Parsons v. Commissioner, Social Security Administration, No. 6:2012cv01693 - Document 20 (D. Or. 2013)
Court Description: OPINION AND ORDER. Based on the foregoing, the Commissioner's decision is REVERSED, and this case is REMANDED for further administrative proceedings consistent with this opinion. IT IS SO ORDERED. Signed on 11/21/2013 by Judge Malcolm F. Marsh. (pvh)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON TIMOTHY JOEL PARSONS Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. KATHRYN TASSINARI ROBERT A. BARON 474 Willamette, Suite 200 Eugene, OR 97401 Attorneys for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Ave., Suite 600 Portland, OR 97204 SARAH L. MARTIN Special Assistant United States Attorney Office of the General Counsel Social Security Administration 701 Fifth Ave., Suite 2900 M/S 221A Seattle, WA 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER Case No. 6:12-cv-01693-MA OPINION AND ORDER MARSH, Judge Plaintiff Timothy Joel Parsons brings this action for judicial review of a final decision of the Commissioner of Social Security denying his application for Supplemental Security Income benefits under Title XVI of the Social Security Act, 1381-1385. (SSI) 42 U.S.C §§ This Court has jurisdiction pursuant to 42 U.S.C. 405(g) and 42 U.S.C. § 1383(c) (3). § For the reasons that follow, I reverse the final decision of the Commissioner, and remand this action for further administrative proceedings. PROCEDURAL BACKGROUND Plaintiff December 21, February 9, protectively 2009, SSI on Plaintiff again protectively filed for 2007. filed an application for SSI alleging disability beginning June 1, 2003. Plaintiff's claim was denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (ALJ) . An ALJ held hearings on November 4, 2010 and April 5, 2011, at which plaintiff appeared with his attorney and testified. hearing. A vocational expert also appeared and testified at each At the November 4, 2010 hearing, plaintiff's attorney requested that plaintiff's initial SSI application be re-opened and he amended his alleged onset date to December 21, 2007. 13, 2011, the ALJ issued an unfavorable decision. On April The Appeals Council denied plaintiff's request for review on July 19, 2 - OPINION AND ORDER 2012. final decision therefore became the The ALJ' s decision of the Commissioner for purposes of review. FACTUAL BACKGROUND Plaintiff was born in 1959 and was 49 years old on the date his 2009 application was filed and was a "younger individual" under the regulations. On the date of the ALJ's decision, plaintiff's age category had changed to "closely approaching advanced age." Plaintiff Plaintiff completed 11 years of school, obtained a GED. has past relevant work as a campground attendant, and also has been employed as a boat painter, a roofer, a shrimp picker and a chef. Plaintiff alleges disability based 6n degenerative disc disease, sciatica, and chronic obstructive pulmonary disease (COPD) . THE ALJ'S DISABILITY ANALYSIS The Commissioner has established five-step a sequential process for determining whether a person is disabled. Bowen v. 416.920. Each step Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. is potentially dispositive. at steps one through four. § The claimant bears the burden of proof Bray v. Commissioner of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009); Tackett v. Apfel, 180 F. 3d 1094, 1098 (9th Cir. 1999). The burden shifts to the Commissioner at step five to show that a significant number of jobs exist in the national economy that Yuckert, 482 U.S. at 141-42. 3 - OPINION AND ORDER the claimant can perform. At step one, the ALJ found that plaintiff has not engaged in ~ubstantial At step two, since See 20 C.F.R. §§ application date. medically activity gainful February 2009, 9, the 416.920(b), 416.971 et seq. the ALJ found that plaintiff had the following determinable severe impairments: status post lumbar surgeries and marijuana abuse disorder. See 20 C.F.R. § 416.920(c). At step three, the ALJ found that plaintiff does not have an impairment or combination of impairments that meets or medically equals a listed impairment. See 20 C.F.R. §§ 416.920(d), 416.925, 416.926. The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 416.967(b), except that claimant can stand for four hours and sit for three hours at any one time for a total of six hours each in an eight hour workday; he cannot climb ropes or ladders but can occasionally perform all other postural movements; he can withstand occasional exposure to heights, hazards, and machines due to marijuana abuse; he cannot walk a block at a reasonable pace on rough or uneven ground; he can withstand occasional extreme cold; and can withstand frequent but not continuous vibration. See 20 C.F.R. §§ 416.927, 416.929. At step four, the ALJ found perform any past relevant work. 4 - OPINION AND ORDER that plaintiff is unable See 20 C.F.R. § 416.965._ to At step five, the ALJ found that considering his age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that plaintiff can perform. Accordingly, the See 20 C.F.R. ALJ concluded that §§ 416.969, 416.969(a). plaintiff is not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff contends that the ALJ made several errors: ( 1) improperly discrediting the opinion of James Suiter, his treating nurse practitioner; (2) improperly discrediting the reviewing physician Robin Rose, M.D.; his testimony; and (4) failing to opinion of (3) improperly discrediting demonstrate that plaintiff retains the ability to perform other work in the national economy at step five. