Dufresne v. Astrue

Filing 19

ORDER REVERSING AND REMANDING CASE FOR FURTHER ADMIN PROCEEDINGS by Hon. Mary Alice Theiler. (RS)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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08 RANDY DUFRESNE,
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Plaintiff,
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v.
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MICHAEL J. ASTRUE, Commissioner of
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Social Security,
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Defendant.
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____________________________________ )

CASE NO. C12-5053-MAT

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL

Plaintiff Randy Dufresne appeals the final decision of the Commissioner of the Social

15 Security Administration (“Commissioner”) which denied his applications for Disability
16 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XIV
17 of the Social Security Act, 42 U.S.C. §§ 401-33 and 1381-83f, after a hearing before an
18 administrative law judge (“ALJ”). For the reasons set forth below, the Commissioner’s
19 decision is REVERSED and REMANDED for further administrative proceedings.
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I. FACTS AND PROCEDURAL HISTORY
Plaintiff was born in 1968 and was 32 years old on the alleged disability onset date.

22 (Administrative Record (“AR”) at 28.) He has an eighth grade education and previously

ORDER
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01 worked as a cook helper, fast food worker, and short order cook. (AR 28, 53-54, 171.) He
02 was last gainfully employed on November 1, 2000. (AR 167.)
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In March 2008 he applied for DIB and SSI, alleging disability beginning on November

04 1, 2000. (AR 144-45, 148-51.) He asserts he is disabled due to orthostatic hypotension,
05 hepatitis C, headaches, history of left upper extremity cellulitis, cervical degenerative disc/joint
06 disease, polysubstance abuse (heroin, cocaine, alcohol, and marijuana), cognitive disorder
07 NOS, depressive disorder NOS, anxiety disorder NOS, and post traumatic stress disorder. (AR
08 22.)
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The Commissioner denied plaintiff’s applications initially and on reconsideration.

10 (AR 93-103.) Plaintiff requested a hearing which took place on August 25, 2010. (AR
11 42-88.) On December 10, 2010, the ALJ issued a decision finding plaintiff not disabled. (AR
12 20-30.) The Appeals Council denied plaintiff’s request for review (AR 1-5), making the ALJ’s
13 ruling the “final decision” of the Commissioner as that term is defined by 42 U.S.C. § 405(g).
14 On January 24, 2011, plaintiff timely filed the present action challenging the Commissioner’s
15 decision. (Dkt. No. 1.)
II. JURISDICTION

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Jurisdiction to review the Commissioner’s decision exists pursuant to 42 U.S.C. §§

18 405(g) and 1383(c)(3).
III. DISCUSSION

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The Commissioner follows a five-step sequential evaluation process for determining

21 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it
22 must be determined whether the claimant has engaged in substantial gainful activity. The ALJ

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01 found plaintiff had not engaged in substantial gainful activity since November 1, 2000, the
02 alleged onset date. (AR 22.) At step two, it must be determined whether the claimant suffers
03 from a severe impairment. The ALJ found plaintiff had the following severe impairments:
04 orthostatic hypotension, hepatitis C, headaches, history of left upper extremity cellulitis,
05 cervical degenerative disc/joint disease, polysubstance abuse (heroin, cocaine, alcohol, and
06 marijuana), cognitive disorder NOS, depressive disorder NOS, anxiety disorder NOS, and post
07 traumatic stress disorder. Id. Step three asks whether the claimant’s impairments meet or
08 equal the criteria of a listed impairment. The ALJ found that plaintiff’s impairments did not
09 meet or equal the criteria of a listed impairment. (AR 23.) If the claimant’s impairments do
10 not meet or equal a listing, the Commissioner must assess residual functional capacity (“RFC”)
11 and determine at step four whether the claimant has demonstrated an inability to perform past
12 relevant work. The ALJ found plaintiff had the RFC to lift and carry 20 pounds occasionally
13 and 10 pounds frequently, and stand, walk, or sit for 6 hours in an 8-hour workday. (AR 25.)
14 He can never climb ladders, ropes, or scaffolds, but he can occasionally climb ramps and stairs,
15 balance, stoop, crouch, kneel, and crawl; he should avoid concentrated exposure to poorly
16 ventilated areas, irritants such as fumes, odors, dust, chemicals, and gases, and unprotected
17 heights and moving machinery. Id. He can perform simple, routine, repetitive tasks, and is
18 capable of superficial contact with the general public, and basic work-related interaction with
19 coworkers and supervisors. Id. With that assessment, the ALJ found plaintiff was unable to
20 perform any of his past relevant work. (AR 28.)
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If the claimant is able to perform his past relevant work, he is not disabled; if the

22 opposite is true, then the burden shifts to the Commissioner at step five to show that the

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01 claimant can perform other work that exists in significant numbers in the national economy,
02 taking into consideration the claimant’s RFC, age, education, and work experience. Based on
03 the testimony of the vocational expert, the ALJ found plaintiff retained the ability to perform
04 work that exists in significant numbers in the national economy, such as parking lot attendant,
05 stuffer-cushions, and assembler, and, therefore, was not disabled. (AR 24-25.)
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Plaintiff argues that the ALJ erred by: (1) failing to include all of his limitations in the

07 hypothetical question to the vocational expert; (2) finding his testimony not credible; and (3)
08 failing to consider all of his impairments. (Dkt. No. 15.) He requests remand for an award of
09 benefits or, in the alternative, for further administrative proceedings.

