinions of Dr. Anderson,26 Dr. Provencher,27 Dr. Kerr,28 and Dr.
Chong.29 The ALJ gave little weight30 to the lay testimony of plaintiff’s wife.31
At step four, the ALJ found that “[t]hrough the date last insured, the claimant was
22Dr. Lebeau’s opinion is discussed below in detail.
23Admin. Rec. at 783.
24On February 13, 2010, Keith Holley, M.D., examined plaintiff. Dr. Holley opined
that “[t]he need for permanent physical restrictions is unclear at this point in time. [Plaintiff]
is capable of employment in my opinion on a reasonably continuous basis with temporary
restrictions to a light or sedentary work capacity, with no prolonged kneeling, squatting, or
stair climbing.” Admin. Rec. at 2027.
25Admin. Rec. at 783-784.
26On February 12, 2011, Lowell Anderson, M.D., examined plaintiff. Dr. Anderson
stated that “[i]t is premature to determine if there are permanent physical restrictions” and
that it was possible that plaintiff “may not have any permanent physical restrictions. . . .”
Admin. Rec. at 2018.
27On August 11, 2011, Matthew Provencher, M.D., examined plaintiff. Dr.
Provencher opined that plaintiff “can return to full-time work in a light duty-type capacity,
however, with no stooping, crawling, ladders, climbing, or prolonged standing more than two
hours in an eight-hour day and avoiding impact activities.” Admin. Rec. at 2007.
28On July 13, 2012, Stewart M. Kerr, M.D. examined plaintiff. Dr. Kerr opined that
plaintiff could “do light duty type of work.” Admin. Rec. at 1160.
29On November 12, 2015, Dr. Chong examined plaintiff. Dr. Chong opined that
“[c]ontinued treatment to date has not enabled the examinee to return to employment, reenter
other employment, or relieve his pain.” Admin. Rec. at 2435.
30Admin. Rec. at 781.
31Plaintiff’s wife submitted an affidavit dated July 11, 2014. Admin. Rec. at 275-278.
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unable to perform any past relevant work. . . .”32
At step five, the ALJ found that “[t]hrough the date last insured, considering the
claimant’s age, education, work experience, and residual functional capacity, there were jobs
that existed in significant numbers in the national economy that the claimant could perform,”
including working as a small parts assembler, a ticket taker, and a storage rental clerk.33
Thus, the ALJ concluded that plaintiff “was not under a disability, as defined in the
Social Security Act, at any time from November 26, 2009, the alleged onset date, through
December 31, 2014, the date last insured. . . .”34
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
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
32Admin. Rec. at 784.
33Admin. Rec. at 784-785.
34Admin. Rec. at 785.
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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 in giving Dr. Lebeau’s opinion great weight
but then failing to incorporate some of the limitations assessed by Dr. Lebeau. Dr. Lebeau
opined that plaintiff could frequently lift/carry 10 pounds; occasionally lift/carry 20 pounds;
could sit for six hours in a day, up to two hours at a time; could stand for two hours in a day,
up to one hour at a time; could walk for one hour, up to 15 minutes at a time; could
frequently reach on the left side; was unlimited as to using his feet to push/pull controls;
could occasionally climb stairs/ramps; should never climb ladders/scaffolds; could frequently
balance; could occasionally kneel, stoop, crouch, and crawl; could never work around
unprotected heights; and could frequently work around moving mechanical parts.35
The ALJ gave great weight to Dr. Lebeau’s opinion,36 but plaintiff argues that the ALJ
35Admin. Rec. at 819-821.
36Admin. Rec. at 782.
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then failed to include in his RFC all of the limitations assessed by Dr. Lebeau. “The ALJ is
required to consider all of the limitations imposed by the claimant’s impairments[.]”
Carmickle v. Commissioner, Social Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).
Because the ALJ did not do so here, plaintiff argues that the ALJ erred.
The ALJ found
that, through the date last insured, the claimant had the residual
functional capacity to perform light work as defined in 20 CFR
404.1567(b) with the following exceptions. The claimant could
frequently balance, occasionally climb ramps or stairs, stoop,
kneel, crouch, and crawl. The claimant could never climb
ladders, ropes or scaffolds. The claimant could frequently, not
continuously, overhead reach with the left upper extremity. The
claimant could have no exposure to unprotected heights and
occasional exposure to hazardous machinery. The claimant
could have frequent exposure to moving machinery. The
claimant required a sit/stand option allowing him to alternate
sitting/standing positions throughout the day without going off
task.[37]
The ALJ did not include the express limitations for standing and walking that Dr. Lebeau
assessed, explaining that “the limitations Dr. Lebeau opined with standing, walking, and
sitting have been addressed with a sit/stand option.”38
But, plaintiff argues that the sit/stand option does not adequately address Dr. Lebeau’s
opinion that he could only stand for two hours in a day, up to one hour at a time and could
only walk for one hour, up to 15 minutes at a time. Plaintiff contends that the ALJ’s RFC
37Admin. Rec. at 776.
