Bohlman v. Commissioner Social Security Administration
Filing
18
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 the immediate calculation and payment of benefits. Signed on 05/29/2012 by Judge Anna J. Brown. See attached 19 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RICK BOHLMAN,
Plaintiff,
v.
MICHAEL ASTRUE,
Commissioner of Social
Security,
Defendant.
MERRILL SCHNEIDER
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
1
- OPINION AND ORDER
3:11-CV-00581-BR
OPINION AND ORDER
DAVID MORADO
Regional Chief Counsel
BRETT E. ECKELBERG
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) 615-3748
Attorneys for Defendant
BROWN, Judge.
Plaintiff Rick Bohlman seeks judicial review of the
Commissioner of Social Security’s final decision denying his
March 15, 2007, application for Disability Insurance Benefits
(DIB) pursuant to Title II of the Social Security Act, 42 U.S.C.
§§ 401-33, and denying his April 23, 2009, application for
Supplemental Security Income (SSI) pursuant to Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381-83f, to the extent that
Plaintiff asserts he became disabled before April 23, 2009.
The
Commissioner found Plaintiff was entitled to SSI beginning on
April 23, 2009.
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 decision
of the Commissioner and REMANDS this matter pursuant to Section
four of 42 U.S.C. § 405(g) for further administrative proceedings
consistent with this Opinion and Order.
2
- OPINION AND ORDER
ADMINISTRATIVE HISTORY
Plaintiff initially applied for DIB on November 12, 2003,
alleging he had been disabled since July 2, 1999, because of
rheumatoid arthritis, hepatitis C, and depression.
Tr. 186-87.
Plaintiff’s application was denied on February 18, 2004.
Tr. 85-
89.
Plaintiff reapplied for DIB on March 15, 2007, realleging
he had been disabled since July 2, 1999, because of rheumatoid
arthritis; hepatitis C; depression; and, in addition, fatigue.
Tr. 114-123.
Plaintiff met insured status requirements under
the Social Security Act through December 31, 2005.
Tr. 21.
His application was denied initially and on reconsideration.
Tr. 61-62, 64-68, and 71-73.
requested a hearing.
On October 24, 2007, Plaintiff
Tr. 74-75.
On April 23, 2009, Plaintiff also applied for SSI.
40.
His application was raised to the hearing level.
Tr. 138-
Tr. 18.
On May 12, 2009, the ALJ held a hearing regarding
Plaintiff’s DIB and SSI applications at which Plaintiff and a
vocational expert (VE) testified.
Tr. 30-60.
On November 20, 2009, the ALJ issued a decision finding
Plaintiff was not disabled for purposes of DIB as of December 31,
2005, the date he was last insured for those purposes
The ALJ
also found Plaintiff was disabled for purposes of SSI as of
April 23, 2009, the date he filed his SSI application, but he was
3
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not disabled for purposes of SSI between the dates of
December 31, 2005, the date he was last insured for purposes of
DIB, and April 22, 2009.
On November 29, 2009, the Appeals Council denied Plaintiff’s
request for review of the ALJ’s denial of DIB as of December 31,
2005, and denial of SSI between January 1, 2006, and April 22,
2009.
Thus, the ALJ’s final decision became the final decision
of the Commissioner on November 29, 2009.
Tr. 13-15.
On May 12, 2011, Plaintiff filed a Complaint seeking this
Court’s review of the Commissioner’s final decision denying
Plaintiff’s claim for DIB through December 31, 2005, and denying
Plaintiff’s claim for SSI from January 1, 2006, through April 22,
2009.
The ultimate issue is whether the ALJ erred in finding
Plaintiff was not disabled as of December 31, 2005, the date he
was last insured for purposes of DIB, and from January 1, 2006,
through April 22, 2009, for purposes of SSI.
BACKGROUND
On May 12, 2009, the date of the hearing before the ALJ,
Plaintiff was 50 years old.
Tr. 37.
Plaintiff’s alleged
disabling impairments are rheumatoid arthritis, hepatitis C,
depression, and fatigue.
4
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Tr. 37-38, 186.
At the hearing on May 12, 2009, Plaintiff testified as
follows:
Plaintiff has a GED and two years of college.
1983 until 1985, he worked in a mail room.
Id.
Tr. 37.
From
From 1994 until
1999 when he was laid off, Plaintiff worked as an “inter-office
delivery person.”
His tasks included loading and transporting
computers and delivering mail bags ranging in weight from 50-70
lbs.
Tr. 38-39, 53-54.
In 1999 Plaintiff began suffering from arthritis in his
hands, left elbow, shoulders, legs, and back.
