Lee v. Commissioner Social Security Administration
Filing
19
OPINION AND ORDER: For the foregoing reasons, the Commissioner's final decision is REVERSED and this case is REMANDED consistent with this opinion.IT IS SO ORDERED.. Signed on 7/7/2016 by Judge Owen M. Panner. (jkm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
ANDREW B. LEE,
Plaintiff,
Civ. No. 6:15-cv-00951-PA
OPINION AND ORDER
v.
CAROLYN W. COLVIN,
Acting Commissioner of the Social Security
Administration,
Defendant.
P ANNER, Judge:
Plaintiff Andrew Lee brings this action for judicial review of the final decision of the
Commissioner of Social Security ("Commissioner") denying his application for Title II
Disability Insurance Benefits under the Social Security Act. For the reasons set forth below, the
Commissioner's decision is reversed and this case is remanded for further proceedings.
1 - OPINION AND ORDER
PROCEDURAL BACKGROUND
On February 23, 2012, plaintiff applied for Disability Insurance Benefits, alleging an
onset date of January 6, 2010. Tr. 91-94. His application was initially granted in part, in that he
was found disabled as of March 19, 2012. Tr. 45-50. Upon reconsideration, he was found
disabled as of February 16, 2012. Tr. 55-59. On August 21, 2014, a hearing was held before an
Administrative Law Judge ("ALJ"), wherein plaintiff was represented by counsel and testified,
as did a vocational expert. Tr. 233-69. On October 7, 2014, the ALJ issued a partially favorable
decision, again finding plaintiff disabled as of February 16, 2012. Tr. 13-21. After the Appeals
Council denied his request for review, plaintiff filed a complaint in this Court. Tr. 5-7.
STATEMENT OF FACTS
Born on August 10, 195 5, plaintiff was 54 years old on the alleged onset date of disability
and 59 years old at the time of the hearing. Tr. 91. Plaintiff left school after the tenth grade. Tr.
238. He worked previously as an automobile salesman. Tr. 116.
STAND ARD OF REVIEW
The court must affirm the Commissioner's decision if it is based on proper legal
standards and the findings are supported by substantial evidence in the record. Hammock v.
Bowen, 879 F .2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations
omitted). The court must weigh "both the evidence that supports and detracts from the
[Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
2 - OPINION AND ORDER
Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is
rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir, 2005).
The initial burden of proof rests upon the claimant to establish disability. Howard v.
Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must
demonstrate an "inability to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected ... to last for a continuous
period of not less than 12 months." 42 U.S.C. § 423(d)(l)(A).
The Commissioner has established a five step sequential process for determining whether
a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First,
the Commissioner determines whether a claimant is engaged in "substantial gainful activity."
Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe
impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §
404.1520(c). If the claimant does not have a medically determinable, severe impairment, he is
not disabled.
At step three, the Commissioner determines whether the claimant's impairments, either
singly or in combination, meet or equal "one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert,
482 U.S. at 140-41; 20 C.F.R. § 404.1520(d). If so, the claimant is presumptively disabled; if
not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perform "past
relevant work." 20 C.F.R. § 404.1520(£). If the claimant can work, he is not disabled; ifhe
3 - OPINION AND ORDER
cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the
Commissioner must establish that the claimant can perform other work existing in significant
numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g).
If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566.
THE ALJ'S FINDINGS
At step one of the five step sequential evaluation process outlined above, the ALJ found
that plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 15.
At step two, the ALJ determined that, as of January 6, 2010, plaintiff's degenerative disc disease,
spondylosis of the lumbar spine, and right ulnar neuropathy were severe; by February 16, 2012,
plaintiff also suffered from the severe impairment of right carpal tunnel syndrome. Id At step
three, the ALJ found plaintiff's impairments, either singly or in combination, did not meet or
equal the requirements of a listed impairment. Tr. 16.
Because he did not establish presumptive disability at step three, the ALJ continued to
evaluate how plaintiff's impairments affected his ability to work. The ALJ resolved that, as of
January 6, 2010, plaintiff had the residual functional capacity ("RFC") to perform a limited range
of light work as follows:
lifting, carrying, pushing and pulling 20 pounds occasionally and 10 pounds
frequently, standing and walking about six hours in an eight-hour workday and
sitting for about six hours in an eight-hour workday. He could frequently climb
ramps and stairs, stoop, kneel, crouch, and crawl, and occasionally climb ladders,
ropes, and scaffolds. [He] could frequently handle and finger with the right upper
extremity.
