United States District Court, D. Oregon
Marlene R. Yesquen, Black, Chapman, Webber & Stevens, Medford, OR, Attorney for Plaintiff.
S. Amanda Marshall, U.S. Attorney, Adrian L. Brown, Asst. U.S. Attorney, Portland, OR, Jeffrey Staples, Special Asst. U.S. Attorney, Office of the General Counsel Social Security Administration, Attorneys for Defendants.
OPINION AND ORDER
JOHN JELDERKS, Magistrate Judge.
Plaintiff David Peckham brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) under the Social Security Act (the Act). Plaintiff seeks a judgment remanding the action to the Social Security Administration (the Agency) for an award of benefits.
For the reasons set out below, the Commissioner's decision is affirmed.
Plaintiff filed applications for SSI and DIB on June 23, 2009, alleging that he had been disabled since November 1, 2004.
After his claims had been denied initially and on reconsideration, Plaintiff timely requested an administrative hearing.
On August 11, 2011, a video hearing was held before Administrative Law Judge (ALJ) David K. Gatto. At the hearing, Plaintiff amended the date of his alleged onset of disability to January 1, 2009. Plaintiff and Edward Pagella, a Vocational Expert (VE), testified at the hearing.
In a decision dated August 26, 2011, ALJ Gatto found that Plaintiff was not disabled within the meaning of the Act. That decision became the final decision of the Commissioner on October 2, 2012, when the Appeals Council denied Plaintiff's request for review. In the present action, Plaintiff challenges that decision.
Plaintiff was born on June 2, 1969 and was approaching 40 years old when he applied for SSI and DIB benefits and 42 years old at the time of the hearing. Plaintiff completed the 11th grade and has past relevant work experience as a logger and a tree trimmer.
The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520, 416.920. Below is a summary of the five steps, which also are described in Tackett v. Apfel , 180 F.3d 1094, 1098-99 (9th Cir. 1999).
Step One. The Commissioner determines whether the claimant is engaged in substantial gainful activity (SGA). A claimant engaged in such activity is not disabled. If the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant's case under Step Two. 20 C.F.R. § 404.1520(b).
Step Two. The Commissioner determines whether the claimant has one or more severe impairments. A claimant who does not have such an impairment is not disabled. If the claimant has a severe impairment, the Commissioner proceeds to evaluate the claimant's case under Step Three. 20 C.F.R. § 404.1520(c).
Step Three. Disability cannot be based solely on a severe impairment; therefore, the Commissioner next determines whether the claimant's impairment "meets or equals" one of the presumptively disabling impairments listed in the Social Security Administration (SSA) regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has such an impairment is disabled. If the claimant's impairment does not meet or equal an impairment listed in the regulations, the Commissioner's evaluation of the claimant's case proceeds under Step Four. 20 C.F.R. § 404.1520(d).
Step Four. The Commissioner determines whether the claimant is able to perform relevant work he or she has done in the past. A claimant who can perform past relevant work is not disabled. If the claimant demonstrates he or she cannot do work performed in the past, the Commissioner's evaluation of the claimant's case proceeds under Step Five. 20 C.F.R. § 404.1520(f).
Step Five. The Commissioner determines whether the claimant is able to do any other work. A claimant who cannot perform other work is disabled. If the Commissioner finds that the claimant is able to do other work, the Commissioner must show that a significant number of jobs exist in the national economy that the claimant can do. The Commissioner may satisfy this burden through the testimony of a vocational expert (VE) or by reference to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates that a significant number of jobs exist in the national economy that the claimant can do, the claimant is not disabled. If the Commissioner does not meet this burden, the claimant is disabled. 20 C.F.R. § 404.1520(g)(1).
At Steps One through Four, the burden of proof is on the claimant. Tackett , 180 F.3d at 1098. At Step Five, the burden shifts to the Commissioner to show that the claimant can perform jobs that exist in significant numbers in the national economy. Id.
In 1990, Plaintiff jumped off a 192-foot bridge which, Plaintiff alleged, "broke his back." X-rays of Plaintiff's lumbar spine dated February 6, 2006 revealed a mild compression fracture of the superior endplate of the L1 vertebral body. However, treatment notes dated November 24, 2008 noted that x-rays of Plaintiff's lumbar spine dated November 11, 2008 were "entirely unremarkable" with no compression fracture noted.
In notes of a routine follow-up for gout at the Grants Pass Clinic on February 27, 2009, Plaintiff's treating physician, Dr. Marcel Wiggers, stated that Plaintiff confirmed having stiffness in his knees but denied having swelling, warmth, locking or instability. Plaintiff also denied having any current symptoms relevant to his gout but reported having spasms and stiffness. On examination, Dr. Wiggers noted normal strength and tone bilaterally, and all sensory and reflexes within normal limits bilaterally. Plaintiff exhibited bilateral paraspinal muscle spasm and paraspinal muscle spasm on the right but straight leg tests were negative. Dr. Wiggers diagnosed back pain with normal lumbar x-ray, knee pain with evidence of joint space narrowing on x-ray and "no gout since on allopurinol."
