Opinion
No. 3:18-cv-00118-HZ
03-13-2019
ANTHONY B., Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.
Merrill Schneider SCHNEIDER KERR & ROBICHAUX P.O. Box 14490 Portland, OR 97293 Attorney for Plaintiff Renata Gowie US ATTORNEY'S OFFICE - DISTRICT OF OREGON 1000 SW Third Avenue, Suite 600 Portland, OR 97204 Thomas M. Elsberry SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 701 Fifth Avenue, Suite 2900, M/S 901 Seattle, WA 98104 Attorneys for Defendant
OPINION & ORDER Merrill Schneider
SCHNEIDER KERR & ROBICHAUX
P.O. Box 14490
Portland, OR 97293
Attorney for Plaintiff Renata Gowie
US ATTORNEY'S OFFICE - DISTRICT OF OREGON
1000 SW Third Avenue, Suite 600
Portland, OR 97204 Thomas M. Elsberry
SOCIAL SECURITY ADMINISTRATION
Office of the General Counsel
701 Fifth Avenue, Suite 2900, M/S 901
Seattle, WA 98104
Attorneys for Defendant HERNÁNDEZ, District Judge:
Plaintiff Anthony B. brings this action seeking judicial review of the Commissioner's final decision to partially deny Plaintiff's claim for supplemental security income (SSI) and fully deny Plaintiff's claim for social security disability insurance (SSDI) benefits before May 1, 2014. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). The Court reverses the Commissioner's decision and remands for further proceedings.
PROCEDURAL BACKGROUND
Plaintiff applied for SSI and SSDI on December 24, 2013, alleging an onset date of March 31, 2010. Tr. 93-112. His applications were denied initially and on reconsideration. Tr. 143-49, 157-62. On May 24, 2016, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge ("ALJ"). Tr. 45-90. On August 29, 2016, the ALJ found Plaintiff not disabled before May 1, 2014, but disabled after that date. Tr. 39. The Appeals Council denied review. Tr. 1-6.
FACTUAL BACKGROUND
Plaintiff alleges disability based on arthritis in his shoulders and hands, hernia, COPD, neuropathy in hands and feet, sleep apnea, tendonitis in both hands, and history of prostate cancer. Tr. 103. At the time of the hearing, he was 58 years old. Tr. 103 (stating date of birth). He completed high school. Tr. 54. Plaintiff has past relevant work as a steel inspector. Tr. 37.
SEQUENTIAL DISABILITY EVALUATION
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.
In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 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 not disabled.
In step three, the Commissioner determines whether plaintiff's impairments, singly or in combination, meet or equal "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; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity ("RFC") to 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 the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
THE ALJ'S DECISION
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. Tr. 28. Next, at steps two and three, the ALJ determined that, since the alleged onset date of disability, Plaintiff has severe impairments of prostate cancer and bilateral shoulder disorder. Tr. 29. Beginning on the established onset date of disability, May 1, 2014, the ALJ determined that Plaintiff had the additional severe impairment of a left foot disorder. Tr. 29. The ALJ determined that, since the alleged onset date of disability, Plaintiff's impairments did not meet or equal the severity of one of the listed impairments. Tr. 31.
At step four, the ALJ concluded that before May 1, 2016, Plaintiff had the RFC to perform medium work as defined in 20 C.F.R. §§ 404.1567(c), 416.967(c) and SSR 83-10, except that Plaintiff "could frequently climb ramps and stairs; climb ladders, ropes, or scaffolds; balance; stoop; kneel; crouch; or crawl." Tr. 32. He could also perform frequent overhead reaching. Tr. 32. However, beginning on May 1, 2014 and thereafter, the ALJ concluded that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b) except that Plaintiff can stand or walk a combined total of 4 hours and sit for six hours. Tr. 35. He can occasionally climb ramps or stairs or climb ladders, ropes, or scaffolds; crouch or crawl. Tr. 35. He can frequently balance, stoop, or kneel. Tr. 35. He can occasionally reach overhead bilaterally. Tr. 35.
