Clayton v. Astrue, No. 2:2007cv01494 - Document 21 (D. Ariz. 2008)
Court Description: ORDER granting in part Pla's 12 Motion for Summary Judgment. Pla's motion is Granted to the extent it requests a remand to the ALJ for further proceedings and a reevaluation of all the evidence. It is Denied to the extent Pla requests a r emand for an award of benefits. FURTHER ORDERED Granting in part Commissioner's 17 Motion for Remand. The Commissioner's motion is Granted to the extent the Commissioner seeks a remand for further proceedings, but is Denied to the extent the Commissioner requests the Court to affirm the ALJs earlier findings. Signed by Judge James A Teilborg on 09/15/08. (ESL)
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Clayton v. Astrue Doc. 21 1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of Social) ) Security, ) ) Defendant. ) ) Linda J. Clayton, No. CV 07-1494-PHX-JAT ORDER 16 Plaintiff appeals the Social Security Commissioner's denial of disability benefits. The 17 Court now rules on Plaintiff Linda Clayton’s Motion for Summary Judgment (Doc. #12) and 18 Defendant Commissioner’s Motion for Remand (Doc. #17). 19 I. Background 20 A. Procedural Background 21 On June 19, 2002, Plaintiff, Linda J. Clayton, applied for Disability Insurance 22 Benefits and Supplemental Security Income, alleging a disability onset date of March 1, 23 1997. The Agency approved her application for supplemental security income, effective 24 December 16, 2002, but denied her application for benefits. Plaintiff then requested a 25 hearing with an Administrative Law Judge. 26 The ALJ held a hearing on November 10, 2003. The ALJ denied Plaintiff’s claim for 27 disability benefits on January 15, 2004. The ALJ found that there was insufficient evidence 28 Dockets.Justia.com 1 to establish disability before March 31, 2002, Plaintiff’s last date of eligibility. The ALJ 2 found that Plaintiff was not disabled at two of the five-step sequential evaluation. 3 The Appeals Council remanded the case for further proceedings. The ALJ conducted 4 a supplemental hearing on September 14, 2005. Plaintiff testified at the hearing, as did 5 Kathleen McAlpine, a vocational expert. On November 18, 2005, the ALJ again decided that 6 Plaintiff was not disabled at step two. The Appeals Council did not grant Plaintiff’s request 7 for review. Plaintiff filed this action on August 3, 2007. 8 B. 9 An MRI on November 12, 1997, revealed mild disk bulging at multiple lumbar levels 10 with no evidence of spinal stenosis or disk herniation (Tr. 673). After reviewing the MRI, 11 Dr. Kurt Shroeder concluded that an area of heterogeneous hypertrophied fat existed, but 12 little else. (Tr. 675). Dr. Shroeder recommended follow-up visits as need. (Tr. 675). Dr. 13 Shroeder also reassured Plaintiff that he did not think she would need surgery. (Tr. 675). Medical Background 14 Plaintiff received treatment from Sun Life Family Health Center beginning July 2000, 15 primarily for medication refills. (Tr.189-201 ). Her medical history included hypertension, 16 allergies, chronic lumbosacral strain, and menopause. (Tr. 200). And her physician 17 prescribed a relatively low dose of a muscle relaxant. (Tr. 200-01). 18 On December 16, 2002, Dr. Thrasher examined Plaintiff at the request of the 19 Disability Determination Service. (Tr. 203-07). After performing a physical examination 20 and reviewing Plaintiff’s medical records, Dr. Thrasher assessed mild to moderate 21 osteoarthritis of the right knee; right hip pain caused by mild degenerative change; mild 22 degenerative spondylosis; left shoulder girdle pain without significant range of motion loss 23 and without evidence of an impingement; hypertension; history of emphysema; and 24 fibrocystic breast disease. (Tr. 207). Dr. Thrasher opined that Plaintiff could lift and carry 25 50 pounds occasionally and 20 pounds frequently; could sit for six hours during an eight- 26 hour day; and stand and/or walk for less than two hours during an eight-hour day. (Tr. 209- 27 10). 28 -2- 1 Also in December 2002, x-rays revealed degenerative changes in Plaintiff’s hands, 2 right knee, lumbar spine, and cervical spine. (Tr. 261-62, 290-307, 308-12). On September 3 18, 2003, cervical spine x-rays showed severe degenerative disc disease at C5-C6. (Tr. 876). 