Among other
things, this condition makes it difficult for him to pick up and
to hold onto things.
Tr. 43.
Since 2005 Plaintiff’s back pain has worsened, causing him
to have to lay down for hours at a time.
Tr. 41.
He has been
prescribed oxycodone, Ritalin, and Cymbalta, and he takes Advil
and anti-inflammatory medication daily to ease his back pain.
Tr. 42.
Plaintiff has Hepatitis C, which causes sharp pain in his
liver and fatigue.
Tr. 44.
Plaintiff also has constant numbness
in his toes and periodic numbness in his fingers.
Tr. 46.
In
addition, Plaintiff suffers from pain in his shoulders, fingers,
back, and knees from rheumatoid arthritis.
Tr. 56.
Plaintiff
also has Attention Deficit Disorder and a poor memory.
easily sidetracked.
5
Tr. 51.
- OPINION AND ORDER
He is
Since 2005 Plaintiff has been able to stand for only “a
couple of minutes,” walk “a couple of blocks”, and sit for “maybe
half an hour” at one time and “for two hours total in the day”
before having to get up.
Tr. 47-48.
Plaintiff is able to lift
20-30 lbs. for a third of the working day.
He has difficulty
pushing and pulling with his arms and legs and has pain when
reaching forward or overhead.
Tr. 49.
In November 2007 Plaintiff’s spleen and two-thirds of his
pancreas were surgically removed after he was injured in a
bicycle accident.
Tr. 58.
Plaintiff has a driver’s license, but he does not drive.
Tr. 50, 54.
He is unable to do housekeeping chores such as
cleaning, washing dishes, and laundry.
Id.
Plaintiff’s only
significant daily activity is watching television.
children cook for him.
Tr. 55.
His
Tr. 55.
In addition to his hearing testimony, Plaintiff reported to
examining physician John Ellison, M.D., in June 2009, that he
suffered burns over 85% of his body in a gasoline explosion in
1974 when he was 16 years old.
Tr. 514.
STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2005).
6
Ukolov v. Barnhart, 420 F.3d 1002, 1004
To meet this burden, a claimant must
- OPINION AND ORDER
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
might accept as adequate to support a conclusion."
Robbins v.
Soc. Sec. Admin., 466 F.3d 880, 882 (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
7
- OPINION AND ORDER
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
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. § 416.920; 20 C.F.R. § 404.1521.
Each
step is potentially dispositive.
In Step One, the claimant is not disabled if the
Commissioner determines the claimant is engaged in substantial
gainful activity.
Stout v. Comm'r Soc. Sec. Admin., 454 F.3d
1050, 1052 (9th Cir. 2006).
See 20 C.F.R. § 416.920(a)(4)(I);
20 C.F.R. § 404.1521.
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.
F.3d at 1052.
Stout, 454
See also 20 C.F.R. § 416.920(a)(4)(ii); 20 C.F.R.
§ 404.1521(a)(4(ii).
In Step Three, the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
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Listed Impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
F.3d at 1052.
Stout, 454
The criteria for Listed Impairments are enumerated
in 20 C.F.R. part 404, subpart P, appendix 1.
See also 20 C.F.R.
§ 416.920(d); 20 C.F.R. § 404.1520(d).
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.
§ 416.920(e); 20 C.F.R. § 404.1520(e).
Ruling (SSR) 96-8p.
20 C.F.R.
See also Social Security
“A 'regular and continuing basis' means 8
hours a day, for 5 days a week, or an equivalent schedule."
96-8p, at *1.
SSR
In other words, the Social Security Act does not
require complete incapacity to be disabled.
F.3d 1273, 1284 n.7 (9th Cir. 1996).
Smolen v. Chater, 80
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
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- OPINION AND ORDER
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. § 416.920(a)(4)(iv); 20 C.F.R. § 404.1520(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. § 416.920(a)(4)(v); 20 C.F.R. § 404.1520(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).
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
The Commissioner may satisfy this burden through the
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. § 416.920(g)(1); 20
C.F.R. § 404.1520(g)(1).
THE ALJ’S FINDINGS
In Step One, the ALJ found Plaintiff has not engaged in
substantial gainful activity since March 18, 2008.
Tr. 16.
In Step Two, the ALJ found beginning April 23, 2009,
Plaintiff has had severe impairments of Hepatitis C, alcohol
abuse in remission, depression, and liver disease.
Tr. 23.
In Step Three, the ALJ found Plaintiff has the RFC to
10 - OPINION AND ORDER
perform sedentary work in which he is limited to occasional
reaching, handling, fingering, and feeling with no climbing,
balancing, stooping, kneeling, crouching, and crawling.