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. § 42 u.s.c. 405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). "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." Valentine v. Comm'r Soc. Security Admin., 574 F.3d 685, Cir. 2009). The court must weigh all the evidence, 5 - OPINION AND ORDER 690 Id.; (9th whether it supports or detracts from the Commissioner's decision. Heckler, 807 F.2d 771, 772 decision must be upheld, (9th Cir. 1986). Martinez v. The Commissioner's even if the evidence is susceptible to more than one rational interpretation. Batson v. Comm'r of Soc. Security Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews, 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Batson, 359 F.3d at 1193. DISCUSSION I. Plaintiff's Medical Record The record before me shows plaintiff visited the Springfield, Oregon emergency room (ER) three times on December 11, 17, and 28, These records show that plaintiff had recently moved to 2007. Springfield from Arizona, and that he was without insurance. During the December 11, 2007 ER visit, treatment providers noted an "intense spasm palpable in the lumbar region bilaterally." 343. Tr. Plaintiff was encouraged to follow up immediately with a primary care physician, 343-44. The December and was given Percocet and Valium. 11, 2007 ER treatment notes Tr. clearly demonstrate an objective basis for plaintiff's pain complaints. During the December 17, 2007 visit, plaintiff described that his pain recently had exacerbated, with his left leg feeling very 6 - OPINION AND ORDER hot and "fire-like," and the doctor noted plaintiff moved slowly during the examination. Tr. 341-42. Plaintiff stated that he had Plaintiff again was not yet seen a doctor, and had no insurance. given Percocet and Valium, and was counseled that the ER cannot accommodate pain management. 28, 2007, During his third visit on December plaintiff arrived by ambulance after falling down and injuring his back and left buttock. Tr. 338. Plaintiff stated that he had seen his primary care physician and was scheduled for an MRI. According to the ER pain policy, he \vas given two Vicodin and advised to follow up with his primary care physician. Id. Consistent with plaintiff's explanation to the ER doctors, his medical records show that plaintiff established care with Beth Blumenstein, M.D., on December 21, 2007. Tr. 350. Dr. Blumenstein's treatment notes indicate that plaintiff was in tears, and plaintiff described that he had experienced intermittent low back pain for years, with a sudden exacerbation. Plaintiff reported to Dr. Blumenstein fire-like pain running down his left leg into his foot. Dr. Blumenstein noted that plaintiff had been without any .health maintenance for needed. years, and that an MRI was Plaintiff stated that he could not afford an MRI, and Dr. Blumenstein advised him to apply for Bridge Assistance, a charity care program, and she prescribed Percocet and Valium. Id. Thus, contrary to the ALJ's findings, 7 - OPINION AND ORDER Tr. 350-51. plaintiff's three ER visits and his statements to Dr. Blumenstein and the ER physicians were consistent. An MRI was performed on January 14, 2008, and showed that plaintiff had multilevel neural foraminal narrowing without central canal stenosis. Tr. 352. Because plaintiff was describing pain out of proportion to the MRI results, Dr. Blumenstein referred him to Christopher G. Miller, M.D., a neurosurgeon. On May 6, 2008, plaintiff had an initial consultation with Dr. Miller, who performed an MRI that day. Dr. Miller observed that the MRI showed plaintiff has "advanced degenerative disc collapse at L5-Sl, a little less so at L4-5, but he has severe foraminal stenosis bilaterally, worse on the left at L5-Sl with a broad-based central bulge and actually even some herniation out in the foramen there." Tr. 378. Dr. Miller found that plaintiff's pain had progressed to the point that plaintiff cannot sit comfortably, standing and walking produce intense pain, noting "[i)t is clearly claudication," and that "90% of his symptoms are actually leg pain and claudication, consistent with the stenosis." Id. Dr. Miller recommended decompression surgery instead of a posterior lumbar interbody fusion health. ( PLIF) because plaintiff was generally in poor Dr. Miller noted that plaintiff would not get 100 percent relief from the decompression and would likely need an additional surgery, and that plaintiff was without insurance. 8 - OPINION AND ORDER Tr. 379. On August 21, 2008, plaintiff was Tr. ambulance after falling. 364. brought to the ER via Plaintiff informed the ER physician that surgery had been recommended, but he wanted a second opinion, and plaintiff presented his January 2008 MRI results. Plaintiff was given narcotics and advised to follow up with a primary care physician. In September 2008, plaintiff established Sheffield, a family nurse practitioner. Tr. 428. care with Sarah Ms. Sheffield's treatment notes indicate that plaintiff had seen Dr. Miller, who was recommending surgery. abuse, admitted to Ms. drinking, up gabapentin. to four At a Plaintiff, who has a history of alcohol Sheffield that drinks follow a day. up visit he had recently started Ms. Sheffield prescribed two weeks later, plaintiff continued to complain of pain in the left lower extremity, tingling, burning and numbness. Tr. 427. with Ms. Sheffield noted that plaintiff was in "obvious discomfort" and upon exam discovered "obvious neurologic issu~s in the atrophy of both thigh and calf." [left lower extremity), Id. with Ms. Sheffield's treatment notes indicate that she was coordinating with Dr. Miller to obtain insurance coverage for plaintiff's recommended surgery. 