Caldwell v. Commissioner, Social Security Administration, No. 6:2010cv00250 - Document 25 (D. Or. 2011)

Court Description: Order and Opinion. Commissioner's decision is reversed and remanded for further development of the record. Signed on 04/04/2011 by Chief Judge Ann L. Aiken. (lg)

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Caldwell v. Commissioner, Social Security Administration Doc. 25 i~PR IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON Civil No. 10 250-AA OPINION AND ORDER JEFFREY L. CALDWELL, Plaintiff, vs. MICHAEL J. ASTRUE, Commiss r of Social Security, Defendant. Merrill Schneider Schneider Law Offices P.O. Box 14490 Portland, Oregon 97293 Attorney pIa iff Dwight C. Holton United States Attorney strict Oregon Adrian L. Brown Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, Oregon 97204 Jordan D. Goddard Special Assistant U.S. Attorney Assistant Regional Counsel Office of General Counsel Social Security Administration PAGE 1 - OPINION AND ORDER Dockets.Justia.com 701 fth Avenue, Suite 2900 MIS 221A Seattle, Washington 98104 At for defendant AIKEN, ef Judge: intiff, Jeff al Se dwell, s action pursuant to the s Y Act (the Act), 42 U.S.C. to obtain judic Commissioner. §§ 405 (g), 1383 (c) (3), I review of a final decision of the The Commissioner denied plaintiff's applications for Title II disability insurance benefits (DIB) and Title XVI supplemental security income (SSI) Act. sability benefits under For the reasons set forth below, the Commissioner's decision is reversed and remanded for further proceedings. PROCEDURAL BACKGROUND On December 15, 2005, pIa applications applicat both DIB and SSI. (ALJ). Tr. 10. After the were denied initially and upon reconsideration, plaintiff timely reque j iff protectively filed rd. a hea before an administrat On June 20, 2008, an ALJ hear fore the Honorable Joel T. Elliott. Tr. 10 17. law was held On 17, 2008, ALJ Elliott issued a decision finding plaintiff not di led within the meaning of the Act. Tr. 17. On December 11, 209, the Appeals Council declined to review the ALJ's Plaintiff then fi ed a complaint in this Court. ision. Tr. 1-4. STATEMENT OF THE FACTS Born in 1955, aintiff was 47 years old on the alleged onset date of disability and 53 years old on the date of the ALJ's decision. Tr. 22, 101, 167. PAGE 2 - OPINION AND ORDER Plaintiff attended high school through the ninth grade. Tr. 22. Pla iff has st relevant work experience as a kitchen helper, motel cleaner, cannery worker, 1 "odd jobs." cape laborer, janitor, and as a worker of Tr. 12-17. He al ges di lity beginning November 15, 2002, due to memory loss, headaches, arthritis, back pain, and depression. Tr. 13, 82 92, 105. STANDARD OF REVIEW This court must affirm the Secretary's based on sion if it is legal standards and the findings are support substantial evidence in the record. 498, 501 (9th Cir. 1989). mere scintilla. mind mi by , 879 F.2d Substantial dence is "more than a It means such relevant evidence as a reasonab accept as adequate to support a conclusion." Richardsonv. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). court must weigh "both the evidence that supports and detracts from Secretary's conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The initial burden of proof rests upon the claimant to establish disability. (9th Cir. 1986). Howard v. Heckler, 782 F.2d 1484, 1486 To meet this burden, plaintif must strate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can expected . period of not less than 12 months. § 423 (d) (1) (A) • PAGE 3 OPINION AND ORDER to last for a continuous " 42 U.S.C. The Secretary s est lished a five-step sequential process for determining whether a person is disabled. 482 U.S. 137, 140 (1987); 20 C.F.R. Bowen v. Yuckert, 404.1502, 416. O. First the Secretary determines whether a claimant is engaged in "substantial gainful act disabled. §§ " If so, the claimant is not Yuckert, 482 u.S. at 140; 20 C.F.R. 404.1520(b), 416. O(b). In step two the Secretary determines whether the claimant has a "medically severe impairment or combination of irments." 482 u.s. at 140 41; see 20 C.F.R. 404.1520(c), 416.920(c). If not, the claimant is not disabled. In step three the Secretary determines whether the irment meets or equals "one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial inful activity." 