Jones v. Commissioner, Social Security Administration, No. 6:2009cv00645 - Document 23 (D. Or. 2010)
Court Description: Opinion and Order: The decision of the Commissioner is reversed and remanded for an award of benefits. Signed on 11/22/10 by Chief Judge Ann L. Aiken. (lae)
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IN THE UNITED STATES DlSTRICT COURT FOR THE DISTRICT OF OREGON CLARENCE JONES, C iff, PIa . No. 09-645-AA OPINION AND ORDER v. MICHAEL J. ASTRUE, Commissioner of Security, De AIKEN, Chief Plaintiff see Commissioner's f judicial 1 supplemental s review decision of denying 42 U.S.C. §405(g). and remanded Social his Security application for s r Title XVI of the This court s jurisdiction under y income (SSI) bene Social Security Act (the Act). t The decision of ss r is reversed an award of benefits. BACKGROUND On September application 1 r 28, SSI. 2004 Tr. - OPINION AND ORDER plaintiff 87-100. His ectively filed an lication was denied initially and upon reconsideration, and plaintiff timely requested an administrative hearing. Tr. 32-33, 63-65, 74-78. On February 14, 2008, plaintiff and a vocational expert appeared and testified before an administrative law judge (ALJ). Tr. 537-62. On May 30, 2008, the ALJ issued a decision finding plaintiff able to perform his past relevant work, thus finding plaintiff not disabled within Tr. the meaning of the Act. 16-31. plaintiff's request for review, The Appeals Council denied and the ALJ's ruling became the final decision of the Commissioner. Tr. 5-7. Plaintiff now seeks judicial review. At the time of the ALJ's decision, plaintiff was forty-eight years old with high-school equivalence education and past relevant work as a grinder, book stacker, and laborer. Tr. 87, 102-06, 539. Plaintiff alleges disability primarily due to mental limitations and shoulder pain. STANDARD OF REVIEW This court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence in the record. 498, 501 (9th Cir. mere scintilla. 1989). Hammock v. Bowen, 879 F.2d Substantial evidence is "more than a It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." v. Perales, 402 u.S. 389, 401 (1971) v. NLRB, 305 u.S. 197, 229 (1938)). 2 - OPINION AND ORDER Richardson (quoting Consolidated Edison The court must weigh "both the evidence that supports and conclusions." 1986). the detracts 807 F.2d 771, Where the evidence is sus interpretation, the Commiss initial burden of r' s conclusion must proof rests upon the claimant to , a claimant must demonstrate an To meet t tantial gainful activity by reason of any medically Ie physical or mental impairment whi can be expected . . to than 12 months ALJ be upheld. 782 F.2d 1484, 1486 (9th "inability to engage The (9th Cir. (9th Cir. 1982). establish disability. Cir. 1986). 772 e to more than one rational Sample v. Schweiker, 694 F.2d 639, 642 The [Commissioner's] " eva st for a continuous period of not less 42 U.S.C. 423 (d) (1) (A). § plaintiff's pursuant to the relevant s allegation ial process. 482 U.S. 137, 140 (1987); 20 C.F.R. § See 416.920. of dis li ~~~~~~~~~ At st ALJ found that pIa iff had not engaged in "substantial activity" period of alleged disability. C.F.R. At § pIa two and three, 3 the ALJ found 20 t plaintiff had impairments of bilateral rotator cuff strain, sorder, and cocaine abuse, irments did not meet or listed 21; 416.920{b). medical schizoa Tr. rments that the - OPINION AND ORDER [Commissioner] ss , but that "one of a number of acknowledges are so severe as to preclude gainful activity." § 416.920(c), (d). Tr. 21-22; 20 C.F.R. Accordingly, the inquiry moved to step four. At step four, the ALJ assessed plaintiff's residual functional capacity (RFC) and found that plaintiff retained the RFC to perform medium work. 20 C.F.R. § 416.920(e). Specifically, the ALJ found that plaintiff could lift and carry fifty pounds occasionally and twenty pounds frequently, walk, stand, or sit. with no restrictions on his ability to The ALJ also found that plaintiff was limited to simple, repetitive tasks in a non-public setting with occasional contact with assessment, co-workers. the ALJ found Tr. 23, that 30. plaintiff Based on retained this the RFC RFC to perform his past relevant work as a grinder and book stacker. Tr. 30; 20 C.F.R. § 416.920(f). Therefore, the ALJ did not proceed to step five and found plaintiff not disabled under the meaning of the Act. Tr. 30. DISCUSSION Plaintiff argues that the ALJ erred in rejecting the opinion of several improperly medical providers, rejecting lay finding witness inadequate findings at step three. plaintiff testimony, not and credible, providing I agree that the ALJ erred in rejecting the opinion of examining and treating medical and mental health providers. In finding plaintiff not disabled, the ALJ rej ected the uncontradicted opinion of Dr. Neville, an examining physician, who 4 - OPINION AND ORDER e to lift only twenty pounds. determined that plaintiff was 344. The ALJ also rej inions of Steven Barry, Ph.D. and Matilda Mengis, M.D. rega capacities. iff's mental limitations and p scounted or failed to address The ALJ also opinions of several mental It is well-es an of a treat providing clear and I 53 F.3d 1035, 1041 (9th Cir. ALJ se reject plaintiff's abil finding y to Ii findings confli Tr. 28. finding on p i a Neville rega and carry, because the ALJ It those non-examining, s cannot iff's However, Dr. Neville based that parti lIe's report. Neville's i Dr. 