Wilson v. Commissioner Social Security Administration

Filing 21

Findings & Recommendation: Social Security Complaint 2 should be Affirmed. Objections to the Findings and Recommendation are due by 10/9/2009. Signed on 9/22/2009 by Magistrate Judge Mark D. Clarke. (dkj)

FlLED'09 FlLED'09 SEP 2210GOIJSDC·ORt1

I N T H E U N I T E D STATES D I S T R I C T C O U R T F O R THE DISTRICT OF OREGON

DONALD R. WILSON, Civil No. 08-31 08-CL Plaintiff,
Report & Recommendation

v. MICHAEL J. ASTRUE, Commissioner, Social S e c u r i t y C o m m i s s i o n , Defendant.

CLARKE, Magistrate Judge. P l a i n t i f f Donald R. Wilson ("Plaintiff') brings this action pursuant to 42 U . S . c . § 405(g) to obtain judicial review o f the Commissioner's final decision denying P l a i n t i f f s claim for Social Security Disability Insurance (SSDI) benefits. For the several reasons set forth below, the d e c i s i o n o f t h e C o m m i s s i o n e r s h o u l d b e affirmed.
I. Background

P l a i n t i f f was born o n October 20, 1961, and was 46 years o f age o n the date o f the ALI's unfavorable decision. (Tr. 16.) He has a high school education. His last j o b was in 2000 w h e n he worked for Mayflower Storage. (Tr. 178.) He also has past relevant work as a roofer, carpenter, mover, and storage handler. (Tr. 16, 120, 180.) Report & Recommendation - 1

The The record detailing P l a i n t i f f s impainnents begins in January 2005. O n January 18, 2005, h e saw Dr. Casey for complaints o f shoulder pain. Dr. Casey described him as a "healthy 43 year old Native American man." (Tr. 182.) O n October 10, 2005, P l a i n t i f f underwent surgery and was diagnosed with bilateral shoulder arthritis in acromioclavicular joints. (Tr. 186.) O n March 1 5 , 2 0 0 6 , he had an M R I at the request o f Dr. Tackey from the Klamath Rheumatolgy Associates. T h i s M R I s h o w e d right knee early osteoarthritis o f t h e p a t e l l o f e m o r a l j o i n t and left knee osteoarthritis o f t h e medial j o i n t with chronic tendonitis o f the patellar tendon. (Tr. 35459.) O n D e c e m b e r 2 0 , 2 0 0 7 , Dr. Bury detennined that he had perforated b o th o f his ear drums. (Tr. 370.) P l a i n t i f f h a s also complained o f bilateral wrist and hand p a i n related to carpal tunnel. (Tr. 12.) I n a d d i t i o n , P l a i n t i f f h a s c o m p l a i n e d o f b a c k pain, t h o u g h t h e r e c o r d i n d i c a t e d t h a t h e h a s n o n n a l neurological and orthopedic findings. (Tr. 12.) At his April 2008 hearing, he commented that he was waiting to hear from one o f his doctors about a potential back surgery. However, no treatment notes mention an upcoming surgery. (Tr. 12.) P l a i n t i f f alleges disability beginning o n January 1, 2001, because o f his shoulders, a head injury, his lower back, m e m o r y loss, his left arm, his left hand, and problems w i t h his left ear. (Tr. 119.) The Social Security Administration (SSA) issued its initial denial o n April 21, 2006, and its denial o n reconsideration on September 2 8 , 2 0 0 6 . (Tr. 9.) U p o n requesting a hearing, P l a i n t i f f appeared and testified at hearings held on November 8, 2007, along with the vocational expert ("VE") Frances P. Summers. He also testified at an additional hearing o n April 10, 2008. The ALJ issued his unfavorable decision denying P l a i n t i f f benefits o n M a y 3 0 , 2 0 0 8 . (Tr. 9.)

