Opinion
Civil No. 00-3046-FR
April 5, 2001
Jim Sims Center for Non-Profit Legal Services, Inc. Medford, Oregon Attorneys for Plaintiff.
Kristine Olson United States Attorney William W. Youngman Assistant United States Attorney Portland, Oregon and Victoria L. Blais Special Assistant United States Attorney Seattle, Washington Attorneys for Defendant.
OPINION
The plaintiff, Glen Kuhl, brings this action pursuant to section 205(g) of the Social Security Act ("the Act"), as amended, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security denying Kuhl's claims for Social Security Disability (SSD) and Supplemental Security Income disability benefits (SSI).
BACKGROUND
Glen Kuhl protectively filed an application on December 31, 1990 with the Social Security Administration for SSD and SSI benefits. Kuhl was found eligible for social security disability benefits in 1991. On January 1, 1997, Kuhl's eligibility for disability benefits was terminated. On June 10, 1997, Kuhl filed a request for review of the Commissioner's decision to end Kuhl's eligibility, alleging that he was disabled even if his substance abuse disorder was not considered in the evaluation.
Pursuant to Public Law 104-121, social security benefits are no longer awarded if substance abuse is a material factor to the finding of disability. Kuhl's eligibility for benefits was terminated in 1997 after a finding by the Commissioner that his substance abuse was material to his finding of disabled.
The Commissioner issued a reconsideration, finding Kuhl not disabled. On April 7, 1997, Kuhl timely filed a request for a hearing before an Administrative Law Judge, Charles S. Evans (the ALJ). The hearing was held on September 22, 1998. The ALJ issued a decision unfavorable to Kuhl, finding that Kuhl was not disabled. On March 15, the Appeals Council denied Kuhl's request for review, and the decision of the ALJ was adopted as final by the Commissioner. Kuhl now seeks judicial review of the final decision adopted by the Commissioner.
CONTENTIONS OF THE PARTIES
Kuhl raises the following objections to the final decision of the Commissioner: 1) the ALJ did not properly consider Kuhl's testimony; 2) the ALJ did not properly consider the opinions of Kuhl's examining and treating physicians; 3) the ALJ did not fully develop the record; 4) the ALJ did not properly determine whether Kuhl's conditions met or equaled the requirements of a Listed Impairment; and 5) and the ALJ incorrectly determined Kuhl's residual functional capacity assessment.
The Commissioner contends that there is substantial evidence in the record to support the decision of the Commissioner; that the Commissioner applied the proper standards for the evaluation of evidence; and that the decision of the Commissioner should be affirmed.
FACTS
Glen Kuhl, born February 10, 1954, was forty-three years of age at the time of the hearing before the ALJ. He has a ninth grade education and has had previous work experience as a brick mason. Kuhl alleges that he is disabled due to arthritis in his legs; arthritic degenerative disc disease in his lumbo-sacral spine; fatigue; a status post-condition following a traumatic leg injury and subsequent surgeries; a status post-condition following a dislocated right shoulder; and an organic brain disorder.
1. Medical Evidence
Dr. Philip Grimm performed laboratory tests on Glen Kuhl on November 22, 1996 relating to his osteoarthritis. Dr. Grimm found that the arthritic changes in Kuhl's back were "very severe at all levels of the lumbar spine," with disc space narrowing, end-plate sclerosis, osteophyte formation, and a dense vacuum disc phenomenon at L4-5 as well. AR 263.
In January of 1997, Dr. R. Patton reviewed Kuhl's file as a consultant for the Social Security Disability Determination Service. In his report, he found that Kuhl could lift and carry up to ten pounds frequently and up to twenty pounds occasionally. Dr. Patton also found that Kuhl had some limitations in stooping and reaching with his right arm.
Dr. Rebecca Richman, a Social Security consultative examining physician, also reported in January of 1997 that Kuhl had evidence of loss of motor function of the right foot; that Kuhl had severe lumbar spine arthritis; and that the pain and fatigue as a result of these conditions would decrease Kuhl's stamina and ability to concentrate. She also determined that Kuhl could carry ten pounds frequently and twenty pounds occasionally.
On February 5, 1997, Dr. James Galt examined Kuhl's shoulder, arm and hand after A/C joint decompression surgery. Doctor Galt reported that Kuhl's right hand was impaired to the extent that right-handed fine and firm manipulation, pushing/pulling, and reaching were precluded. Dr. Galt also reported that Kuhl could lift up to ten pounds only occasionally, and no more than that ever.