Id. at 1.

The

10 Commissioner argues that the ALJ’s decision is supported by substantial evidence, and should
11 be affirmed. (Dkt. No. 17.)
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A. The ALJ’s Step Five Analysis

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At step five, the burden of production shifts to the Commissioner to show that the

14 claimant can perform other work that exists in significant numbers in the national economy,
15 given his age, education, work experience, and residual functional capacity (“RFC”). Tackett
16 v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). The Commissioner may meet this burden by
17 eliciting the testimony of a vocational expert (“VE”). Id. at 1101. In order for the VE’s
18 testimony to constitute substantial evidence, the ALJ must pose a hypothetical “that reflects all
19 the claimant’s limitations.” Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). A VE’s
20 testimony based on an incomplete hypothetical lacks evidentiary value to support a finding that
21 a claimant can perform jobs in the national economy. Matthews v. Shalala, 10 F.3d 678, 681
22 (9th Cir. 1993) (citing DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991)).

ORDER
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In this case, the ALJ found, based on the opinions of consultative examiner Thomas

02 Genthe, Ph.D., and DDS evaluators Edward Beaty, Ph.D., and James Bailey, Ph.D., that
03 plaintiff had the mental residual functional capacity (“RFC”) to perform “simple, routine and
04 repetitive tasks,” with superficial contact with the general public and basic work-related
05 interaction with coworkers and supervisors. (AR 25, 28.) The ALJ asked the VE whether an
06 individual with plaintiff’s age, education, work experience, and RFC, could perform any work
07 existing in significant numbers in the national economy. (AR 29, 79.) In response, the VE
08 testified that plaintiff would be able to perform work that exists in significant numbers in the
09 national economy, such as parking lot attendant (Dictionary of Occupational Titles (“DOT”)
10 915.473-010, sedentary to light exertional level and SVP 2, with 129,000 national jobs and
11 3,000 regional jobs); stuffer-cushions (DOT 731.685-014, sedentary to light exertional level
12 and SVP 2, with 300,000 national jobs and 5,700 regional jobs), and assembler (DOT
13 734.687-018, sedentary to light exertional level and SVP 2, with 230,000 national jobs and
14 3,000 regional jobs). (AR 29, 81-82.)
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Plaintiff argues that the ALJ’s step five finding is erroneous because the VE’s testimony

16 upon which that finding is premised is based on an incomplete hypothetical. Plaintiff contends
17 that the hypothetical question did not include all of the nonexertional limitations established by
18 the doctors the ALJ purportedly relied upon. Specifically, he asserts that the DDS evaluators
19 found plaintiff was able to understand, remember, and carry out “short/simple/routine tasks,”
20 and to maintain concentration, persistence, and pace for “short/simple/routine tasks,” but the
21 ALJ erred by not including a limitation to performing “short” tasks in the hypothetical question
22 to the VE. (Dkt. No. 15 at 9-10.)

ORDER
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The Commissioner concedes that the ALJ erred by not including a limitation to

02 performing “short” tasks in his hypothetical question to the VE. (Dkt. No. 17 at 6-7.)
03 Nevertheless, the Commissioner argues this error was harmless because it did not affect the
04 result in this case.

He asserts that under the Social Security Administration Program

05 Operations Manual System (“POMS”), unskilled work necessarily involves the ability to
06 understand, remember and carry out “very short and simple instructions,” and all of the jobs
07 identified by the VE were for unskilled work. Id. (citing POMS DI 25020.010(B)(3)(b),
08 (B)(3)(c)). The Commissioner’s contention that a limitation to unskilled work encompasses a
09 limitation to performing short tasks is not persuasive.
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As plaintiff points out, the POMS refers to “short and simple instructions” not short and

11 simple “tasks.”

See POMS DI 25020.010(B)(3)(b), (B)(3)(c).

