Hudson v. Commissioner Social Security
Filing
37
Opinion and Order. The final decision of the Commissioner is REVERSED and this matter is REMANDED pursuant to Sentence Four of 42 U.S.C. § 405(g) for further proceedings. Signed on 7/15/11 by Judge Malcolm F. Marsh. (dmd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Portland Division
JOSE ENRIQUE ARROYO HUDSON,
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social
Security,
Defendant.
DAVID B. LOWRY
9900 S.W. Greenburg Road, Ste 130
Portland, OR 97223
(503) 245-6309
Attorney for Plaintiff
DWIGHT C. HOLTON
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
KATHRYN A. MILLER
Special Assistant United States Attorney
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
(206) 615-2240
Attorneys for Defendant
1 - OPINION AND ORDER
3:09-CV-1146-MA
OPINION AND ORDER
MARSH, Judge.
Plaintiff seeks judicial review of the Commissioner's final
decision denying his February 2005, application for Disability
Insurance Benefits (DIB) under Title II of the Social Security
Act, 42 U.S.C. §§ 401-34, and Supplemental Security Income (SSI)
under Title XVI of the Social Security Act, 42 U.S.C. §§ 138183f.
Plaintiff urges the court to remand this matter to the
Commissioner to reassess medical evidence relating to his mental
impairments and resulting workplace limitations.
For the following reasons, I REVERSE the Commissioner’s
final decision and REMAND this matter to the Commissioner for
further proceedings to develop the medical record regarding the
impact of plaintiff’s psychological impairments on his ability to
engage in substantial gainful activity.
BACKGROUND
Plaintiff asserts he is unable to work because of a right
eye injury and “residuals” from a gunshot wound to his back.
On May 15, 2007,
plaintiff and a vocational expert (VE)
testified in a hearing before an administrative law judge (ALJ).
On July 11, 2007, the ALJ issued a decision that plaintiff
is able to perform past relevant work and is not disabled.
On July 31, 2009, the Appeals Council denied plaintiff’s
request for review.
The ALJ’s decision, therefore, is the final
decision of the Commissioner for purposes of judicial review.
2 - OPINION AND ORDER
THE ALJ'S FINDINGS
The Commissioner has developed a five-step sequential
inquiry to determine whether a plaintiff is disabled.
Yuckert, 482 U.S. 137, 140 (1987).
Bowen v.
See also 20 C.F.R. § 416.920.
Plaintiff bears the burden of proof at Steps One through Four.
See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
Each
step is potentially dispositive.
At Step One, the ALJ found plaintiff has not engaged in
substantial gainful activity since June 21, 2002.
At Step Two, the ALJ found plaintiff has severe impairments
including a splenectomy, subtotal pancreatectomy, and right eye
injury from a gunshot wound in 1997, and hypertension.
§ 404.1520©.
20 C.F.R.
The ALJ also found plaintiff has non-severe “anger
problems, depression, and loss of focus” for which plaintiff has
not sought any treatment.
At Step Three, the ALJ found plaintiff's impairments did
not meet or equal a listed impairment.
The ALJ found plaintiff retains the residual functional
capacity to perform a limited range of light work.
At Step Four, the ALJ found plaintiff is able to perform his
past relevant sedentary job as a phone answerer and cold caller,
front desk clerk, and receptionist.
Based on the above Findings, the ALJ found plaintiff is not
disabled and, accordingly, is not entitled to DIB or SSI.
3 - OPINION AND ORDER
LEGAL STANDARDS
The plaintiff has the initial burden to prove he is
disabled.
Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995),
cert. denied, 517 U.S. 1122 (1996).
To meet this burden, the
plaintiff must demonstrate an inability "to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which . . . has
lasted or can be expected to last for a continuous period of
not less than 12 months."
42 U.S.C. § 423(d)(1)(A).
The Commissioner's final decision must be affirmed if it is
based on proper legal standards and the ALJ’s findings are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g).
"Substantial evidence means more than a
mere scintilla but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion."
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995).
The court must weigh all the evidence whether it supports
or detracts from the Commissioner's final decision.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
Martinez v.
The court must
uphold the decision, however, even if it concludes that evidence
“is susceptible to more than one rational interpretation."
