United States District Court, D. Oregon
OPINION AND ORDER
PAUL PAPAK, Magistrate Judge.
Plaintiff George Manos filed this action on August 13, 2013, seeking judicial review of the Commissioner of Social Security's ("Commissioner") final decision denying his application for disability and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("the Act"). This court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Manos argues that the Administrative Law Judge (ALJ) erred (1) in his evaluation of the medical evidence of record in his findings under Listing 12.07; (2) in his failure to obtain testimony from a psychological medical expert; and (3) by failing to include Manos's severe mental impairments, including depression and anxiety, in the assessment of Manos's residual functional capacity ("RFC"). I have considered the parties' briefs and all of the evidence in the administrative record. For the reasons set forth below, the Commissioner's final decision is reversed and this case is remanded for further proceedings.
Manos protectively filed for a period of disability and DIB on March 3, 2010, alleging a disability onset date of August 15, 1995, and seeking benefits through his last insured date of December 31, 1998 ("the relevant time period"). Tr. 19. After his application was denied initially and upon reconsideration, Manos requested a hearing before an ALJ.
The ALJ hosted three separate hearings on January 10, March 1, and June 5, 2012. Manos, medical expert Dr. Lawrence Duckier, M.D., and vocational expert ("VE") Richard Hincks all testified at the first hearing. Tr. 19. At that hearing, the ALJ determined that a neurologist would be required to properly develop the record regarding Manos's non-physical conditions so he set a supplemental hearing. Tr. 98-99. At the second hearing, Dr. David Huntley, M.D., a neurologist, testified and VE Hincks was present but did not testify. Tr. 19. Dr. Huntley was called away, however, for an emergency procedure and the hearing was set over pending his next availability. Tr. 62-64. At the third hearing, Dr. Huntley appeared and completed his testimony and another VE, Thomas Weiford, appeared but did not testify. Tr. 19. Manos was represented by counsel at the hearings.
On June 14, 2012, the ALJ issued a decision finding Manos had not been disabled in the relevant time period within the meaning of the Act. Id After the Appeals Council denied review on June 17, 2013, Manos filed a complaint in this court.
DISABILITY ANALYSIS FRAMEWORK
To establish disability within the meaning of the Act, a claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The Commissioner has established a five-step sequential process for determining whether a claimant has made the requisite demonstration. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. § 416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
At the first step, the ALJ considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 416.920(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will proceed to the second step.
At the second step, the ALJ considers the medical severity of the claimant's impairments. See Bowen, 482 U.S. at 140-41; see also 20 C.F.R. § 416.920(a)(4)(ii). An impairment is "severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 416.920(c). The ability to perform basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 416.921(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(ii), 416.920(c). Nevertheless, it is well established that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen, 482 U.S. at 153-54). "An impairment or combination of impairments can be found not severe' only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual[']s ability to work." Id. (quoting SSR No. 85-28).
If the claimant's impairments are severe, the evaluation will proceed to the third step, at which the ALJ determines whether the claimant's impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d).
If the claimant's impairments are not equivalent to one of the enumerated impairments, between the third and the fourth steps the ALJ is required to assess the claimant's residual functional capacity (RFC), based on all of the relevant medical and other evidence in the claimant's case record. See 20 C.F.R. § 416.920(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related physical and/or mental activities on a regular and continuing basis,  despite the limitations imposed by the claimant's impairments. See 20 C.F.R. § 416.945(a); see also SSR No. 96-8p.
At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. § 416.920(a)(4). If, in light of the claimant's RFC, the ALJ determines that the claimant can still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable of performing his or her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden of proof shifts, for the first time, to the Commissioner.
At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's age, education, and work experience to determine whether a person with those characteristics and RFC could perform any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner meets her burden to demonstrate the existence in significant numbers in the national economy of jobs capable of being performed by a person with the RFC assessed by the ALJ between the third and fourth steps of the five-step process, the claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits if the Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g).
