Mayeda-Williams v. Commissioner of Social Security Administration

          ORDER

          H. RUSSEL HOLLAND, UNITED STATES DISTRICT JUDGE

         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 Elizabeth Mayeda-Williams has timely filed her opening brief, ^[1] to which defendant, the Commissioner of the Social Security Administration, has timely responded.^[2] Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On November 26, 2012, plaintiff filed applications for disability benefits under Title II and Title XVI of the Social Security Act, alleging that she became disabled on October 15, 2012. Plaintiff alleged that she was disabled due to lupus, rheumatoid arthritis, polyarphralgia, anxiety, and Chiara malformation. Plaintiff's applications were denied initially. Plaintiff requested a hearing. After an administrative hearing on March 15, 2015, an administrative law judge (ALJ) denied plaintiff's applications. Plaintiff sought review of the ALJ's unfavorable decision. On June 7, 2016, the Appeals Council vacated the ALJ's decision and remanded the matter to the ALJ for further consideration. After another administrative hearing on March 15, 2017, the ALJ again denied plaintiff's applications. Plaintiff again sought review of the ALJ's unfavorable decision. On June 8, 2018, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's April 27, 2017 decision the final decision of the Commissioner. On June 22, 2018, plaintiff commenced this action in which she asks the court to review the Commissioner's final decision.

         General Background

         Plaintiff was born on May 14, 1965. She was 49 years old at the time of the first administrative hearing. Plaintiff has a college education. Plaintiff's past relevant work includes work as a computer lab assistant; an accounting clerk, tech, manager, and supervisor; a property finance analyst; a grant manager; a payroll accountant; a receiving clerk; a building monitor; a receptionist; and an office manager.

         The ALJ's Decision

         The ALJ first determined that plaintiff met “the insured status requirements of the Social Security Act through December 31, 2019.”^[3]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.^[4]

         At step one, the ALJ found that plaintiff had “engaged in substantial gainful activity during the following periods: 4th quarter of 2013 through May 28, 2014”^[5] but that “there has been a continuous 12-month period[] during which the claimant did not engage in substantial gainful activity.”^[6]

         At step two, the ALJ found that plaintiff had “the following severe impairments: Sjogren's syndrome; rheumatic arthritis (RA); osteoarthritis of the shoulders; status-post cerebral vascular accident. . . .”^[7] The ALJ found plaintiff's anemia, bilateral hearing loss, bilateral carpal tunnel, degenerative joint disease of the patellofemoral compartment, anxiety, adjustment disorder, and panic disorder non-severe.^[8]

         At step three, the ALJ found that plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. . . .”^[9] The ALJ considered Listings 1.02 (major dysfunction of a joint, due to any cause), 14.09 (inflammatory arthritis), 14.10 (Sjögren's syndrome), and 11.04 (vascular insult to the brain).^[10]

         “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

the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she needs a sit/stand option allowing to alternate sitting or standing positions at one hour intervals throughout the day. Further, she can frequently climb ramps or stairs, stoop, kneel, crouch, and crawl, but can never climb ladders, ropes, or scaffolds. There should be no exposure to unprotected heights.^[11]

         The ALJ gave great weight to most of Dr. Lebeau's opinion but only gave little weight to his opinion that plaintiff would need additional breaks during the day because of her Sjogren's.^[12] The ALJ gave great weight to most of Dr. Brown's opinion but little weight to his opinion that plaintiff could occasionally climb ladders/ropes/scaffolds and should avoid concentrated exposure to extreme cold and hazards.^[13] The ALJ gave little weight to Dr. Hambleton's opinions.^[14] The ALJ also gave little weight to Dr. Anderson's opinions.^[15] The ALJ gave no weight to Dr. Farr's opinion.^[16] The ALJ also gave no weight to Dr. Rosales' opinion.^[17] The ALJ gave no weight to Kay Smith's opinion.^[18] The ALJ also gave no weight to Larina Santos' opinion.^[19]

         At step four, the ALJ found that plaintiff was “capable of performing past relevant work as an accounting clerk, an accounting technician, a payroll accountant, an accounting specialist, an accounting manager, and an accounting supervisor.”^[20]

         Thus, the ALJ concluded that plaintiff had “not been under a disability, as defined in the Social Security Act, from October 15, 2012, through the date of this decision. . . .”^[21]

