United States District Court, D. Oregon
BRYAN K. BROWN, Plaintiff,
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.
GEORGE J. WALL, Portland, OR, Attorney for Plaintiff.
S. AMANDA MARSHALL, United States Attorney, District of Oregon, ADRIAN L. BROWN, RONALD K. SILVER, Assistant United States Attorneys, Portland, OR, LARS J. NELSON, Social Security Administration Office of the General Counsel, Seattle, WA, Attorneys for Defendant.
OPINION AND ORDER
MALCOLM F. MARSH, District Judge.
Plaintiff Bryan K. Brown seeks judicial review of the final decision of the Commissioner of Social Security denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C §§ 401-403, and application for Supplemental Security Income (SSI) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383 (c) (3). For the reasons that follow, I reverse and remand for further administrative proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was injured on September 13, 2005, while working as an arborist when a tree fell on him, fracturing his pelvis in multiple places and tearing his urethra. On September 15, 2005, plaintiff underwent a closed reduction and percutaneous pinning of his right sacral fracture, with external fixators, and the urethral tear was repaired. Plaintiff was discharged to a skilled nursing facility. While there, an infection developed around the external fixator pin site and plaintiff was given antibiotics. The infection appeared to have resolved, and plaintiff was discharged.
On October 18, 2005, plaintiff sought emergency treatment for intractable pain, fevers, chills, and sweats and appeared in moderate distress. After cultures were positive for Staphylococcus aureus (MSSA), plaintiff was diagnosed with osteomyelitis (infection of the bone), and his external hardware was surgically removed and the pin tracts debrided. Plaintiff was admitted to a skilled nursing facility were he received intravenous (IV) antibiotics for six weeks and physical rehabilitation. Plaintiff was discharged from the nursing facility in December of 2005. Tr. 623, 656.
In January of 2006, plaintiff was encouraged to continue physical therapy, and was able to ambulate with use of a cane. Plaintiff was released to sedentary work at that time. Tr. 647-49. In May of 2006, plaintiff requested that his workers compensation claim be closed, and he was released to a trial of unrestricted work so that he could pursue employment as a landscaper. Tr. 641. Plaintiff was advised to wean off his opiod medication. Tr. 642.
Plaintiff had several unsuccessful work attempts in 2007 and 2008. In the fall of 2009, plaintiff was receiving in-patient treatment for methamphetamine abuse at the Portland Rescue Mission. On September 29, 2009, plaintiff sought emergency treatment for extreme pain, chills, and tenderness in his hip and gluteus maximus. A CT scan of the pelvis showed sacroiliac fixation screw loosaning with cortical erosions. Further evaluation showed Methicillin-sensitive Staphylococcus aureus infection with osteomyelitis, sacroiliac joint septic arthritis, and bacteremia and he was hospitalized. On October 2, 2009, plaintiff's deep hardware was removed, and he was sent to a skilled nursing facility for a seven week course of IV antibiotics and rehabilitation. On November 19, 2009, plaintiff was prescribed four weeks of oral antibiotics, he was released from the nursing facility, and plaintiff continued substance abuse treatment at Central City Concern.
Plaintiff protectively filed an application for DIB on December 10, 2009, and protectively filed an application for SSI on June 19, 2009. In both applications, plaintiff alleged disability beginning September 13, 2005, due to arthritis in his pelvis, and osteomyelitis. Plaintiff's claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on May 11, 2012, at which plaintiff appeared with his attorney and testified. Vocational expert, C. Kay Wise, and lay witness, Douglas L. Brown, also appeared at the hearing and testified. On June 29, 2012, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review.
Born in 1972, plaintiff was 32 years old on the alleged onset date. Plaintiff completed school through the tenth grade, can communicate in English, and has past relevant work as a foreman/lead worker on an assembly line. Plaintiff has a history of methamphetamine abuse and asserted at the May 11, 2012 hearing that he has been clean and sober for three and a half years.
THE ALJ'S DISABILITY ANALYSIS
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520; 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through September 30, 2007. A claimant seeking DIB benefits under Title II must establish disability on or prior to the last date insured. 42 U.S.C. § 416 (I) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since his alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairments: chronic right posterior pelvic pain status post pelvic fractures and urethral transaction; history of osteomyelitis; hepatitis C; and history of polysubstance abuse. At step three, the ALJ found that plaintiff's impairments, or combination of impairments, did not meet or medically equal a listed impairment.
The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform light work, except that plaintiff can walk up to two hours in an eight hour day for no more than 15 minutes at a time, can stand for four hours for no more than one hour at a time, and has no sitting limitations; he can occasionally climb ramps and stairs; he can never climb ladders, ropes or scaffolds; he can occasionally stoop, kneel, crouch, crawl; he has no balancing limitations; and he cannot be exposed to industrial hazards such as moving machinery or unprotected heights.
At step four, the ALJ found plaintiff is unable to perform any past relevant work. At step five, the ALJ concluded that considering plaintiff's age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that plaintiff can perform, such as production assembly inspector, hardware assembler, and hand packager. Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from September 13, 2005 through the date of the decision.
ISSUES ON REVIEW
On appeal to this court, plaintiff contends the following errors were committed: (1) the ALJ failed to properly evaluate and include physical limitations described by treating physician Jeanne H. Button, M. D.; (2) the ALJ failed to properly evaluate his testimony; and (3) ...