Maltsberger v. Astrue

Filing 30

ORDER that The ALJ's decision is REVERSED; Defendant's Motion to Remand to the Social Security Administration pursuant to sentence four of 42 U.S.C. § 405(g) is GRANTED (Doc. 27); and The Clerk of the Court is directed to REMAND back to the Social Security Administration pursuant to 42 U.S.C. § 405(g), sentence four, for payment of benefits. Signed by Judge G Murray Snow on 6/6/11. (KMG)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 ) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of Social) ) Security, ) ) Defendant. ) ) Robert A. Maltsberger, 9 10 11 12 13 14 No. CV-10-1923-PHX-GMS ORDER 15 16 Presently before the Court is a Motion to Remand pursuant to sentence four of 42 17 U.S.C. § 405(g), filed by Defendant Michael J. Astrue, Commissioner of Social Security. 18 (Doc. 27). For the reasons set forth below, the Court grants Defendant’s Motion and remands 19 this matter to the Commissioner for payment of benefits. 20 BACKGROUND 21 On June 30, 2005, claimant Robert Maltsberger prospectively filed applications for 22 Disability Insurance Benefits and Supplement Security Income, alleging a disability onset 23 date of July 1, 2001. (R. at 18). The claim was denied initially on October 21, 2005 and upon 24 reconsideration on March 29, 2007. Plaintiff filed a timely request for a hearing, and, on 25 December 1, 2008, an Administrative Law Judge (“ALJ”) conducted a hearing on Plaintiff’s 26 claims. The claimant amended his alleged disability onset date to April 21, 2005. 27 In a decision dated June 25, 2009, the ALJ found Plaintiff had not engaged in 28 substantial gainful activity since the alleged onset of his disability on April 21, 2005, and that 1 he had the following severe impairments: chronic obstructive pulmonary disease, asthma, 2 diabetes, alcohol abuse and tobacco dependence, and osteoporosis resulting from steroid use. 3 (R. at 20). At step three, the ALJ found that Plaintiff “does not have an impairment or 4 combination of impairments that meets or medically equals one of the listed impairments in 5 20 C.F.R. Part 404, Subpart P, Appendix 1.” (Id.). The ALJ further determined that “the 6 claimant has the residual functional capacity to perform a limited range of sedentary work 7 as defined in 20 C.F.R. 404.” (R. at 21). Based on the vocational expert’s testimony, the ALJ 8 found that while Plaintiff could not return to his past relevant work, he could perform other 9 work existing in significant numbers in the national economy, including the sedentary jobs 10 of assembly production worker, office helper, and inspector/tester/sorter. (R. at 25–26). Thus, 11 the ALJ concluded he “was not under a disability, as defined in the Social Security Act, at 12 any time from April 21, 2005 through the date of this decision.” (R. at 26). The ALJ’s 13 decision became the final decision of the Commissioner when the Appeals Council denied 14 Plaintiff’s request for review. (R. at 6–9). 15 The Commissioner concedes that the ALJ’s step-three analysis of whether Plaintiff 16 has an impairment that meets or medically equals an impairment listed at 20 C.F.R. pt. 404, 17 subpt. P, app. 1 was insufficient. Specifically, the Commissioner “concedes that the record 18 contains evidence which may support a finding that Plaintiff met one or more listings,” 19 including 3.02(C)(2) (chronic pulmonary insufficiency) and 3.03(B) (asthma). (Doc. 28 at 20 5). Nevertheless, neither the examining physician nor the State agency doctor found that 21 either listing had been met. Thus, Commissioner seeks remand for further administrative 22 proceedings to determine whether Plaintiff met the heightened standard for disability at step 23 three by consulting a medical expert, if necessary. (Id.). 24 Further, the Commissioner also concedes that the ALJ erred in evaluating Dr. Jean 25 Weaver’s opinion that Plaintiff was unable to work full-time. In her report, Dr. Weaver, a 26 treating physician, failed to “reconcile her opinion that Plaintiff could sit, stand, and walk for 27 a full eight-hour day with her opinion that Plaintiff was unable to complete an eight-hour 28 workday or 40-hour workweek.” (Doc. 28 at 6) (citing R. at 208–09). Dr. Weaver also failed -2- 1 to “address information in her own treatment notes indicating that Plaintiff continued to work 2 despite his impairments.” (Id.). The Commissioner contends that the ALJ erred by adopting 3 Dr. Weaver’s opinion regarding Plaintiff’s