404.1520(d), 416.920(d). Id.; see 20 C.F.R. If so, the claimant is conclusively presumed disabled; if not, the Secreta ~====~, proceeds to step four. 482 u.S. at 141. In step four the Secretary determines whether can still perform "past relevant work." §§ 404.1520(e), 416.920(e). sabled. If the 20 C.F.R. imant can work, she is not If she cannot perform past relevant work, shifts to the Secretary. cIa burden In step five, the Secretary must establish that the claimant can perform other work. u.S. at 141 42; see 20 C.F.R. PAGE 4 OPINION AND ORDER §§ 404.1520(e) & (f), 416.920(e) 482 & (f). If the Secretary meets this burden and proves that the claimant is able to perform other work which exists in the nati economy, she is not sabled. 20 C.F.R. §§ 404.1566, 416.966. DISCUSSION I. The ALJ's Findings ial evaluation process At step one of the five step s outlined above, t substantial gai 12, Finding 2. ALJ found that pIa inti f had not engaged in 1 activity s At st following severe the alleged onset date. two, the ALJ found that plaintiff had the disc disease in rments: mild degenerat the lumbar spine; major depress disorder, recurrent and mild; borderline intellectual functioning; and alcohol abuse. Finding 3. Tr. Tr. 12, At step three, the ALJ found that plaintiff's impairments, ei singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 13, Finding 4. The ALJ determined functional 5. plaintiff had the residual ty (RFC) to perform light work. Tr. 14, Finding Plaintiff was limited to "simple work, nothing complex, involving minimal interaction with public. n Tr. 14. At step four, the ALJ found that plaintiff was able to perform past re work as a motel cleaner and cannery worker. Finding 6. Accordingly, at step 5, the ALJ found that plaintiff was not disabled. PAGE 5 Tr. 16-17, Tr. 17, Finding 7. OPINION AND ORDER II. Plaintiff alleges that the ALJ erred in three : first, by denying his request for a physical consultive second, by fail to provide clear and conv finding his testimony not credible; and evaluating A. nation; reasons for rd, by rly rd-party statements. Plaintiff's Request for a Physical Consultive Exam Plaintiff contends the ALJ erred refus to request a physical consultive examination and by failing to re-contact his emergency room doctors for medical statements. pg. 6. whi Pl.'s Br. at Plaintiff argues that Dr. Richard Alley's report, in he stated that t "medical evidence of record is insufficient," triggered the ALJ's duty to fu record. r develop the Tr. 166. In Social Security cases, t develop t ALJ has a special duty to record fully and fairly and to ensure that the claimant's interests are considered, even when the cIa represented by counsel. 1150 (9th Cir. 2001). record is trigge Tonapetyan v. Halter, 242 F.3d 1144, However, an ALJ's duty to develop only when there is "amb when the record is insufficient to allow evidence. u is s evidence or proper evaluation of Mayes v. Massanari, 276 F.3d 453, 459-460 (9th Cir. 2001). When triggered, the ALJ may fulfill this duty to supplement record by order a consultive examination. Massanari, 270 F.3d 838, 841 (9th PAGE 6 - OPINION AND ORDER Reed v. r. 2001); see also 20 C.F.R. § 404.1519. Fu rts lack statements about , when medical what a claimant can do despite his impairments, the ALJ may supplement record by re-contacting the claimant's doctor for clarification. 20 C.F.R. § 416.912(e); 20 C.F.R. 416.913(b) (6); see also SSR 96-5p. duty is not triggered, it is a See 4 2 U. S . c. i s dis a b 1 e d . be considered to § Conversely, where the ALJ's aimant's duty to prove that he 4 2 3 (d) (5) under a disabili medical and other evi ( " An ind i v i d u a 1 s Secretary may require"); such unless he furni Reed, 270 F.3d at 841 ("the sability I In this case, plaintiff all s wi the cIa medical record is especially scarce a ") er 2004. Plaintiff's In a ical summary from January 18, 2006, Dr. Alley opined that cal record "appears to be in May 2003, and t At the hea that intiff's ficient from [the alleged earliest medical records were from latest medical records were from December 2004. , plaintiff explained that the reason for the lack of medical evidence was that he could not af treatment, and was unaware that free treatment may have been available. 38. As such, ing . r of physical s a aints that are not corroborated by the record. onset date]," not 11 not existence thereof as the of burden of demonstrating a § Tr. 31, aintiff's counsel twice requested during the the ALJ order a consultive examination. The ALJ's Tr. 21, 43. nion did not address Dr. A I ' s op regarding the insufficiency of the medical record. Further, the ALJ relied on plaintiff's lack of medical treatment as evidence PAGE 7 - OPINION AND ORDER that he was not disabled and denied pia consult iff's st for a examination without providing a reason for doing so. rdless, the Commissioner argues that the ALJ sufficiently loped the medical record. The ssioner, relying on Osenbrook, asserts that "in evaluat reports, the more recent medical s carry more probative weight." Def.'s Reply at pg. 12; see also Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2000). Because Dr. Jensen opined in August 2006, two months a ley, t er Dr. the Commissioner contends that t the re was sufficient, ALJ did not err. Tr. 196. However, Osenbrock only states that a "treating physician's most recent medical reports are highly probat 240 F.3d at 1165. treating physician; 196. "Osenbrock, In this case, Dr. Jensen was not merely. rformed a consult aintiff's exam. Tr. , Dr. Jensen's report seems to be based primarily on a mental evaluation, in which plaintiff self reported daily activities that reflected "being physically active." 