Brown v. Commissioner, Social Security Administration
Filing
19
OPINION AND ORDER. Signed on 10/29/2014 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:13-cv-02051-MA
BRYAN K. BROWN,
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
GEORGE J. WALL
1336 E. Burnside, Suite 130
Portland, OR 97214
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
ADRIAN L. BROWN
RONALD K. SILVER
Assistant United States Attorneys
1000 S.W. Third Ave., Suite 600
Portland, OR 97204
LARS J. NELSON
Social Security Administration
Office of the General Counsel
701 Fifth Ave., Suite 2900, M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
OPINION AND ORDER
MARSH, Judge
Plaintiff Bryan K. Brown seeks judicial review of the final
decision
of
the
Commissioner
of
Social
Security
denying
his
application for disability insurance benefits (DIB) under Title II
of the Social Security Act,
42 U.S.C
for Supplemental Security Income
401-403, and application
§§
(SSI)
disability benefits under
Title XVI of the Social Security Act,
42 U.S.C.
This Court has jurisdiction pursuant to 42 U.S.C.
1383 ( c) ( 3) .
1381-1383f.
§§
§§
405(g)
and
For the reasons that follow, I reverse and remand for
further administrative proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was injured on September 13, 2005, while working as
an arborist when a
tree
fell on him,
fracturing his pelvis in
multiple places and tearing his urethra.
On September 15, 2005,
plaintiff underwent a closed reduction and percutaneous pinning of
his right sacral fracture, with external fixators, and the urethral
tear was repaired.
facility.
fixator
Plaintiff was discharged to a skilled nursing
While there, an infection developed around the external
pin
site
and
plaintiff
infection appeared to have
was
given
antibiotics.
The
resolved, and plaintiff was discharged.
On October 18, 2005, plaintiff sought emergency treatment for
intractable
pain,
moderate distress.
aureus
(MSSA),
fevers,
chills,
and
sweats
and
appeared
in
After cultures were positive for Staphylococcus
plaintiff
2 - OPINION AND ORDER
was
diagnosed
with
osteomyeli tis
(infection of the bone), and his external hardware was surgically
removed and the pin tracts debrided.
Plaintiff was admitted to a
skilled
received
nursing
facility
were
he
intravenous
antibiotics for six weeks and physical rehabilitation.
{IV)
Plaintiff
was discharged from the nursing facility in December of 2005.
Tr.
623, 656.
In
January of
physical therapy,
2006,
plaintiff was
encouraged to
continue
and was able to ambulate with use of a cane.
Plaintiff was released to sedentary work at that time.
Tr. 647-49.
In May of 2006, plaintiff requested that his workers compensation
claim be closed, and he was released to a trial of unrestricted
work so that he could pursue employment as a landscaper.
Tr. 641.
Plaintiff was advised to wean off his opiod medication.
Tr. 642.
Plaintiff had several unsuccessful work attempts in 2007 and
2008.
In the fall of 2009,
plaintiff was receiving in-patient
treatment for methamphetamine abuse at the Portland Rescue Mission.
On September 29,
extreme
pain,
maximus.
loosaning
2009,
chills,
and
tenderness
in
his
hip
and
gluteus
A CT scan of the pelvis showed sacroiliac fixation screw
with
cortical
Methicillin-sensitive
osteomyelitis,
~nd
plaintiff sought emergency treatment for
erosions.
Staphylococcus
Further
aureus
evaluation
infection
showed
with
sacroiliac joint septic arthritis, and bacteremia
he was hospitalized.
On October 2,
2009,
plaintiff's deep
hardware was removed, and he was sent to a skilled nursing facility
3 - OPINION AND ORDER
for a seven week course of IV antibiotics and rehabilitation.
November 19,
2009,
antibiotics,
he
plaintiff
On
plaintiff was prescribed four weeks of oral
was
continued
released
substance
from
abuse
the
nursing
treatment
facility,
and
Central
City
at
Concern.
