Parsons v. Commissioner, Social Security Administration
Filing
20
OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 11/21/2013 by Judge Malcolm F. Marsh. (pvh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TIMOTHY JOEL PARSONS
Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
KATHRYN TASSINARI
ROBERT A. BARON
474 Willamette, Suite 200
Eugene, OR 97401
Attorneys for Plaintiff
S. AMANDA MARSHALL
United States Attorney
District of Oregon
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Ave., Suite 600
Portland, OR 97204
SARAH L. MARTIN
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Ave., Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
1 - OPINION AND ORDER
Case No. 6:12-cv-01693-MA
OPINION AND ORDER
MARSH, Judge
Plaintiff Timothy Joel Parsons brings this action for judicial
review of a final decision of the Commissioner of Social Security
denying his application for
Supplemental Security Income
benefits under Title XVI of the Social Security Act,
1381-1385.
(SSI)
42 U.S.C
§§
This Court has jurisdiction pursuant to 42 U.S.C.
405(g) and 42 U.S.C.
§
1383(c) (3).
§
For the reasons that follow, I
reverse the final decision of the Commissioner,
and remand this
action for further administrative proceedings.
PROCEDURAL BACKGROUND
Plaintiff
December 21,
February
9,
protectively
an
application
for
SSI
Plaintiff again protectively filed for
2007.
2009,
filed
alleging disability beginning June
1,
on
SSI
2003.
Plaintiff's claim was denied initially and upon reconsideration.
Plaintiff filed a request for a hearing before an administrative
law judge
(ALJ) .
An ALJ held hearings on November 4,
2010 and
April 5, 2011, at which plaintiff appeared with his attorney and
testified.
hearing.
A vocational expert also appeared and testified at each
At the November 4,
2010 hearing,
plaintiff's attorney
requested that plaintiff's initial SSI application be re-opened and
he amended his alleged onset date to December 21, 2007.
13,
2011,
the ALJ issued an unfavorable decision.
On April
The Appeals
Council denied plaintiff's request for review on July 19,
2 - OPINION AND ORDER
2012.
final
decision therefore became the
The ALJ' s
decision of the
Commissioner for purposes of review.
FACTUAL BACKGROUND
Plaintiff was born in 1959 and was 49 years old on the date
his 2009 application was filed and was a "younger individual" under
the regulations.
On the date of the ALJ's decision, plaintiff's
age category had changed to "closely approaching advanced age."
Plaintiff
Plaintiff completed 11 years of school, obtained a GED.
has past relevant work as a campground attendant, and also has been
employed as a boat painter, a roofer, a shrimp picker and a chef.
Plaintiff alleges disability based 6n degenerative disc disease,
sciatica, and chronic obstructive pulmonary disease (COPD) .
THE ALJ'S DISABILITY ANALYSIS
The
Commissioner
has
established
five-step
a
sequential
process for determining whether a person is disabled.
Bowen v.
416.920.
Each step
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
is potentially dispositive.
at
steps one through four.
§
The claimant bears the burden of proof
Bray v.
Commissioner of Soc.
Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009); Tackett v. Apfel, 180
F. 3d
1094,
1098
(9th
Cir.
1999).
The
burden
shifts
to
the
Commissioner at step five to show that a significant number of jobs
exist
in
the
national
economy that
Yuckert, 482 U.S. at 141-42.
3 - OPINION AND ORDER
the
claimant
can
perform.
At step one, the ALJ found that plaintiff has not engaged in
~ubstantial
At step two,
since
See 20 C.F.R. §§
application date.
medically
activity
gainful
February
2009,
9,
the
416.920(b), 416.971 et seq.
the ALJ found that plaintiff had the following
determinable
severe
impairments:
status
post
lumbar
surgeries and marijuana abuse disorder. See 20 C.F.R. § 416.920(c).
At step three, the ALJ found that plaintiff does not have an
impairment or combination of impairments that meets or medically
equals a listed impairment.
See 20 C.F.R. §§ 416.920(d), 416.925,
416.926.
The ALJ assessed plaintiff with a residual functional capacity
(RFC) to perform light work as defined in 20 C.F.R. § 416.967(b),
except that claimant can stand for four hours and sit for three
hours at any one time for a total of six hours each in an eight
hour workday; he cannot climb ropes or ladders but can occasionally
perform all other postural movements; he can withstand occasional
exposure to heights, hazards, and machines due to marijuana abuse;
he cannot walk a block at a reasonable pace on rough or uneven
ground; he can withstand occasional extreme cold; and can withstand
frequent but not continuous vibration.
See 20 C.F.R. §§ 416.927,
416.929.
At
step
four,
the ALJ
found
perform any past relevant work.
4 - OPINION AND ORDER
that
plaintiff
is
unable
See 20 C.F.R. § 416.965._
to
At
step
five,
the
ALJ
found
that
considering
his
age,
education, work experience, and residual functional capacity, there
are jobs that exist in significant numbers in the national economy
that plaintiff can perform.
Accordingly,
the
See 20 C.F.R.
ALJ concluded that
§§
416.969, 416.969(a).
plaintiff
is
not
disabled
within the meaning of the Act.
ISSUES ON REVIEW
Plaintiff contends
that
the ALJ made
several
errors:
( 1)
improperly discrediting the opinion of James Suiter, his treating
nurse
practitioner;
(2)
improperly discrediting the
reviewing physician Robin Rose, M.D.;
his
testimony;
and
(4)
failing
to
opinion of
(3) improperly discrediting
demonstrate
that
plaintiff
retains the ability to perform other work in the national economy
at step five.