Tr. 16-17. By February 16, 2012, plaintiff's ability to stand and walk had eroded; his RFC
remained the same except that standing and/or walking was limited to two hours in an eight-hour
workday. Tr. 19.
4 - OPINION AND ORDER
At step four, the ALJ determined that, between January 6, 2010, and February 15, 2012,
plaintiff could perform his past relevant work. Id. However, beginning on February 16, 2012, the
ALJ found that plaintiff was disabled under the Medical-Vocational Guidelines. Tr. 20-21.
DISCUSSION
This case hinges on whether there is sufficient evidence in the record to establish an
earlier disability onset date. Specifically, plaintiff argues that the ALJ erred by: (1) discrediting
his hearing testimony regarding the extent of his symptoms on or around January 6, 2010;
(2) rejecting the lay witness testimony; and (3) failing to develop the record in regard to his onset
date pursuant to SSR 83-20.
I.
Plaintifrs Testimony
Plaintiff asserts that the ALJ wrongfully discredited his subjective symptom statements
concerning the severity of his impairments. When a claimant has medically documented
impairments that could reasonably be expected to produce some degree of the symptoms
complained of, and the record contains no affirmative evidence of malingering, "the ALJ can
reject the claimant's testimony about the severity of ... symptoms only by offering specific,
clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the
ALJ must "state which ... testimony is not credible and what evidence suggests the complaints
are not credible." Dodrill v. Shala/a, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered
'
must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not
arbitrarily discredit the claimant's testimony." Orteza v. Shala/a, 50 F.3d 748, 750 (9th Cir.
1995) (internal citation omitted). If the "ALJ's credibility finding is supported by substantial
5 - OPINION AND ORDER
•
evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278
F.3d 947, 959 (9th Cir. 2002) (citation omitted).
At the hearing, plaintiff testified that be became unable to work on January 6, 2010, due
to lower back pain and right arm pain. Tr. 241. He explained that, at first, "some days were better
than others," but his symptoms ultimately deteriorated to the point that he "hurt all the time." Tr.
241-42. As a result, plaintiff "couldn't do the standing [and] the running around," or the writing,
required by his past work as an automobile salesman. Tr. 243-44. Plaintiff remarked that, at the
time he was ready to seek medical treatment, he lost his job and, by extension, his insurance. Tr.
251-52. He applied for the Oregon Health Plan and re-initiated treatment in February 2012
because "it just got to the point [where he] couldn't stand [the pain] anymore." Tr. 252.
After summarizing his hearing testimony, the ALJ determined that plaintiffs medically
determinable impairments could reasonably be expected to produce some degree of symptoms in
January 2010, but his "statements concerning the intensity, persistent and limiting effects of
1
these symptoms are not entirely credible." Tr. 17. Specifically, in regard to his back, the ALJ
determined that plaintiff did not report an increase in pain until well after the alleged onset date
and did not seek any treatment related thereto until 2012. Tr. 18. Similarly, the ALJ found that
1
The Court notes that, pursuant to SSR 16-3p, the ALJ is no longer tasked with making an
overarching credibility determination and instead assesses whether the claimant's subjective
symptom statements are consistent with the record as a whole. See SSR 16-39, available at 2016
WL 1119029 (superseding SSR 96-7p). The ALJ's October 2014 decision was issued more than
one year before SSR 16-3p became effective and there is no binding precedent interpreting this
new ruling or whether it applies retroactively. Compare Ashlock v. Colvin, 2016 WL 3438490,
*5 n.1 (W.D. Wash. June 22, 2016) (declining to apply SSR 16-3p to an ALJ decision issued
prior to the effective date), with Lockwood v. Colvin, 2016 WL 2622325, *3 n.1 (N.D. Ill. May 9,
2016) (applying SSR 16-3p retroactively to a 2013 ALJ decision). Because the ALJ's findings in
regard to this issue pass muster irrespective of which standard governs, the Court need not
resolve this issue.