Plaintiff
protectively
filed
an
application
for
DIB
on
December 10, 2009, and protectively filed an application for SSI on
June 19, 2009.
In both applications, plaintiff alleged disability
beginning September 13, 2005, due to arthritis in his pelvis, and
osteomyelitis.
Plaintiff's claims were denied initially and upon
reconsideration.
Plaintiff filed a request for a hearing before an
administrative law judge (ALJ).
An ALJ held a hearing on May 11,
2012, at which plaintiff appeared with his attorney and testified.
Vocational expert, C. Kay Wise, and lay witness, Douglas L. Brown,
also appeared at the hearing and testified.
ALJ issued an unfavorable decision.
On June 29, 2012, the
The Appeals Council denied
plaintiff's request for review, and therefore, the ALJ's decision
became
the
final
decision of the Commissioner for
purposes of
review.
Born in 1972, plaintiff was 32 years old on the alleged onset
date.
Plaintiff completed school through the tenth grade,
communicate
in
English,
and
has
past
relevant
work
as
can
a
foreman/lead worker on an assembly line . . Plaintiff has a history
4 - OPINION AND ORDER
of methamphetamine abuse and asserted at the May 11, 2012 hearing
that he has been clean and sober for three and a half years.
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
a
five-step
sequential
process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
Each step is potentially disposi ti ve.
burden of proof at
steps one
through
§§
The
claimant bears
180 F.3d 1094,
1098
five,
burden
shifts
Commissioner
the
v.
689 (9th Cir. 2009);
Apfel,
to
the
See Valentine
Tackett v.
the
404.1520; 416.920.
four.
Commissioner Soc. Sec. Admin., 574 F.3d 685,
Bowen v.
(9th Cir.
1999).
to
show
At step
that
the
claimant can do other work which exists in the national economy.
Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
The
ALJ
concluded
that
plaintiff met
the
insured
status
requirements of the Social Security Act through September 30, 2007.
A claimant
seeking DIB benefits
disability on or prior to the
under Title
II must
last date insured.
42
establish
u.s.c.
§
416 (I) (3); Burch v. Barnhart, 400 F. 3d 676, 679 (9th Cir. 2005).
At step one, the ALJ found that plaintiff has not engaged in
substantial gainful activity since his alleged onset of disability.
At step two, the ALJ found that plaintiff had the following severe
impairments: chronic right posterior pel vie pain status post pel vie
fractures
and
urethral
transaction;
history
of
hepatitis C; and history of polysubstance abuse.
5 - OPINION AND ORDER
osteomyelitis;
At step three,
the ALJ
found
that
plaintiff's
impairments,
or
combination
of
impairments, did not meet or medically equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to perform light work, except that plaintiff can walk up to
two hours in an eight hour day for no more than 15 minutes at a
time, can stand for four hours for no more than one hour at a time,
and has no sitting limitations; he can occasionally climb ramps and
stairs;
he can never climb ladders,
occasionally stoop,
kneel,
crouch,
ropes or scaffolds;
crawl;
he
has
he can
no balancing
limitations; and he cannot be exposed to industrial hazards such as
moving machinery or unprotected heights.
At step four, the ALJ found plaintiff is unable to perform any
past
relevant
considering
At
work.
plaintiff's
step
age,
five,
the
education,
ALJ
work
concluded
experience,
that
and
residual functional capacity, jobs exist in significant numbers in
the national economy that plaintiff can perform, such as production
assembly
inspector,
hardware
assembler,
and
hand
packager.
Accordingly, the ALJ concluded that plaintiff has not been under a
disability under the Social Security Act from September 13, 2005
through the date of the decision.
ISSUES ON REVIEW
On appeal to this court,
errors were committed:
plaintiff contends the
following
(1) the ALJ failed to properly evaluate and
include physical limitations described by treating physician Jeanne
6 - OPINION AND ORDER
H.
