Hargrave, Jr. v. Commissioner Social Security Admin.
Filing
22
Opinion and Order signed on 7/8/2014 by Judge Ancer L. Haggerty. The decision of the Acting Commissioner denying Jerry Deen Hargrave, Jr.'s application for disability benefits must be REVERSED and REMANDED for further proceedings consistent with this ruling and the parameters provided in this Opinion and Order. (sp)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
JERRY DEEN HARGRAVE, JR.,
Plaintiff,
Case No. 1:13-cv-01116-HA
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
HAGGERTY, District Judge:
Plaintiff Jerry Deen Hargrave, Jr. seeks judicial review of a final decision by the Acting
Commissioner of the Social Security Administration denying his application for Disability
Insurance Benefits (DIB). This court has jurisdiction to review the Acting Commissioner's
decision under 42 U.S.C. § 405(g). After reviewing the record, this comi concludes that the
Acting Commissioner's decision must be reversed and remanded for further proceedings.
OPINION AND ORDER - 1
STANDARDS
A claimant is considered "disabled" under the Social Security Act if: (1) he or she is
unable to engage in any substantial gainful activity (SGA) "by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve months," and
(2) the impairment is "of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy." Hill v. Astrue, 688 F.3d 1144,
1149-50 (9th Cir. 2012) (citing 42 U.S.C. § 1382c(a)(3); Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999)); 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five-step sequential evaluation process for
dete1mining ifa person is eligible for benefits. 20 C.F.R. §§ 404.1520(a), 416.920(a). In steps
one through four, the Commissioner must determine whether the claimant (1) has not engaged in
SGA since his or her alleged disability onset date; (2) suffers from severe physical or mental
impairments; (3) has severe impairments that meet or medically equal any of the listed
impahments that automatically qualify as disabilities under the Social Security Act; and (4) has a
residual functional capacity (RFC) that prevents the claimant from performing his or her past
relevant work. Id. An RFC is the most an individual can do in a work setting despite the total
limiting effects of all his or her impairments. 20 C.F.R. §§ 404.1545(a)(l), 416.945(a)(l), and
Social Security Ruling (SSR) 96-8p. The claimant bears the burden of proof in the first four
steps to establish his or her disability.
At the fifth step, however, the burden shifts to the Commissioner to show that jobs exist
OPINION AND ORDER - 2
in a significant number in the national economy that the claimant can perfonn given his or her
RFC, age, education, and work experience. Gomez v. Chafer, 74 F.3d 967, 970 (9th Cir. 1996).
If the Commissioner cannot meet this burden, the claimant is considered disabled for purposes of
awarding benefits. 20 C.F.R. §§ 404.1520(f)(l), 416.920(a). On the other hand, if the
Commissioner can meet its burden, the claimant is deemed to be not disabled for purposes of
dete1mining benefits eligibility. Id
The Commissioner's decision must be affamed if it is based on the proper legal standards
and its findings are supported by substantial evidence in the record as a whole. 42 U.S.C. §
405(g); Tackett, 180 F.3d at 1097; Andrews v. Shala/a, 53 F.3d 1035, 1039 (9th Cir. 1995).
Substantial evidence is more than a scintilla but less than a preponderance; it is "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Sandgathe v.
Chafer, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).
When reviewing the decision, the court must weigh all of the evidence, whether it
supports or detracts from the Commissioner's decision. Tackett, 180 F.3d at 1098. The
Commissioner, not the reviewing court, must resolve conflicts in the evidence, and the
Commissioner's decision must be upheld in instances where the evidence supports either
outcome. Reddickv. Chater, 157 F.3d 715, 720-21 (9th Cir. 1998). If, however, the
Commissioner did not apply the proper legal standards in weighing the evidence and making the
decision, the decision must be set aside. kl. at 720.