27. Tr. 426- When plaintiff met with Ms. Sheffield in December 2008, she provided "lengthy reassurances" surgery. 9 - OPINION AND ORDER to allay plaintiff's fear of Miller Dr. 2009, of January In spinal a performed decompression surgery in attempt to relieve some of plaintiff's Although plaintiff experienced some initial improvement pain. On March 31, following surgery, the results were not long lasting. 2009, plaintiff met with Sean T. Rabacal, Dr. Miller's Physician Mr. Rabacal observed that plaintiff was still "in a Assistant. fair amount of pain" diffuse across his back and radiating down Rabacal waiting recommended would body plaintiff's On May physician, physical determine to months and plaintiff's if Percocet Id. Sharon 2009, 5, heal, further prescription was refilled. more two Mr. Tr. 389. both legs and that the claudication had returned. B. Eder, nonexamining a M.D., reviewed plaintiff's medical records and completed a residual functional capacity commented that as of January 20, 2009, assessment. Dr. Eder plaintiff complained of years of progressive problems with his back and legs, with pain radiating down his left leg, that standing produces intense pain, sitting is uncomfortable, and walking is worse. Tr. 388. Dr. Eder his advanced also that observed plaintiff's MRI confirms degenerative disc disease, that he is stenotic at L5-Sl and L4-5, and that "he is disabled, cannot work." in February of 2009, plaintiff was Dr. Eder also noted that three weeks out from decompression, that plaintiff could sit and stand comfortably, and his severe burning in his left leg was gone. 10 - OPINION AND ORDER Tr. 388. Based on these records, Dr. Eder concluded that plaintiff was partially credible about his limitations, and provided a "projected RFC" for the healing process, indicating that plaintiff could be expected to perform light work by February 9, 2010. At a follow up visit with Dr. Miller plaintiff continued to complain of pain. on Dr. June 2, 2009, Miller examined plaintiff, noting plaintiff had full strength in his legs, but was tender in the buttocks. showed post-surgical Dr. changes Miller then ordered an MRI, with "moderately severe which bilateral for aminal stenosis LS-Sl and moderate right L4 foramina! stenosis." Tr. 390. Dr. Miller explained that "[h]is MRI scan really looks like he is still very tight in the left LS-Sl foramen" and it looks like he has a broad-based spur in the foramen." Continuing, Dr. Miller observed that plaintiff has "such extensive collapse at that level, that I doubt if there is much disc." Dr. Miller recommended another decompression surgery as quickly as possible to attempt to relieve plaintiff's pain. Tr. 392. In September 2009, Dr. Miller performed another decompression surgery. Again, after the September 2009 surgery, plaintiff experienced some initial relief, but plaintiff reported a flare up of symptoms. In December of 2009, plaintiff noted his pain was better overall, but he still had diffuse low back pain. Tr. 395. At a follow up visit in February of 2010, Dr. Miller recommended a two-level PLIF. 11 - OPINION AND ORDER Tr. 394. Dr. Miller agreed to perform the surgery if approved by insurance. On September 21, 2009, plaintiff established care with James Suiter, a nurse practitioner, for follow up care after a bicycle crash injured three ribs. Tr. 417. In February of 2010, Mr. Suiter's chart notes show that plaintiff appeared uncomfortable sitting in a chair, he had a full range of motion and strength in his lower extremities, and that plaintiff complained of significant back pain. Tr. 416. Mr. Suiter diagnosed chronic pain syndrome with continuous opioid dependency, and depression, insomnia and anorexia Suiter's reflect due to his pain. Mr. plaintiff was no longer using alcohol, Mr. Suiter concurred with notes that but was using marijuana. Dr. Miller's surgical recommendation. A March 10, foraminal 2010 MRI stenosis at showed moderate to severe bilateral L5-S1, dessication at L4-5 and L5-S1. On April 4, marked disc been denied and that Dr. narrowing and Tr. 437. 2010, plaintiff met with Mr. about his pain management. medications. with Suiter, concerned Plaintiff described that surgery had Miller could no longer prescribe pain Mr. Suiter discussed pain options with plaintiff, noting that the clinic pain program was closed and that he would not qualify because he smokes marijuana. Tr. 413. Mr. Suiter's notes reflect that plaintiff would obtain medical marijuana from 12 - OPINION AND ORDER the Oregon Compassion/Pain Center. Tr. 412. In May of 2010, Dr. Miller attempted to set up plaintiff's third surgery, but insurance denied Consistent it. with plaintiff's reports, Dr. Miller indicated that at that time, he· could not treat plaintiff since he was not a surgical candidate, and that plaintiff would need a different treatment provider for pain management. Tr. 436. In June of 2010, plaintiff again saw Mr. Suiter for a follow up on his pain management. Mr. Suiter noted plaintiff's "chronic pain syndrome with continuous opioid dependency which has been significant. He has had very poor response to withdrawal from narcotics in the past" due to his degenerative disc disease. 