Button,
testimony;
M. D.;
and
( 3)
(2)
the
ALJ
failed
to properly evaluate
his
the ALJ failed to properly evaluate the lay
testimony of Douglas L. Brown.
STANDARD OF REVIEW
'I'he district court must affirm the Commissioner's decision if
the Commissioner applied proper legal standards and the findings
are supported by substantial evidence in the record.
405(g);
Berry v.
Astrue,
622
F.3d 1228,
1231
42
u.s.c.
(9th Cir.
§
2010).
"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."
Hill, 698 F.3d
at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690.
'I'he
court must weigh all
the evidence,
whether
detracts from the Commissioner's decision.
807 F. 2d 771,
772
(9th Cir.
1986).
it supports or
Martinez v.
Heckler,
The Commissioner's decision
must be upheld, even if the evidence is susceptible to more than
one rational
Admin.,
interpretation.
359 E'.3d 1190,
1193
Batson v.
(9th Cir.
supports the Commissioner's conclusion,
Commissioner Soc.
2004).
Sec.
If the evidence
the Commissioner must be
affirmed; "the court may not substitute its judgment for that of
the Commissioner."
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th
Cir. 2001).
Ill/
Ill/
7 - OPINION AND ORDER
DISCUSSION
I.
Standards for Evaluating Physician's Opinions
The ALJ is responsible for resolving conflicts in the medical
record, including conflicts among physicians' opinions.
v.
533 F.3d 1155,
Comm'r,
1164
(9th Cir.
2008).
Carmickle
To reject the
uncontroverted opinion of a treating or examining physician, the
ALJ
must
present
clear
427 F. 3d 1211,
Barnhart,
and
convincing
reasons.
Bayliss
v.
1216 (9th Cir. 2005) . If a treating or
examining doctor's opinion is contradicted by another doctor's
opinion,
Ghanim
it may be rejected by specific and legitimate reasons.
v.
Colvin,
763
F.3d 1154,
1161
(9th Cir.
2014).
When
evaluating conflicting opinions, an ALJ is not required to accept
an opinion that is not supported by clinical findings, or is brief
or tonclusory.
Taylor v. Comm.issioner Soc. Sec. Admin., 659 F.3d
1228, 1232 (9th Cir. 2011).
Plaintiff
opinion
of
complains
Jeanne
H.
According to plaintiff,
that
the
Button,
ALJ improperly
M.D.,
his
rejected
treating
the
physician.
the ALJ failed to provide specific and
legitimate reasons for rejecting Dr. Button's limitations in favor
of examining physician John Hamby, M.D.
Plaintiff is correct.
On March 5, 2010, plaintiff established care with Dr. Button,
who performed a comprehensive evaluation and reviewed plaintiff's
medical
records.
Tr.
585.
The March 5,
2010
treatment
note
indicates that plaintiff informed Dr. Button that his pain averaged
8 - OPINION AND ORDER
a three on a 10-point scale, and varied from zero to six· depending
on his activity;
that.he can sit comfortably;
can stand for an
hour; and walk for 10 blocks without .increased pain.
exam,
Dr.
On physical
Button noted that plaintiff had a steady gait,
single point cane .in his right hand,
with a
with strength at a four of
five on the right side, and five of five on the left.
Tr.
588.
Dr. Button opined that plaintiff's 2009 infection was related to
the 2005 workplace .injury, and that plaintiff's 2009 infection has
left him with right sacroiliac joint arthritis, pain and decreased
hip/ sacroiliac range of motion in the surrounding muscles.
58 9.
Dr.
Tr.
Button assessed plaintiff's functional limitations as
follows:
standing up to 1 hour at a time, up to 4 hours
.in a day, walking up to half mile. Occasional
bending. No stooping, crouching or crawling.
Occasional lifting up to 30 pounds from waist
level.
Tr. 589.
In
the
limitations.
Button's
decision,
Tr.
17.
opinion,
the ALJ briefly summarized Dr.
The
except
ALJ
to
did . not
note
that
otherwise
Dr.
