Hill-Pilcher v. Commissioner, Social Security Administration, No. 3:2012cv01863 - Document 20 (D. Or. 2013)
Court Description: OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case 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. Signed on 12/03/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JANETTE HILL-PILCHER, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. D. JAMES TREE 3711 Englewood Avenue Yakima, Washington 98902 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 97204-2902 KATHY REIF Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900, M/S 221A Seattle, Washington 98104 Attorneys for Defendant 1 - OPINION AND ORDER 3:12-cv-01863-MA OPINION AND ORDER MARSH, Judge Plaintiff, Janette Hill-Pilcher, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act) and supplemental security benefits under Title XVI of the Act. 1381-1383f. 405 (g). income (SSI) See 42 U.S.C. disability §§ 401-434, This court has jurisdiction pursuant to 42 U.S.C. For the reasons set forth below, I § reverse the final decision of the Commissioner and remand for further proceedings consistent with this opinion. PROCEDURAL BACKGROUND Plaintiff protectively filed her applications for SSI and DIB on January 15, 2009, alleging disability due to a skating accident, ruptured tendons short term memory loss." in wrist, ~knee injury in depression, [and] Tr. 145. Her applications were denied initially and upon reconsideration. A hearing was held before an Administrative December Law Judge (ALJ) on 7, 2010, at which plaintiff was represented by counsel and testified. In addition, Donald Pilcher, the hearing. plaintiff's husband, Vocational .Expert (VE) testified at Paul Morrison was also present throughout the hearing and testified. On January 6, 2011, the ALJ issued a decision finding that plaintiff is. disabled within the meaning of the Act, but found that 2 ~ OPINION AND ORDER plaintiff's onset date of disability was July 8, 2010, well after plaintiff's alleged onset date, date last insured, and application After the Appeals Council declined review of the ALJ' s date. decision, plaintiff timely filed a complaint in this court. FACTUAL BACKGROUND Born on November 6, 1956, plaintiff was 50 years old on the alleged onset date of disability, and 54 years old on the date of Plaintiff has a high school equivalency and no past the hearing. relevant work. Plaintiff alleges her conditions became Tr. 151. disabling on January 1, 2007. In addition to her hearing testimony, plaintiff submitted two Adult Tr. Function Reports. 154-61, M.D., Marie Ho, 179-88. examined plaintiff and submitted an evaluative opinion with respect to physical plaintiff's performed Ph.D., Dougherty, submitted a report. several Marjorie opinions a Tr. 306-18. from Henderson, treatment M.D., Tr. conditions. psychological submitted an opinion J. Tr. M.Ed., submitted 385-86, an Tr. to Dianna 406-07. opinion concerning plaintiff's psychological conditions. 3 - OPINION AND ORDER relevant Tr. 383-84. submitted a · Psychiatric Evaluation. Clark, 2010, 8, July On providers. Kallis, ARNP, submitted two opinions. Christopher and evaluat.ion The record additionally contains plaintiff's physical and mental conditions. Vickers, ARNP, Roland 299-305. Lisa 387-91. primarily Tr. 229-35, 394- Robert Finally, 95. Greene, N. an submitted M.D., opinion Tr. 402-03. concerning plaintiff's hand and wrist impairments. THE ALJ'S DISABILITY ANALYSIS The Commissioner established has a sequential five-step Bowen v. process for determining whether a person is disabled. Yuckert, U.S. 482 137, is Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to Cir. 1999). that step Each The claimant bears the burden of proof at potentially dispositive. show §§ C.F.R. 20 416.920(a) (4) (i)-(v). 404.1520(a) (4) (i)-(v), Steps One through Four. (1987); 140-42 a significant number of jobs exist economy that the claimant can perform. in the See Yuckert, national 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that plaintiff has not engaged in substantial January 1, 2007. gainful activity See 20 C.F.R. since §§ the alleged onset 404.1571 et seq., date, 416.971 et seq. ; Tr. 17. At Step Two, the ALJ determined that since the alleged onset date of January 1, 2007, plaintiff's left knee injury, post right wrist fracture, and right thumb extensor pollicis longus rupture were severe impairments. Beginning July 8, 2010, the ALJ found that plaintiff's left knee arthritis, depression, anxiety disorder, and avoidant personality traits are severe impairments as well. See 20 C.F.R. §§ 404.1520(c), 416.920(c); Tr. 17-19. 