Schiller v. Commissioner of Social Security Administration, No. 1:2012cv00771 - Document 25 (D. Or. 2013)

Court Description: Opinion and Order: The Commissioner's decision is Reversed and Remanded for further proceedings consistent with this opinion. Signed on July 23, 2013 by Chief Judge Ann L. Aiken. (cp)

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Schiller v. Commissioner of Social Security Administration Doc. 25 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON MARK STEVEN SCHILLER, Plaintiff, Case No. 1:12-cv-00771-AA OPINION AND ORDER vs. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. Tim Wilborn Wilborn Law Offices, P.C. P.O. Box 370578 Las Vegas, Nevada 89137 Attorney for plaintiff S. Amanda Marshall United States Attorney Adrian L. Brown Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204 Jeffrey R. McClain Office of General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104 Attorneys for defendant PAGE 1 - OPINION AND ORDER Dockets.Justia.com AIKEN, Chief Judge: Plaintiff Mark Schiller brings this action pursuant to the Social Security Act ("Act") to obtain judicial review of a final decision of the Commissioner denying his application for Title XVI supplemental security income ("SSI") benefits. For the reasons set forth below, the Commissioner's decision is reversed and this case is remanded for further proceedings. PROCEDURAL BACKGROUND On September application for SSI. 24, 2008, plaintiff Tr. 162-65. protectively filed an After the application was denied initially and upon reconsideration, plaintiff timely requested a hearing before an administrative law judge ("ALJ"). Tr. 40-43. On August 3, 2010, an ALJ hearing was held before the Honorable John J. Madden; therein, as plaintiff was did a represented by counsel vocational expert ( "VE") . Tr. and testified 47-109. On September 20, 2010, ALJ Madden issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 18-27. After the Appeals Council declined to review the ALJ's decision, plaintiff filed a complaint in this Court. Tr. 1-6. STATEMENT OF THE FACTS Born on February 3, 1960, plaintiff was 48 years old on the alleged onset date of disability 1 and 50 years old at the time of 1 Plaintiff initially alleged an onset date of September 1, 1999. Tr. 162. Because the earliest an SSI claimant can obtain benefits is the month after which he filed his application, at the hearing plaintiff amended his alleged onset date to September 24, 2008, the protective filing date. Tr. 52-53; see also 20 C.F.R. § 416.335. PAGE 2 - OPINION AND ORDER the hearing. Tr. 26, 162. Plaintiff dropped out of high school in 177. He previously worked as an iron worker and construction laborer. Tr. the eleventh grade but 174. later earned a GED. Tr. 26, Plaintiff alleges disability beginning September 24, 2008 due primarily to a bipolar disorder, as well as neck and knee pain. Tr. 70, 76, 78, 173. STANDARD 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. 498, 501 (9th Cir. mere scintilla. Hammock v. Bowen, Substantial evidence is "more than a 1989). 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) N.L.R.B., 879 F.2d 305 U.S. 197, 229 (1938)). Richardson (quoting Consol. Edison Co. v. 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. 198 6) . The initial burden establish disability. Cir. 1986). of proof rests upon the claimant to Howard v. Heckler, 782 F.2d 1484, 1486 (9th 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 . than 12 months." The . to last for a continuous period of not less 42 U.S.C. Commissioner has PAGE 3 - OPINION AND ORDER § 423 (d) (1) (A). established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. Commissioner determines whether "substantial gainful activity." C.F.R. § 416.920(b). a § 416.920. claimant Yuckert, Bowen v. 482 is First, the engaged U.S. in at 20 140; If so, the claimant is not disabled. At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. 416.920(c). § If not, the claimant is not disabled. At step three, the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." C.F.R. § 416.920(d). Yuckert, 482 U.S. at 140-41; 20 If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. At step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. If the claimant can work, he is not disabled. § 416.920(e). If he 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 that exists in the national economy. at 141-42; 20 C.F.R. § 416.920(e) & (f). Yuckert, 482 U.S. If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 416.966. THE ALJ'S FINDINGS At step one of the five step sequential evaluation process PAGE 4 - OPINION AND ORDER outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. At step two, impairment the ALJ determined that plaintiff had the severe of "mild degenerative spine." At step three, disc the disease of found that ALJ impairment did not meet or equal the impairment. Tr. 20. requirements the cervical plaintiff's of a listed Tr. 21. Because plaintiff did not establish disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected his ability to work. The ALJ determined that plaintiff had the residual functional capacity ("RFC") to perform the full range of light work. At Id. step four, relevant work. the Tr. 26. ALJ found that plaintiff had no past Finally, at step five, the ALJ determined, based on the VE's testimony, that a significant number of jobs existed in the local and national economy that plaintiff could perform despite his impairments, such as leather products decorator, small products