Brown v. Commissioner, Social Security Administration, No. 3:2013cv02051 - Document 19 (D. Or. 2014)

Court Description: OPINION AND ORDER. Signed on 10/29/2014 by Judge Malcolm F. Marsh. (pvh)

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Brown v. Commissioner, Social Security Administration Doc. 19 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Case No. 3:13-cv-02051-MA BRYAN K. BROWN, Plaintiff, OPINION AND ORDER v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. GEORGE J. WALL 1336 E. Burnside, Suite 130 Portland, OR 97214 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN RONALD K. SILVER Assistant United States Attorneys 1000 S.W. Third Ave., Suite 600 Portland, OR 97204 LARS J. NELSON Social Security Administration Office of the General Counsel 701 Fifth Ave., Suite 2900, M/S 221A Seattle, WA 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER Dockets.Justia.com MARSH, Judge Plaintiff Bryan K. Brown seeks judicial review of the final decision of the Commissioner of Social Security denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C for Supplemental Security Income 401-403, and application §§ (SSI) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. This Court has jurisdiction pursuant to 42 U.S.C. 1383 ( c) ( 3) . 1381-1383f. §§ §§ 405(g) and For the reasons that follow, I reverse and remand for further administrative proceedings. FACTUAL AND PROCEDURAL BACKGROUND Plaintiff was injured on September 13, 2005, while working as an arborist when a tree fell on him, fracturing his pelvis in multiple places and tearing his urethra. On September 15, 2005, plaintiff underwent a closed reduction and percutaneous pinning of his right sacral fracture, with external fixators, and the urethral tear was repaired. facility. fixator Plaintiff was discharged to a skilled nursing While there, an infection developed around the external pin site and plaintiff infection appeared to have was given antibiotics. The resolved, and plaintiff was discharged. On October 18, 2005, plaintiff sought emergency treatment for intractable pain, moderate distress. aureus (MSSA), fevers, chills, and sweats and appeared in After cultures were positive for Staphylococcus plaintiff 2 - OPINION AND ORDER was diagnosed with osteomyeli tis (infection of the bone), and his external hardware was surgically removed and the pin tracts debrided. Plaintiff was admitted to a skilled received nursing facility were he intravenous antibiotics for six weeks and physical rehabilitation. {IV) Plaintiff was discharged from the nursing facility in December of 2005. Tr. 623, 656. In January of physical therapy, 2006, plaintiff was encouraged to continue and was able to ambulate with use of a cane. Plaintiff was released to sedentary work at that time. Tr. 647-49. In May of 2006, plaintiff requested that his workers compensation claim be closed, and he was released to a trial of unrestricted work so that he could pursue employment as a landscaper. Tr. 641. Plaintiff was advised to wean off his opiod medication. Tr. 642. Plaintiff had several unsuccessful work attempts in 2007 and 2008. In the fall of 2009, plaintiff was receiving in-patient treatment for methamphetamine abuse at the Portland Rescue Mission. On September 29, extreme pain, maximus. loosaning 2009, chills, and tenderness in his hip and gluteus A CT scan of the pelvis showed sacroiliac fixation screw with cortical Methicillin-sensitive osteomyelitis, ｾｮ､＠ plaintiff sought emergency treatment for erosions. Staphylococcus Further aureus evaluation infection showed with sacroiliac joint septic arthritis, and bacteremia he was hospitalized. On October 2, 2009, plaintiff's deep hardware was removed, and he was sent to a skilled nursing facility 3 - OPINION AND ORDER for a seven week course of IV antibiotics and rehabilitation. November 19, 2009, antibiotics, he plaintiff On plaintiff was prescribed four weeks of oral was continued released substance from the nursing abuse treatment facility, and Central City at Concern. Plaintiff protectively filed an application for DIB on December 10, 2009, and protectively filed an application for SSI on June 19, 2009. In both applications, plaintiff alleged disability beginning September 13, 2005, due to arthritis in his pelvis, and osteomyelitis. Plaintiff's claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on May 11, 2012, at which plaintiff appeared with his attorney and testified. Vocational expert, C. Kay Wise, and lay witness, Douglas L. Brown, also appeared at the hearing and testified. ALJ issued an unfavorable decision. On June 29, 2012, the The Appeals Council denied plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review. Born in 1972, plaintiff was 32 years old on the alleged onset date. Plaintiff completed school through the tenth grade, communicate in English, and has past relevant work as can a foreman/lead worker on an assembly line . . Plaintiff has a history 4 - OPINION AND ORDER of methamphetamine abuse and asserted at the May 11, 2012 hearing that he has been clean and sober for three and a half years. