United States District Court, D. Oregon, Portland Division
CORY J. TAYLOR, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security,  Defendant.
OPINION AND ORDER
JANICE M. STEWART, Magistrate Judge.
Plaintiff, Cory J. Taylor ("Taylor"), seeks judicial review of a final decision by the Acting Commissioner of Social Security ("Commissioner") denying his applications for Disability Insurance Benefits ("DIB") under Title II and Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 USC §§ 401-33. This court has jurisdiction pursuant to 42 USC § 405(g). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c). For the reasons set forth below, the Commissioner's decision is reversed, and this case is remanded for an immediate award of benefits.
Taylor protectively filed for DIB on August 30, 2005, alleging a disability onset date of July 23, 2004. Tr. 45-46, 73-75. After his application was denied both initially and on reconsideration, Taylor requested a hearing before an Administrative Law Judge ("ALJ"). Tr. 47-59. On February 13, 2008, Administrative Law Judge ("ALJ") Thomas P. Tielens held a hearing at which Taylor and a Vocational Expert ("VE") testified. Tr. 18-44. On March 27, 2008, the ALJ issued a decision finding Taylor not disabled within the meaning of the Act. Tr. 6-17. On March 19, 2009, the Appeals Council denied Taylor's request for review. Tr. 1-3.
Meanwhile, on July 23, 2008, Taylor protectively filed a second application for DIB as well as an application for SSI, alleging an onset date of June 1, 2003. Tr. 466-67, 598-601. After these claims were also denied both initially and on reconsideration, Taylor requested a hearing. Tr. 509-29.
On May 21, 2009, Taylor filed an action in this court to reverse ALJ's Tielens's decision, Taylor v. Astrue, Case No. 3:09-cv-560-MO. On March 30, 2010, based on the stipulation of the parties (Tr. 447-49), Judge Mosman issued an Order of Remand instructing the ALJ to hold a de novo hearing and:
(1) update the medical record with existing evidence to further clarify the severity of Plaintiff's physical and mental impairments, to include medical source statements; (2) reevaluate all the medical source opinions of record; (3) reevaluate the lay witness statement from Denise Paulus; (4) reevaluate Plaintiff's credibility; (5) reevaluate Plaintiff's residual functional capacity; (6) obtain supplemental vocational expert testimony if necessary; and (8) complete the sequential evaluation process.
On August 24, 2010, the Appeals Council vacated ALJ Tielens's decision and remanded the case to combine Taylor's claims and issue a new decision. Tr. 440-44.
On December 1, 2010, ALJ Steve Lynch held a second hearing at which Taylor testified, as did a Medical Expert ("ME") and a VE. Tr. 410-39. On December 20, 2010, the ALJ issued a decision finding Taylor not disabled within the meaning of the Act. Tr. 376-90. On September 27, 2012, the Appeals Council denied Taylor's request for review, making ALJ Lynch's decision the final decision of the Commissioner. Tr. 351-54; 20 CFR §§ 404.981, 416.1481.
Taylor was 35 years old at the time of his alleged onset date and 41 years old at the time of his second hearing. He attended high school but has had no additional schooling or training since then. Tr. 22. He has past relevant work as a donation driver, moving van helper, and a journeyman baker. Tr. 388. Taylor alleges that he became unable to work on July 23, 2004, due to degenerative disc disease of the lumbar and sacral spine with lumbar scoliosis, pain disorder due to his physical conditions, major depressive disorder, and anxiety disorder with panic attacks.
In construing an initial disability determination, the Commissioner engages in a five-step sequential process. 20 CFR §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140 (1987).
At step one, the ALJ determines if the claimant is performing substantial gainful activity. If so, the claimant is not disabled. 20 CFR §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
At step two, the ALJ determines if the claimant has "a severe medically determinable physical or mental impairment" that meets the 12-month durational requirement. 20 CFR §§ 404.1520(a)(4)(ii), 416.909, 416.920(a)(4)(ii). Absent a severe impairment, the claimant is not disabled. Id.