Report & Recommendation - 2

II. II.

Standards This Court must affinn the Commissioner's decision i f it is based on the proper legal

standards and the findings are supported b y substantial evidence in the record. Hammock v. Bowen, 879 F.2d 4 9 8 , 5 0 1 (9 th Cir. 1989). Substantial evidence is "more than a mere scintilla. I t means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 3 8 9 , 4 0 1 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 1 9 7 , 2 2 9 (1938)). The Court considers the record as a whole and weighs "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9 th Cir. 1986). Where the evidence is susceptible o f more than one rational interpretation, the Commissioner's conclusion must be upheld. Sample v. Schweiker, 694 F.2d 639, 642 (9 th Cir. 1982). Questions o f credibility and resolution o f conflicts in the testimony are functions solely o f t h e Commissioner, Waters v. Gardner, 452 F.2d 8 5 5 , 8 5 8 n.7 (9 th Cir. 1971), but any negative credibility findings must be supported b y findings on the record and supported b y substantial evidence. Ceguerra v. See'y o f HeaIth & Human Servs., 933 F.2d 7 3 5 , 7 3 8 (9 th Cir. 1991). The findings o f the Commissioner as to any fact, i f supported b y substantial evidence, shall be conclusive. 42 U . S . c . § 405(g). However, even where findings are supported b y substantial evidence, "the decision should be set aside i f the proper legal standards were not applied in weighing the evidence and making the decision." Flake v. Gardner, 399 F.2d 5 3 2 , 5 4 0 (9 th Cir. 1968); see also Allen v. Heckler, 749 F.2d 5 7 7 , 5 7 9 (9 th Cir. 1984). Under sentence four o f 42 U.S.C. § 405(g), the court has the power to enter, upon the pleadings and t r a n s c r i p t r e c o r d , a j u d g m e n t a f f i n n i n g , modifying, o r r e v e r s i n g t h e d e c i s i o n o f t h e Commissioner, with or without remanding the case for a rehearing. Report & Recommendation - 3

III. III.

Commissioner's Decision
The initial burden o f p r o o f rests upon the claimant to establish disability. H o w a r d v.

Heckler, 782 F.2d 1484, 1486 (9 th Cir. 1986). To meet this burden, a claimant must demonstrate an "inability to engage in any substantial gainful activity b y reason o f any medically determinable physical o r mental impairment which can be expected to result i n death or w h i c h has lasted o r can b e expected to last for a continuous period o f not less than 12 months . . . . " 42 U.S.C. § 423(d)(1)(A). A five-step sequential process exists for determining whether a person is disabled. B o w e n v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920.
I n step one, the Commissioner determines whether a claimant is engaged i n "substantial

gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). I n the p r e s e n t c a s e , t h e A L J f o u n d t h a t the P l a i n t i f f h a d n o t e n g a g e d i n s u b s t a n t i a l g a i n f u l a c t i v i t y s i n c e the filing o f his supplemental security income application on February 2 2 , 2 0 0 6 . (Tr. 11.)
I n step t w o , t h e C o m m i s s i o n e r d e t e r m i n e s w h e t h e r the c l a i m a n t h a s a " m e d i c a l l y s e v e r e

i m p a i r m e n t o r c o m b i n a t i o n o f i m p a i r m e n t s . " I f t h e C o m m i s s i o n e r finds n o m e d i c a l l y s e v e r e impairment, the claimant is deemed not disabled. I f the Commissioner finds a severe impairment o r combination thereof, the inquiry moves to step three. Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404. 1520(c), 416.920(c). Here, the ALJ found that P l a i n t i f f had the following severe impairments: bilateral shoulder arthritis i n acromioclavicular joints, as shown o n operative and r a d i o g r a p h i c r e p o r t s ; r i g h t k n e e e a r l y o s t e o a r t h r i t i s o f the p a t e l l o f e m o r a l j o i n t a n d l e f t k n e e osteoarthritis o f the medial j o i n t with chronic tendonitis o f the patellar tendon, as shown o n M R I scans; bilateral ear drum perforation; and alcohol abuse, reported i n remission. (Tr. 12.) Report & Recommendation - 4

