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Bartlett v. Colvin

United States District Court, D. Oregon

May 21, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


STACIE F. BECKERMAN, Magistrate Judge.

Donna Bartlett ("Bartlett") appeals the Commissioner of Social Security's ("Commissioner") final decision denying her application for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The Court has jurisdiction over Bartlett's appeal under 42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons set forth below, the Court affirms the denial of Bartlett's application for Supplemental Security Income.


Bartlett was born in February 1958, and she was fifty-three years old on June 22, 2011, the amended alleged disability onset date.[1] She has a twelfth-grade education and past relevant work experience in general clerical positions arranged by a temporary employment agency. Bartlett stopped working in 2005 and currently serves as the legal guardian of her two grandchildren, ages ten and twelve at the time of the administrative hearing. Bartlett alleges disability and seeks benefits under the Social Security Act, due primarily to pain, swelling, and weakness caused by arthritis in her feet, hips, and hands.

On April 20, 2010, about one month before Bartlett protectively filed her current application, Bartlett visited her primary care physician, Dr. Jason Pilcher ("Dr. Pilcher"), complaining of increased arthritis-related pain and requesting an increased dosage of Vicodin. Although Bartlett appeared in "no acute distress" upon physical examination, Dr. Pilcher nonetheless agreed to adjust Bartlett's Vicodin prescription. (Tr. 246.)

On July 12, 2010, Bartlett completed an Adult Function Report in support of her application for Supplemental Security Income. Bartlett indicated that she takes care of her two grandchildren and has some difficulty with everyday activities, such as personal care, preparing meals, house and yard work, shopping, walking, writing, rising from a seated position, bending at the waist, holding household items, driving, and getting dressed, due to arthritis-related pain in her hips, hands, and feet. Bartlett described her typical day as consisting of cooking breakfast whenever possible, taking her pain medication, sending her grandchildren off to school, gardening and working in the yard when she is having "a better day, " and cleaning and preparing dinner with the assistance of her grandchildren. (Tr. 189.)

On August 18, 2010, Bartlett was seen by Dr. Derrick Sorweide ("Dr. Sorweide") for a comprehensive orthopedic examination. Despite complaints of chronic and debilitating pain due to arthritis and bursitis, Dr. Sorweide's examination revealed that Bartlett was in "no acute distress, " was able to sit, stand, and walk without difficulty, had no swelling in her hands, wrists, elbows, shoulders, ankles, knees, or hips, was "able to get her fingers to touch her toes while standing with [her] legs straight, " and evidenced "[l]ots of symptom exaggeration" and "[p]oor motivation." (Tr. 258.) Dr. Sorweide ultimately concluded that Bartlett was capable of working on a full-time basis, and suggested that Bartlett might be malingering:

This is a patient with nothing in her history or physical to imply any limitation in her ability. Her story just does not add up. Stopping smoking, exercise, [nonsteroidal anti-inflammatory drugs] and antidepressants should be used. There is no indication here for narcotic use.... Her asthma' is from smoking, and for now is nonlimiting.
Based on History and Physical, patient can work [eight-hour] days and [forty] hour weeks....

(Tr. 258; see also Tr. 256.)[2]

Eight days later, on August 26, 2010, Dr. Richard Alley ("Dr. Alley"), a non-examining state agency medical consultant, reviewed Bartlett's medical records. Dr. Alley concluded that Bartlett did not suffer from an "[i]mpairment or combination of impairments [that would] significantly limit [her] physical or mental ability to do basic work activities." (Tr. 64.) Dr. Alley also noted that Bartlett's subjective complaints were disproportionate to the objective evidence and Bartlett's activities of daily living.

Bartlett presented for a follow-up visit with Dr. Pilcher on August 31, 2010. According to Dr. Pilcher's treatment records, Bartlett appeared "well-nourished, well developed, alert, in no acute distress" upon physical examination, and she denied experiencing joint or hip pain. (Tr. 264.) Dr. Pilcher noted that Bartlett's arthritis "mainly affects her hands/feet/knees, " and "instructed [Bartlett] to exercise regularly." (Tr. 263-64.)

On October 5, 2010, Bartlett underwent an x-ray of her left foot, which revealed "a transverse partially healed fracture near the base of the fifth metatarsal bone." (Tr. 268.) When Bartlett presented for a follow-up visit with Dr. Pilcher on October 20, 2010, she reported decreased pain in her left foot with the use of an orthopedic shoe. She also reported that she suffered the injury about a week before the x-ray. Dr. Pilcher instructed Bartlett to wear a low-top walking boot for the next four weeks.

Bartlett was seen for a follow-up visit with Dr. Pilcher on December 1, 2010. Bartlett reported an increase in arthritis-related pain and asked to use Vicodin more frequently throughout the day. Dr. Pilcher declined to alter Bartlett's Vicodin prescription and instructed her to begin a low-fat diet and exercise on a regular basis.

On January 6, 2011, Dr. Linda Jensen ("Dr. Jensen"), a non-examining state agency medical consultant, reviewed the medical treatment records in Bartlett's file. Dr. Jensen recommended the affirmance of the Commissioner's initial decision to deny Bartlett's application for Supplemental Security Income, because she determined that Bartlett's condition was non-severe, and that Bartlett's subjective complaints were disproportionate to the objective medical evidence of record and Bartlett's activities of daily living.