Furthermore, as plaintiff

12 contends, the performance of unskilled work may nevertheless require the ability to perform
13 prolonged tasks. Thus, a limitation to simple, routine, and repetitive tasks does not adequately
14 account for all of the limitations noted by Dr. Beaty and Dr. Bailey. (Dkt. No. 18 at 2.)
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Here, the DDS evaluating psychologists indicated that plaintiff had moderate cognitive

16 and social limitations. (AR 347-48.) Dr. Beaty found that plaintiff was moderately limited in
17 his ability to understand, remember, and carry out detailed instructions.

(AR 347.) In

18 addition, plaintiff was moderately limited in his ability to maintain attention and concentration
19 for extended periods, and in his ability to complete a normal workday and workweek without
20 interruptions from psychologically based symptoms and to perform at a consistent pace without
21 an unreasonable amount of rest periods. (AR 347-48.) Dr. Beaty also found plaintiff was
22 moderately limited in his ability to interact appropriately with the general public. (AR 348.)

ORDER
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01 Dr. Beaty opined that plaintiff retained the mental functional capacity to understand, remember,
02 and carry out short, simple, and routine tasks; and to maintain concentration, persistence, and
03 pace to perform short, simple, and routine tasks. (AR 349.) Dr. Bailey concurred with this
04 assessment. (AR 455.)
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The ALJ accepted the opinions of Dr. Beaty and Dr. Bailey. However, the ALJ’s

06 hypothetical to the VE referenced only “simple, routine and repetitive tasks, without including a
07 limitation to short tasks. Thus, the ALJ did not afford the VE the opportunity to address
08 whether a limitation to short tasks might preclude plaintiff from performing gainful
09 employment. As a result, the VE’s testimony that plaintiff can perform work as a parking lot
10 attendant, stuffer-cushions, and assembler has no evidentiary value to support a finding that he
11 can perform these jobs. See Matthews, 10 F.3d at 681. The ALJ’s determination that plaintiff
12 can perform work in the national economy may be erroneous and must therefore be reassessed. 1
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The Court has discretion to remand for further proceedings or to award benefits. See

14 Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). The Court may direct an award of
15 benefits where “the record has been fully developed and further administrative proceedings
16 would serve no useful purpose.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002).
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1 Plaintiff also asserts that the ALJ erred in his hypothetical to the VE because it did not
incorporate the opinion of treating provider Craig Talbot, M.D., that he was limited to sedentary
work. (Dkt. No. 15 at 9-10.) However, the ALJ considered Dr. Talbot’s opinion and
provided specific and legitimate reasons to reject it. (AR 27.) The ALJ, therefore, was not
required to incorporate Dr. Talbot’s opinion into the hypothetical to the VE. As plaintiff has
failed to provide any argument supported by reasons to find the ALJ erred in rejecting the
opinion of Dr. Talbot, the Court will not disturb the ALJ’s findings. Zango, Inc. v. Kaspersky
Lab, Inc., 568 F.3d 1169, 1177 n.8 (9th Cir. 2009) (“arguments not raised by a party in an
opening brief are waived”) (citing Eberle v. Anaheim, 901 F.2d 814, 818 (9th Cir. 1990)).

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Such a circumstance arises when: (1) the ALJ has failed to provide legally
sufficient reasons for rejecting the claimant’s 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 if he considered the claimant’s evidence.

04 Id. at 1076-77. Here, there are outstanding issues that must be resolved. Therefore, remand is
05 appropriate to allow the Commissioner the opportunity to clarify his hypothetical and to
06 determine whether plaintiff is able to perform gainful employment in the national economy.
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B. The ALJ’s Credibility Assessment

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Plaintiff also contends that the ALJ improperly evaluated his subjective complaints.

09 (Dkt. No. 15 at 10.) According to the Commissioner’s regulations, a determination of whether
10 to accept a claimant’s subjective symptom testimony requires a two step analysis. 20 C.F.R.
11 §§ 404.1529, 416.929; Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). First, the ALJ
12 must determine whether there is a medically determinable impairment that reasonably could be
13 expected to cause the claimant’s symptoms. 20 C.F.R. §§ 404.1529(b), 416.929(b); Smolen,
14 80 F.3d at 1281-82. Once a claimant produces medical evidence of an underlying impairment,
15 the ALJ may not discredit the claimant’s testimony as to the severity of symptoms solely
16 because they are unsupported by objective medical evidence. Bunnell v. Sullivan, 947 F.2d
17 341, 343 (9th Cir. 1991) (en banc). Absent affirmative evidence showing that the claimant is
18 malingering, the ALJ must provide “clear and convincing” reasons for rejecting the claimant’s
19 testimony. Smolen, 80 F.3d at 1284.
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In this case, there was no evidence that plaintiff was malingering. Consequently, the

21 ALJ was required to provide clear and convincing reasons to reject his testimony. The ALJ
22 found plaintiff’s impairments could reasonably be expected to cause the alleged symptoms, but