In a visit to Dr. Wiggers on April 27, 2009, Plaintiff complained of pain in his knees and low back. Plaintiff reported Vicodin was no longer controlling his pain but that an Endocet he had taken from his wife had worked very well. Plaintiff asked whether he could use Endocet and also requested a referral to a pain specialist. Dr. Wiggers noted Plaintiff was in no apparent distress, had a normal gait, was negative on the straight-leg raising test and that his back was not particularly tender to palpation. Dr. Wiggers prescribed Endocet and continued Plaintiff on allopurinol for this gout but declined to refer him to a pain specialist, noting that from a health perspective he was "not sure that a pain specialist would have much to add at this point."
During a clinic visit on July 14, 2009, Plaintiff reported muscle spasms and low back pain as well as bilateral knee pain. Dr. Wiggers encouraged Plaintiff to quit his use of tobacco and continue his weight loss, prescribed "a few" Percocet with no refill and suggested that Plaintiff use primarily ibuprofen.
On October 12, 2009, Plaintiff reported intermittent, diffuse low back pain. Dr. Wiggers noted that Plaintiff appeared protective of his back and was shuffling, although in a "symmetrical shuffle." Dr. Wiggers noted tenderness over the paravertebral muscles, refilled Plaintiff's prescriptions for Percocet and Flexeril and prescribed a short course of prednisone to decrease local inflammation.
At the request of the Agency, Dr. Thomas Brent Shields, Ph.D., performed a comprehensive psycho-diagnostic consultative examination of Plaintiff on November 9, 2009. Dr. Shields noted that Plaintiff's grooming and hygiene were adequate, his gross and fine psychomotor activity unremarkable, his gait slow with mild pain behavior, his affect appropriate and that he appeared mildly anxious but that his mood was more euthymic as the evaluation progressed. Plaintiff reported that his ability to work was limited by lower back problems, knee problems, gout and anxiety and depression. Plaintiff reported that he was in pain and that he didn't like to be around crowds of people but liked to stay home. Dr. Shields noted that Plaintiff admitted he had a history of methamphetamine, cannabis and alcohol abuse and had never been diagnosed or treated for a mental disorder or taken any psychotropic medications. Based on Plaintiff's self-report, Dr. Shields assessed Plaintiff as independent in his daily living skills but that he could not do household chores except to take a small kitchen garbage bag outside and standing at the counter in order to prepare a meal hurt his back. Dr. Shields diagnosed Plaintiff with anxiety disorder not otherwise specified, adjustment disorder with anxiety and depressed mood related to his current living and financial situation and pain complaints.
In notes of a visit on December 29, 2009, Dr. Wiggers noted that results of an MRI taken on December 21, 2009 revealed mild degenerative disk disease at the L4-5, L5-S1 levels with facet spondylosis at these levels as well, but no compression fracture, disk protrusion, spinal stenosis or significant neural foraminal narrowing. Dr. Wiggers noted that Plaintiff "states however that his pain is quite severe" and that he often took more than one Percocet daily. Dr. Wiggers prescribed a one month supply of Percocet with no refills, provided Plaintiff with samples of Aleve and suggested that Plaintiff try Naprosyn to provide better pain control than ibuprofen.
In a visit to the Grants Pass Clinic on January 21, 2010, Plaintiff reported that his left knee was swollen and painful and that the pain felt like gout. Plaintiff reported that he had been taking his allopurinol as prescribed and had not had fevers or chills but had been "moving a lot more firewood in the last few days." Upon examination, Plaintiff's left knee was slightly swollen with ballotable fluid and mild tenderness along the medial and lateral joint lines as well as posteriorly. Dr. Caroline Brown, M.D. opined that this was likely a traumatic effusion from excessive twisting and squatting although it was possible that it was gout. Plaintiff was reluctant to allow a fluid draw to confirm a diagnosis and requested a short course of prednisone. Dr. Brown concluded that this course of treatment was reasonable. However, she noted that Plaintiff smelled of alcohol and cautioned him about the gastric effects of combining alcohol, ibuprofen and prednisone.
On February 1, 2010, Michael O'Connell, Ph.D., conducted an independent psychological assessment of Plaintiff. Dr. O'Connell reviewed Plaintiff's records, interviewed Plaintiff, summarized Plaintiff's medical and psychological history, conducted a mental status examination and psychological testing and set out his diagnoses. Dr. O'Connell described Plaintiff's grooming and hygiene as "satisfactory, " his social skills as "adequate, " and his affect as depressed with restricted range. He noted that Plaintiff's description of past substance ...