         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 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 conclusion.'” 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 because he failed to account for the fact that she would miss more than two days of work each month because of her dental visits. Plaintiff testified that she sees the dental hygienist once a week for about an hour and the dentist 3-4 times per month for anywhere between 30 minutes and 2 hours.^[22] Plaintiff argues that her dental appointments, which are necessary treatment for her Sjogren's, would cause her to miss more than two days of work per month. The vocational expert testified that two or more absences per month would preclude competitive employment.^[23]

         Plaintiff's dental appointments would not necessarily cause her to miss more than two days of work per month. There is no evidence in the record that plaintiff's dental provider was only available for appointments during the workday. In her reply brief, plaintiff contends that her dental visits are in Anchorage (she lives in Juneau), but the record does not bear this out. Plaintiff testified that she has been making 2-3 trips to Anchorage per month since 2014 for her various medical issues, not just to see the dentist.^[24] And, while the record does show that plaintiff makes relatively frequent trips to Anchorage for medical appointments, which might preclude her from maintaining full-time employment, it does not appear that she was going to Anchorage 2-3 times per month. That said, even if she were only going once a month, it is possible that such a trip along with her other medical appointments would preclude full-time employment.

         “The ALJ always has a ‘special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'” Garcia v. Comm'r of Social Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003)). “Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to ‘conduct an appropriate inquiry.'” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen v. Chater, 80 F.3d at 1273, 1288 (9th Cir. 1996)). “The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record.” Id.

         The evidence on the issue of how much work plaintiff would miss each month due to necessary medical and dentist appointments is ambiguous. The ALJ should have developed the record as to this issue. The failure to do so was error.

         Plaintiff next argues that the ALJ erred in rejecting a portion of Dr. Lebeau's opinion. Dr. Lebeau opined that plaintiff could lift/carry 10 pounds continuously; lift/carry up 20 pounds frequently; could sit for 7 hours a day, up to 2 hours at a time; could stand for 3 hours a day, up to one hour at a time; could walk for 30 minutes; had no limits in terms of using her hands and feet; could climb stairs and ramps frequently; could never climb scaffolds and ladders; could balance continuously; could stoop, kneel, crouch, and crawl frequently; could not be around unprotected heights; and had no limitations as to moving mechanical parts, moving machinery, dust, odors, fumes, and extreme cold and heat.^[25] Dr. Lebeau also testified that plaintiff would need additional breaks every day to deal with the symptoms of her Sjogren's, but he did not give a number of additional breaks that would be required.^[26] Dr. Lebeau stated “that what [plaintiff's] describing” in terms of her Sjogren's syndrome “is classic. There's nothing [to] challenge[] credibility. . . . It's a . . . nasty disease and yet it doesn't kill you; . . . you have to try to . . . live with this[.]”^[27] He also testified that “this is a lady who's going to have to be taking wetting agents for her . . . tongue, mouth, and for her eyes frequently. So she's going to be, like, trying to work and . . . I'm sure that she is using these things probably at least every hour.”^[28]

         The ALJ gave great weight to most of Dr. Lebeau's opinion but gave little weight to the portion of his opinion relating to plaintiff needing additional breaks.^[29] Plaintiff argues that the ALJ erred in rejecting Dr. Lebeau's opinion that she would need additional breaks. The ALJ rejected this portion of Dr. Lebeau's opinion because it was inconsistent with plaintiff's daily activities and because Dr. Lebeau “did not opine any specific number of breaks, but rather indicated generally that Sjogren's requires maintenance during the day.”^[30]“As elements of [Dr. Lebeau's] opinion conflict with opinions of other medical experts, the ALJ was only required to give a specific and legitimate reason for rejecting h[is] medical opinion.” Norris v. Colvin, 160 F.Supp.3d 1251, 1270 (E.D. Wash. 2016) (internal quotations omitted).

         Defendant argues that the first reason given by the ALJ was a legitimate reason. The ALJ stated that plaintiff remained “quite active” and pointed to evidence that she drove disabled friends and family around; that she was caring for 14 of her grandchildren in her home; that less than one year after her alleged onset date she was applying for full time jobs and actually began working full-time in October 2013; that she assisted a friend with medical travel including pushing a wheelchair and carrying luggage; and that as late as 2016, she was spending 13-hour days caring for 3 of her ...