Button's
discuss
Button's
Dr.
opinion
supported the limitations described by examining physician John
Hamby, M.D.
On
February
8,
2012,
Dr.
Hamby
conducted a
comprehensive
musculoskeletal evaluation, including reviewing plaintiff's medical
record and interviewing plaintiff.
9 - OPINION AND ORDER
During Dr. Hamby's evaluation,
plaintiff indicated that he can walk for 10 to 15 minutes,
for one hour, and has no problems sitting.
stand
Plaintiff informed Dr.
Hamby that lifting is "touch and go," and that his maximum lifting
is
20 pounds without
increased symptoms.
Dr.
Hamby diagnosed
plaintiff with "ongoing right lower back pain, with ample objective
findings to support the subjective symptomatology," history of two
episodes of osteomyelitis,
joint.
Tr.
546.
Dr.
and non-union of the right sacroiliac
Hamby
assessed
plaintiff's
functional
capacities as follows:
1.
2.
3.
4.
5.
6.
7.
Maximum standing/walking
capacity:
Walking
is
limited to 15 minutes at a time, maximum two hours
per day.
Standing is limited to one hour at a
time, and four hours per day.
Maximum sitting capacity: no limitations.
Assistive devices: none necessary.
Maximum lifting/ carrying capacity: 20 pounds occasionally
and 10 pounds frequently.
Postural
activities:
climbing,
stooping,
kneeling,
crouching, and crawling are limited to an occasional
basis, balancing is unlimited.
Manipulative activities: no limitations.
Workplace environmental activities: no limitations.
Tr. 546.
The ALJ gave "great weight" to Dr. Hamby' s opinion and "little
weight" to the agency reviewing physician who opined that plaintiff
could perform sedentary work. 1
Tr. 18, 523-30.
Basing plaintiff's
RFC largely on Dr. Bamby's opinion, the ALJ limited plaintiff to
light work, with the following restrictions:
1
I note that Dr. Hamby is the only physician to opine that
plaintiff can perform light work.
10 - OPINION AND ORDER
plaintiff can walk up to two hours in an eight hour day
for no more than 15 minutes at a time, can stand for four
hours for no more than one hour at a time, and has no
sitting limitations; he can occasionally climb ramps and
stairs; he can never climb ladders, ropes or scaffolds;
he can occasionally stoop, kneel, crouch, crawl; he has
no balancing limitations; and he cannot be exposed to
industrial
hazards
such
as
moving
machinery
or
unprotected heights.
Tr. 15.
To the extent that Dr.
Hamby and Dr.
Button's opinions are
consistent with respect to walking and standing, the ALJ' s findings
are supported by substantial evidence,
and the ALJ appropriately
incorporated those limitations into the RFC.
However,
Dr. Hamby
and Dr. Button's opinions conflict with respect to limitations on
stooping,
crouching,
crawling,
lifting,
whether
plaintiff
359 F.3d at 1195
(ALJ must
requires the use of a cane.
Batson,
resolve
opinions) .
conflicting
medical
and
The
ALJ' s
failure
to
provide any rationale as to why Dr. Button's limitations were given
less weight than those of Dr. Hamby is error.
As will be discussed
below, plaintiff's use of a cane may greatly impact the disability
determination at Step Five.
In short, the ALJ erred by failing to resolve the conflicting
medical evidence and failing to identify specific and legitimate
reasons for discounting Dr. Button's opinion.
Valentine, 574 F.3d
at 692 (ALJ must provide specific and legitimate reasons to credit
examining physician over treating physician when their opinions
conflict)
/Ill
11 - OPINION AND ORDER
II.
Plaintiff's Testimony
To
determine
whether
a
claimant's
testimony
regarding
subjective pain or symptoms is credible, an ALJ must perform two
stages of analysis.
20 C.F.R.
§
416.929.
The first stage is a
threshold test in which the claimant must produce objective medical
evidence
of an
underlying
impairment
that
expected to produce the symptoms alleged.