6 - OPINION AND ORDER
plaintiff did not seek any medical care for his allegedly disabling right arm pain during the
relevant period. Id. The ALJ also noted that plaintiff "presented to his primary care provider
Richard Evans, M.D., in October 2009, just a few months before the alleged onset date, with
complaints that his right fourth and fifth digits sometimes went numb [but] did not follow
through with Dr. Evans' recommendation [to obtain electro diagnostic testing] until 2012." Id
An ALJ may discredit a claimant due to an "unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of treatment." Molina v. Astrue, 674
F.3d 1104, 1113 (9th Cir. 2012) (citations and internal quotations omitted). Nevertheless, before
drawing a negative inference, the ALJ must consider "any explanations that the individual may
provide, or other information in the case record, that may explain infrequent or irregular medical
visits." SSR 96-7p, available at 1996 WL 374186; SSR 16-39, available at 2016 WL 1119029.
The record before the Court supports the ALJ's conclusion that plaintiffs symptoms did
not exist at a disabling level as of January 6, 2010. Indeed, plaintiff did not seek any medical
care for more than two years after the alleged onset date. Although plaintiff cites to a lack of
finances, his hearing testimony demonstrates that he was able to obtain insurance through the
Oregon Health Plan and medical care once he wanted or believed he needed it. 2 Further, chart
2
Plaintiff posits that his lapse in treatment stemmed from "ha[ving] to wait until he qualified for
[the Oregon Health Plan]." Pl.'s Opening Br. 11; but see Tr. 241-42, 251-52 (plaintiff suggesting
that his delay in seeking treatment was intentional, in that his symptoms were variable at first
and he was hopeful they would improve). Plaintiff, however, failed to provide any specifics
about the application process. Without more, it was reasonable for the ALJ to conclude that
plaintiffs symptoms were not as severe as alleged in January 2010, even accepting that plaintiff
was not immediately qualified for the Oregon Health Plan. Nevertheless, as discussed in greater
detail below, there is evidence that plaintiffs back pain worsened prior to February 16, 2012. In
other words, the fact that plaintiffs conditions may not have been disabling as of the alleged
onset date does not necessarily mean that the ALJ' s established disability date is accurate.
7 - OPINION AND ORDER
notes generated immediately prior to the adjudication period do not contain any reports of back
or right arm pain. Tr. 160, 209-12, 223-24; see also Coaty v. Colvin, 2015 WL 1137189, *4 (D.
Or. Mar. 11, 2015) ("contemporaneous self-reports to medical providers, as memorialized by
their treatment notes, are the most accurate portrayal of functioning" where the period at issue is
remote). While, on one occasion in October2009, plaintiff described right hand numbness, he
did not follow up on his doctor's referral to nerve conduction testing until 2012, despite the fact
that he had more than two months to pursue this testing before losing his insurance. Tr. 211-12;
see also Tr. 209-10 (plaintiff not mentioning any back or arm pain or numbness during a
December 2009 appointment with Dr. Evans). Finally, although not dispositive, the Court notes
plaintiff testified that he would have continued working, albeit "not [for] long," had he not been
fired. Tr. 251-52.
The only other evidence related to plaintiff's functioning was generated on or after the
established disability date. Significantly, this evidence - including plaintiffs self-reports
regarding his retrospective symptoms - does not reflect that his conditions existed at a disabling
level on or around January 6, 2010. Tr. 130-45, 161-79, 187-208, 213-22, 229-32. In sum, the
ALJ furnished a clear and convincing reason, supported by substantial evidence, for rejecting
plaintiff's subjective symptoms statements. The ALJ's decision is affirmed as to this issue.
III.
Lay Testimony
Plaintiff next argues that the ALJ neglected to provide a germane reason to reject the
testimony of his adult son, Trevor Lee. Lay testimony regarding a claimant's symptoms or how
an impairment affects the ability to work is competent evidence that an ALJ must take into
8 - OPINION AND ORDER
account. Molina, 674 F.3d at 1114 (citation omitted). The ALJ must provide "reasons germane to
each witness" in order to reject such testimony. Id. (citation and internal quotation omitted).
In July 2012, Mr. Lee completed a Third-Party Adult Function Report. Tr. 138-45. His
statements generally reveal that plaintiff experiences "constant pain," which renders him "unable
to lift/walk/stand/bend/sit upright for any length oftime." Id.
The ALJ found Mr. Lee's third-party statements "oflittle value in assessing functioning
as of the alleged onset date" because they were provided "in July 2012 [and thus represent]
functioning during the period [plaintiff] has been determined disabled." Tr. 17. Evidence
generated outside the dispositive period is generally of limited relevance. See Morgan v. Colvin,
2013 WL 6074119, *10 (D. Or. Nov. 13, 2013) (ALJ can disregard evidence that post-dates the
date last insured if it is not retrospective); Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d
1155, 1165 (9th Cir. 2008) (ALJ need not accept medical reports that predate the onset of
disability).