4 In January of 2003, Dr. Kattapong, a non-examining state-agency physician, assessed 5 Plaintiff’s ability to perform certain tasks. Dr. Kattapong opined that as of December 16, 6 2002, Plaintiff could sit for about six hours in an eight-hour workday and stand and/or walk 7 for at least two hours in an eight-hour workday and could lift fifty pounds occasionally and 8 twenty-five pounds frequently. (Tr. 211-12). Dr. Kattapong stated the there was insufficient 9 evidence to adjudicate Plaintiff’s disability benefits claim. (Tr. 218). In April of 2003, 10 another non-examining state-agency physician, Dr. Stagg, also stated there was insufficient 11 evidence upon which to determine Plaintiff’s condition as of her date last insured, March 31, 12 2002. (Tr. 186). 13 On May 28, 2003, Dr. Escobar examined Plaintiff and outlined her medical records 14 from August 1987 through March 1996. (Tr. 233-39). Dr. Escobar opined Plaintiff could 15 not sustain full-time work, even at the sedentary level of exertion. (Tr. 239-41). Plaintiff 16 could only sit for fifteen to thirty minutes at a time and for three to four hours total in a 17 workday; could stand ten to fifteen minutes at a time and for a total of two hours in a 18 workday; and could walk for twenty minutes at a time and for a total of one to two hours in 19 a workday. (Tr. 240). 20 In a letter dated November 14, 2003, Dr. Brower indicated he had been Plaintiff’s 21 treating physician from January 21, 1991 through April 17, 2002, at a variety of health 22 clinics. He opined that the functional limitations Dr. Escobar described in May 2003 applied 23 to the period from 1997 to 2002. 24 II. Standard of Review 25 A district court: 26 27 may set aside a denial of disability benefits only if it is not supported by substantial evidence or if it is based on legal error. Substantial evidence means more than a mere scintilla but less than a preponderance. Substantial evidence 28 -3- 1 is relevant evidence, which considering the record as a whole, a reasonable person might accept as adequate to support a conclusion. Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's decision must be upheld. 2 3 Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (internal citation and quotation 4 omitted). This is because "[t]he trier of fact and not the reviewing court must resolve 5 conflicts in the evidence, and if the evidence can support either outcome, the court may not 6 substitute its judgment for that of the ALJ." Matney v. Sullivan, 981 F.2d 1016, 1019 (9th 7 Cir. 1992). If further proceedings could remedy defects in the ALJ’s decision, the Court 8 should remand the claim to the Commissioner. McAllister v. Sullivan, 888 F.2d 599, 603 (9th 9 Cir. 1989). 10 III. Discussion 11 To qualify for disability benefits under the Social Security Act, a claimant must show, 12 among other things, that he is "under a disability." 42 U.S.C. §423(a)(1)(E). The Act defines 13 "disability" as the "inability to engage in any substantial gainful activity by reason of any 14 medically determinable physical or mental impairment which can be expected to result in 15 death or which has lasted or can be expected to last for a continuous period of not less than 16 12 months." 42 U.S.C. §423(d)(1)(A). A person is 17 18 19 20 under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.SC. §423(d)(2)(A). 21 The Social Security regulations set forth a five-step sequential process for evaluating 22 disability claims. 20 C.F.R. §404.1520; see also Reddick v. Chater, 157 F.3d 715, 721 (9th 23 Cir. 1998). A finding of "not disabled" at any step in the sequential process will end the 24 inquiry. 20 C.F.R. §404.1520(a)(4). The claimant bears the burden of proof at the first four 25 steps, but the burden shifts to the Commissioner at the final step. Reddick, 157 F.3d at 721. 26 The five steps are as follows: 27 28 1. First, the ALJ determines whether the claimant is "doing substantial gainful -4- 1 activity." 20 C.F.R. §404.1520(a)(4)(i). If so, the claimant is not disabled. 2 2. If the claimant is not gainfully employed, the ALJ next determines whether the 3 claimant has a "severe medically determinable physical or mental impairment." 