With the pre-May 1, 2014 RFC, the ALJ determined that Plaintiff was capable of performing past relevant work as a steel inspector. Tr. 37. In addition, Plaintiff could perform the following jobs that exist in significant numbers in the national economy: industrial cleaner, busperson, and lab equipment cleaner. Tr. 37. With the RFC applicable on May 1, 2014 and thereafter, the ALJ found that Plaintiff is unable to perform his past relevant work. Tr. 38. Continuing at step five, the ALJ determined that under the RFC applicable on May 1, 2014 and thereafter, there were no jobs that exist in significant numbers that Plaintiff was able to perform and thus, he was disabled beginning on May 1, 2014 and continuing thereafter. Tr. 38-39.
The consequences of the ALJ's determinations are that Plaintiff is considered disabled for purposes of his SSI claim, beginning May 1, 2014, but is not disabled at all for the purposes of his SSDI claim because he failed to establish disability before September 30, 2013, his date last insured. Tr. 26, 38-39.
STANDARD OF REVIEW
A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings "are based on legal error or are not supported by substantial evidence in the record as a whole." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).
DISCUSSION
Plaintiff argues that the ALJ erred by establishing an arbitrary onset date of disability that is not supported by substantial evidence. Plaintiff asks this Court to reverse and remand the ALJ's decision for the ALJ to consult with a medical advisor to infer the onset date of Plaintiff's disability. Defendant contends that the ALJ provided substantial evidence supporting the determined onset date of disability and, thus, was not required to consult a medical advisor. The Court finds that the ALJ erred because she was required to consult a medical advisor.
Two recent cases from the Ninth Circuit offer guidance on how to resolve this case. In Diedrich v. Berryhill, the Court held that the ALJ erred by not calling a medical advisor at the hearing to determine the correct onset date of Diedrich's disability. 874 F.3d 634, 636 (9th Cir. 2017). The Court reached the opposite conclusion a few months later in Wellington v. Berryhill, 878 F.3d 867 (2017).
In Diedrich, the claimant (Diedrich) applied for SSI and SSDI benefits on August 26, 2009, based on a variety of mental health issues. Id. at 636. She alleged an onset date of October 1, 2002. Id. at 637. A Disability Determination Services ("DDS") psychological consultant concluded that as of the date of Diedrich's application, she was disabled. Id. This conclusion entitled Diedrich to SSI benefits. Id. However, because her date of last insured was 14 months before she applied for and was granted a finding of disability, she was not entitled to SSDI benefits because her disability had not begun before her Title II insurance expired. Id.
Diedrich appealed the decision, arguing that the ALJ should have used a medical advisor to determine the onset date of her disability. The Ninth Circuit agreed. The Court held that determining when Diedrich became disabled required an informed inference, made with the assistance of a medical expert, because the alleged onset date (October 1, 2002) and date last worked (not specified) were far in the past from the date of Diedrich's application (August 26, 2009) and adequate medical records were not available. Id. at 639. Diedrich's record showed that she "did not see a psychologist until years after her alleged onset date; there are no mental health records for nearly two years surrounding her date last insured, and the next available records supported a finding of disability; and she suffered inconsistent but increasingly severe symptoms over the seven years between her alleged onset date and the disability onset date found by the Commissioner." Id.
The Court relied on Social Security Ruling 83-20, Titles II & Xvi: Onset of Disability, (S.S.A. 1983) (hereinafter, "SSR 83-20") to reiterate the Court's past holding that "where a record is lacking and ambiguous as to the onset date of disability, 'the ALJ must call a medical expert to assist in determining an onset date.'" Id. (quoting SSR 83-20). The Court explained:
This SSR was recently rescinded and replaced by the agency. See https://www .ssa.gov/OP_Home/rulings/di/01/SSR83-20-di-01.html (last accessed March 2, 2019). However, it was in effect at the time of the ALJ's decision and Defendant does not dispute its applicability. "Social Security Rulings [ ] do not carry the 'force of law,' but they are binding on ALJs nonetheless. They reflect the official interpretation of the [Social Security Administration] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations." Molina v. Astrue, 674 F.3d 1104, 1113 n.5 (9th Cir. 2012) (internal quotation marks and citation omitted); Diedrich v. Berryhill, 874 F.3d 634, 638 (9th Cir. 2017)
This requirement makes sense. Sometimes, the onset of disabilities occurs all at once, and the date of onset is clear. For example, when a claimant is permanently injured in a car wreck, there is rarely a dispute over the date of the crash. But sometimes conditions build
slowly over time. In such cases, it helps to have medical expertise to determine when the symptoms became severe enough so that the claimant became disabled under Title II.Id. at 639.