assembler II, and electrical accessories assembler. Tr. 26-27. Accordingly, the ALJ concluded plaintiff was not disabled within the meaning of the Act. that Tr. 27. DISCUSSION Plaintiff alleges that the ALJ erred by: severe mental limitations at step two; the medical evidence; ( 3) (2) ( 1) not finding improperly evaluating rejecting the lay testimony; and ( 4) failing to include all of his limitations in the RFC, such that the VE's testimony and step finding were invalid. PAGE 5 - OPINION AND ORDER I. Step Two Finding Plaintiff first asserts that the ALJ erred by failing to find his mental impairments, including a bipolar disorder, step two of the five-step sequential process. Br. 10. Plaintiff contends assessed by Robin Rose, Shields, Ph. D., workplace. that M.D., these See Pl.'s Opening mental Frank Calistro, severely limit his severe at impairments, Ed.D., ability to as and Thomas function in the Id. at 10-12. At step two, the ALJ determines whether the claimant has a medically severe impairment or combination of impairments; step two findings must 416.920(a), be based 416.920a. upon medical evidence. 20 C.F.R. §§ An impairment is "not severe" if it "does not significantly limit [the claimant's] ability to do basic work activities." "threshold 20 C.F.R. inquiry." "[o] missions at § 416.921(a). Yuckert, step two are 482 The step two inquiry is a U.S. harmless at 153. if the ALJ' s As such, subsequent evaluation considered the effect of the impairment omitted at step two." Harrison v. Astrue, 2011 WL 2619504, *7 (D.Or. July 1, 2011) (citing Lewis v. Astrue, 498 F. 3d 909, 911 (9th Cir. 2007)). The "effect of this harmless error doctrine is tempered by additional requirements," however, disability due to mental impairments. when Id. a whether [Psychiatric Review in the decision," which entails: an impairment"; applicant has a medically asserts In that case, the ALJ is required to "document application of the Technique] claimant ( 1) "determin [ing] determinable mental (2) "rat[ing] the degree of functional limitation for PAGE 6 - OPINION AND ORDER four functional areas"; and (3) "determin[ing] the severity of the mental impairment limitation). (in part based on the degree of functional Keyser v. Cornrn'r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011) (citation and internal quotations omitted)); see also Dykstra v. Barnhart, 94 Fed.App. 449, 450 (9th Cir. 2004); 20 C. F.R. 416. 920a. § Accordingly, the ALJ' s written opinion must "incorporate the pertinent findings and conclusions based on the technique" and "include a specific finding as to the degree of limitation in each of the functional areas." Keyser, 648 F.3d at 725 (citations and internal quotations omitted). analysis, the ALJ "must [also] show the Pursuant to this significant history, including examination and laboratory findings, and the functional limitations that were considered in reaching a conclusion about the severity of the mental impairment(s) ." 20 C.F.R. § 416.920a(e). Failure to document the application of the technique in the opinion "requires of a mental if the plaintiff had a 'colorable claim impairment.'" Dykstra, 94 Fed. App. at 4 50 (citing Gutierrez v. Apfel, 199 F.3d 1048, 1051 (9th Cir. 2000)); see also Keyser, 648 F.3d at 726. 'wholly insubstantial, A colorable claim "is one which is not immaterial, or frivolous.'" Dykstra, 94 Fed.App. at 450 (quoting McBride Cotton & Cattle Corp. v. Veneman, 290 F.3d 973, 981 (9th Cir. 2002) ); see also Keyser, 648 F.3d at 726-27. Here, the Specifically, ALJ the did ALJ not failed follow to the discuss proper the procedure. examination, laboratory findings, and alleged functional limitations that were PAGE 7 - OPINION AND ORDER considered in reaching his conclusion that plaintiff's alleged mental impairments resulted in no more than "mild" limitations and therefore were non-severe. State psychiatric constituted check Rather, the ALJ merely reiterated the medical marks consultant's on the PRTF, conclusions, without analyzing any of the other evidence of record. 285-97). which discussing or Tr. 21 (citing Tr. As such, in evaluating step two, the ALJ ignored, without explanation, the determinations of plaintiff's examining doctors, 2 as well as the testimony of plaintiff and his lay witnesses, favor of a cursory report prepared by a consulting source. 20-21. This is inadequate for the purposes of 20 in See Tr. C. F. R. § 416.920a, especially in light of the fact that the record before the ALJ included additional evidence regarding plaintiff's mental impairments that emerged after the PRTF was completed. See Warren v. Astrue, 2012 WL 864543, (reversing *4-7 (D.Or. Mar. 13, 2012) the ALJ's step two finding under analogous circumstances) (citing Keyser, 648 F.3d at 726). Further, pursuant to this analysis, the ALJ mis-characterized the record. For instance, the ALJ stated that "no treating or examining source has observed any clinical evidence in support of 2 Outside of the State agency consulting sources, the only medical evidence pertaining to plaintiff's mental impairments is from examining sources. This is because plaintiff was incarcerated from 2000 through 2008, during which time the treating mental health records that preceded his incarceration were purged. Tr. 275. Furthermore, plaintiff's prison records do not contain any "mental health information" and he has been unable to receive regular mental health treatment after being released due to a lack of resources and/or health insurance. Tr. 276-77, 