STANDARD OF REVIEW
The 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.
§
42
u.s.c.
405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
"Substantial evidence means 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."
Valentine v. Comm'r Soc. Security Admin., 574 F.3d 685,
Cir.
2009).
The court must weigh all the evidence,
5 - OPINION AND ORDER
690
Id.;
(9th
whether it
supports or detracts from the Commissioner's decision.
Heckler,
807 F.2d 771,
772
decision must be upheld,
(9th Cir.
1986).
Martinez v.
The Commissioner's
even if the evidence is susceptible to
more than one rational interpretation.
Batson v. Comm'r of Soc.
Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews, 53
F.3d at
1039-40.
If the evidence
supports the Commissioner's
conclusion, 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); Batson, 359 F.3d at
1193.
DISCUSSION
I.
Plaintiff's Medical Record
The record before me shows plaintiff visited the Springfield,
Oregon emergency room (ER) three times on December 11, 17, and 28,
These records show that plaintiff had recently moved to
2007.
Springfield
from
Arizona,
and
that
he
was
without
insurance.
During the December 11, 2007 ER visit, treatment providers noted an
"intense spasm palpable in the lumbar region bilaterally."
343.
Tr.
Plaintiff was encouraged to follow up immediately with a
primary care physician,
343-44.
The
December
and was given Percocet and Valium.
11,
2007
ER
treatment
notes
Tr.
clearly
demonstrate an objective basis for plaintiff's pain complaints.
During the December 17, 2007 visit, plaintiff described that
his pain recently had exacerbated, with his left leg feeling very
6 - OPINION AND ORDER
hot and "fire-like," and the doctor noted plaintiff moved slowly
during the examination.
Tr. 341-42.
Plaintiff stated that he had
Plaintiff again was
not yet seen a doctor, and had no insurance.
given Percocet and Valium,
and was counseled that the ER cannot
accommodate pain management.
28,
2007,
During his third visit on December
plaintiff arrived by ambulance after falling down and
injuring his back and left buttock.
Tr.
338.
Plaintiff stated
that he had seen his primary care physician and was scheduled for
an MRI.
According to the ER pain policy, he \vas given two Vicodin
and advised to follow up with his primary care physician.
Id.
Consistent with plaintiff's explanation to the ER doctors, his
medical records show that plaintiff established care with Beth
Blumenstein,
M.D.,
on
December
21,
2007.
Tr.
350.
Dr.
Blumenstein's treatment notes indicate that plaintiff was in tears,
and plaintiff described that he had experienced intermittent low
back
pain
for
years,
with
a
sudden
exacerbation.
Plaintiff
reported to Dr. Blumenstein fire-like pain running down his left
leg into his foot.
Dr. Blumenstein noted that plaintiff had been
without any .health maintenance for
needed.
years,
and that an MRI
was
Plaintiff stated that he could not afford an MRI, and Dr.
Blumenstein advised him to apply for Bridge Assistance, a charity
care program, and she prescribed Percocet and Valium.
Id.
Thus,
contrary to the ALJ's findings,
7 - OPINION AND ORDER
Tr. 350-51.
plaintiff's three ER
visits and his statements to Dr. Blumenstein and the ER physicians
were consistent.
An MRI was performed on January 14,
2008,
and showed that
plaintiff had multilevel neural foraminal narrowing without central
canal stenosis.
Tr.
352.
Because plaintiff was describing pain
out of proportion to the MRI results, Dr. Blumenstein referred him
to Christopher G. Miller, M.D., a neurosurgeon.
On May 6, 2008, plaintiff had an initial consultation with Dr.
Miller, who performed an MRI that day.
Dr. Miller observed that
the MRI showed plaintiff has "advanced degenerative disc collapse
at L5-Sl,
a little less so at L4-5,
but he has severe foraminal
stenosis bilaterally, worse on the left at L5-Sl with a broad-based
central bulge and actually even some herniation out in the foramen
there."
Tr.
378.
Dr.
Miller found that plaintiff's pain had
progressed to the point that plaintiff cannot sit comfortably,
standing and walking produce intense pain, noting "[i)t is clearly
claudication," and that "90% of his symptoms are actually leg pain
and claudication, consistent with the stenosis."
Id.
Dr. Miller
recommended decompression surgery instead of a posterior lumbar
interbody fusion
health.
( PLIF)
because plaintiff was generally in poor
Dr. Miller noted that plaintiff would not get 100 percent
relief from the decompression and would likely need an additional
surgery, and that plaintiff was without insurance.
8 - OPINION AND ORDER
Tr. 379.
On August
21,
2008,
plaintiff was
Tr.
ambulance after falling.
364.
brought
to the
ER via
Plaintiff informed the ER
physician that surgery had been recommended, but he wanted a second
opinion,
and plaintiff presented his January 2008 MRI results.
Plaintiff was given narcotics and advised to follow up with a
primary care physician.
In September
2008,
plaintiff
established
Sheffield, a family nurse practitioner.
Tr. 428.
care
with
Sarah
Ms. Sheffield's
treatment notes indicate that plaintiff had seen Dr. Miller, who
was recommending surgery.
abuse,
admitted to Ms.
drinking,
up
gabapentin.
to
four
At
a
Plaintiff, who has a history of alcohol
Sheffield that
drinks
follow
a
day.
up visit
he had recently started
Ms.