176. Tr. 167 This was the only evidence reviewed by Dr. Jensen that was not available dur evi Dr. Alley's assessment. Moreover, the only that Dr. Jensen appears to have relied upon in writ her report are previous x-rays, which no bearing on whether plaintiff is impa red due to pain from arthritis and headaches. Tr. 196. Thus, I find 1 error in the ALJ's failure to order a physical consultive examination, or at least, to proffer an explanation as to why plaintiff's request for an exam was not PAGE 8 - OPINION AND ORDER grant Accordingly, ALJ's decision must revers B. Plaintiff al s that the ALJ failed to provide clear and convincing reasons for rejecting his testimony regarding the extent of his impairments. has medically documented PI.'s Br. at pg. 15. When a claimant irments that could reasonably ained of, expected to produce some degree of the symptoms and the record contains no affirmative evidence of malingering, "the ALJ reject [his] testimony regarding the severity of symptoms only if makes specific ndings stat clear convincing reasons for doing so." 1273, 1281 82 80 F.3d (9th Cir. 1996) (internal quotation omit ) . If the "ALJ's credibility finding is supported by substantial evidence in the record, we may not engage in second-guessing." ~~~~~==~~~, assertion that aintiff is not c must "state which evidence 278 F.3d 947 (9th Cir. 2002). Ie is insuffi A general ent; the ALJ . testimony is not credible and what sts the compla s are not credible." =======, 12 F.3d 915, 918 (9th Cir. 1993). Here, the ALJ determined that plaintiff's medically determinable impairments could reasonably be expected to produce. some degree of s oms, but that his statements regarding the extent of these symptoms were not credible. Tr. 12-16. ALJ gave five reasons explaining why plaintiff's testimony was rejected: his limited and sporadic work history; his lack of truthfulness regarding his alcohol abuse; his ceasing work for PAGE 9 - OPINION AND ORDER reasons ot living; than s impairments; his activit his conservat s of daily treatment. and routine Tr. 15-16. Notably, the ALJ found that plaintiff's testimony regarding his daily activities "suggest a level of functioning greater than what he has all "Tr. 16. inconsistent with all considerat Dai acti ties that are symptoms are a relevant credibility because they bear on plaintiff's abil tell the truth. y to 261 F.3d 853, 857 (9th Cir. 2001); see also Valentine v. Comm'r of Soc. Sec. Admin., 574 F. 685, 692 (9th Cir. 2009). Pl iff testified "is abl to complete household such as cooking, cleaning, washing dishes and laundry. publ transportation. mowing the lawn." [and] comp Tr. 15 16. $6000. aintiff admitted ty of 2006, ea Tr. 12, 26-29. Plaintiff stated that ceasing his employment in 2006 was not relat disabilities, but rather because his co-workers. Tr. 27-28. . use e yard work such as In addition, that he was employed for the maj s nearly reason to his alleged was unable to cooperate with Further, plaintiff continues to perform "odd jobs" for cash, namely work and cl cars. Tr. 12. The ALJ found that this evidence directly contradicted intiff's contentions about how debilitating his pain and other limitations were. Tr. 15. Accordingly, the ALJ found that these non-work activities reveal an abil PAGE 10 - OPINION AND ORDER y to rform"s le work" consistent with his past relevant work rience. Id. because plaintiff's level of activity is inconsistent ree of impairment that he alleges, the ALJ found testimony about the severi Thus, h the aintiff's of his limitations not credible. Id. The ALJ pointed to spe fic evidence in undermines plaintiff's claims that his that he was unable to work. Therefore, provided at least one clear record that irments were so great I find that the ALJ convincing reason to reject aintiff's subjective testimony rding the extent of his limitations, and as such, it is unnecessary for s Court to further discuss the other reasons provided. C. Plaintiff also a s that the ALJ erred by not gi "specific, germane, and valid reasons" rty