462. Tr. Plaintiff indicated he would be willing to stop using medical marijuana if necessary to get into a pain management program. Tr. 463. On August 6, 2010, plaintiff saw Peter Petricelli, M.D., for his pain, and requested narcotics. Dr. Petricelli noted that plaintiff had been rejected from one pain clinic because he tested positive for marijuana, and another for being uncooperative. Petricelli was unwilling to prescribe narcotics, Dr. and prescribed Ultram, a non-narcotic, instead. Tr. 458. On August 20, 2010, plaintiff again saw Mr. Suiter for pain, and to attempt to get his surgery approved. Mr. Suiter concurred with Dr. Miller's assessment and the need for surgery. Plaintiff admitted that he was using marijuana and alcohol for his increased 13 - OPINION AND ORDER Plaintiff stated the Ultram was not working, and that his pain. Eventually, problems persisted. plaintiff's third surgery was approved by insurance. On October 30, 2010, Dr. Miller performed the PLIF surgery. At a follow up visit in December of 2010, plaintiff was doing very well, gone, Dr. Miller noted that noting that most of his pain was and that plaintiff had cut back dramatically on his pain medications. On March 1, 2011, Dr. Miller again examined plaintiff and noted that plaintiff was complaining of diffuse pain in his low back, but that plaintiff was progressing "satisfactorily." Miller noted that plaintiff should remove his brace, Dr. and begin Dr. Miller opined that plaintiff's light stretching exercises. recovery would take more than a year, and that by summer he should see considerable improvement. On November 15, 2010, Tr. 515. Robin Rose M.D., conducted a comprehensive review of plaintiff's medical records and opined that plaintiff was capable of standing and walking for three hours, with the ability to change position, and that plaintiff could sit for four hours, with the need to change position every 30 minutes, and that plaintiff occasionally. could lift Tr. 477-94. 10 pounds frequently and 20 pounds Additionally, Dr. Rose indicated that light and sedentary work may be difficult due to unpredictable flares of pain, and that plaintiff would miss more than two days of work per month. Tr. 14 - OPINION AND ORDER 494. On November 23, 2010, Dr. Rose opined that plaintiff has been unable to perform light or sedentary work since December 21, 2007. On January 7, 2011, Seth Kagan, M.D., an examining physician, Tr. 501. performed a physical capacity evaluation of plaintiff. Dr. Kagan observed that plaintiff was able to transfer from the to chair exam the table remove easily, his without shoes difficulty, sit comfortably, and noted that plaintiff limped with Tr. 503-04. the right knee seeming to buckle. Dr. Kagan diagnosed probable neuro foraminal stenosis, and opined that plaintiff could stand and walk for six hours, could sit without limitation, and could lift 100 pounds occasionally and 50 pounds frequently. to Dr. Miller's 2011 opinion and some weight to Dr. Kagan's opinion. The In decision, the the gave ALJ significant weight ALJ also gave significant weight to Dr. Eder's opinion. Ill! Ill! III. The ALJ's Evaluation of the Medical Evidence A. Standards An ALJ may reject a treating physician's opinion when it is inconsistent physicians with if the the opinions ALJ makes of other treating or examining forth specific, findings setting legitimate reasons for doing so that are supported by substantial evidence in the record. F. 3d 1228, 1232 Taylor v. Comm'r of Soc. Sec. Admin., 659 (9th Cir. 15 - OPINION AND ORDER 2011). In general, the opinion of a treating physician is given greater weight than the opinions of (9th 631-32 495 F.3d 625, See Orn v. Astrue, other physicians. Cir, 2007) (treating physician's opinion is given controlling weight if it well-supported is and inconsistent not with the other substantial evidence in the record) . A nonexamining physician treats the claimant. 1995) . is one who neither examines nor Lester v. Chater, 81 F.3d 821, 830 (9th Cir. "The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Taylor, 659 F. 3d at 1233 (quoting Lester, 81 F.3d at 831). nonexamining physician's physician's opinion and opinion the ALJ contradicts gives greater an When a examining weight to the nonexamining physician's opinion, the ALJ must articulate specific and legitimate reasons supported by substantial evidence for doing so. See, e.g., Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) . A nonexamining physician's opinion can constitute substantial evidence if it is supported by other evidence in the record. Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). B. James E. Suiter, Nurse Practitioner Plaintiff argues that the ALJ erred by failing to discuss Mr. Suiter's opinion. address Mr. The Commissioner acknowledges the ALJ failed to Suiter's records directly, 16 - OPINION AND ORDER but alleges the error is harmless. Suiter's I conclude the ALJ's failure to discuss Mr. opinion and evidence is harmful error. Under the social security regulations governing the weight to be to accorded medical sources" "acceptable medical opinions, include licensed physicians and licensed psychologists, nurse 20 practitioners. C.F.R. § 416.913(a), but not Nurse (d) (1). "Other" practitioners are deemed to be "other sources." medical sources may not establish the existence of a medically determinable impairment, but, the information from other sources may provide insight into the severity of a claimant's impairments and ability to work, especially where the evidence is complete and detailed. See SSR 06-03p, available at 2006 WL 2329939, *4-5. Because Mr. an was Suiter "other source" under the regulations, the ALJ was required to provide a germane reason for discounting Mr. Suiter's opinion. F.3d 1113, 1115-16 (9th Cir. See, e.g., Bruce v. Astrue, 557 2009) (explaining standard for lay witness testimony); Turner v. Astrue, 613 F.3d 1217, 1223-24 (9th Cir. 2010). probative" Additionally, evidence has an ALJ must explain why "significant been rejected. Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). The Commissioner's suggestion that Mr. Suiter's opinion and treatment records were not sufficiently probative to warrant the ALJ's discussion is meritless. Mr. Suiter began treating plaintiff in September of 2009, continuing into 2010. 17 -OPINION AND ORDER An October 20, 2010, treatment note syndrome shows with continuous pain/degenerative disc diagnosis plaintiff's "chronic of secondary dependency opioid Mr. disease.n observed Suiter pain to that plaintiff had difficulty walking, noting that plaintiff was barely ambulatory, and he opined that plaintiff is "basically disabled due to his extensive back pain issues. Tr. n Mr. 451. Suiter's treatment notes indicate that plaintiff's condition was essentially unchanged from at least June of 2010 through October of 2010. 451, 455, 462. As discussed above, Mr. Suiter concurred with Dr. Miller's opinion that plaintiff required a relief, Tr. was coordinating care with Dr. PLIF to obtain pain Miller, and assisted in Mr. Suiter's obtaining approval for plaintiff's third surgery. chart notes consistently indicate that plaintiff was extremely limited by his severe back symptoms, and that his extreme pain was impairing his ability to sleep and eat. plaintiff's about impairments and his Mr. Suiter's observations functional limitations constitute significant probative evidence that the ALJ could not reject without comment. Thus, the ALJ's failure to discuss and weigh this significant probative evidence was error. I reject the Commissioner's suggestion that the error was harmless because Mr. Suiter's 2010 opinion was inconsistent with Dr. Miller's March 2011 opinion. specious. 18 - OPINION AND ORDER The Commissioner's argument is Dr. In March of 2011, Miller stated that plaintiff should experience "significant improvement" in his symptoms by summer of 2011 following plaintiff's third surgery. While the ALJ purported to give Dr. Miller's 2011 opinion "significant weight," the ALJ failed to account for Dr. Miller's earlier opinions recommending surgery. More critically, the ALJ omitted entirely any discussion of Dr. Miller's 2008 MRI results showing advanced degenerative disc disease, severe bilateral foraminal stenosis, disc herniation, and Claudication, operative stenosis. changes Tr. 2009 the or with 2010 moderately 390, 378, and MRI results severe showing bilateral Plaintiff's post- foraminal degenerative disc disease and chronic pain did not remain static through the relevant adjudicatory period. As the treating specialist who performed the bulk of the objective tests verifying plaintiff's complaints, Dr. Miller's opinions were entitled to the greatest weight. F.3d at 1224. Orn, 495 The ALJ's failure to failure to credit Dr. Miller's various opinions or to provide specific reasons for discounting them was error. C. Robin Rose, M. D . Dr. Rose opined that plaintiff could not work for eight hours a day, would be absent from work at least two days a month due to unpredictable pain, and has been unable to perform sedentary or light work since December 21, 2007. The ALJ gave the opinion of Dr. Rose, a nonexamining physician, little weight because it was 19 - OPINION AND ORDER not supported by medically acceptable laboratory and clinical diagnostic techniques, she was a reviewing physician, the opinion was inconsistent with other substantial evidence in the record, and because she is not a neurologist. Plaintiff argues that Dr. Rose's medical opinion is consistent with the opinion of Dr. opinion the than weight Miller, of and thus, Kagan, Seth should be given more an M.D., examining The Commissioner contends that Dr. Rose's opinion was physician. contradicted by Dr. Kagan and nonexamining agency physicians, and therefore, the ALJ reasons for rejecting Dr. Rose's opinion were sufficient. I Dr. disagree that Kagan's opinion provides a basis for rejecting Dr. Rose's opinion in light of the record as a whole. Dr. who Kagan, plaintiff after neuro foraminal stenosis, diagnosed probable plaintiff could However, Dr. is not work his examined perform work at the heavy third and surgery, opined exertional that level. Kagan's opinion that plaintiff could perform heavy internally consistent with his observation that plaintiff could not walk a block at a reasonable pace on an uneven surface. Tr. 507-12. Moreover, Dr. Kagan's opinion that plaintiff could perform heavy work after three back surgeries is simply not supported by substantial evidence in the Kagan's opinion in January of 2011 fails record. Dr. to take into account plaintiff's condition throughout the relevant period. 