Sheffield prescribed
two weeks
later,
plaintiff
continued to complain of pain in the left lower extremity,
tingling, burning and numbness.
Tr. 427.
with
Ms. Sheffield noted that
plaintiff was in "obvious discomfort" and upon exam discovered
"obvious neurologic
issu~s
in the
atrophy of both thigh and calf."
[left lower extremity),
Id.
with
Ms. Sheffield's treatment
notes indicate that she was coordinating with Dr. Miller to obtain
insurance coverage for plaintiff's recommended surgery.
27.
Tr. 426-
When plaintiff met with Ms. Sheffield in December 2008, she
provided
"lengthy
reassurances"
surgery.
9 - OPINION AND ORDER
to
allay
plaintiff's
fear
of
Miller
Dr.
2009,
of
January
In
spinal
a
performed
decompression surgery in attempt to relieve some of plaintiff's
Although plaintiff experienced some initial improvement
pain.
On March 31,
following surgery, the results were not long lasting.
2009, plaintiff met with Sean T. Rabacal,
Dr. Miller's Physician
Mr. Rabacal observed that plaintiff was still "in a
Assistant.
fair amount of pain" diffuse across his back and radiating down
Rabacal
waiting
recommended
would
body
plaintiff's
On
May
physician,
physical
determine
to
months
and plaintiff's
if
Percocet
Id.
Sharon
2009,
5,
heal,
further
prescription was refilled.
more
two
Mr.
Tr. 389.
both legs and that the claudication had returned.
B.
Eder,
nonexamining
a
M.D.,
reviewed plaintiff's medical records and completed a
residual
functional
capacity
commented that as of January 20,
2009,
assessment.
Dr.
Eder
plaintiff complained of
years of progressive problems with his back and legs, with pain
radiating down his left leg, that standing produces intense pain,
sitting is uncomfortable, and walking is worse. Tr. 388.
Dr. Eder
his
advanced
also
that
observed
plaintiff's
MRI
confirms
degenerative disc disease, that he is stenotic at L5-Sl and L4-5,
and that "he is disabled, cannot work."
in
February
of
2009,
plaintiff
was
Dr. Eder also noted that
three
weeks
out
from
decompression, that plaintiff could sit and stand comfortably, and
his severe burning in his left leg was gone.
10 - OPINION AND ORDER
Tr. 388.
Based on
these
records,
Dr.
Eder concluded that plaintiff was partially
credible about his limitations, and provided a "projected RFC" for
the healing process, indicating that plaintiff could be expected to
perform light work by February 9, 2010.
At
a
follow
up
visit
with
Dr.
Miller
plaintiff continued to complain of pain.
on
Dr.
June
2,
2009,
Miller examined
plaintiff, noting plaintiff had full strength in his legs, but was
tender in the buttocks.
showed post-surgical
Dr.
changes
Miller then ordered an MRI,
with
"moderately severe
which
bilateral
for aminal stenosis LS-Sl and moderate right L4 foramina! stenosis."
Tr. 390.
Dr. Miller explained that "[h]is MRI scan really looks
like he is still very tight in the left LS-Sl foramen" and it looks
like he has a broad-based spur in the foramen."
Continuing,
Dr.
Miller observed that plaintiff has "such extensive collapse at that
level, that I doubt if there is much disc."
Dr. Miller recommended
another decompression surgery as quickly as possible to attempt to
relieve plaintiff's pain.
Tr. 392.
In September 2009, Dr. Miller
performed another decompression surgery.
Again, after the September 2009 surgery, plaintiff experienced
some initial relief, but plaintiff reported a flare up of symptoms.
In December of 2009, plaintiff noted his pain was better overall,
but he still had diffuse low back pain.
Tr. 395.
At a follow up
visit in February of 2010, Dr. Miller recommended a two-level PLIF.
11 - OPINION AND ORDER
Tr. 394. Dr. Miller agreed to perform the surgery if approved by
insurance.
On
September 21, 2009, plaintiff established care with James
Suiter, a nurse practitioner, for follow up care after a bicycle
crash injured three ribs.
Tr.
417.
In February of 2010,
Mr.
Suiter's chart notes show that plaintiff appeared uncomfortable
sitting in a chair, he had a full range of motion and strength in
his lower extremities, and that plaintiff complained of significant
back pain.
Tr. 416.
Mr. Suiter diagnosed chronic pain syndrome
with continuous opioid dependency,
and depression,
insomnia and
anorexia
Suiter's
reflect
due
to
his
pain.
Mr.
plaintiff was no longer using alcohol,
Mr.
Suiter
concurred
with
notes
that
but was using marijuana.
Dr.
Miller's
surgical
recommendation.
A March 10,
foraminal
2010 MRI
stenosis
at
showed moderate to severe bilateral
L5-S1,
dessication at L4-5 and L5-S1.
On April 4,
marked
disc
been denied and that Dr.
narrowing
and
Tr. 437.
2010, plaintiff met with Mr.
about his pain management.
medications.
with
Suiter,
concerned
Plaintiff described that surgery had
Miller could no longer prescribe pain
Mr. Suiter discussed pain options with plaintiff,
noting that the clinic pain program was closed and that he would
not qualify because he smokes marijuana.
Tr. 413.
Mr. Suiter's
notes reflect that plaintiff would obtain medical marijuana from
12 - OPINION AND ORDER
the Oregon Compassion/Pain Center.
Tr. 412.
In May of 2010, Dr.
