Opinion
Civil No. 99-1387-FR.
December 15, 2000
Tim Wilborn, Portland, Oregon, Attorney for Plaintiff.
Kristine Olson, United States Attorney, William W. Youngman, Assistant United States Attorney, Portland, Oregon. Victoria Blais Special Assistant United States Attorney, Seattle, Washington. Attorneys for Defendant.
JUDGMENT
Based on the record,
The decision of the Commissioner is hereby REVERSED, and this case is REMANDED to the Commissioner for further proceedings.
ORDER
IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED, and this action is REMANDED to the Commissioner for further proceedings.
OPINION
The plaintiff, Pamela Cordova, brings this action pursuant to 42 U.S.C. § 1383 (c)(3) of the Social Security Act (the Act), to obtain judicial review of the decision of the Commissioner of Social Security (the Commissioner) denying her application for disability insurance benefits under Title II of the Act.
BACKGROUND
Pamela Cordova filed an application for a period of disability insurance benefits based upon combined impairments, including a cervical spine injury and severe depression and anxiety. She alleged in her application that the date of the onset of her disability was October 15, 1990. The last date Cordova was insured for disability benefits was December 31, 1992. Her application was denied initially and upon reconsideration. After a timely request for a hearing, Cordova, represented by counsel, appeared and testified before Administrative Law Judge Joseph D. Schloss (the ALJ). After the hearing, counsel for Cordova amended the alleged onset date to June 1, 1991 to correspond with Cordova's testimony at the hearing.
On February 4, 1998, the ALJ issued a decision finding that Cordova did not have an impairment which significantly limited her ability to perform work-related functions, and therefore she was not disabled within the meaning of the Act between June 1, 1991, the alleged date of the onset of her impairments, and December 31, 1992, the last day she was insured for disability benefits. The decision of the ALJ became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ.
FACTS
Pamela Cordova was born on May 24, 1944. She has a high school education.
On July 21, 1983, Cordova was working as the manager of a thrift store bakery. She injured her neck when she tried to control a heavy bread rack. She was diagnosed with cervical strain. She was treated with physical therapy and medication. Cordova filed a workers' compensation claim. On June 5, 1985, Dr. Steven Lisook was of the opinion that Cordova was medically stationary. Dr. Lisook recommended that Cordova continue her physical rehabilitation; however, he noted a permanent partial disability thereby limiting Cordova's ability to lift more than twenty pounds and to reach or do work above her shoulders in future employment. TR 155. In 1989, Cordova's condition was assessed as medically stationery, and her unscheduled disability was arranged by stipulation at twenty-five percent. Cordova did not continue to work at the bakery.
During the late 1980's, Cordova was psychiatrically hospitalized on multiple occasions due to suicidal ideation, severe depression, and other related psychiatric disorders. Her psychiatric hospitalizations occurred on October 18, 1985; March 26, 1987; November 20, 1987; and from November 24, 1987 to December 2, 1987. Dr. Jerry Larsen treated Cordova throughout this period. On November 23, 1987, Dr. Larsen wrote that Cordova was "seriously depressed and actively suicidal." Dr. Larsen recommended that Cordova be placed in job training as soon as possible in order to improve her psychological state. TR 226.
Cordova was hospitalized again from December 9-19, 1987 and from October 21-28, 1988 for psychiatric problems. On April 18, 1989, Dr. Larsen wrote to the SAIF claims representative as follows:
As you know, Pam Cordova, SAIF Claim # 4640208A, has been followed in my office since 1985. This patient has shown significant improvement, particularly in late 1987. She was maintained on antidepressants until November of 1987 and then was given small doses of Xanax to help combat anxiety. Again, although significantly improved, it is my opinion that this patient was not stable on or before February 24, 1988. Although I felt it beneficial and recommended that she begin vocational training, unfortunately her condition deteriorated requiring emergent admission to Woodland Park Hospital on October 21, 1988. I have since examined her in my office on several occasions. She is now significantly improved, has entered the job force, is no longer taking medication and in my opinion, on or slightly before February of 1989, she would be considered to be psychiatrically stable. . . .
TR 227.
Cordova was hospitalized again from September 12-21, 1989 for psychiatric problems, including a suicide attempt. She was diagnosed by Dr. Larsen as suffering from chronic depression. TR 228.
Cordova received vocational training as a pharmacy technician. She completed her training in March of 1989 and was hired on a full-time basis; however, she was laid off in October of 1990.
At the hearing, Cordova testified that she began losing interest in anything in the late spring or early winter of 1991. Cordova testified that she spent days with her draperies closed, not answering the telephone, and not leaving her home except for short trips to the grocery store. Cordova testified that her depression was worse between the alleged onset date of June 1, 1991 and December 31, 1992, when her insured status expired, than it was at the time of the hearing before the ALJ on April 24, 1997. Cordova testified before the ALJ that she did not seek medical treatment during the period between the alleged onset date of June 1, 1991 and December 31, 1992, when her insured status expired, because she did not want her doctor to know how depressed she felt for fear that he would hospitalize her. TR 50-51.
Medical records indicate that Cordova saw Dr. David Silver and occasionally Dr. James Donkle for ongoing care from at least December of 1990 through June of 1993. Cordova was not on medication of any type during the period from June of 1991 through December 31, 1992.
On February 3, 1992, Cordova reported to Dr. Silver that she had been feeling nauseous for about a month, and that she lacked motivation during the day. Cordova reported that she had no appetite and was having marital discord. Dr. Silver noted her history of psychiatric problems and suspected somatization, which is the conversion of emotional stress into the production of physical symptoms. TR 175.
Cordova returned to Dr. Silver's office on February 12, 1992. She reported that she had discussed counseling with her husband, who was not interested in counseling. Dr. Silver described Cordova as having had an on-the-job injury with subsequent mental illness. TR 174.