20 - OPINION AND ORDER Lastly, I Furthermore, contention that Dr. am persuaded not by Commissioner's the Rose's opinion is contradicted by Dr. Eder. Dr. Eder reviewed plaintiff's medical records in May of 2009, and projected that based on plaintiff's initial improvement after his first surgery, plaintiff would be able to perform light work by However, Dr. Eder also indicated that in January February of 2010. of 2009, plaintiff was disabled and that his pain complaints were Dr. Eder's 2009 opinion did not consider verified by MRI findings. plaintiff's subsequent stenosis moderately severe bilateral based the Thus, record as whole, a including continued and additional surgeries. history, medical the ALJ has not provided specific and legitimate reasons for rejecting Dr. Rose's opinion. I conclude that Dr. Rose's opinion is consistent with the various opinions of Dr. Miller and Mr. Suiter, and is consistent with the medical record as a whole. III. Plaintiff's Credibility To determine whether claimant's a testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. 20 C.F.R. § 416.929. The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that expected to produce the symptoms alleged. 533 F.3d 1035, 1039 (9th Cir. 1273, 1282 (9th Cir. 1996). 21 - OPINION AND ORDER 2008); could reasonably be Tornrnasetti v. Astrue, Smolen v. Chater, 80 F. 3d At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear claimant's severity the regarding testimony for reasons convincing and discrediting the of the symptoms. Carmickle v. Comm'r Soc. Security Admin., 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ must make findings that are sufficiently specific to permit that conclude to court reviewing the 2002); Factors Orteza v. the ALJ determinations claimant's Barnhart, Thomas v. Shalala, consider may include treatment F. 3d 50 278 F.3d 947, objective the history, the 533 958 750 (9th making medical claimant's (9th Cir. Cir. such 748, when not Tommasetti, arbitrarily discredit the claimant's testimony. F.3d at 1039; ALJ did the 1995). credibility evidence, the daily activities, inconsistencies in testimony, effectiveness or adverse side effects of pain any medication, and relevant character evidence. Tornrnasetti, 533 F.3d at 1039. At the November 4, 2010 hearing, plaintiff appeared in a wheelchair because the hearing was held just five days following his third back surgery. Oxycodone, Enocet and Plaintiff testified that he was taking Soma following his surgery. Plaintiff described that he started experiencing back pain in 2007, and that at that time, he could control his pain with one Oxycodone per day. Tr. 51. Plaintiff stated that in 2008, he was lying on the couch 22 - OPINION AND ORDER most of each day trying to get comfortable. Plaintiff testified that due to extreme pain he cannot eat and that he sleeps only four hours a night. At the April 5, 2011 hearing, plaintiff testified that he had cut back to 50 Oxycodone per week (down from 100), and was taking medication for his COPD and heartburn. Plaintiff testified that he weighed around 130 pounds, up from 113 pounds, because he was using marijuana three times a day as an appetite stimulant, and that he had used marijuana that morning. Plaintiff stated that he could walk one block before his back starts to hurt, down for most of the day. and that he lays Plaintiff stated that he does not have a medical marijuana card because he cannot afford it. Plaintiff testified that he would be re-evaluated by Dr. Miller in the summer of 2011. In the decision, the ALJ found that plaintiff was not entirely credible because he "consistently misled medical practitioners about his drug and alcohol abuse, has exhibited narcotic seeking behavior on several occasions, despite negative exam findings." and has Tr. 17. not attempted to work The ALJ also discredited plaintiff because his activities of daily living were inconsistent with his allegations of pain. I conclude that based on the record as a whole, the ALJ's credibility findings do not reach the clear and convincing standard. 23 - OPINION AND ORDER First, the ALJ's conclusion that plaintiff had "negative exam findingsn is not supported by substantial evidence in the record. On the contrary, as detailed above, plaintiff's medical records, especially those of Dr; claudication, provide overwhelming objective collapse, disc stenosis, plaintiff's documenting evidence Miller, and muscle atrophy supporting his subjective pain Dr. Miller Based on his examination and MRI results, symptoms. Due to recommended surgery in May of 2008. plaintiff's fear of surgery and lack of insurance, that surgery was not performed until January Additional 2009. of MRis Miller resulted in Dr. demonstrate post-surgical changes which recommending, Dr. Miller performed and ultimately performing, September of 2009 and October of 2010. by two more surgeries in the ALJ erred in Thus, discounting plaintiff's testimony on this basis. Second, the ALJ's conclusion that the plaintiff "consistently misledn his treatment providers about his alcohol and marijuana use is not supported by substantial evidence. of alcohol abuse. forthright about Plaintiff has a history My review of the record shows that plaintiff was alcohol his use with his providers, medical admitting to Ms. Sheffield and Mr. Suiter that he was using alcohol Tr. for pain control. 