Opinion
No. C 02-01251 MEJ
November 7, 2002
ORDER GRANTING DEFENDANT'S MOTION FOR REMAND AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND/OR REMAND
I. INTRODUCTION
Before the Court are: (1) Plaintiff's Motion for Summary Judgment and/or Remand, filed June 11, 2002;(2) Defendant's Motion for Remand, filed August 8, 2002;(3) Defendant's Motion in Opposition to Plaintiff's Motion for Summary Judgment or Remand, filed August 8, 2002; and (4) Plaintiff's Reply in Support of Motion for Summary Judgment and in Opposition to Defendant's Motion for Remand, filed August 14, 2002.
II. BACKGROUND
A. Procedural History
Plaintiff filed his Complaint on March 13, 2002.
On May 14, 2002, Defendant consented to magistrate judge jurisdiction and filed its Answer to Plaintiff's Complaint.
On June 11, 2002, Plaintiff consented to magistrate judge jurisdiction and moved for Summary Judgment Awarding Benefits and/or Remand.
On July 10, 2002, the parties stipulated to a thirty day extension of time for Defendant to file Response to Plaintiff's Motion for Summary Judgment in order to ensure that the Appeals Council for the Social Security Administration would have sufficient time to review the case.
Thereafter, on August 8, 2002, Defendant filed a Motion for Remand and in Opposition to Plaintiff's Motion for Summary Judgment or Remand. Defendant based its motion on incomplete factual development of Plaintiff's medical records.
On August 14, 2002, Plaintiff filed a Reply Memo in Support of his Motion for Summary Judgment and in Opposition to Defendant's Motion for Remand.
B. Factual Background
On July 12, 1999, Plaintiff filed an application for Supplemental Security Income (hereinafter "SSI") based on seizures, wobbly gait, and confusion. TR 131. Plaintiff further stated that said disability began on June 25, 1999. TR 127. Plaintiff stated in his application that:
1. The medication he is taking blurs his vision. TR 131.
2. His condition causes him pain. TR 131.
3. His condition first bothered him on January 26, 1998. TR 131.
4. He was unable to work because of his condition on July 7, 1999. TR 131. At the same time, further down on his application, he stated that he stopped working on June 25, 1999 because of his condition. TR. 131.
5. Plaintiff stopped working because seizures had increased and because he continued to have back problems. TR 131.
By letter dated September 30, 1999, the Social Security Administration denied Plaintiff's application based on medical records. TR. 91. However, the Social Security Administration stated that although there was evidence of a history of seizures, the condition could be treated so that it would not interfere with his work. TR. 91. Moreover, the seizures were determined to be non-severe under the program guidelines. TR. 91.
On January 12, 2000, Plaintiff made a request for reconsideration of his application. TR. 103-04. On March 30, 2000, after reconsideration, Plaintiff's application was denied. TR. 97.
Plaintiff then filed a timely request for a hearing before an Administrative Law Judge (hereinafter "ALJ"). TR. 114-17.
On August 21, 1999, a hearing was held before ALJ Alan K. Goldhammer. TR. 24-84.
B. Medical History
On February 27, 1996, Plaintiff sought treatment at Uni-MED Medical Center. TR. 232. Plaintiffs chief complaint, at that time, was low back pain. TR. 232. The orthopedic evaluation was written and signed by Steven M. Hurd, M.D. TR. 233. Dr. Hurd performed a physical examination of Plaintiff. Among other things, as it related to Plaintiff's cervical spine/neck, Dr. Hurd found that: 1) there was no paraspinal tenderness; 2) range of motion demonstrated full flexion from sixty to eighty degrees and extension to negative sixty degrees; and 3) Plaintiff had full lateral rotation to ninety degrees. TR. 232-33. As it related to Plaintiff's thoracolumbar spine, Dr. Hurd found: 1) no paraspinal tenderness; 2) no infraspinous tenderness; 3) full range of motion to ninety plus degrees of flexion; 4) extension to be negative thirty degrees; 5) lateral tilt to be forty-five to fifty degrees; 6) straight leg raising was negative bilaterally; 7) gait was normal and neutral; and 8) Plaintiff could walk toe and heel. TR. 233. Dr. Hurd's final diagnosis was that thoracolumbar sprain was resolved and left-sided Waddell's testing, indicated psychosomatic overlay. TR. 233. Finally, Dr. Hurd found that there were no restrictions from an orthopedic standpoint. TR. 233.
On June 23, 1999, Plaintiff sought treatment at Contra Costa Health Services, Richmond Health Center. TR. 288. The treating physician noted that Plaintiff's symptoms were back spasms. Additionally, Plaintiff was taking a friend's Valium for the pain. TR. 288. The treating physician prescribed Flexeril and exercises for his back. TR. 288.
On July 4, 1999, Plaintiff was brought by ambulance to Kaiser Permanente in Vallejo. TR. 261. The Solano County Prehospital Care Report stated that Plaintiff had a history of alcohol use. TR. 262. Additionally, the report stated that Plaintiff was found lying on the floor, shaking his arms and legs violently. TR. 262. In the same report, it noted that Plaintiff was combative and was attempting to bite and spit on the staff. TR. 262. Finally, the clinical impression stated that "behavioral [was] secondary to alcohol" and the diagnostic impression was "alcohol intoxication." TR. 262-63.
