United States District Court, D. Alaska
ORDER
H.
Russel Holland United States District Judge
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.
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.
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
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
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 weight[14] to Dr. Vermillion's
opinions.[15] The ALJ also gave little
weight[16] to the opinions of physical therapist
Carlson.[17] The ALJ also gave little
weight[18]to Dr. Cobden's
opinions[19] and Dr. Elson's
opinion.[20] The ALJ gave great weight[21] to Dr.
Lebeau's opinion.[22] The ALJ also gave great
weight[23] to Dr. Holley's
opinion.[24] The ALJ gave some weight[25] to the
opinions of Dr. Anderson, [26] Dr. Provencher, [27] Dr. Kerr,
[28]
and Dr. Chong.[29] The ALJ gave little weight[30] 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 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 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 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 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 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 ...