Caldwell v. Commissioner, Social Security Administration

Filing 25

Order and Opinion. Commissioner's decision is reversed and remanded for further development of the record. Signed on 04/04/2011 by Chief Judge Ann L. Aiken. (lg)

Caldwell v. Commissioner, Social Security Administration

Doc. 25

i~PR

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JEFFREY L. CALDWELL, Plaintiff, vs. MICHAEL J. ASTRUE,
Commiss r of Social Security,
Defendant. Merrill Schneider Schneider Law Offices P.O. Box 14490 Portland, Oregon 97293 Attorney pIa Civil No. 10 250-AA OPINION AND ORDER

iff

Dwight C. Holton United States Attorney strict Oregon Adrian L. Brown Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, Oregon 97204 Jordan D. Goddard Special Assistant U.S. Attorney Assistant Regional Counsel Office of General Counsel Social Security Administration PAGE 1 - OPINION AND ORDER

Dockets.Justia.com

701 fth Avenue, Suite 2900 MIS 221A Seattle, Washington 98104 At for defendant AIKEN, ef Judge: intiff, Jeff al Se dwell,
s

s action pursuant to the
§§

Y Act (the Act), 42 U.S.C.

405 (g), 1383 (c) (3),

to obtain judic Commissioner.

I review of a final decision of the The Commissioner denied plaintiff's applications

for Title II disability insurance benefits (DIB) and Title XVI supplemental security income (SSI) Act. sability benefits under

For the reasons set forth below, the Commissioner's

decision is reversed and remanded for further proceedings.
PROCEDURAL BACKGROUND

On December 15, 2005, pIa applications applicat

iff protectively filed Tr. 10. After the

both DIB and SSI.

were denied initially and upon reconsideration, a hea before an administrat was held On 17, law

plaintiff timely reque
j

(ALJ).

rd.

On June 20, 2008, an ALJ hear Tr. 10 17.

fore the Honorable Joel T. Elliott.

2008, ALJ Elliott issued a decision finding plaintiff not di led within the meaning of the Act. Tr. 17. On December 11, ision.

209, the Appeals Council declined to review the ALJ's Plaintiff then fi ed a complaint in this Court.
STATEMENT OF THE FACTS

Tr. 1-4.

Born in 1955,

aintiff was 47 years old on the alleged

onset date of disability and 53 years old on the date of the ALJ's decision. Tr. 22, 101, 167. Plaintiff attended high

PAGE 2 - OPINION AND ORDER

school through the ninth grade.

Tr. 22.

Pla

iff has

st

relevant work experience as a kitchen helper, motel cleaner, cannery worker, 1 "odd jobs." cape laborer, janitor, and as a worker of He al ges di lity beginning November

Tr. 12-17.

15, 2002, due to memory loss, headaches, arthritis, back pain, and depression. Tr. 13, 82 92, 105.
STANDARD OF REVIEW

This court must affirm the Secretary's based on

sion if it is by

legal standards and the findings are support , 879 F.2d dence is "more than a

substantial evidence in the record. 498, 501 (9th Cir. 1989). mere scintilla. mind mi Substantial

It means such relevant evidence as a reasonab

accept as adequate to support a conclusion."

Richardsonv. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). court must weigh "both the evidence that supports and detracts from Secretary's conclusions." Martinez v. Heckler,

807 F.2d 771, 772 (9th Cir. 1986). The initial burden of proof rests upon the claimant to establish disability. (9th Cir. 1986). Howard v. Heckler, 782 F.2d 1484, 1486 must strate

To meet this burden, plaintif

an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can expected . to last for a continuous

period of not less than 12 months.
§

"

42 U.S.C.

423

(d) (1) (A) ˇ

PAGE 3

OPINION AND ORDER

The Secretary

s est

lished a five-step sequential process Bowen v. Yuckert, O. First

for determining whether a person is disabled. 482 U.S. 137, 140 (1987); 20 C.F.R.

404.1502, 416.

the Secretary determines whether a claimant is engaged in "substantial gainful act disabled.
§§

"

If so, the claimant is not

Yuckert, 482 u.S. at 140; 20 C.F.R. O(b).

404.1520(b), 416.

In step two the Secretary determines whether the claimant has a "medically severe impairment or combination of irments." 482 u.s. at 140 41; see 20 C.F.R. If not, the claimant is not

404.1520(c), 416.920(c). disabled.

In step three the Secretary determines whether the irment meets or equals "one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial inful activity." Id.; see 20 C.F.R.

404.1520(d), 416.920(d).

If so, the claimant is conclusively proceeds to step four.

presumed disabled; if not, the Secreta
~====~,

482 u.S. at 141. cIa

In step four the Secretary determines whether can still perform "past relevant work."
§§

20 C.F.R. imant can work, she is not burden

404.1520(e), 416.920(e). sabled.

