Tillinghast v. Commissioner Social Security Administration
Filing
15
OPINION AND ORDER: the Commissioner's final decision denying benefits to plaintiff is REMANDED to the Commissioner pursuant to Sentence Four of 42 U.S.C. § 405(g) for further proceedings as set forth above. Ordered by Judge Malcolm F. Marsh. (sd)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Portland Division
VICTOR TILLINGHAST,
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social
Security,
Defendant.
MERRILL SCHNEIDER
Schneider Law Offices
P.O. Box 14490
Portland, OR 97293
(503) 255-9092
Attorneys 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
1 - OPINION AND ORDER
3:10-CV-1113-MA
OPINION AND ORDER
BENJAMIN J. GROEBNER
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 MS/901
Seattle, WA 98104-7075
(206) 615-2531
Attorneys for Defendant
MARSH, Judge.
Plaintiff seeks judicial review of the Commissioner’s final
decision denying his December 1, 2006, applications for
disability insurance benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. §§ 401-34 and supplemental security
income benefits (SSI) under Title XVI of the Social Security Act,
42 U.S.C. §§ 1381-83f.
Plaintiff claims he has been disabled since April 2, 2002,
because of head and neck tremors, cervical degenerative disc
disease, and arthritis in his knees and arms.
denied initially and on reconsideration.
His claim was
On January 13, 2010,
the Administrative Law Judge (ALJ) held an evidentiary hearing
and on February 4, 2010, issued a Notice of Decision finding
plaintiff has severe impairments related to degenerative cervical
disc disease and osteoarthritis of the right knee that limit him
to occasional overhead reaching, climbing, kneeling, crouching
and crawling.
The impairments, however, do not prevent him from
performing his past relevant work as a data entry clerk or mail
clerk.
2 - OPINION AND ORDER
On July 20, 2010, the Appeals Council denied plaintiff's
request for review.
The ALJ's decision, therefore, is the
Commissioner's final decision for purposes of judicial review.
Plaintiff seeks an Order reversing the Commissioner's final
decision and remanding the case for further proceedings that
would include a neuropsychological evaluation of plaintiff.
For the following reasons, the final decision of the
Commissioner is REMANDED for further proceedings as set forth
below.
THE ALJ'S FINDINGS
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant 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 had not engaged in
substantial gainful activity since April 2, 2002.
At Step Two, the ALJ found plaintiff has severe impairments
related to cervical degenerative disc disease and osteoarthritis
in his right knee.
20 C.F.R. § 404.1520© and 404.920(c)(an
impairment or combination of impairments is severe if it
significantly limits an individual's physical or mental ability
to do basic work activities).
3 - OPINION AND ORDER
At Step Three, the ALJ found plaintiff's impairments do not
meet or equal any listed impairment.
He has the residual
functional capacity to perform light work limited to occasional
overhead reaching, climbing, kneeling, crouching and crawling.
At Step Four, the ALJ found plaintiff is able to perform his
past relevant work as a data entry clerk or mail clerk.
Accordingly, the ALJ found plaintiff is not disabled.
LEGAL STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Roberts v. Shalala, 66 F.3d 179, 182 (9th
Cir. 1995), cert. denied, 517 U.S. 1122 (1996).
The claimant
must show 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 decision must be affirmed if the ALJ
applied proper legal standards and made findings supported by
substantial evidence in the entire record.
42 U.S.C. § 405(g).
"Substantial evidence” is “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).
4 - OPINION AND ORDER
The court must weigh all of the evidence whether it supports
or detracts from the Commissioner's decision.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
Martinez v.
The Commissioner's
decision must be upheld, however, even if the "evidence is
susceptible to more than one rational interpretation."
Andrews,
53 F.3d at 1039-40.
The Commissioner bears the burden of developing the record.
DeLorme v. Sullivan, 924 F.2d 841, 849 (9th Cir. 1991).
The duty
to further develop the record, however, is triggered only when
there is ambiguous evidence or when the record is inadequate to
allow for proper evaluation of the evidence.
Mayes v. Massanari,
276 F.3d 453, 459-60 (9th Cir. 2001).
The decision whether to remand for further proceedings or
for the 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 erred in failing (1) to give
clear and convincing reasons for rejecting plaintiff’s testimony;
(2) to give a germane reason for not considering the written lay
5 - OPINION AND ORDER
evidence offered by his wife; (3) to give specific and legitimate
reasons for rejecting medical opinions of examining physicians;
(4) to find plaintiff’s head tremors are a severe impairment;
(5) to require plaintiff to undergo a neuropsychological
examination; and (6) to make sufficient factual findings
regarding plaintiff’s ability to perform his past relevant work.