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. Each step is potentially disposi ti ve. burden of proof at steps one through §§ The claimant bears 180 F.3d 1094, 1098 five, burden shifts Commissioner the v. 689 (9th Cir. 2009); Apfel, to the See Valentine Tackett v. the 404.1520; 416.920. four. Commissioner Soc. Sec. Admin., 574 F.3d 685, Bowen v. (9th Cir. 1999). to show At step that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through September 30, 2007. A claimant seeking DIB benefits disability on or prior to the under Title II must last date insured. 42 establish u.s.c. § 416 (I) (3); Burch v. Barnhart, 400 F. 3d 676, 679 (9th Cir. 2005). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since his alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairments: chronic right posterior pel vie pain status post pel vie fractures and urethral transaction; history of hepatitis C; and history of polysubstance abuse. 5 - OPINION AND ORDER osteomyelitis; At step three, the ALJ found that plaintiff's impairments, or combination of impairments, did not meet or medically equal a listed impairment. The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform light work, except that plaintiff can walk up to two hours in an eight hour day for no more than 15 minutes at a time, can stand for four hours for no more than one hour at a time, and has no sitting limitations; he can occasionally climb ramps and stairs; he can never climb ladders, occasionally stoop, kneel, crouch, ropes or scaffolds; crawl; he has he can no balancing limitations; and he cannot be exposed to industrial hazards such as moving machinery or unprotected heights. At step four, the ALJ found plaintiff is unable to perform any past relevant considering At work. plaintiff's step age, five, the education, ALJ work concluded that experience, and residual functional capacity, jobs exist in significant numbers in the national economy that plaintiff can perform, such as production assembly inspector, hardware assembler, and hand packager. Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from September 13, 2005 through the date of the decision. ISSUES ON REVIEW On appeal to this court, errors were committed: plaintiff contends the following (1) the ALJ failed to properly evaluate and include physical limitations described by treating physician Jeanne 6 - OPINION AND ORDER H. Button, testimony; M. D.; and ( 3) (2) the ALJ failed to properly evaluate his the ALJ failed to properly evaluate the lay testimony of Douglas L. Brown. STANDARD OF REVIEW 'I'he 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. 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 42 u.s.c. (9th Cir. § 2010). "Substantial evidence is 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." Hill, 698 F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690. 'I'he court must weigh all the evidence, whether detracts from the Commissioner's decision. 807 F. 2d 771, 772 (9th Cir. 1986). it supports or Martinez v. Heckler, The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational Admin., interpretation. 359 E'.3d 1190, 1193 Batson v. (9th Cir. supports the Commissioner's conclusion, Commissioner Soc. 2004). Sec. If the evidence 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). Ill/ Ill/ 7 - OPINION AND ORDER DISCUSSION I. Standards for Evaluating Physician's Opinions The ALJ is responsible for resolving conflicts in the medical record, including conflicts among physicians' opinions. v. 533 F.3d 1155, Comm'r, 1164 (9th Cir. 2008). Carmickle To reject the uncontroverted opinion of a treating or examining physician, the ALJ must present clear 427 F. 3d 1211, Barnhart, and convincing reasons. Bayliss v. 1216 (9th Cir. 2005) . If a treating or examining doctor's opinion is contradicted by another doctor's opinion, Ghanim it may be rejected by specific and legitimate reasons. v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 2014). When evaluating conflicting opinions, an ALJ is not required to accept an opinion that is not supported by clinical findings, or is brief or tonclusory. Taylor v. Comm.issioner Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). Plaintiff opinion of complains Jeanne H. According to plaintiff, that the Button, ALJ improperly M.D., his rejected treating the physician. the ALJ failed to provide specific and legitimate reasons for rejecting Dr. Button's limitations in favor of examining physician John Hamby, M.D. Plaintiff is correct. On March 5, 2010, plaintiff established care with Dr. Button, who performed a comprehensive evaluation