Kuhl's treating physician, Dr. Thomas Hartkop, reported on February 12, 1998 that the L-5 disc space in Kuhl's spine was "almost completely gone," and that the L4-5, L-5, and S-1 discs are fused by calcification. AR 415. Additionally, Kuhl has documented laboratory findings of leg length discrepancy and scoliosis with a resulting pelvic tilt.
2. Vocational Expert Testimony
The following hypothetical question was asked of the vocational expert by the ALJ at the hearing for the identification of possible jobs that Kuhl could perform, given his residual functional capacity. The ALJ set out the following hypothetical question for someone with less than sedentary exertional capabilities of Kuhl's age, educational level, and past relevant work:
can walk 15-20 minutes on level surfaces before he needs to sit or lie down; who can be on his feet for ___ hour and sit up to 1 hour in an upright chair; lift about 10 pounds, and lift occasionally from floor level; push-pull up to 20 pounds horizontally; drive a car; who is right handed and can grasp a pen in order to write; whose eyesight and hearing are functional; who is moderately impaired in his memory for recent events; whose pain averages about 4-6 on a scale of 1-10; who has an average ability to concentrate although when his pain increases after physical activity, about every other day, his ability to concentrate is more limited; whose pain medication reduces his sharpness but does not eliminate pain; who has had prior knee and ankle surgery on his right leg which results in aggravated pain upon walking or standing. . . .
AR 21-22.
The vocational expert testified that such an individual would be capable of performing work in sedentary, unskilled, entry-level occupations, such as switchboard operator (with 1,900 jobs in Oregon and 150,000 jobs nationally); information clerk (with 5,000 jobs in Oregon and 250,000 in the nation); and telephone solicitor (with 3,500 jobs in Oregon and 96,000 jobs nationally). The vocational expert also testified that under the ALJ's hypothetical question, if Kuhl was required to lie down twice each day to relieve pain for more than the time of a regular break, it would not be feasible for him to perform jobs in the national economy.
3. The ALJ's Findings
The ALJ found that Kuhl has the following severe impairments: degenerative disc disease of his lumbar spine, status post-surgical repair for AC joint separation of his right shoulder; and an organic brain disorder related to past substance abuse, now in remission. The ALJ found that Kuhl's impairments did not meet or equal any of the Social Security Listings of Impairments. The ALJ reported that this decision was based on the fact that no examining or treating physician mentioned findings equivalent in severity to the criteria of Listed Impairments. The ALJ found that Kuhl was not able to perform his past relevant work as a brick mason. The ALJ proceeded to the fifth step in the evaluation to consider Kuhl's residual functional capacity to perform other existing work in the national economy. The ALJ found that although Kuhl was not able to perform the full range of sedentary work, Kuhl was capable of performing the vocational expert's listed jobs of sedentary, unskilled, entry-level occupations.
The ALJ found that Kuhl's testimony concerning his impairments and their impact on his ability to work was reasonably credible in light of the information contained in the documentary reports and the reports of treating and examining physicians.
The ALJ reported on the treating and examining doctor's findings in his written decision. He found that Dr. Patton's findings were not to be given significant weight or consideration because his report conflicts with the observations and conclusions of Kuhl's treating physicians, Dr. Hartkop and Dr. Galt, and is inconsistent with the credible testimony at the hearing and the other evidence in the record. The ALJ also made the same finding of Dr. Richman's report concerning Kuhl's ability to lift and carry.
STANDARD OF REVIEW
The Social Security Act provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). The claimant bears the burden of proof in establishing the existing disability. Gomez v. Chater, 74 F.3d 967, 970 (9th Cir.), cert. denied, 519 U.S. 881 (1996). To meet this burden, the claimant must demonstrate an inability to engage in substantial gainful activity because of a medically determinable physical or mental impairment which can be expected to cause death or to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). An individual is disabled only if his physical or mental impairments are of such severity that he is unable to perform his previous work and 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.S.C. § 423(d)(2)(A).
The Commissioner has developed a five-step sequential evaluation process for determining if a person is eligible for benefits due to a disability. 20 C.F.R. § 404.1520, 416.920; Bowen v.Yuckert, 482 U.S. 137, 140 (1987). First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is found not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b), 416.920(b).
In 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. § 404.1520(c), 416.920(c). If not, the claimant is found not disabled.
In 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." Yuckert, 482 U.S. at 141; see 20 C.F.R. § 404.1520(e), 416.920(e). If so, the claimant is presumed to be disabled; if not, then the claimant is not disabled.
In step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled; if not, then the burden shifts to the Commissioner.