4 - OPINION AND ORDER At Step Three, the ALJ determined that plaintiff does not have an impairment or combination of impairments that meet or medically See impairment. listed any equal 20 C.F.R. 404.1520(d), §§ 404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 19-20. The ALJ found that prior to July 8, 2010, plaintiff had the (RFC) residual functional capacity frequently climb ramps and stairs, to perform light work; could balance, ropes, stoop, crouch, and could not or scaffolds; crawl; could not climb ladders, kneel; had to avoid concentrated exposure to hazards; and could perform requiring tasks multistep no more than interaction with the general public and coworkers. of July 8, 2010, however, superficial Tr. 20-25. As the ALJ further limited plaintiff to sedentary work and unskilled, multistep tasks requiring no more than superficial interaction with the general public and coworkers. Tr. 25-26. At Step relevant work. Four, the found ALJ See 20 C.F.R. At Step Five, however, §§ that plaintiff has no past 404.1565, 416.965; Tr. 26. the ALJ found that prior to July 8, 2010, jobs existed in significant numbers in the national economy that plaintiff could perform, including Small Products Assembler, and Paper Sorter and Recycler. Beginning July 8, 2010, however, the ALJ found that there were no jobs plaintiff could perform. 20 C.F.R. §§ See 404.1569, 404.1569(a), 416.969, 416.969(a); Tr. 26-27. 5 - OPINION AND ORDER Accordingly, the ALJ found that plaintiff was not disabled within the meaning of the Act before July 8, 2010, but became disabled beginning on that date. ISSUES ON REVIEW First, Plaintiff raises three primary arguments on appeal. argues plaintiff that ALJ the improperly impairments at Step Two before July 8, excluded her mental Second, plaintiff 2010. Third, argues that the ALJ improperly rejected her testimony. plaintiff argues that the ALJ erroneously found that her onset date of disability was July 8, 2010. STANDARD OF REVIEW The affirm the Commissioner's court must if decision the Commissioner applied proper legal standards and the findings are 42 U.S.C. supported tiy substantial evidence in the record. 405(g); Andrews v. 53 F.3d 1035, 1039 Shalala, (9th Cir. § 1995). "Substantial evidence means 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." court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). to more than one rational decision must be upheld. supports The or Martinez v. Heckler, If the evidence is susceptible interpretation, Andrews, it Id. the Commissioner's 53 F. 3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner 6 - OPINION AND ORDER must be affirmed; "the court may not substitute its judgment for Edlund v. that of the Commissioner ." Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. Step Two Plaintiff first argues that the ALJ erroneously failed to list her mental impairments as severe impairments before July 8, 2010 at Step Two of the sequential analysis. The claimant bears the burden of proving that she has a severe medically determinable impairment at Step Two. 1996). See Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. Step Two is a de minimis screening device designed to dispose of groundless claims. Id. at 1290. Once the ALJ has found an impairment medically determinable it must be considered in the rest of the sequential evaluation. See 20 C.F.R. 416.945(a) (2). Where the ALJ fails to list a medically determinable impairment at Step Two, but nonetheless considers the limitations posed by the impairment in the RFC, any error at Step Two is harmless. Astrue, 498 F.3d 909, I 911 (9th Cir. 2007). with plaintiff agree Lewis v. that the ALJ erred include plaintiff's mental impairments, in failing to including depression and anxiety disorder, at Step Two for the period before July 8, 2010. Nonetheless, I conclude this error was harmless because the ALJ accounted for plaintiff's mental impairments in the pre-2010 RFC. As the ALJ discussed in his decision, there is evidence plaintiff 7 - OPINION AND ORDER was being treated for depression as early as May 31, 2007, with the first mental illness-related assessment being dated January 29, 2008, and subsequent treatment reflecting the diagnosis. records and evaluative opinions Tr. 18-19, 234, 278. This is sufficient to pass Step Two's de minimis screening device. See Smolen, 80 The error was harmless, however, because the ALJ F.3d at 1290. included limitations in the pre-2010 RFC to accommodate plaintiff's mental limitations. tasks Tr. requiring no more 20-21 than public and coworkers), Tr. evidence to with respect (limiting plaintiff to multistep superficial 18-19, 24-25 interaction with the (discussing the medical plaintiff's mental impairments); See Lewis, 498 F.3d at 911. II. Plaintiff's Credibility Plaintiff next argues that the ALJ erred in discrediting her testimony as to the period of alleged disability before July 8, 2010. In deciding whether to accept subjective symptom testimony, an ALJ must perform two stages of analysis. 