On July 10, 1999, Plaintiff received discharge instructions for recurrent seizures from John Rampulla, M.D. of Doctors Medical Center. TR. 244. Along with the discharge instruction, Plaintiff received instructions for taking Dilantin. TR. 245
On July 20, 1999, Plaintiff suffered a seizure and was brought by ambulance to Doctors Medical Center. TR. 236. Forrest Beaty, M.D. examined Plaintiff. After being examined, but before being released, Plaintiff tore out his IV and walked out of the emergency room. The emergency room report, signed by Dr. Beaty, stated, in part, that Plaintiff was acutely intoxicated and had been drinking heavily for some time. TR. 236. The final impression was "chronic alcoholism with recurrent seizures." TR. 237.
On July 31, 1999, Plaintiff received treatment at Contra Costa Health Services, Richmond Health Center. The treating physician noted on the outpatient notes that Plaintiff complained of chronic back spasm and the need to refill Flexeril and Dilantin. TR. 287.
On August 12, 1999, Plaintiff, again, sought treatment at Contra Costa Health Services, Richmond Health Center. TR. 285. Michael A. Puell, M.D. was the treating physician. He noted on his report that Plaintiff was "sitting, leaning forward, on the table; in no apparent distress or pain." TR. 285. Dr. Puell stated that percussion to the paralumbar area elicited no spasms. TR. 285. Finally, based on Plaintiff's own complaints and medical history, Dr. Puell assessed that he had seizure disorder and chronic back pain. TR. 285.
On August 26, 1999, at the request of the Social Security Administration, Plaintiff was examined at Eastview Medical Group. TR. 270. Rebecca Jordan M.D., the neurologic consultant, wrote the report after examining Plaintiff. TR. 274. According to the report, the chief complaint at that time was seizures, and Plaintiff did not complain of any other chronic illness. TR. 270, 271. The physical examination section of the report stated, in part, that: 1) Plaintiff's neck was supple; 2) Plaintiff could look down, up and bend his neck sideways; 3) Plaintiff could rotate his neck to either side; 4) there was no tenderness or spasm of the paraspinous muscles; and 5) there was no thyroyromegaly. TR. 271.
Additionally, as it related to Plaintiff's back, Dr. Jordan found that: 1) he had normal lordotic curvature; 2) there was no midline tenderness; 3) there was no tenderness or spasm of the paraspinal muscles; 4) Plaintiff was able to fully flex, extend, and do right and left lateral bending; and 5) straight leg bending was negative. TR. 272. The same report stated that Plaintiff had full range of motion of all joints. TR. 272.
Regarding Plaintiff's neurologic examination, Dr. Jordan wrote that: 1) there was normal muscle bulk and tone throughout; 2) the strength was five out of five in all muscle groups tested in both the upper and lower extremities; 3) the dynamometer grip was twenty pounds on the left and thirty on the right; 4) there was no tremor or other abnormal movement; 5) reflexes were all normal; 5) casual gait was normal and steady; 6) Plaintiff was able to walk on heels, toes and perform tandem gait; and 7) static balance was good. TR. 273.
Dr. Jordan's impression was that Plaintiff suffered from generalized "tonic-clonic." TR. 273. According to Dr. Jordan, "[a]lthough the [Plaintiff] downplays this, he apparently abuses alcohol and this would aggravate any disorder." TR. 273. She further stated that "[a]t least some seizures may be alcohol related." TR. 273. Dr. Jordan's functional capacity assessment of Plaintiff was that he was "currently limited by uncontrolled generalized tonic-clonic seizures" and that aside from limitations from seizures, the examination revealed no findings of other significant physical limitation. TR. 273.
On September 10, 1999, Ranald Bruce, Ph.D., a licensed psychologist at Uni-MED Medical Group, examined Plaintiff. TR. 277-79. As it related to Plaintiff's medical history, Dr. Bruce noted that an electroencephalogram (hereinafter "EEG") while in the hospital confirmed epilepsy. TR. 277. However, Dr. Bruce also stated that Plaintiff's thinking was logical and coherent. TR. 278. Plaintiffs balance and gait were unremarkable. TR. 278. According to Dr. Bruce's report, Plaintiff's abstract thinking for proverb interpretation was good, but that he made unusual errors on serial seven subtractions. TR. 278. Dr. Bruce wrote, "Mr. Reeves gave an inadequate effort on testing. There were multiple inconsistencies noted between his performance on testing and other observations and information taken during mental status, orientation and history gathering. Reyes Scale was positive." TR. 278.
Overall, Dr. Bruce's diagnostic impression of Plaintiff was that he suffered from attention deficit/hyperactivity disorder (hereinafter "ADHD") and a learning disorder not otherwise specified. TR. 278. Dr. Bruce stated in the summary and recommendation section of the report that although Plaintiff claims disability due to seizures, testing was compromised and did not support cognitive problems due to seizures. TR. 278. Finally, Dr. Bruce concluded the report by stating that:
Psychological assessment suggested Mr. Reeves should not have problems carrying out simple, detailed and complex instructions or cooperating with coworkers. He has no psychological limitations or restrictions in the areas of common daily activities or in interpersonal and social relations. He should not have problems with concentration, persistence and pace in an average work setting for a normal work period. TR. 279.
Craig A. Smith, M.D. saw Plaintiff on September 22, 1999. TR. 312. Dr. Smith filled out the Psychiatric Review Technique report. TR. 312. He noted on that report that Plaintiff had no medically determinable impairment. TR. 312.
On October 14, 1999, Plaintiff visited Martinez Health Center to refill his Dilantin and if possible, to get a CAT scan for epilepsy. TR. 302.
On October 19, 1999, Plaintiff saw Loan Nguyen, D.O., at Martinez Health Centers. TR. 300. The report was filled out by Dr. Nguyen. Dr. Nguyen stated, in part, that there was no epileptiform activity seen. TR. 300. Dr. Nguyen noted that "[t]his [was] an abnormal study, due to the presence of frontal intermittent rhythmic delta activity. Clinical correlation [was] advised." TR. 300.
