H. RUSSEL HOLLAND, 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 Rance Lentz has timely filed his opening brief,
On August 2, 2015, plaintiff filed an application for disability benefits under Title II of the Social Security Act, alleging that he became disabled on February 27, 2015. Plaintiff alleged that he was disabled due to ulcerative colitis, IgA pemphigus, migraines, rheumatoid arthritis, depression, kidney stones, and uveitis. Plaintiff's application was denied initially. Plaintiff requested a hearing. After an administrative hearing on January 31, 2018, an administrative law judge (ALJ) denied plaintiff's application. On May 2, 2018, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's March 5, 2018, decision the final decision of the Commissioner. On July 2, 2018, plaintiff commenced this action in which he asks the court to find that he is entitled to disability benefits.
Plaintiff was born on February 6, 1979. He was 38 years old at the time of the administrative hearing. Plaintiff has a high school education. Plaintiff's past relevant work includes work as an auto mechanic, heavy equipment mechanic, and heavy equipment operator.
The ALJ first determined that plaintiff met "the insured status requirements of the Social Security Act through September 30, 2020."
The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.
At step one, the ALJ found that plaintiff had "engaged in substantial gainful activity during the following periods: February 27, 2015 through March 31, 2015" but that "there has been a continuous 12-month period[] during which the claimant did not engage in substantial gainful activity."
At step two, the ALJ found that plaintiff had "the following severe impairments: longstanding history of ulcerative colitis status post bowel resection surgery; hemiplegic headaches and associated mild hemiparesis on the right side; migraine headaches; hypertension; major depressive disorder; generalized anxiety disorder; possible malingering; [and] possible conversion disorder. . . ."
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 impair-ments. . . ."
"Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC."
The ALJ gave Dr. Lebeau's opinion
The ALJ found plaintiff's pain and symptom statements less than credible because they were inconsistent with the medical evidence.
At step four, the ALJ found that plaintiff was "unable to perform any past relevant work. . . ."
At step five, the ALJ found that "there are jobs that exist in significant numbers in the national economy that the claimant can perform," including working as an assembler, basket filler, or garment sorter.
Thus, the ALJ concluded that plaintiff had "not been under a disability, as defined in the Social Security Act, from February 27, 2015, through the date of this decision. . . ."
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."
Plaintiff first argues that the ALJ erred as to Dr. Hanley's January 15, 2017 opinion. On January 15, 2017, Dr. Hanley, who was plaintiff's primary care physician, opined that plaintiff could continuously lift/carry 10 pounds; could frequently lift/carry 20 pounds; could occasionally lift/carry up to 100 pounds; could sit for 4 hours; could stand/walk for 2 hours; could occasionally climb stairs/ramps; could never climb ladders/scaffolds; could frequently balance and stoop; could occasionally kneel, crouch, and crawl; could never be around unprotected heights, dust, fumes, odors, or pulmonary irritants; could occasionally be around moving mechanical parts; could occasionally operate a motor vehicle; could frequently be around humidity and wetness; and could occasionally be around extreme cold, extreme heat, and vibrations.
The ALJ rejected Dr. Hanley's December 2017 opinion because it was not supported by his treatment notes.
Plaintiff next argues that the ALJ erred as to Dr. Curns' report. Dr. Curns evaluated plaintiff on November 21, 2017 and wrote that plaintiff had
The ALJ did not address Dr. Curns' report, which was based on a battery of tests, other than to note that Dr. Curns had stated that plaintiff's clinical presentation should be viewed with caution due to an "`over-reporting of symptoms.'"
Plaintiff next argues that the ALJ erred by rejecting Dr. Martino's opinion. Dr. Martino treated plaintiff's headaches and depression.
There was no error as to Dr. Martino's treatment notes. The reference to diesel fumes being a trigger was a self-report, not a determination that was made by Dr. Martino.