PLAINTIFF'S TESTIMONY/EVIDENCE
Plaintiff's evidence is drawn from his hearing testimony and
work/earnings history reports.
Education.
Plaintiff was 54 years old on the date of the hearing.
He
has a B.A. degree in liberal arts, humanities, and theology, and
a certificate in operating small business machines.
He has taken
a correspondence course in accounting.
Work History.
Plaintiff’s last employment was from 1995 to April 2002 as a
senior operations specialist for a bank, in which he processed
wire transfers and performed computerized data entry and
retrieval.
He lost his job at the bank because of stress caused
by “head and neck tremoring” that impaired concentration while he
was working on a computer.
He also had difficulty answering the
telephone while performing computer tasks.
He was “content,”
however, if he was only required to perform data entry tasks.
6 - OPINION AND ORDER
From 1990 to 1993, plaintiff worked as a data entry/billing
clerk for a downtown parking company.
He quit after he was
transferred to a parking attendant position as punishment for
telephoning his wife during his break.
Other employees routinely
did the same thing without such a consequence.
Plaintiff has also worked as a mail clerk for a law firm and
data checker for a manufacturing firm.
Medical Issues.
Plaintiff began suffering involuntary and constant head
tremors (tics) shortly before he left his job at Wells Fargo in
2002.
They have occurred regularly since then.
He also has
slight hand tremors that are unrelated to his head tremors.
His
hands sometimes freeze up.
Plaintiff has arthritis with pain in both knees, but more so
in the right knee.
Plaintiff was prescribed crutches and a wheelchair in August
2005 to help him walk.
Daily Activities.
Plaintiff’s daily activities include listening to the radio,
watching videos, playing cards, reading, and checking e-mails. He
sleeps well and is able to manage his personal care needs.
He
prepares his own meals, does the laundry, and performs routine
household chores such as washing the dishes, as well as vacuuming
for 15 minutes.
He shops for groceries twice a month.
7 - OPINION AND ORDER
Plaintiff avoids heavy lifting and lengthy walks.
He has
difficulty squatting, kneeling, and climbing stairs, or any other
activity requiring him to use his knees.
He no longer swims,
runs, hikes, or goes camping, and he uses crutches or a
wheelchair if his knees hurt.
Plaintiff asserts that his tremors interfere with his
concentration, and his memory in the weeks before the hearing was
occasionally impaired.
instructions.
He is able to follow concise detailed
He has difficulty handling stress, but he is able
to cope with changes in routine.
LAY EVIDENCE
Plaintiff’s wife completed a Third-Party Function Report in
which she described plaintiff’s daily activities as including
reading, watching television, playing games, and listening to
music.
She wrote that plaintiff’s impairments, however, impede his
ability to lift, squat, stand, walk, kneel, climb stairs, and
complete routine household chores in a timely manner.
He is only
able to walk for 10 minutes before needing to rest for 30
minutes.
She also wrote that he has difficulty with concentration,
memory, following instructions, and getting along with others,
including his sister and the neighbors.
8 - OPINION AND ORDER
MEDICAL EVIDENCE
Medical Treatment.
Good Samaritan Hospital.
In August 2005, plaintiff was treated for a twisting injury
to his right knee, which causes it to lock up.
pain on weight bearing.
It also causes
An MRI revealed osteoarthritic changes
with chondromalacia, extensive tearing of the lateral meniscus, a
probable tear of the medial meniscus, knee joint effusion, and a
cyst and bone island in the femur.
Medical Examination.
Providence/St. Vincent Hospital.
In July 2007, an MRI of plaintiff’s cervical spine and brain
revealed “moderate-to-advanced spondylitic and diskogenic
changes” at C5-6 and C6-7, causing a mild degree of spinal
stenosis and a moderate degree of bilateral neuroforaminal
stenosis.
The brain scan was unremarkable.
Tatsuro Ogisu, M.D. - Physical Medicine and Rehabilitation.
In August 2007, Dr Ogisu examined plaintiff on behalf of
Disability Determination Services (DDS) regarding his complaint
of head and neck tremors and arthritis in his arms and legs.
Plaintiff was cooperative, and made a good effort during the
examination.
9 - OPINION AND ORDER
Dr. Ogisu diagnosed a “minimal tremor” that affected
plaintiff’s head and neck, as well as a “barely perceptible
tremor” in his hands.
Plaintiff had degenerative changes in his
right knee and “likely” in his left knee.