On October 25, 1999, Plaintiff saw Michael A. Price, M.D. for diagnostic imaging at Contra Costa Health Services. TR. 283. Dr. Price's findings included: 1) normal appearance of lateral, third, and fourth ventricles; 2) normal appearance of cerebral cortical sulci and basilar cisterns; 3) normal attenuation of brain parencyma; 4) no intracranial hemorrhage, extra-axial fluid collection, or mass effect; and 5) moderate opacification without bilateral ethmoid sinuses. TR. 283. Dr. Price concluded by stating that there were no intracranial pathology demonstrated and bilateral ethmoid sinusitis. TR. 283.
On November 9, 1999, Plaintiff visited Contra Costa Regional Medical Center, emergency department to get Flexeril refills. TR. 294, 296. The treating physician, David Goldstein, M.D., noted that Plaintiff said: 1) he had backpain for three years; 2) he had a "compressed disc.;" and 3) he got muscle spasms. TR. 296. On the same report, Dr. Goldstein also noted that Plaintiff was positive for alcohol. TR. 296. The physical examination revealed that there was no tenderness in his cervical, thoracic, lumbar, sacral or midline. TR. 294. Deep tendon reflexes were symmetric at the knees and ankles. TR. 294. Distal sensation was intact, strength was five out of five, bilaterally, and gait was stable. TR. 294. Finally, the report noted that Plaintiff had chronic back pain and had become dependent on Flexeril. TR. 294.
On November 23, 1999, Plaintiff sought treatment at Contra Costa Health Services, Ambulatory Care. TR. 284, 291. There, Plaintiff was referred to the Neurology Department for seizure disorder. TR. 293. On December 29, 1999, Plaintiff had a MRI at Appian Imaging, LLC. TR. 290. Jonathan P. Posin, M.D. wrote the report. The findings stated that an initial limited skull series failed to reveal metallic foreign objects in the region of the orbits that would preclude MR imaging. TR. 290. There was unremarkable magnetic resonance examination of the brain without evidence of mass effect, signal abnormality, or white matter disease. TR. 290. The report noted, however, that there were extensive paranasal sinus changes. TR. 290.
On January 28, 2000, Plaintiff saw Mark E. Stinson, M.D. at Martinez Health Centers. TR. 340-41. The Emergency Department Report, noted that Plaintiff complained of numbness in his right leg, but denied having any seizures. TR. 340. Plaintiff further stated that he was taking his medication as directed, but also drinking heavily. TR. 340. Plaintiff was intoxicated when Dr. Stinson examined him. TR. 340. Past medical history indicated seizure disorder and alcoholism. TR. 340. Assessment and plan stated that Plaintiff suffers from seizure disorder with no recent seizures when his levels were adequate. TR. 340.
On March 6, 2000, Plaintiff received a mental residual functional Capacity assessment and a psychiatric review from Murray Krelstein, M.D. Dr. Krelstein noted on the residual capacity assessment report that, with a few exceptions, Plaintiff was not significantly limited to perform work. TR. 321-22. Under the functional capacity assessment, Dr. Krelstein stated that despite Plaintiff's denial, he was positive for alcohol. TR. 323. Dr. Krelstein's final notes stated that Plaintiff does not have a psychological disease that would preclude his doing work in which he had limited public contact. TR. 323.
On the Psychiatric Review Technique report, Dr. Krelstein stated that Plaintiff may have mental retardation, autism, and substance addiction disorder. TR. 313. However, there was no evidence of a sign or symptom cluster or syndrome which appropriately fits with "organic mental disorder," "schizophrenic, paranoid and other psychotic disorder," or "affective disorder" diagnostic categories. TR. 315. As it related to Plaintiff's daily living activities and social function, Dr. Krelstein stated that Plaintiff would have moderate limitations. TR. 320.
On March 10, 2000, Plaintiff saw Joan Bradus, M.D., for a physical functional capacity assessment. TR. 325. Dr. Bradus stated that Plaintiff could: 1) occasionally lift or carry no more than fifty pounds; 2) frequently lift or carry no more than twenty-five pounds; 3) stand or walk for a total of about six hours in an eight hour workday; 4) sit for a total of about six hours in an eight hour workday; and 5) push or pull for an unlimited amount of time. TR. 326.
On March 15, 2000, Plaintiff saw Jon Beauchamp, M.D., at Martinez Health Centers. TR. 342-44. Dr. Beauchamp reported that Plaintiff's chief complaint at that time was chest pain. TR. 343. Past medical history revealed that Plaintiff had seizures and frequent alcohol use. TR. 343. Regarding Plaintiff's musculoskeletal review, Dr. Beauchamp found no bone, joint, or back complaints. TR. 343. Plaintiff received intravenous fluid hydration for presumed alcohol related dehydration. TR. 343.
On April 19, 2000, Plaintiff went to Martinez Health Center to get a Valium prescription to help him with his alcohol problem. TR. 346.
On July 3, 2000, Plaintiff again, sought treatment at the Martinez Health Center for a lower back pain. TR. 348. At that time, Plaintiff requested an x-ray. TR. 348. Plaintiff received a report from the Diagnostic Imaging Department, written by Bruce London, M.D. TR. 336. The report stated, in part, that: 1) there was no lumbar compression fracture; 2) lumbosacral disc space was narrowed; and 3) an osteophyte extended posteriorly from the inferior end plate of L3. TR. 336, 349. Dr. London's impressions included: 1) discogenic disease at the lumbosacral level; 2) degenerative changes; and 3) superior end plate compression of T11, unchanged in appearance since a chest x-ray dated March 15, 2000. TR. 349.