454; 425-27. To be sure, plaintiff's increased alcohol use coincides with those periods where he was deciding whether to pursue surgery in 2008, and while awaiting insurance approval for a third surgery in 2010. 24 - OPINION AND ORDER he was Based on the record a as whole, I the that conclude ALJ erred in discrediting plaintiff on this basis. respect With to plaintiff's use, marijuana Suiter's Mr. treatment notes indicate that plaintiff began using marijuana in early 2010 to combat anorexia, which plaintiff developed secondary to pain. Tr. 412-414. Indeed, plaintiff's weight increased after he started using medical marijuana. noted that plaintiff marijuana usage. Tr. did 463. not On one occasion, Mr. Suiter give However, clear a answer about his the ALJ's conclusion that plaintiff consistently misled his providers is not supported by substantial evidence in the record. Even if the ALJ properly discredited plaintiff on the basis of his inconsistent reports of marijuana use, this reason does rise to the clear and convincing level based on the record before me. Third, the ALJ erred by discrediting plaintiff based on his narcotic-seeking behavior. case. To be sure, this is an unfortunate Plaintiff's complaints of intense pain have been objectively verified by MRis showing advanced degenerative disc disease with stenosis, disc herniation, and claudication. Two surgeries did not provide relief from plaintiff's intense pain, plaintiff has become opioid dependent. and as a result, Plaintiff reported to Mr. Suiter that the non-narcotic pain medications were ineffective. As a result of insurance denials, plaintiff endured a 13-month wait for his third surgery, 25 - OPINION AND ORDER using alcohol and marijuana when opiates none of contrary to the ALJ's suggestion, However, were not available. plaintiff's that denied have providers plaintiff experiences severe pain requiring narcotic pain management. The case law in this Circuit indicates that seeking aggressive pain relief in the form of medication can be a normal response to pain, and may show that a claimant's testimony of debilitating pain is more credible, rather than less credible. 495 F.3d at 638; Orn, see Bridges v. Astrue, 2012 WL 4322735, *5 (D. Or. June 5, 2012), adopted, 2012 WL 4328640 (Sept. 19' 2012) (ALJ erroneously discredited claimant for seeking additional pain medication when her prescription had run out and was not contrary to her doctor's advice) . Moreover, it is evident that the ALJ focused on plaintiff's opioid dependency and marijuana use as a basis to find him not credible and to deny benefits. For example, the ALJ detailed instances where plaintiff was denied narcotics, story was that he needed more surgery. ¢ Tr. 18. and that "[h]is However, it is error for the ALJ to conclude that a plaintiff's drug or alcohol abuse precludes an award of benefits. Rather, "an ALJ must first conduct the five-step inquiry without separating out the impact of alcoholism or drug addiction. ¢ 949, 955 (9th Cir. 2001). record before me, Bustamante v. Massanari, 262 F.3d Therefore, I conclude that based on the the ALJ erred in discrediting claimant on the basis of narcotic-seeking behavior. 26 - OPINION AND ORDER To the extent that the ALJ discredited plaintiff for using the emergency room to assist him with pain control and obtaining a second opinion about surgery in 2008, the ALJ also erred. record clearly establishes that plaintiff is without The financial resources and has had limited insurance coverage throughout the period at issue. The ALJ's failure to consider the substantial evidence of plaintiff's lack of resources or insurance to explain his behavior is erroneous. See Orn, 495 F.3d at 638 (ALJ erred in discrediting claimant based on failure to obtain treatment when unable to afford treatment) . Finally, the ALJ's conclusion that plaintiff's activities of daily living undercut his complaints of pain are not supported by In the decision, the ALJ discredited plaintiff because he is able walk his dog, garden, substantial evidence in the record. clean his trailer, and occasionally play pool. On the contrary, plaintiff stated that he walks his dog one block, trailer is small. and that his Plaintiff stated that he grows strawberries and tomatoes in elevated pots so that he does not have to bend down, and only gardens when he is able. And, the evidence regarding plaintiff's pool playing activities is limited at best. minimal activities is not Sporadic inconsistent with performance of disability. See Orn, 495 F.3d at 639 (daily activities may be used to discredit a claimant where they are inconsistent with other testimony or are transferable to a work setting) ; 27 - OPINION AND ORDER Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (ability to carry out minimal daily activities not inconsistent with disability). In summary, I conclude that the ALJ failed to articulate clear and convincing reasons discrediting plaintiff. IV. supported by substantial evidence for Carmickle, 533 F.3d at 1160. Erroneous Step Five Finding In