Troutman v. Astrue

Filing 16

ORDER Defendant's decision denying benefits is reversed. The case is remanded for further proceedings consistent with this order. Signed by Judge David G Campbell on 9/7/12. (TLJ)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kenneth Troutman, No. CV-12-00325-PHX-DGC Plaintiff, 10 11 v. 12 ORDER Michael Astrue, Commissioner, Social Security Administration, 13 Defendant. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff Kenneth Troutman filed an application for disability benefits on May 27, 2009. Tr. 90-98. His claim was denied initially on July 22, 2009 (Tr. 63-65), and upon reconsideration on October 7, 2009 (Tr. 67-69). Following an administrative hearing on January 20, 2011 (Tr. 30-45), the administrative law judge (“ALJ”) denied Plaintiff’s claims on February 16, 2011 (Tr. 51-59). The Appeals Council denied Plaintiff’s request for review (Tr. 1-3), making the ALJ’s decision the final decision for purposes of judicial review. See 20 C.F.R. § 422.210(a). Plaintiff commenced this action pursuant to 42 U.S.C. § 405(g). Doc. 13. The parties have not requested oral argument. For reasons that follow, the Court will remand for further proceedings. I. Background. Plaintiff completed high school, served in the Navy during the Vietnam War, and worked for 23 years as a metal fabricator. Tr. 118, 150. He suffered a left leg fracture in 1978 that left him with permanent knee damage. Tr. 34, 265. Due to the severity of the 1 knee injury, his treatment was limited to nonsurgical bone malunion. Tr. 265. Plaintiff 2 also suffers from post-traumatic stress disorder (“PTSD”) (Tr. 160, 202-06) and social 3 isolation (Tr. 200). 4 Plaintiff retired from his metal fabricator position on January 2, 2002. Tr. 150. 5 On May 5, 2009, the Department of Veterans Affairs assigned Plaintiff service 6 connection for PTSD with an evaluation of 50 percent, effective February 19, 2008 7 (Plaintiff’s “VA rating”). Tr. 86-89. Although Plaintiff did not experience “many of the 8 symptoms associated with a 50 percent evaluation,” the examiner nonetheless concluded 9 that he was “fully socially impaired.” Tr. 88. Veterans Affairs assigns an evaluation of 10 50 percent for “occupational and social impairment with reduced reliability and 11 productivity[.]” Tr. 88. “A higher evaluation of 70 percent is not warranted unless there 12 are deficiencies in most areas, such as work, school, family relations, judgment, thinking, 13 or mood[.]” Tr. 89. Plaintiff alleges a disability onset date of December 31, 2007, which coincides 14 15 with his date last insured.1 Doc. 13, at 6; Doc. 14, at 2; Tr. 92. 16 II. 17 Standard of Review. Defendant’s decision to deny benefits will be vacated only if it is not supported by 18 substantial evidence or is based on legal error. Robbins v. Soc. Sec. Admin., 19 466 F.3d 880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere 20 scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind 21 might accept as adequate to support a conclusion.” Id. To determine whether substantial 22 evidence supports Defendant’s decision, the Court must review the administrative record 23 as a whole, weighing both the evidence that supports the decision and the evidence that 24 detracts from it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). If there is 25 sufficient evidence to support Defendant’s determination, the Court cannot substitute its 26 1 27 28 In order to qualify for disability insurance benefits, a claimant must establish a disability on or before his date last insured. See 20 C.F.R. §§ 404.101, 404.120, 404.315; see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (a claimant “must establish a disability on or prior to” the date last insured for disability benefits). -2- 1 own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). 2 III. Analysis. 3 Plaintiff claims that the ALJ erred by (1) failing to find his impairments severe, 4 (2) failing to make a required inference or, alternatively, failing to call on a medical 5 advisor to assist in determining Plaintiff’s disability onset date, and (3) failing to evaluate 6 multiple medical opinions. Doc. 13, at 2. 7 A. Severity of Plaintiff’s Impairments. 