Andrews, 53 F.3d at 1039-40.
4 - OPINION AND ORDER
The Commissioner bears the burden of developing the record.
DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991).
The
Commissioner’s duty to further develop the record is triggered
if the evidence is either ambiguous or inadequate to allow for
a proper evaluation. Mayes v. Massanari, 276 F.3d 453, 459-60
(9th Cir. 2001).
The decision whether to remand for further proceedings
or for an immediate payment of benefits is within the discretion
of the court.
Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.),
cert. denied, 121 S. Ct. 628 (2000).
"If additional proceedings
can remedy defects in the original administrative proceeding, a
social security case should be remanded."
Lewin v. Schweiker,
654 F.2d 631, 635 (9th Cir. 1981).
ISSUES ON REVIEW
Plaintiff contends the ALJ (1) failed to develop the record
as to plaintiff’s psychological impairments; (2) failed to give
specific and legitimate reasons to reject the medical opinion of
an examining physician; (3) failed to give germane reasons for
not crediting lay testimony of plaintiff’s mother; (4) failed
to formulate plaintiff’s residual functional capacity (RFC)
accurately; and (5) erred in finding plaintiff was capable of
performing his past relevant work.
5 - OPINION AND ORDER
EVIDENCE
The court has reviewed the administrative record that
includes hearing testimony, plaintiff’s work/earnings history
reports, lay witness evidence, and relevant medical records.
Plaintiff's Testimony.
On the hearing date, plaintiff was 33 years old and lived
with his mother.
Employment Background.
Plaintiff’s last full-time job was at a private athletic
club in June 2002.
He was terminated because he argued with a
supervisor and had problems in general.
After that, he worked in
various temporary jobs, as a lifeguard (he was terminated because
he failed the required swimming and treading water tests), call
center operator/resort receptionist (he quit because he was could
not meet the standing requirements for the job), utensil sorter
(he quit after he had problems with a supervisor) and finally,
again as a call center operator (he was terminated
because he
was unable to work without supervision).
He does not believe he can perform any work even though some
employers have made special accommodation for him over the years.
Physical Impairments.
In 1997, when he was 23 years old, plaintiff was shot in
the arm, back, and eye.
He now has difficulty with peripheral
vision, headaches, and pain in his lower spine and hip.
6 - OPINION AND ORDER
Daily Activities/Hobbies.
Although he has an Associates Degree in electronics
engineering, plaintiff has difficulty with mathematics and
reading because he has difficulty maintaining his concentration
since the shooting.
Plaintiff occasionally drives during daylight but not at
night because of his poor vision.
He has difficulty sitting for
longer than 15-20 minutes, standing for longer than 30 minutes,
or walking more than two blocks.
He needs assistance when he
descends stairs.
Plaintiff has difficulty eating and no longer drinks alcohol
because the shooting damaged his spleen and pancreas.
His daily
activities are limited by incapacitating severe headaches (8 on a
1-10 scale) that occur three-four times a week for between 15
minutes and one hour, dizziness that lasts for up to 15 minutes
at least twice a week, and muscle spasms in his lower back that
last for 10-15 minutes two-three times a day.
Plaintiff’s memory and ability to pay attention and
concentrate are impaired.
His diet is restricted and if he eats
something he should not, he becomes physically sick and must lie
down for up to 90 minutes.
Plaintiff’s previous employers accommodated his physical
impairments and inability to concentrate by giving him extra
breaks.
7 - OPINION AND ORDER
Plaintiff’s mother helps him with household chores,
shopping, and laundry.
His hobbies used to include playing
chess, swimming, and playing pool.
He is no longer able to
concentrate sufficiently to play chess.
not swim.
He is able to float but
He can no longer lift anything with his right arm.
He would need help to raise up if he was on his knees, and he no
longer is able to reach up or crawl.
He recently tried to mow
the lawn but could not do so because of arm and back pain.
Plaintiff’s speed and/or pace in performing tasks is only
40% of what it was in the past.
His pain level on a 1-10 scale
is 6 on the best and 9 on the worst of days.
Plaintiff has anger management issues that crop up once or
twice a week and which have cost him more than 10 jobs.
