Desautel v. Commissioner, Social Security Administration, No. 6:2010cv00430 - Document 17 (D. Or. 2011)

Court Description: Opinion and Order. This action is reversed and remanded for the payment of benefits. This case is dismissed. Signed on 05/20/2011 by Chief Judge Ann L. Aiken. (lg)

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Desautel v. Commissioner, Social Security Administration Doc. 17 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON JAMES DESAUTEL, Civil No. 10-430-AA OPINION AND ORDER Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, De Tim Wilborn Wilborn Law Offices, P.C. P.O. Box 2768 Oregon City, Oregon 97405 Attorney for aintiff Dwight Holton United States At District of Oregon Adrian L. Brown Assistant United States Attorney 1000 SW Third , Suite 600 Portland, Oregon 97204 Brett E. Eckelberg ial Assistant U.S. Attorney Office of General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 MIS 221A PAGE 1 - OPINION AND ORDER Dockets.Justia.com Seattle, Washington 98104 Attorneys for de AIKEN, Chief Judge: Plaintiff, James Desautel, brings this action pursuant to the Social Security Act (the Act), 42 U.S.C. § 405(g), to obtain ssioner. judicial review of a final decision of the Commissioner plaintiff's applications disability The r Title II benefits (DIB) and Title XVI supplemental security income (SSI) disability benefits reasons set r the Act. below, the Commissioner's de and remanded for For the sion is reversed payment of benefits. PROCEDURAL BACKGROUND On il 10, 2007, plaintiff for both DIB SSI. ly filed applications Tr. 129-36. applications were er tially and upon reconsideration, denied requested a aintiff timely aring before an administrative law judge (ALJ). Tr. 88-96. On May 20, 2009, an ALJ Honorable Patricia Hartman. Tr. 17-47. was held before the r On y 10, 2009, ALJ Hartman issued a decision finding pIa iff not disabled within the meani er the Appeals Council of Act. Tr. 55-62. declined to review the ALJ decision on pIa iff fi a complaint in s Court. 18, 2010, Tr. 1-4. STATEMENT OF THE FACTS Born on December 5, 1955, plaintiff was 50 years old on all the onset date of disability, and 53 years old at the t ar Tr. 22. PAGE 2 Tr. 129, 21. PIa iff graduated from high s aintiff has past relevant work experience as a OPINION AND ORDER of delivery driver, laborer, r panel technician. He al Tr. 151. 30, 2006 due to rative and situational depression. A third-party hearing. sc s, Ms. sease, acute lower back pain, Walsh, prepared a st rt and testified at the hearing. A vocat Tr. 40-46. s disability beginning June Tr. 205. Third-Party Adult Function Tr. 38-9, 157-64. warehouse packer, and electrical rt (VEl also testified at the The VE light exertion jobs avai plaintiff could perform. re were sedentary or e in Tr. 43. I economy which However, when asked to assume that plaintiff's testimony relative to his limitations were credible, the VE testified that the claimant would not be able to perform any of the sedentary or light exertion jobs identified. Tr. 43. In addition, when asked if miss two of work would preclude sustained employment, the VE re s. Tr. 46. STANDARD OF REVIEW This court must affirm the Secretary's s based on proper legal standards and the if are supported by substantial evidence in the record. 498, 501 (9th Cir. 1989). mere scintilla. is 879 F.2d Substantial evidence is "more than a It means ,such relevant dence as a reasonable mind might accept as adequate to support a cone " Richardson v. Perales, 402 U.S. 389, 401 (1971) ( Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports and PAGE 3 OPINION AND ORDER detracts from the Secretary's conclusions." 