ability to sit, stand/walk, and perform postural 4 activities without discussing Dr. Weaver’s opinion that due to shortness of breath at rest, 5 Plaintiff was unable to complete an eight-hour workday or 40-hour workweek. (Id.). The 6 Commissioner requests that on remand the ALJ be instructed to reevaluate the medical 7 source opinions on record, including Dr. Weaver’s opinion. While both parties agree that the 8 ALJ erred, they disagree over the proper remedy, namely whether Maltsberger’s case should 9 be remanded pursuant to sentence four1 for an award of benefits, which Plaintiff contends 10 would be proper, or for further administrative proceedings. DISCUSSION 11 12 In Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000), the Ninth Circuit set forth 13 a test to determine when it is appropriate to remand for benefits versus further administrative 14 proceedings. Remand for further administrative proceedings is appropriate if enhancement 15 of the record would be useful. See id. Conversely, where the record has been developed fully 16 and further administrative proceedings would serve no useful purpose, the district court 17 should remand for an immediate award of benefits. See Smolen v. Chater, 80 F.3d 1273, 18 1292 (9th Cir. 1996); Varney v. Sec’y of Health & Human Servs., 859 F.2d 1396, 1399 (9th 19 Cir. 1988). More specifically, the district court should credit evidence that was rejected 20 during the administrative process and remand for an immediate award of benefits if (1) the 21 ALJ failed to provide legally sufficient reasons for rejecting the evidence; (2) there are no 22 outstanding issues that must be resolved before a determination of disability can be made; 23 and (3) it is clear from the record that the ALJ would be required to find the claimant 24 disabled were such evidence credited. Harman, 211 F.3d at 1178; see also McCartey v. 25 26 27 28 1 Sentence four orders are made pursuant to the following statutory language: “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). -3- 1 Massanari, 298 F.3d 1072, 1076–77 (9th Cir. 2002); Smolen, 80 F.3d at 1292. 2 At step three of the sequential evaluation process, the ALJ was required to determine 3 whether Plaintiff’s impairments, or combinations thereof, met or equaled an impairment 4 listed in the regulations. One who claims upon review that the ALJ erred in not determining 5 and finding that a claimant’s combined impairments met a listing must offer a theory of how 6 the impairments combined to equal a listed impairment and point to evidence that shows that 7 his combined impairments equal a listed impairment. Lewis v. Apfel, 236 F.3d 503, 514 (9th 8 Cir. 2001). Generally, specific medical findings are needed to support the diagnosis and 9 establish the required level of severity. 20 C.F.R. §§ 404.1525(c)-(d), 416.925(c). Plaintiff 10 argues that the ALJ erred in step three by failing to address whether his impairments met or 11 equaled Listing 3.02(C)(2), chronic pulmonary insufficiency, and 3.02(B), asthma. The 12 Commissioner concedes that the ALJ failed to provide legally sufficient reasons, at step 13 three, for rejecting evidence related to whether Plaintiff’s condition met or medically equaled 14 a listed impairment. Even more, the Commissioner concedes that the “record contains 15 evidence which may support a finding that Plaintiff met one or more listings,” including 16 Listings 3.02(C)(2) and 3.03(B). (Doc. 28 at 5). 17 Listing 3.02(C)(2) requires: 18 C. Chronic impairment of gas exchange due to clinically documented pulmonary disease. With: 19 2. Arterial blood gas values of PO2 and simultaneously determined PCO2 measured while at rest (breathing room air, awake and sitting or standing) in a clinically stable condition on at least two occasions, three or more weeks apart within a 6month period, equal to or less than the values specified in the applicable table III-A or III-B or III-C. 20 C.F.R. Subpt. P, App. 1, 3.02(C)(2). 