F.3d 1104, 1112
(9th Cir.
2012);
1035, 1039 (9th Cir. 2008).
could reasonably be
Molina v. Astrue,
Tommasetti v.
Astrue,
674
533 F.3d
At the second stage of the credibility
analysis, absent affirmative evidence of malingering, the ALJ must
provide
clear
claimant's
and
convincing
testimony
Carmickle v.
regarding
Commissioner Soc.
reasons
the
Sec.
for
severity
Admin.,
discrediting
of
the
the
symptoms.
533 F. 3d 1155,
1166
(9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007).
The ALJ must make findings that are sufficiently specific to
permit
the
reviewing
court
to
conclude
that
arbitrarily discredit the claimant's testimony.
at
1163;
Tommasetti,
533
F.3d at
1039.
the
ALJ did
not
Ghanim, 763 F.3d
Factors
the
ALJ may
consider when making such credibility determinations include the
objective medical evidence, the claimant's treatment history, the
claimant's
daily
activities,
inconsistencies
in
testimony,
effectiveness or adverse side effects of any pain medication, and
12 - OPINION AND ORDER
relevant character evidence.
Ghanim, 763 F. 3d at 1163; Tommasetti,
533 F.3d at 1039.
Plaintiff testified that before his 2005 infection returned in
2009,
his pain was at a six on a 10-point scale and that he now
experiences dull
occasionally.
pain all
the time,
with sharp stabbing pains
Plaintiff testified that he can sit for up to two
hours with occasional repositioning.
after two or three hours,
Plaintiff also testified that
he needs to lie down for an hour to
relieve pain and pressure, and that he does so a couple of times
each
day.
Tr.
4 6.
Plaintiff
further
testified
that
he
can
comfortably lift 20 pounds and carry it a distance of 20 to 30
feet.
Plaintiff described that since his accident in 2005, he uses
a cane to walk and stand.
Plaintiff stated that he can stand for
two hours, and can occasionally stoop, but crouching is difficult.
Tr. 48, 50. Plaintiff testified that he tried to work in 2007 as a
day
laborer,
disability.
but
had
a
difficult
time
working
due
to
his
Tr. 52.
Plaintiff testified that his last drug use was three and half
years ago.
Tr. 54.
Plaintiff stated that he was in the Portland
Rescue Mission New Life program for 11 months when his infection
returned
in
2009.
Plaintiff
testified
that
following
his
residential antibiotic treatment, he was in a Central City Concern
intensive outpatient rehabilitation program for 11 months, and has
13 - OPINION AND ORDER
been clean ever since.
Tr. 55.
Plaintiff also testified that he
no longer takes prescription pain medication.
In
seeking
a
Disability
disability
completed grade
Report,
due
10,
to
was
plaintiff
arthritis
in
special
Tr. 57.
indicated
in
his
he
was
pelvis,
education
school, and that he has not completed a GED.
that
that
he
classes
when
in
Tr. 214.
The.ALJ discredited plaintiff's testimony because plaintiff
offered inconsistent explanations about his failed work attempts,
and
his
noncompliance
appointments.
with
recommended
treatment
For the reasons that follow,
and
missed
I find these reasons,
when taken together, do not amount to clear and convincing support
for the adverse credibility determination.
In the decision,
the ALJ noted that plaintiff attempted at
least six jobs between 2007 and 2008, and plaintiff testified that
these attempts were unsuccessful because employers were unwilling
to
hire
someone
with
his
disability.
Tr.
16,
39.
The
ALJ
questioned plaintiff's explanation because at the time plaintiff
was attempting work, plaintiff was abusing methamphetamine.
As
the ALJ discussed,
Dr.
But ton
indicated that
in 2010,
plaintiff had a positive toxicology screening for cocaine, and that
at that time, Dr. Button was concerned about
abuse of prescription painkillers.
Tr.
plaintiff'~
579.