807 F.2d 771, 772 Martinez v. Heckler, (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, plaintiff 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 . period of not less than 12 months. § to last for a continuous " 42 U.S.C. 423(d) (1) (A). The Secretary has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 u.S. 137, 140 (1987); 20 C.F.R. §§ 404.1502, 416.920. First the Secretary determines whether a claimant is engaged in "substantial gainful activity." disabled. §§ Yuckert, If so, the claimant is not 482 u.S. at 140; 20 C.F.R. 404.1520(b), 416.920(b). In step two the Secretary determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, §§ 404.1520(c), 482 u.S. at 140-41; see 20 C.F.R. 416.920(c). If not, the claimant is not disabled. In step three the Secretary determines whether the impairment meets or equals "one of a number of listed impairments that the Secretary acknowledges are so severe as to preclude substantial gainful activity." PAGE 4 - OPINION AND ORDER Id.; see 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Secretary proceeds to step four. Yuckert, 482 u.S. at 141. In step four the Secretary determines whether the claimant can still perform "past relevant work." §§ 404.1520(e), 416.920(e). disabled. 20 C.F.R. If the claimant can work, he is not If he cannot perform past relevant work, the burden shifts to the Secretary. In step five, the Secretary must establish that the claimant can perform other work. u.S. at 141-42; see 20 C.F.R. (f). §§ 404.1520(e) & Yuckert, 482 (f), 416.920(e) & If the Secretary meets this burden and proves that the claimant is able to perform other work which exists in the national economy, he is not disabled. 20 C.F.R. §§ 404.1566, 416.966. DISCUSSION I. The ALJ's Findings At step one of the five step sequential evaluation process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. 57, Finding 2. Tr. At step two, the ALJ found that plaintiff had the following severe impairment: degenerative disc disease with low back pain. Tr. 57, Finding 3. At step three, the ALJ found that plaintiff's impairment did not meet or equal the requirements of a listed impairment. Tr. 58, Finding 4. The ALJ determined that plaintiff had the residual functional capacity (RFC) to perform light work. PAGE 5 - OPINION AND ORDER Tr. 58, Finding 5. Plaintiff was I I to work that would not require climbing rs, ropes or scaf climbing of stairs, and would require only occasional I , crouching, crawl twisting, and stooping. In addition, pIa , bending, iff was restricted from dealings with foot controls, dangerous ected machinery, At step four, tools. heights, or the ALJ Ie to ided that plaintiff was rm his past relevant work as a silicon wafer, truck delivery person. five, Tr. 61, Finding 6. Acco the ALJ found that plaintiff was not disabled. , and y, at step Tr. 61, ng 7. Plaintiff alleges that t ALJ erred by: 1) failing to clear and convincing reasons test not credible; 2) ev ; 3) determining pIa r finding plaintiff's evaluating the medical iff's impairment did not meet or equal Listing 1.04: Disorders of the Spine, 20 C.F.R. § 404, Subpart P, Appendix 1, Listing 1.04; 4) finding that plaintiff could ling to address the r thi past relevant work; 5) y testimony; and 6) with il to plaintiff's mental A. to fully develop the record irments. Plaintiff's Credibility Plaintiff asserts that the ALJ e clear by failing to provide ncing reasons for rejecting his testimony regarding the extent of his impairments. PAGE 6 - OPINION AND ORDER PI.'s Br. at pg. 15. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ may reject [his] testimony regarding the severity of symptoms only if he makes specific findings stating clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996) (internal quotation omitted) If the "ALJ's credibility finding is supported by substantial evidence in the record, we may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947 (9th Cir. 2002). A general assertion that plaintiff is not credible is insufficient; the ALJ must "state which . testimony is not credible and what evidence suggests the complaints are not credible." Shalala, 12 F.3d 915, 918 Dodrill v. (9th Cir. 1993). Before addressing plaintiff's first allegation of error, a preliminary issue must be addressed. Plaintiff initially alleged that his disability was due to pain caused by an on-the-job back injury sustained in 1992. However, plaintiff's medical records, from 1993 on, indicate that plaintiff's ongoing pain is instead due to the natural progression of a degenerative disc disease. See Tr. 235. I find that the error was harmless because, either way, plaintiff's claim for disability is based on back pain, and as such the error is nonprejudicial to the plaintiff. Comm'r of Soc. Sec. Admin., Stout v. 454 F.3d 1050, 