He is
moderately limited in his ability to understand, to remember, and
to carry out complex instructions; markedly limited in his
ability to interact with the public; and moderately limited in
his ability to interact with supervisors and co-workers.
He
would have difficulty carrying out a normal work day or work week
on a full-time basis.
In Step Four, the ALJ found Plaintiff is unable to perform
his past relevant work as an “inter-office delivery person.”
Based on these findings, the ALJ found Plaintiff is unable
to perform any past relevant work, and there are no jobs that
exist in significant numbers in the national economy that
Plaintiff is able to perform.
The ALJ, therefore, concluded
Plaintiff is disabled as of April 23, 2009 for purposes of an
award of SSI.
Tr. 23-24.
The ALJ, however, found Plaintiff was
not disabled prior to December 31, 2005, the date he was last
insured for purposes of DIB, or from January 1, 2006, through
April 22, 2009, for purposes of SSI.
Finally, the ALJ found Plaintiff’s alcohol use was not a
contributing material factor in the disability determination.
11 - OPINION AND ORDER
DISCUSSION
Plaintiff contends the ALJ erred when he found Plaintiff was
not disabled before December 31, 2005, the date he was last
insured for purposes of DIB, and from January 1, 2006, until
April 22, 2009, for purposes of SSI based on a lack of medical
evidence.
I.
Plaintiff’s Credibility.
The ALJ found Plaintiff’s testimony as to “the intensity,
persistence, and limiting effects of his alleged symptoms on and
prior to December 31, 2005” was not credible because of the lack
of supporting medical evidence.
Tr. 22.
This finding was based
on reports of consulting physicians and psychologists who had
previously reviewed Plaintiff’s medical records submitted in
support of his earlier application for DIB and who opined there
was insufficient medical evidence to support his claim.
342-58.
Tr. 22,
For example, Martin Kehrli, M.D., found “[t]here is not
an adequate physical evaluation to adjudicate this claim from
[July 1999 through December 2005],” Tr. 356; Linda L. Jensen,
M.D., found “[t]here is insufficient evidence of a severe
physical condition [from July 1999 through December 2005]”),
Tr. 357; Peter LeBray, Ph.D., found “[no evidence] sufficient to
assess alleged Depression or other psych conditions in relevant
period,” Tr. 342-54; and Robert Henry, Ph.D., found “[t]here is
very little evidence of [Plaintiff’s] mental condition [from July
12 - OPINION AND ORDER
1999 through December 2005],”
Tr. 358.
Based on this lack of evidence, the ALJ found Plaintiff
failed “[t]o establish any work-related functional limitations on
and prior to [December 31, 2005], the date [Plaintiff was] last
insured” for DIB and from January 1, 2006, through April 22,
2009, for SSI.
II.
Tr. 22.
Standards.
In Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986), the
Ninth Circuit established two requirements for a claimant to
present credible symptom testimony:
The claimant must produce
objective medical evidence of an impairment or impairments, and
he must show the impairment or combination of impairments could
reasonably be expected to produce some degree of symptom.
The
claimant, however, need not produce objective medical evidence of
the actual symptoms or their severity.
Smolen, 80 F.3d at 1284.
If the claimant satisfies the above test and there is not any
affirmative evidence of malingering, the ALJ can reject the
claimant's pain testimony only if he provides clear and
convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,
750 (9th Cir. 2007)(citing Lester, 81 F.3d at 834)).
General
assertions that the claimant's testimony is not credible are
insufficient. Id.
The ALJ must specifically identify what
testimony is not credible and what evidence undermines the
13 - OPINION AND ORDER
claimant's complaints.
Parra, 481 F.3d at 750 (quoting Lester,
81 F.3d at 834).
III. Analysis.
The ALJ based his credibility determination on the lack of
medical evidence to support Plaintiff’s claimed limitations
before December 31, 2005, for purposes of DIB and from January 1,
2006, to April 22, 2009, for purposes of SSI.
As noted, the ALJ
relied on statements of consulting physicians and psychologists,
all of whom opined there was “insufficient evidence” to assess
Plaintiffs’ functional limitations arising from claimed
“psychological and physical impairments” before January 2006.
Thus, when addressing Plaintiff’s credibility the ALJ found
the medical evidence did not “establish any work-related
functional limitations on or prior to [Plaintiff’s] last date
insured [December 31, 2005].”
Tr. 22.
Accordingly, at Step Two,
the ALJ found Plaintiff did not have any severe impairments
before January 1, 2006.