A May
potential
26,
2010
treatment note shows that Dr. Button was concerned that plaintiff
had several "red flags" indicating actual or potential opiod abuse,
14 - OPINION AND ORDER
including dishonesty, a prior missed appointment, failing to make
appointments within 30 days, a stolen backpack with medications,
and failing to follow through with lab work and physical therapy.
Tr. 580.
Additionally, the ALJ discussed that Dr. Button believed
plaintiff was having difficulty "motivating" and was using his
parole officer as an excuse not to follow through with treatment
recommendations.
Tr.
18,
577.
Dr.
Button's
March
5,
2010
treatment note shows that plaintiff denied using illicit drugs
since his 2005 accident, however, Dr. Button learned from another
physician that plaintiff had admitted to using illicit drugs just
six months earlier.
substantial
plaintiff
Tr. 587.
evidence,
was
not
The ALJ's findings are supported by
and the ALJ could reasonably
entirely
forthright
about
the
infer that
reason
his
employment attempts ended and his noncompliance with appointments
and physical
therapy.
inconsistent
statements
Molina,
and
674
F.3d at
failure
to
1113
follow
(noting that
through
with
treatment are appropriate bases upon which to discredit claimant).
The Commissioner also contends
discredited
plaintiff
because
that
his
the ALJ appropriately
subjective
limitations
inconsistent with the objective medical evidence.
argues
that
plaintiff's
undermined by Dr.
needed.
Tr.
plaintiff's
testimony
Hamby's
47-48,
finding
546, 548.
testimony
15 - OPINION AND ORDER
that
he
that
he
are
The Commissioner
needs
a
cane
is
that no assistive device is
And, the Commissioner highlights
needs
to
lie down every day is
inconsistent
with
Dr.
Button's
treatment
reflect such a complaint from plaintiff.
notes,
which
do
not
In the decision, the ALJ
did note that in May of 2006, plaintiff requested that Dr. Lorber
close
his
without
workers
compensation
restrictions
so
that
claim and
he
release
could pursue
him
to
employment
work
as
a
landscaper, from which I can infer that the ALJ found plaintiff's
unrestricted work release request inconsistent with his current
statement that he has been disabled since his accident in 2005.
Tr.
17,
637-42.
While I
agree with the Commissioner that such
inconsistencies exist, the ALJ did not specifically rely upon these
facts or identify them as a basis for the negative credibility
assessment.
cannot
I
uphold
the
ALJ's
negative
credibility
assessment based on evidence the ALJ did not discuss, or reasons
the ALJ failed to provide.
Connett v. Barnhart, 340 F.3d 873, 874
(9th Cir. 2003) (the court is constrained to review the ALJ' s stated
reasons) .
I
also
likewise reject the Commissioner's contention that the ALJ
relied
plaintiff.
upon
a
three
year
gap
in
treatment
to
discredit
When discussing plaintiff's medical history,
the ALJ
indicated that from 2006 to 2009, plaintiff did not seek treatment.
However, the ALJ failed to link this gap to the adverse credibility
determination.
ALJ' s
Id.
Contrary to the Commissioner's suggestion, the
passing reference is simply not sufficiently specific to
permit me to adequately review the ALJ's reasoning on the record
16 - OPINION AND ORDER
See Lester v.
before me.
1995) (ALJ' s
general
unbelievable
is
Chater,
statement
insufficient
81
F.3d
that
to
821,
834
(9th Cir.
claimant's
support
testimony
adverse
credibility
determination) .
In
summary,
the
ALJ
has
provided
limited
reasoning
for
discrediting plaintiff that is supported by substantial evidence in
the
However,
record.
viewing
the
conclude'' that this reasoning convincing
support
Connett,
34 0
asserted
by
F. 3d
the
for
at
the
87 4
record as
whole,
in and of itself -
adverse
(the
credibility
court
I
cannot
is clear and
determination.
may
only
review
504
Lingenfelter,
ALJ) ;
a
reasons
F. 3d
1036-37
(ALJ' s
reasoning only partially upheld was not sufficient basis to support
adverse credibility determination) .