Accordingly, the inquiry m o v e d to step three. Accordingly, S t e p t h r e e focuses o n w h e t h e r the i m p a i r m e n t o r c o m b i n a t i o n o f i m p a i r m e n t s m e e t s o r equals "one o f a number o f l i s t e d impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 140-41; see 20 C.F.R. §§ 404.1520( d), 416.920(d). I f so, the claimant is conclusively presumed disabled; i f not, the analysis proceeds to step four. Yuckert, 482 U.S. at 141. I n this case, the A L I found that the P l a i n t i f f d i d n o t have a n impairment o r combination o f impairments that meets o r equals o n e o f the listed impairments. (Tr. 13.)
I n step four, the Commissioner determines whether the claimant has the residual

functional capacity (RFC) to perform his "past relevant work." 20 C.F.R. § 404.1560(a). The RFC is b a s e d o n all relevant evidence i n the case record, including the treating physician's medical opinions about what an individual can still do despite impairments. S S R 96-8p. "Past relevant work" refers to w o r k that "was done within the last 15 years, lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." 20 C.F.R. § 404.1565(a). I t does not consider "off-and-on" work during that period. Id. I f claimant can perform p a s t

relevant work, then the Commissioner finds the claimant "not disabled." I f h e cannot perform p a s t relevant work, the inquiry advances to step five. 20 C.F.R. §§ 404. 1520(e), 416.920(e). T h e A L I f o u n d t h a t t h e P l a i n t i f f has t h e f o l l o w i n g e x e r t i o n a l and n o n e x e r t i o n a l limitations: The claimant's physical capacity allows for lifting and carrying up to 10 pounds frequently and 20 pounds occasionally. He can sit for 6 hours, stand for 4 hours a n d w a l k for 3 h o u r s i n a n 8 - h o u r w o r k d a y . H e c a n f r e q u e n t l y u s e h a n d s for a l l a c t i v i t i e s , b u t o v e r h e a d w o r k o r t h r o w i n g actions s h o u l d b e a v o i d e d . U s e o f foot controls, bilaterally, is also frequent. H e should not climb ladders o r scaffolds. Report & Recommendation - 5

Balancing, Balancing, kneeling, crouching and crawling is occasional. Stooping can be frequent. The claimant can hear and understand simple oral instructions and c o m m u n i c a t e s i m p l e i n f o r m a t i o n . The c l a i m a n t s h o u l d n o t b e e x p o s e d f r e q u e n t l y to unprotected heights, moving mechanical parts, extremes in temperature or dust, chemicals and fumes. Frequent lifting and bending should be avoided. (Tr. 13.) The A L I found that the claimant could not perform past relevant work in his past jobs, which required heavy to very heavy exertion. (Tr. 16.)
In step five, the burden is on the Commissioner to establish that the claimant is capable o f

performing other work that exists in the national economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404. 1520(f), 4l6.920(f). I f the Commissioner fails to meet this burden, then the claimant is deemed disabled. Here, the ALI determined that there are j o b s that exist in significant numbers in the national economy that the Plaintiff can perform. (Tr. 17.) He determined that Plaintiff was not disabled since the filing o f his claim on February 2 2 , 2 0 0 6 . (Tr. 17.)

IV.

Discussion
Plaintiff asserts that the ALI's decision should be reversed and remanded for benefits

because it is not supported b y substantial evidence and because it is based on the application o f improper legal standards. Plaintiff argues that: (1) the A L I did not give the opinion o f treating nurse practitioner Andrew Hughes appropriate weight. (2) the A L I improperly rejected the opinion o f M r . Hughes, or in the alternative, did not appropriately consider his opinion under the required factors. (3) the ALI committed reversible error in failing to re-contact P l a i n t i f f s treating provider Mr. Hughes. Report & Recommendation - 6

A. A.

The A L J Gave Mr. Hughes' "Other" Medical Source Opinion Appropriate Weight, Properly Considered It, and Properly Rejected I t