If the

If she cannot perform past relevant work,

shifts to the Secretary.

In step five, the Secretary must 482
&

establish that the claimant can perform other work. u.S. at 141 42; see 20 C.F.R. PAGE 4 OPINION AND ORDER

§§

404.1520(e)

&

(f), 416.920(e)

(f).

If the Secretary meets this burden and proves that the

claimant is able to perform other work which exists in the nati 416.966.
DISCUSSION

economy, she is not

sabled.

20 C.F.R.

§§

404.1566,

I.

The ALJ's Findings At step one of the five step s ial evaluation process

outlined above, t substantial gai 12, Finding 2. following severe

ALJ found that pIa inti f had not engaged in 1 activity s the alleged onset date. Tr.

At st

two, the ALJ found that plaintiff had the rments: mild degenerat disc disease in

the lumbar spine; major depress

disorder, recurrent and mild; Tr. 12,

borderline intellectual functioning; and alcohol abuse. Finding 3. At step three, the ALJ found that plaintiff's

impairments, ei

singly or in combination, did not meet or Tr. 13, Finding

equal the requirements of a listed impairment.
4.

The ALJ determined functional 5.

plaintiff had the residual Tr. 14, Finding

ty (RFC) to perform light work.

Plaintiff was limited to "simple work, nothing complex, public.
n

involving minimal interaction with

Tr. 14.

At step

four, the ALJ found that plaintiff was able to perform past re work as a motel cleaner and cannery worker. Tr. 16-17,

Finding 6.

Accordingly, at step 5, the ALJ found that plaintiff Tr. 17, Finding 7.

was not disabled.

PAGE 5

OPINION AND ORDER

II.

Plaintiff alleges that the ALJ erred in three by denying his request for a physical consultive second, by fail to provide clear and conv rd, by

: first, nation; reasons for rly

finding his testimony not credible; and evaluating A. rd-party statements.

Plaintiff's Request for a Physical Consultive Exam the ALJ erred refus to request

Plaintiff contends

a physical consultive examination and by failing to re-contact his emergency room doctors for medical statements. pg. 6. whi Pl.'s Br. at

Plaintiff argues that Dr. Richard Alley's report, in he stated that t "medical evidence of record is r develop the

insufficient," triggered the ALJ's duty to fu record. Tr. 166.

In Social Security cases, t develop t

ALJ has a special duty to

record fully and fairly and to ensure that the is

claimant's interests are considered, even when the cIa represented by counsel. 1150 (9th Cir. 2001). record is trigge

Tonapetyan v. Halter, 242 F.3d 1144, However, an ALJ's duty to develop s evidence or proper evaluation of

only when there is "amb

when the record is insufficient to allow evidence. Cir. 2001).
u

Mayes v. Massanari, 276 F.3d 453, 459-460 (9th

When triggered, the ALJ may fulfill this duty to supplement record by order a consultive examination. Reed v.

Massanari, 270 F.3d 838, 841 (9th PAGE 6 - OPINION AND ORDER

r. 2001); see also 20 C.F.R.

§

404.1519.

Fu

, when medical

rts lack statements about

what a claimant can do despite his impairments, the ALJ may supplement clarification. record by re-contacting the claimant's doctor for 20 C.F.R.
§

416.912(e); 20 C.F.R.

§

416.913(b) (6); see also SSR 96-5p. duty is not triggered, it is a i s dis a b 1 e d . See 4 2 U. S . c.
§

Conversely, where the ALJ's

aimant's duty to prove that he 4 2 3 (d) (5) ( " An ind i v i d u a 1 s unless he furni 11 not such

be considered to

under a disabili of

medical and other evi Secretary may require"); burden of demonstrating a

existence thereof as the Reed, 270 F.3d at 841 ("the

sability I
s a

s wi

the cIa r of physical

")

.

In this case, plaintiff all

aints that are not corroborated by the record. medical record is especially scarce a er 2004. In a

Plaintiff's ical intiff's

summary from January 18, 2006, Dr. Alley opined that cal record "appears to be in onset date]," not May 2003, and t At the hea that

ficient from [the alleged

earliest medical records were from

latest medical records were from December 2004.

, plaintiff explained that the reason for the lack treatment, and Tr. 31,

of medical evidence was that he could not af

was unaware that free treatment may have been available. 38. As such, ing

aintiff's counsel twice requested during the the ALJ order a consultive examination. nion did not address Dr. A I ' s op Further, the Tr. 21, 43.

The ALJ's

regarding the insufficiency of the medical record.

