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Byrd v. Colvin

United States District Court, D. Oregon

March 14, 2017

RICHARD W. BYRD, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant.



         Richard William Byrd (“Byrd”) seeks judicial review of the final decision by the Social Security Commissioner (“Commissioner”) denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act (“SSA”). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Commissioner's decision is REVERSED and REMANDED for additional proceedings.


         Byrd was born in 1972, making him thirty-nine years old on July 13, 2011, the alleged disability onset date. (Tr. 25.) Byrd completed eleventh grade and later earned a GED, and his past work experience includes working as a heavy equipment operator, service writer for a car dealership, and forklift driver. (Tr. 37, 55.) Byrd alleges disability due to a neck and back injury with nerve damage in his hands and arms, sleep apnea, heart problems, high blood pressure, broken elbow and finger, diabetes, depression, and stomach ulcers. (Tr. 260.)

         Byrd was involved in a motorcycle crash in November 2008, and sustained a compound fracture to his left leg. (Tr. 486.) On January 13, 2010, Dr. Fariba Vesali conducted an orthopedic evaluation and examined Byrd due to reoccurring pain in Byrd's leg. (Id.) Dr. Vesali observed that Byrd “did not have any difficulties” getting on and off the exam table or taking his shoes on and off. (Tr. 487.) She also observed that Byrd walked slowly but without an abnormal gait, although he routinely used a cane. (Id.) Dr. Vesali opined that Byrd could walk, stand, and sit with no limitations, and did not require an assistive device. (Tr. 488.) She further opined that Byrd could lift fifty pounds occasionally and twenty-five pounds frequently, and could occasionally climb stairs, stoop, kneel, crouch, or crawl. (Tr. 489.)

         On January 13, 2010, Dr. Stefanie Stolinsky, a clinical psychologist, conducted a psychological evaluation. (Tr. 490.) She reported that Byrd appeared open, alert, and well-oriented, but had poor attention and concentration due to his leg pain. (Tr. 491.) Dr. Stolinsky opined that Byrd's recent memory was “somewhat impaired, ” but his long term memory appeared intact. (Id.) She felt he was a “concrete thinker.” (Id.) Dr. Stolinsky administered the Wechsler Adult Intelligence Scale-Third Edition, and found that Byrd's cognitive abilities were in the low average range, as were his thinking and reasoning skills. (Tr. 493.) She found that his verbal reasoning abilities, verbal comprehension abilities, and nonverbal reasoning abilities were in the low average range. (Tr. 493-94.) Dr. Stolinsky also noted that emotional or motivational difficulties from Byrd's pain may have interfered with his test results. (Id.) In any event, she opined that Byrd had marked difficulties in maintaining concentration, persistence, and pace, social functioning, and restricted activities of daily living. (Tr. 496.)

         On June 15, 2011, Dr. Tinko Zlatev examined the results of Byrd's cervical MRI, and concluded that he suffered from acute cervical kyphosis at the C5-6 vertebral level. (Tr. 402.) Dr. Zlatev also noted a disc bulge at the C5 level, degenerative disc disease at the C5-6 and C6-7 levels, and a large disc bulge at ¶ 6-7. (Id.)

         On August 29, 2011, Dr. Aleksandar Curcin examined Byrd and found he suffered from degenerative disc disease of the cervical vertebrae, and ordered a cervical discectomy and fusion. (Tr. 340.)

         On January 18, 2012, Byrd was scheduled to undergo a cervical discectomy procedure. (Tr. 352.) However, doctors were unable to perform the procedure because Byrd's heart rate dropped when his body was positioned in the surgical position, and the doctors believed it was too dangerous to attempt the lengthy surgical procedure. (Id.)

         On July 20, 2012, Byrd completed his adult function report. (Tr. 282.) He stated that his ability to work was limited by a loss of feeling in his hands and fingers, as well as weakness in his arms, pain in his neck, and depression. (Id.) Byrd's daily routine involved watching television and taking his medication. (Tr. 283.) His wife took care of their children and pets, reminded him to take his medication, handled the finances, and cooked all household meals. (Id.) He stated that he needed help with all household chores, and could not lift more than five pounds. (Tr. 285.) He shopped for groceries an hour per week, but did not drive. (Id.) He alleged difficulty lifting, squatting, bending, standing, reaching, walking, kneeling, stair climbing, concentration, and using his hands. (Tr. 287.) He also stated that he did not handle stress or changes in routine well. (Tr. 288.)

         On August 27, 2012, Dr. Charles Reagan, a psychiatrist, completed a psychological evaluation. (Tr. 436-40.) He noted that Byrd described only numbness and pain in his right arm and fingers as physical impairments that affected his ability to work. (Tr. 437.) Byrd told Dr. Reagan that he regularly took off his CPAP machine in his sleep. (Id.) He also described feelings of depression. (Id.) Dr. Reagan opined that Byrd had not described symptoms of major depression, he did not observe pain behaviors throughout the interview, and Byrd had no difficulty following and remembering instructions. (Tr. 439.) Dr. Reagan noted that Byrd's 2010 evaluation with Dr. Stolinsky described “poor abstraction and low average intelligence, ” but Dr. Reagan found that Byrd had a higher than normal intelligence level and had excellent abstract abilities. (Id.) Dr. Reagan stated that the 2010 evaluation was either incorrect or Byrd manipulated the test. (Id.) He also noted that “there [were] reliability issues, ” in the mental status examination and there was “evidence for malingering.” (Tr. 438-39.)