SUMMARY OF ADMINISTRATIVE RECORD
Manos was born on January 30, 1956. Tr. 231. Manos filed for DIB for the relevant time period of August 15, 1995, through December 31, 1998, during which he was between the ages of 39 and 42. Tr. 19. Manos filed on the basis of both physical and non-physical conditions including posttraumatic stress disorder, dual identity disorder, left shoulder and right collar bone injuries, and epilepsy. Tr. 251. Manos is a college graduate with a bachelor's degree in computer science and mathematics. Tr. 73. He worked as a car salesman from 1987-90, a paralegal from 1990-95, and a computer teacher from 2003-04. Tr. 252. Manos was incarcerated in a Washington State correctional facility from October 1995 through 1999. Tr. 72. Accordingly, the medical evidence of record primarily consists of the records of treating physicians and examiners at the Washington State Department of Corrections. Tr. 390.
On March 29, 1996, while incarcerated, Manos underwent a psychological examination by Dr. David Johnston, a psychiatrist. Tr. 396. Manos reported depression, prior substance abuse, suicidality, and a history of being abused as a child. Tr. 397. Manos admitted to cocaine abuse during 1976-84, and methamphetamine abuse during 1987-89 and 1995-96. Id Dr. Johnston diagnosed Manos with depressive disorder NOS, amphetamine abuse, cannabis abuse, a history of cocaine abuse, borderline personality disorder, and antisocial personality traits. Tr. 398-99.
In May 1996, Manos visited Dr. Johnston for a psychiatric progress report. Tr. 395. Dr. Johnston noted that Manos was sleeping well, getting along with staff and inmates, and that his affect was full range. Id. He spoke with Dr. Johnston about being shuck in his left arm and shoulder by a door. Id. Manos believed this may have aggravated his pre-existing shoulder injury. Id.
In June 1996, Manos visited institutional doctors for his shoulder pain and advised him to use his aim more consistently to prevent additional complications. Tr. 376. Manos's medical charts express that his range of motion was improving and that Manos had followed through with recommended exercises regarding the injury he sustained in the prior month. Id.
In August 1996, Manos reported to Dr. Johnston that he was sleeping normally and maintaining a positive mood. Tr. 394. He reported being gratified by his job as a teaching assistant and attested to keeping a generally busy routine. Id. Manos listed symptoms of shoulder pain and relative sedation during the early hours of the day from a medicine prescribed by Dr. Johnston, amitriptyline. Id.
In November 1996, Manos once again presented to Dr. Johnston and reported that he felt well until the holiday season began to approach, stating that it was instilling feelings of depression within him. Tr. 393. He had no difficulty sleeping, no difficulty with his appetite, and happiness due to a promotion at work. Id. Manos reported to Dr. Johnston that he had prepared a computer assembly tutorial video, that he was reading, studying, attending training sessions, and that he was maintaining concentration on his performance at work and in general. Id. Dr. Johnston noted that Manos denied having suicidal thoughts, attested to his enjoyment of daily activities, and described Manos's affect as "very bright." Id. Dr. Johnson assessed Manos with bouts of situational, rather than seasonal, depression due to being separated from his family during the holidays. Id. Dr. Johnson further noted that Manos's prior claims, made at a time unclear from the record, regarding attention deficit hyperactive disorder were not credible in light of his overall performance at work and in classes. Id.
In January 1997, Manos presented to Dr. Johnston for a scheduled visit and noted concerns about his seventeen year old daughter's health problems. Tr. 392. Dr. Johnston noted that Manos was bright and pleasant, denied having sleep problems, and had been enjoying his work. Id. Dr. Johnston opined that Manos's depression was in remission and that he continued to suffer only situational stressors. Id.
In May 1997, Manos presented to Dr. Johnston with concerns over difficulty with his left mm and shoulder. Tr. 391. Dr. Johnston noted that Manos had consulted with an orthopedic physician who did not recommend activity restrictions related to his complaints. Id. Manos reported a good mood, and Dr. Johnston noted that Manos's depression ...