Miller attempted to set up plaintiff's third surgery, but insurance
denied
Consistent
it.
with
plaintiff's
reports,
Dr.
Miller
indicated that at that time, he· could not treat plaintiff since he
was not a
surgical candidate,
and that plaintiff would need a
different treatment provider for pain management.
Tr. 436.
In June of 2010, plaintiff again saw Mr. Suiter for a follow
up on his pain management.
Mr. Suiter noted plaintiff's "chronic
pain syndrome with continuous opioid dependency which has been
significant.
He has had very poor response to withdrawal from
narcotics in the past" due to his degenerative disc disease.
462.
Tr.
Plaintiff indicated he would be willing to stop using medical
marijuana if necessary to get into a pain management program.
Tr.
463.
On August 6, 2010, plaintiff saw Peter Petricelli, M.D., for
his pain,
and
requested narcotics.
Dr.
Petricelli noted that
plaintiff had been rejected from one pain clinic because he tested
positive for marijuana, and another for being uncooperative.
Petricelli was unwilling to prescribe narcotics,
Dr.
and prescribed
Ultram, a non-narcotic, instead. Tr. 458.
On August 20, 2010, plaintiff again saw Mr. Suiter for pain,
and to attempt to get his surgery approved.
Mr. Suiter concurred
with Dr. Miller's assessment and the need for surgery.
Plaintiff
admitted that he was using marijuana and alcohol for his increased
13 - OPINION AND ORDER
Plaintiff stated the Ultram was not working, and that his
pain.
Eventually,
problems persisted.
plaintiff's third surgery was
approved by insurance.
On October 30, 2010,
Dr. Miller performed the PLIF surgery.
At a follow up visit in December of 2010,
plaintiff was doing very well,
gone,
Dr. Miller noted that
noting that most of his pain was
and that plaintiff had cut back dramatically on his pain
medications.
On March 1, 2011, Dr. Miller again examined plaintiff
and noted that plaintiff was complaining of diffuse pain in his low
back,
but that plaintiff was progressing "satisfactorily."
Miller noted that plaintiff should remove his brace,
Dr.
and begin
Dr. Miller opined that plaintiff's
light stretching exercises.
recovery would take more than a year, and that by summer he should
see considerable improvement.
On
November
15,
2010,
Tr. 515.
Robin
Rose
M.D.,
conducted
a
comprehensive review of plaintiff's medical records and opined that
plaintiff was capable of standing and walking for three hours, with
the ability to change position, and that plaintiff could sit for
four hours, with the need to change position every 30 minutes, and
that
plaintiff
occasionally.
could
lift
Tr. 477-94.
10
pounds
frequently
and
20
pounds
Additionally, Dr. Rose indicated that
light and sedentary work may be difficult due to unpredictable
flares of pain, and that plaintiff would miss more than two days of
work per month.
Tr.
14 - OPINION AND ORDER
494.
On November 23, 2010, Dr. Rose opined
that plaintiff has been unable to perform light or sedentary work
since December 21, 2007.
On January 7, 2011, Seth Kagan, M.D., an examining physician,
Tr. 501.
performed a physical capacity evaluation of plaintiff.
Dr.
Kagan observed that plaintiff was able to transfer from the
to
chair
exam
the
table
remove
easily,
his
without
shoes
difficulty, sit comfortably, and noted that plaintiff limped with
Tr. 503-04.
the right knee seeming to buckle.
Dr. Kagan diagnosed
probable neuro foraminal stenosis, and opined that plaintiff could
stand and walk for six hours,
could sit without limitation,
and
could lift 100 pounds occasionally and 50 pounds frequently.
In
decision,
the
the
gave
ALJ
significant
weight
to
Miller's 2011 opinion and some weight to Dr. Kagan's opinion.
Dr.
The
ALJ also gave significant weight to Dr. Eder's opinion.
Ill!
Ill!
III. The ALJ's Evaluation of the Medical Evidence
A.
Standards
An ALJ may reject a treating physician's opinion when it is
inconsistent
physicians
with
if
the
the
opinions
ALJ makes
of other treating or
examining
forth
specific,
findings
setting
legitimate reasons for doing so that are supported by substantial
evidence in the record.
F. 3d 1228,
1232
Taylor v. Comm'r of Soc. Sec. Admin., 659
(9th Cir.
15 - OPINION AND ORDER
2011).
In general,
the opinion of a
treating physician is given greater weight than the opinions of
(9th
631-32
495 F.3d 625,
See Orn v. Astrue,
other physicians.
Cir, 2007) (treating physician's opinion is given controlling weight
if
it
well-supported
is
and
inconsistent
not
with
the
other
substantial evidence in the record) .
A nonexamining physician
treats the claimant.
1995) .
is
one
who
neither
examines
nor
Lester v. Chater, 81 F.3d 821, 830 (9th Cir.
"The opinion of a nonexamining physician cannot by itself
constitute substantial evidence that justifies the rejection of the
opinion of either an examining physician or a treating physician."
Taylor, 659 F. 3d at 1233 (quoting Lester, 81 F.3d at 831).
nonexamining
physician's
physician's
opinion
and
opinion
the
ALJ
contradicts
gives
greater
an
When a
examining
weight
to
the
nonexamining physician's opinion, the ALJ must articulate specific
and legitimate reasons supported by substantial evidence for doing
so.
See, e.g., Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198
(9th Cir. 2008) .
A nonexamining physician's opinion can constitute
substantial evidence if it is supported by other evidence in the
record.
Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595,
600
(9th Cir. 1999).
B.
James E. Suiter, Nurse Practitioner
Plaintiff argues that the ALJ erred by failing to discuss Mr.
Suiter's opinion.
address Mr.
The Commissioner acknowledges the ALJ failed to
Suiter's records directly,
16 - OPINION AND ORDER
but alleges the error is
harmless.
Suiter's
I conclude the ALJ's failure to discuss Mr.
opinion and evidence is harmful error.
Under the social security regulations governing the weight to
be
to
accorded
medical
sources"
"acceptable medical
opinions,
include licensed physicians and licensed psychologists,
nurse
20
practitioners.
C.F.R.
§
416.913(a),
but not
Nurse
(d) (1).
"Other"
practitioners are deemed to be "other sources."
medical sources may not establish the existence of a medically
determinable impairment, but, the information from other sources
may provide insight into the severity of a claimant's impairments
and ability to work, especially where the evidence is complete and
detailed.
See SSR 06-03p, available at 2006 WL 2329939, *4-5.
Because
Mr.
an
was
Suiter
"other
source"
under
the
regulations, the ALJ was required to provide a germane reason for
discounting Mr. Suiter's opinion.
F.3d 1113,
1115-16
(9th Cir.
See, e.g., Bruce v. Astrue, 557
2009) (explaining standard for
lay
witness testimony); Turner v. Astrue, 613 F.3d 1217, 1223-24 (9th
Cir.
2010).
probative"
Additionally,
evidence
has
an ALJ must explain why "significant
been
rejected.
Vincent
on
Behalf of
Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984).
The Commissioner's suggestion that Mr. Suiter's opinion and
treatment records were not sufficiently probative to warrant the
ALJ's discussion is meritless.
Mr. Suiter began treating plaintiff
in September of 2009, continuing into 2010.
17 -OPINION AND ORDER
An October 20, 2010,
treatment
note
syndrome
shows
with
continuous
pain/degenerative
disc
diagnosis
plaintiff's
"chronic
of
secondary
dependency
opioid
Mr.
disease.n
observed
Suiter
pain
to
that
plaintiff had difficulty walking, noting that plaintiff was barely
ambulatory, and he opined that plaintiff is "basically disabled due
to
his
extensive
back pain
issues.
Tr.
n
Mr.
451.
Suiter's
treatment notes indicate that plaintiff's condition was essentially
unchanged from at least June of 2010 through October of 2010.
451, 455, 462.
As discussed above, Mr. Suiter concurred with Dr.
Miller's opinion that plaintiff required a
relief,
Tr.
was coordinating care with Dr.
PLIF to obtain pain
Miller,
and assisted in
Mr. Suiter's
obtaining approval for plaintiff's third surgery.
chart notes consistently indicate that plaintiff was extremely
limited by his severe back symptoms, and that his extreme pain was
impairing his ability to sleep and eat.
plaintiff's
about
impairments
and
his
Mr. Suiter's observations
functional
limitations
constitute significant probative evidence that the ALJ could not
reject without comment.
Thus,
the ALJ's failure to discuss and
weigh this significant probative evidence was error.
I
reject the Commissioner's suggestion that
the error was
harmless because Mr. Suiter's 2010 opinion was inconsistent with
Dr. Miller's March 2011 opinion.
specious.
18 - OPINION AND ORDER
The Commissioner's argument is
Dr.
In March of 2011,
Miller stated that plaintiff should
experience "significant improvement" in his symptoms by summer of
2011 following plaintiff's third surgery.
While the ALJ purported
to give Dr. Miller's 2011 opinion "significant weight," the ALJ
failed to account for Dr. Miller's earlier opinions recommending
surgery.
More critically, the ALJ omitted entirely any discussion
of Dr. Miller's 2008 MRI results showing advanced degenerative disc
disease, severe bilateral foraminal stenosis, disc herniation, and
Claudication,
operative
stenosis.
changes
Tr.
2009
the
or
with
2010
moderately
390,
378,
and
MRI
results
severe
showing
bilateral
Plaintiff's
post-
foraminal
degenerative
disc
disease and chronic pain did not remain static through the relevant
adjudicatory period.
As the treating specialist who performed the
bulk of the objective tests verifying plaintiff's complaints, Dr.
Miller's opinions were entitled to the greatest weight.
F.3d at 1224.
Orn, 495
The ALJ's failure to failure to credit Dr. Miller's
various opinions or to provide specific reasons for discounting
them was error.
C.
Robin Rose, M. D .
Dr. Rose opined that plaintiff could not work for eight hours
a day, would be absent from work at least two days a month due to
unpredictable pain,
and has been unable to perform sedentary or
light work since December 21, 2007.
The ALJ gave the opinion of
Dr. Rose, a nonexamining physician, little weight because it was
19 - OPINION AND ORDER
not
supported by medically
acceptable
laboratory
and
clinical
diagnostic techniques, she was a reviewing physician, the opinion
was inconsistent with other substantial evidence in the record, and
because she is not a neurologist.
Plaintiff argues that Dr. Rose's medical opinion is consistent
with the opinion of Dr.
opinion
the
than
weight
Miller,
of
and thus,
Kagan,
Seth
should be given more
an
M.D.,
examining
The Commissioner contends that Dr. Rose's opinion was
physician.
contradicted by Dr. Kagan and nonexamining agency physicians, and
therefore, the ALJ reasons for rejecting Dr. Rose's opinion were
sufficient.