72-75. PAGE 8 - OPINION AND ORDER bipolar disorder or any other mental impairment." record, however, reveals the contrary. Tr. 23-24. Plaintiff's The examining medical sources have repeatedly diagnosed him with a bipolar and/or other mental disorders based on their observations and objective medical evaluations. Tr. 8-12 (Dr. Alvord), 278-83 (Dr. Shields), 310-18 (Dr. Rose), 320-29 (Dr. Calistro). consistently endorsed mental symptoms In addition, plaintiff that would limit his ability to function in the workplace. significantly See, e.g., Tr. 279 (describing oscillating between being "markedly agitated with angry outbursts" and "depressed and [unable to] get out of bed"), 311 (reporting his cyclical "mania," during which he self-isolates, "say[s] stuff which is mean," and cannot remember or control some of his actions) ; see also Tr. 7 0-7 2, 7 6-7 7 (hearing testimony regarding his mood lability, crying spells, delusions, etc.). Based on plaintiff's statements, as well as their own clinical observations sources and opined objective that he examinations, experienced a plaintiff's wide-range restrictions associated with his mental impairments. 278-83, Cruz, 310-18, Edward 320-29. King, of Schiller, Jr. are concrete See Tr. 8-12, The third-party statements and Mark treating from Misty congruous with plaintiff's testimony and the reports of Drs. Rose, Shields, and Calistro. properly Tr. 89-100, discredited 193-200. Therefore, even plaintiff's testimony, the if the ALJ third-party statements, and the medical evidence, his summation of plaintiff's mental state was nonetheless an inaccurate representation of the record. PAGE 9 - OPINION AND ORDER Evidence submitted to the Appeals Council after the ALJ rendered his decision further indicates that plaintiff's bipolar disorder limits his ability to function in the workplace. On November 24, 2011, Scott Alvord, Psy.D., performed a psychological evaluation on plaintiff; report. the ALJ did not weigh or assess See Tr. 1-12, 18-31. this Based on clinical observations, a comprehensive medical and mental history, and a mental status exam, Dr. Alvord diagnosed plaintiff with a anxiety disorder, score of 40-45. with a Id. bipolar disorder and an Global Assessment Functioning ( "GAF") Dr. Alvord concluded that "I do not believe Mr. Schiller will function in an occupational setting." Tr. 12. Dr. Alvord's assessment is largely consistent with those of Drs. Calistro, Rose, and Schields. Compare Tr. 8-12, with Tr. 278-83, 310-18, 320-29. Thus, the evidence of record, including plaintiff's testimony, the third-party reveals that statements, plaintiff and suffered plaintiff's from a medical bipolar records, disorder and corresponding functional limitations. In other words, the ALJ's step two finding not based on substantial evidence. to the contrary was Regardless, concluded that even assuming plaintiff's mental that impairments the ALJ were properly non-severe, there is no indiction that the ALJ "considered the effect of the impairment omitted at step two" when formulating plaintiff's RFC. Harrison, 2011 WL 2619504 at *7. that plaintiff's allegedly The Court acknowledges, however, disabling condition is especially difficult to evaluate in the case at bar due to the cyclical nature PAGE 10 - OPINION AND ORDER of his disorder and his medical records from period of his incarceration, treating sources during which were purged. Nevertheless, rather than merely ignoring plaintiff's evidence of a bipolar disorder and its impact on his ability to work, the ALJ should have developed the record more fully and fairly by obtaining testimony from a medical expert. In sum, the ALJ's failure to follow 20 C.F.R. § 416.920a was not harmless because plaintiff demonstrated a colorable claim of mental impairment. See Keyser, 648 F.3d at 726-27 (colorable claim of mental impairment existed where claimant had a GAF score of 55 to 65 and third-party statements indicated that the claimant's mental impairments adversely impacted her ability to employment); see also Warren, 2012 WL 864543 at *4-7. maintain The ALJ's failure to properly analyze plaintiff's mental impairments at step two may have also resulted in errors at subsequent steps of the disability analysis. See 20 C.F.R. evaluation process). For instance, the ALJ utilized plaintiff's § 416.920 (listing five-step subjective reports regarding these impairments, in part, as a means of discrediting his testimony and the medical opinion evidence. Tr. 22-25. Accordingly, this Court declines to address plaintiff's other allegations of error, as they primarily relate to how the ALJ's failure to consider his mental impairments at step two adversely effected the RFC determination and step five of the sequential process. mental Therefore, on remand, the ALJ must evaluate plaintiff's impairment using the procedures PAGE 11 - OPINION AND ORDER set out at 20 C. F. R. § 416.920a and perform the subsequent steps of the analytical process in light of this new evaluation, including obtaining testimony from a medical expert. See Keyser, 64 8 F. 3d at 7 2 6-2 7 (remand for further proceedings is the appropriate remedy where the ALJ fails to adequately assess a colorable claim of mental impairment at step two). CONCLUSION The Commissioner's decision is REVERSED and further proceedings consistent with this opinion. IT IS SO Dated this of July 2013. AilnAlkeil United States District Judge PAGE 12 - OPINION AND ORDER REMANDED for

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