Dr. Ogisu opined plaintiff had no sitting restrictions.
He
is able to stand and walk short distances for four hours in an
8-hour work day, lift and carry 25 lbs occasionally and 10 lbs
frequently, and frequently use his hands for “light fine and
gross manipulation.”
Dr. Ogisu further opined plaintiff does not require a walker
but he should use a walking stick when he is walking over rough
terrain or up steep slopes.
Terri Robinson, M.D. - Radiologist.
In June 2008, Terri Robinson, M.D., examined plaintiff on
behalf of DDS and found plaintiff had mild-to-moderate narrowing
and degenerative changes in the medial/lateral compartments and
tibial/lateral spines of both knees.
He can stand and walk for
two hours in an 8-hour day and climb, balance, stoop, kneel,
crouch, fully reach, handle, and manipulate with his fingers
frequently.
Plaintiff had mild decreased grip strength in his
right hand and difficulty holding objects in the palm of that
hand.
He had a mild tremor in his hands in testing of his range
of motion in his cervical spine.
was slightly decreased.
10 - OPINION AND ORDER
His bilateral “quads” strength
He had no environmental limitations.
Medical Consultation.
Linda L. Jensen, M.D. - Physical Medicine and Rehabilitation
Sharon B. Eder, M.D.- Internal Medicine.
Dr. Jensen reviewed the medical records on behalf of DDS and
concluded plaintiff has the residual functional capacity to lift
20 lbs occasionally and 10 lbs frequently, stand/walk for six
hours in an 8-hour work day, push and pull on an unlimited basis,
climb stairs and ramps, balance, kneel, crouch, and crawl
occasionally, and stoop or kneel frequently.
Dr. Eder reviewed
the same medical records and concurred in Dr. Jensen’s opinion.
DISCUSSION
Plaintiff’s Credibility.
Plaintiff contends the ALJ failed to give clear and
convincing reasons for rejecting his testimony regarding the
impact of his impairments on his activities of daily living and
why his medical treatment was limited.
A plaintiff alleging disability based on subjective symptoms
must produce objective medical evidence of an underlying
impairment which could reasonably be expected to produce the pain
or other symptoms alleged.”
(9th Cir. 1996).
Smolen v. Chater, 80 F.3d 1273, 1281
The plaintiff need not produce objective
medical evidence of the symptoms or their severity.
If the plaintiff produces objective evidence that his
underlying impairments could cause his pain and there is no
11 - OPINION AND ORDER
evidence of malingering, the ALJ is required to give clear and
convincing reasons for rejecting his testimony as to the severity
of his symptoms.
Lingfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007).
To determine whether the plaintiff’s subjective testimony is
credible, the ALJ may rely on (1) ordinary techniques of
credibility evaluation such as the plaintiff’s reputation for
lying, prior inconsistent statements concerning the symptoms, and
other testimony by the plaintiff that appears less than candid;
(2) an unexplained or inadequately explained failure to seek
treatment or to follow a prescribed course of treatment; and (3)
the plaintiff’s daily activities.
Smolen, 80 F.3d. at 1284
(citation omitted).
The ALJ generally found plaintiff’s allegations as to the
existence of his physical symptoms “are only partially supported
by the record,” and that although “plaintiff has severe physical
impairments” that may cause some of his alleged symptoms, “his
allegations as to the intensity, persistence, and limiting
effects of those symptoms are disproportionate and not consistent
with the corroborating evidence.”
To support that finding, the
ALJ noted plaintiff’s significant routine daily activities, his
failure to make a “serious attempt to obtain treatment” for his
alleged impairments, and the lack of medical evidence regarding
the severity of his alleged impairments.
12 - OPINION AND ORDER
Plaintiff asserts these reasons given by the ALJ to reject
his testimony regarding the severity of his impairments were not
clear and convincing.
Failure to Seek Medical Treatment.
Plaintiff points out the ALJ never asked him why he did not
seek significant medical treatment.
See Social Security
Regulation (SSR) 96-7p (“[T]he adjudicator must not draw any
inferences about an individual's symptoms and their functional
effects from a failure to seek or pursue regular medical
treatment without first considering any explanations that the
individual may provide . . . that may explain infrequent or
irregular medical visits or failure to seek medical treatment.).”
(Emphasis added).
If the ALJ had so inquired, plaintiff would
have told him he lacked the funds and/or insurance coverage to
pay for such treatment.
On this record, I agree the ALJ should have inquired of
plaintiff as to why he did not seek more medical treatment for
his physical impairments and, therefore, should not have drawn an
unfavorable inference regarding plaintiff’s credibility based on
his failure to seek more medical treatment.