P l a i n t i f f argues that the A L I erred b y "failing to accord adequate weight to the opinion o f claimant's treating source." (Pl.'s Mem. 2.) Defendant argues that P l a i n t i f f s treating source is a F a m i l y N u r s e P r a c t i t i o n e r and t h u s c a n n o t b e a " t r e a t i n g s o u r c e " b y S S A d e f i n i t i o n . " B e c a u s e Mr. Hughes is a family nurse practitioner, his opinion is not weighted as that o f an acceptable medical source opinion, b u t as an 'other' medical source." (Def.'s Br. 8.)
1.

Distinction Between an Acceptable Medical Source and Other Source

" A c c e p t a b l e m e d i c a l sources" i n c l u d e l i c e n s e d p h y s i c i a n s , l i c e n s e d o r c e r t i f i e d p s y c h o l o g i s t s , l i c e n s e d optometrists, licensed podiatrists, and q u a l i f i e d s p e e c h - l a n g u a g e pathologists. 20 C.F.R. § 404.1513( a). F o r purposes o f the disability determination, making a distinction b e t w e e n acceptable medical sources and other medical sources is important for three reasons. First, evidence from acceptable medical sources is necessary to establish the existence o f a m e d i c a l l y d e t e r m i n a b l e i m p a i r m e n t . Second, o n l y a c c e p t a b l e m e d i c a l s o u r c e s c a n g i v e medical opinions. Third, only acceptable medical sources can b e considered treating sources as defined b y statute whose medical opinions maybe given controlling weight. S S R 06-03p at *2; 20 C.F.R. §§ 404.1513, 404.1527. "Making a distinction between 'acceptable medical sources' a n d m e d i c a l s o u r c e s w h o are n o t ' a c c e p t a b l e m e d i c a l s o u r c e s ' f a c i l i t a t e s t h e a p p l i c a t i o n o f o u r r u l e s o n e s t a b l i s h i n g t h e e x i s t e n c e o f an i m p a i r m e n t , e v a l u a t i n g m e d i c a l o p i n i o n s , a n d w h o c a n b e c o n s i d e r e d a t r e a t i n g source." Evidence from "other sources" m a y be used to show the severity o f the individual's impairments and how it affects his ability to function. S S R 06-03p at *2. These sources include Report & Recommendation - 7

n u r s e p r a c t i t i o n e r s , p h y s i c i a n assistants, licensed clinical social w o r k e r s , n a t u r o p a t h s , nurse chiropractors, audiologists, and therapists. Id.; 20 C.F.R. § 404.1513(d ) ( I ) . "Information from these ' o t h e r sources' c a n n o t establish t h e existence o f a m e d i c a l l y d e t e r m i n a b l e i m p a i r m e n t . . . . H o w e v e r , i n f o r m a t i o n from s u c h ' o t h e r sources' m a y b e b a s e d o n s p e c i a l k n o w l e d g e o f t h e i n d i v i d u a l a n d m a y p r o v i d e i n s i g h t into t h e s e v e r i t y o f t h e i m p a i r m e n t ( s ) a n d h o w i t a f f e c t s t h e individual's ability to function." S S R 06-03p at *2. S o c i a l S e c u r i t y R e g u l a t i o n s p r o v i d e g u i d a n c e i n c o n s i d e r i n g h o w m u c h w e i g h t to g i v e opinions from "other sources." Such evaluation is case specific. Factors the A L J m a y c o n s i d e r i n c l u d e , " h o w l o n g t h e s o u r c e has k n o w n and h o w f r e q u e n t l y the s o u r c e h a s s e e n t h e i n d i v i d u a l ; h o w consistent the opinion is w i t h other evidence; the degree to w h i c h the source presents relevant evidence to support an opinion; h o w well the source explains the opinion, w h e t h e r the s o u r c e h a s a s p e c i a l t y o r a r e a o f e x p e r t i s e r e l a t e d to t h e i n d i v i d u a l ' s i m p a i r m e n t ( s ) ; a n d a n y o t h e r factors that t e n d to support or refute the opinion." Id. at *4-5. A t a minimum, an ALJ should treat these medical professionals' opinions w i t h as m u c h consideration as a lay witness and give reasons supported b y substantial evidence for rejecting it. Vincent o n b e h a l f o f Vincent v. Heckler, 739 F.2d 1393, 1395 (9 th C i r 1984). The A L I has a duty to consider lay witness testimony. 20 C.F.R. §§ 404.1513(d); 404. 1545(a)(3); Lewis v. Apfel, 236 F . 3 d 503, 511 (9 th Cir. 2001).