20 C.F.R. § 404.1529. First, the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. a finding of Smolen, 80 F.3d at 1281-82. malingering, testimony about the ALJ can reject Second, absent the claimant's the severity of her symptoms only by offering specific, clear, and convincing reasons for doing so. 8 - OPINION AND ORDER Id. at 1281. If an ALJ finds that the claimant's testimony regarding her subjective symptoms is unreliable, the "ALJ must make a credibility the why reasons testimony the is determination citing unpersuasive ." Morgan v. Comm'r Soc. Sec, Admin., 169 F.3d 595, 599 (9th Cir. In doing so, 1999). the ALJ must identify what testimony is credible and what testimony undermines the claimant's complaints, and make "findings sufficiently. specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the) Thomas v. Barnhart, 278 F.3d 947, 958 (9th claimant's testimony." Cir. The 2002). ALJ may upon rely in weighing credibility evaluation ordinary techniques the claimant's of credibility. Tommasetti v. Astrue, 533 F. 3d 1035, 1039 (9th Cir. 2008). At the December 7, 2010 hearing, plaintiff testified that a fall while roller skating in 2008 resulted in a fractured right wrist and ruptured tendon in her thumb, and that she could only lift "under two pounds without feeling weakness.n addition, Tr. 43. In plaintiff reported that she has left knee impairments and prevent her from walking more than a block that cause pain, without weakness, from being on her feet more than two-and-a-ha lf hours in an eight hour day, minutes at a time. forced to leave and only being able to stand for 15 Tr. 45-46. her prior job Plaintiff testified that she was as a cashier because she had difficulty remembering register codes and suffered from anxiety and panic attacks. Tr. 46-47. 9 - OPINION AND ORDER As to her daily activities, plaintiff testified that she wakes up and drinks coffee, waits for her medication to kick in, and does household chores with her husband's help. Tr. Plaintiff 48. testified that she can drive and goes to the store, but does not like to go out by herself. 49. Tr. Plaintiff reported that she sleeps "okay," but that she tosses and turns throughout the night Tr. and has "very low to moderate" energy levels during the day. 49. she occasionally has Plaintiff testified that and that she will voices or music when going to bed. feelings of sometimes hear faint Tr. 50. guilt or worthlessnes s, In her first Adult dated March 13, Function Report, plaintiff reported that in a typical day she wakes up, restroom, drinks dressing, takes ¢a few cups" her daughter to of coffee school, before 2009, uses the showering and watches television and plays computer games, has an afternoon snack and picks her daughter up from school, makes dinner, bed. Tr. 154. does household chores, and goes to Plaintiff reported that her knee and wrist pain wakes her up at night. Tr. 155. As to cooking, plaintiff reported that she prepares meals for her daughter, but sometimes skips meals herself and needs help opening jars and some packages. Tr. 156. Plaintiff reported that she is able to perform light housework, such as dishes, mopping, dusting, and laundry, but cannot do yard work and needs help with items over 15 or 20 pounds. 10 - OPINION AND ORDER Id. Plaintiff reported that shopping or other reasons, she of can go out the for house but that she finds it uncomfortable Plaintiff listed her Tr. 157. because she does not like crowds. hobbies as watching television, playing computer games, and reading books, but noted that she does "too much of these activities now.n Tr. 158. Plaintiff noted that she has problems getting along with friends and family because "they seem too judgmental. n Tr. 159. Plaintiff checked that her conditions affect her abilities to lift, squat, stand, walk, concentrate, understand, along with others. Id. kneel, stairs, climb remember, follow instructions, use hands, and get Plaintiff reported that she can only walk "a few blocksn before needing 15 to 30 minutes of rest. As to following instructions, plaintiff noted that she follows written instructions better than spoken instructions, although she usually Plaintiff reported Id. has to read instructions more than twice. difficulty getting along with authority figures because she is · intimidated by them and feels they are judgmental. Tr. 160. Plaintiff reported that she can lift 10 to 20 pounds with her injured right hand, but that it has limited range of motion and weakness in grasping and gripping. Tr. 161. Function Report completed September 4, In her second Adult 2009, plaintiff reported substantially similar activities and limitations. The ALJ rejected plaintiff's claimed a testimony to disabling condition before July 8, 11 - OPINION AND ORDER Tr. 179-88. the extent she 2010 because her activities of daily living were inconsistent with her allegations, plaintiff's allegations were inconsistent with the medical record, and plaintiff demonstrated a poor work history. these reasons, I conclude that constitute clear and convincing taken together, reasons to reject plaintiff's allegations of disabling conditions before July 8, 2010. ALJ The properly cited inconsistency between plaintiff's activities and her alleged limitations as a reason to discredit her testimony. Most