A few months after the Diedrich decision, the Ninth Circuit again relied on SSR 83-20 to address a similar issue in Wellington v. Berryhill, 878 F.3d 867 (2017). In Wellington, however, the Court concluded that the ALJ's failure to call a medical advisor at the hearing was not error. Id. at 870.
Wellington applied for SSI and SSDI benefits on December 24, 2009, based on a variety of mental health issues. Id. at 871. She first saw a specialist for mental health troubles on May 26, 2010. Id. Her mental health worsened after that visit. Id. Wellington's date of last insured was December 31, 2008. Id. The ALJ found that her disability onset date was May 26, 2010, based on the date she visited the mental health specialist. Id. This finding made Wellington ineligible for SSDI but eligible for SSI from that date forward. Id.
Wellington argued that the ALJ should have called a medical advisor to help determine her disability onset date. Id. at 872. The Court disagreed. After summarizing several of its prior rulings regarding an ALJ's obligation to call a medical advisor, the Court concluded that the requirement "most readily applies when an incomplete record clearly could support an inference that a claimant's disability began when there were no contemporaneous medical records." Id. at 873-74. "Because SSR 83-20 applies when it may be possible to infer disability onset during a significant gap in the medical records, the ALJ should also enlist a medical expert's help when the evidence is ambiguous regarding the possibility that the onset of her disability occurred at that time." Id. at 874 (internal quotation marks omitted).
The Court explained that SSR 83-20 did not apply where, as in Wellington, "the available evidence clearly could not support an inference of disability onset during a gap in the medical records." Id. at 874. In addition, "a medical advisor is unnecessary when, based on 'the nature of the impairment (i.e., what medical presumptions can reasonably be made about the course of the condition),' an ALJ can reasonably and confidently say that no reasonable medical advisor could infer that the disability began during a period for which the claimant lacked medical documentation." Id. (quoting SSR 83-20). The Court cited the fact that Wellington's medical records included about three dozen encounters with medical providers, which gave an adequate chronology of Wellington's mental health during the 17-month period between her alleged onset date and the first psychological examination. Id. at 875. In addition, the evidence contradicted the possibility that Wellington's mental health issues were so severe as to prevent her from working prior to the disability onset date set by the ALJ. Id. at 875-876.
Here, Plaintiff applied for SSI and SSDI on December 24, 2013. His date of last insured was September 30, 2013. He alleged a disability onset date of March 31, 2010, but the ALJ found that Plaintiff was disabled as of May 1, 2014. Before May 1, 2014, the ALJ found severe impairments of prostate cancer and bilateral shoulder disorder. After May 1, 2014, the ALJ noted the same severe impairments but added the severe impairment of a left foot disorder.
Plaintiff argues that the ALJ's selection of May 1, 2014 as the established disability date is arbitrary and not supported by substantial evidence. On May 31, 2014, Plaintiff was seen by consultative examiner Dr. Jonathan Harrison, who diagnosed Plaintiff with (1) left achilles tendinopathy; (2) bilateral shoulder impingement syndrome with rotator cuff tendinopathy on the right, likely involving the supraspinatus and also the subscapularis; and (3) hand and toe arthropathy, likely secondary to gout. Tr. 489. Dr. Harrison opined that Plaintiff could stand and walk up to four hours, due to the Achilles tendinopathy. Id. He also found that it was medically necessary for Plaintiff to use a soft boot. Id. at 489-90. He limited Plaintiff to occasionally lifting and carrying 50 pounds and frequently lifting and carrying 25 pounds. Id. at 490. He found that Plaintiff could occasionally climb, stoop, kneel, crouch, and crawl because of his Achilles tendinopathy and shoulder impingement/rotator cuff tendinopathy. Id. He also limited Plaintiff to occasional reaching. Id.