His
memory and ability to concentrate and pay attention are poor, and
he experiences crying spells two-to-three times a week that last
for hours.
Lay Witness Evidence.
In March 2005, plaintiff’s mother, Tawana Arroyo, wrote that
plaintiff is restless and has leg cramps and backaches; he used
to cook but now becomes tired and achy when doing so; his hobby
is watching television; he attends church on Sundays and
sometimes on Wednesday evenings; he used to be very active with
friends but now rarely talks to them; he has difficulty lifting,
8 - OPINION AND ORDER
squatting, and bending; his attention span is limited to 10-20
minutes; he loses his train of thought and forgets things; he is
unable to sit for very long, and has pain when he kneels or
climbs stairs.
He is under stress because he is unable to work.
In a May 2007 questionnaire, plaintiff’s mother further
opined that plaintiff has moderate difficulties in daily living
activities, including maintaining concentration, persistence or
pace, and marked difficulties in social functioning.
Whereas he
used to be active with sports and doing yard and housework for
his mother, he now becomes frustrated because of pain.
He used
to be happy all the time but he now seems “angry and unhappy.”
Vocational Expert Evidence.
VE Gail Young testified that plaintiff’s past relevant work
included semi-skilled sedentary work as a receptionist answering
telephones, semi-skilled light work as a front-desk clerk and
lifeguard, skilled medium work as a newspaper press operator,
unskilled light work as an electronic technician, and unskilled
medium work as a hand-packer.
The VE opined plaintiff could perform his past relevant work
as an electronic technician based on the ALJ’s hypothetical that
plaintiff was capable of performing light work that required
stretching a few minutes every hour whether sitting, standing, or
in place, and did not require fine vision.
9 - OPINION AND ORDER
The VE also opined plaintiff would be able to perform the
jobs of front desk clerk, receptionist, information clerk, and
appointment clerk, if he had the ability to lift and carry
25 lbs occasionally and 10 lbs frequently, stand for three hours
with breaks every hour for a few minutes, and sit for two hours
at a time.
He would not be able to perform such jobs, however,
if they exposed him to heights and hazards or required him to
have fine vision.
The VE further opined that each of those jobs
was available in substantial numbers in the regional and national
economies.
Finally, the VE opined that if plaintiff was unable to work
a full work day or work two or more normal work days a month, he
would be unemployable.
Plaintiff would also be unemployable if
he had the following limitations:
Unpredictable anger control
problems twice a week that might last for minutes or hours;
headaches occurring 3-4 times a week for between 15 minutes and
one hour; occasional crying spells occurring unpredictably twothree times a week and lasting for hours; and a tendency to fall
down once or twice a week.
Finally, if plaintiff needed to stand
for 3 hours and sit for 2 hours in an 8-hour day, he would not be
able to perform any of the jobs discussed above.
10 - OPINION AND ORDER
Medical Evidence - Treatment.
Oregon Health Sciences University Hospital.
In April 1997, plaintiff was admitted to the hospital after
he was shot at point blank range with a small caliber weapon in
right side of his back, causing a left adrenal hematoma, splenic
artery laceration, stomach laceration, diaphragmatic tear, and
non-bleeding liver laceration.
He underwent a pancreatectomy to
remove the bottom half of his pancreas, repair of his gastric
lacerations, a splenectomy, and repair of his diaphragm.
His
post-operative prognosis was good.
In May 1997, plaintiff underwent an exploratory laparotomy
and drainage of a left upper quadrant abscess.
In July 1997, plaintiff was doing well and requested the
removal of a remaining bullet fragment.
In July 1998, plaintiff was treated for right hip pain from
an automobile accident four months earlier.
He had previously
received chiropractic treatment to his left hip, but the pain
had shifted to his right hip.
right hip pain.
He was diagnosed with mechanical
The treating physician opined the pain could be
treated by stretching exercises and anti-inflammatory medication.
In September 1998, plaintiff was treated for low back pain
and tightness in his right hip and as a result, had been unable
to play tennis or golf.
Anti-inflammatory medication and muscle
relaxers had not been effective.
11 - OPINION AND ORDER
Medical Evidence- Examination.
John H. Ellison, M.D. - Internal Medicine.