ALJ relied on plaintiff's lack of medical treatment as evidence PAGE 7 - OPINION AND ORDER

that he was not disabled and denied pia consult

iff's

st for a

examination without providing a reason for doing so. rdless, the Commissioner argues that the ALJ

sufficiently

loped the medical record.

The

ssioner, medical

relying on Osenbrook, asserts that "in evaluat reports, the more recent

s carry more probative weight."

Def.'s Reply at pg. 12; see also Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2000). 2006, two months a er Dr. Because Dr. Jensen opined in August ley, t the re was sufficient, Tr. 196.

the Commissioner contends that t

ALJ did not err.

However, Osenbrock only states that a "treating physician's most recent medical reports are highly probat 240 F.3d at 1165. treating physician; 196. "Osenbrock, aintiff's exam. Tr.

In this case, Dr. Jensen was not merely. rformed a consult

, Dr. Jensen's report seems to be based primarily on

a mental evaluation, in which plaintiff self reported daily activities that reflected "being physically active." 176. Tr. 167

This was the only evidence reviewed by Dr. Jensen that was Dr. Alley's assessment. Moreover, the only

not available dur evi

that Dr. Jensen appears to have relied upon in writ no bearing on whether

her report are previous x-rays, which

plaintiff is impa red due to pain from arthritis and headaches. Tr. 196. Thus, I find 1 error in the ALJ's failure to order a

physical consultive examination, or at least, to proffer an explanation as to why plaintiff's request for an exam was not PAGE 8 - OPINION AND ORDER

grant

Accordingly,

ALJ's decision must

revers

B.
Plaintiff al s that the ALJ failed to provide clear and

convincing reasons for rejecting his testimony regarding the extent of his impairments. has medically documented PI.'s Br. at pg. 15. When a claimant

irments that could reasonably ained of,

expected to produce some degree of the symptoms

and the record contains no affirmative evidence of malingering, "the ALJ reject [his] testimony regarding the severity of makes specific ndings stat clear 80 F.3d
)

symptoms only if

convincing reasons for doing so." 1273, 1281 82 (9th Cir. 1996) (internal quotation omit

.

If

the "ALJ's credibility finding is supported by substantial evidence in the record, we may not engage in second-guessing."
~~~~~==~~~,

278 F.3d 947

(9th Cir. 2002). Ie is insuffi

A general ent; the ALJ

assertion that must "state which evidence

aintiff is not c

. testimony is not credible and what s are not credible."

sts the compla

=======, 12 F.3d 915, 918 (9th Cir. 1993).
Here, the ALJ determined that plaintiff's medically determinable impairments could reasonably be expected to produce. some degree of s oms, but that his statements regarding the Tr. 12-16. ALJ

extent of these symptoms were not credible.

gave five reasons explaining why plaintiff's testimony was rejected: his limited and sporadic work history; his lack of truthfulness regarding his alcohol abuse; his ceasing work for PAGE 9 - OPINION AND ORDER

reasons ot living; 15-16.

than

s impairments; his activit and routine

s of daily treatment. Tr.

his conservat

Notably, the ALJ found that plaintiff's testimony regarding his daily activities "suggest a level of functioning greater than what he has all "Tr. 16. Dai acti ties that are

inconsistent with all considerat

symptoms are a relevant credibility plaintiff's abil y to

because they bear on

tell the truth.

261 F.3d 853, 857 (9th

Cir. 2001); see also Valentine v. Comm'r of Soc. Sec. Admin., 574 F. 685, 692 (9th Cir. 2009). Pl iff testified "is abl to complete household . use
s

such as cooking, cleaning, washing dishes and laundry. publ transportation. [and] comp

e yard work such as aintiff admitted nearly reason to his alleged

mowing the lawn."

Tr. 15 16.

In addition,

that he was employed for the maj $6000.

ty of 2006, ea

Tr. 12, 26-29. Plaintiff stated that

ceasing his employment in 2006 was not relat disabilities, but rather because his co-workers. Tr. 27-28.

was unable to cooperate with

Further, plaintiff continues to work and cl cars.

perform "odd jobs" for cash, namely Tr. 12.

The ALJ found that this evidence directly contradicted intiff's contentions about how debilitating his pain and other limitations were. Tr. 15. Accordingly, the ALJ found that these y to rform"s le work"

non-work activities reveal an abil PAGE 10 - OPINION AND ORDER

consistent with his past relevant work

rience.

Id.

Thus, h the

because plaintiff's level of activity is inconsistent ree of impairment that he alleges, the ALJ found testimony about the severi Id. The ALJ pointed to spe fic evidence in

aintiff's

of his limitations not credible.

record that

undermines plaintiff's claims that his that he was unable to work. provided at least one clear aintiff's subjective testimony Therefore,

irments were so great I find that the ALJ

convincing reason to reject rding the extent of his s Court to

limitations, and as such, it is unnecessary for further discuss the other reasons provided. C. Plaintiff also a

s that the ALJ erred by not gi rejecting the third Plaintiff further

"specific, germane, and valid reasons" rty statements. PI.'s Br. at pg. 10.

contends that, because

ALJ failed to properly evaluate the

lay testimony, appropriate limitations were not included in his RFC regarding his inability to concentrate and follow directions. PI.'s Br. at pg. 14. symptoms
~r

Lay testimony regarding a claimant's lity to work "is

.how an impairment affects

competent evidence that an ALJ must take into account," unless the ALJ "expressly determined to disregard such testimony and gives reasons germane to each witness for doing so."
~===,

Lewis v.

236 F.3d 503, 511

(9th Cir. 2001). cific.

reasons "germane 454 F.3d

to each witness" must be PAGE 11 - OPINION AND ORDER

Stout v. Comm'r,

1050, 1054 (9th Cir. 2006); see also 20 C.F.R.
(e) .

404.1513(d) (4),

In rejecting lay testimony, the ALJ need not cite to the ific record as long as "arguably germane reasons" for dismiss the testimony are noted, even though the ALJ does "not substantial

clearly link his determination to those reasons," evidence supports t However, the al reason for rejecting r to ALJ's ision.

Lewis, 236 at 512.

bias as a family member is not a valid testimony. Smolen, 80 F.3d at 1289. In

scredit a third party statement because of "secondary ALJˇmust point to evidence that the third

gain" or bias,

party exaggerated symptoms in order to procure benefits.
~~~===,