State agency medical consultants Dr. Neal Berner and D.O. Sharon Meyers reviewed the medical records and provided opinions in June and November of 2014, respectively. Their opinions provided limitations as of the date of filing in December of 2013. Tr. 109, 122. The agency consultants limited Plaintiff to standing and walking for four hours, because of the Achilles tendinopathy, and sitting for six hours. Tr. 99, 122. Plaintiff was limited to occasionally lifting and carrying 20 pounds and frequently lifting and carrying 10 pounds. Id. He was also limited to occasional climbing of ramps, stairs, ladders, ropes, and scaffolds; and occasionally crouching and crawling; due to Achilles tendinopathy and toe arthropathy. Tr. 99, 122-23. He was further limited from overhead reaching, due to his shoulder impingement. Tr. 99, 123.
The ALJ found that the stand/walk and manipulative limitations imposed prior to May 1, 2014 by Dr. Harrison "could not be supported by the medical evidence." He also gave little weight to the agency consultant's opinions about limitations prior to September 30, 2013 because there was "insufficient evidence" and little weight to their opinions prior to May 1, 2014 because "it is excessive and with scant evidence to support it." Tr. 35. The ALJ cited an x-ray of March 2014 that found Plaintiff's left foot "unremarkable." Tr. 34 (citing Tr. 484). However, he failed to explain how the x-ray results factored into his conclusion about Plaintiff's foot disorder or what changed as of May 1, 2014 for the restrictions from Dr. Harrison and the agency consultants to be credited.
Plaintiff argues that an x-ray would not show soft tissue impairments, such as tendons. A medical advisor could help the ALJ infer the date of onset, taking the x-ray into account. It is not clear whether the x-ray result factored into the ALJ's conclusion.
The ALJ did not incorporate the restrictions recommended by Dr. Harrison or the state agency consultant restrictions into the pre-May 1, 2014 RFC. Tr. 32. However, the RFC for May 1, 2014 and thereafter incorporated many of the recommended restrictions, reflecting the ALJ's conclusion that Plaintiff's left foot disorder was a severe impairment after May 1, 2014, and that there was an increased severity of Plaintiff's shoulder impairment, compounded by symptoms attributable to prostate cancer. Tr. 35-36. The restrictions incorporated into the post-May 1, 2014 RFC were enough to render Plaintiff disabled.
Plaintiff argues that the ALJ established an arbitrary onset date of May 1, 2014, based on Dr. Harrison's examination of Plaintiff on May 31, 2014. Plaintiff argues that he suffered from Achilles tendonitis for several years before Dr. Harrison's examination. He points to medical records in which the diagnosis of Achilles tendonitis appears on his active "problem list." The tendonitis appears to have been entered in the medical records on April 29, 2011, and then repeated as a problem in 2012, 2013, and 2014. See, e.g., Tr. 325, 466, 475. Plaintiff also had "pain in joint, ankle and foot" noted since 2011. Tr. 465, 492. Achilles tendonitis is listed as a diagnosis on September 9, 2013, a few weeks before Plaintiff's date of last insured. Tr. 704-10. The chart notes indicate that Plaintiff was having symptoms due to the tendonitis and would need to "readdress his exercise/stretching program." Tr. 709 (noting "Achilles tendon enlargement and tenderness"). On March 25, 2014, Plaintiff was seen by a physical therapist and podiatrist for his tendonitis. Tr. 536. Dr. Harrison described Plaintiff's left ankle tendonitis, with pain located around his Achilles tendon as "a progressive history," likely starting when Plaintiff was in college. Tr. 485. According to Plaintiff, these records are inconsistent with a conclusion that his foot disorder was severe only as of May 1, 2014. Instead, Plaintiff argues that this suggests that the impairment was present for several years prior to the established onset date.
Plaintiff argues that Diedrich controls this case. According to Plaintiff, as in Diedrich, his limitations developed and worsened over many years, yet these was no opinion evidence from a treating or examining source prior to Dr. Harrison's exam. Plaintiff contends that the lack of evidence results in the need for an informed medical inference. Defendant argues that the ALJ's decision was based on a "legitimate medical basis," Def. Brief 5, ECF 20, and that Diedrich is distinguishable for two reasons: (1) Plaintiff's date of last insured was not as remote from established onset date as it was in Diedrich; and (2) Plaintiff's date of last insured was not a factor in the finding of non-disability at the initial or reconsideration stages of his disability application. Id. at 7.