On September 21, 2000, Brenda Reilly, M.D. of Contra Costa Regional Medical Center filled out a Medical Assessment of Ability to do Work-Related Activities (Physical). TR. 352-53. In part, her report stated that: 1) Plaintiff could lift or carry no more than ten pounds at one time; 2) Plaintiff could occasionally lift or carry ten pounds; and 3) Plaintiff could frequently lift or carry less than ten pounds. TR. 352. As it related to Plaintiff's standing and/or walking, Dr. Reilly stated that Plaintiff could stand or walk a total of four to six hours and could stand or walk one to two hours without interruption. TR. 352. Plaintiff could also sit a total of four to six hours and sit without interruption a total of two to four hours. TR. 352. Dr. Reilly noted that Plaintiff had lower extremities strength of five out of five, right knee flexion of four out of five, and tenderness to palpation at L3 and L4. TR. 353. Dr. Reilly further noted that the x-ray showed degenerative disorder and compression at T11. TR. 353.
On November 16, 2000, Howard Sturtz, M.D. examined Plaintiff at the Uni-MED Medical Center. TR. 356-61. In his orthopedic evaluation, Dr. Sturtz stated that Plaintiff's chief complaints were of his back and shoulders. TR. 356. The physical examination revealed that Plaintiff walked in a normal manner and could walk heel to toe. TR. 356. Plaintiffs shoulders had full range of motion. TR. 356. Regarding Plaintiff's back, Dr. Sturtz noted that Plaintiff's range of motion was flexion to ten inches of the floor, twenty-five degrees extension, and lateral bending of thirty degrees. TR. 357. Dr. Sturtz' impression revealed that Plaintiff had an old fracture of the thoracolumbar spine without neurological deficits, chronic alcoholism, and seizure disorder. TR. 358. Dr. Sturtz also found that Plaintiff s medical records pertaining to his back contained no positive objective physical findings. TR. 358. Dr. Sturtz finally concluded by stating that Plaintiff's condition was stable and unlikely to deteriorate significantly with time, and thus no particular treatment was required regarding his back and shoulders, but medical attention was required for his other conditions, specifically his seizure disorder and chronic alcoholism. TR. 358.
Dr. Sturtz also filled out the Medical Source Statement of Ability to do Work-Related Activities (Physical) on November 16, 2000. TR. 359-61. In that report, Dr. Sturtz stated that Plaintiff could: 1) occasionally lift or carry no more than fifty pounds; 2) frequently lift or carry twenty pounds; 3) stand and or walk about six hours in an eight hour workday; 4) sit without being affected by his impairment; and 5) push and/or pull without being affected by his impairment. TR. 360.
C. ALJ's Decision and Findings
The ALJ issued his written decision on March 26, 2001. In his decision, the ALJ stated, in relevant part, that:
1. The issue to be decided was "whether the [C]laimant is entitled to Supplemental Security Income payments based on disability under section 1614 ofthe Social Security Act." TR 15.
2. Specifically, before disability analysis under Social Security Act Section 1614 could be assessed, the ALJ would need to determine whether Claimant is under a "disability" and if so, when the said disability began and how long it has lasted. TR 15.
3. The ALJ received a statement by Mr. John Epp, Claimant's high school special education teacher. TR. 16.
4. A five-step sequential evaluation process for making disability determination was outlined as set forth by 20 C.F.R. § 416.920 (a). TR. 16.
5. In step one of the sequential analysis, the ALJ found Claimant had not performed substantial gainful activity since at least July 12, 1999. TR. 16.
6. In step two, the ALJ looked at several medical documents from Claimant's many treating physicians. TR. 17.
7. "[I]n July 1999, a treating source at Richmond Health Center wrote that the Claimant was negative for back spasm and tenderness." TR. 17.
8. "Dr. Michael Puell with the Richmond Health Center reported in August 1999 that no spasms were elicited after percussion to the paralumbar spine." TR 17.
9. "In November 1999, a treating source from Martinez Health Center stated that the [C]laimant had bilateral iliolumbar tenderness. However, distal sensation was intact, and strength was five out of five bilaterally in the lower extremities. Gait was stable and straight leg raising tests were negative." TR. 17.
10. Dr. Reilly, one of Claimant's treating physicians at Martinez Health Center submitted a functional capacity assessment in September 2000. TR. 17.
11. Dr. Reilly wrote that Claimant had five out of five lower extremity strength, four out of five knee flexion, tender to palpation at L3-4, full range of motion, and moderate pain with flexion. TR. 17.
12. The ALJ did not find Claimant's complaints of back pain credible as they were not supported by the objective medical evidence. TR. 18.
13. Therefore, the ALJ did not find Claimant to have a "severe" back impairment. TR. 19.
14. However, the ALJ found that Claimant did have "severe" borderline intelligence and alcohol dependence with alcohol related withdrawal seizures. TR. 19.
15. In step three, the ALJ considered Mr. Epp's testimony, especially where it pertained to Claimant's lack of motivation. TR. 20.
16. In addition, the ALJ also considered the testimony of Dr. Irwin Shapiro, the medical expert. TR. 20.
17. Through medical records of Dr. Bruce, a licensed psychologist, who examined Claimant in September 1999, and Dr. Shapiro's testimony the ALJ concluded that Claimant was of borderline intelligence. TR. 20.
18. Moreover, according to the ALJ, "Dr. Shapiro testified that he had no reason to believe that the [C]laimant would have any seizure disorder if he were free of alcohol." TR. 20.
19. "Dr. Shapiro also testified that there was no adequate basis from which to conclude the [C]laimant had hyperactivity disorder." TR. 21.
