Dahlstrom v. Astrue

Filing 25

ORDER ADOPTING 20 REPORT AND RECOMMENDATIONS. IT IS FURTHER ORDERED that the Commissioners final decision in this matter is REMANDED for further proceedings consistent with this Order. The Clerk of Court is instructed to enter judgment accordingly and close this case.. Signed by Judge David C Bury on 08/25/11. (LMF)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

Lance C. Dahlstrom,

)
)
Plaintiff,
)
v.
)
)
Michael J. Astrue,
)
)
Defendant.
)
)
_______________________________________ )

CV 10-192-TUC-DCB (JCG)

ORDER

This matter was referred to Magistrate Judge Jennifer C. Guerin, pursuant to the Rules
of Practice for the United States District Court, District of Arizona (Local Rules), Rule
(Civil) 72.1(a). On June 15, 2011, the Magistrate Judge issued a Report and
Recommendation (R&R). (Doc. 20.) She recommends denying the Plaintiff’s Motion for
Summary Judgment made in his Opening Brief to the Court. The Court accepts and adopts
the Magistrate Judge’s R&R in part and rejects it in part as the findings of fact and
conclusions of law of this Court. Specifically, the Court adopts the recommendation to not
consider Dr. Etehad as a treating physician and to affirm the Administrative Law Judge’s
(ALJ) decision to accordingly discount Dr. Etehad’s opinion that Plaintiff can not work.
The Court rejects the recommendation to affirm the denial of benefits, and the Court
remands the case to the Commissioner for further administrative proceedings.

24
STANDARD OF REVIEW
25

The duties of the district court in connection with a R&R by a Magistrate Judge are set

26

forth in Rule 72 of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The

27

district court may “accept, reject, or modify, in whole or in part, the findings or

28

recommendations made by the magistrate judge.” Fed.R.Civ.P. 72(b); 28 U.S.C. § 636(b)(1).
Where the parties object to a Report and Recommendation, “[a] judge of the [district] court

1

shall make a de novo determination of those portions of the [R&R] to which objection is

2

made.” 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140, 149-50 (1985). When no

3

objections are filed, the district court need not review the R&R de novo.

4

This Court's ruling is a de novo determination as to those portions of the R&R to which

5

there are objections. 28 U.S.C. § 636(b)(1)(C); Wang v. Masaitis, 416 F.3d 992, 1000 n. 13

6

(9th Cir.2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121-22 (9th Cir.2003) (en

7

banc). To the extent that no objection has been made, arguments to the contrary have been

8

waived. Fed. R. Civ. P. 72; see 28 U.S.C. § 636(b)(1) (objections are waived if they are not

9

filed within fourteen days of service of the Report and Recommendation), see also McCall

10

v. Andrus, 628 F.2d 1185, 1187 (9th Cir. 1980) (failure to object to Magistrate's report

11

waives right to do so on appeal); Advisory Committee Notes to Fed. R. Civ. P. 72 (citing

12

Campbell v. United States Dist. Court, 501 F.2d 196, 206 (9th Cir. 1974) (when no timely

13

objection is filed, the court need only satisfy itself that there is no clear error on the face of

14

the record in order to accept the recommendation)).

15

The parties were sent copies of the R&R and instructed that, pursuant to 28 U.S.C. §

16

636(b)(1), they had 14 days to file written objections. See also, Fed. R. Civ. P. 72 (party

17

objecting to the recommended disposition has fourteen (14) days to file specific, written

18

objections). The Plaintiff filed an Objection. The Court has considered the arguments in the

19

Plaintiff’s Objection, the Defendant’s Response, and the parties’ briefs relevant to the

20

objections raised by the Plaintiff.