I
Dr.
disagree that
Kagan's opinion provides
a
basis
for
rejecting Dr. Rose's opinion in light of the record as a whole.
Dr.
who
Kagan,
plaintiff
after
neuro
foraminal
stenosis,
diagnosed
probable
plaintiff
could
However,
work
is
Dr.
not
his
examined
perform
work
at
the
heavy
third
and
surgery,
opined
exertional
that
level.
Kagan's opinion that plaintiff could perform heavy
internally
consistent
with
his
observation
that
plaintiff could not walk a block at a reasonable pace on an uneven
surface.
Tr. 507-12.
Moreover, Dr. Kagan's opinion that plaintiff
could perform heavy work after three back surgeries is simply not
supported by substantial evidence
in the
Kagan's opinion in January of 2011
fails
record.
Dr.
to take into account
plaintiff's condition throughout the relevant period.
20 - OPINION AND ORDER
Lastly,
I
Furthermore,
contention that Dr.
am
persuaded
not
by
Commissioner's
the
Rose's opinion is contradicted by Dr.
Eder.
Dr. Eder reviewed plaintiff's medical records in May of 2009, and
projected that based on plaintiff's initial improvement after his
first surgery,
plaintiff would be able to perform light work by
However, Dr. Eder also indicated that in January
February of 2010.
of 2009, plaintiff was disabled and that his pain complaints were
Dr. Eder's 2009 opinion did not consider
verified by MRI findings.
plaintiff's
subsequent
stenosis
moderately severe bilateral
based the
Thus,
record
as
whole,
a
including
continued
and additional
surgeries.
history,
medical
the ALJ has
not
provided
specific and legitimate reasons for rejecting Dr. Rose's opinion.
I
conclude that Dr.
Rose's opinion is consistent with the
various opinions of Dr. Miller and Mr. Suiter, and is consistent
with the medical record as a whole.
III. Plaintiff's Credibility
To
determine
whether
claimant's
a
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.
533 F.3d 1035,
1039
(9th Cir.
1273, 1282 (9th Cir. 1996).
21 - OPINION AND ORDER
2008);
could reasonably be
Tornrnasetti v. Astrue,
Smolen v.
Chater,
80 F. 3d
At the second stage of the credibility
analysis, absent affirmative evidence of malingering, the ALJ must
provide
clear
claimant's
severity
the
regarding
testimony
for
reasons
convincing
and
discrediting
the
of
the
symptoms.
Carmickle v. Comm'r Soc. Security Admin., 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
that
conclude
to
court
reviewing
the
2002);
Factors
Orteza
v.
the
ALJ
determinations
claimant's
Barnhart,
Thomas v.
Shalala,
consider
may
include
treatment
F. 3d
50
278 F.3d 947,
objective
the
history,
the
533
958
750
(9th
making
medical
claimant's
(9th Cir.
Cir.
such
748,
when
not
Tommasetti,
arbitrarily discredit the claimant's testimony.
F.3d at 1039;
ALJ did
the
1995).
credibility
evidence,
the
daily activities,
inconsistencies in testimony, effectiveness or adverse side effects
of
pain
any
medication,
and
relevant
character
evidence.
Tornrnasetti, 533 F.3d at 1039.
At the November
4,
2010 hearing,
plaintiff appeared in a
wheelchair because the hearing was held just five days following
his third back surgery.
Oxycodone,
Enocet
and
Plaintiff testified that he was taking
Soma
following
his
surgery.
Plaintiff
described that he started experiencing back pain in 2007, and that
at that time, he could control his pain with one Oxycodone per day.
Tr. 51.
Plaintiff stated that in 2008, he was lying on the couch
22 - OPINION AND ORDER
most of each day trying to get comfortable.
Plaintiff testified
that due to extreme pain he cannot eat and that he sleeps only four
hours a night.
At the April 5, 2011 hearing, plaintiff testified that he had
cut back to 50 Oxycodone per week (down from 100), and was taking
medication for his COPD and heartburn.
Plaintiff testified that he
weighed around 130 pounds, up from 113 pounds, because he was using
marijuana three times a day as an appetite stimulant, and that he
had used marijuana that morning.
Plaintiff stated that he could
walk one block before his back starts to hurt,
down for most of the day.
and that he lays
Plaintiff stated that he does not have
a medical marijuana card because he cannot afford it.
Plaintiff
testified that he would be re-evaluated by Dr. Miller in the summer
of 2011.
In the decision, the ALJ found that plaintiff was not entirely
credible
because
he
"consistently misled medical
practitioners
about his drug and alcohol abuse, has exhibited narcotic seeking
behavior
on
several
occasions,
despite negative exam findings."
and
has
Tr. 17.
not
attempted
to
work
The ALJ also discredited
plaintiff because his activities of daily living were inconsistent
with his allegations of pain.
I conclude that based on the record
as a whole, the ALJ's credibility findings do not reach the clear
and convincing standard.
23 - OPINION AND ORDER
First, the ALJ's conclusion that plaintiff had "negative exam
findingsn is not supported by substantial evidence in the record.
On the contrary, as detailed above, plaintiff's medical records,
especially those
of Dr;
claudication,
provide overwhelming objective
collapse,
disc
stenosis,
plaintiff's
documenting
evidence
Miller,
and muscle atrophy supporting his subjective pain
Dr. Miller
Based on his examination and MRI results,
symptoms.