20. The ALJ finally concluded step three by summarizing that with sobriety, Claimant has residual functional capacity to perform work that does not have very complicated or complex demands. TR. 21.
21. In step four, the ALJ found that Claimant could perform his past relevant work as a janitor for Goodwill Industries, if he remained sober. TR. 21.
22. In step five, the ALJ continued to state that Claimant would be able to work in a number of different jobs if he remained sober. Conversely, he would be "disabled" at this step if he did not maintain sobriety. TR. 21.
23. Under the Social Security Act § 1614(a)(3)(J), Claimant is ineligible for benefits if alcoholism or drug addiction is a contributing factor material to the determination of Claimant's disability. TR. 21.
24. Finally, the ALJ found that since alcohol abuse is a contributing factor material to Claimant's disability, Claimant is ineligible for Social Security benefits. TR. 21.
The ALJ refers to Mr. John Douglas as the Claimant's high school teacher, but hearing records show the actual name to be Mr. John Epp.
III. DISCUSSION
A. Parties' Positions1. Plaintiff's Position
Plaintiff seeks review of the final decision of the Commissioner of the Social Security Administration. Plaintiff states that he has exhausted administrative remedies and that this Court has jurisdiction pursuant to 42 U.S.C. § 405(g). See Plaintiff's Complaint, 2:5-7. Plaintiff now moves for summary judgment awarding benefits and/or remand.
Plaintiff contends that the general issue to be resolved by the Court is whether the Commissioner's decision denying benefits was supported by substantial evidence. First, Plaintiff alleges that the ALJ's decision was not supported by substantial evidence as he erroneously discounted the opinions of both the treating physician, Dr. Reilly, and the consultative examiner, Dr. Sturtz, while relying heavily upon the opinion of Dr. Jordon, the consulting neurologist who had little to no knowledge of Plaintiff's medical records as they related to his back pain.
Second, Plaintiff contends that uncontradicted evidence shows he has ADHD and borderline intelligence, thus meeting both prongs outlined in Listing 12.05(C) of 20 C.F.R. § 404, Subpart P, Appendix 1. Third, Plaintiff argues that the ALJ erred because he used the wrong standard to evaluate whether Plaintiff's alcohol abuse was a material factor barring consideration of his seizure disorder. Fourth, Plaintiff argues that the ALJ did not provide specific, cogent reasons for disbelieving his testimony and that of Mr. Epp. Finally, Plaintiff contends that it was error for the ALJ to find that his past janitorial work at Goodwill Industries qualifies as substantial gainful activity.
2. Defendant's Position
Defendant contends that the matter is not yet ripe for summary judgment as the case record is incomplete. Defendant alleges that the record is incomplete because: 1) the ALJ did not discuss how Plaintiff's diagnosed ADHD is limiting to his basic work activities; 2) Plaintiff's "functional limitations with regard to his back" are not discussed and specifically, Dr. Reilly and Dr. Sturtz' residual functional capacity assessments are missing from the transcript; 3) whether Plaintiff would continue to suffer seizures if he discontinued alcohol abuse is inconclusive; 4) Plaintiff's medical records prior to 1999 are missing; and 5) it is unclear whether Plaintiff's work at Goodwill constitutes "substantial gainful activity" within the meaning of the Social Security Act.
Defendant requests that the case be remanded for further administrative proceedings, and more specifically, in order to fully develop the record in this case. See Defendant's Motion for Remand and In Opposition to Plaintiff's Motion for Summary Judgment (hereinafter "Def's Motion"), 3:1-2.
B. Legal Standard of Review
In order to qualify for disability benefits, a claimant must show that a medically determinable physical or mental impairment prevents him from engaging in substantial gainful activity and that the impairment: 1) is expected to result in death; or 2) lasts for a continuous period of no less than twelve months. 42 U.S.C. § 423 (d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423 (d)(3). In addition, the physical or mental impairment must be so severe that the individual "is not only unable to do his previous work but 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); see also 20 C.F.R. § 404.1505.
The claimant carries the initial burden of proving disability. 42 U.S.C. § 423 (d)(5); Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). Where the claimant establishes an inability to perform her prior work, the burden shifts to the Secretary to show that the claimant can perform other substantial gainful work that exists in the national economy. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998).
In considering whether a claimant is entitled to benefits, a five-step sequential inquiry process is used. 20 C.F.R. § 416.920. Step one considers if the claimant is engaged in substantial gainful activity. If the claimant is not engaged in substantial gainful activity, step two asks if the claimant has a severe impairment that significantly limits the ability to do basic work activities. Basic work activities are defined as "abilities and aptitudes necessary to do most jobs, including, for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). If an impairment significantly limits Plaintiff's physical ability to do basic work activities, then the impairment is "severe." Id.
If the claimant has a severe impairment, step three asks if the claimant has a condition which meets or equals the conditions outlined in the Listing of Impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. If the claimant does not have a qualifying condition, step four asks if the claimant is capable of performing his past relevant work. If the claimant is not capable of performing his past relevant work, step five asks if the claimant is capable of performing other work which exists in substantial numbers in the national economy. 20 C.F.R. § 404.1520 (b) and 404.1520(f)(1).