21
22
23
24
25
26
27

OBJECTIONS
The Plaintiff objects to the finding in the R&R, accepting the ALJ’s conclusion that Dr.
Etehad’s opinion was not consistent and not supported by other medical evidence in the
record. Plaintiff submits it was not harmless error for the ALJ to fail to establish whether or
not the vocational expert’s (VE) opinion was in conflict with the Dictionary of Occupational
Titles (DOT). Plaintiff argues the Magistrate Judge erred in finding the ALJ gave clear and
convincing reasons for rejecting his testimony as only partially credible. Additionally, the

28
-2-

1

Plaintiff argues that new evidence presented to the Appeals Counsel further backs-up the

2

credibility of his testimony. In summary, the Plaintiff complains that the R&R picks and

3

chooses evidence from the record to support the ALJ’s decision and ignores contrary

4

evidence. He asks that the case be remanded for an award of benefits, or at least, it be

5

remanded for consideration of the new evidence and for a finding regarding any conflict

6

between the VE’s testimony and the DOT.

7

This case was decided at step five of the sequential-decision process because the

8

claimant does not have sufficient Residual Functional Capacity (RFC) to perform his past

9

work, which was very heavy, semi-skilled work such as carpentry, drywall and roofing, due

10

to a severe impairment, endocarditis with valve replacement, cardiomyopathy and brain

11

abscess, in combination with other moderate and slight impairments. At step five, the ALJ

12

concluded the Plaintiff has the RFC to perform “less than sedentary work,” (TR 17:

13

Decision at 6), and that jobs exist in significant numbers in the national economy that the

14

Plaintiff can perform. The ALJ denied Plaintiff disability benefits and the Appeals Council

15

affirmed. A timely appeal was made to this Court.

16

A denial of benefits should only be disturbed if it is not supported by substantial

17

evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050,

18

1054 (9th Cir.2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.2002). “Substantial

19

evidence” means “more than a mere scintilla, but less than a preponderance.” Bayliss v.

20

Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir.2005). “It is such relevant evidence as a

21

reasonable mind might accept as adequate to support a conclusion.” Burch v. Barnhart, 400

22

F.3d 676, 679 (9th Cir.2005) (internal quotation marks omitted). The Court reviews the

23

record as a whole, including evidence detracting from the decision as well as evidence

24

supporting the decision. Robbins v. Social Sec. Admin., 466 F.3d 880, 882 (9th Cir.2006);

25

Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir.1999). If the evidence is susceptible to

26

more than one rational interpretation, the one which supports the ALJ's decision prevails.

27

Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595,

28

599 (9th Cir.1999)).
-3-

1
2
3

Objections: Dr. Etehad’s Opinion; New Evidence, and Plaintiff’s credibility.
“The bottom line is that Plaintiff had infective endocarditis that led to two valve
replacements in May 2007. Two years later, his treating cardiologist concisely

4
5

summarized the Plaintiff’s course as follows: Mr. Dahlstrom has limited functional capacity
due to stenosis of his prosthetic aortic valve, with a concomitant tricuspid valve prosthesis.

6

He requires ongoing treatment for his congestive heart failure due to valvular heart disease
7

and history of hypertension. (Tr. 277).” (Objection at 4 (citing 3/26/09 Dr Faitelson’s
8
9
10

assessment), see also (TR 260: Dr. Faitelson’s notes (describing moderate stenosis in aortic
valve with mild stenosis in prosthetic tricuspid valve and trace pulmonic regurgitation/trace
tricuspid regurgitation/ trace aortic regurgitation)).

11
12
13
14
15
16

Nine months out from surgery, February 12, 2008, a state-agency physician reviewed
Plaintiff’s medical information, including state-agency physicians’ examination notes from
August 24, 2007, (TR 212-215), and functional capacity assessment from October, 2007,
(TR 217-225, 227-234), and “found that Plaintiff was expected to recover sufficiently by
April, 2008 that he could at least perform work at a sedentary level.” (R&R at 4) (citation
omitted).