2.

Mr. Hughes Is Not an Acceptable Medical Source and the A L J A p p r o p r i a t e l y C o n s i d e r e d His O p i n i o n

M r . H u g h e s , as a f a m i l y n u r s e p r a c t i t i o n e r , i s n o t a n a c c e p t a b l e m e d i c a l s o u r c e a n d cannot b e considered a "treating source" and receive controlling weight. 20 C.F.R. §§ 404.1513, Report & Recommendation - 8

404.1527. The ALJ did not err when he detennined his opinion did not warrant controlling 404.1527. w e i g h t o f a t r e a t i n g physician. The ALJ, however, is still required to give substantial evidence i f h e rejects Mr. Hughes' opinion, and he did. The ALJ explained that Mr. Hughes' opinion was inconsistent with acceptable medical sources and Plaintiffs own testimony. Mr. Hughes opined in his RFC that Plaintiff should be limited to no work on a full-time basis. (Tr. 14.) The ALJ explained, "his assessment is at odds with every physician's residual capacity assessment." (Tr. 14.) Specifically, Dr. Casey reported on November 2 1 , 2 0 0 5 , that P l a i n t i f f h a d full range o f motion in his left shoulder. Dr. Casey told Plaintiff that he could go back to work but needed to avoid heavy lifting. (Tr. 195.) The ALJ chose to adopt the most restrictive RFC from Dr. Bury, and even this was less restrictive than Mr. Hughes' opinion. (Tr. 13.) Dr. Bury restricted Plaintiff from climbing ladders and scaffolds with only occasional lifting or carrying o f 10 lbs. Dr. Bury did not opine that P l a i n t i f f was unable to work. (Tr. 376.) The ALJ further noted that Mr. Hughes' proscribed limitations o f reaching were inconsistent with P l a i n t i f f s assertions that he could ride a bike, drive a motorcycle, and work in a garden. (Tr. 14.) Plaintiff argues that the ALJ did not appropriately consider all the relevant factors when he evaluated Mr. Hughes' opinion such as how long the source has known the plaintiff, how frequently he has seen the plaintiff, how consistent the opinion is with other evidence, how well the opinion is supported b y relevant evidence, how well the source explains his opinion, whether the source has a specialty or area o f expertise, and any other factors that support the opinion. See Report & Recommendation - 9

20 20 C.F.R. § 404.1527(d); S S R 06-03p *4-5. W h i l e P l a i n t i f f is correct i n pointing to these factors, the A L I is n o t b o u n d t o evaluate e a c h o n e e x p l i c i t l y . R e g u l a t i o n s e x p l a i n , " [ n ] o t e v e r y factor for w e i g h i n g o p i n i o n e v i d e n c e w i l l a p p l y i n every case." S S R 06-03p *5. Here, the A L I considered h o w consistent Mr. H u g h e s ' o p i n i o n w a s w i t h o t h e r evidence, and he applied the a p p r o p r i a t e standard. T h e A L I p r o v i d e d substantial evidence to reject Mr. Hughes' opinion.

B.