Accordingly,
I
conclude the
ALJ has erred.
III. Lay Testimony
Lay witness testimony as to a claimant's symptoms or how an
impairment affects his ability to work is competent evidence, which
the ALJ must take into account.
1113,
1115
(9th
Cir.
2009);
See Bruce v.
Stout
v.
Astrue,
Commissioner,
557 F. 3d
Soc.
Sec.
Adm.in., 454 F. 3d 1050, 1053 (9th Cir. 2006); Nguyen v. Cha ter, 100
F.3d 1462, 1467
(9th Cir.
1996).
The ALJ is required to account
for competent lay witness testimony, and if it is rejected, provide
germane reasons for doing so.
17 - OPINION AND ORDER
Valentine,
574 F.3d at 694.
Plaintiff's
hearing.
father,
Douglas
L.
Brown,
testified
at
the
Mr. Brown testified that he is retired, and his son has
lived with him on and off for five years.
Tr.
Mr.
61.
Brown
stated that his son can sit for up to an hour and half, then needs
to change position.
Mr. Brown described tha·t his son works on his
laptop by laying on his stomach on the bed, with the laptop on a
Mr.
stool.
working.
Brown stated that his son was happier when he was
Tr. 64.
Mr. Brown testified that his son is limited, and
he has to take it easy on his hip.
Mr. Brown further testified
that
to work as
when plaintiff was
plaintiff would
attempting
work from two to six hours,
nature of the job.
a
day
laborer,
depending on the
Tr. 65-66.
As the Commissioner acknowledges, the ALJ erred by failing to
weigh
Mr.
Brown's
testimony.
Nevertheless,
the
Commissioner
contends that the ALJ's failure to discuss the lay testimony was
harmless because Mr. Brown did not describe any limitations beyond
those described by the plaintiff, and the ALJ provided clear and
convincing
reasons
to
reject
the
plaintiff's
similarly apply to the lay testimony.
Mo.Una,
testimony
that
674 F.3d at 1122.
I disagree.
As
discussed
above,
the
ALJ
appropriately
discounted
plaintiff's testimony based on his lack of candor concerning the
reasons his work attempts were unsuccessful in 2007 and 2008.
This
reasoning, however, does not address the limitations described by
18 - OPINION AND ORDER
Mr.
Brown.
For example, Mr. Brown testified that plaintiff lies
down to work on his laptop each day, and must frequently reposition
himself.
As noted above, the ALJ did not discuss inconsistencies
with
medical
the
testimony.
discuss
Mr.
nondisability
evidence
Therefore,
Brown's
I
as
a
cannot
testimony
determination
basis
to
conclude
was
because
limitations the ALJ did not discuss.
discount
that
the
plaintiff's
failure
inconsequential
his
testimony
Molina,
to
to
the
identified
671} F.3d at 1116.
Accordingly, the ALJ's error is not harmless.
IV.
Remand
After finding the ALJ erred, this court applies a three part
test to determine whether the case should be remanded for further
proceedings,
or to calculate and award benefits.
Calv.in, 759 F.3d 995, 1020 (9th Cir. 2011}),
593;
Harman v. Apfel,
211 F.3d 1172, 1178
Garrison
Vasquez,
(9th Cir.
v.
572 F.3d at
2000).
The
court should grant an immediate award of benefits when these three
conditions are met:
(1) the record has been fully developed and further
administrative proceedings would serve no useful purpose,
(2) the ALJ has failed to provide legally sufficient
reasons
for
rejecting
evidence,
whether
claimant
testimony or medical opinion; and (3) if the improperly
discredited evidence were credited as true, the ALJ would
be· required to find the claimant disabled on remand.
Garr.i.son, 7 59 F. 3d at 1020.