20 C.F.R. 4 §404.1520(a)(4)(ii). To be considered severe, the impairment must "significantly limit[] [the 5 claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §404.1520(c). 6 Basic work activities are the “abilities and aptitudes to do most jobs,” for example: lifting; 7 carrying; reaching; understanding, carrying out and remembering simple instructions; 8 responding appropriately to co-workers; and dealing with changes in routine. 20 C.F.R. 9 §404.1521(b). Further, the impairment must either be expected "to result in death" or "to last 10 for a continuous period of twelve months." 20 C.F.R. §404.1509 (incorporated by reference 11 in 20 C.F.R. §404.1520(a)(4)(ii)). The “step-two inquiry is a de minimis screening device 12 to dispose of groundless claims.” Smolen v. Cater, 80 F.3d 1273, 1290 (9th Cir. 1996). If 13 the claimant does not have a severe impairment, the claimant is not disabled. 14 3. Having found a severe impairment, the ALJ next determines whether the 15 impairment "meets or equals" one of the impairments listed in the regulations. 20 C.F.R. 16 §404.1520(a)(4)(iii). If so, the claimant is found disabled without further inquiry. If not, 17 before proceeding to the next step, the ALJ will make a finding regarding the claimant's 18 "residual functional capacity based on all the relevant medical and other evidence in [the] 19 record." 20 C.F.R. §404.1520(e). A claimant's "residual functional capacity" is the most he 20 can do despite all his impairments, including those that are not severe, and any related 21 symptoms. 20 C.F.R. §404.1545(a)(1). 22 4. At step four, the ALJ determines whether, despite the impairments, the claimant 23 can still perform "past relevant work." 20 C.F.R. §404.1520(a)(4)(iv). To make this 24 determination, the ALJ compares its "residual functional capacity assessment . . . with the 25 physical and mental demands of [the claimant's] past relevant work." 26 §404.1520(f). If the claimant can still perform the kind of work he previously engaged in, 27 the claimant is not disabled. Otherwise, the ALJ proceeds to the final step. 28 -5- 20 C.F.R. 1 5. At the final step, the ALJ determines whether the claimant "can make an 2 adjustment to other work" that exists in the national economy. 20 C.F.R. §404.1520(a)(4)(v). 3 In making this determination, the ALJ considers the claimant's "residual functional capacity" 4 and his "age, education, and work experience." 20 C.F.R. §404.1520(g)(1). If the claimant 5 can perform other work, he is not disabled. If the claimant cannot perform other work, he 6 will be found disabled. As previously noted, the Commissioner has the burden of proving 7 the claimant can perform other work. Reddick, 157 F.3d at 721. 8 20 C.F.R. §404.1520. 9 In this case, the ALJ concluded at step two of the sequential process that Plaintiff was 10 not disabled. The ALJ found that as of her date last insured, March 31, 2002, Plaintiff did 11 not have a severe medically determinable physical or mental impairment. To be entitled to 12 disability benefits, a claimant must be disabled on or before the date his or her insured status 13 expires. Flaten v. Sec’y of Health and Human Srvs., 44 F.3d 1453, 1461-62 (9th Cir. 1995). 14 The ALJ therefore denied benefits. 15 On appeal, Plaintiff contends that the ALJ's ruling is not supported by substantial 16 evidence. Plaintiff claims the ALJ erred in failing to use a medical consultant and in failing 17 to give a date for the onset of disability. Plaintiff further challenges the ALJ's decision to 18 give only little probative value to the opinion of treating physician Dr. Bower. Plaintiff also 19 argues that the ALJ improperly discredited her subjective symptom testimony and the 20 testimony of third parties regarding her pain. 21 The ALJ found that Plaintiff had severe impairments and was limited to sedentary 22 work as of December 1, 2002. The ALJ further found that before March 31, 2002, Plaintiff 23 did not have any impairment or impairments that significantly limited her ability to perform 24 basic work-related activities. The ALJ did not give a disability onset date. Two state-agency 25 physicians stated that not enough evidence existed to determine the disability onset date. 26 Social Security Ruling 83-20 provides: 27 In some cases, it may be possible, based on the medical 28 -6- 1 