notably, plaintiff's report of roller skating in January of 2008 is manifestly inconsistent with her allegation of a disabling knee condition stemming from an injury in March of 2007. See, e.g., Tr. 45-46, 154-61, 219, 267, 299-300. In addition, the ALJ also reasonably found plaintiff's testimony that she plays computer games, prepares meals, and performs household chores on a daily basis to be inconsistent with her report of extensive dominant right hand and wrist limitations to the point of having trouble lifting more than two pounds or holding a coffee cup. ~. Tr. 43-44, 154, 158. Even more convincing is the ALJ's citation of inconsistency between plaintiff's allegations and the medical record. The ALJ specifically reasoned that contrary to plaintiff's allegations of ongoing, severe impairments, plaintiff's conditions had improved or stabilized with treatment. 12·- OPINION AND ORDER Plaintiff's allegations of serious, ongoing hand and wrist limitations stemming from her January, 2008 injury is belied by a medical record that demonstrates that plaintiff's hand and wrist were largely healed by May of that year. On January 3, 2008, plaintiff presented to the emergency room with wrist pain and swelling secondary to an injury suffered while roller skating the night before. Tr. 219. An x-ray taken that day revealed a "mild Tr. 226. acute impaction fracture" of the "distal radius." days later, Dr. Greene ordered "[c]onservative fracture care." 265. Four Tr. The next week, plaintiff reported that she was "doing well" and that her wrist was "not really irritating her." Tr. 263. On January 28, Dr. Greene found "excellent healing of the minimally displaced distal radius," and removed her cast. however, Two weeks later, Dr. Tr. 262. Greene found that the wrist fracture had healed, but plaintiff now complained of the inability Tr. 261. to extend her thumb. Dr. Greene noted that "[w]hen we look at the tendons in the snuffbox, one does not appreciate the extensor pollicis longus," and accordingly referred plaintiff to John J. Hwang, M.D., Id. for treatment of a pollicis longus rupture. On February 29, 2008, Dr. Hwang performed a successful tendon transfer surgery. Tr. 250. By March 28, plaintiff began to demonstrate increased range of motion, and the next week she was able to become "more aggressive and regular with her exercises." Tr. 241. By April 8, 13 - OPINION AND ORDER 2008, plaintiff continued to make "small gains" with her thumb, reported only 3/10 pain, and demonstrated "nicely improved" wrist range of motion. Tr. 242. After missing some therapy appointments due to an unrelated surgery, plaintiff was "stiff with wrist range of motion as well as thumb motion." Tr. 242-43. By the end of April, however, plaintiff had "recently upgraded" her exercise program, and by the second week of May, plaintiff was "advancing nicely" with respect to both her wrist and thumb. Tr. 243-44. On May 21, 2008, plaintiff reported only 2/10 pain, and at her final appointment with Dr. Hwang, the doctor noted plaintiff demonstrated full range of motion, relieved symptoms, and normal sensation. Tr. 256. The ALJ reasonably found, then, that plaintiff's allegations of significant, ongoing wrist problems were inconsistent with the medical record, which indicated plaintiff's improved dramatically by May of 2008. wrist injury had On September 17, 2009, after plaintiff complained to her doctor of right hand weakness, an x-ray revealed "no radiographic abnormality." Tr. 360-61. Thus, the ALJ reasonably rejected the extent of plaintiff's wrist allegations and properly relied on the note from Dr. Kennedy on September 23, 2009 that plaintiff could lift 20 pounds occasionally, lifting or carrying of up to 10 pounds. with frequent Tr. 20-22, 410. The ALJ also reasonably found that plaintiff's depression and anxiety were similarly controlled by treatment. The ALJ properly noted that while plaintiff was diagnosed with depression as early 14 - OPINION AND ORDER as May 31, 2007, with the first mental illness-related assessment dated January 29, 2008, her mental health worker, Christopher J. Clark, thought plaintiff's mental health was sufficiently stable to recommend that plaintiff simply "resume antidepressant medication Tr. 229-35, 278, 394-95. therapy with her primary care provider." Similarly, on October 1, depression plaintiff's Similarly, on July 27, 2009, was 2010, Dianna Kallis, stable Ms. found that ARNP, Tr. medication. on 477. Kallis noted that plaintiff's "symptoms of anxiety/depression [are] stable" on medication. Tr. The ALJ's finding that plaintiff's allegations of significant 385. mental impairments before July 8, 2010 was inconsistent with the The ALJ reasonably discredited medical record was reasonable. plaintiff's allegations of disabling limitations before July 8, 2010 because her complaints were inconsistent with evidence that medical treatment improved and stabilized plaintiff's conditions. Finally, the ALJ noted that