Washington v. Social Security Administration
Filing
16
Opinion and Order - The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this Opinion and Order. Signed on 4/25/12 by Judge Anna J. Brown. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
LEO WASHINGTON, JR.,
Plaintiff,
v.
MICHAEL AS TRUE ,
Commissioner of Social
Security,
Defendant.
BRENDA S. MOSELEY
320 Central Ave., Suite 422
Coos Bay, OR 97420
(503) 266-0436
Attorneys for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
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3:ll-CV-003l8-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
KATHY REIF
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900 MS/901
Seattle, WA 98104-7075
(206) 615-3851
Attorneys for Defendant
BROWN, Judge.
Plaintiff Leo Washington, Jr., seeks judicial review of the
Commissioner of Social Security's final decision denying
Plaintiff's December 6, 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.
This Court has jurisdiction to review the
Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court REVERSES the
Commissioner's final decision and REMANDS this matter pursuant to
sentence four of 42 U.S.C. § 405(g) for further administrative
proceedings consistent with this Opinion and Order.
ADMINISTRATIVE HISTORY
Plaintiff applied for DIB and SSI on December 6, 2006,
alleging he was disabled for a closed period from October 16,
2006, until at least April 2008 as a result of broken ribs, a
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broken right arm, fractured skull, fractured nose, and affective
mood disorders including anxiety, post-traumatic stress disorder
(PTSD), memory loss, and depression.
Tr. 88, 147, 205.
An Administrative Law Judge (ALJ) held an evidentiary
hearing on August 31, 2009, at which Plaintiff, his mother, and
a vocational expert (VE) testified.
Tr. 34-87.
The ALJ issued a decision on September 28, 2009, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.
Tr. 11-20.
That decision became the final decision
of the Commissioner on January 10, 2011, when the Appeals Council
denied Plaintiff's request for review.
Tr. 1-3.
On March 15, 2011, Plaintiff filed his Complaint seeking
review by this Court of the Commissioner's final decision.
BACKGROUND
On the date of the administrative hearing, Plaintiff was 37
years old.
Tr. 41.
Plaintiff performed past relevant work as a
heavy-equipment operator and truck driver.
Tr. 43-44.
Plaintiff
has been receiving mental-health treatment since he was injured
and two of his friends were killed in an automobile accident in
October 2006.
Tr. 47, 147.
Since the accident Plaintiff has had a "severe wrist drop"
that prevents him from gripping, lifting, moving his thumb, or
extending his fingers on his right hand.
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Plaintiff uses one hand
to cut up and to eat food and is unable to operate heavy
equipment.
Tr. 50-51.
He is able with some difficulty to
operate a stick shift.
Tr. 51.
He also is able occasionally to
pick up grocery items weighing 10-20 lbs.
write using his left hand.
Tr. 52.
He is able to
Tr. 53, 56.
Plaintiff is a member of the Confederated Warm Springs
Tribes and has worked in construction for the Tribes building
roads and sewer/water lines.
Tr. 57, 140.
When the accident occurred, Plaintiff was asleep in the
back seat of the automobile.
went over a guardrail.
The automobile left the road and
Tr. 58.
automobile were killed.
Tr. 58.
As noted, two persons in the
Plaintiff suffered multiple
lacerations, a fractured right arm in two places, and severe
nerve damage from his neck down his arm to his fingers.
Tr. 58.
The inner cavity of his nose and five ribs were broken, and he
had a hairline fracture of his left leg.
Id.
Although police
told him that he was conscious at the accident site, Plaintiff
does not remember the details of the accident.
Tr. 59.
Plaintiff asserts he has slowed down mentally as a result of
his injuries and is unable to process information as quickly as
he did in the past.
Tr. 59-60.
In January 2008 he underwent a
nerve-repair transfer procedure on his right arm, and he is now
able, with physical therapy, to use his right hand for some tasks
such as pumping gas.
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Tr. 60, 64.
Plaintiff has been prescribed pain medication and antianxiety/depression medication since the accident to help him
sleep at night.
Tr. 62.
and groggy.
66.
Tr.
Those medications make him feel tired
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2005).
Ukolov v. Barnhart, 420 F.3d 1002, 1004
To meet this burden, a claimant must
demonstrate his 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).
developing the record.
The Commissioner bears the burden of
Reed v. Massanari,
270 F.3d 838, 841
(9th Cir. 2001).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g).
See also Batson v. Comm'r of Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
"Substantial
evidence means more than a mere scintilla, but less than a
preponderance, i.e., such relevant evidence as a reasonable mind
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might accept as adequate to support a conclusion."