's reduced range of motion in his shaul set forth in Dr. ALJ, of Dr. Neville's description of pla functioning. experts, the I find that the ALJ did not provide clear and convincing The ALJ rej ect Lester v. Chater, 81 F.3d 821, 830-31 reasons to reject The may or . examining physician by (9th Cir. 1995); the ALJ reasons supported by substant evidence in the by the providers. s uncontradicted 1995). Tr.. Tr. 342-43. consulting physician his judgment for rs, as Further, as not adopt er reviewing the medical record. titute r those Dr. Tr. 364. of cal arly when the medical findings are uncont 92 F.3d 1017, 1022 (10th Cir. 1996); 914 5 F.2d 117, - OPINION AND ORDER 118 (7th Cir. 1990) ("But j s, including administrat judges of the Soc 1 Se Administration, must be careful not to succumb to the play doctor."). Thus, I to the ALJ failed to and convincing reasons to scount Dr. Neville's uncont findings. The ALJ likewise of scredited the conclusion and find Dr. Barry, an examining psychologist, and Dr. Mengis, a treating psychiatrist. plaintiff's medical Dr. counse interviewed r on and iff disorders, that was Tr. 339. periods, wi to to Dr. Barry a ion rform at a from it Tr. 29. was in a his iff attention and psychol workday ically-based without consistent "check-box" form However, Dr. Barry indicated sed on his report, which set - OPINION AND ORDER of y would last an Tr. 463. ted the mental limitations set s limitations were 6 Tr. 330 39. length of rest periods. because statement. due ity to complete a no interruptions unreasonable Barry, "disabled" a in his abilities to mainta and The ALJ performed Dr. Barry further asse concentration symptoms, records, s, and that plaintiff should not was "markedly 1 workweek iff's ems were "chronic," that s more than twe and reviewed a written report. that own finances. with two- occasions, lth inventory, and opined plaintiff, by Dr. no cal the assessed bases for Dr. Barry's and conclusions. further disc Dr. low Global Assessment State agency Tr. 339, Barry's conclusion Functioning ed, Dr. e (GAF) score, Barry relied upon 29. ALJ does "as the conflicting by the plaintiff in reaching not iff's a information of However, ALJ 463. score." ion identify what Tr. was conflicting or why such information did not support Dr. Barry's GAF assessment or overall evaluation of plaintiff. did not y opinion; so y orr plaintiff's ALJ fai Tr. 330, 334. opinion of a Dr. of substant phys Ba a an examining psychol re, I find that the Dr. than to the Widmark v. st. n.2 (9th Cir. 2006) expert ); Tonapetyan v. Halter, s not (a contrary constitute 242 F.3d 1144, 1149 (accord). s, a treating psychiatrist, iff diagnoses i to support rejecting a treating or examining I 's of pI & non-examining medical (9th Cir. 2001) January 2008. and noted that Tr. leted an evaluation 492 94. plaintiff was She rendered several continuing Y with concentration and memory, as well as depression and anxiety.· Tr. 493. 7 There scussions with non-examining Barnhart, 454 F.3d 1063, 1066-67 dif rendering his to provide legally sufficient reasons to give greater weight to opinion statements also relied on medical evidence plaintiff's couns opinion Moreover, Dr. Barry Dr. Mengis assess - OPINION AND ORDER a iff with a GAF score of 43, indicat 494. serious symptoms and functional problems. ALJ Tr. 29. ted Dr. Mengis's opinion, disagreeing with sc her assessment pIa 0 Tr. iff's mental status during the evaluation. not find this reason clear and convincing or I and legit c the ALJ cannot substitute his own j e. for that of a treating physician, particularly when the supports 's opinion. ic to give lly ALJ iled reasons to reject the opinions i Thus, I find that Dr. Mengis. The ALJ's ection problematic of the reflects § i have document more reco is unable that 20 C.F.R. care his mental impairments and resulting ties f to sustai Tr. 13947,173-74,383,394,45354,46667,478-80. t certain provider notes to support i f ' s condition improved at times, tr. ignored those limitations. record to 1078, 1083 (10 choose from a indicated continuing s fi 27 28, t debilitat s findings. Cir. 2004) Robinson v. cal opinion, OPINION AND ORDER ALJ of Barnhart, ("The ALJ is not enti t ng mental ALJ cannot pick and choose among the to 366 F.3d ck and using only those parts that are favorable to a finding of nondisability."); 8 is extensive evidence of plaintiff While the ALJ that p opinions Many of plaintiff's mental hea indicat employment. these 's long-standing mental impairments. 416.927 (d) (4). and of , 742 F.2d 382,385-86 (7th Cir. 1984) ("[TJ Secretary's attempt to use only the portions [of a medical rable to her position, r. while ignoring other parts, is The final question is further administrat case should be remanded for or for an award of benefits. pro Harman v. Apfel, 211 F.3d 1172, 1178 the medical and psychological an award of benefits fI) ¢ (9th Cir. 2000). cited above as true, I find iate. Widmark, 454 at 1069; Massanari, 246 F.3d 1195, 1211 (9th Cir. 2001). that plaintiff was mar y 1 ted employment. that t s 1 Tr. 463, 561. to determine dis in his Dr. Barry opined ability to sustain and the vocational concentration throughout testified Accepting tat would preclude exper~ competit fore, no outstanding issues rema ility. CONCLUSION The ALJ's f plaintiff is not disabled under t is not support outstanding substantial evidence in the record, issues Commissioner is s remain. Accordingly, the _1~J,JI:::> ~ day of November, 2010. . Ann Alken United States District Judge 9 decision REVERSED and REMANDED for an award of IT IS SO ORDERED. DATED Act OPINION AND ORDER no of the fits.
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