1055 (9th Cir. 2006) (mistakes that are "nonprejudicial to the claimant or irrelevant to the ALJ's ultimate disability conclusion" are harmless error). PAGE 7 - OPINION AND ORDER lity determination, plaintiff Moving to plaintiff's testified he has "severe low back pain, wherein moving, twisting, bending, and lift it into spasm." Plaintiff also s "he can only walk one-half block; t 15 minutes stand for 10-15 minutes, s pain radiates his his sleep di that "he pain is becoming worse." . [but] that his Tr. 59, 27-30. that impairments could reas of symptoms, but As such, Plaintiff further testified doctor every three months The ALJ det Id. ily activities were very limited, and Tr. 31 32. sits . [and that] the and down his legs." s h plaintiff said Tr. 59, 27-30. a iff's medically determinable be expected to produce some degree s statements regarding the extent of these symptoms were not credible. Specifically, t ALJ found that plaintiff's testimony regarding his pain " rs on exaggeration, since the evidence does not support such sus The ALJ det Tr. 59-61. ibility and vulnerability." Tr. 60. intiff's testimony was inconsistent with a light level RFC. ALJ cited to medical evidence from 1993, in which Dr. Rotter opined that plaintiff's activities were only mildly limited a that, mi r s 1992 injury. Id. The ALJ reasoned y limited, plaintiff should be able to Ii "10 pounds ly and 20 pounds occasionally" and per occasional , twisting, crawling, etc." appears as t limitation, near PAGE 8 ALJ relied on plaintiff's rd. Thus, it od of 20 years ago, to discount his testimony OPINION AND ORDER regarding his current limitations. However, because the medical evidence indicates that plaintiff's condition is one which worsens over time, discussed in greater detail below, his level of activity in 1993 has little bearing on today's disability assessment. Therefore, I find that the ALJ's credibility determination was not based on substantial evidence. The ALJ, however, discounted plaintiff's testimony regarding the extent of his impairments for an additional reason. In a questionnaire submitted by a worker's compensation insurer, Liberty Northwest Mutual, to Dr. Coletti in 2007, the insurer noted an inconsistency in plaintiff's reported work history: "Mr. Desautel now gives a different work history from the one referenced in your December report, namely that he had been working until 2006, whereas he told his chiropractor on 10-12-07 that he had last worked in 1996. "Tr. 60, 319. Inconsistencies in a plaintiff's testimony can serve as a basis for discrediting it. Cir. 2005). Burch v. Barnhart, 400 F.3d 676, 680 (9th Noting the inconsistencies in plaintiff's testimony regarding his work history, the ALJ concluded "Dr. Coletti's theory of 'pathological advancement' of the claimant's back condition seems to corroborate Dr. Webster's report of poor effort, suggesting a non-organic cause of pain and a resultant lack of credibility." Tr. 61. However, the ALJ misconstrued the record. First, in the chiropractic report from Dr. Fish, dated October 12, 2007, plaintiff reported a work history as follows: "He applied for PAGE 9 - OPINION AND ORDER social security and had been out of work since 1996. denied since. June of 2006. 2006. He has been He has reinjured himself parking cars for a job in u Tr. 376. Thus, plaintiff reported working until As such, plaintiff's reported work history appears consistent throughout, and as such, cannot in this case serve as a basis to discount his credibility. Second, at no time did Dr. Coletti opine that plaintiff's back condition had been pathologically advanced. Rather, Dr. Coletti stated the contrary: "I have no objective basis for concluding that the work event aggravated, enhanced, or accelerated pathological changes in his lumbar spine any more than sedentary activities would have done. u Tr. 319. Dr. Coletti's statement merely suggests that plaintiff's limitations were not related to an injury, but rather caused by his progressive, degenerative spinal condition. Tr. 318-9. Therefore, it is imp6ssible to read Dr. Coletti's revised report from 2008 as corroborating Dr. Webster's report of poor effort. Accordingly, I find that the ALJ failed to provide clear and