ORDER
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01 that his statements concerning the intensity, persistence, and limiting effects of these symptoms
02 were not credible. (AR at 26.)
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Plaintiff asserts that the ALJ erred in rejecting his subjective complaints on the basis

04 that it was not fully corroborated by the medical record. (Dkt. No. 10.) “While subjective
05 pain testimony cannot be rejected on the sole ground that it is not fully corroborated by
06 objective medical evidence, the medical evidence is still a relevant factor in determining the
07 severity of the claimant’s pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853,
08 857 (9th Cir. 2001); SSR 96-7p. Here, the ALJ did not rely exclusively on the medical record
09 in rejecting plaintiff’s credibility. Rather, the ALJ also considered his daily activities (AR 26),
10 his inconsistent statements about his drug use, and his drug seeking behavior (AR 26-27),
11 which plaintiff does not challenge.

An ALJ may consider inconsistencies between a

12 claimant’s activities and his subjective complaints. See Tonapetyan v. Halter, 242 F.3d 1144,
13 1148 (9th Cir. 2001); Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). Likewise, an
14 ALJ may consider a claimant’s inconsistent statements regarding his drug or alcohol use, and
15 his drug seeking behavior. See Thomas, 278 F.3d at 959 (citing Verduzco v. Apfel, 188 F.3d
16 1087, 1090 (9th Cir. 1999) (relying on inconsistent statements about alcohol use to reject a
17 claimant’s testimony)); Edlund v. Massanari, 253 F.3d 1152, 1157-58 (9th Cir. 2001) (finding
18 that evidence of drug seeking can serve as a basis to discredit a claimant’s testimony). The
19 ALJ’s decision to discount plaintiff’s testimony based on his daily activities, his inconsistent
20 statements about his drug use, and his drug seeking behavior is supported by substantial
21 evidence in the record. Therefore, plaintiff does not establish that the ALJ erroneously
22 considered the lack medical evidence as a factor in his credibility analysis.

ORDER
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Citing Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997), plaintiff also asserts

02 that the only factors an ALJ may consider in evaluating a claimant’s credibility are “his
03 reputation for truthfulness, inconsistencies in testimony or between testimony and conduct,
04 noted daily activities, a work record, or testimony from physicians concerning nature, severity,
05 and effect of symptoms which he complains.” (Dkt. No. 15 at 10-11.) However, the factors
06 identified in Light are not the only factors an ALJ may consider in evaluating a claimant’s
07 credibility. See Light, 119 F.3d at 792 (“In weighing a claimant’s credibility, the ALJ may
08 consider . . . .”) (emphasis added). The ALJ properly considered the medical evidence,
09 plaintiff’s daily activities, his inconsistent statements about his drug use, and his drug seeking
10 behavior. The ALJ’s credibility determination is affirmed.
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C. The ALJ’s Consideration of Plaintiff’s Impairments

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Plaintiff contends that the ALJ failed to properly consider the limitations from his

13 hepatitis C, cervical degenerative disc/joint disease, and cellulitis, asserting that “[t]he issue of
14 fatigue is not even mentioned by the Administrative Law Judge.” (Dkt. No. 15 at 11-12.)
15 However, plaintiff fails to provide any meaningful argument in support of his claims. Rather,
16 he simply states: “The claimant testified that he has severe fatigue and even a walk to the store,
17 4 blocks from his apartment, puts him down for the day. The neck pain is also recorded in
18 2002 and 2009. The claimant also is limited by recurrent abscesses or infections, which
19 frequently included MRSA bacteria, and have required hospitalizations on multiple occasions.”
20 (Dkt. No. 15 at 12 (internal citations omitted).)
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The Court need not address an alleged error that is not argued with any specificity in the

22 party’s briefing. Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n. 2 (9th Cir.

ORDER
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01 2008); Zango, 568 F.3d at 1177 n. 8 (“arguments not raised by a party in an opening brief are
02 waived”) (citing Eberle, 901 F.2d at 818). Moreover, contrary to plaintiff’s contention, the
03 ALJ specifically discussed plaintiff’s hepatitis C, cervical degenerative disc/joint disease, and
04 cellulitis, including his fatigue and neck pain, in the decision.

(AR 22-23, 26.)

05 Fundamentally, plaintiff asks for a different weighing of the evidence from that conducted by
06 the ALJ. However, the findings of the Commissioner, if supported by substantial evidence,
07 “shall be conclusive.” Smolen, 80 F.3d at 1279. Plaintiff has not established error in the
08 ALJ’s consideration of his physical impairments.
IV. CONCLUSION

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For the foregoing reasons, the Commissioner’s decision is REVERSED and

11 REMANDED for further administrative proceedings not inconsistent with this Order.
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DATED this 1st day of August, 2012.

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Mary Alice Theiler
United States Magistrate Judge

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