step five, the Commissioner must show that the claimant can do other work that exists in the national economy. F.3d at The 1043. Commissioner can satisfy this Andrews, 53 burden by eliciting the testimony of a vocational expert with a hypothetical question that sets out all of the claimant's limitations that are supported by substantial evidence. Tackett, 180 F.3d at 1101. In this case, the ALJ failed to properly evaluate the medical opinion evidence and failed to provide clear and convincing reasons for discrediting plaintiff's pain testimony about his symptoms, and those symptoms were erroneously excluded from the plaintiff's RFC. Lingenfelter, 504 F.3d at 1040. It follows that substantial evidence does not support the ALJ's step five determination, since it was based on the erroneous RFC. Osenbrock v. Apfel, 240 F.3d 1157, 1163 (9th Cir. 2001). V. Credit As True After finding the ALJ erred, this court has the discretion to remand for benefits. further proceedings Vasquez v. Astrue, 28 - OPINION AND ORDER or for immediate payment of 572 F.3d 586, 593 (9th Cir. 2009); The issue Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir. 2000). turns on the utility of further proceedings. A remand for an award of benefits is appropriate where there is no useful purpose to be served further by proceedings or where the fully is record developed. The has Ninth Circuit established a three-part test "for determining when evidence should be credited and an immediate award of benefits directed." Harman, 211 F.3d at 1178. The Court should grant an immediate award of benefits when: (1) the ALJ has failed to provide legally sufficient reasons for rejecting such evidence, (2) there are no outstanding issues that must be resolved before a determination of disability can be made, and (3) it is clear from the record that the ALJ would be required to find the claimant disabled were such evidence credited. I d. Where it is not clear that the ALJ would be required to award benefits were the improperly rejected evidence credited, the court has discretion Barnhart, whether 340 to whether F. 3d 871, award to 876 benefits credit the (9th Cir. or remand Connett evidence. 2003). the v. In determining matter for further proceedings, the court must determine whether "outstanding issues remain in the record. ¢ In this case, when the evidence from Mr. Suiter, Dr. Miller, Dr. Rose, and plaintiff is fully credited, plaintiff is disabled for the entire adjudicatory period. Dr. Rose opined that plaintiff has been unable to work at the light or sedentary level since 29 - OPINION AND ORDER December 21, 2007, and that as of November of 2010, plaintiff would miss more than two days of work each month. Mr. Suiter opined on October 20, 2010 that plaintiff was barely ambulatory and unable to Dr. work in his condition. Miller opined in May of 2008, plaintiff suffered advanced degenerative bilateral stenosis, herniation, and disc claudication. Expert Mark McGowan testified at the April 5, more than one absence from competitive employment. work Tr. 103. disease, each that with Vocational 2011 hearing that month would eliminate Accordingly, when the opinions of Mr. Suiter and Drs. Miller and Rose are credited, it is clear that plaintiff has been disabled since February 9, 2009, the date his SSI application was protectively filed.' However, I cannot remand this case for an immediate payment of benefits because the record contains numerous plaintiff's opioid dependency and marijuana abuse. did not find plaintiff disabled, and thus did references to Here, the ALJ not reach the question of materiality concerning his drug and alcohol abuse. If a claimant is found to be disabled and the record includes evidence of drug or alcohol addiction, the ALJ must determine whether the addiction is a contributing 1 factor that is "material" to the The ALJ's decision does not indicate that plaintiff's application was considered for a closed period. Thus, the question of whether plaintiff has experienced medical improvement since the ALJ's decision is not presently before me. 30 - OPINION AND ORDER finding of disability. 42 U.S.C. 423(d)(2)(C); Parra v. Astrue, § 481 F. 3d 742, 746-47 (9th Cir. 2007). In the instant case, Mr. Suiter diagnosed opioid dependency, with poor tolerance for wi thdrawl. At step two, marijuana abuse disorder as severe impairment. the ALJ found At the April 5, 2011 hearing, plaintiff admitted to smoking marijuana that morning and testified that he was still taking 50 Oxycodone. on remand, Accordingly, the ALJ is instructed to make a determination about whether plaintiff's opioid dependency and marijuana abuse is a contributing factor material to his disability. When performing the ALJ drug additional and alcohol step three analysis on findings, remand, including lumbar spinal stenosis and claudication meets or equals Listing 1.04. the whether shall make plaintiff's (or pseudoclaudication) The ALJ shall contact Dr. Miller if necessary to make the additional step three findings. CONCLUSION Based REVERSED, on the foregoing, the Commissioner's and this case is REMANDED for decision further administrative proceedings consistent with this opinion. IT IS SO ORDERED. DATED this ~day of NOVEMBER, 2013. Malcolm F.Marsh United States District Judge 31 - OPINION AND ORDER is
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