An impairment or combination of impairments is not severe if
the evidence only establishes a slight abnormality that has no
more than a minimal effect on an individual's ability to work.
Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)(internal
quotation marks and citations omitted).
Step Two, however, “is a
de minimis screening device [used] to dispose of groundless
claims, and an ALJ may find that a claimant lacks a medically
14 - OPINION AND ORDER
severe impairment or combination of impairments only when his
conclusion is clearly established by medical evidence.”
Webb v.
Barnhart, 433 F.3d 683, 687 (9th Cir. 2005)(quoting Smolen, 80
F.3d at 1290, and SSR 85-28).
A review of the relevant medical evidence between 1999 and
2005 reveals the following:
In June 1999 an MRI showed “chronic degenerative disc
disease . . . at L5-S1 with further narrowing of the disc space
since 1994.”
Tr. 297.
Plaintiff was able to walk on his heels
and toes but in a somewhat stooped position.”
Id.
In August 1999 S. Jon Mason, M.D., one of Plaintiff’s
treating physicians, noted Plaintiff was clearly depressed.
He
strongly advised Plaintiff to avoid using alcohol, which was a
major factor in his liver-function test abnormalities.
Tr. 218.
In April 2000 unidentified medical records reflect Plaintiff
was complaining of polyarthralgias, pain, and stiffness, but
there also was objective evidence of arthritis or myositis
(muscle inflammation).
In January 2004 Dr. Mason noted Plaintiff had “fairly
significant arthritis [and] problems with fatigue” and
“significant problems with depression.”
Plaintiff, however,
“refused all antidepressants” because of their side effects.
Tr. 221.
Plaintiff had also been drinking “until recently” and
was advised of the importance to avoid alcohol.”
15 - OPINION AND ORDER
Tr. 222.
In April 2004 Plaintiff was examined by Kim Webster, M.D.,
on behalf of the Commissioner.
Dr. Webster reported Plaintiff
had arthralgias with no evidence of inflammatory arthritis,
Hepatitis C by history, depression with a “very flat effect,” and
“side effects from medication.”
Tr. 376.
Although the Court agrees with the ALJ that the medical
evidence is sparse, the records that do exist are consistent with
a finding that from 1999 through 2005 Plaintiff had severe
impairments associated with polyarthralgias, arthritic pain at
L5-S1, and depression.
As to the extent of Plaintiff’s depression before
December 31, 2005, the Court notes in June 2009 Dr. Karen BatesSmith reviewed available medical records dating back to 1999 in
connection with her neuropsychological examination of Plaintiff
and opined Plaintiff suffers from a “Major Depressive Disorder,
severe, chronic.”
Tr. 538.
Dr. Bates-Smith also noted a “long
history of major depression.”
Id.
On this record the Court concludes the ALJ erred when he
found the medical evidence in the record was inadequate to
support Plaintiff’s testimony that he had severe physical and
psychological impairments before December 31, 2005.
The ALJ,
therefore, also erred when he relied on that finding as a basis
for not crediting Plaintiff’s testimony regarding the severity
of his physical impairments and psychological impairments
16 - OPINION AND ORDER
before January 1, 2006, for purposes of his DIB claim and from
January 1, 2006 to April 22, 2009, for purposes of his SSI claim.
REMAND
Having found these errors, the Court must determine whether
this matter must be remanded to the Commissioner for further
proceedings or for calculation and payment of benefits.
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 (9th Cir. 2000).
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
17 - OPINION AND ORDER
the case were remanded for further proceedings.
Id. at 1178 n.2.
In this matter, the Court concludes no useful purpose would
be served by a remand for further proceedings because all of the
relevant, contemporaneous medical evidence from treating,
examining, and consulting physicians has been compiled in the
Administrative Record.
Based on the existing medical evidence and the record as a
whole, the Court concludes the Commissioner’s final decision that
Plaintiff was not disabled for purposes of DIB since December 31,
2005, is not supported by substantial evidence in the record nor,
in addition, for purposes of SSI from January 1, 2006, through
April 22, 2009.
After crediting Plaintiff’s testimony as true, the Court
finds Plaintiff has established he has been disabled for purposes
of DIB as of December 31, 2005, and for purposes of SSI from
January 1, 2006, through April 22, 2009.
The Court, therefore,
remands this matter to the Commissioner for the calculation and
payment of benefits.
CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four of
18 - OPINION AND ORDER
42 U.S.C. § 405(g) for the immediate calculation and payment of
benefits.
IT IS SO ORDERED.
DATED this 29th day of May, 2012.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
19 - OPINION AND ORDER
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