O'Cain v. Commissioner Social Security Administration
Filing
40
OPINION AND ORDER - For the reasons stated, the Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this opinion. IT IS SO ORDERED. Dated this 10th day of May, 2012, by U.S. Magistrate Judge John V. Acosta. (re: motion to remand 33 .) (peg)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
THOMAS B. O'CAIN,
Plaintiff,
Case No.: 3:10-CV-01547-AC
OPINION AND ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
ACOSTA, Magistrate Judge:
Thomas 0' Cain ("plaintiff") seeks judicial review of a final decision by the Commissioner
of Social Security ("Commissioner") denying his applications for Disability Insurance Benefits
("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security
Act.
See 42 U.S.C. §§ 401-403, 1381-83(f).
This Couli has jurisdiction to review the
Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a careful review of the record,
the Commissioner's decision is reversed and this case remanded for fmiher proceedings consistent
with this opinion.
Page 1 - OPINION AND ORDER
Procedural Background
Plaintiff filed applications for SSI and DIB on July 27, 2006, alleging disability as of
Februmy 28, 2002. Both applications were denied initially and upon reconsideration. A hearing was
held on November 18,2009 before Administrative Law Judge Riley J. Atkins (the "AU"), at which
plaintiff appeared and amended the alleged onset date of disability to Februmy 25, 2006. On
December 17, 2009, AU Riley issued a decision finding plaintiff not disabled. Plaintiff timely
requested review of the AU's decision, and the Appeals Council denied his request for review,
making the AU's opinion the Commissioner's final decision. Subsequently, plaintiff filed forreview
of that decision in this Comt.
Factual Background
Born on October 7,1954, plaintiffwas 51 years old on the amended onset date and 55 years
old on the date of the hearing. Tr. 21. Plaintiff graduated from high school and attended two years
of college. Tr. 196. In addition to serving in the military, plaintiff has past relevant work as a
machinist. Tr. 21, 63-64, 201.
Standard ofReview
The comt must affinn the Secretmy's decision if it is based on proper legal standards and the
findings are suppOlted by substantial evidence in the record. Hammock v. Bowen, 879 F .2d 498, 50 I
(9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402
U.S. 389,401 (I 971)(quoting Consolo Edison CO.
V.
NL.R.B., 305 U.S. 197,229 (1938)). The court
must weigh "both the evidence that SUppOltS and detracts from the Secretmy's conclusions."
j\;fartinez V. Heckler, 807 F.2d 771,772 (9th Cir. 1986). "Where the evidence as a whole can SUppOlt
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either a grant or a denial, [a court] may not substitute [its] judgment for the ALJ's." ",,;fassachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted),
The initial burden ofproof rests upon the claimant to establish disability. Howardv. Heckler,
782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an "inability
to engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected ... to last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A).
The Secretaty has established a five-step sequential process for determining whether a person
is disabled. Bowen v. Ylickert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First,
the SecretalY determines whether a claimant is engaged in "substantial gainful activity"; if so, the
claimant is not disabled. Ylickert, 482 U.S. at 140; 20 C.F,R. §§ 404. 1520(b), 416.920(b).
At step two, the Secretaty detennines whether the claimant has a "medically severe
impaitment or combination of impairments." Ylickert, 482 U.S. at 140-41; see 20 C.F.R. §§
404.l520(c),4l6.920(c). Ifnot, the claimant is not disabled. Ylickert, 482 U.S. at 141.
At step three, the SecretalY detelmines whether the impairment meets or equals "one of a
number of listed impaitments that the Secretaty acknowledges are so severe as to preclude
substantial gainful activity." ld.; see 20 C.F.R. §§ 404.l520(d), 416.920(d). Ifso, the claimant is
conclusive1ypresumed disabled; ifnot, the Secretary proceeds to step four. Ylickert, 482 U.S. at 141.
At step four, the Secretaty determines whether the claimant can still perform "past relevant
work." Yuckert, 482 U.S. at 141; see 20 C.F.R. §§ 404.lS20(e), 416.920(e). If the claimant can
work, he is not disabled; ifhe cannot perform past relevant work, the burden shifts to the Secretary.