Contrary to plaintiff's assertion, an independent review of the record reveals that Mr.
Lee's testimony concerning plaintiff's functional limitations was generated after February 16,
2012. Moreover, there is no indication that Mr. Lee's testimony was intended to relate to
anything other than plaintiff's then-current functioning. The ALJ's evaluation of the lay witness
testimony is upheld.
III.
Duty to Develop the Record
Lastly, plaintiff contends that the ALJ should have developed the record by consulting a
medical expert because it was unclear when his impairments became disabling. The claimant
bears the burden of proving the existence or extent of an impairment, such that the ALJ' s limited
9 - OPINION AND ORDER
"duty to develop the record further is triggered only when there is ambiguous evidence or when
the record is inadequate to allow for proper evaluation of the evidence." Mayes v. Massanari,
276 F.3d 453, 459-60 (9th Cir. 2001) (citation omitted). In particular, "where a record is
ambiguous as to the onset date of disability, the ALJ must call a medical expert to assist in
determining the onset date" pursuant to SSR 83-20. 3 Armstrong v. Comm 'r ofSoc. Sec. Admin.,
160 F.3d 587, 590 (9th Cir. 1998).
The record demonstrates that plaintiff's symptoms increased in severity prior to February
16, 2012. For instance, in February 2012, plaintiff re-initiated care with Dr. Evans for treatment
of his "more chronic" lower back pain. Tr. 204-08. Plaintiff presented to Dr. Evans four times in
May 2012 complaining of back pain. Tr. 193-203. At the end of that month, Dr. Evans observed
that plaintiffs back pain was "markedly" worse than a year ago - making his "functional
abilit[ies] really restricted" - and referred him to a specialist. Tr. 193. In July 2012, plaintiff
reported to Todd Lewis, M.D., the spine specialist; that his pain has been constant and
unresponsive to treatment for nine to ten months. Tr. 176. Based on his examination and a
review of plaintiff's imaging studies, Dr. Lewis opined that back surgery was "medically
necessary." Tr. 177-79. That same month, plaintiff completed an Adult Function Report, which
evinces that his impairments worsened sometime in 2011. See, e.g., Tr. 135.
At the hearing, the ALJ acknowledged that plaintiffs symptoms were gradually
deteriorating and may have become more extreme prior to the established disability date. Tr.
3
The Commissioner attempts to cast SSR 83-20 as applying exclusively to mental impairments
diagnosed after the date last insured. Def.'s Resp. Br. 11-15. However, neither the ruling nor the
case law interpreting it can be read so narrowly. See SSR 83-20, available at 1983 WL 31249
(purpose is generally to "describe the relevant evidence to be considered when establishing the
onset date of disability under the provisions of titles II and XVI of the Social Security Act").
10 - OPINION AND ORDER
256, 259; see also Daley v. Colvin, 2014 WL 5473797, *9 (D. Or. Oct. 28, 2014) (degenerative
disc disease is a condition that, "by definition, progressively worsens over time"). In addition, in
his written decision, the ALJ expressly recognized that the state agency consulting sources found
the record to be "insufficient" regarding plaintiff's functioning prior to February 16, 2012. Tr.
18-19, 26, 39.
Under these circumstances, the ALJ committed harmful legal error by failing to follow
SSR 83-20. See Stout v. Comm 'r ofSoc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (only
mistakes that are "nonprejudicial to the claimant or irrelevant to the ALJ' s ultimate disability
conclusion" are harmless). Therefore, further proceedings are necessary to resolve this case. See
Dominguez v. Colvin, 808 F.3d 403, 407-08 (9th Cir. 2015) (articulating the standard for
determining the remedy where the ALJ committed harmful legal error). Upon remand, the ALJ
must consult a medical expert to determine the precise onset date of plaintiff's disability and, if
necessary, reformulate plaintiff's RFC and obtain additional VE testimony.
CONCLUSION
For the foregoing reasons, the Commissioner's final decision is REVERSED and this
case is REMANDED consistent with this opinion.
IT IS SO ORDERED.
DA TED this __2 day of July 2016.
o~J/IL~
Owen M. Panner
United States District Judge
11 - OPINION AND ORDER
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