         On September 7, 2012, Dr. Raymond Nolan completed an administrative examination of Byrd. (Tr. 441.) Dr. Nolan opined that Byrd suffered from chronic low back pain and chronic back pain with right cervical radiculopathy. (Tr. 442.) Dr. Nolan stated that Byrd could bend, twist, and turn his back and neck on an occasional basis, push or pull on an occasional basis, and his ability to lift and carry was limited to ten pounds frequently and twenty pounds occasionally. (Id.) He noted that Byrd's communication skills were “quite adequate, ” and that Byrd could sit for sixty minutes at a time for at least six hours per day. (Id.) Furthermore, he stated that Byrd could walk or stand for at least two hours in an eight-hour day. (Id.)

         On March 7, 2013, Dr. James Sinnott, Byrd's treating physician, wrote a letter detailing his opinion of Byrd's conditions. (Tr. 461-62.) He stated that Byrd suffered from diabetes mellitus, severe sleep apnea, and cervical radiculopathy, and that the conditions were permanent. (Id.) Dr. Sinnott noted that Byrd's symptoms included sleepiness in the daytime, generally poor sleep, depression, fatigue, and weakness, twitching, and poor coordination in his hands. (Id.) Dr. Sinnott also noted that Byrd's medications affected his concentration. (Tr. 462.) Functionally, Dr. Sinnott opined that Byrd was unable to walk more than two hours in an eight-hour workday, could sit for one hour at a time, and could perform fine manipulation two to three hours per eight-hour workday. (Id.) He also noted that because Byrd had a “prior Worker's Comp [sic] issue in which he has a restriction of [five] pound weight lifting” he should not lift more than ten pounds. (Id.) Dr. Sinnott stated that these problems would likely keep Byrd from work for more than two days per month, and that his problems were permanent and unchanging. (Id.)

         On December 20, 2013, Dr. Nolan evaluated Byrd again. (Tr. 470-72.) He noted that Byrd suffered from chronic neck and low back pain, diabetes mellitus, obstructive sleep apnea, and right-sided weakness in grip strength and sensory deficits in his right hand. (Tr. 472.) Functionally, Dr. Nolan opined that Byrd could bend, twist, and turn his neck and back a limited amount, lift up to ten pounds frequently and twenty pounds occasionally. (Id.) He stated that Byrd could push or pull infrequently, and could sit for at least six hours in an eight hour day if allowed to change positions as needed. (Id.) He rated Byrd's communication skills as normal, and stated that Byrd could stand or walk for at least four hours in an eight-hour workday. (Id.)

         An administrative law judge (“ALJ”) convened a hearing on March 12, 2014, at which Byrd testified about the limitations resulting from his impairments. (Tr. 34-61.) Byrd testified that he received disability benefits from November 2008 until December 2009 due to obesity, depression, and problems with his left leg due to a motorcycle crash. (Tr. 40.) Byrd returned to work as a heavy equipment operator, but alleged he could not perform the work due to twitching in his hands. (Tr. 41.) He testified that he was losing feeling in his right arm, his neck was painful, and his sleep apnea was causing problems. (Tr. 44.) The ALJ asked about the aborted surgical procedure to repair Byrd's cervical vertebrae, and Byrd testified that he was under general anesthesia on the operating table when the doctors decided the procedure was too risky because he was not receiving sufficient oxygen flow to his brain. (Tr. 45.) He stated that his regular medications included Norco, Flexeril, insulin, metaformin, aspirin, an anti-depressant, and a blood pressure medication. (Tr. 46.) He further testified that his medication made him tired and unmotivated. (Id.) When the ALJ asked why Byrd could not perform a sedentary job, Byrd stated that there was no job that he could perform because he needed to switch positions too often. (Tr. 47-48.) Byrd testified that he was unable to hold a writing utensil or a small chainsaw due to the numbness and pain in his hand. (Tr. 49-50.) Furthermore, Byrd testified that his leg became stiff if he sat or stood for too long; walking was painful; his sleep apnea machine was ineffective; and his neck was painful and “popped” when he moved it. (Tr. 50-54.)

         The ALJ posed a series of questions to a vocational expert (“VE”), who also testified at Byrd's hearing. The ALJ asked the VE to contemplate a hypothetical worker of Byrd's age, education, and work experience who was limited to lifting or carrying up to twenty pounds occasionally, lifting or carrying up to ten pounds frequently, standing or walking for a total of two hours, and sitting for a total of six hours in an eight-hour workday with normal breaks. (Tr. 57.) Additionally, the hypothetical worker would be allowed to alternate sitting or standing throughout the day, could engage in occasional bilateral pushing or pulling and foot control operation, as well as occasionally climbing ramps or stairs, but never climbing ladders, ropes, or scaffolds, and occasionally stooping, kneeling, or crouching, but never crawling. (Id.) The hypothetical worker could engage in frequent bilateral reaching, should avoid concentrated exposure to extreme cold, as well as hazardous machinery and refrain from driving. (Id.) The worker could understand and carry out simple instructions in a workplace with few changes, and could only have occasional interaction with the public. (Id.) The VE testified that such a hypothetical worker could perform work as a patcher, taper, or polisher. (Tr. 58.)

         In a written decision issued on April 11, 2014, the ALJ applied the five-step sequential evaluation process set forth in 20 C.F.R. § 416.920(a)(4), and found that Byrd was not disabled. The Appeals Council denied Byrd's petition for review, making the ALJ's decision the Commissioner's final decision. Byrd timely appealed to federal court.

         THE FIVE-STEP ...

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