and reviewed plaintiff's medical records. Tr. 585. The March 5, 2010 treatment note indicates that plaintiff informed Dr. Button that his pain averaged 8 - OPINION AND ORDER a three on a 10-point scale, and varied from zero to six· depending on his activity; that.he can sit comfortably; can stand for an hour; and walk for 10 blocks without .increased pain. exam, Dr. On physical Button noted that plaintiff had a steady gait, single point cane .in his right hand, with a with strength at a four of five on the right side, and five of five on the left. Tr. 588. Dr. Button opined that plaintiff's 2009 infection was related to the 2005 workplace .injury, and that plaintiff's 2009 infection has left him with right sacroiliac joint arthritis, pain and decreased hip/ sacroiliac range of motion in the surrounding muscles. 58 9. Dr. Tr. Button assessed plaintiff's functional limitations as follows: standing up to 1 hour at a time, up to 4 hours .in a day, walking up to half mile. Occasional bending. No stooping, crouching or crawling. Occasional lifting up to 30 pounds from waist level. Tr. 589. In the limitations. Button's decision, Tr. 17. opinion, the ALJ briefly summarized Dr. The except ALJ to did . not note that otherwise Dr. Button's discuss Button's Dr. opinion supported the limitations described by examining physician John Hamby, M.D. On February 8, 2012, Dr. Hamby conducted a comprehensive musculoskeletal evaluation, including reviewing plaintiff's medical record and interviewing plaintiff. 9 - OPINION AND ORDER During Dr. Hamby's evaluation, plaintiff indicated that he can walk for 10 to 15 minutes, for one hour, and has no problems sitting. stand Plaintiff informed Dr. Hamby that lifting is "touch and go," and that his maximum lifting is 20 pounds without increased symptoms. Dr. Hamby diagnosed plaintiff with "ongoing right lower back pain, with ample objective findings to support the subjective symptomatology," history of two episodes of osteomyelitis, joint. Tr. 546. Dr. and non-union of the right sacroiliac Hamby assessed plaintiff's functional capacities as follows: 1. 2. 3. 4. 5. 6. 7. Maximum standing/walking capacity: Walking is limited to 15 minutes at a time, maximum two hours per day. Standing is limited to one hour at a time, and four hours per day. Maximum sitting capacity: no limitations. Assistive devices: none necessary. Maximum lifting/ carrying capacity: 20 pounds occasionally and 10 pounds frequently. Postural activities: climbing, stooping, kneeling, crouching, and crawling are limited to an occasional basis, balancing is unlimited. Manipulative activities: no limitations. Workplace environmental activities: no limitations. Tr. 546. The ALJ gave "great weight" to Dr. Hamby' s opinion and "little weight" to the agency reviewing physician who opined that plaintiff could perform sedentary work. 1 Tr. 18, 523-30. Basing plaintiff's RFC largely on Dr. Bamby's opinion, the ALJ limited plaintiff to light work, with the following restrictions: 1 I note that Dr. Hamby is the only physician to opine that plaintiff can perform light work. 10 - OPINION AND ORDER plaintiff can walk up to two hours in an eight hour day for no more than 15 minutes at a time, can stand for four hours for no more than one hour at a time, and has no sitting limitations; he can occasionally climb ramps and stairs; he can never climb ladders, ropes or scaffolds; he can occasionally stoop, kneel, crouch, crawl; he has no balancing limitations; and he cannot be exposed to industrial hazards such as moving machinery or unprotected heights. Tr. 15. To the extent that Dr. Hamby and Dr. Button's opinions are consistent with respect to walking and standing, the ALJ' s findings are supported by substantial evidence, and the ALJ appropriately incorporated those limitations into the RFC. However, Dr. Hamby and Dr. Button's opinions conflict with respect to limitations on stooping, crouching, crawling, lifting, whether plaintiff 359 F.3d at 1195 (ALJ must requires the use of a cane. Batson, resolve opinions) . conflicting medical and The ALJ' s failure to provide any rationale as to why Dr. Button's limitations were given less weight than those of Dr. Hamby is error. As will be discussed below, plaintiff's use of a cane may greatly impact the disability determination at Step Five. In short, the ALJ erred by failing to resolve the conflicting medical evidence and failing to identify specific and legitimate reasons for discounting Dr. Button's opinion. Valentine, 574 F.3d at 692 (ALJ must provide specific and legitimate reasons to credit examining physician over treating physician when their opinions conflict) /Ill 11 - OPINION AND ORDER II. Plaintiff's Testimony To determine whether a claimant's 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. F.3d 1104, 1112 (9th Cir. 2012); 1035, 1039 (9th Cir. 2008). could reasonably be Molina v. Astrue, Tommasetti v. Astrue, 674 533 F.3d At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear claimant's and convincing testimony Carmickle v. regarding Commissioner Soc. reasons the Sec. for severity Admin., discrediting of the the symptoms. 