557 F.3d 1113, 1116 (9th Cir. 2009).

Harmless error is only applied in Social Security cases when it is clear the record that an ALJ's error was ultimate non-di lity determination."

"inconsequential to

Stout, 454 F.3d at 1055-56.

The Ninth Circuit has never found

harmless an "ALJ's silent disregard of lay testimony about how an rment limits a claimant's ability to work." Here, the pI plaintiff was suf Id.

iff's sister, Diane Hanson, testified that ring from arthritis, and as a result, "there Tr. 199. Ms. Hanson also

are so many times he's crippled up."

ained that plaintiff has problems with concentration and short term memory loss. In addition, in a third-party aintiff for

function report, Alvin L. Bailey Jr., who has known 25 years, stated he he

plaintiff for three to four hours

PAGE 12 - OPINION AND ORDER

per day with dai plaintiff had

activities.

Tr. 12.

Mr. Bailey

so stated

lems with memory, concentration, and

attention span, and as such, must be reminded to take care of pers needs. The ALJ Tr. 113-17. led to separately address Tr. 16. statements of Ms.

Hanson and Mr. Bailey. lay testimony c

Instead, the ALJ dismissed the

"[t]hese observations conflict with the

's activities of daily living and conservative treatment with ivation Because

history,U and "these parties have a personal relationsh the claimant and lack the expertise and poss to of t an y the

ective or functional assessment.u

ALJ failed to offer germane reasons specific to each witness rty statements, because the ALJ's regarding

for rejecting their thi

decision wholly fails to mention how the lay test

plaintiff's impairments affect his ability to work, as reflected in the RFC, I find that ALJ erred.

Where lay testimony is found credible, limitations discussed in that testimony must be included in hypothetical questions posed to vocational experts. Bruce, 557 F.3d at 1116. None of rt at

the hypothetical questions posed to the vocational hearing included the Bailey or Ms. Hanson. fic 1 Tr. 41-44.

tations testified to by Mr. Had all the 1 at ions

discussed in both of the third-party statements been included in RFC, vocational expert's testimony would have been

different and the ALJ's step four findings would likely changed. PAGE 13 Therefore, the ALJ's error is not OPINION AND ORDER rmless.

Accordingly, the ALJ's decision must

revers s is reversed, an has been proce That

When a decision denying disability bene award of benefits may fully deve

directed "where the reco

and where further administrat I purpose." The record has not

would serve no use is not the case

80 F.3d at 1292.

fully developed.

Further, there are clear conflicts between the lay testimony regarding plaintiff's limitations and the scarce medical evidence regarding plaintiff's ability to work. expert was not consulted regarding the
r,

vocational

testimony when iff's ability to record,

answering hypothetical questions regarding pI work.

As such, I remand for further development of

in accordance

th Sections II(A) and II(C) of this opinion.
CONCLUSION

The Commissioner's decision is not bas evidence in the record and is t r development IT IS SO ORDERED./!ot. Dated this

on substantial

fore reversed and remanded for

the record as stated

~~y

of April 2011.

Ann Aiken United States District Judge

PAGE 14 - OPINION AND ORDER