Soc. Sec. Admin., 466 F.3d 880, 882
Robbins v.
(9th Cir. 2006) (internal
quotations omitted).
The ALJ is responsible for determining credibility and
resolving conflicts and ambiguities in the medical evidence.
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
The
court must weigh all of the evidence whether it supports or
detracts from the Commissioner's decision.
at 882.
Robbins, 466 F.3d
The Commissioner's decision must be upheld even if
the evidence is susceptible to more than one rational
interpretation.
2005).
Webb v. Barnhart, 433 F.3d 683,
689 (9th Cir.
The court may not substitute its judgment for that of
the Commissioner.
Widmark v. Barnhart, 454 F.3d 1063, 1070
(9th Cir. 2006).
DISABILITY ANALYSIS
I.
The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential
inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).
Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.
See also 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920.
Each
step is potentially dispositive.
In Step One, the claimant is not disabled if the
Commissioner determines the claimant is engaged in substantial
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gainful activity.
F.3d 1050, 1052
§
Stout v. Comm'r Soc. Sec. Admin., 454
(9 th Cir. 2006).
See also 20 C.F.R.
404.1520(a) (4) (I); 20 C.F.R. § 416.920(a) (4) (I).
In Step Two, the claimant is not disabled if the
Commissioner determines the claimant does not have any medically
severe impairment or combination of impairments.
at 1052.
Stout,
454 F.3d
See also 20 C.F.R. §§ 404.1509; 404.1520(a) (4) (ii);
20 C.F.R. § 416.920 (a) (4) (ii) .
In Step Three, the claimant is disabled if the Commissioner
determines the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude sUbstantial gainful activity.
F.3d at 1052.
Stout,
454
See also 20 C.F.R. § 404.1520(a) (4) (iii); 20
C.F.R. § 416.920(a) (4) (iii).
The criteria for the listed
impairments, known as Listings, are enumerated in 20 C.F.R. part
404, subpart P, appendix 1 (Listed Impairments) .
If the Commissioner proceeds beyond Step Three, he must
assess the claimant's residual functional capacity (RFC).
The
claimant's RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§
404.1520(e); 20 C.F.R. § 416.920(e).
Ruling (SSR)
7
96-8p.
20 C.F.R.
See also Social Security
"A 'regular and continuing basis' means
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8 hours a day, for 5 days a week, or an equivalent schedule."
SSR 96-8p, at *1.
In other words, the Social Security Act does
not require complete incapacity to be disabled.
Chater,
80 F.3d 1273, 1284 n.7
(9th Cir. 1996).
Smolen v.
The assessment
of a claimant's RFC is at the heart of Steps Four and Five of the
sequential analysis engaged in by the ALJ when determining
whether a claimant can still work despite severe medical
impairments.
An improper evaluation of the claimant's ability to
perform specific work-related functions "could make the
difference between a finding of 'disabled' and 'not disabled. '"
SSR 96-8p, at *4.
In Step Four, the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.
Stout, 454 F.3d at 1052.
See also
20 C.F.R. § 404.1520(a) (4) (iv); 20 C.F.R. § 416.920(a) (4) (iv).
If the Commissioner reaches Step Five, he must determine
whether the claimant is able to do any other work that exists
in the national economy.
Stout, 454 F.3d at 1052.
See also
20 C.F.R. § 404.1520(a) (4) (v); 20 C.F.R. § 416.920(a) (4) (v).
Here the burden shifts to the Commissioner to show a significant
number of jobs exist in the national economy that the claimant
can perform.
1999).
8
Tackett v. Apfel, 180 F.3d 1094, 1098 (9 th Cir.
The Commissioner may satisfy this burden through the
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testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.
If the Commissioner meets this burden,
the claimant is not disabled.
20 C.F.R. § 404.1520(g) (1);
20 C.F.R. § 416.920(g) (1).
THE ALJ'S FINDINGS
In Step One, the ALJ found Plaintiff has not engaged in
substantial gainful activity since October 16, 2006.
Tr. 13.
In Step Two, the ALJ found Plaintiff has the following
severe impairments:
fracture in the upper arm, right brachial
plexopathy, status post-nerve transfer, PTSD, and dysthymia
(chronic depression).
Tr. 13.
In Step Three, the ALJ found Plaintiff's impairments, singly
or in combination, do not meet or medically equal a Listed
Impairment.
Tr. 14.