On October 11, 2011, Bartlett visited Dr. Pilcher's office and complained of increased pain and swelling in her left foot. Dr. Pilcher noted that Bartlett appeared in no acute distress upon physical examination, but there was a "large tender lump on [the] top of her [left] foot." (Tr. 330.) Bartlett returned to Dr. Pilcher's office about two weeks later to discuss her pending application for Supplemental Security Income. In his progress note, Dr. Pilcher stated, among other things, that Bartlett "has too much pain [so] she has to take [V]icodin daily [and would be] unable to focus on [a] job as a result, " and that he felt Bartlett was "significantly disabled due to general osteoarthritis." (Tr. 331-32.)

During a consultation on January 27, 2012, Dr. Pilcher informed Bartlett that "her insurance want[ed] her to have [appointments] for her medications." (Tr. 340.) Bartlett expressed some concern "about swelling in her fingers at times." (Tr. 340.) Bartlett underwent x-rays of both hands shortly thereafter, which revealed "osteoarthritic change at the base of each thumb... more prominent on the left than the right." (Tr. 343.) She also underwent an x-ray of the lumbar spine, which revealed "preservation of the stature of the lumbar vertebral bodies, " with "minor spondylolytic spurring the lower thoracic and upper lumbar levels, " as well as "mild to moderate disk [sic] space narrowing at L5-S1." (Tr. 344.)

Bartlett had a follow-up visit with Dr. Pilcher on April 24, 2012. Bartlett reported "severe pain in the back of her right knee off and on, " but acknowledged that the combination of prednisone and Vicodin "seem[ed] to help her pain issues."[3] (Tr. 352.) Bartlett presented with "severe [posterior] left knee pain" upon physical examination. (Tr. 353) (emphasis added). Dr. Pilcher's office provided Bartlett with an early refill of her husband's prescription for hydrocodone, but informed Bartlett that her husband's prescription would "not be refilled early next time." (Tr. 353.)

Dr. Pilcher completed a Physical Residual Functional Capacity Questionnaire ("PRFCQ") on June 7, 2012, regarding Bartlett's physical impairments. Dr. Pilcher noted that he had been treating Bartlett for approximately seven years, that Bartlett had been diagnosed with osteoarthritis, and that Bartlett experiences severe pain on a daily basis in her feet, hips, hands, and back, as evidenced by "weak grip strength, stumbl[ing] occasionally, [and] poor balance." (Tr. 354.) Dr. Pilcher indicated that Bartlett was not a malingerer, would need unscheduled breaks every ten to fifteen minutes and could sit, stand, and walk for less than two hours during an eight-hour workday, was incapable of performing "even low stress' jobs, " did not need to use a cane, and could never lift twenty pounds and rarely lift ten pounds or less. (Tr. 354-56.)

An Administrative Law Judge ("ALJ") convened a video hearing on June 25, 2012, at which Bartlett testified about the physical limitations resulting from her impairments. Bartlett stated that she did not believe she was capable of returning to full-time, competitive employment. Bartlett explained that she suffers from painful arthritis in her feet, hands, and hips, which negatively affects her ability to sit, stand, walk, reach overhead, climb stairs without slipping, kneel, grasp with either hand, operate a motor vehicle, shop for groceries, get dressed, tie her shoes, write, comb her hair, and consistently attend her grandson's cello concerts, parent-teacher conferences, and doctor appointments. Bartlett also noted that she experiences some auditory limitations from an unspecified birth defect, but does not wear hearing aids. She estimated that she needs to rotate between seated and standing positions every five to ten minutes due to arthritis-related pain; that her pain would cause her to arrive late or miss work on a weekly basis; and that, at a minimum, she would need unscheduled breaks every ten to fifteen minutes during an eight-hour workday.

The ALJ posed four hypotheticals to a vocational expert ("VE") who testified at Bartlett's hearing. First, the ALJ asked the VE to assume that a hypothetical worker could stand, sit and walk about six hours in an eight-hour workday, lift ten pounds frequently and occasionally lift twenty pounds, operate non-forceful foot controls such as an accelerated pedal or brake, climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. The hypothetical worker, however, was precluded from operating any forceful foot controls (e.g., controls that required "constant" or "a great deal of" pressure) and climbing ladders, ropes, and scaffolds, and needed to avoid work environments with loud background noise and exposure to hazards such as heights and dangerous moving machinery. (Tr. 54.) The VE testified that the hypothetical worker could maintain Bartlett's prior work as a general clerk.

Second, the ALJ asked the VE to assume that the general clerk job did not qualify as past relevant work experience and to identify whether there were other appropriate occupations for a hypothetical worker of Bartlett's age, education, and work experience. The VE testified that the hypothetical worker could be employed as a general cashier, fast food worker, or cafeteria attendant. The VE classified these positions as light, unskilled jobs with Specific Vocational Preparation ("SVP") levels of two.[4] The VE further testified that there were 335, 000 general cashier jobs in the national economy, including 1, 000 jobs in the regional economy of Medford, Oregon; two million fast food ...

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