Coffman v. Commissioner Social Security Administration

Filing 25

ORDER: The Commissioner's decision is reversed and remanded for further proceedings pursuant to sentence four of 42 U.S.C. 405(g). Signed on 12/18/2012 by Magistrate Judge Thomas M. Coffin. (plb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

6:11 CV 6225-TC

JEFFREY A. COFFMAN,

ORDER
Plaintiff,
v.

MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
COFFIN, Magistrate Judge:
Plaintiff brings this action for judicial review of a final
decision of the Commissioner of Social Security denying her
application for Disability Insurance Benefits and Supplemental
Security Income Benefits

u.s.c.

§

The court has jurisdiction under 42

405(g).

Plaintiff was 35 at the time of the hearing and alleges that
the onset date of disability was 2003.
2006.

1 - ORDER

He was insured through

The ALJ ·performed the five-step sequential process and found
that plaintiff was not disabled.

The ALJ found that plaintiff

had the following severe combination of impairments: history of
fracture of right forearm,

diabetes mellitus, alcohol abuse in

claimed remission, history of polysubstance abuse, and bipolar
disorder.

The ALJ found that plaintiff was unable to perform his

past relevant work, but that he could work at jobs such as an
assembler and mail room clerk.
Plaintiff seeks a reversal of the Commissioner's decision
and a remand for the awarding of benefits.
plaintiff

In the alternative,

seeks a reversal and remand for further proceedings.

Plaintiff argues that the ALJ decision is not supported by
substantial evidence as the hypothetical to the vocational expert
was incomplete because it did not adequately incorporate
limitations the ALJ himself found.

Plaintiff also argues there

is post -hearing evidence that was not adequately considered and
"compels a finding of disability." 1
As to the first argument, plaintiff states that the

ALJ

found "moderate" difficulties in concentration, persistence and
pace and "variable"

concentration.

Defendant counters that

although the ALJ did not explicitly state this in the

1

Plaintiff also made
that the ALJ erred in his
However, the ALJ properly
explained his reasons for
2 - ORDER

a short argument in his opening brief
consideration of lay testimony.
addressed lay testimony and adequately
not fully crediting the testimony.

hypothetical to the vocational expert, that such is not required
under Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008).
However, it does not appear the ALJ's hypothetical question to
the vocational expert "adequately capture[d] claimant's
restrictions related to concentration, persistence or pace."
Stubbs at 1174.

The ALJ's hypothetical did not incorporate

concrete restrictions, it just stated a limitation to no more
than

unskilled to low, semi-skilled work.

Therefore it appears

the ALJ's step-five finding as to plaintiff's ability to perform
certain jobs is not supported by substantial evidence.
Plaintiff also argues that certain post-hearing evidence was
not properly considered and compels a finding of disability.

Dr.

MacMaster had recently started treating plaintiff as a family
physician and indicated an extreme loss of mental function in a
July 2010 checklist form.

He indicated that plaintiff

experienced a "marked" or greater loss of mental function in 23
of 24 identified functional areas.

He further stated that

plaintiff experienced extreme limitations in daily living, marked
difficulties in social functioning, and a constant state of
concentration deficiency and decompensation.

Tr.

1037-1040.

Dr. MacMaster opined that the limitations had been present since
2003.

The checklist form is accompanied by a letter, but that

letter contains very little explanation when it comes to
plaintiff's mental limitations.

3 - ORDER

Dr. Monson, a treating podiatrist, also saw plaintiff posthearing.

Dr. Monson saw plaintiff

plaintiff reported neuropathic

for diabetic foot care as

pain with walking and standing.

After an examination, Dr. Monson recommended nonweight-bearing
exercise and to minimize excessive walking or standing.
1079.

Tr.

There are no other treatment notes in the administrative

record form Dr. Monson.
Retrospective assessments can be probative medical
evidence, See Flaten v. Secretary, 44 F.3d 1453, 1461 n. 5 (9th
cir. 1995); Kemp v. Weinberger, 522 F.2d 967

(9th Cir. 1975)

The foregoing evidence was not assessed by the ALJ and its
current state

does not compel a finding of disability.

All things considered, the record needs to be more fully
developed in the circumstances of this case.

In Mayes v.

Massinari, 276 F.3d 453, 459-460 (9th Cir. 1999), the Ninth
Circuit Court of Appeals stated that an ALJ's duty to further
develop the record is triggered when there is ambiguous evidence
or when the record is inadequate to allow for proper evaluation
of the evidence.

See also 20 C.F.R. §416.912.

The ALJ shall contact Dr. MacMaster and Dr. Monson and
request

new or more detailed reports as the ALJ sees fit.

The

ALJ shall then consider and weigh all the evidence and perform a
new five step analysis.

4 - ORDER

Hypothetical questions, if any are

necessary, shall adequately include all of the limitations found.

CONCLUSION

As discussed above, the Commissioner's decision is reversed
and remanded for further proceedings pursuant to sentence four of
42U.S.C. §405(g).

DATED this

l~day

of December,2012.

'rhoma~

United States Magistrate Judge

5 - ORDER