Ylickert, 482 U.S. at 141. At step five, the Secretary must establish that the claimant can perform
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other work. Id at 142; see 20 C.F.R. §§ 404.1 520(e) & (t), 416.920(e) & (t). If the Secretatymeets
this burden and proves that the claimant is able to perfOlm other work which exists in the national
economy, he is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
Disclission
I. The ALJ's Findings
At step one ofthe five-step sequential evaluation process outlined above, the ALJ found that
plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 14, Finding
2. At step two, the ALJ found that plaintiff had the following severe impairments: Crolm's disease.
Tr. 14, Finding 3. At step three, the ALJ found that plaintiffs impairments, either singly or in
combination, did not meet or equal the requirements of a listed impahment. Tr. 16, Finding 4.
As such, the ALJ continued the sequential evaluation process to detennine how plaintiffs
medical impairments affected his ability to work. The ALJ resolved that plaintiff had the residual
functional capacity ("RFC") to perform medium exertion work, "except that he requires access and
close proximity to a restroom facility in the workplace." Tr. 17, Finding 5.
At step four, the ALJ concluded that plaintiff was capable of performing his past relevant
work as a machinist. Tr. 21, Finding 6. The ALJ also entered an alternative finding at step five; the
ALJ found that considering his age, education, work experience, and RFC, there are jobs that exist
in significant numbers in the national economy that plaintiff could perform and, as such, he was not
disabled. Tr. 22.
II. Plaintiffs Allegations of Error
Plaintiff argues that the ALJ erred by: I) failing to include all of his limitations into the RFC
assessment; and 2) posing incomplete hypothetical questions to the vocational expert eVE") at the
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hearing. PI.'s Opening Br. 2.
The Commissioner concedes that the ALJ committed a number of el1"0rs wal1"anting reversal.
Def.'s Resp. Br. 7. First, the Commissioner acknowledges that the ALJ el1"ed by failing to evaluate
plaintiffs impaitments of knee pain, depression, and cannabis dependence at step two. Id Second,
the Commissioner admits that the ALJ el1"ed by improperly evaluating the lay testimony. Id. As a
result, the Commissioner concurs with plaintiff that the ALI's RFC assessment failed to incorporate
all of his limitations, which rendered the VE's testimony invalid. Id Accordingly, the sole issue
on review is whether this case should be remanded for fuliher proceedings or for the payment of
benefits.
The decision "whether to remand the case for additional evidence or simply to award benefits
is within the discretion of the couti." Stone v. Heckler, 761 F.2d 530, 533 (9th Cir.l985); see also
Harman v. Apfel, 211 F.3d 1172, 1176-78 (9th Cir.), cert. denied, 531 U.S. 1038 (2000). Generally,
remand for the payment of benefits is proper "when no useful purpose would be served by further
administrative proceedings . . . or when the record has been fully developed and there is not
sufficient evidence to support the ALJ's conclusion." Rodriguez v. Bml'en, 876 F.2d 759, 763 (9th
Cir. 1989) (citations omitted); see also Holohan v. lvfassanari, 246 F.3d 1195, 1210 (9th Cir. 2001).
However, remand for fuliher proceedings is appropriate where outstanding issues remain unresolved.
Bunnell v. Barnhart, 336 F.3d 1112, 1115-16 (9th Cir. 2003).
Here, plaintiff argues that remand for the payment of benefits is appropriate.
In his
applications for DIB and SSI, plaintiffalleges that he is primarily disabled by Crohn's disease, which
required surgery to remove substantial pOliions of his large intestine or colon, resulting in a
Page 5 - OPINION AND ORDER
permanent ileostomy. I Tr. 188. In addition to causing routine physical interference with any task,
plaintiff asserts that his ileostomy bag must be emptied approximately five times per day. Tr. 608.
FUliher, plaintiff testified that bending or pressure can cause the ileostomy bag to break or detach,
releasing its contends. Tr. 42, 44, 60. As such, plaintiff contends if his ileostomy bag broke or
detached while he was at work, a two-hour absence would result, as he would be required to leave
in order to shower and change clothes. PI.' s Reply Br. 3.