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 the reviewing court to conclude that arbitrarily discredit the claimant's testimony. at 1163; Tommasetti, 533 F.3d at 1039. the ALJ did not Ghanim, 763 F.3d Factors the ALJ may consider when making such credibility determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and 12 - OPINION AND ORDER relevant character evidence. Ghanim, 763 F. 3d at 1163; Tommasetti, 533 F.3d at 1039. Plaintiff testified that before his 2005 infection returned in 2009, his pain was at a six on a 10-point scale and that he now experiences dull occasionally. pain all the time, with sharp stabbing pains Plaintiff testified that he can sit for up to two hours with occasional repositioning. after two or three hours, Plaintiff also testified that he needs to lie down for an hour to relieve pain and pressure, and that he does so a couple of times each day. Tr. 4 6. Plaintiff further testified that he can comfortably lift 20 pounds and carry it a distance of 20 to 30 feet. Plaintiff described that since his accident in 2005, he uses a cane to walk and stand. Plaintiff stated that he can stand for two hours, and can occasionally stoop, but crouching is difficult. Tr. 48, 50. Plaintiff testified that he tried to work in 2007 as a day laborer, disability. but had a difficult time working due to his Tr. 52. Plaintiff testified that his last drug use was three and half years ago. Tr. 54. Plaintiff stated that he was in the Portland Rescue Mission New Life program for 11 months when his infection returned in 2009. Plaintiff testified that following his residential antibiotic treatment, he was in a Central City Concern intensive outpatient rehabilitation program for 11 months, and has 13 - OPINION AND ORDER been clean ever since. Tr. 55. Plaintiff also testified that he no longer takes prescription pain medication. In seeking a Disability disability completed grade Report, due 10, to was plaintiff arthritis in special Tr. 57. indicated in education school, and that he has not completed a GED. he was pelvis, his that that he classes when in Tr. 214. The.ALJ discredited plaintiff's testimony because plaintiff offered inconsistent explanations about his failed work attempts, and his noncompliance appointments. with recommended treatment For the reasons that follow, and missed I find these reasons, when taken together, do not amount to clear and convincing support for the adverse credibility determination. In the decision, the ALJ noted that plaintiff attempted at least six jobs between 2007 and 2008, and plaintiff testified that these attempts were unsuccessful because employers were unwilling to hire someone with his disability. Tr. 16, 39. The ALJ questioned plaintiff's explanation because at the time plaintiff was attempting work, plaintiff was abusing methamphetamine. As the ALJ discussed, Dr. But ton indicated that in 2010, plaintiff had a positive toxicology screening for cocaine, and that at that time, Dr. Button was concerned about abuse of prescription painkillers. Tr. potential ｰｬ｡ｩｮｴｦＧｾ＠ 579. A May 26, 2010 treatment note shows that Dr. Button was concerned that plaintiff had several "red flags" indicating actual or potential opiod abuse, 14 - OPINION AND ORDER including dishonesty, a prior missed appointment, failing to make appointments within 30 days, a stolen backpack with medications, and failing to follow through with lab work and physical therapy. Tr. 580. Additionally, the ALJ discussed that Dr. Button believed plaintiff was having difficulty "motivating" and was using his parole officer as an excuse not to follow through with treatment recommendations. Tr. 18, 577. Dr. Button's March 5, 2010 treatment note shows that plaintiff denied using illicit drugs since his 2005 accident, however, Dr. Button learned from another physician that plaintiff had admitted to using illicit drugs just six months earlier. substantial plaintiff Tr. 587. evidence, was not The ALJ's findings are supported by and the ALJ could reasonably entirely forthright about the infer that reason his employment attempts ended and his noncompliance with appointments and physical therapy. inconsistent statements Molina, and 674 F.3d at failure to 1113 follow (noting that through with treatment are appropriate bases upon which to discredit claimant). The Commissioner also contends discredited plaintiff because that his the ALJ appropriately subjective limitations inconsistent with the objective medical evidence. argues that plaintiff's undermined by Dr. needed. Tr. plaintiff's