8 The ALJ found that “there is insufficient evidence demonstrating that the 9 claimant’s limitations were severe prior to his last date insured.” Tr. 56. Plaintiff argues 10 that this finding was erroneous given the evidence in the record. Doc. 13, at 4-5. 11 Plaintiff bears the burden of showing a severe impairment. Bowen v. Yuckert, 482 U.S. 12 137, 146 n.5 (1987). 13 An impairment or combination of impairments is “severe” within the meaning of 14 the Social Security Act if it significantly limits an individual’s ability to perform basic 15 work activities. See 20 C.F.R. §§ 404.1508, 404.1521. Basic work activities include 16 responding appropriately to supervision, coworkers, and usual work situations; dealing 17 with changes in a routine work setting; understanding, carrying out, and remembering 18 simple instructions; and using judgment. 20 C.F.R. § 404.1521(b)(3)-(6). 19 At his administrative hearing, Plaintiff reported constant leg pain at a level seven 20 on a scale of zero to ten, and indicated that his pain worsened with physical activity. 21 Tr. 38; Doc. 13, at 5. A June 23, 2009 leg MRI showed distortion of Plaintiff’s left tibia 22 from his old, healed leg fracture, some fluid in the soft tissue not involving the bone 23 marrow, prominent left knee joint effusion with a prominent lobular Baker’s cyst, and a 24 suggestion of osteoarthritis of the left knee. Tr. 260-61; cf. Doc. 13, at 5 (“The June 23, 25 2009 leg MRI tells a story of long standing and degenerative disease resulting in chronic 26 inflammation and tissue destruction”). 27 Vandenheede describing bone-on-bone degenerative joint disease of Plaintiff’s left knee. 28 Tr. 264; Doc. 13, at 5. Plaintiff claims that these symptoms and diagnosis support a Plaintiff also cites a note by Dr. Laura -3- 1 finding of severe impairment relating to his left leg. Doc. 13, at 5. 2 In finding that Plaintiff’s knee pain was not severe, the ALJ noted that, despite 3 Plaintiff’s allegations of worsening knee pain since his injury in 1978, Plaintiff’s work 4 history shows that he was able to perform medium to heavy work on a consistent basis 5 for over 23 years, until January 2, 2002. 6 background). Although approximately six years elapsed from the time Plaintiff stopped 7 working until his date last insured, the ALJ noted that Plaintiff’s daily activities were 8 inconsistent with his allegations of worsening knee pain . Tr. 56. In July 2008, Plaintiff 9 reported that he hauled 800 gallons of water per day to keep his trees alive and to have 10 water for his house. Tr. 182. In October 2008, Plaintiff reported that he was in the 11 process of building a cabin on his property. Tr. 177. In November 2008, Plaintiff 12 reported that he passed time by cutting firewood. Tr. 176. The ALJ also took note of the 13 paucity of objective evidence and treatment notes prior to December 2007 showing that 14 Plaintiff suffered severe left knee pain. While February 2010 x-rays of his left knee 15 showed medial degenerative joint disease, earlier studies only showed knee effusion. 16 Tr. 56, 208-09 (June 23, 2009 MRI). Tr. 56; see Tr. 150 (Plaintiff’s work 17 With respect to his mental limitations, Plaintiff claims that he suffers from hyper 18 vigilance, exaggerated startle response, anger, road rage, sleep disturbances, fear, anxiety, 19 forgetfulness, and flashbacks. Doc. 13, at 5 (citing Tr. 196, 200, 205). He also suffers 20 from social isolation. Tr. 200. He lives “off the grid” and has limited interpersonal 21 contacts. Doc. 13, at 5; see Tr. 204 (Plaintiff lives “out of town and off the road,” and 22 uses solar and wind power for electricity.) Plaintiff argues that these symptoms support a 23 finding of severe impairment as it relates to his PTSD. 24 The ALJ found that although Plaintiff alleged longstanding symptoms of PTSD 25 since his involvement in the Vietnam War, he made no effort to seek mental health 26 services, participate in counseling, or take psychiatric medication prior to December 31, 27 2007. Tr. 56-57. Although Plaintiff alleged that he was unable to afford treatment until 28 after that date, he also testified that upon retiring in 2002 he was paid a pension. Tr. 57. -4- 1 The ALJ concluded that it was not for lack of financial resources that Plaintiff did not 2 seek psychiatric treatment. Id. When Plaintiff did seek treatment in 2008, his progress 3 notes indicated likely “longstanding” PTSD, but with only “mild” symptoms. Tr. 285; 4 see 20 C.F.R. § 404.1520a(d)(1). 