On March 3, 1993, Cordova visited Dr. Silver complaining of neck and back pain she had experienced after she lifted a box off a high shelf. TR 174. On May 7, 1993, an MRI of Cordova's cervical spine revealed a herniated disc at the C4-5 level, which touched the thecal sac, but did not appear to impinge the nerve roots. At the C6-7 level, a disk herniation impressed the thecal sac and did appear to impinge both of the exiting C7 nerve roots. In addition, the C5-6 level showed osteophytic spurs which indicate a slow degenerative condition. TR 171.
Cordova worked part-time as an event receptionist at a sports arena from June of 1994 until September of 1995.
On January 14, 1997, Cordova saw Dr. Richard Rountree for mental health treatment. In July of 1997, Dr. Rountree opined that "Cordova is currently experiencing a chronic depressive condition dating to a few months following her occupational injury in 1984." TR 210. In the Medical Source Statement Concerning the Nature and Severity of an Individual's Mental Impairment, Dr. Rountree reported that Cordova had moderately severe limitations in two categories: 1) the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; and 2) the ability to accept instructions and to respond appropriately to criticism from supervisors. TR 212. Dr. Rountree opined that the date of the onset of the foregoing limitations was "December 1991." TR 214.
CONTENTIONS OF THE PARTIES
Pamela Cordova contends that the Commissioner erred in finding that she had no condition or combination of conditions which significantly impaired her ability to perform work-related activities between the alleged onset date of June 1, 1991 and December 31, 1992, when her insured status expired. Cordova further contends that the ALJ improperly rejected her testimony about her inability to work and improperly rejected the opinions of Dr. Roundtree and Dr. Lisook regarding her physical and mental limitations. Cordova contends that the medical records properly support the inference that her disabling mental and physical impairments had existed prior to the date she was last insured.
The Commissioner contends that there is substantial evidence in the record to support the decision of the ALJ that Cordova suffered no physical or mental impairments between the alleged onset date of June 1, 1991 and December 31, 1992, when her insured status expired. The Commissioner contends that the ALJ applied the proper standards for the evaluation of evidence, and that the decision of the Commissioner should be affirmed.
STANDARD OF REVIEW
The burden of proof rests upon the claimant to establish entitlement to disability benefits. To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to . . . last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for evaluating and determining whether a person is disabled under the Act. 20 C.F.R. § 404.1520, 416.920. At the first step, the plaintiff must prove that he has not engaged in substantial gainful activity after the alleged onset of disability. At the second step, the plaintiff must prove that he has a medically severe impairment or combination of impairments. 20 C.F.R. § 404.1520(c). If, at the third step, the plaintiff proves that his impairment or combination of impairments meets or equals a listed impairment, he is automatically found disabled regardless of age, education, or work experience. If the plaintiff cannot prevail at the third step, he must proceed to the fourth step, where he must prove that he is unable to perform his past relevant work. At the fifth step, the burden shifts to the Commissioner to establish that there is other work available in significant numbers in the national economy that the plaintiff can perform. If the Commissioner establishes that the plaintiff can perform other work, then he is found "not disabled." Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).
The findings of the Commissioner are conclusive [ 42 U.S.C. § 405 (g)], and the decision of the Commissioner to deny benefits will be overturned only if it is not supported by substantial evidence or it is based on legal error. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). Substantial evidence is "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but is "less than a preponderance,"Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997).
In evaluating the evidence, this court looks at the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusion. Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). The trier of fact, and not the reviewing court, must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.Richardson, 402 U.S. at 400; Tackett, 180 F.3d at 1098.
ANALYSIS
The ALJ made the following findings:
The claimant met the disability insured status requirements of the Act on June 1, 1991, the amended date the claimant stated she became unable to work, and has acquired sufficient quarters of coverage to remain insured only through December 31, 1992.
. . . .
The objective medical evidence does not substantiate the physical impairments alleged by the claimant during the relevant period.
The claimant's statements concerning her mental impairments and their impact on her ability to work during the relevant period are not consistent with information in the medical records and her lack of medical treatment during this period. There is insufficient evidence to establish a mental impairment during the relevant period.
During the relevant period, the claimant did not have any impairment, or combination of impairments, which significantly limited her ability to perform basic work-related functions; therefore, the claimant did not have a severe impairment.
TR 20.
In Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), the United States Court of Appeals for the Ninth Circuit explained that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." An impairment is not severe if it has no more than a minimal effect on an individual's physical or mental ability to do basic work activities. Id. A claim may be denied at step two only if the evidence shows that the individual's impairments, when considered in combination, are not medically severe, i.e., do not have more than a minimal effect on the person's physical or mental ability to perform basic work activities. Id. If the evidence presented by the claimant presents more than a "slight abnormality," the step two requirement of "severe" is met, and the sequential evaluation process should continue.Id.
Cordova has alleged the physical impairments of chronic neck and back injuries and the mental impairment of chronic depression. The record in this case contains substantial evidence that Cordova had these physical and mental impairments between June 1, 1991 and December 31, 1992, and that they had had more than a minimal effect on her ability to perform basic work activities. While the majority of the medical records are prior to the alleged onset date of June 1, 1991 or after December 31, 1992, the last date she was insured, the records within this period as well as Cordova's testimony before the ALJ are entirely consistent with the many records documenting these physical and mental limitations from before and after this period.
The court concludes that the ALJ stopped too soon in the analysis of this case when he made the finding that Cordova "did not have any impairment, or combination of impairments, which significantly limited her ability to perform basic work-related functions." TR 20. The court concludes that the case must be remanded to the Commissioner for further proceedings.
CONCLUSION
The decision of the Commissioner is reversed, and this action is remanded to the Commissioner for further proceedings.