testimony Hamby's 47-48, finding 546, 548. testimony 15 - OPINION AND ORDER that he that he are The Commissioner needs a cane is that no assistive device is And, the Commissioner highlights needs to lie down every day is inconsistent with Dr. Button's treatment reflect such a complaint from plaintiff. notes, which do not In the decision, the ALJ did note that in May of 2006, plaintiff requested that Dr. Lorber close his without workers compensation restrictions so that claim and he release could pursue him to employment work as a landscaper, from which I can infer that the ALJ found plaintiff's unrestricted work release request inconsistent with his current statement that he has been disabled since his accident in 2005. Tr. 17, 637-42. While I agree with the Commissioner that such inconsistencies exist, the ALJ did not specifically rely upon these facts or identify them as a basis for the negative credibility assessment. cannot I uphold the ALJ's negative credibility assessment based on evidence the ALJ did not discuss, or reasons the ALJ failed to provide. Connett v. Barnhart, 340 F.3d 873, 874 (9th Cir. 2003) (the court is constrained to review the ALJ' s stated reasons) . I also likewise reject the Commissioner's contention that the ALJ relied plaintiff. upon a three year gap in treatment to discredit When discussing plaintiff's medical history, the ALJ indicated that from 2006 to 2009, plaintiff did not seek treatment. However, the ALJ failed to link this gap to the adverse credibility determination. ALJ' s Id. Contrary to the Commissioner's suggestion, the passing reference is simply not sufficiently specific to permit me to adequately review the ALJ's reasoning on the record 16 - OPINION AND ORDER See Lester v. before me. 1995) (ALJ' s general unbelievable is Chater, statement insufficient 81 F.3d that to 821, 834 (9th Cir. claimant's support testimony adverse credibility determination) . In summary, the ALJ has provided limited reasoning for discrediting plaintiff that is supported by substantial evidence in the However, record. viewing the conclude'' that this reasoning convincing support Connett, 34 0 asserted by F. 3d the for at the 87 4 record as whole, in and of itself - adverse (the credibility court I cannot is clear and determination. may only review 504 Lingenfelter, ALJ) ; a reasons F. 3d 1036-37 (ALJ' s reasoning only partially upheld was not sufficient basis to support adverse credibility determination) . Accordingly, I conclude the ALJ has erred. III. Lay Testimony Lay witness testimony as to a claimant's symptoms or how an impairment affects his ability to work is competent evidence, which the ALJ must take into account. 1113, 1115 (9th Cir. 2009); See Bruce v. Stout v. Astrue, Commissioner, 557 F. 3d Soc. Sec. Adm.in., 454 F. 3d 1050, 1053 (9th Cir. 2006); Nguyen v. Cha ter, 100 F.3d 1462, 1467 (9th Cir. 1996). The ALJ is required to account for competent lay witness testimony, and if it is rejected, provide germane reasons for doing so. 17 - OPINION AND ORDER Valentine, 574 F.3d at 694. Plaintiff's hearing. father, Douglas L. Brown, testified at the Mr. Brown testified that he is retired, and his son has lived with him on and off for five years. Tr. Mr. 61. Brown stated that his son can sit for up to an hour and half, then needs to change position. Mr. Brown described tha·t his son works on his laptop by laying on his stomach on the bed, with the laptop on a Mr. stool. working. Brown stated that his son was happier when he was Tr. 64. Mr. Brown testified that his son is limited, and he has to take it easy on his hip. Mr. Brown further testified that to work as when plaintiff was plaintiff would attempting work from two to six hours, nature of the job. a day laborer, depending on the Tr. 65-66. As the Commissioner acknowledges, the ALJ erred by failing to weigh Mr. Brown's testimony. Nevertheless, the Commissioner contends that the ALJ's failure to discuss the lay testimony was harmless because Mr. Brown did not describe any limitations beyond those described by the plaintiff, and the ALJ provided clear and convincing reasons to reject the plaintiff's similarly apply to the lay testimony. Mo.Una, testimony that 674 F.3d at 1122. I disagree. As discussed above, the ALJ appropriately discounted plaintiff's testimony based on his lack of candor concerning the reasons his work attempts were unsuccessful in 2007 and 2008. This reasoning, however, does not address the limitations described by 18 - OPINION AND ORDER Mr. Brown. For example, Mr. Brown testified that plaintiff lies down to work on his laptop each day, and must frequently reposition himself. As noted above, the ALJ did not discuss inconsistencies with medical the testimony. discuss Mr. nondisability evidence Therefore, Brown's I as a cannot testimony determination basis to