At step three, the ALJ determines whether the severe impairment meets or equals an impairment "listed" in the regulations. 20 CFR §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 CFR Pt. 404, Subpt P, App 1 (Listing of Impairments). If the impairment is determined to meet or equal a listed impairment, then the claimant is disabled.
If adjudication proceeds beyond step three, the ALJ must first evaluate medical and other relevant evidence in assessing the claimant's residual functional capacity ("RFC"). The claimant's RFC is an assessment of work-related activities the claimant may still perform on a regular and continuing basis, despite the limitations imposed by his or her impairments. 20 CFR §§ 404.1520(e), 416.920(e); Social Security Ruling ("SSR") 96-8p, available at 1996 WL 374184.
At step four, the ALJ uses the RFC to determine if the claimant can perform past relevant work. 20 CFR §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot do so, then at step five, the ALJ must determine if the claimant can perform other work in the national economy. 20 CFR §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Yuckert, 482 U.S. at 142; Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir 1999).
The initial burden of establishing disability rests upon the claimant. Tackett, 180 F.3d at 1098. If the process reaches step five, the burden shifts to the Commissioner to show that jobs exist in the national economy within the claimant's RFC. Id. If the Commissioner meets this burden, then the claimant is not disabled. 20 CFR §§ 404.1566, 416.966.
At step one, the ALJ found that Taylor has not engaged in substantial gainful activity since the alleged onset date of disability. Tr. 381. At step two, the ALJ determined that Taylor suffered from the severe impairments of degenerative disc disease of the lumbar and thoracic spine, major depressive disorder, and anxiety disorder (with panic attacks). Tr. 382. At step three, the ALJ found that Taylor's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Id.
To evaluate how his impairments affected his ability to work, the ALJ concluded that Taylor had the RFC to perform light work, except that he can: "lift and carry 20 pounds occasionally and 10 pounds frequently; stand and walk six hours total in an eight-hour day; sit six hours total in an eight-hour day... occasionally climb ramps and stairs; occasionally crawl, crouch, stoop, and kneel; occasionally reach overhead;" but should "never climb ladders, ropes, or scaffolds;... perform no more than frequent fine manipulation with the hands; perform no more than frequent gross manipulation with the hands;" should "avoid concentrated exposure to noxious fumes and odors; avoid work around hazardous machinery; perform only simply, entrylevel work;" and "should have no interaction with the general public, and only routine, social interaction with co-workers." Tr. 383-84.
At step four, the ALJ found that Taylor was unable to perform any past relevant work as a donation driver, moving van helper, or a journeyman baker. Tr. 388. However, at step five, the ALJ found that Taylor was not disabled because he could perform other jobs as a hand packager or a production assembler. Tr. 388-89.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence in the record. 42 USC § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). The court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The reviewing court may not substitute its judgment for that of the Commissioner. Id., citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading. Lingenfelter, 504 F.3d at 1035; Batson, 359 F.3d at 1193.
It is appropriate under the regulations for the Commissioner to render a new, independent decision after a remand from federal court. See 20 CFR § 416.1483-1484. However, when the district court remands a case with instructions, the Commissioner may not disregard the court's order. "Deviation from the court's remand order in the subsequent administrative proceedings is itself legal error, subject to reversal on further judicial review." Sullivan v. Hudson, 490 U.S. 877, 886 (1989).
I. Factual and Medical Background
Only July 23, 2004, Taylor's car was rear-ended while stopped at an intersection. Tr. 191-92, 421. Immediately after the accident, Taylor felt discomfort in his shoulders. Tr. 192. On August 19, 2004, Taylor was examined by his primary care physician at Kaiser Permanente, Steven Levine, MD, MTS, who prescribed Flexeril for the pain and referred him for chiropractic treatment. Tr. 178, 209. On August 30, 2004, Taylor established care with Theresa M. King, DC, PC, at Creston Chiropractic Clinic, after the pain in his neck had "progressively worsened." Tr. 178, 191. On September 9, 2004, Dr. King restricted Taylor to "light duty only" and no lifting, pulling, ...