At the hearing, plaintiff s attomey posed the following question to the VE:
If our hypothetical individual has an ileostomy, and sometimes it comes loose and
he has to take unscheduled breaks to deal with this. And let's say he's taking ... four
or five unscheduled breaks per week in addition to his regular breaks. And these
breaks are going to be probably at least fifteen minutes long in order to allow him to
clean up. How is that going to affect his ability to sustain competitive employment?
Tr. 69-70. The VE responded that competitive employment would be precluded by such a limitation.
Id. at 70. Plaintiff argues that, based on the VE's testimony, remand for the payment of benefits is
suitable because sustained employment is foreclosed by his need to frequently empty or clean up
around his ileostomy bag.
Conversely, the Commissioner asserts that remand for further proceedings is required.
Specifically, the Commissioner contends that plaintiff failed to introduce "[medical] evidence [of]
a limitation of needing to take four or five unscheduled breaks per week in addition to his regular
breaks that would need to last at least 15 minutes long." Def.'s Resp. Br. 9. Accordingly, the
Commissioner argues that the VE's testimony "in response to [plaintiffs attomey's hypothetical
question] does not qualify as substantial evidence that is necessary to even support a finding of
I An ileostomy is a surgical opening constructed by bringing the end or loop ofthe small
intestine out onto the surface of the skin on the stomach. Intestinal waste passes out of the
ileostomy and is collected in an bag that must be regularly emptied and changed.
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disability in this case." Id
In order to be dispositive on the issue of disability, hypothetical questions posed to the VE
must only include limitations that are supported by substantial evidence. Osenbrock v. Apfel, 240
F3d 1157, 1163-64 (9th Cir. 2001). In this case, there is very little evidence regarding the frequency
with which plaintiff s ileostomy bag must be emptied. In fact, plaintiff did not testify at the hearing
regarding the number oftimes per day that he needed to void his ileostomy bag. Tr. 42-62. Rather,
when the ALJ asked how much work he had to miss on average as a result of his ileostomy, plaintiff
merely responded "enough to get reprimanded." Tr. 44.
Beyond this testimony, the record contains only a singular reference to this limitation; on
April 28, 2007, plaintiff reported to Dr. Nguyen that he "[e]mpties [his] ileostomy bag about 5 times
a day." Tr. 607-08. In other words, the only evidence relating to this impairment is plaintiffs
subjective reports. However, the ALJ detennined that plaintiff was not fully credible and plaintiff
does not now challenge that finding. Tr. 19.
As such, the Commissioner is correct that, because plaintiff s alleged limitation of an
additional four to five unscheduled breaks per week is not supported by the record, the VE' s
testimony does not constitute substantial evidence. Nevertheless, because there is objective medical
evidence relating to plaintiff s permanent need for an ileostomy bag, an outstanding issue remains
in this case; namely, testimony from a medical expert ("ME") is necessary to detennine the number
of times per day an ileostomy bag must be emptied and the length of time required to do so.
Therefore, this case is remanded for further proceedings in order to reevaluate whether
plaintiff s alleged knee pain, depression, and cannabis dependence are severe impairments at step
two, as well as to reformulate the RFC assessment. In doing so, the ALJ must consider and address
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the lay testimony ofplaintiffs ex-wife, Susan Allen. In addition, upon remand, the ALJ must obtain
ME testimony regarding temporal and functional limitations associated with an ileostomy bag.
Finally, if necessary, the ALJ must obtain additional VE testimony in light of the ME's testimony
and plaintiff s new RFC determination.
COllclusioll
F or the reasons stated above, the Commissioner's decision is REVERSED and REMANDED
for fm1her proceedings consistent with this opinion. The Commissioner must adduce additional
evidence regarding plaintiff s ileostomy from an ME and reevaluate steps two through five of his
decision. The Clerk is directed to grant judgment for plaintiff pursuant to sentence four of42 U.S.C.
§ 405(g).
IT IS SO ORDERED,
'-r!b\
/
DATED this ~ day of May 2012.
J0HN V. ACOSTA
United States Magistrate Judge
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