evidence to reasonably infer that the onset of a disabling impairment(s) occurred some time prior to the date of the first recorded medical examination, e.g., the date the claimant stopped working. How long the disease may be determined to have existed at a disabling level of severity depends on an informed judgment of the facts in the particular case. This judgment, however, must have a legitimate medical basis. At the hearing, the [ALJ] should call on the services of a medical advisor when onset must be inferred. If there is information in the file indicating that additional medical evidence concerning onset is available, such evidence should be secured before inferences are made. 2 3 4 5 6 7 While Plaintiff has the burden of proving her disability, the ALJ has “a duty to assist 8 in developing the record.” Armstrong v. Comm’r of Soc. Sec., 160 F.3d 587, 589 (9th Cir. 9 1998). If the medical record does not contain definite evidence concerning the onset date and 10 the ALJ must make medical inferences, SSR 83-20 requires the ALJ to obtain the services 11 of a medical advisor and to obtain all available evidence before making the onset 12 determination. Id. at 590. If the date of onset is unclear, then the ALJ commits reversible 13 error by failing to call a medical expert. Id. at 589. (internal citation and quotation omitted). 14 The medical record here did not contain definite evidence from which to determine 15 the disability onset date. The record had reports and examinations close in time to, but after, 16 Plaintiff’s last insured date, however, did not have any pertinent medical evidence closely 17 preceding the last insured date.1 Consequently, the ALJ had to infer the disability onset date 18 when she found Plaintiff was not disabled before March 31, 2002. The ALJ therefore 19 committed reversible error when she failed to obtain the services of a medical advisor. 20 When an ALJ commits error, the Court has the discretion to remand for further 21 administrative proceedings or to remand for an award of benefits. Smolen v. Chater, 80 F.3d 22 1273, 1292 (9th Cir. 1996). Remand for further proceedings is appropriate “if enhancement 23 of the record would be useful.” Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir. 2004). If 24 additional proceedings could remedy defects in the original proceeding, then the case should 25 26 27 28 1 The last pertinent medical evidence before March 31, 2002 was from 1997. -7- 1 be remanded. McAllister, 888 F.2d at 603. 2 The Court finds that remand to the ALJ for further proceedings is appropriate in this 3 case. An enhancement of the record would be very useful, given the dearth of evidence 4 between November 1997 and December 2002. The ALJ based many of her findings on the 5 lack of objective evidence in the record. Development of the record would provide 6 significant guidance. On remand, the ALJ must have a medical advisor testify. 7 Also on remand, the ALJ shall reevaluate all the evidence and give specific reasons 8 for the weight given to physician statements, Plaintiff’s testimony, and lay witness 9 statements. The Commissioner argues that the Court should affirm all the ALJ’s findings and 10 just remand to obtain the opinion of a medical advisor. But it is at least possible that the 11 medical advisor’s opinion will change the ALJ’s findings regarding the physician statements, 12 the pain testimony, and the lay witness statements. The ALJ therefore should reevaluate all 13 the evidence after viewing it as a whole. 14 Accordingly, 15 IT IS HEREBY ORDERED Granting in part Plaintiff’s Motion for Summary 16 Judgment (Doc. #12). Plaintiff’s motion is Granted to the extent it requests a remand to the 17 ALJ for further proceedings and a reevaluation of all the evidence. It is Denied to the extent 18 Plaintiff requests a remand for an award of benefits. 19 IT IS FURTHER ORDERED Granting in part the Commissioner’s Motion for 20 Remand (Doc. #17). The Commissioner’s motion is Granted to the extent the Commissioner 21 seeks a remand for further proceedings, but is Denied to the extent the Commissioner 22 requests the Court to affirm the ALJ’s earlier findings. 23 DATED this 15th day of September, 2008. 24 25 26 27 28 -8-
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