Finally, plaintiff argues that the ALJ erred in rejecting the opinion of Josie Barry. On January 9, 2018, Barry opined that plaintiff had no limitations in his ability to interact appropriately with the general public, ask simple questions or request assistance, maintain socially appropriate behavior, and adhere to basic standards of neatness and cleanliness; moderate limitations in his ability to understand/remember/carry out very short and simple instructions, sustain an ordinary routine without special supervision, make simple work-related decisions, accept instructions and respond appropriately to criticism from others, get along with coworkers and peers without distracting them or exhibiting behavioral extremes, be aware of normal hazards and take appropriate precautions, and travel in unfamiliar places or use public transportation; and extreme limitations in his ability to remember locations and work-like procedures, understand/remember/carry out detailed instructions, maintain attention and concentration for extended periods of time, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, work in coordination with others or proximity to others without being distracted by them, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number of and length of rest periods, respond appropriately to changes in the work setting, set realistic goals or make plans independently of others, and tolerate normal levels of stress.
The ALJ rejected Barry's opinion because Barry opined that plaintiff had extreme limitations.
The ALJ also gave Barry's opinion little weight because of "the general lack of support in the record for" the limitations she assessed.
Barry, as a licensed therapist, is not an accepted medical source. Therefore, her opinion is treated as lay testimony. "Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless the ALJ expressly determines to disregard such testimony and gives reasons germane to each witness for doing so."
Plaintiff argues that the first reason given for rejecting Barry's testimony, that she did not understand what extreme meant in the Social Security context, was not germane because the form on which Barry expressed her opinion defined "extreme." Specifically, "extreme" was defined as "[t]he ability to function in this area is precluded."
However, the ALJ also rejected Barry's opinion because it was not supported by the other evidence in the record. This reason was germane to Barry's testimony and was a sufficient reason for the ALJ to reject Barry's opinion. The ALJ did not err in rejecting Barry's opinion.
But, because the ALJ erred as to Dr. Hanley's January 2017 opinion and Dr. Curns' report, the court must consider whether to remand this matter for an award of benefits or for further proceedings. 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.'"
"Second, [the court] must conclude that `the record has been fully developed and further administrative proceedings would serve no useful purpose.'"
Because Dr. Hanley's January 2017 opinion was contradicted by Dr. Lebeau's opinion, defendant argues that the ALJ should be given an opportunity to resolve this conflict. As for Dr. Curns' report, defendant points out that Dr. Curns did not make any specific functional limitations, and thus defendant contends that the ALJ needs to address how Dr. Curns' findings might be reconciled with Dr. Lace's opinion.
Had the ALJ only erred as to Dr. Curns' report, the court would agree with defendant that further development of the record would be helpful. But, the ALJ also erred as to Dr. Hanley's January 2017 report. As to Dr. Hanley's January 2017 report, no further development of the record is necessary. Dr. Hanley opined that plaintiff's impairments would cause him to miss a good deal of work. Specifically, in his January 2017 opinion, Dr. Hanley opined that plaintiff would be unable to work when having a headache and that he would be absent from work more than four times a month because of his headaches.
Third, in order for a remand for benefits to be appropriate, the court "must conclude that `if the improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand.'"
Plaintiff argues that the ALJ would be required to find him disabled if Dr. Hanley's January 2017 opinion were credited as true. Because Dr. Hanley opined that plaintiff could not be around fumes, an opinion that is supported by Dr. Martino's note that diesel fumes are a trigger for his headaches, plaintiff argues that there would no work for him pursuant to SSR 85-15. SSR 85-15 provides, in relevant part, that "[w]here an individual can tolerate very little noise, dust, etc., the impact on the ability to work would be considerable because very few job environments are entirely free of irritants, pollutants, and other potentially damaging conditions."
But, SSR 85-15 does not establish that plaintiff would be disabled if a limitation were added to his RFC that he could never be around fumes in the workplace. There is no evidence currently in the record that an individual with such a limitation would be disabled.
Nonetheless, if Dr. Hanley's January 2017 opinion is credited as true, the record, taken as a whole, leaves not the slightest uncertainty that plaintiff would be disabled. Dr. Hanley opined that plaintiff would miss at least four days of work each month. Weiss testified that if a person has two or more "unscheduled absences" per month, "the person's not going to retain employment."
But, "even if all three requirements are met," which they are here, 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.'"
The Commissioner's final decision is reversed and this matter is remanded for an award of benefits.