Due to
recommended surgery in May of 2008.
plaintiff's fear of
surgery and lack of insurance, that surgery was not performed until
January
Additional
2009.
of
MRis
Miller
resulted in Dr.
demonstrate post-surgical changes which
recommending,
Dr.
Miller
performed
and ultimately performing,
September of 2009 and October of 2010.
by
two more surgeries
in
the ALJ erred in
Thus,
discounting plaintiff's testimony on this basis.
Second, the ALJ's conclusion that the plaintiff "consistently
misledn his treatment providers about his alcohol and marijuana use
is not supported by substantial evidence.
of alcohol abuse.
forthright
about
Plaintiff has a history
My review of the record shows that plaintiff was
alcohol
his
use
with
his
providers,
medical
admitting to Ms. Sheffield and Mr. Suiter that he was using alcohol
Tr.
for pain control.
454;
425-27.
To be
sure,
plaintiff's
increased alcohol use coincides with those periods where he was
deciding
whether
to
pursue
surgery in
2008,
and while
awaiting insurance approval for a third surgery in 2010.
24 - OPINION AND ORDER
he
was
Based on
the
record
a
as
whole,
I
the
that
conclude
ALJ
erred
in
discrediting plaintiff on this basis.
respect
With
to
plaintiff's
use,
marijuana
Suiter's
Mr.
treatment notes indicate that plaintiff began using marijuana in
early 2010 to combat anorexia, which plaintiff developed secondary
to pain.
Tr. 412-414.
Indeed, plaintiff's weight increased after
he started using medical marijuana.
noted
that
plaintiff
marijuana usage.
Tr.
did
463.
not
On one occasion, Mr. Suiter
give
However,
clear
a
answer
about
his
the ALJ's conclusion that
plaintiff consistently misled his providers is not supported by
substantial evidence in the record.
Even if the ALJ properly
discredited plaintiff on the basis of his inconsistent reports of
marijuana use,
this reason does rise to the clear and convincing
level based on the record before me.
Third, the ALJ erred by discrediting plaintiff based on his
narcotic-seeking behavior.
case.
To be sure,
this is an unfortunate
Plaintiff's complaints of intense pain have been objectively
verified by MRis showing advanced degenerative disc disease with
stenosis, disc herniation, and claudication.
Two surgeries did not
provide relief from plaintiff's intense pain,
plaintiff has become opioid dependent.
and as a
result,
Plaintiff reported to Mr.
Suiter that the non-narcotic pain medications were ineffective.
As
a result of insurance denials, plaintiff endured a 13-month wait
for his third surgery,
25 - OPINION AND ORDER
using alcohol and marijuana when opiates
none
of
contrary to the ALJ's suggestion,
However,
were not available.
plaintiff's
that
denied
have
providers
plaintiff
experiences severe pain requiring narcotic pain management.
The
case law in this Circuit indicates that seeking aggressive pain
relief in the form of medication can be a normal response to pain,
and may show that a claimant's testimony of debilitating pain is
more credible, rather than less credible.
495 F.3d at 638;
Orn,
see Bridges v. Astrue, 2012 WL 4322735, *5 (D. Or. June 5, 2012),
adopted,
2012
WL
4328640
(Sept.
19'
2012) (ALJ
erroneously
discredited claimant for seeking additional pain medication when
her prescription had run out and was not contrary to her doctor's
advice) .
Moreover,
it is evident that the ALJ focused on plaintiff's
opioid dependency and marijuana use as a basis to find him not
credible and to deny benefits.
For example,
the ALJ detailed
instances where plaintiff was denied narcotics,
story was that he needed more surgery.•
Tr. 18.
and that "[h]is
However, it is
error for the ALJ to conclude that a plaintiff's drug or alcohol
abuse precludes an award of benefits.
Rather, "an ALJ must first
conduct the five-step inquiry without separating out the impact of
alcoholism or drug addiction.•
949, 955 (9th Cir. 2001).
record before me,
Bustamante v. Massanari, 262 F.3d
Therefore, I conclude that based on the
the ALJ erred in discrediting claimant on the
basis of narcotic-seeking behavior.
26 - OPINION AND ORDER
To the extent that the ALJ discredited plaintiff for using the
emergency room to assist him with pain control and obtaining a
second opinion about surgery in 2008,
the ALJ also erred.
record clearly establishes that plaintiff is without
The
financial
resources and has had limited insurance coverage throughout the
period at issue.
The ALJ's failure to consider the substantial
evidence of plaintiff's lack of resources or insurance to explain
his behavior is erroneous.
See Orn, 495 F.3d at 638 (ALJ erred in
discrediting claimant based on failure to obtain treatment when
unable to afford treatment) .
Finally, the ALJ's conclusion that plaintiff's activities of
daily living undercut his complaints of pain are not supported by
In the decision,
the ALJ
discredited plaintiff because he is able walk his dog,
garden,
substantial evidence in the
record.
clean his trailer, and occasionally play pool.
On the contrary,
plaintiff stated that he walks his dog one block,
trailer is small.
and that his
Plaintiff stated that he grows strawberries and
tomatoes in elevated pots so that he does not have to bend down,
and only gardens when he is able.
And,
the evidence regarding
plaintiff's pool playing activities is limited at best.
minimal
activities
is
not
Sporadic
inconsistent
with
performance
of
disability.
See Orn, 495 F.3d at 639 (daily activities may be used
to discredit a claimant where they are inconsistent with other
testimony or are transferable to a work setting) ;
27 - OPINION AND ORDER
Vertigan v.