This Court has limited jurisdiction in reviewing the ALJ's decision. "Under 42 U.S.C. § 405 (g), the Secretary's decision is subject to review to determine whether: (1) the findings are supported by substantial evidence and (2) the Secretary applied the proper legal standards." Rollins v. Shalala, 19 F. Supp.2d 1100, 1102 (C.D. Cal. 1994) (citing Swanson v. Secretary of Health Human Services, 763 F.2d 1061, 1064 (9th Cir. 1985)). Therefore, a district court may overturn a decision to deny benefits only if it is not supported by substantial evidence or if the decision is based on legal error. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
The Ninth Circuit defines substantial evidence as "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."Andrews, 53 F.3d at 1039. Determinations of credibility, resolution of conflicts in medical testimony, and all other ambiguities are to be resolved by the ALJ. Magallenes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The decision of the ALJ will be upheld if the evidence is "susceptible to more than one rational interpretation." Andrews, 53 F.3d at 1040. This Court must affirm the ALJ's decision if there is evidence in the record as a whole to support his findings. Cox v. Califano, 587 F.2d 988, 989-90 (9th Cir. 1978). In addition, the ALJ's findings must be supported by specific, cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Finally, this Court may exercise its discretion to direct an award of benefits only "where the record has been fully developed and where further administrative proceedings would serve no useful purpose." Smolen, 80 F.2d at 1292.
C. Legal Analysis
Plaintiff alleges mental retardation, chronic back pain, ADHD, and seizures, as impairments that significantly limit his basic work activities, and that he is therefore disabled under the meaning of the Social Security Act. However, using the five-step sequential process as outlined in 20 C.F.R. § 416.920, the ALJ determined that Plaintiff was not disabled.
Step One:
The ALJ found Plaintiff had not engaged in substantial gainful activity since at least July 12, 1999. TR. 16. Neither parties disputed this finding, therefore, step one is not at issue here.
Step Two:
At step two, the ALJ must determine if Plaintiff's impairments are severe, within the meaning of the Social Security Act. In order to find an impairment severe, the ALJ must consider all the impairments, either alone or in combination, which significantly limit Plaintiff's basic work activities. A finding that an impairment exists is, alone, insufficient to overcome step two. In addition to a finding that an impairment exists, there must also be a finding that the alleged impairment is somehow limiting the claimant's ability to perform basic work activities. 20 C.F.R. § 416.920 (c); See also Fanning v. Bowen, 827 F.2d 631, 633 (9th Cir. 1987).
1. Mental Retardation
The ALJ accepted that Plaintiff had severe borderline intelligence and Defendant did not dispute this finding. TR. 20.
2. Back Impairment
The ALJ determined that Plaintiff did not have a "severe" back impairment. In making this determination, the ALJ reviewed Plaintiff's testimony, treating physicians' assessments, and other medical records.
It is legitimate for an ALJ to reject a plaintiffs testimony as not credible. Simpson v. Commissioner, Social Security Administration, No. Civ. 99-1816-JO, 2001 WL 213762, at *10 (D.Or. Feb. 8, 2001). In order to do so, however, the ALJ must base his conclusion on a thorough review of the records and it must be carefully reasoned. Id. Here Plaintiff alleges back pain due to an automobile accident. Plaintiff further states that said accident took place prior to 1999. The ALJ found Plaintiff's testimony not credible because there were no medical records of treatment for the alleged back pain after the car accident. TR. 17.
As both parties correctly point out, however, the ALJ did not have medical records prior to 1999. Therefore, in order for the ALJ to properly conclude that there were no medical records regarding back pain due to a car accident, he must review Plaintiff's medica1 records prior to 1999. Since the ALJ failed to obtain medical records before 1999, the ALJ's conclusion is not based on a thorough review of the record and was not carefully reasoned. Therefore, the ALJ erred when he found Plaintiff's testimony of back pain not credible.
The ALJ then reviewed all the different treating physicians' assessment of Plaintiff regarding his back pain. Greater weight is usually afforded to the opinion of the treating physician than a 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) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). Although greater weight is given to the treating physician, this does not mean that the treating physician's opinion on the ultimate decision of disability is conclusive. Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989). Rather, the ALJ may disregard the treating physician's assessment only by setting forth a specific, legitimate detailed summary of the facts and conflicting clinical evidence, along with a reasoned interpretation that is based on substantial evidence. Id. (citing Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). Moreover, the reasons set forth by the ALJ for rejecting the treating physician's opinion must be "clear and convincing." Montijo v. Secretary of Health and Human Services, 729 F.2d 599, 601 (9th Cir. 1984).
In Simpson, the ALJ relied on the testimony of a non-treating medical advisor, "in place of" other treating and evaluating sources. No. Civ. 99-1816-JO, 2001 WL 213762, at *9 (D.Or. Feb. 8, 2001). The Simpson court held that opinions of non-examining, but testifying medical advisors may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it. Id.. (citing Morgan v. Commissioner. Social Security Administration. 169 F.3d 595, 600 (9th Cir. 1999).
Here, unlike the Simpson case, the ALJ relied on Dr. Jordan's opinion "in place" of Dr. Reilly's. While relying on Dr. Jordan's assessment would be legitimate if she was the testifying medical advisor, Dr. Jordan was not the testifying medical advisor, but rather a consultative neurologist. On the other hand, Dr. Reilly was Plaintiff's treating physician for his back pain. Furthermore, there was evidence of a possible back injury throughout Plaintiff's medical record. Therefore, it was error for the ALJ to rely on Dr. Jordan's assessment over that of Dr. Reilly because Dr. Jordan was not the testifying medical expert in this case and there was more evidence to support Dr. Reilly's opinion of back injury over the opinion of Dr. Jordan.
Although the ALJ did try to provide some clear and convincing reasons by pointing to several inconsistencies made by the treating physician, he did not do so based on substantial evidence. Citing to a few inconsistencies does not overcome the substantial evidence in the record that Plaintiff sought and was treated for back pain.