Plaintiff’s Daily Living Activities.
The ALJ found plaintiff’s daily activities reflect he is
able to care for himself, prepare his own meals, perform routine
household chores, walk, use public transit, drive, shop, manage
13 - OPINION AND ORDER
his finances, use a computer, and engage in non-exertional
recreational activities that are inconsistent with plaintiff’s
“complaints of disabling symptoms and limitations.”
There is no question the record reflects and plaintiff
acknowledges he has the ability to perform those tasks to some
degree.
The ALJ, however, ignored plaintiff’s testimony that he
avoided heavy lifting and long walks, had difficulty squatting,
kneeling, climbing stairs, or otherwise engaging in other
activity that required him to use his knees, including swimming,
running, hiking, and camping, and that he uses crutches or a
wheelchair if his knees hurt.
On this record, I conclude the ALJ’s reliance on plaintiff’s
own description of his daily activities as a basis to support a
nondisability finding was unfounded and the record as a whole
does not support the ALJ’s finding that plaintiff’s allegations
regarding the severity of his impairments are not credible.
Lack of Medical Evidence.
As set forth, plaintiff contends he was unable to seek
significant medical care because he lacked either the funds or
the medical insurance to do so.
Notwithstanding the dearth of medical evidence, there is
objective medical evidence that plaintiff does have severe
impairments relating to his knees, as the ALJ acknowledged.
A 2005 MRI taken at Good Samaritan Hospital revealed significant
14 - OPINION AND ORDER
knee problems, including osteoarthritic changes associated with
chondromalacia, extensive tearing of the lateral meniscus, a
probable tear of the medial meniscus, knee joint effusion, and a
cyst and bone island in the femur.
For all of these reason, I conclude the ALJ did not give
clear and convincing reasons for rejecting plaintiff’s testimony
regarding the severity of his knee impairments.
Lay Witness Testimony.
Plaintiff contends the ALJ failed to evaluate adequately his
wife’s lay evidence.
“Lay testimony as to a claimant's symptoms is competent
evidence that an ALJ must take into account, unless he or she
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 wife wrote that plaintiff’s knee impairments
cause him difficulty squatting, standing, walking, kneeling,
climbing stairs, and completing routine household chores in a
timely manner.
He is only able to walk for 10 minutes before
needing to rest for 30 minutes.
She also wrote that he has difficulty with concentration,
memory, following instructions, and getting along with others,
including his sister and the neighbors.
15 - OPINION AND ORDER
The ALJ refers obliquely to this evidence in his opinion
solely by referring to the exhibit number for it.
The ALJ,
however, dismisses the evidence contained in that exhibit in
general because, in his opinion, the record as a whole reflects
plaintiff engaged in daily activities that were inconsistent
with the limitations described
by plaintiff’s wife in her
statement.
As noted above, there is medical evidence in the record to
justify a finding that plaintiff has severe knee impairments.
Moreover, the lay evidence of plaintiff’s wife supports a finding
that plaintiff’s knee impairments in fact interfere to some
extent with his activities of daily living.
Accordingly, I conclude the ALJ gave no germane reason for
effectively ignoring that evidence.
Examining Physician Evidence.
Plaintiff contends the ALJ erred in failing to give specific
and legitimate reasons for rejecting medical opinions offered by
examining physicians Tatsuro Ogisu, M.D. and Terri Robinson, M.D.
“To reject an uncontradicted opinion of a treating or
examining doctor, an ALJ must state clear and convincing reasons
that are supported by substantial evidence.”
Barnhart, 427 F.3d 1211, 1216 (9th
Cir. 2005), citing Lester v.
Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).
16 - OPINION AND ORDER
Bayless v.
“If a treating or
examining doctor's opinion is contradicted by another doctor's
opinion, an ALJ may only reject it by providing specific and
legitimate reasons that are supported by substantial evidence.”
Id.
In “evaluating conflicting medical opinions, an ALJ need
not accept the opinion of a doctor if that opinion is brief,
conclusory, and inadequately supported by clinical findings.”
Id, citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.
2001).
Tatsuro Ogisu, M.D.
Dr. Ogisu opined inter alia that plaintiff is able to stand
and walk short distances for four hours in an 8-hour work day,
and frequently use his hands for “light and fine manipulation.”
The walking limitations assigned by Dr. Ogisu were plainly
associated with plaintiff’s objectively identified knee
impairments.