The ALJ found Plaintiff has the RFC to lift
and/or carry 20 lbs. occasionally and 10 lbs. frequently,
to use
his right arm only as a guide or for support, to stand and/or to
walk, and to sit for six hours in an eight-hour work-day.
Plaintiff has does not have any reaching, handling, or fingering
limits as to his left arm and hand and is able to brace himself
using his right arm.
He is, however, unable to use his right arm
or hand to reach, to handle, or to finger.
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Tr. 16.
In Step Four, the ALJ found Plaintiff is unable to perform
any of his past relevant work.
Tr. 19.
The ALJ, however, found
Plaintiff's limitations do not preclude him from performing
unskilled light jobs such as laminating-machine operator,
folding-machine operator, and bindery-machine operator.
Tr. 20.
At Step Five, the ALJ found Plaintiff is not disabled and,
therefore, is not entitled to benefits.
Id.
DISCUSSION
Plaintiff contends the ALJ erred by relying on the opinion
of a consulting psychologist instead of the opinion of an
examining psychologist to determine that Plaintiff does not have
a severe disabling cognitive disorder that precludes him from
performing unskilled work.
In addition, Plaintiff contends the ALJ improperly rejected
lay evidence from Plaintiff's mother that Plaintiff has had
limited use of his dominant right arm since the accident and his
functional ability to lift, squat, bend, stand, reach, walk, sit,
kneel, climb stairs, memory, and use his hands is impaired.
He
also has depressed periods and is forgetful.
I.
Examining-Psychologist Evidence.
A.
Standards.
"An examining or treating [psychologist's] opinion may be
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rejected by the ALJ when it is inconsistent with the opinions of
other treating or examining physicians if the ALJ makes
"'findings setting forth specific, legitimate reasons for doing
so that are based on substantial evidence in the record.'"
Thomas, 278 F.3d at 957
747, 751
(9~
(quoting Magallanes v. Bowen, 881 F.2d
Cir. 1989)).
"When the medical opinion of an
examining or treating [psychologist] is uncontroverted, however,
the ALJ must give "clear and convincing reasons" for rejecting
it.
Thomas, 278 F.3d at 957.
See also Lester v. Chater,
81 F.3d
821, 830-32.
"A nonexamining [psychologist] is one who neither examines
nor treats the claimant."
Lester, 81 F.3d at 830.
"The opinion
of a nonexamining [psychologist] cannot by itself constitute
substantial evidence that justifies the rejection of the opinion
of either an [examining or treating psychologist]."
Id. at 831.
When a nonexamining psychologist's opinion contradicts an
examining psychologist's opinion and the ALJ gives greater weight
to the nonexamining psychologist's opinion, the ALJ must
articulate his reasons for doing so.
See Morgan v. Comm'r of
Soc. Sec. Admin, 169 F.3d 595, 600-01
(9 th Cir. 1999)
("Opinions
of a nonexamining [psychologist] may serve as substantial
evidence when they are supported by other evidence in the record
and are consistent with it.") .
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B.
Analysis.
In determining that Plaintiff does not have a disabling
psychological impairment, the ALJ relied substantially on the
opinion of consulting psychologist Robert Henry, Ph.D., that
Plaintiff "is capable of carrying out and sustaining unskilled
tasks for a [normal] workweek schedule" despite a moderate
limitation in his ability to understand, to remember, and to
carry out detailed instructions as the result of a "cognitive
disorder w/reduced processing speed."
Tr. 408-10.
The ALJ also reviewed the report of examining psychologist
Geoffrey Bartol, Ph.D., in which Dr. Bartol found Plaintiff has
"a cognitive disorder due to brain injury with decreased
processing speed."
Tr. 14.
The ALJ, however, did not address
Dr. Bartol's opinion that Plaintiff's "ability to process visual
material without making errors is less well developed than [97%]
of his peers," thereby placing him "better than only 3% of his
age-mates," and "in the Far Below Average to Below Average
range."
Tr. 380.
According to Plaintiff, Dr. Bartol's opinion indicates
Plaintiff has a severe deficit in mental functioning related to
his ability to maintain pace even if he is able to maintain
concentration and persistence.
The Court notes the ALJ did not
explicitly address this limitation, and, therefore, this
limitation was not expressly included in the ALJ's hypothetical
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posed to the VE.
Nevertheless, even if Plaintiff has the ability
to maintain concentration and persistence in performing unskilled
work, there is not any substantial evidence in the record to
support a finding that he has the ability to maintain the pace
necessary to perform such work.