20 21 22 23 The tables associated with this Listing (Doc. 29, Ex. 1)2 indicate that an individual, with 24 findings occurring “at least two occasions, three or more weeks apart within a 6-month 25 26 2 27 28 Because Plaintiff’s arterial blood gas studies were performed at testing sites in Lake Havasu City, Arizona and Parker, Arizona, both situated at elevations less than 3,000 feet above sea level, Table III-A is appropriate. -4- 1 period” would meet the requirements of Listing 3.02(C)(2) in at least these two instances: 2 (1) a PCO2 measurement of 30 mm Hg or below with a simultaneous PO2 measurement of 3 65 mm Hg or less; and (2) with a PCO2 measurement of 40 mm Hg or above with a 4 simultaneous PO2 measurement of 55 mm Hg or less. Id. Plaintiff meets the listings as to the 5 PCO2 and PO2 measurements. See R. at 538 (PCO2 = 29.7 mm Hg; PO2 = 54.2 mm Hg), 399 6 (PCO2 = 41.9 mm Hg; PO2 = 52.2 mm Hg). Plaintiff also satisfies the duration requirement 7 specified in the Listing because his first examination took place on January 15, 2006 and the 8 second on February 14, 2006, nearly a month later. (R. at 538, 399). Thus, the two 9 examinations are at least three weeks apart yet within a six-month period. Further, the 10 evidence reveals that Plaintiff met the requirements of Listing 3.02(C)(2) as of his alleged 11 disability onset date of April 21, 2005. Plaintiff had listing-level blood gas values on January 12 8, 2005, February 17, 2005, February 18, 2005, and April 21, 2005. (R. at 494). 13 Nevertheless, the ALJ’s complete explanation at step three states: “The Disability 14 Determination Service (DDS) determined that the claimant’s impairments do not meet the 15 criteria of any of the listed impairments. No treating or examining physician has mentioned 16 findings equivalent in severity to the criteria of any listed impairment. The administrative law 17 judge has reviewed the records and finds that the claimant does not have impairments which 18 meet or equal the requirements of any section of Appendix 1.” (R. at 20–21). The Court’s 19 review of the record indicates that the examining physician, Dr. Ray Hughes, notes in his 20 report that Plaintiff’s January 2006 examination “suggest[s] listing level, but only 1 trial.” 21 (R. at 138). However, the record indicates that Plaintiff underwent a second examination in 22 February 2006, and that exam also satisfied the listing level. See R. at 399. In his written 23 decision, the ALJ fails to consider this evidence or to provide any explanation for why the 24 arterial blood gas studies should be disregarded. Based on the foregoing, the Court finds that 25 the ALJ erred in concluding that Plaintiff did not meet or equal Listing 3.02(C)(2). 26 Additionally, Listing 3.03(B) requires: 27 Asthma. 28 -5- 1 2 3 B. With: Attacks (as defined in 3.00C)3, in spite of prescribed treatment and requiring physician intervention, occurring at least once every 2 months or at least six times a year. Each in-patient hospitalization for longer than 24 hours for control of asthma counts as two attacks, and an evaluation period of at least 12 consecutive months must be used to determine the frequency of attacks. 20 C.F.R. pt. 404, subpt. P, app. 1. 4 Plaintiff contends that he meets the criteria of Listing 3.03(B) as a result of several inpatient 5 hospitalizations. Indeed, the record establishes that Plaintiff was hospitalized on an inpatient 6 basis for treatment of asthma at least three different times during a 12-month period 7 commencing April 27, 2005. These include: (1) inpatient hospitalization from April 27, 2005 8 through May 3, 2005 for “asthma exacerbation” and “left lower lobe pneumonia,” which was 9 treated, in part, with IV antibiotics, albuterol SVN, and IV Solu-Medrol, which can be used 10 as a bronchodilator. (R. at 757–792); (2) inpatient hospitalization from December 14, 2005 11 through December 22, 2005 for “exacerbation of asthma chronic obstructive pulmonary 12 disease”, which was treated, in part, with IV antibiotics and IV Solu-Medrol (R. at 481–84); 13 and (3) inpatient hospitalization from January 24, 2006 through January 30, 2006 for 14 “exacerbation of underlying asthma/chronic obstructive pulmonary disease” and “anaerobic 15 pneumonia”, which was treated, in part, with IV antibiotics and IV Solu-Medrol. (R. at 16 540–43). Because each inpatient hospitalization lasting for longer than 24 hours counts as 17 two episodes towards the requisite six episodes in a 12-month period, Plaintiff’s three 18 hospitalizations satisfy the requirements of Listing 3.03(B).4 The ALJ’s failure to consider 19 this evidence constitutes legal error. When the hospitalization data is credited, it becomes 20 clear that Plaintiff’s condition is sufficient to meet or equal Listing 3.03(B). 