Erler v. Commissioner Social Security Administration

Filing 31

Opinion and Order: Pursuant to sentence four of 42 U.S.C. 405(g), the decision of the Commissioner is reversed and the case remanded for further administrative proceedings. Signed on 9/12/2017 by Magistrate Judge Thomas M. Coffin. (plb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JAMES FRANKLIN ERLER,

Case No. 1:16-cv-01573-TC
OPINION AND

Plaintiff,

ORDER

v.

NANCY A BERRYHILL, Acting
Commissioner of Social Security,

Defendant.

COFFIN, Magistrate Judge:

Plaintiff brings this action pursuant to the Social Security Act (the Act), 42 U.S.C. §§
405(g), to obtain judicial review of a final decision of the Commissioner of Social Security
(Commissioner).

The Commissioner denied plaintiffs application for Disability Insurance

Benefits (DIB) and Supplemental Security Income (SSI) under the Act.
Plaintiff was fifty-five years old at the time of the ALJ's decision. Tr. 103, 115, 239,
246. Plaintiff speaks English, completed one year of college, and has a certificate in drafting
from Umpqua Community College. Tr. 265, 267. He worked as a CAD drafter and construction
1 - OPINION AND ORDER

laborer. Tr. 267, 274-86. Plaintiff alleges disability as of January 27, 2011 due to a herniated
disc, back injury, tom tendons in both shoulders, right hand broken twice, left hand surgery, h
pylori/diverticulitis infections w/nausea, defective ureter, severe knee pain, and depression. Tr.
103, 115, 239, 246,
COMMISSIONER'S DECISION
The ALJ evaluated plaintiff's allegation of disability pursuant to the relevant five-step
sequential process.

Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,

416.920. At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity
since the alleged onset date, January 27, 2011. Tr. 24.
At step two, the ALJ found that plaintiff had the following severe impairments: history
of widespread chronic pain, depressive disorder, alcohol abuse in remission, and anxiety
disorder. Tr. 24-25; 20 C.F.R. §§ 404.1520(c), 416.920(c). The ALJ found plaintiff's physical
impairments of lumbar degenerative disc disease, gastritis, hypertension, intermittent scrotal
pain, and status post heart attack/stenting were non-severe. Tr. 25.
At step three, the ALJ found that plaintiff's medically severe impairments did not meet or
equal one of a number of listed impairments that the Commissioner acknowledges are so severe
as to preclude gainful activity. Tr. 25-27; 20
The ALJ found that plaintiff has the residual functional capacity (RFC) to:
perform a full range of work at all exertional levels but with the
following nonexertional limitations: He can perform unskilled,
repetitive, routine work; will be off-task at work 9% of the time,
but still meets the minimum production requirements; will be
absent from work 1 time per month; can have occasional contact
with the public, supervisors and co-workers.

Tr. 27.

2 - OPINION AND ORDER

At step four, the ALJ found that plaintiff was unable to perform any past relevant work.
Tr. 31. At step five, based on plaintiffs assessed RFC and the testimony of the VE, the ALJ
found there were jobs that exist in significant numbers in the national economy that plaintiff
could perform. Tr. 31. Those jobs included industrial cleaner, DOT code 381.687-018, and
motel cleaner, DOT code 323.687-014. Tr. 32. Based on plaintiffs ability to perform other
work in the national economy, the ALJ found plaintiff not disabled under the meaning of the
Act. Tr. 32.

DISCUSSION

Plaintiff asserts that the Commissioner's decision should be vacated and remanded for an
immediate award of disability insurance benefits and supplemental security income, or in the
alternative, the action should be remanded for further administrative proceedings. Among other
arguments, plaintiff contends the ALJ erred by failing to find his coronary artery disease, angina,
and ureteral stricture were severe impairments at step two.

Severe Impairments at Step Two
The plaintiff bears the burden of establishing that he has a severe impairment at step two
by providing medical evidence.

20 C.F.R. §§ 404.1512 and 416.912.

combination of impairments is "not severe only

An impairment or

if the evidence establishes a slight abnormality

that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart,
433 F.3d 683, 686 (9th Cir. 2005) (emphasis in original).

Where an ALJ fails to identify a

severe impairment at step two, but nonetheless considers at subsequent steps all of the plaintiffs
impairments, including the erroneously omitted severe impairment, the error at step two is
harmless. See, Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).

Ureteral Stricture

3 - OPINION AND ORDER

The ALJ in this case asked plaintiff at the hearing what his most serious physical problem
was and plaintiff responded that it was his left kidney. Tr 73. (Plaintiffs ureteral stricture is on
the left side and affects his left kidney.) However, although the ALJ did find widespread chronic
pain to be a severe impairment, the ALJ' s opinion does not even mention left flank pain or
kidney pain and he found no exertional impairments in plaintiffs RFC. The ALJ also makes a
reference in the opinion that CTs were unremarkable. Tr. 30. However, Brian Duty, M.D., a
urologist at OHSU, examined plaintiff stated in a report:
Impression
James Erler is a 54 year old man status post left open pyeloplasty
at age 17 who has had two years of worsening left flank pain
exacerbated by fluid intake. His CT is concerning for a recurrent
ureteropelvic junction obstruction/proximal ureteral stricture.
There is a clear transition point on his CT scan but the extent of
obstruction is unknown. As a result, I have recommended taking
him to the operating room for cystoscopy with left retrograde
pyelography. The type of reconstruction he would require would
be based upon the length and severity of the stricture.

Tr. 718.
The ALJ's opinion does not mention the CT, Dr. Duty's report, or Dr. Duty.
The ureteral stricture appears to be a severe impairment. It cannot be determined at this time
if any error is harmless as it does not clearly appear the ALJ considered all of plaintiffs
impairments in the subsequent steps of the sequential evaluation. The ALJ found that plaintiff
had the RFC to perform a full range of work at all exertional levels. There is no clear indication
that the ureteral stricture was considered in this assessment. Moreover, Dr. Duty's report is not
addressed and the ALJ discreditied plaintiffs pain testimony, in part,

based

QI)

a lack of

medical evidence. As such, the decision of the Commissioner is reversed, and this action is
remanded for further proceedings that address the aforementioned issues. A new sequential
evaluation shall be performed and a new opinion shall be written.

4 - OPINION AND ORDER

CONCLUSION

Pursuant to Sentence 4 of 42 U.S.C. §405(g), the decision of the Commissioner is reversed
and the case remanded for further administrative proceedings consistent with this opinion.

DATED this

5 - OPINION AND ORDER

( Yciay of September, 2017.