FACTUAL AND PROCEDURAL HISTORY
Plaintiff was born in 1961 and completed the twelfth grade. He also has work experience
as a farm supervisor, fa1m laborer, and bio-diesel plant manager. Plaintiff protectively filed his
OPINION AND ORDER - 3
application for DIB on Janumy 23, 2009, alleging that he has been disabled since Janumy 14,
2009. The claim was denied initially on July 15, 2009, and upon reconsideration. At plaintiffs
request, an Administrative Law Judge (ALJ) conducted a hearing on December 16, 2011. The
ALJ heard testimony from plaintiff, who was represented by counsel, as well as an independent
vocational expert (VE).
On Janumy 6, 2012, the ALJ issued a decision finding that plaintiff was not disabled
under the Act. At step one of the sequential analysis, the ALJ found that plaintiff had engaged in
SGA since January 14, 2008, his alleged onset date. Tr. 11. 1 Plaintiff earned a total of
$27,349.77 in 2010 while working as a farm supervisor. He continued to work in that role
through the middle of April 2011 and earned approximately $2,500.00 per month. Despite
finding that plaintiff engaged in SGA in 2010 and 2011, the ALJ proceeded to the next steps of
the sequential analysis because plaintiffs application for DIB included a period between Janumy
2008 and March 2010 when he had no reported earnings. Tr. 12.
At step two, the ALJ found that plaintiff suffers from the following medically
detenninable severe impairments: degenerative disease of the lumbar spine, status post two
fusion surgeries. Tr. 12. After considering plaintiffs severe and non-severe impairments, the
ALJ determined that plaintiff does not have an impairment or combination of impahments that
meets or medically equals a listed impahment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr.
12. After considering the entire record, the ALJ found that plaintiff has the RFC to perform light
work as defined in 20 C.F.R. § 404. l 567(b) except he can lift/cany up to fifteen pounds, on both
1
"Tr." refers to the Transcript of the Administrative Record.
OPINION AND ORDER - 4
an occasional and frequent basis, and perform tasks that involve about four hours of standing or
walking (up to thirty minutes at a time), and about five hours of sitting (up to fifty minutes at a
time). Such tasks must permit him to have a brief change position eve1y thirty minutes. He can
occasionally balance, stoop, kneel, crouch, crawl, or climb stairs or ramps. He must avoid
climbing ladders, ropes, or scaffolds. He can engage in frequent, but not constant, reaching
overhead and all other directions. He must avoid concentrated exposure to extreme cold. Tr. 1213. Based on plaintiffs RFC and the testimony of the VE, the ALJ found that plaintiff is capable
of performing past relevant work as a farm supervisor (Dictionmy of Occupational Title 407 .131010; heavy (actually performed at a sedentmy level); skilled). The ALJ found that this work does
not require the performance of work-related activities precluded by plaintiffs RFC. Tr. 17. In
the altemative, the ALJ relied on the testimony of the VE to deteimine that plaintiff is able to
perfo1m work existing in significant numbers in the national economy, such as farm equipment
customer service tech, farm equipment sales, and production scheduler. Therefore, the ALJ
concluded that plaintiff is not disabled. Tr. 17.
On May 16, 2013, the Appeals Council denied plaintiffs request for review, making the
ALJ's decision the final decision of the Acting Commissioner. Plaintiff subsequently initiated
this action seeking judicial review.
DISCUSSION
Plaintiff asserts that the ALJ etTed by (1) failing to find that plaintiffs impahments meet
the Listings criteria of section 1.04; (2) rejecting the opinion of Karl Wenner, M.D.; (3) finding
plaintiff could perfo1m his past relevant work; (4) failing to appropriately consider plaintiffs age;
and (5) finding that plaintiff could perform other work at step five. Each of plaintiffs arguments
OPINION AND ORDER - 5
will be addressed in turn.
1.
Listings Section 1.04.