21 Because the ALJ failed to provide legally sufficient reasons for rejecting relevant 22 23 3 24 25 26 Listing 3.00C defines “attacks” as “prolonged symptomatic episodes lasting one or more days and requiring intensive treatment, such as intravenous bronchodilator or antibiotic administration or prolonged inhalational bronchodilator therapy in a hospital, emergency room or equivalent setting.” 4 27 28 Beyond these three incidents of hospitalization, Plaintiff was also hospitalized for his asthma from September 18–24, 2005 (R. at 317), January 15, 2006 (R. at 501–03), February 13, 2006 (R. at 414), and February 14–17, 2006 (R. at 362–63). -6- 1 evidence related to Plaintiff’s chronic pulmonary insufficiency and asthma, the Court credits 2 the evidence as true. See Harman, 211 F.3d at 1179; Smolen, 80 F.3d at 1281–83; Varney, 3 859 F.2d at 1398. With respect to the other two prongs of the Harman inquiry, the Court 4 concludes that there are no outstanding issues that must be resolved before a determination 5 of disability can be made and that it is clear from the record that the ALJ would be required 6 to find the claimant disabled if the evidence is credited.5 See Harman, 211 F.3d at 1178. 7 Because the Court finds Plaintiff disabled at step three of the sequential evaluation process, 8 it is not necessary to discuss the Commissioner’s request for remand on grounds that the 9 ALJ erred in his evaluation of Dr. Jean Weaver’s opinion regarding Plaintiff’s ability to 10 work. (Doc. 28 at 6–7). Consideration of Plaintiff’s ability to engage in past relevant work 11 or other work existing in significant numbers in the national economy is only relevant at 12 steps four and five of the five-step sequential evaluation process, as set forth in 20 C.F.R. § 13 404.1520(a)(4). See Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 1995) (“Conditions 14 contained in the ‘Listing of Impairments’ are considered so severe that they are irrebuttably 15 presumed disabling, without any specific finding as to the claimant’s ability to perform his 16 past relevant work or any other jobs.” (citing 20 C.F.R. § 404.1520(d))). Thus, there are no 17 remaining issues that must be resolved by further administrative proceedings. The record is 18 fully developed and additional proceedings would serve no useful purpose. See Benecke v. 19 Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). 20 In cases where it is evident from the record that benefits should be awarded, 21 remanding for further proceedings would needlessly delay effectuating the primary purpose 22 of the Social Security Act, “to give financial assistance to disabled persons because they are 23 without the ability to sustain themselves.” Gamble v. Chater, 68 F.3d 319, 322 (9th Cir. 24 1995) (internal quotation marks and citation omitted). As a result, the Court reverses and 25 remands for payment of benefits. See Lester, 81 F.3d at 834 (stating that, when evidence that 26 5 27 28 If step 3 is answered affirmatively, that the applicant meets or equals the severity requirements of a listed impairment, then the applicant is conclusively deemed to be disabled and the sequential evaluation process ends. 20 C.F.R. § 404.1520(a) and (d). -7- 1 was improperly rejected demonstrates that the claimant meets or equals the Listing, then the 2 court should remand for payment of benefits; Smolen, 80 F.3d at 1292 (same); Ramirez v. 3 Shalala, 8 F.3d 1449, 1455 (9th Cir. 1993) (same). 4 CONCLUSION 5 The ALJ committed legal error by failing to provide legally sufficient reasons for not 6 finding Plaintiff disabled at step three. The record establishes that if evidence of Plaintiff’s 7 arterial blood gas studies and his episodes of hospitalization as a result of his pulmonary 8 condition are credited as true, which must be done in the instant case, the Plaintiff’s 9 impairment definitively meets or medically equals the criteria for chronic pulmonary 10 insufficiency (3.02(C)(2)) and asthma (3.03(B)). Because the record has been developed fully 11 and further administrative proceedings would serve no useful purpose, remand for an 12 immediate award of benefits is appropriate. 13 IT IS HEREBY ORDERED that: 14 1. The ALJ’s decision is REVERSED; 15 2. Defendant’s Motion to Remand to the Social Security Administration 16 17 18 19 pursuant to sentence four of 42 U.S.C. § 405(g) is GRANTED (Doc. 27); and 3. The Clerk of the Court is directed to REMAND back to the Social Security Administration pursuant to 42 U.S.C. § 405(g), sentence four, for payment of benefits. Dated this 6th day of June, 2011. 20 21 22 23 24 25 26 27 28 -8-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?