Dr. Ellison examined plaintiff on the Commissioner’s behalf.
Plaintiff described his gunshot wound, stating he recovered well
from his back and abdominal wounds but developed increasing
discomfort and tightness in the abdominal wall when he lifted or
strained in any manner.
He was unable to eat much roughage or
sleep in any position except on his back.
He worked as a press
operator until his abdominal pain became too severe.
A musculoskeletal examination was negative except for
Osgood-Schlatter’s disease (knee pain commonly found in young
athletes).
Plaintiff’s tibia was “a little tender” but did not
“bother him much.”
headaches.
He had occasional pain swallowing and mild
His range of motion in all areas was within normal
limits and his neurologic examination was normal except for the
absence of lateral vision on his right side resulting from the
gunshot wound.
He was not depressed.
Dr. Ellison opined plaintiff had the residual functional
capacity to stand for one hour at a time for a total of three
hours in an eight-hour workday, walk four to five blocks, sit for
two hours, and lift and carry 10 lbs frequently and 25 lbs
occasionally with discomfort.
His hearing, speaking, and
handling abilities were not limited.
He would need to move
around after being stationary for 20-30 minutes.
12 - OPINION AND ORDER
Medical Evidence - Consultation.
Linda Jensen, M.D. - Physical Medicine.
William Habjan, D.O. - Family Practitioner.
Dr. Jensen and Dr. Habjan each reviewed plaintiff’s medical
records and opined plaintiff had no exertional, postural,
manipulative, or communicative limitations.
His only visual
limitation was a lack of peripheral vision in his right eye, and
his only other limitation was a need to avoid concentrated
exposure to heights and hazards because of his right eye
impairment.
Dr. Jensen gave no weight to Dr. Ellison’s opinion
because it was based on plaintiff’s only partially credible
subjective complaints.
ANALYSIS
1.
Record as to Psychological Impairments.
Plaintiff contends the ALJ erred in failing to develop the
medical record regarding his psychological impairments, including
an inability to concentrate and pay attention, anger management
issues, and depression that involves lengthy crying spells.
The Commissioner responds that “none of the medical records
reflect any mental impairment-related problems” and plaintiff
first raised issues relating to anger-management at the hearing,
not in his applications.
The ALJ also noted the lack of evidence
that plaintiff was ever evaluated, diagnosed, or treated for a
psychological impairment.
13 - OPINION AND ORDER
On that record, the ALJ found
plaintiff did not have a severe psychological impairment.
Plaintiff argues that, on this record, the ALJ erred in
finding he did not have a severe psychological impairment solely
on the basis that he did not seek mental health treatment.
points out he had no health insurance.
I agree.
He
See Nguyen v.
Chater, 100 F.3d 1462, 1465 (9th Cir. 1996), citing Blankenship
v. Bowen, 874 F.2d 1116 (1124 (6th Cir. 1989)(“[I]t is a
questionable practice to chastise one with a mental impairment
for the exercise of poor judgment in seeking rehabilitation.”).
In his hearing testimony, plaintiff stated he had anger
management issues once or twice a week as a result of which he
had lost more than 10 jobs.
He also testified his memory and
ability to concentrate and pay attention were poor and he had
crying spells two-to-three times a week that lasted for hours.
The court concludes the ALJ should have further developed
the medical record as to plaintiff’s psychological impairments
and the potential impact of those impairments on his ability to
engage in substantial gainful activity.
In light of the Ninth
Circuit’s admonition in Nguyen, as well as the lay evidence (see
below) as to plaintiff’s psychological impairments, the Court
concludes the Commissioner’s reliance on plaintiff’s failure to
seek treatment for those impairments as a reason not to credit
either their existence or their severity is unpersuasive.
14 - OPINION AND ORDER
2.
Lay Witness Evidence.
Plaintiff contends the ALJ failed to give germane reasons
for not crediting the lay witness evidence offered by his
mother.
I agree.
Lay witness evidence as to a claimant’s symptoms "is
competent evidence that an ALJ must take into account" unless he
"expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so."