convincing reasons for rejecting plaintiff's testimony. Contrary to the ALJ's opinion, plaintiff's back condition has worsened over time, and as such, Dr. Rotter's report from 1993 is unpersuasive. Further, plaintiff's testimony regarding his work history is consistent. As such, the record supports plaintiff's testimony that his activities are limited and accomplished with difficulty. When an ALJ improperly rejects a plaintiff's testimony PAGE 10 - OPINION AND ORDER regarding limitations and the plaintiff would deem to be disabled if the testimony were credited, the court "will not remand solely to allow the ALJ to make specific findings regarding that testimony." Varney v. Secretary of Health & Human Services, 859 F.2d 1396, 1401 (9th Cir. 1988). testimony as a matter of law. B. Therefore, I credit plaintiff's Id. Evaluation of the Medical Evidence Plaintiff also alleges that the ALJ erred by providing legally insufficient reasons for rejecting the opinions of his primary, treating physician, Leonard Mankin M.D., and consulting physician, Daniel Gibbs, M.D. PI.'s Br. at pg. 12-15. There are three types of medical opinions in social security cases: those from treating physicians, examining physicians, and non-examining physicians. (9th Cir. 1995). Lester v. Chater, 81 F.3d 821, 830 "[GJreater weight is afforded to the opinion of a treating physician then to that of raj non-treating physician, because the treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual." Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993) (internal quotation omitted). A treating physician's opinion is controlling when it is "well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent" with other evidence of record. 404.1527 (d) (2). 20 C.F.R. § When the treating physician's opinion is uncontroverted, the ALJ must give "clear and convincing reasons" before rejecting the opinion. PAGE 11 - OPINION AND ORDER Lester, 81 F.3d at 830. When the treating physic 's opinion is disputed, the ALJ must give "specific timate reasons U before reject le Plaintiff opinion. s that the ALJ's rejection of Dr. Gibbs' opinion, in , was of reliance on Dr. Webster's opi improper because objective medical evidence s s Dr. Gibbs' opinion. Dr. Webster Tr. 221-6. plaintiff once in 2007 for 25 minutes. exam notes indicate that Dr. Webster majority of that t ning physical aspects whi bearing on plaintiff's disability. opined that pIa 6. the Id. no Still, Dr. Webster Tr. 225 iff had no work related limitations. Based on Dr. ster's findings, the ALJ t plaintiff could return to his past relevant work, and as was not disabled. Tr. 61. Subsequent to his exam with Dr. Webster, pIa MRI. iff had an This 2008 MRI revealed severe degenerative disc stenosis, and 1 arthritis. Tr. 305-7. Dr. Gibbs examined plaintiff after the 2008 MRI, thereby incorporating evidence. Dr. Gibbs and I can't imagine longstanding back Tr. 349. sease, s that plaintiff's "pain is ic will be able to work given the that have only worsened with time. u The ALJ rejected Dr. Gibbs' opinion in the context of discussing plaintiff's work history and worker's compensation claim, and accepting instead the opinion of Dr. Webster. PAGE 12 - OPINION AND ORDER Tr. 60. A physician's opinion of the rej 1 of if it is unreasonable in light of irment may be other evidence. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). For example, if Dr. Gibbs' opinion was uncorroborated by objective medical evidence, it would be proper for the ALJ to scount his opinion regarding plaintiff's level of impairment. I find, however, that the medical evidence ly s Dr. Gibbs' findings. Further, when another doctor, Dr. Coletti, who had examined intiff in 2007 and also concluded that plaintiff's was " was confronted with this new evidence, " his opinion. 2007 Tr. 325 and Tr. 318. sed In an addendum to his , Dr. Coletti opined that the 2008 MRI reveal clear basis for aintiff's pain. Tr. 318. Unlike Dr. Coletti, Dr. Webster was never asked to review the additional evidence and a cal whether those findings would him to re-assess the cause of plaintiff's pain. Upon a thorough review of the record, I find that fail to cite any evidence after the 2008 MRI that controverts Dr. Gibbs' work. inion regarding plaintiff's physical capac As such, I find that Dr. Gibbs' opinion of level of for aintiff's irment is reasonable based upon the complete record. 