Plaintiff contends that proper assessment of the treating physician's opinion would demonstrate that he has a chronic back injury, which imposes more than a slight or minimal limitation. However, Plaintiff's contention is misplaced because even a finding of a chronic back injury is not, in itself, enough to overcome step two of the sequential process. As stated above, step two of the sequential process does not only require an impairment to be identified, but also, whether that impairment significantly limits Plaintiff's basic work activities.
Here, the ALJ did not assess what limitations, if any, the alleged back impairment had on Plaintiff's basic work activities. Instead, the ALJ only found that Plaintiff's complaints of back pain were not credible. As the Government correctly states, the residual functional capacity assessment is missing from the transcript. In order to determine whether Plaintiff's back pain limits his ability to perform basic work activities, the ALJ would need the residual capacity assessment. Since this report is missing, the record is incomplete and remand is proper to develop the record more fully.
3. ADHD
The ALJ did not discuss Plaintiff's ADHD impairment. Neither the severity of ADHD nor its limitations were ever discussed in the ALJ's findings. Only one doctor, Dr. Bruce, diagnosed Plaintiff with ADHD. Without further discussion as to the limitations ADHD has on Plaintiff, the record is incomplete.
4. Seizure
Next, the ALJ addressed Plaintiff's seizures. Although the ALJ found Plaintiff's seizures to be "severe, " he reasoned that since those seizures occurred "secondary to alcohol use, " Plaintiff was barred from claiming disability based on seizures. Under 42 U.S.C. § 423 (d)(2)(C), if a claimant's disability is based, in whole or in part, on alcoholism, benefits are denied. The ALJ must determine whether a claimant's alcoholism is a contributing factor material to the finding of disability. 20 C.F.R. § 416.935. The deciding factor is whether plaintiff would still continue to have seizures if he stopped using alcohol. Sousa v. Callahan, 143 F.3d 1240, 1245 (9th Cir. 1998). Once the ALJ determines that alcohol abuse is a contributing factor material to the finding of disability, plaintiff has the burden of rebutting that determination by presenting evidence as to whether his disability would remain if he stopped using alcohol. Ball v. Massanari. Acting Commissioner of the Social Security Administration, 254 F.3d 817, 821 (9th Cir. 2001); See Sousa, 143 F.3d at 1245.
Here, the ALJ erroneously stated that "Dr. Shapiro testified that he had no reason to believe that the claimant would have any seizure disorder if he were free of alcohol." TR. 20. However, Dr. Shapiro actually testified that "[t]here's insufficient evidence to make that determination." TR. 69 (emphasis added). Dr. Shapiro further testified that in order to determine whether alcohol abuse caused Plaintiff's seizures, there would need to be further evaluation and observation while Plaintiff was sober. Notwithstanding Dr. Shapiro's testimony, the ALJ found that Plaintiff's seizures were, in part, due to his alcohol abuse. There is substantial evidence in the record that Plaintiff had seizures while suffering from "chronic alcoholism." TR. 236, 237, 240, 258, 263, 273.
The ALJ out Plaintiff's "non-alcohol" abuse impairment from those impairments which would remain after Plaintiff stopped using alcohol. It is evident that the ALJ performed the "differentiating" analysis because he states in his decision that only with sobriety is Plaintiff not disabled. Conversely, without sobriety, Plaintiff would be disabled. TR. 21. The ALJ further stated that if Plaintiff "refrained from drinking and established that he could not be trained for basic jobs, the outcome of this decision would be different." TR. 21. In stating this, the ALJ implied that Plaintiff did not meet his burden of providing any evidence that his seizures occurred while he remained sober. In fact, the medical expert, Dr. Shapiro, stated that Plaintiff had not been sober long enough to make a finding that his seizures were not caused by alcohol. TR. 69.
In Plaintiff's Memorandum of Points and Authorities in Support of Summary Judgment, Plaintiff cites to Reddick, to support his proposition that "POMS [Program Operations Manual System] does not have the force of law, but an ALJ cannot simply ignore it." Pl.'s P. A. 18:4-5; 157 F.3d at 728. However, the Reddick court actually stated that "[t]he ALJ's failure to acknowledge the POMS guidelines may be emblematic of the reluctance to acknowledge CFS [Chronic Fatigue Syndrome] that appears to underlie his decision." 157 F.3d at 728. The Reddick court simply-used the POMS guidelines to illustrate their point of the ALJ's hesitation in accepting CFS as a legitimate disability.
Here, although the ALJ misstated Dr. Shapiro's testimony, the evidence, taken as a whole, substantially points to the fact that Plaintiff's seizures occurred while Plaintiff was intoxicated. Furthermore, Plaintiff did not present any evidence to the contrary.
Step Three:
In step three, Plaintiff's impairments must meet the criteria set forth at 20 C.F.R. § 404, Subpart P, Appendix 1. In order to meet the criteria for Listing 12.05(C), Plaintiff must have: 1) an I.Q. of sixty to sixty-nine and; 2) another physical or mental impairment imposing additional and significant work related limitation of function. 20 C.F.R. § 404, Subpart P, Appendix 1, Section 12.05(C)
As discussed above, the ALJ found that Plaintiff suffered from "severe" borderline intelligence. Plaintiff contends that it was error for the ALJ to disbelieve Mr. Epp's testimony without setting forth specific cogent reasons. Plaintiff further argues that if the ALJ had used the testimony of Mr. Epp regarding Plaintiff's ADHD, prong two of Listing 12.05(C) would have been met, and disability would have been found.