38Admin. Rec. at 782.
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indicates that he can do light work. “The full range of light work requires standing or
walking, off and on, for a total of approximately 6 hours of an 8-hour workday.” SSR 83-10.
Yet, Dr. Lebeau opined that plaintiff could only stand or walk, off and on, for approximately
three hours a day. Plaintiff argues that a sit/stand option does not get around the fact that Dr.
Lebeau opined that he could not meet the standing and walking requirements of light work.
Plaintiff insists that because the ALJ gave Dr. Lebeau’s opinion great weight, the ALJ should
have included the standing and walking limitations assessed by Dr. Lebeau and that the
ALJ’s failure to do so was error.
As defendant points out, the ALJ did not find that plaintiff could do the full range of
light work. Nevertheless, the ALJ erred here. The RFC is devoid of any specific limitations
as to standing and walking. All it says is that plaintiff has the capacity to perform light work,
which as set forth above, requires the ability to stand and walk, off and on, for about six
hours a day. Dr. Lebeau opined that plaintiff only had the ability to stand and walk, off and
on, for about three hours a day. There is a disconnect between Dr. Lebeau’s opinion, to
which the ALJ gave great weight, and the ALJ’s assessed RFC. This disconnect is not
adequately addressed by the sit/stand option as there may be a significant difference between
being able to stand up for a few minutes and still stay on task, which is what the sit/stand
option allows, and being able to walk or stand for a total of six hours in a workday. Because
the sit/stand option does not adequately address the sitting and standing limitations Dr.
Lebeau assessed, the ALJ erred as to Dr. Lebeau’s opinion.
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Plaintiff next argues that the ALJ erred in finding his pain and symptom statements
less than credible. “An ALJ engages in a two-step analysis” in evaluating “a claimant’s
testimony regarding subjective pain or symptoms. . . .” Garrison v. Colvin, 759 F.3d 995,
1014 (9th Cir. 2014). “‘First, the ALJ must determine whether the claimant has presented
objective medical evidence of an underlying impairment which could reasonably be expected
to produce the pain or other symptoms alleged.’“ Id. (quoting Lingenfelter v. Astrue, 504
F.3d 1028, 1035-36 (9th Cir. 2007)). “In this analysis, the claimant is not required to show
‘that h[is] impairment could reasonably be expected to cause the severity of the symptom []he
has alleged; []he need only show that it could reasonably have caused some degree of the
symptom.’” Id. (quoting Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). “Nor must
a claimant produce ‘objective medical evidence of the pain or fatigue itself, or the severity
thereof.’” Id. (quoting Smolen, 80 F.3d at 1282). “If the claimant satisfies the first step of
this analysis, and there is no evidence of malingering, ‘the ALJ can reject the claimant’s
testimony about the severity of h[is] symptoms only by offering specific, clear and
convincing reasons for doing so.’” Id. at 1014-15 (quoting Smolen, 80 F.3d at 1281). “This
is not an easy requirement to meet: ‘The clear and convincing standard is the most
demanding required in Social Security cases.’” Id. at 1015 (quoting Moore v. Comm’r of
Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)).
Effective March 16, 2016, the Commissioner superseded Social
Security Rule (“SSR”) 96-7p governing the assessment of a
claimant’s “credibility” and replaced it with a new rule, SSR
16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR
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16-3p eliminates the reference to “credibility,” clarifies that
“subjective symptom evaluation is not an examination of an
individual’s character,” and requires the ALJ to consider of all
of the evidence in an individual’s record when evaluating the
intensity and persistence of symptoms. Id. at *1-2. The Com-
missioner recommends that the ALJ examine “the entire case
record, including the objective medical evidence; an individual’s
statements about the intensity, persistence, and limiting effects
of symptoms; statements and other information provided by
medical sources and other persons; and any other relevant
evidence in the individual’s case record.” Id. at *4. The
Commissioner recommends assessing: (1) the claimant’s
statements made to the Commissioner, medical providers, and
others regarding the claimant's location, frequency and duration
of symptoms, the impact of the symptoms on daily living
activities, factors that precipitate and aggravate symptoms,
medications and treatments used, and other methods used to
alleviate symptoms; (2) medical source opinions, statements,
and medical reports regarding the claimant’s history, treatment,
responses to treatment, prior work record, efforts to work, daily
activities, and other information concerning the intensity,
persistence, and limiting effects of an individual’s symptoms;
and (3) non-medical source statements, considering how
consistent those statements are with the claimant’s statements
about his or her symptoms and other evidence in the file. See id.
at *6-7.
Cindy F. v. Berryhill, 367 F. Supp. 3d 1195, 1208 (D. Or. 2019).
