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Bales v. Colvin

United States District Court, D. Oregon

May 19, 2015

ISAAC D. BALES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION AND ORDER

PAUL PAPAK, Magistrate Judge.

Plaintiff Isaac D. Bales filed this action December 23, 2013, seeking judicial review of the Commissioner of Social Security's final decision denying his application for disability insurance benefits ("DIB") under Title II of the Social Security Act (the "Act"). This court has jurisdiction over Bales' action pursuant to 42 U.S.C. §§ 405(g) and 1383(e).

Now before the court are Bales' petition (#1) for judicial review and the Commissioner's motion (#18) for remand of Bales' claim to the Administration for further proceedings. It is Bales' position that by erroneously rejecting medical evidence and by erroneously rejecting his own testimony regarding his impairments, the Commissioner failed properly to assess his residual functional capacity after completing step three of the five-step sequential process for analyzing a Social Security claimant's entitlement to benefits, and for that reason failed to carry her burden at step five of the process. In consequence, Bales argues, this court should reverse the Commissioner's decision and remand for award of benefits. The Commissioner largely concedes Bales' various assignments of error, but argues that this court should instead reverse and remand for further proceedings. I have considered all of the parties' briefs and all of the evidence in the administrative record. For the reasons set forth below, the Commissioner's motion for remand is granted, and Bales' action is remanded to the Commissioner for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

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. § 404.1520(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 Administrative Law Judge considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. § 404.1520(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. §§ 404.1520(a)(4)(i), 404.1520(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 140-141; see also 20 C.F.R. § 404.1520(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. § 404.1520(c). The ability to perform basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521(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. §§ 404.1520(a)(4)(ii), 404.1520(c). Nevertheless, it is well established that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), citing Bowen, 482. U.S. at 153-154. "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 S.S.R. 85-28, 1985 SSR LEXIS 19 (1985).

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. §§ 404.1520(a)(4)(iii), 404.1520(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. §§ 404.1520(a)(4)(iii), 404.1520(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 the relevant medical and other evidence in the claimant's case record. See 20 C.F.R. § 404.1520(c). 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, [1] despite the limitations imposed by the claimant's impairments. See 20 C.F.R. § 404.1545(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996).

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. § 404.1520(a)(4)(iv). 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. §§ 404.1520(a)(4)(iv), 404.1520(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. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 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. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566. 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. §§ 404.1520(a)(4)(v), 404.1520(g).

LEGAL STANDARD

A reviewing court must affirm an Administrative Law Judge's decision if the ALJ applied proper legal standards and his or her findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).

The court must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id., citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of the Commissioner. See 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). If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible [of] more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).

SUMMARY OF MATERIAL EVIDENCE IN THE ADMINISTRATIVE RECORD[2]

The parties are familiar with the record, and in light of the Commissioner's concession that the ALJ erred and the parties' agreement that these proceedings should be remanded, I summarize herein only the evidence contained within the administrative record that is directly material to my disposition.

Bales was born June 23, 1961. Tr. 25, 68, 78, 89, 90, 153, 165, 204, 221, 230.[3] When he was a child, Bales was abused by his father both sexually and otherwise physically. Tr. 49, 285, 232, 233, 345, 464. While in college, Bales began remembering that childhood abuse and sought counseling from Edward Versteeg, Psy.D., who diagnosed him with post-traumatic stress disorder ("PTSD") and depression caused by the abuse. Tr. 49, 464-465. Bales continued the counseling relationship with Versteeg off and on from that time onwards, through at least the date of the Commissioner's final decision regarding Bales' application for DIB benefits, Tr. 464-467, although he has had counseling relationships with other medical health care providers during that period of time as well.

Bales established a treating relationship with Lina Takano, M.D., for depression and other concerns, beginning on May 10, 2005. Tr, 285-287. At that time Bales' history of "chronic low-grade depression" was not "as bad" as it had been "before, " but Bales reported feeling that he was "sort of a negative and down person." Tr. 285, 286. Takano prescribed Cymbalta to combat Bales' depressive symptoms. Tr. 286. Bales continued consulting with Takano off and on through at least January 2007. Tr. 255-284.

In September 2005, when Bales was employed as a paralegal at the Cosgrave Vergeer Kester, LLP, law firm, a co-worker touched his genitals through his clothing without his consent. Tr. 34, 39, 230, 277, 339, 345, 384. Bales complained regarding the incident, and the co-worker was fired. Tr. 345. The incident caused the severity of Bales' PTSD and depression symptoms to increase significantly. Tr. 230, 277, 384, 466. Bales began consulting with Versteeg in connection with his increased symptoms of depression following the September 2005 incident on January 2, 2006, Tr. 384, and continued to consult with Versteeg in connection with those symptoms off and on at least through April 2012, Tr. 385-412, 451-461. In connection with each of Bales' approximately seventy consultations with Versteeg over that period (with the exception of the consultation of January 13, 2009), Versteeg recorded in his chart notes either "[n]o significant changes to observe, " "no significant changes to the current assessment, " or (in the majority of cases) both, relative to Versteeg's impressions of January 2, 2006. Tr. 385-412, 451-461.

Bales consulted with Takano again on January 10, 2006, to follow up on previous depression consultations. Tr. 277-278. Bales reported increased PTSD and depression symptoms, and that his situation at work was deteriorating as a result. Tr. 277. Takano continued Bales' Cymbalta prescription, Tr, 278. Bales saw Takano again on January 20, 2006, reporting similar symptoms, and Takano signed forms approving Bales' medical leave of absence from work for 4-6 weeks. Tr. 276. Bales never thereafter returned to work at Cosgrave.

As discussed below, in connection with his March 3, 2010, application for DIB, Bales asserted that he became disabled and unable to work as of January 15, 2007. Tr. 68, 79, 90, 153, 165.

Bales' final consultation with Takano in connection with which there are medical records in the administrative record occurred on January 29, 2007. Tr. 255. At that consultation, Bales reported that he believed it was "time he should get back to work" and that one of his other therapists (Michael Brent, Ph.D.) concurred that he was ready to do so. Tr. 255. Bales reported that his sleep was improved and that he felt more relaxed. Tr. 255. Takano opined that Bales' therapy was going well, and that he would be able to return to work in accordance with his plan by February 1, 2007. Tr. 255.

The administrative record contains no further relevant medical records for Bales from the remainder of 2007 or for any of 2008. References in subsequent medical records and elsewhere in the administrative record indicate that during that period Bales traveled to Europe for a period of months to meet and pursue a possible romantic relationship with a person he had encountered through an online "virtual world" game. Tr. 52, 339, 392, 466. The efforts to pursue a relationship were entirely unsuccessful. Tr. 52, 339, 466. In addition, sporadic references in the record indicate that at some time, possibly during this period, Bales purchased and attempted to run a delicatessen business, without success. Tr. 307.

Following his return to the United States and to Portland, Bales resumed his consulting relationship with Versteeg on January 13, 2009. Tr. 392. At that consultation, Bales reported that he had stopped taking Cymbalta approximately two weeks previously without significant change to his mood. Tr. 392. Versteeg observed that Bales appeared "quite depressed" and assessed him with major depression. Tr. 392.

On November 5, 2009, Bales met for the first time with Leslie J. Christianson, D.O., for a depression/anxiety-management consultation. Tr. 338-339. Christianson assessed Bales with recurrent major depression, anxiety not otherwise specified, and "likely" PTSD. Tr. 339. At that time Bales was taking 100 daily mg of Wellbutrin and 0.5 daily mg of Clonazepam for depression and anxiety, and ...


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