Plaintiff argues that his impairments meet the criteria for Listing 1.04, and the ALJ erred
by finding otherwise. At step three of the sequential evaluation process, plaintiff bears the
burden to prove that his impairment meets or equals an impai1ment listed in 20 C.F.R. Part 404,
Subpait 1, Appendix 1. Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). In order to
overcome that burden in this case, plaintiff must demonstrate that his impairments meet or equal
the following:
(1) evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensmy or
reflex loss and, ifthere is involvement of the lower back, positive straight-leg
raising test (sitting and supine); (2) spinal arachnoiditis, confomed by an
operative note or pathology report of tissue biopsy, or by appropriate medically
acceptable imaging, manifested by severe burning or painful dysesthesia, resulting
in the need for changes in position or posture more than once every 2 hours; or (3)
Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on
appropriate medically acceptable imaging, manifested by chronic nonradicular
pain and weakness, and resulting in inability to ambulate effectively, as defined in
l.OOB2b.
20 C.F.R. Part 404, Subpmt P, Appendix 1.
In his decision, the ALJ explained that the record does not demonstrate certain criteria of
the Listing. Specifically, the ALJ noted that plaintiff demonstrated a no1mal range of motion,
plaintiff could ambulate with a normal gait, and medical imaging revealed no evidence of lumbar
stenosis. Tr. 12. Plaintiff accurately notes that the record does contain evidence of a limited
range of motion and lumbar stenosis. However, the record fails to demonstrate other criteria of
the Listing.
OPINION AL'!D ORDER - 6
Significantly, the Listing above requires that ifthere is an impairment of the lower back,
plaintiff must demonstrate a positive straight-leg test in both the sitting and supine position.
Plaintiff concedes that the one portion of the record that evidences a positive straight-leg test
does not specify whether the test was .perfo1med sitting, supine, or both. Plaintiff has failed to
present evidence of positive sitting and supine straight-leg raising tests. Similarly, although it is
a Listing requirement, plaintiff acknowledges that the record does not show significant muscle
weakness or atrophy. Pl.'s Brief at 12. Therefore, plaintiff has not met his burden of
demonstrating that his impairments meet or equal Listing 1.04, and the court finds that the ALJ's
determination at step three was supp01ied by substantial evidence in the record. Lotze v. Comm 'r
ofSoc. Sec., 213 Fed. Appx. 591, 593 (9th Cir. 2006) (holding that the ALJ's determination at
step three should be affomed if substantial evidence in the record demonstrates that a plaintiff's
severe impahment does not meet or medically equal an impairment listed in Appendix 1).
2.
The Opinion of Karl Wenner, M.D.
Plaintiff argues that the ALJ ened in discounting the opinion of plaintiff's treating
physician, Dr. Wenner. An ALJ may reject uncontradicted opinions of treating physicians for
clear and convincing reasons that are suppo1ied by substantial evidence, but contradicted
opinions may be rejected by providing specific and legitimate reasons that are supp01ied by
substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citations
omitted). As noted by the ALJ, Dr. Wenner's opinion was contradicted at least by that of Jolm
Reichle, M.D.; therefore, the ALJ needed only to provide specific and legitimate reasons for
rejecting Dr. Wenner's opinion in this case.
The ALJ provided several specific and legitimate reasons for rejecting Dr. Wenner's
OPINION AND ORDER - 7
opinion. First, Dr. Wenner's opinions were internally inconsistent without explanation. In
August 2011, Dr. Wenner opined that plaintiff was capable oflifting twenty pounds occasionally
and up to ten pounds frequently, stand/walk for four hours, and sit for four hours in an eight-hour
day. Tr. 517. Following plaintiffs treatment at Progressive Rehabilitation Associates in October
2011, Dr. Wenner opined that plaintiff was medically stationmy and permanently disabled. Tr.
532. Then, the next month, Dr. Wenner explained that plaintiff can lift up to ten pounds on an
occasional and frequent basis and sit and stand for three hours in a work day. Tr. 534.
An ALJ
may reject a physician's opinion if that physician provides inconsistent opinions. }vfatney on
Behalfoflvlayney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). Therefore, the inconsistences
noted by the ALJ constituted a specific and legitimate reason for rejecting Dr. Wenner's opinion.