In reality, there was no need for the ALJ to set forth specific cogent reasons for disbelieving Mr. Epp's testimony because the ALJ believed him. In fact, within the ALJ's written decision, he points to Mr. Epp's testimony several times. TR. 19, 20. The ALJ used Mr. Epp's testimony, in part, to determine Plaintiff's I.Q. level in step three of the sequential process. Although the ALJ found that Plaintiff met the first prong of Listing 12.05(C), he failed to analyze Plaintiff's ADHD. The ALJ did not discuss ADHD as an impairment, its limitations on Plaintiff's basic work activities, or the overall severity of the impairment. In fact, there is little to no mention of ADHD in the ALJ's decision.
Plaintiff argues that under Listing 12.05(C), he is entitled to benefits because he meets both prongs: 1) he has an I.Q. of sixty to sixty-nine; and 2) he has ADHD. The problem here is that the ALJ did not address Plaintiff's ADHD impairment, or its limitations on Plaintiff's basic work activities. It is not enough to merely have an impairment identified, but the ALJ must assess to what extent the impairment affects Plaintiff. See Fanning, 827 F.2d at 633. Since the ALJ did not assess Plaintiff's limitations due to ADHD, the record is incomplete.
Plaintiff cites to Fanning as the standard in this Circuit for determining whether Plaintiff met the second prong of Listing 12.05(C).Id. at 631. In addressing the second prong of Listing 12.05(C), theFanning court held that an impairment is limiting "when its effect on a claimant's ability to perform basic work activities is more than slight or minimal." Id. The Fanning court remanded the matter for further consideration of whether the claimant's knee injury was slight or minimal. Id. at 634. Here, as in Fanning, the ALJ did not make a determination of whether Plaintiff's ADHD is slight or minimal. Therefore, a showing of ADHD is not enough to meet the second prong of Listing 12.05(C), and remand is thus appropriate to determine what limitations ADHD has on Plaintiff's basic work activities.
Step Four:
Step four asks whether Plaintiff can perform past relevant work. Past relevant work is defined as work that involves substantial gainful activity. See Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001). Substantial gainful activity is work done for pay or profit that involves significant mental or physical activities. Id. At step four, plaintiff bears the burden of showing that he cannot perform past relevant work.Id. Plaintiff's low earnings create a presumption that he cannot perform past relevant work and the burden then shifts to the ALJ. Id. Moreover earnings can be a presumptive, but not a conclusive sign of whether a job constitutes substantial gainful activity. Id. Without such evidence, the ALJ may find that plaintiff engaged in substantial gainful activity. Id.
Here, the ALJ found that Plaintiff had the residual functional capacity to perform his past custodial/janitorial work. TR. 21. However, the ALJ noted that Plaintiff could only perform his past work if he remained sober. Plaintiff argues the ALJ erred when determining that his work at Goodwill constituted substantial gainful activity without investigating his actual activities and earnings. Plaintiff further alleges that under 20 C.F.R. § 416.973 (b), he did not engage in substantial gainful activity because he needed close supervision to perform his work.
At the hearing, Plaintiff made no showing of low earnings while he worked at Goodwill. However, Plaintiff points to low earnings as evidence that work at Goodwill was not substantial gainful activity. Pl.'s P. A. 20:25-28. Taking Plaintiff's earnings into account, the ALJ can overcome the earnings presumption by pointing to substantial evidence that Plaintiff had engaged in substantial gainful activity. Lewis, 236 F.3d at 515. The regulations state five factors to consider when determining Plaintiff's substantial gainful activity: 1) the nature of Plaintiff's work; 2) how well Plaintiff did the work; 3) whether Plaintiff's work was done under special circumstances; 4) whether Plaintiff was self-employed; and 5) the amount of time Plaintiff spent at work. 20 C.F.R. § 404.1573, 416.973.
Not all of these factors are relevant here. Pointing to factor two, Plaintiff argues that because Plaintiff needed close supervision, work at Goodwill does not constitute substantial gainful activity. The only evidence that Plaintiff needed close supervision comes from Plaintiff's own testimony. TR. 34-36. However, even Plaintiff's own testimony does not state that he needed close supervision. Rather, he testified that he could not correctly fill out the paperwork. TR. 34. Whether Plaintiff had close supervision while working at Goodwill is unclear from the record. Furthermore, whether Plaintiff's work at Goodwill was shelter work or competitive employment is unclear. However, it was harmless error when the ALJ concluded that work at Goodwill was substantial gainful activity because even assuming, arguendo, that it was not substantial gainful activity, at step five, the ALJ addressed other work that exists in the national economy Plaintiff can do if he remained sober.
Step Five:
Step five asks whether Plaintiff is capable of performing other work which exists in substantial numbers in the national economy. Here, the ALJ found that Plaintiff could work in a number of different jobs if he remained sober. The ALJ's findings at step five were not disputed, thus it is not at issue.
IV. CONCLUSION
When a district court finds that a decision by an ALJ is not supported by substantial evidence, the court has two choices: the case may either be remanded or reversed for an award of benefits where remand would simply delay the award of benefits. See Smolen, 80 F.3d at 1292. Having reviewed the record in this case, this Court finds that the ALJ erred because:
1) his conclusion to disregard Plaintiff's testimony was not based on a thorough review of the record;
2) the treating physician's assessment was disregarded without setting forth clear and convincing reasons which were based on substantial evidence;
3) the severity and limitations of Plaintiff's ADHD were not discussed nor analyzed; and
4) Plaintiff's limitations from back pain were not discussed as the residual functional capacity assessment was missing from the record;
Because the record is not fully developed, the Court finds that this case should be remanded for additional evidence and findings.
Accordingly, the Court GRANTS Defendant's Motion for Remand, DENIES Plaintiff's Motion for Summary Judgment, and REMANDS this case for further proceedings in accordance with this Order.