17
18
19
20
21
22
23
24
25

On October 29, 2009, Dr. Etehad saw the Plaintiff and opined that he should not go back
to work due to sequelae from his brain abscess and cardiac condition.” Id. (citing TR 255).
Both the ALJ and the Magistrate Judge were unpersuaded by Dr. Etehad’s assessment and
found it contrary to other medical opinions in the record that the Plaintiff can perform
sedentary work. The Court agrees that Dr. Etehad should not be considered a treating
physician because, as the Magistrate Judge notes, he only treated the Plaintiff once and did
not have an on-going treatment relationship with the Plaintiff. (R&R at 11-13.)
The Court has reviewed Plaintiff’s medical records from his treating physicians, Dr.

26

Gonzales, a general practitioner, and Dr. Faitelson, the Plaintiff’s cardiologist. The Court

27

finds that the Magistrate Judge accurately summarized the record. Due to intravenous drug

28

use, the Plaintiff suffered abscesses in his brain and bacterial endocarditis (inflamation of the
-4-

1

heart valves), and ultimately received an artificial heart valve replacement in open heart

2

surgery in May, 2007. By June of 2007, his brain abscesses had decreased in size and no

3

new abnormalities were present. The artificial valve was functioning normally, (R&R at 2-

4

3) (citations omitted), but Plaintiff had a limited functional capacity due to the prosthetic

5

heart valve, supra (above Dr. Faitelson’s 3/26/09 assessment).

6

The record also clearly reflects that the Plaintiff suffered from chronic pain syndrome,

7

which was generally controlled by medication. (TR 242 (10/22/07 prescription Oxycodon-

8

Acetaminophen), TR 240 (12/12/07 prescription same and Chronic Pain Syndrome

9

diagnosis), TR 272 (2/12/08 same), TR 267 (2/17//09 same )). The ALJ clearly erred in

10

concluding that Plaintiff’s reports of “chronic pain” were not supported by the record. (TR

11

17: Decision at 6.)

12

Up to February 2009, the Plaintiff was also taking methadone for his heroin addiction.

13

Plaintiff reported that when he stopped taking methadone his pain increased and he was still

14

taking the Oxycodon-Acetaminophen. (TR 267 (Gonzales’ notes 2/17/09)). “Methadone is

15

indicated for relief of severe pain, detoxification treatment of narcotic addiction, and

16

temporary maintenance treatment of narcotic addiction.” Methadone: History and

17

Recommendations for Use in Analgesia, American Pain Society (APS Bulletin, Vo. 10, No.

18

5, September/October 2000).1 The ALJ failed to consider the effects on the Plaintiff’s

19

chronic pain syndrome from stopping the methadone and whether, thereafter, his pain

20

continued to be moderate and controlled by medication. Instead, the ALJ used the

21

divergence between the Plaintiff’s testimony at the hearing, March 27, 2009, and the

22

medical record prior to February 2009 as evidence that the Plaintiff was not credible

23

regarding the degree and pervasiveness of his symptoms. (TR 15: Decision at 4.)

24

The ALJ also found the Plaintiff’s testimony was not credible that if he reads even a few

25

lines it causes his vision to blur, which requires him to take 10 to 15 minutes to refocus his

26

eyes to regain his peripheral vision. (TR 34-35, 36-38.) The ALJ recognized that in

27
28

1

Available at http://www.ampainsoc.org/library/bulletin/sep00/upda1.htm.
-5-

1

February 2009, the Plaintiff did report blurred vision and that “he had seen an

2

ophthalmologist who found nothing wrong with his eyes.” (TR 16: Decision at 5.) But at

3

the time the ALJ issued the decision, there was no record of any other neurologically related

4

treatment. The ALJ found that even if the allegation of blurred vision was substantiated,

5

there was no evidence to link his blurred vision to his brain abscesses and no evidence that

6

there were additional restrictions on his functional ability above those already considered by

7

the ALJ. (TR 16-17: Decision at 5-6.)