statements. PI.'s Br. at pg. 10. contends that, because rejecting the third Plaintiff further ALJ failed to properly evaluate the lay testimony, appropriate limitations were not included in his RFC regarding his inability to concentrate and follow directions. PI.'s Br. at pg. 14. symptoms ~r Lay testimony regarding a claimant's .how an impairment affects lity to work "is competent evidence that an ALJ must take into account," unless the ALJ "expressly determined to disregard such testimony and gives reasons germane to each witness for doing so." ~===, 236 F.3d 503, 511 (9th Cir. 2001). to each witness" must be PAGE 11 - OPINION AND ORDER cific. Lewis v. reasons "germane Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006); see also 20 C.F.R. 404.1513(d) (4), (e) . In rejecting lay testimony, the ALJ need not cite to the ific record as long as "arguably germane reasons" for dismiss the testimony are noted, even though the ALJ does "not clearly link his determination to those reasons," evidence supports t ALJ's However, the al Lewis, 236 at 512. bias as a family member is not a valid reason for rejecting r to ision. substantial testimony. Smolen, 80 F.3d at 1289. In scredit a third party statement because of "secondary gain" or bias, ALJ·must point to evidence that the third party exaggerated symptoms in order to procure benefits. ~~~===, 557 F.3d 1113, 1116 (9th Cir. 2009). Harmless error is only applied in Social Security cases when it is clear the record that an ALJ's error was "inconsequential to ultimate non-di Stout, 454 F.3d at 1055-56. lity determination." The Ninth Circuit has never found harmless an "ALJ's silent disregard of lay testimony about how an rment limits a claimant's ability to work." Id. Here, the pI iff's sister, Diane Hanson, testified that plaintiff was suf ring from arthritis, and as a result, "there are so many times he's crippled up." Tr. 199. Ms. Hanson also ained that plaintiff has problems with concentration and short term memory loss. In addition, in a third-party function report, Alvin L. Bailey Jr., who has known 25 years, stated he he PAGE 12 - OPINION AND ORDER aintiff for plaintiff for three to four hours per day with dai activities. plaintiff had Tr. 12. Mr. Bailey so stated lems with memory, concentration, and attention span, and as such, must be reminded to take care of pers needs. The ALJ Tr. 113-17. led to separately address Hanson and Mr. Bailey. lay testimony c Tr. 16. statements of Ms. Instead, the ALJ dismissed the "[t]hese observations conflict with the 's activities of daily living and conservative treatment history,U and "these parties have a personal relationsh the claimant and lack the expertise and poss to of t an y the with ivation ective or functional assessment.u Because ALJ failed to offer germane reasons specific to each witness for rejecting their thi rty statements, because the ALJ's decision wholly fails to mention how the lay test regarding plaintiff's impairments affect his ability to work, as reflected in the RFC, I find that ALJ erred. Where lay testimony is found credible, limitations discussed in that testimony must be included in hypothetical questions posed to vocational experts. Bruce, 557 F.3d at 1116. the hypothetical questions posed to the vocational hearing included the Bailey or Ms. Hanson. fic 1 Tr. 41-44. None of rt at tations testified to by Mr. Had all the 1 at ions discussed in both of the third-party statements been included in RFC, vocational expert's testimony would have been different and the ALJ's step four findings would likely changed. Therefore, the ALJ's error is not PAGE 13 OPINION AND ORDER rmless. Accordingly, the ALJ's decision must revers When a decision denying disability bene award of benefits may fully deve s is reversed, an directed "where the reco and where further administrat would serve no use I purpose." is not the case has been proce 80 F.3d at 1292. The record has not That fully developed. Further, there are clear conflicts between the lay testimony regarding plaintiff's limitations and the scarce medical evidence regarding plaintiff's ability to work. expert was not consulted regarding the testimony when answering hypothetical questions regarding pI work. vocational r, iff's ability to As such, I remand for further development of in accordance record, th Sections II(A) and II(C) of this opinion. CONCLUSION The Commissioner's decision is not bas evidence in the record and is t r development on substantial fore reversed and remanded for the record as stated IT IS SO ORDERED./!ot. Dated this ~~y of April 2011. Ann Aiken United States District Judge PAGE 14 - OPINION AND ORDER

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