The ALJ Did Not Err in Failing to Re-Contact Mr. Hughes

P l a i n t i f f argues that the A L I erred in n o t re-contacting Mr. Hughes to develop the record. "'In S o c i a l S e c u r i t y c a s e s , t h e A L I h a s a s p e c i a l d u t y t o f u l l y a n d f a i r l y d e v e l o p t h e r e c o r d a n d a s s u r e t h a t t h e c l a i m a n t ' s i n t e r e s t s are c o n s i d e r e d . ' T h i s d u t y e x i s t s e v e n w h e n t h e c l a i m a n t i s represented b y counse1." S m o l e n v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) ( q u o t i n g B r o w n v. Heckler, 713 F . 2 d 4 4 1 , 4 4 3 (9th Cir. 1983)); 20 C.F.R. § 416.1444. R e m a n d m a y b e n e c e s s a r y w h e n t h e r e c o r d d o e s n o t c o n t a i n r e l e v a n t facts a n d h i s t o r y t o a s s i s t t h e A L I t o f a i r l y m a k e h i s d e c i s i o n . " I n d e c i d i n g w h e t h e r a r e m a n d is t h e p r o p e r r e m e d y , w e h a v e s t a t e d t h a t w h e r e t h e a d m i n i s t r a t i v e r e c o r d c o n t a i n s gaps, r e m a n d to t h e C o m m i s s i o n e r for further d e v e l o p m e n t o f the evidence is appropriate. That is, w h e n 'further findings w o u l d so p l a i n l y help to assure the p r o p e r disposition o f [the] claim, w e b e l i e v e that r e m a n d is p a r t i c u l a r l y appropriate.'" B u t t s v. Barnhart, 388 F . 3 d 3 7 7 , 3 8 5 - 8 6 (2nd Cir. 2004) (quoting R o s a v. Callahan, 168 F . 3 d 7 2 , 8 3 (2nd Cir. 1999)). I n T h o m e v. Califano, 607 F . 2 d 218 ( 8 t h Cir. 1 9 7 9 ) , t h e c o u r t r e m a n d e d t h e c a s e b e c a u s e t h e r e w a s n o o p i n i o n e v i d e n c e as t o w h e t h e r t h e p l a i n t i f f w a s employable i n 1975. Id. at 220. R e m a n d has also b e e n appropriate w h e n the e v i d e n c e i s a m b i g u o u s o r t h e A L l finds t h a t t h e r e c o r d i s i n a d e q u a t e f o r a p r o p e r e v a l u a t i o n . R e p o r t & R e c o m m e n d a t i o n - 10

Tonapetyan Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (citing Smolen, 80 F.3d at 1288). Though P l a i n t i f f argues Mr. Hughes should have been recontacted, he does not provide any explanation for how the record was ambiguous or the record was inadequate for a proper evaluation. The ALJ did not err in choosing not to recontact Mr. Hughes.
V. Conclusion

The ALI's decision to deny Plaintiffs application for benefits is supported b y substantial evidence. He applied the appropriate standards in evaluating Mr. Hughes's opinion and was not required to recontact him to develop the record. The ALI's decision should b e affirmed.
VI. Recommendation

This recommendation is not an order that is immediately appealable to the Ninth Circuit Court o f Appeals. Any notice o f appeal pursuant to Rule 4(a)(1), Federal Rules o f Appellate Procedure, should not be filed until entry o f the district court's judgment or appealable order. The Report and Recommendation will be referred to a district judge. Objections to this
R e p o r t a n d Recommendation, i ( a n y , are due by October 9, 2009. I f o b j e c t i o n s are filed, a n y responses to the objections are due within 10 days, s e e Federal Rules o f Civil Procedure 72 a n d

6. I f no objections are filed, then the Report and Recommendation will go under advisement on that date. Failure to timely file objections to any factual determinations o f the Magistrate Judge will be considered a waiver o f a party's right to de novo consideration o f the factual issues and will constitute a waiver o f a party's right to appellate review o f the findings o f fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation.

Report & Recommendation - 11

D A T E D this ~

"'2----: "'2----:'' d a y o f S e p t e m b e r , 2009.

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M A R K D. CLARKE U n i t e d States M a g i s t r a t e J u d g e

Report & Recommendation - 12