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Muccigrosso v. Colvin

United States District Court, D. Oregon

June 30, 2015

DONALD MUCCIGROSSO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

OPINION AND ORDER

MICHAEL J. McSHANE, District Judge.

Plaintiff Donald Muccigrosso brings this action for judicial review of a final decision of the Commissioner of Social Security denying his application for disability insurance benefits (DIB) and supplemental security income payments (SSI) under Titles II and XVI of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). The issues before this Court are: (1) whether the Administrative Law Judge (ALJ) erred in evaluating the opinion of treating neurological surgeon, Dr. Brett; and (2) whether the ALJ erred in evaluating plaintiff's credibility. Because the residual functional capacity (RFC) did not incorporate functional limitations on repetitive lifting, bending and stooping, or sitting in a stationary position, the Commissioner's decision is REVERSED and this matter is REMANDED for further proceedings.

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiff applied for DIB and SSI on August 3, 2010, alleging disability since May 18, 1998 (later amended to December 31, 2005). Tr. 16, 39, 187-197. These claims were denied initially and upon reconsideration. Tr. 11, 125-32, 137-41. Plaintiff timely requested a hearing before an ALJ, and appeared before the Honorable Riley J. Atkins on December 12, 2012, tr. 16, 34-74. ALJ Atkins denied plaintiff's claims by a written decision dated December 21, 2012. Tr. 16-28. Plaintiff sought review from the Appeals Council, which was subsequently denied, thus rendering the ALJ's decision final. Tr. 1-3. Plaintiff now seeks judicial review.

Plaintiff, born on November 24, 1959, tr. 26, 40, 187, 191, graduated from a four-year university, tr. 40, and worked most recently as a registered nurse, tr. 47, 201-02. Plaintiff was forty-six at the time of alleged disability onset, and fifty-three at the time of his administrative hearing. See tr. 26, 40, 187, 191. Plaintiff alleges disability due to: status post ankle fusion/arthrodesis; right shoulder AC joint arthrosis; and degenerative disk disease with history of laminectomy. See tr. 18, 21, 325-36.

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence on the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). To determine whether substantial evidence exists, this Court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

DISCUSSION

The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's RFC, age, education, and work experience. Id.

Plaintiff contends that the ALJ's disability decision is not supported by substantial evidence and is based on an application of incorrect legal standards. In particular, plaintiff argues that: (1) the ALJ erred in evaluating the opinion of treating neurological surgeon, Dr. Brett; and (2) the ALJ erred in evaluating plaintiff's credibility.

I. Dr. Brett's Medical Opinion

Plaintiff contends that the ALJ erred in evaluating functional limitations identified by Darrell C. Brett, M.D. See Pl.'s Br. 5-9, ECF No. 12. In response, defendant argues that the ALJ's RFC findings are "fully consistent" with Dr. Brett's opined functional limitations. See Def.'s Br. 5-8, ECF No. 13. Because the ALJ expressly adopted Dr. Brett's findings and provided no reason for partial rejection, the issue is whether the RFC incorporated Dr. Brett's opined functional limitations. See tr. 25 ("I give this opinion great weight....").

Plaintiff met with Dr. Brett, who is a neurological surgeon, approximately eight times between May and October 2006 to treat back and leg pain arising from a motor vehicle accident that occurred on December 8, 2005.[1] Plaintiff underwent an extensive lumbar laminectomy on June 14, 2006. Tr. 305.

On June 22, 2006, plaintiff met with Dr. Brett for a follow up appointment. Upon assessment, Dr. Brett reported the following:

[Plaintiff] returns today doing very nicely with resolution of all radicular pain, and he is very pleased with the results of surgery. He has no objective neurologic deficit. His wounds are healing well.... He should remain off work and can gradually increase his activities at home, and he is given instructions regarding abdominal and back strengthening exercises and the principles of back mechanics.... He will be reassessed in six weeks.

Tr. 294.

On August 29, 2006, plaintiff met with Dr. Brett for a reassessment. At that time, plaintiff continued to improve and was released to return to modified light work: "[h]e can return to light work provided he not lift or carry more than 25 lbs., perform any repetitive lifting, bending or stopping, or be required to sit or stand in a stationary position for more than two consecutive hours." Tr. 294.

On October 12, 2006, Dr. Brett performed a final assessment of plaintiff. See tr. 296. Dr. Brett noted that plaintiff experienced continued low back discomfort and occasional paresthesia[2] on the left leg, and had reduced lumbar range of movement. Id. Dr. Brett opined: "[h]e will have a moderate permanent partial disability in that he should not lift or carry more than 35 lbs., perform any repetitive lifting, bending or stooping, or be required to sit or stand in a stationary position for more than two consecutive hours." Id. Plaintiff was found to be medically stationary. Id.

Plaintiff contends that Dr. Brett's opined functional limitations on repetitive lifting, bending and stooping, and sitting in a stationary position were not adequately incorporated into the RFC. Plaintiff believes that if these limitations are properly incorporated into the RFC, he cannot perform the three occupations identified by the ALJ at step five of the sequential evaluation, i.e., medical assistant (DOT § 079.362-010), hospital admitting clerk (DOT § 205.362-018), and medical case manager (DOT § 195.107-030).

Turning to the RFC, the ALJ found that plaintiff was able to:

[P]erform a mixed range of light and sedentary work. He can lift and carry 20 pounds occasionally and 10 pounds frequently. He can stand and walk with normal breaks approximately two of eight workday hours and sit up to six of eight workday hours. He should not be required to climb other than stairs and ramps. He can occasionally stoop. He should not be required to engage in over the shoulder work.

Tr. 20; see also tr. 69-70.

Plaintiff argues that the RFC does not account for Dr. Brett's opined limitation on repetitive lifting, bending and stooping. Defendant, in response, looks for comparable restrictions in the "sedentary work" classification. As identified above, the ALJ determined that plaintiff was capable of performing three occupations: medical assistant (DOT § 079.362-010), hospital admitting clerk (DOT § 205.362-018), and medical case manager (DOT § 195.107-030). Defendant relies on the latter two sedentary occupations, ...


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