8

The Plaintiff had an MRI in May, 2009, which he submitted to the Appeals Council,

9

along with a corresponding report written in September 2009 by Dr. Kerendian. As the

10

Magistrate Judge noted, this new evidence establishes that the blurred vision is related to

11

Plaintiff’s brain abscess. “The MRI showed ‘a parenchymal scar seen in the left occipital

12

pole demarcating the location of his prior hematoma’ and ‘a second area of gliosis [which]

13

represents old infarction or abscess cavity.’ (AR 284.) Gliosis is the proliferation of

14

astocytes (cells supporting neurons and contributing to the blood-brain barrier) in the central

15

nervous system after an injury to the brain. See Taber’s Cyclopedic Medical Dictionary 189,

16

886 (Donald Venes et al. eds. 2005, F.A. Davis, Co.). Dr. Kerendian observed ‘inferior

17

quadrant opia consistent with the occipital abscess.’ (AR 287.) Inferior quadrantopia is

18

blindness or diminished visual acuity in a lower fourth of the visual field. See Taber’s ,

19

supra 1833-34.” (R&R at 20 n. 6.) This is a functional limitation beyond that recognized by

20

the ALJ and considered by the VE, which was that “the blurred vision only affects his

21

reading small font type.” (TR 43: Hearing Transcript.)

22

Additionally, the Court rejects the ALJ’s conclusion that the Plaintiff’s test scores on the

23

academic test administered to him by Dr. Schonbrum are contrary to his testimony regarding

24

blurred vision. He tested at a tenth grade vocabulary and spelling level and a ninth grade

25

math level, but only tested at a fifth grade reading comprehension level. (TR 178:

26

Schonbrun, Ph.D. 3/10/2009 assessment.) Dr. Schonburm reported that the Plaintiff rubbed

27

his eyes frequently and that his reading was slow. The Court finds that the disparity

28

between the reading comprehension score and other scores is consistent with the Plaintiff’s
-6-

1

testimony that reading causes blurred vision, and he cannot read and comprehend simple

2

instructions like directions to set up a digital converter box or a gravy recipe. (TR 37-38:

3

Hearing Transcript.)

4

The Appeals Council should have remanded the case to the ALJ to consider the new

5

evidence linking Plaintiff’s claims of blurred vision to his brain abscesses and to consider

6

the Plaintiff’s testimony regarding his related limitations, which the ALJ had previously

7

found to not be credible.

8
9
10
11
12
13
14
15

Objection: Conflict between VE and DOT
It is undisputed that an ALJ is required to inquire of a VE on the record as to whether
the expert testimony is consistent with the occupational information supplied by the DOT.
SSR 00-4p. It is undisputed that the ALJ did not make such an inquiry, but the Defendant
asserts the error was harmless because in fact there is no conflict between the VE’s
testimony and the DOT. Because the Court finds there appears to be a conflict between the
VE’s testimony and the DOT, the case must be remanded to the ALJ to determine whether
the VE’s testimony is consistent with the definitions in the DOT and, if not, whether there is

16

a reasonable explanation for any inconsistencies. Massachi v. Astrue, 486 F.3d 1149 (2007)

17

(citing SSR 00-4p)).

18

“The Social Security Administration has taken administrative notice of the [DOT],
19
20
21
22
23
24
25
26
27

which is published by the Department of Labor and gives detailed physical requirements for
a variety of jobs.” Massachi, 486 F.3d at 1153 n. 8. “In making disability determinations,
the Social Security Administration relies primarily on the [DOT] for ‘information about the
requirements of work in the national economy.’” Id. at 1153 (quoting SSR 00-4p at *2). The
ALJ may also use testimony from a vocational expert (VE). Id. Evidence by a VE should
generally be consistent with the DOT, and while neither the DOT nor VE testimony trumps
the other when there is a conflict, it is incumbent on the ALJ to identify if a conflict exists
and then determine whether the VE’s explanation for the conflict is reasonable and whether
a basis exists for relying on the expert rather than the DOT. Id.

