United States District Court, D. Oregon, Portland Division
DENISE L. COLLINS, Plaintiff,
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
OPINION AND ORDER
JANICE M. STEWART, Magistrate Judge.
Plaintiff, Denise L. Collins ("Collins"), seeks judicial review of the final decision by the Social Security Commissioner ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 USC §§ 401-33. This court has jurisdiction to review the Commissioner's decision pursuant to 42 USC § 405(g) and § 1383(c)(3). 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, that decision is reversed and remanded for an immediate award of benefits.
Collins originally filed for DIB in July 2006 alleging a disability onset date of February 14, 2005. Tr. 219-25. Her application was denied initially and on reconsideration. Tr. 120-27. On July 14, 2009, after holding a hearing, Administrative Law Judge ("ALJ") Richard A. Say denied her application, finding her capable of performing her past relevant work. Tr. 98-109.
Collins filed again for DIB on August 21, 2009. Tr. 110. On April 6, 2011, the Appeals Council vacated the ALJ's decision, consolidated the two claims, and remanded for a new hearing to consider Collins's mental health impairment. Tr. 111-13. At a second hearing on December 5, 2011, Collins, Sandra Stoner, and a Vocational Expert ("VE") testified. Tr. 39-72. The ALJ issued an unfavorable decision on December 20, 2011. Tr. 16-31. On June 6, 2013, the Appeals Council denied Collins's request for review. Tr. 1-5. Therefore, the ALJ's decision is the Commissioner's final decision subject to review by this court. 20 CFR §§ 404.981, 422.210.
Born in 1956, Collins was 55 years old at the time of the second hearing. Tr. 65, 219. She has a GED and past relevant work experience as a paralegal for the Amalgamated Transit Union ("Union") beginning in February 1993. Tr. 65, 67, 232, 243. She stopped working on February 14, 2005, due to extreme neck pain and fatigue. Tr. 42. At the second hearing, Collins amended her application to the closed period of February 14, 2005, to April 26, 2010, the date she resumed work with her former employer. Tr. 19. Collins alleges that she was unable to work during that closed period due to the combined impairments of fibromyalgia, cervical radiculitis and stenosis, tendonitis, and hepatitis C. Tr. 224, 253.
Disability is the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 USC § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 CFR § 404.1520; Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir 1999).
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) & (b).
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) & (c). 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) & (d); 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); Social Security Ruling ("SSR") 96-8p, 1996 WL 374184 (July 2, 1996).
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) & (e). If the claimant cannot perform past relevant work, then at step five, the ALJ must determine if the claimant can perform other work in the national economy. Bowen v. Yuckert, 482 U.S. 137, 142 (1987); Tackett, 180 F.3d at 1099; 20 CFR § 404.1520(a)(4)(v) & (g).
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 § 404.1520(a)(4)(v) & (g).
The ALJ found that Collins met the insured status requirements of the Social Security Act through December 31, 2010. Tr. 21. To obtain DIB, Collins must prove that her disability existed on or before her date last insured ("DLI"). See Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir 1998).
At step one, the ALJ concluded that Collins has not engaged in substantial gainful activity during the close period between February 14, 2005 and April 26, 2010. Tr. 21.
At step two, the ALJ determined that Collins has the severe impairments of "congenital fusion, in cervical spine post-surgery, fibromyalgia, left shoulder bone infarction, hepatitis C, headaches, diabetes mellitus, and an adjustment disorder with depression and anxiety." Tr. 22.
At step three, the ALJ concluded that Collins does not have an impairment or combination of impairments that meets or equals any of the listed impairments. Tr. 24. The ALJ then found that Collins has the RFC to perform light work, and "can only lift and carry 10 pounds frequently and 20 pounds occasionally, " "can sit, stand and walk for up to 6hours in each activity (cumulatively, not continuously) in an 8-hour workday with normal breaks, " and "could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, crawl, and reach overhead." Tr. 25. However, she "could never climb ladders, ropes, or scaffolds" and is "limited to performing unskilled work and routine tasks." Id.
Based upon the testimony of a VE, the ALJ determined at step four that Collins's RFC precluded her from returning to her past relevant work. Tr. 29.
At step five, the ALJ found that considering Collins's age, education, and RFC, she was capable of performing the light, unskilled jobs of Office Helper and Storage Facility Rental Clerk. Tr. 31.
Accordingly, the ALJ determined that Collins was not disabled at any time during the closed period.
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 USC § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir 2007). This 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. Ryan v. Comm'r of Soc. Sec. Admin., 528 F.3d 1194, 1205 (9th Cir 2008), citing Parra v. Astrue, 481 F.3d 742, 746 (9th Cir 2007); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir 2001). Where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is "supported by inferences reasonably drawn from the record.'" Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir 2008), quoting Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir 2004); see also Lingenfelter, 504 F.3d at 1035.