Where, after evaluating the record as a whole,
doubts that the claimant is,
19 - OPINION AND ORDER
in fact,
there are serious
disabled,
the court may
exercise
its
discretion
and
administrative proceedings.
remand
the
case
for
further
Id. at 1021; Connett, 34 0 F. 3d at 87 6.
On this record, there remain outstanding issues to be resolved
and I have serious doubts as to whether plaintiff has been disabled
since
his
alleged onset date.
The ALJ failed
to
resolve
the
conflicting information between Drs. Button and Hamby with respect
to plaintiff's ability to stoop, crouch, crawl, lift, and whether
plaintiff must use a cane.
Dr.
RFC,
The Commissioner argues that even if
Button's limitations are fully credited and included in the
the vocational expert
limitations -
hardware assembler,
1991 WL 679062.
involves
no
identified one job without such
(VE)
DOTlf706. 684-074,
available at
As the Commissioner correctly notes,
stooping,
crouching
or
crawling,
and
the
the job
lifting
requirements (sedentary) do not appear to exceed plaintiff's stated
limitations.
See
(showing
Id.
that
stooping,
crouching
and
crawling are "Not Present - Activity or condition does not exist");
Tr. 47 (plaintiff states that he can lift 20 pounds occasionally).
However,
the
VE
also
testified
that
if
a claimant were
required to use an assistive device (cane), competitive employment
may be eliminated if there are pace and production requirements due
to the loss of productivity.
Tr.
79.
I
note that Dr.
Button
prescribed a cane, and that plaintiff testified he has used a cane
since his 2005 accident.
20 - OPINION AND ORDER
Tr.
47-48,
577.
Thus,
if plaintiff's
testimony and Dr. Button's opinion are credited as true, plaintiff
would be disabled.
Yet, viewing the record as a whole, I have serious doubts that
plaintiff has been disabled since his alleged onset date in 2005.
As the ALJ correctly indicated,
plaintiff requested that he be
released to work without restrictions in May of 2006.
Then, as the
ALJ
again
also
noted,
September of 2009.
plaintiff
did
not
seek
treatment
until
From late September through December of 2009,
the record readily demonstrates that plaintiff had a very serious
infection, with an obviously long and painful recovery.
Yet, there
is evidence in the record which may cast doubt on plaintiff's
credibility that
the ALJ failed
to discuss.
Additionally,
it
remains unclear whether plaintiff must ambulate with a cane,
is
capable of performing the jobs identified by the VE,
other
jobs
perform.
exist
in
the
national
economy
that
or whether
plaintiff
can
Therefore, on the record before me, I have serious doubts
that plaintiff has been disabled since September 2005, and there
are outstanding issues that must be resolved before a disability
determination can be made.
Based on the foregoing,
I exercise discretion under Connett
ar:id conclude a remand for further proceedings consistent with this
Opinion and Order is required to permit the ALJ:
(1) to reconsider
the opinion Dr. Button and reevaluate the medical testimony; (2) to
reconsider
plaintiff's
21 - OPINION AND ORDER
testimony;
(3)
to
reconsider
the
lay
testimony; ( 4) to consider whether any new findings made by the ALJ
alter the evaluation of plaintiff's RFC or affect the decision as
to whether plaintiff is capable of performing other work that
exists
in
significant
assistance
plaintiff
of
a
is
numbers
vocational
found
to
be
in
the
expert
disabled,
national
if
economy,
necessary;
the
ALJ
and
must
with
(5)
if
determine
plaintiff's disability onset date.
CONCLUSION
For
decision
the
reasons
denying
stated
benefits
to
above,
the
plaintiff
Commissioner's
is
REVERSED
final
and
this
proceeding is REMANDED pursuant to sentence four of 42 U.S.C.
§
405(g)
for further administrative proceedings consistent with
this opinion.
IT IS SO ORDERED.
DATED this
.;;{ "f day of OCTOBER, 2014.
Malcolm F. Marsh
United States District Judge
22 - OPINION AND ORDER
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