The ALJ, however, refused to give “significant weight” to
Dr. Ogisu’s standing and walking limitations because they were
“not well supported by medically acceptable diagnostic studies.”
As set forth above, there is substantial medical evidence in
the record that plaintiff has severe knee impairments.
The ALJ’s
finding to the contrary, and his refusal to adopt Dr. Ogisu’s
workplace limitations based on those knee impairments, is not
supported by substantial evidence in the medical record.
17 - OPINION AND ORDER
Terri Robinson, M.D.
Dr. Robinson opined plaintiff is able to stand and walk for
two hours in an 8-hour day.
As with Dr. Ogisu, that limitation
is plainly associated with plaintiff’s knee impairments.
The ALJ rejected Dr. Robinson’s opinion because he concluded
Dr. Robinson’s objective findings did not support the workplace
limitations she attributed to plaintiff.
For the same reasons
stated above as to Dr. Ogisu, I conclude the ALJ’s reason for
rejecting that opinion is not supported by the medical evidence.
Other Issues.
Neuropsychological Examination.
Plaintiff contends the ALJ erred in failing to develop the
medical record by obtaining a neuropsychological evaluation of
plaintiff before making a finding that plaintiff’s head tremors
were not a severe impairment.
I disagree.
The ALJ “has an independent duty to fully and fairly develop
the record and to assure that the claimant's interests are
considered.”
Tonapetyan v. Halter, 242 F.3d 1144, 1151 (9th Cir.
2001)(quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir.
1996)).
“The ALJ should not be “a mere umpire during disability
proceedings,” but must “scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.”
Widmark
v. Barnhart, 454 F.3d 1063, 1068-69 (9th Cir. 2006), citing
Higbee v. Sullivan, 454 F.3d 1063, 1068-69 (9th Cir. 1992).
18 - OPINION AND ORDER
“Ambiguous evidence, or the ALJ's own finding that the
record is inadequate to allow for proper evaluation of the
evidence, triggers a duty to conduct an appropriate inquiry.”
Tonapetyan, 242 F.3d at 1150.
The existing medical record reflects that the tremors
plaintiff suffers in his head (and in his hands) are mild and
there is no substantial evidence they significantly impede his
ability to engage in substantial gainful activity.
On this record, I conclude the ALJ did not err in failing to
obtain a neuropsychological evaluation of plaintiff related to
those tremors.
Past Relevant Work.
Plaintiff contends the ALJ failed to make sufficient factual
findings that plaintiff is able to perform his past relevant work
as a data entry clerk and/or mail clerk.
“At step four, claimants have the burden of showing that
they can no longer perform their past relevant work. 20 C.F.R.
404.1520(e) and 416.920(e).”
844 (9th Cir. 2001).
Pinto v. Massanari, 249 F.3d 840,
“Once they have shown this, the burden at
step five shifts to the Secretary to show that, taking into
account a claimant's age, education, and vocational background,
[h]e can perform any substantial gainful work in the national
economy. 20 C.F.R. § 404.1520(f) and 416.920(f).”
19 - OPINION AND ORDER
Id.
“Although the burden of proof lies with the claimant at
step four, the ALJ still has a duty to make the requisite factual
findings to support his conclusion,” by making “specific findings
as to the claimant’s residual functional capacity, the physical
and mental demands of the past relevant work, and the relation of
the residual functional capacity to the past work.”
Id.
For all the reasons set forth above, I conclude the ALJ
improperly rejected or ignored medical evidence and lay witness
evidence regarding the severity of plaintiff’s knee impairments
and his ability to maintain concentration, follow instructions,
and get along with others.
Accordingly, on this record, I conclude this matter should
be remanded to the Commissioner for further proceedings.
NATURE OF THE REMAND
The proceedings on remand should include a further medical
examination of plaintiff’s knees, and a psychological evaluation
of plaintiff’s ability to maintain concentration, persistence,
and pace in the workplace for the purposes of (1) determining
whether plaintiff is able to perform his past relevant work as a
data entry clerk and/or mail clerk, and if not, (2) determining
whether there is other work available in the national economy
that he can perform in light of his physical
impairments.
20 - OPINION AND ORDER
and psychological
CONCLUSION
For the reasons set forth above, the Commissioner's final
decision denying benefits to plaintiff is REMANDED to the
Commissioner pursuant to Sentence Four of 42 U.S.C. § 405(g) for
further proceedings as set forth above.
IT IS SO ORDERED.
DATED this 29 day of September, 2011.
/s/ Malcolm F. Marsh
MALCOLM F. MARSH
United States District Judge
21 - OPINION AND ORDER
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