In 1987, gastroenterologist Kenneth Flora, M.D., diagnosed Collins with hepatitis C from a blood transfusion. Tr. 464.
She also suffers from a congenital cervical spinal fusion that led to degenerative disc disease. Tr. 373. On November 16, 2000, an MRI of her cervical spine showed "moderate to severe central canal narrowing with cord flattening and significant narrowing of the right neural foramen" at C5-6, and a mild bulging disc eccentric to the right "where it causes mild narrowing of the right neural foramen" at C6-7, in addition to her congenital fusion at C3-4. Tr. 547. In 2001, after corticosteroids and physical therapy proved ineffective to treat her disc disease, Collins underwent a cervical spine fusion surgery. Tr. 376. The treatment was intended to stabilize her neck and prevent future paralysis from any possible acute trauma. Tr. 85-86. As a result, Collins's grip strength improved, and she was able to start driving on a limited basis. Tr. 46. However, she continued to experience "lots of pain" after the surgery. Tr. 379.
On February 5, 2003, chiropractor David Mealey, D.C., began treating Collins for chronic head and neck pain and left arm paresthesia (tingling). Tr. 457. He treated Collins for the same symptoms seven more times through June 2003. Tr. 454-57.
At an October 24, 2003 annual exam, Collins described her depression to Brenda Kehoe, M.D. Tr. 365-66. She reported being "emotional, overwhelmed, incapable of coping, [could not] answer calls, or talk to people." Tr. 365. "[E]vents at work that are actually trivial seem huge" and she felt "isolated." Id. Upon palpation, Dr. Kehoe found Collins "very tender on the left side" with "swelling in the region of the left anterior cervical neck chain." Id.
On February 27, 2004, Dr. Mealey again treated Collins for acute pain and noted palpable tenderness in her shoulders. Tr. 453. When Collins's symptoms had not changed after several more treatments in April 2004, Dr. Mealey referred her to a primary care physician. Tr. 452.
On April 30, 2004, Collins sought treatment from Lauren Roberts, M.D., at Portland Family Practice. Tr. 379. She had been experiencing severe pain neck and arm pain for four weeks, could barely lift her left arm, and was tearful and tense. Id. Repetitious movement was especially painful. Id. To help her work, she had taken Oxycontin three or four times, but stopped because it caused nausea. Id. Dr. Roberts assessed Collins as suffering from chronic pain, depression, and diabetes mellitus. Id. She prescribed Celexa for depression, Norco for pain, and told Collins to return in a month to address her depression. Id. That same day, Collins was treated by Dr. Mealey for shooting pain into her head. Tr. 451.
On May 28, 2004, Collins reported to Dr. Roberts that the Celexa was working well. Tr. 377. Her depression was better now that her neck was feeling better. Id. Dr. Roberts noted that Collins was better attending to her diabetes by walking on the treadmill and watching her diet. Id.
Dr. Mealey continued to regularly treat Collins for her chronic neck pain from June 2004 through early 2005 with no major changes in her condition. Tr. 443-450. On February 18, 2005, Collins complained of left hip and thigh pain that emerged two weeks earlier. Tr. 442. Dr. Mealey treated her four times in March 2005 before her leg pain improved, but it returned by April 5, 2005. Tr. 440-42. Collins told Dr. Mealey that she was taking up to three Vicodin per day to manage her pain and was worried about the toxicity of her dosage. Id. On April 26, 2005, Collins reported that twice her legs had "given out" causing her to collapse from "intense pain." Tr. 438. Dr. Mealey continued to treat Collins through June 2005. Tr. 435-38.
On June 6, 2005, Collins sought treatment at Gresham Urgent Care with Charles Wong, M.D., reporting neck spasms after a fall. Tr. 404. Dr. Wong prescribed an increased dosage of Norco. Id. On August 29, 2005, Collins complained of "popping under her left breast." Tr. 403. Dr. Wong ordered X-rays of Collins's chest which revealed "a focal sclerotic lesion within the proximal left humerus, most likely representing a bone infarction." Tr. 419-20.
Collins continued to receive at least bi-monthly treatment from Dr. Mealey throughout the rest of 2005 with no change in her symptoms. Tr. 426-33. On December 6, 2005, she told Dr. Mealey she was unable to return to work and was applying for long-term disability. Tr. 427.
On September 12, 2005, Collins returned to Dr. Wong for follow-up X-rays of her left shoulder which revealed a bone infarction or possibly ...