28
-7-

In this case, a VE was necessary because the ALJ found that the Petitioner’s functional

1
2

capacity was sedentary due to severe impairment related to the prosthetic heart valve and

3

was “less than sedentary,” (TR 17: Decision at 6, TR 18: Decision at 7), due to additional

4

moderate limitations of pain, miscellaneous heart conditions, occasional diarrhea and blurred

5

vision and a slight limitation due to anxiety. (TR 15: Decision at 4.) The VE testified that,

6

nevertheless, the Plaintiff would be capable of performing the requirements of representative

7

occupations such as a production assembler of which there are 1,071,230 jobs in the national

8

economy.

9

Plaintiff argues the DOT reflects that every production assembler job in the DOT is

10

characterized as either a light or medium exertional level. Defendant admits, “Production

11

assembly occupations vary greatly, requiring the entire range of physical exceptional

12

levels.” (D’s Response to Objections at 5.) The Magistrate Judge mistakenly reviewed

13

ONET information instead of the DOT provisions referenced by the Plaintiff. The ONET

14

information does not contain the DOT strength classifications, but is a collaborative

15

comprehensive database system designed to “move beyond the 60-year-old structure of the

16

Dictionary of Occupational Titles (DOT).” ONET (Occupational Information

17

Network):About the ONET Web Site.2 Because the Magistrate Judge found no conflicting

18

strength information in the ONET, she concluded that the “Plaintiff has failed to

19

demonstrate a conflict between the testimony of the vocational expert and the DOT.” (R&R

20

at 14.)

21

Plaintiff was, however, correct that DOT 706.687-10 Assembler, Production (any

22

industry) specifies a strength level of light, 737.684-034 Production assembler (ordanance)

23

specifies the same, and 809.684-010 Assembler, Production Line (struct. metal) specifies

24

that an assembler-fitter is medium. DOT.3 In its Response to Plaintiff’s Objection to the

25

R&R, the Defendant admits as much, but argues there are “some production assembly

26
27

2

Available at http://www.occupationalinfo.org/onet/about.html.

28

3

Available at http://www.occupationalinfo.org.
-8-

1

occupations [that] require only sedentary exertion, such as: lamp-shade assembler at DOT

2

739.684-094; brush filler at DOT 739.687-046; ventilator (wig making) at DOT 739.384-

3

022; put-in-beat adjuster (clock and watch making) at DOT 715.684-186. Id. Sedentary

4

strength requirements differ from light strength requirements.

5

Sedentary Work is defined as: “exerting up to 10 pounds of force occasionally

6

(Occasionally: activity or condition exists up to 1/3 of the time) and/or a negligible amount

7

of force frequently (Frequently: activity or condition exists from 1/3 to 2/3 of the time) to

8

lift, carry, push, pull, or otherwise move objects, including the human body. Sedentary work

9

involves sitting most of the time, but may involve walking or standing for brief periods of

10

time. Jobs are sedentary if walking and standing are required only occasionally and all other

11

sedentary criteria are met. Id. at Appendix C: Components of the Definition Trailer, IV

12

Physical Demands- Strength Rating (Strength)..

13

Light Work is defined as: “exerting up to 20 pounds of force occasionally, and/or up to

14

10 pounds of force frequently, and/or a negligible amount of force constantly (Constantly:

15

activity or condition exists 2/3 or more of the time) to move objects. Physical demand

16

requirements are in excess of those for Sedentary Work. Even though the weight lifted may

17

be only a negligible amount, a job should be rated Light Work: (1) when it requires walking

18

or standing to a significant degree; or (2) when it requires sitting most of the time but entails

19

pushing and/or pulling of arm or leg controls; and/or (3) when the job requires working at a

20

production rate pace entailing the constant pushing and/or pulling of materials even though

21

the weight of those materials is negligible. NOTE: The constant stress and strain of

22

maintaining a production rate pace, especially in an industrial setting, can be and is

23

physically demanding of a worker even though the amount of force exerted is negligible.”

24

Id.