The Court fails to see the significance of the facts cited by Defendant as distinguishing this case from Diedrich. True, in Diedrich the time period between the date of last insured and the established onset date was 14 months; in this case it was 7 months. It is also true that in Diedrich the agency determined at the initial stages that she was disabled as of the date of her application; here, there was no finding of disability until the ALJ found Plaintiff disabled after May 1, 2014. However, neither of these factual distinctions help the Court decide how to apply the considerations of the Diedrich court about the need for a medical advisor's input. Nor does Diedrich limit its holding to cases in which the medical evidence was lacking or ambiguous prior to the date of last insured, as opposed to prior to the date of disability onset and the date of last insured. Instead, Diedrich and Wellington inform this Court that the need for a medical advisor's input about onset date depends on whether the record is lacking and ambiguous as to the onset date, and whether the incomplete records could support an inference that a claimant's disability began when there were no contemporaneous medical records or it may be possible to infer disability onset during a significant gap in the medical records.
Here, the record is lacking and ambiguous as to Plaintiff's disability onset date. As noted above, the medical record contains notations of Plaintiff's Achilles tendonitis as early as 2011. However, from April 29, 2011 until March 25, 2014, the medical records appear to merely repeat the listing of Achilles tendonitis as a "problem." See, e.g., Tr. 713. There do not appear to be additional treatment notes until March 25, 2014, when Plaintiff was given the walking boot and treatment by the physical therapist and podiatrist. On May 31, 2014, Dr. Harrison noted that the problem was progressive. There is no opinion evidence, however, close to the time of Plaintiff's date of last insured—the first available record (Dr. Harrison's opinion) supports a finding of disability. Therefore, the Court is unable to determine why the ALJ determined that May 1, 2014 was an onset date supported by substantial evidence, as opposed to an earlier date such as March 25, 2014, when Plaintiff received treatment for the tendonitis, or an earlier date that would precede his date of last insured. The ALJ found that Dr. Harrison's stand/walk limitations were not supported by the medical evidence prior to May 1, 2014, but they were supported after May 1, 2014—the only new medical evidence in May of 2014 is Dr. Harrison's own assessment, which suggests that if he had done the examination a month or two earlier (or perhaps in September of 2013), the ALJ would have found the stand/walk limitations applicable prior to May 1, 2014. In this sense, the records are similar to those in Diedrich—Plaintiff did not see Dr. Harrison until years after his alleged onset date, there are few or unhelpful medical records for the period surrounding his date of last insured, and the first record supporting a finding of disability (Dr. Harrison's May 31, 2014 assessment) is actually after the date of disability chosen by the ALJ, highlighting the imprecision in determining an accurate onset date.
The Court also notes key differences between this case and Wellington. In Wellington, the medical records provided an adequate chronology of the period between the claimant's alleged onset date and the first examination by a qualified examiner. Wellington, 878 F.3d at 875. Here, such a chronology does not exist. In addition, this case is unlike Wellington, where the Court determined that a medical expert could not reasonably infer that Wellington became disabled before her first visit with a qualified examiner. Id. The records showed that, prior to the visit with the qualified examiner, Wellington had periods of time where her disabling symptoms disappeared, she made good progress, and she no longer needed medication. Id. Here, there is no evidence that medical treatment successfully relieved Plaintiff's symptoms prior to his visit with Dr. Harrison. If anything, the records show that the most significant symptoms Plaintiff suffered due to tendinitis began more than two months before his examination by Dr. Harrison.
Because the record is inadequate before Plaintiff saw Dr. Harrison and a reasonable medical advisor could infer that his disability began before May 1, 2014, the Court concludes that SSR 83-20 required the ALJ to consult a medical advisor before determining Plaintiff's disability onset date. It may be that an advisor would concur with the ALJ's finding, or that the advisor would place the date of onset at some point before May 1, 2014, but after the date of last insured. However, with the aid of a medical advisor, "at least the ALJ could exercise an informed judgment based on medical science." See Diedrich, 874 F.3d at 640. ///
CONCLUSION
The portion of the Commissioner's decision finding Plaintiff not disabled before May 1, 2014 is reversed and this case is remanded for further proceedings in which the ALJ calls a medical advisor and otherwise proceeds in a manner consistent with this Opinion.
IT IS SO ORDERED.
Dated this 13 day of March, 2019.
/s/_________
MARCO A. HERNÁNDEZ
United States District Judge