conclude was because limitations the ALJ did not discuss. discount plaintiff's that failure the inconsequential his testimony Molina, to to the identified 671} F.3d at 1116. Accordingly, the ALJ's error is not harmless. IV. Remand After finding the ALJ erred, this court applies a three part test to determine whether the case should be remanded for further proceedings, or to calculate and award benefits. Calv.in, 759 F.3d 995, 1020 (9th Cir. 2011}), 593; Harman v. Apfel, 211 F.3d 1172, 1178 Garrison Vasquez, (9th Cir. v. 572 F.3d at 2000). The court should grant an immediate award of benefits when these three conditions are met: (1) the record has been fully developed and further administrative proceedings would serve no useful purpose, (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the improperly discredited evidence were credited as true, the ALJ would be· required to find the claimant disabled on remand. Garr.i.son, 7 59 F. 3d at 1020. Where, after evaluating the record as a whole, doubts that the claimant is, 19 - OPINION AND ORDER in fact, there are serious disabled, the court may exercise its discretion and administrative proceedings. remand the case for further Id. at 1021; Connett, 34 0 F. 3d at 87 6. On this record, there remain outstanding issues to be resolved and I have serious doubts as to whether plaintiff has been disabled since his alleged onset date. The ALJ failed to resolve the conflicting information between Drs. Button and Hamby with respect to plaintiff's ability to stoop, crouch, crawl, lift, and whether plaintiff must use a cane. Dr. RFC, The Commissioner argues that even if Button's limitations are fully credited and included in the the vocational expert limitations - hardware assembler, 1991 WL 679062. involves no identified one job without such (VE) DOTlf706. 684-074, available at As the Commissioner correctly notes, stooping, crouching or crawling, and the the job lifting requirements (sedentary) do not appear to exceed plaintiff's stated limitations. See (showing Id. that stooping, crouching and crawling are "Not Present - Activity or condition does not exist"); Tr. 47 (plaintiff states that he can lift 20 pounds occasionally). However, the VE also testified that if a claimant were required to use an assistive device (cane), competitive employment may be eliminated if there are pace and production requirements due to the loss of productivity. Tr. 79. I note that Dr. Button prescribed a cane, and that plaintiff testified he has used a cane since his 2005 accident. 20 - OPINION AND ORDER Tr. 47-48, 577. Thus, if plaintiff's testimony and Dr. Button's opinion are credited as true, plaintiff would be disabled. Yet, viewing the record as a whole, I have serious doubts that plaintiff has been disabled since his alleged onset date in 2005. As the ALJ correctly indicated, plaintiff requested that he be released to work without restrictions in May of 2006. Then, as the ALJ again also noted, September of 2009. plaintiff did not seek treatment until From late September through December of 2009, the record readily demonstrates that plaintiff had a very serious infection, with an obviously long and painful recovery. Yet, there is evidence in the record which may cast doubt on plaintiff's credibility that the ALJ failed to discuss. Additionally, it remains unclear whether plaintiff must ambulate with a cane, is capable of performing the jobs identified by the VE, other jobs perform. exist in the national economy that or whether plaintiff can Therefore, on the record before me, I have serious doubts that plaintiff has been disabled since September 2005, and there are outstanding issues that must be resolved before a disability determination can be made. Based on the foregoing, I exercise discretion under Connett ar:id conclude a remand for further proceedings consistent with this Opinion and Order is required to permit the ALJ: (1) to reconsider the opinion Dr. Button and reevaluate the medical testimony; (2) to reconsider plaintiff's 21 - OPINION AND ORDER testimony; (3) to reconsider the lay testimony; ( 4) to consider whether any new findings made by the ALJ alter the evaluation of plaintiff's RFC or affect the decision as to whether plaintiff is capable of performing other work that exists in significant assistance plaintiff of a is numbers vocational found to be in the expert disabled, national if economy, necessary; the ALJ and must with (5) if determine plaintiff's disability onset date. CONCLUSION For decision the reasons denying stated benefits to above, the plaintiff Commissioner's is REVERSED final and this proceeding is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. DATED this .;;{ "f day of OCTOBER, 2014. Malcolm F. Marsh United States District Judge 22 - OPINION AND ORDER

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