Accordingly, Plaintiff maintains
the VE's opinion as to the availability of jobs that Plaintiff
can perform is meritless.
The Commissioner, however, contends the ALJ properly
included Plaintiff's processing-speed limitations described by
Dr. Bartol in the ALJ's hypothetical to the VE when he limited
Plaintiff to "unskilled work" and thereby accommodated
Plaintiff's "moderate" limitation in concentration, persistence,
and pace.
Tr. 18, 385.
The Commissioner asserts Dr. Bartol's
opinion regarding pace related to the mental demands of the job
rather than the physical demands, and, therefore, Plaintiff's
pace limitation was accommodated by the ALJ's restriction of
Plaintiff to unskilled jobs,
(i.e., jobs requiring only simple
instructions) .
Plaintiff counters that Dr. Bartol's opinion reflects
Plaintiff has moderate limitations in many work-related functions
involving both physical and mental aspects that "are not
adequately addressed by a mere limitation to unskilled work."
The Court agrees with Plaintiff and concludes on this record
that Dr. Bartol's opinion regarding Plaintiff's sUbstantial
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processing-speed limitations was not adequately addressed by the
ALJ in his hypothetical posed to the VE in that Plaintiff's
potential limitations relating to the mental aspects of the jobs
were not appropriately taken into account.
II.
Lay-Witness Evidence.
A.
Standards.
Lay-witness evidence as to a plaintiff'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."
236 F.3d 503, 511
B.
Lewis v. Apfel,
(9 ili Cir. 2001).
Analysis.
Plaintiff's mother wrote that since the accident Plaintiff
has depressed periods, is forgetful, and now takes longer to
accomplish the chores of cooking and laundering.
Tr. 160.
The
record reflects Plaintiff's other activities include watching
television, movies, sporting events, going to church, and
traveling by car with friends.
Although the ALJ found this evidence shows Plaintiff engaged
in a wide range of activities, the ALJ did not take into account
that some of Plaintiff's physical activities described by his
mother take a long time to complete, which tends to corroborate
Plaintiff's contention (also reflected in Dr. Bartol's opinion)
that Plaintiff has processing-speed limitations.
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The Court, therefore, concludes the ALJ did not give germane
reasons for failing to credit the lay evidence of Plaintiff's
mother as to Plaintiff's difficulty in completing physical tasks
as quickly as he did before the accident.
On this record the Court concludes the ALJ did not
adequately articulate his reasons for crediting the opinion of
Dr. Henry, consulting psychologist, and giving less weight to the
opinion of Dr. Bartol, examining psychologist.
As a consequence,
the Court concludes the Commissioner's final decision denying
Plaintiff's claim for DIB and SSI is not based on the proper
legal standards and is not supported by substantial evidence in
the record as a whole.
REMAND
The decision whether to remand for further proceedings or
for the immediate payment of benefits generally turns on the
likely utility of further proceedings.
Id. at 1179.
The court
may "direct an award of benefits where the record has been fully
developed and where further administrative proceedings would
serve no useful purpose."
Smolen,
80 F.3d at 1292.
The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
1178 (9 th Cir. 2000).
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Harman v. Apfel, 211 F.3d 1172,
The court should grant an immediate award
of benefits when
(1) the ALJ has failed to provide legally
sufficient reasons for rejecting such
evidence, (2) there are no outstanding issues
that must be resolved before a determination
of disability can be made, and (3) it is
clear from the record that the ALJ would be
required to find the claimant disabled were
such evidence credited.
Id.
The second and third prongs of the test often merge into a
single question:
Whether the ALJ would have to award benefits if
the case were remanded for further proceedings.
Id. at 1178 n.2.
On this record the Court concludes a remand for further
proceedings is appropriate.
On remand the Commissioner shall
(1) credit Dr. Bartol's opinion that Plaintiff has a severe
deficit in mental functioning relating to his ability to maintain
pace;
(2) credit the lay evidence of Plaintiff's mother regarding
the time it takes Plaintiff to complete physical tasks; and
(3) if necessary, obtain further testimony from a VE as to
whether Plaintiff's deficit in mental functioning as described by
Dr. Bartol and the lay-witness evidence, in addition to the other
evidence in the record, precludes Plaintiff from engaging in
substantial gainful activity.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
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42 u.s.c. § 405(g)
for further administrative proceedings
consistent with this Opinion and Order.
IT IS SO ORDERED.
DATED this 25th day of April, 2012.
United States District Judge
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