plaintiff's testimony that her inability to work was caused by her medical conditions was undercut by fact the that plaintiff had never substantial maintained An ALJ may employment, suggesting she had low propensity to work. cite a claimant's poor work history as a reason to discredit testimony that medical conditions cause the claimant's inability to work. The See Thomas v. Barnhart, 278 F. 3d 947, 959 (9th Cir. 2002). ALJ's evidence. finding in this case is supported by substantial Indeed, plaintiff's earnings report indicates that she 15 - OPINION AND ORDER has had very minimal earnings in all but a few years since 1974. Tr. While, 137. this is not the primary as the ALJ indicated, reason to reject plaintiff's testimony, the ALJ reasonably cited it as one factor in discrediting plaintiff's allegations of disabling In sum, I conclude the ALJ cited clear and convincing conditions. reasons rejecting for plaintiff's testimony of disabling impairments before July 8, 2010. III. Onset Date of Disability Plaintiff finally argues that the ALJ erred in finding an onset date of disability of July 8, 2010. the ALJ should have because of each Plaintiff argues that found an earlier onset date of disability major three her categories of impairments plaintiff's wrist condition, knee condition, and mental conditions - began affecting her before July 8, 2010. In addition, plaintiff maintains the ALJ erred in failing to call a medical expert at the hearing to assist in determining the onset date. The ALJ's determination of the onset date of disability must be supported by substantial evidence. Human Servs., 763 F.2d 1061, 1064-66 Swanson v. Sec'y Health & (9th Cir. 1985); Whaley v. Colvin, No. CV 12-04888 SS, 2013 WL 1855840, at *10 (C.D. Cal. Apr. 30, 2013). disability, "[W]here a record is ambiguous as to the onset date of the ALJ must determining the onset date." 16 - OPINION AND ORDER call a medical expert to assist in Armstrong v. Comm' r Soc. Sec. Admin., (relying on SSR 83-20, available 160 F. 3d 587, 590 (9th Cir. 1998) at 1983 WL 31249). As discussed above, both plaintiff's knee and wrist injuries For many of the same reasons can be traced to discrete injuries. cited above, however, the ALJ's finding that those injuries did not render plaintiff disabled as those of is dates supported by There is ample evidence in the record that substantial evidence. plaintiff recovered from both injuries relatively shortly after she suffered the injuries. See, Tr. e.g., 219 (plaintiff roller skating within nine months after her knee injury), 244 (plaintiff's wrist and thumb pain reported at a 2 out of 10 five months after the injury), 256 (plaintiff's thumb symptoms relieved, with full range of motion and normal sensation, With respect to plaintiff's mental five months after injury). conditions, while there is evidence that plaintiff was being treated for depression beginning sometime before determination 31, May that 2007, as plaintiff's discussed mental above, impairments the were ALJ's not disabling as of that time, or at the time of the first depressionrelated assessment in January of 2008, was supported by substantial evidence. The ALJ's disability finding, subsequent developments. then, must have been based on The ALJ appears to have relied on the evaluation of Marjorie L. Henderson, M.D., dated July 8, 2010, in finding that plaintiff became disabled on that date. 17 - OPINION AND ORDER Tr. 383-84. Dr. Henderson's evaluation, however, does not clarify the ambiguity in the record as to when plaintiff's conditions became disabling because neither Dr. medical record, Henderson's evaluation, nor the accompanying contain any clear indication that there was any material worsening of plaintiff's conditions closely associated with that date. Thus, because the record was ambiguous as to the onset date of disability once the ALJ properly rejected disability as of the dates of plaintiff's injuries, the ALJ was required to "call a medical expert to assist in determining the onset date." Armstrong, 160 F.3d at 590. IV. Remand After finding the ALJ erred, remand for benefits. further proceedings Harman v. Apfel, this court has discretion to or for payment immediate 211 F. 3d 1172, 1178 of (9th Cir. 2000). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate where there is no useful purpose to be served by further proceedings or where the record is fully developed. In this case, further proceedings are necessary for the ALJ to obtain the testimony of a medical expert determining the onset date of disability. for the Thus, purpose of case is this remanded for further proceedings consistent with this opinion. Ill Ill 18 - OPINION AND ORDER CONCLUSION Based on the foregoing, the Commissioner's decision is REVERSED, and this case 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 3 day of December, 2013. Malcolm F. Marsh United States District Judge 19 - OPINION AND ORDER
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