Second, the ALJ reasoned that Dr. Wenner relied primarily on the subjective complaints
of plaintiff rather than medical findings. An ALJ may reject a treating physician's opinion if it is
based to a large extent on plaintiffs self-reports that have been properly discounted. Tommasetti
v. As/rue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citation and quotation omitted). Here, the ALJ
properly found that plaintiffs statements regarding the intensity, persistence, and the limiting
effects of his symptoms are not fully credible, and this is a decision that plaintiff has not
challenged. Therefore, this constitutes another specific and legitimate reason for discounting Dr.
Wenner's opinion and the court finds no error.
3.
Past Relevant Work
Plaintiff argues that the ALJ ened by finding that plaintiffs most recent work as a farm
supervisor was past relevant work within the meaning of the Act. The term past relevant work
means work performed within the last fifteen years, that was SGA, and that lasted long enough
OPINION AND ORDER - 8
for an individual to leam to do it. 20 C.F.R. § 404.1560. However, work done under special
conditions that take into account a plaintiff's impairment may demonstrate that the plaintiff does
not have the ability to do SGA. 20 C.F.R. § 404.1573. In dete1mining whether the previous
work shows that one is able to perform SGA, the ALJ should consider one's earnings. 20 C.F.R.
§ 404.1574. In considering one's earnings, the ALJ shall not consider any income that is not
related to that individual's productivity. Id. For example, if eamings are being subsidized, the
ALJ shall not consider the amount of the subsidy to determine whether past earnings demonstrate
that the plaintiff has done SGA.
In this case, it is clear that the ALJ considered plaintiff's past earnings in determining that
his work as a farm supervisor was SGA. Tr. 28. However, there is evidence in the record that
indicates that plaintiff was hired as a farm supervisor as a pmi of a worker's compensation
program. Tr. 248. 2 The ALJ failed to inquire fu1iher as to the special conditions or subsidies
afforded by this program during the hearing and failed to address any special conditions or
subsidies in his written decision. As such, the cou1i finds that the ALJ failed to properly develop
the record and erred in finding that plaintiffs role as a fmm supervisor was past relevant work.
lvfayes, 276 F.3d at 459-60 (an ALJ has a duty to develop the record when there is ambiguous
evidence or when the record is inadequate to allow for proper evaluation of the evidence).
4.
Plaintiffs Age
Plaintiff argues that if an individual closely approaching advanced age cannot perform his
2
In supp01i of his Reply Brief, plaintiff submitted additional evidence on this issue. The
court did not consider this evidence because plaintiff has not shown good cause for his failure to
present the evidence to the ALJ. }vfayes v. 1\!Jassanari, 276 F.3d 453, 462 (9th Cir. 2001) (citing
42 u.s.c. § 405(g)).
OPINION AND ORDER - 9
past relevant work, the Medical-Vocational Guidelines require a finding of disability. The
Guidelines require this outcome only when the plaintiff has no transfenable skills. 20 C.F.R. §
404, Subpart P, Appendix 2, Rules 201.14 and 201.15. If the plaintiff has transferable skills, the
Guidelines conclude that the plaintiff is not disabled. Id.
In this case, the VE testified and defendant argues that plaintiff performed skilled work as
a fann supervisor. Tr. 64. The VE testified that plaintiff obtained skills in that job that would be
readily transferable to other work. Tr. 67. However, as discussed above, plaintiff's position as a
fa1m supervisor was part of a worker's compensation program. Neither the VE nor the ALJ
address what special conditions this program afforded plaintiff. Similarly, neither explains that
plaintiff obtained transferable skills despite any special conditions that may have been present.
Thus, the record is insufficiently developed to determine whether plaintiff is disabled under 20
C.F.R. § 404, Subpart P, Appendix 2, Rule 201.14. Further proceedings are required to analyze
the details of the worker's compensation program through which plaintiff was hired.
5.