The ALJ found plaintiff’s pain and symptom statements less than credible because
they were not supported by the objective medical evidence and were inconsistent with his
daily activities. Plaintiff argues that these were not clear and convincing reasons.
As for plaintiff’s daily activities, the ALJ noted that plaintiff “reported in 2015 that
he could perform some basic activities of daily living, such as preparing simple meals,
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driving if needed, and shopping in stores.”39 But, the ALJ did not explain how these
activities would translate into an ability to work full time. To “conclude that a claimant’s
daily activities warrant an adverse credibility determination,” the ALJ must “make ‘specific
findings relating to [the daily] activities’ and their transferability. . . .” Orn v. Astrue, 495
F.3d 625, 639 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)).
As defendant concedes, “[t]he ALJ made no finding that [plaintiff’s] activities were
transferable to a work environment. . . .”40 Defendant’s argument that this lack of finding
is of no import is simply wrong. If an ALJ discounts a claimant’s pain and symptom
statements based on the claimant’s daily activities, the ALJ must explain how those activities
would translate into the ability to work full time. Because the ALJ did not do so here, this
was not a clear and convincing reason for finding plaintiff’s pain and symptom statements
less than credible.
As for whether plaintiff’s pain and symptom statements were consistent with the
objective medical evidence, the “lack of medical evidence cannot form the sole basis for
discounting pain testimony[.]” Burch, 400 F.3d at 681 (9th Cir. 2005). Moreover, even if
the objective medical evidence alone were a legally sufficient reason to discount plaintiff’s
pain and symptom statements, the ALJ’s recital of the medical record lacked clear and
convincing reasons for doing so. While the ALJ recited some of the objective medical
39Admin. Rec. at 782.
40Defendant’s Brief at 5, Docket No. 19.
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evidence relating to plaintiff’s physical impairments,41 the ALJ provided little in the way of
explanation as to why this evidence was inconsistent with plaintiff’s statements. Other than
to state that the medical evidence showed that plaintiff’s right knee continually improved,42
the ALJ did not explain how his interpretation of the medical evidence detracted from
plaintiff’s credibility.
The ALJ failed to give clear and convincing reasons for discounting plaintiff’s
statements. Thus, the ALJ erred in finding plaintiff’s pain and symptom statements less than
credible.
Because the ALJ erred as to plaintiff’s pain and symptom statements and Dr. Lebeau’s
opinion, the court must determine whether to remand this matter for further proceedings or
for an award of benefits. The court follows a three-step analysis to determine whether a
remand for an award of benefits would be appropriate. “First, [the court] must conclude that
‘the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether
claimant testimony or medical opinion.’” Brown-Hunter v. Colvin, 806 F.3d 487, 495 (9th
Cir. 2015) (quoting Garrison, 759 F.3d at 1020). “Second, [the court] must conclude that
‘the record has been fully developed and further administrative proceedings would serve no
useful purpose.’” Id. (quoting Garrison, 759 F.3d at 1020). “Third, [the court] must
conclude that ‘if the improperly discredited evidence were credited as true, the ALJ would
41Admin. Rec. at 777-781.
42Admin. Rec. at 777, 779.
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be required to find the claimant disabled on remand.’” Id. (quoting Garrison, 759 F.3d at
1021). But, “even if all three requirements are met, [the court] retain[s] ‘flexibility’ in
determining the appropriate remedy” and “may remand on an open record for further
proceedings ‘when the record as a whole creates serious doubt as to whether the claimant is,
in fact, disabled within the meaning of the Social Security Act.’” Id. (quoting Garrison, 759
F.3d at 1021).
In his reply brief, plaintiff concedes that if the ALJ erred in not including Dr.
Lebeau’s standing and walking assessments in his RFC, then a remand for further
proceedings would be appropriate because vocational expert testimony would be necessary
to determine if there would be any jobs that plaintiff could perform.43 But because the ALJ
also erred as to plaintiff’s pain and symptom statements, a remand for benefits is appropriate
here. Plaintiff testified that during the relevant time period, he had approximately three bad
days a week, days on which his pain was so bad he was debilitated.44 The vocational expert
testified that if an individual were “unable to engage in sustained work activity for a full
eight-hour workday on a regular and consistent basis,” there would be no jobs that individual
could perform.45 If plaintiff’s pain was debilitating approximately three days a week, it
follows that he would be unable to maintain a full-time work schedule on a regular and
43Reply Brief at 3, Docket No. 20.
44Admin. Rec. at 833.
45Admin. Rec. at 842.
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consistent basis. No further administrative proceedings are necessary here. If his testimony
were credited as true, plaintiff would be disabled.
Conclusion
Based on the foregoing, the decision of the Commissioner is reversed and this matter
is remanded for an award of benefits.
DATED at Anchorage, Alaska, this 9th day of August, 2019.
/s/ H. Russel Holland
United States District Judge
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