Halter,
260 F.3d 1044, 1050
(9th Cir.
2001) (ability to carry out
minimal daily activities not inconsistent with disability).
In summary, I conclude that the ALJ failed to articulate clear
and
convincing
reasons
discrediting plaintiff.
IV.
supported
by
substantial
evidence
for
Carmickle, 533 F.3d at 1160.
Erroneous Step Five Finding
In step five, the Commissioner must show that the claimant can
do other work that exists in the national economy.
F.3d
at
The
1043.
Commissioner
can
satisfy
this
Andrews,
53
burden
by
eliciting the testimony of a vocational expert with a hypothetical
question that sets out all of the claimant's limitations that are
supported by substantial evidence.
Tackett, 180 F.3d at 1101.
In this case, the ALJ failed to properly evaluate the medical
opinion evidence and failed to provide clear and convincing reasons
for discrediting plaintiff's pain testimony about his symptoms, and
those symptoms were erroneously excluded from the plaintiff's RFC.
Lingenfelter,
504
F.3d
at
1040.
It
follows
that
substantial
evidence does not support the ALJ's step five determination, since
it was based on the erroneous RFC.
Osenbrock v. Apfel, 240 F.3d
1157, 1163 (9th Cir. 2001).
V.
Credit As True
After finding the ALJ erred, this court has the discretion to
remand
for
benefits.
further
proceedings
Vasquez v. Astrue,
28 - OPINION AND ORDER
or
for
immediate
payment
of
572 F.3d 586, 593 (9th Cir. 2009);
The issue
Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000).
turns on the utility of further proceedings.
A remand for an award
of benefits is appropriate where there is no useful purpose to be
served
further
by
proceedings
or
where
the
fully
is
record
developed.
The
has
Ninth Circuit
established a
three-part
test
"for
determining when evidence should be credited and an immediate award
of benefits directed."
Harman, 211 F.3d at 1178.
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.
I d.
Where it is not clear that the ALJ would be required to award
benefits were the improperly rejected evidence credited, the court
has
discretion
Barnhart,
whether
340
to
whether
F. 3d 871,
award
to
876
benefits
credit
the
(9th Cir.
or
remand
Connett
evidence.
2003).
the
v.
In determining
matter
for
further
proceedings, the court must determine whether "outstanding issues
remain in the record.•
In this case, when the evidence from Mr. Suiter, Dr. Miller,
Dr. Rose, and plaintiff is fully credited, plaintiff is disabled
for the entire adjudicatory period.
Dr. Rose opined that plaintiff
has been unable to work at the light or sedentary level since
29 - OPINION AND ORDER
December 21, 2007, and that as of November of 2010, plaintiff would
miss more than two days of work each month.
Mr. Suiter opined on
October 20, 2010 that plaintiff was barely ambulatory and unable to
Dr.
work in his condition.
Miller opined in May of 2008,
plaintiff
suffered
advanced
degenerative
bilateral
stenosis,
herniation,
and
disc
claudication.
Expert Mark McGowan testified at the April 5,
more
than
one
absence
from
competitive employment.
work
Tr. 103.
disease,
each
that
with
Vocational
2011 hearing that
month
would
eliminate
Accordingly, when the opinions
of Mr. Suiter and Drs. Miller and Rose are credited, it is clear
that plaintiff has been disabled since February 9, 2009, the date
his SSI application was protectively filed.'
However, I cannot remand this case for an immediate payment of
benefits
because
the
record
contains
numerous
plaintiff's opioid dependency and marijuana abuse.
did
not
find
plaintiff
disabled,
and
thus
did
references
to
Here, the ALJ
not
reach
the
question of materiality concerning his drug and alcohol abuse. If
a claimant is found to be disabled and the record includes evidence
of drug or alcohol addiction, the ALJ must determine whether the
addiction
is
a
contributing
1
factor
that
is
"material"
to
the
The ALJ's decision does not indicate that plaintiff's
application was considered for a closed period. Thus, the
question of whether plaintiff has experienced medical improvement
since the ALJ's decision is not presently before me.
30 - OPINION AND ORDER
finding of disability. 42 U.S.C.
423(d)(2)(C); Parra v. Astrue,
§
481 F. 3d 742, 746-47 (9th Cir. 2007).
In the instant case, Mr. Suiter diagnosed opioid dependency,
with poor tolerance for wi thdrawl.
At step two,
marijuana abuse disorder as severe impairment.
the ALJ found
At the April 5,
2011 hearing, plaintiff admitted to smoking marijuana that morning
and testified that he was still taking 50 Oxycodone.
on remand,
Accordingly,
the ALJ is instructed to make a determination about
whether plaintiff's opioid dependency and marijuana abuse is a
contributing factor material to his disability.
When performing
the
ALJ
drug
additional
and
alcohol
step
three
analysis
on
findings,
remand,
including
lumbar spinal stenosis and claudication
meets or equals Listing 1.04.
the
whether
shall
make
plaintiff's
(or pseudoclaudication)
The ALJ shall contact Dr. Miller if
necessary to make the additional step three findings.
CONCLUSION
Based
REVERSED,
on
the
foregoing,
the
Commissioner's
and this case is REMANDED for
decision
further administrative
proceedings consistent with this opinion.
IT IS SO ORDERED.
DATED this ~day of NOVEMBER, 2013.
Malcolm F.Marsh
United States District Judge
31 - OPINION AND ORDER
is
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