25

Here, the ALJ found the Plaintiff could lift/carry 10 pounds occasionally, and lift/carry

26

less than 10 pounds frequently, and asked the VE to consider the availability of sedentary

27

work. Given these strength limitations and the moderate additional limitations of pain,

28
-9-

1

blurred vision, etc., all of which the ALJ concluded were controlled by medication, the VE

2

testified that the Plaintiff could perform production assembler jobs and that 1,071,239

3

production assembler jobs existed nationally and 647 existed in Arizona. The VE did not

4

limit her testimony to assembler jobs with sedentary strength requirements. Accordingly, it

5

appears there was a conflict between the VE’s testimony and the DOT.

6

While the ALJ stated in his decision that the VE’s “testimony is consistent with the

7

information contained in the [DOT],” (TR. 18: Decision at 7), the record, including the

8

ALJ’s decision, does not reflect how the ALJ arrived at this determination. As in Massachi,

9

the failure by the ALJ to inquire regarding the conflict “could have been harmless, were

10

there no conflict, or if the vocational expert had provided sufficient support for [his]

11

conclusion so as to justify any potential conflicts...Instead, we have an apparent conflict with

12

no basis for the vocational expert’s deviation.” Massachi, 486 F.3d at 1154 n. 19. The

13

administrative regulation, SSR 00-4p, states that the ALJ has “an affirmative responsibility

14

to ask about any possible conflict between the VE...evidence and information provided in

15

the DOT.” SSR 00-4p at *4. This requirement is consistent with the Supreme Court’s

16

observation that “Social Security proceedings are inquisitorial rather than adversarial. It is

17

the ALJ’s duty to investigate the facts and develop the arguments both for and against

18

granting benefits....” Sims v. Apfel, 530 U.S. 103, 111 (2000) (citation omitted).

19

Given the record reflects an actual conflict between the DOT and the VE’s testimony

20

and given there is no explanation in the record to resolve the conflict in favor of the VE’s

21

position, this Court “cannot determine whether the ALJ properly relied on [the

22

VE’s]...testimony.” Massachi, 486 F.3d at 1154. As a result, this Court cannot determine

23

whether substantial evidence supports the ALJ’s finding that the Plaintiff was not disabled

24

under the Act for the relevant time period. Id. (remanding for further proceedings).

25
26
27

CONCLUSION
"Remand for further administrative proceedings is appropriate if enhancement of the
record would be useful." Benecke v. Barnhart, 379 F.3d 587, 593, (9th Cir. 2004) (citing

28
- 10 -

1

Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000)). Because the record presents a

2

conflict between the DOT and the VE’s testimony, and the ALJ did not comply with SSR

3

00-4p in addressing and resolving this conflict, the Court is unable to determine whether

4

substantial evidence supports the ALJ’s conclusion that Plaintiff is not disabled. In the

5

Ninth Circuit, remand for further proceedings is appropriate for such error. Massachi, 486

6

F.3d at 1154. The remand will afford the ALJ an opportunity to reassess the Plaintiff’s

7

credibility in light of the new evidence substantiating his claim of blurred vision and take a

8

second look at limitations related to his chronic pain syndrome before making the

9

appropriate inquiries under SSR 00-4p.

10

After de novo review of the issues raised in the Plaintiff’s Objection, this Court

11

adopts in part and rejects in part the findings of fact and conclusions of law made by the

12

Magistrate Judge in the R&R. The Court adopts the recommendation to not consider Dr.

13

Etehad as a treating physician and to affirm the ALJ’s decision to discount Dr. Etehad’s

14

opinion that Plaintiff can not work. The Court rejects the Magistrate Judge’s

15

recommendation to affirm the denial of benefits.

16

Accordingly,

17

IT IS ORDERED that after a full and independent review of the record, in respect to

18

the objections, the Magistrate Judge's Report and Recommendation is accepted and adopted

19

in part and rejected in part as the findings of fact and conclusions of law of this Court.

20
21
22

IT IS FURTHER ORDERED that the Commissioner’s final decision in this matter is
REMANDED for further proceedings consistent with this Order. The Clerk of Court is
instructed to enter judgment accordingly and close this case.

23
24

DATED this 25th day of August, 2011.

25
26
27
28
- 11 -