169 F. Webster's at 601. Moreover, because I find that Dr. nion is not supported by the complete record, does not serve as a opinion of Dr. PAGE 13 ALJ r reason for the ALJ to discount refore, I find that the ALJ erred by OPINION AND ORDER failing to provide adequate reasons r rejecting the opinion of Dr. Gibbs. 2. Dr. Mankin Plaintiff argues that the ALJ erred by failing to address or give sufficient weight to Dr. Mankin's opinion. 13. Dr. Mankin had been ai's PI.'s Br. at pg. ry, treating physician for approximately one year at the time of the hearing. Dr. Mankin found plaintiff's in to be severe enough to prescribe Flexeril to pain. Tr. 390 99. Tr. 390. spasms and Vicodin to In addit handicapped parking , Dr. Mankin completed a aintiff due to plaintiff's acard for limited mobility, specifically his inability to walk more than 100 yards without severe in. Tr. 395, 418. The ALJ mentioned Dr. Mankin, but only in regard to plaintiff's mental state. Tr. 61. The ALJ merely alluded to Dr. Mankin's "40 minute session" with plaintiff, indicating that 40 minutes was whether pI e to form a valid medical opinion about iff was plaintiff was not see rather, the reco Dr. Mankin controll Id. cates that plaintiff s Tr. However, Dr. Mankin for treatment of his back pain. ignore this fact. As inically depressed. Tr. 390 99. ssion; treatment from The ALJ seemed to 61. iff's treating physician, Dr. if supported by medical evidence. 's opinion is 20 C.F.R. § 404.1527 (d) (2). As discussed in the medical e in the record supports Dr. Mankin's opinion. PAGE 14 - OPINION AND ORDER ous section, objective Further, because Dr. Mankin'~ assessment was the most recent and based upon additional evidence, I find it reasonable to read his opinion as consistent with any earlier doctors who had differing opinions based on an incomplete record. Accordingly, the ALJ should have provided "clear and convincing reasons" for rejecting Dr. Mankin's opinion. Lester, 81 F.3d at 830. Even supposing Dr. Mankin's opinion is read as inconsistent with that of other doctors, the ALJ should have at least articulated "specific and legitimate reasons" for discounting the opinion. Id. The ALJ failed completely to address the opinion of Dr. Mankin. Therefore, I find that the ALJ erred by failing to provide adequate reasons for rejecting Dr. Mankin's opinion. 3. Crediting the Opinions of Drs. Mankin and Gibbs Where, as here, the ALJ fails to provide adequate reasons for rejecting the opinions of a treating or examining physician, that opinion must be credited "as a matter of law." F.3d at 834 (internal quotation omitted). Lester, 81 Therefore, this Court credits Dr. Mankin's opinion that plaintiff's degenerative disc disease was severe and that his primary symptoms were extreme pain in the back, hips, and legs causing him limited mobility. Further, this Court credits the opinion of Dr. Gibbs in that plaintiff's pain is authentic and that his condition will worsen with time. Based on these opinions and the testimony of the Vocational Expert (VE), I find plaintiff unable to engage in past relevant work and unable to perform other work as it exists in the national economy. PAGE 15 - OPINION AND ORDER Moreover, I apply the following factors to decide whether this case should be remanded for payment of benefits. They are: (1) the ALJ has failed to provide legally sufficient reasons for rej ecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. Harman v. Apfel, 211 F.3d 1172, 1178 denied, 531 u.s. 1038 factors, (2000). (9th Cir. 2000), cert. Based upon application of these I find that it is appropriate to remand this case for payment of benefits. As such, this Court declines to discuss plaintiff's other allegations of error. CONCLUSION The Commissioner's decision is not based on substantial evidence, and is therefore, reversed and remanded for the payment of benefits. This case is dismissed. IT IS SO ORDERED. Dated this ~~y of May 2011. Ann Aiken United States District Judge PAGE 16 - OPINION AND ORDER

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