5 suffered as a result of his PTSD, the ALJ noted that he worked for 23 years without 6 incident. Tr. 57. Although Plaintiff alleged social isolation, the ALJ noted that he had 7 lunch with the captain of his swift boat over the Fourth of July weekend in 2009 and that 8 “it was an enjoyable experience,” that he spent time with his family, including 9 grandchildren, that he has a “couple [of] neighbor friends” and friends who “do visit 10 pretty often,” that he talks to former co-workers when he sees them, that he feels a strong 11 sense of responsibility and attachment to others, and that he has a girlfriend and is 12 capable of maintaining a long-term relationship. Id.; see Tr. 171, 182, 195, 205. In spite of the symptoms that Plaintiff allegedly 13 The ALJ’s decision that Plaintiff’s knee pain and PTSD symptoms are not severe 14 is supported by substantial evidence. Young, 911 F.2d at 184. The medical record does 15 not establish any work-related limitations as a result of Plaintiff’s physical or mental 16 impairments. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 17 2008) (upholding nonsevere finding where the medical evidence did not establish any 18 work-related limitations as a result of an impairment). 19 B. Disability Onset Date. 20 Plaintiff alleges that, pursuant to Social Security Regulation 83-20 (“SSR 83-20”), 21 the ALJ erred by failing to make the required inference of Plaintiff’s disability onset date, 22 or alternatively, by not calling on a medical advisor to help determine the onset date. 23 Doc. 13, at 5-7. Defendant responds that SSR 83-20 is inapplicable because a finding of 24 disability is a prerequisite to the requirement that the ALJ determine the onset date of that 25 disability, and there has been no finding of disability. Doc. 14, at 14. See Sam v. Astrue, 26 550 F.3d 808, 810 (9th Cir. 2008) (because ALJ found petitioner Sam was not disabled at 27 any time through the date of the decision, the question of when he became disabled did 28 not arise and the procedures prescribed in SSR 83-20 did not apply); Scheck v. Barnhart, -5- 1 357 F.3d 697, 701 (7th Cir. 2004) (“The ALJ did not find that Scheck was disabled, and 2 therefore, there was no need to find an onset date. In short, SSR 83-20 does not apply.”). 3 Plaintiff does not address the applicability of SSR 83-20 in his reply. 4 suggests that because the Department of Veterans Affairs found him disabled by 50 5 percent effective February 19, 2008, and because the record is void of intervening events 6 between his December 31, 2007 date last insured and February 19, 2008, he likely 7 experienced the onset of disabling PTSD prior to his date last insured. Doc. 15, at 3. Instead, he 8 The ALJ did not commit legal error by not inferring a disability onset date or by 9 not calling a medical expert to help establish an onset date. SSR 83-20 is inapplicable 10 because the ALJ did not find that Plaintiff was disabled at any time from the alleged 11 disability onset date through the date last insured.2 12 properly considered Plaintiff’s VA rating in her decision, pursuant to McCartey v. 13 Massanari, 298 F.3d 1072, 1075-76 (9th Cir. 2002) (“[A]lthough a VA rating of 14 disability does not necessarily compel the SSA to reach an identical result, the ALJ must 15 consider the VA’s finding in reaching [her] decision.”) (citation omitted). The ALJ 16 considered Plaintiff’s VA rating of 50% disabled, but also noted that the rating dates 17 from February 19, 2008, after Plaintiff’s date last insured. Tr. 56. The ALJ did not 18 commit legal error by concluding that Plaintiff’s VA rating was not dispositive of his 19 alleged disability for purposes of SSA benefits, which requires that Plaintiff establish 20 disability on or before his date last insured. See McCartey, 298 F.3d at 1076 (“Because 21 the VA and SSA criteria for determining disability are not identical . . . the ALJ may give 22 less weight to a VA disability rating if [she] gives persuasive, specific, valid reasons for 23 doing so that are supported by the record.”). Tr. 59. Furthermore, the ALJ 24 C. Medical Opinions. 