In step five, the Commissioner must establish that the claimant can perform work other than his past relevant work which exists in the national economy. Yuckert, 482 U.S. at 142; see 20 C.F.R. § 404.1520(e) (f), 416.920(e) (f). If the claimant is able to perform work other than his past relevant work which exists in the national economy, the claimant is not disabled. 20 C.F.R. § 404.1566, 416.966.
DISCUSSION
Glen Kuhl contends that the ALJ should have included the need for him to lie down in the residual functional capacity assessment and the hypothetical question posed to the vocational expert because the ALJ found Kuhl's testimony to be fairly credible. Kuhl contends that if the ALJ considers Kuhl's testimony credible, the ALJ must articulate specific reasons for failing to consider it in the residual functional capacity assessment and failing to include it in the hypothetical question posed to the vocational expert.
The Commissioner does not dispute this contention, but argues that the ALJ considered Kuhl's testimony in full in the residual functional capacity determination. The Commissioner contends that the ALJ properly chose not to include the need for bed rest in his hypothetical question posed to the vocational expert. The Commissioner contends that Kuhl was not compliant with his doctor's prescribed treatment because Kuhl chose not to take prescribed medication due to his substance abuse, and chose bed rest instead.
The Social Security regulations direct a claimant to "follow treatment prescribed by your physician if this treatment can restore your ability to work." 20 C.F.R. § 404.1530(a), 416.930(a). The ALJ did not expressly purport to deny Kuhl benefits on the ground that he failed to follow prescribed treatment, but his ultimate finding that Kuhl is not disabled rests, in significant part, on the expressed perception that his "noncompliance" with a prescribed treatment caused his condition to be worse than it might otherwise be. Kuhl testified that he needs to lie down flat on his back at least twice daily for an hour at a time. The ALJ found that all of Kuhl's testimony was fairly credible based on the information contained in the documentary reports and the reports of the examining and treating physicians.
In this case, the ALJ and vocational expert specifically discussed Kuhl's need for bed rest in relation to his capacity to work. The vocational expert, in response to the ALJ's question, found that Kuhl would be unemployable under those circumstances:
Q The claimant in this matter has testified that he needs to, to rest, either lying down on the bed or in a recliner, thus reclined out flat, several times a day. Would that be compatible with holding a job?
A No, it would not. If the person wanted to recline in their personal vehicle. You know, reclining their seat in their car or laying in the back seat, during a 10 or 15 minute break once in the morning and once in the afternoon and during a 30 to 60 minute lunch break. That would, you know, that would be feasible. But if they could not do it within that sort of a schedule, then it, it would not be feasible. And —
. . . .
A — the testimony from the claimant was that you know, he needed to lie down for a significantly more, both in terms of frequency and time than what would reasonably be allowed in any work setting.
Q . . . So if he has to rest that much, then he, he would be out of the market?
A Right.
AR 62-63. The ALJ's finding that Kuhl retained the residual functional capacity to perform sedentary work is premised on his rejection of Kuhl's testimony as to pain, which the ALJ found was credible. The Commissioner has asserted that the ALJ believed that Kuhl's condition could be ameliorated with prescription medication. See Defendant's Memorandum, p. 7.
SSR 82-59 delineates the circumstances in which the Commissioner can deny benefits on the basis that the claimant has failed to follow a prescribed treatment. A finding of "failure to follow prescribed treatment" may be made only when the following criteria are met:
1. The evidence establishes that the individual's impairment precludes engaging in any substantial gainful activity . . .; and
2. The impairment has lasted or is expected to last for 12 continuous months from onset of disability or is expected to result in death; and
3. Treatment which is clearly expected to restore capacity to engage in any [substantial gainful activity] has been prescribed by a treating source; and
4. The evidence of record discloses that there has been refusal to follow prescribed treatment.
See also Ibarra v. Commissioner of the Social Security Administration, 92 F. Supp.2d 1084, 1086 (D.Or. 2000). Neither the third nor the fourth criterion, however, is satisfied. Nothing in the record supports an inference that Kuhl has been prescribed a treatment that he refuses to follow. Based on the vocational expert's testimony, the Commissioner has failed to establish that Kuhl can perform work other than his past relevant work. Because the aforementioned error requires remand, it is not necessary for the court to rule specifically on the other objections raised by Kuhl concerning the opinions of Kuhl's treating and examining physicians, the insufficient development of the record, and the correct analysis regarding the Listed Impairments.
CONCLUSION
For the reasons stated herein, this case is remanded for the payment of benefits.