Step Five Findings
An enor in step four of the sequential analysis may be hmmless when the ALJ makes
alternative findings at step five. Tommassetti, 533 F.3d at 1042. In this case, plaintiff argues that
the ALJ also erred in step five. Specifically, plaintiff argues that the ALJ erred by finding that
plaintiff could perform the positions of farm equipment customer service tech and fa1m
equipment sales. Plaintiff accurately notes and defendant concedes that, while the ALJ assigned
an RFC that allows less than light exertion, these occupations require a light exertional level.
Defendant argues that the ALJ did not en in step five because he is allowed to rely on the
testimony of the VE. However, the ALJ may not rely on a VE's testimony without first inquiring
OPINION AND ORDER- 10
whether the testimony conflicts with the Dictionary of Occupational Titles. lviassachi v. Astrue,
486 F.3d 1149, 1152-53 (9th Cir. 2007). To accept a VE's testimony that contradicts the
Dictionary of Occupational Titles, the record must contain persuasive evidence to support the
deviation. Pinto v. }vfassanari, 249 F.3d 840, 846 (9th Cir. 2001) (quotation omitted). In this
case, the ALJ asked the VE whether his testimony was consistent with the Dictionary of
Occupational Titles and the VE represented that it was. Tr. 73. However, it is clear that,
according to the Dictionary of Occupational Titles, two of the positions listed require an RFC
greater than that assigned to plaintiff by the ALJ. The VE offered no testimony that explains the
discrepancy; therefore, the ALJ erred in relying on that testimony and concluding that plaintiff
could perform the jobs of farm equipment customer service tech and farm equipment sales.
It could be argued that this error is harmless because the ALJ also relied on the VE's
testimony to conclude that plaintiff could perform one job at the sedentary exe1tional level:
production scheduler. Relying on Lounsburry v. Bernhart, 468 F.3d 1111, 1117 (9th Cir. 2006),
plaintiff contends that he must be found disabled because the identification of only one
occupation is insufficient to demonstrate a "significant range of work." Lounsburry is
inapplicable, however, because the sedentary grid rules (20 C.F.R. 404, Subpmt P, Appendix 2,
Rule 201.00) apply to this case - not the light work grid rule (20 C.F.R. 404, Subpart P,
Appendix 2, Rule 202.00). Tommasetti, 533 F.3d at 1043-44. In Tommasetti, the Ninth Circuit
held that, under the sedentmy grid rules, one occupation is a "significant range of work" and the
claimant was not disabled. Id. In this case, the VE testified that plaintiff was capable of
perfonning the job of production scheduler, for which jobs exist in significant numbers in the
national economy.
OPINION AND ORDER - 11
However, the transcript of the proceedings in this case give this court a basis to question
the VE's testimony with respect to that position. Specifically, the VE testified that plaintiff could
perfo1m the job of production scheduler based on the transferable skills he obtained as a farm
supervisor. Tr. 69-70. As discussed above, the record concerning plaintiff's role as a farm
supervisor is not adequately developed. Neither the VE nor the ALJ addressed whether the
worker's compensation program through which plaintiff was hired in any way impacted the
transferability of skills that plaintiff obtained in that role. Without such analysis, the ALJ's
reliance on the VE's testimony regarding plaintiff's ability to perfmm a job that requires those
transferable skills was an enor. The ALJ's failure to develop the record in step four impacted his
alternative findings in step five. Therefore, further proceedings are required to determine the
special conditions afforded to plaintiff through the worker's compensation program and how
those special conditions impacted the transferability of plaintiff's skills.
Ill
Ill
Ill
Ill
Ill
Ill
Ill
Ill
OPINION Al'lD ORDER - 12
CONCLUSION
For the reasons provided, this court concludes that pursuant to sentence four of 42 U.S.C.
§ 405(g), the decision of the Acting Commissioner denying J eny Deen Hargrave, Jr. 's application
for disability benefits must be REVERSED and REMANDED for fu1iher proceedings consistent
with this ruling and the parameters provided herein.
IT IS SO ORDERED.
DATED this _5f_ day of July, 2014.
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Ancer L. Hagge1iy
United States District Judge
OPINION AND ORDER - 13
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