25 The ALJ evaluated only the medical opinion of Dr. Vandenheed. Tr. 58. Plaintiff 26 claims that the ALJ erred by failing to consider the opinions of his consultative 27 2 28 December 31, 2007 is both the alleged disability onset date and the date last insured. Tr. 59, 92. -6- 1 examiners, Dr. Ronald Teed and Dr. Joseph Ring. Doc. 13, at 8. Dr. Teed opined in 2 September 2010 that Plaintiff had moderate difficulties with attention, concentration for 3 extended periods, and interacting appropriately with others and with supervisors. 4 Tr. 229. Dr. Teed’s notes indicate that Plaintiff reported working as a high pressure 5 welder for 23 years before he got “burned out.” Tr. 226. Dr. Ring examined Plaintiff in 6 September 2010. He opined that Plaintiff could stand or walk for two hours and sit for 7 six to eight hours in an eight-hour work day, did not need an assistive device, could lift 8 up to 50 pounds occasionally and 25 pounds frequently, and would be occasionally 9 restricted in climbing, stooping, kneeling, crouching, and crawling, and was unrestricted 10 in reaching, handling, fingering, and feeling. Tr. 235-36. Defendant argues that the 11 ALJ’s omission of Dr. Teed’s and Dr. Ring’s opinions was harmless because her reasons 12 for discounting Dr. Laura Vandenheed’s opinion (which Plaintiff does not challenge) 13 apply equally to the opinions of Dr. Ring and Dr. Teed. Doc. 14, at 13. 14 Social Security Regulations provide that the ALJ will evaluate every medical 15 opinion received, regardless of its source. 20 C.F.R. §§ 404.1527(c), 416.927(c). While 16 “[a] decision of the ALJ will not be reversed for errors that are harmless,” Burch v. 17 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005), the Court cannot consider an error harmless 18 “unless it can confidently conclude that no reasonable ALJ, when fully crediting the 19 testimony, could have reached a different disability determination,” Stout v. Comm’r, 20 Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006). The Court cannot so conclude, 21 especially considering that Dr. Vandenheed’s opinion extended only to Plaintiff’s 22 physical limitations, not his mental limitations. See Tr. 58, 266-68. Consequently, the 23 ALJ’s failure to evaluate the medical opinions of Drs. Ring and Teed cannot be viewed as 24 harmless error.3 25 3 26 27 28 Plaintiff argues that the vocational expert, Mr. Kelman, testified that a hypothetical person with limitations based on Dr. Teed’s opinion could not perform any work in the national economy. Doc. 13, at 8. The Court notes that Mr. Kelman testified only that those limitations “would preclude past relevant work or work for which [the hypothetical person] would have transferrable skills.” Tr. 43. Furthermore, Mr. Kelman’s testimony is not dispositive of Plaintiff’s disability determination because the -7- 1 IV. Remand. 2 Remand for further proceedings is appropriate where there are outstanding issues 3 that must be resolved before a determination can be made and it is not clear from the 4 record that the ALJ would be required to find the claimant disabled if all the evidence 5 were properly evaluated. See Vasquez v. Astrue, 572 F.3d 586, 593 (9th Cir. 2009). 6 Here, it is not clear that Plaintiff’s impairments would be severe, or that he would 7 ultimately be found disabled, if all of the medical evidence were considered. On remand, 8 the ALJ should evaluate the opinions of Drs. Teed and Ring, as well as the other medical 9 opinions in the record. 10 IT IS ORDERED: 11 1. Defendant’s decision denying benefits is reversed. 12 2. The case is remanded for further proceedings consistent with this order. 13 Dated this 7th day of September, 2012. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALJ did not reach that step of the sequential evaluation process. The ALJ’s analysis terminated at step two because she found that Plaintiff’s impairments were not severe. See 20 C.F.R. § 404.1520(a)(4) (“If we can find that you are disabled or not disabled at a step, we make our determination or decision and we do not go on to the next step.”); § 404.1520(a)(4)(ii) (“At the second step, we consider the medical severity of your impairment(s). If you do not have a severe medically determinable physical or mental impairment . . . we will find that you are not disabled.”). -8-

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