Lewis v. Apfel,
236 F.3d 503, 511 (9th Cir. 2001).
Plaintiff’s mother offered evidence that plaintiff can pay
attention for 10-20 minutes and half-an-hour sometimes, and he
does not follow instructions if they are too long because he
loses his train of thought.
The ALJ rejected the evidence from plaintiff’s mother on
the ground there was no evidence plaintiff suffered from any
psychological impairment.
To the contrary, as set forth above,
plaintiff’s testimony at the hearing raised a substantial issue
as to whether he has psychological impairments that may impede
his ability to sustain work involving substantial gainful
activity.
On this record, I conclude the ALJ did not give a germane
reason for rejecting the lay evidence offered by plaintiff’s
mother as to whether plaintiff’s psychological impairments may
impede his ability to engage in substantial gainful activity.
15 - OPINION AND ORDER
3.
Examining Physician’s Opinions.
Plaintiff contends the ALJ improperly rejected Dr. Ellison’s
opinion that plaintiff was only able to stand for one hour at a
time for a total of three hours during an eight-hour workday,
walk four-to-five- blocks, and sit for two hours.
“[T]he Commissioner must provide clear and convincing
reasons for rejecting the uncontradicted opinion of an examining
physician . . . . [T]he opinion of an examining doctor, even if
contradicted by another doctor, can only be rejected for specific
and legitimate reasons. . . .”
Turner v. Commissioner, 613 F.3d
1217, 1222 (9th Cir. 2010), citing Lester v. Chater, 81 F.3d 821,
830-31 (9th Cir.1995)(quotation marks omitted).
The ALJ found Dr. Ellison’s opinion as to plaintiff’s
physical limitations is not supportable because Dr. Ellison also
stated his examination of plaintiff’s lower extremities was
normal.
Plaintiff, however, asserts Dr. Ellison found he had
“abdominal pain and tenderness possibly caused by adhesions.”
According to plaintiff, those findings in fact supported Dr.
Ellison’s sitting, standing, and walking limitations.
Dr. Ellison does not specifically identify the medical
impairments that cause the physical limitations he assigns to
plaintiff and, therefore, this court is unable to discern why
Dr. Ellison assigned standing, walking, and sitting limitations.
16 - OPINION AND ORDER
Given this lack of clarity, I conclude the ALJ did not give
specific and legitimate reasons for rejecting Dr. Ellison’s
opinion but the record also is not clear as to whether
plaintiff’s abdominal adhesions are a cause of his physical
limitations.
4.
Residual Functional Capacity (RFC) Hypothetical.
In his hypothetical to the VE, the ALJ did not include any
limitations based on plaintiff’s purported psychological
impairments.
For all of the reasons stated above, I conclude
the hypothetical the ALJ posed to the VE was inadequate to the
extent plaintiff may have psychological impairments that would
affect his ability to engage in substantial gainful activity.
5.
Plaintiff’s Past Relevant Work.
For the reasons stated above, I conclude the ALJ’s finding
that plaintiff has the ability to perform past relevant work as a
phone answerer and cold caller, front desk clerk, and
receptionist is not supported by substantial evidence based on
the record as it now stands.
REMAND
On this record, the court in the exercise of its discretion
concludes this matter should be remanded to the Commissioner for
further proceedings.
See Harman v. Apfel, 211 F.3d 1172, 1178
(9th Cir.), cert. denied, 121 S. Ct. 628 (2000).
17 - OPINION AND ORDER
During the remand, the Commissioner shall (1) further
develop the medical record as to plaintiff’s psychological
impairments, and (2) obtain clarification from Dr. Ellison as to
whether plaintiff’s abdominal adhesions are a cause of
plaintiff’s alleged standing, walking, and sitting limitations.
Based on this further development of the record, the Commissioner
shall reevaluate whether plaintiff has the ability to engage in
substantial gainful activity and, if so, what activity.
CONCLUSION
For these reasons, the final decision of the Commissioner is
REVERSED and this matter is REMANDED pursuant to Sentence Four of
42 U.S.C. § 405(g) for further proceedings as set forth above.
IT IS SO ORDERED.
DATED this 15 day of July, 2011.
/s/ Malcolm F. Marsh
MALCOLM F. MARSH
United States District Judge
18 - OPINION AND ORDER
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