United States District Court, D. Oregon
RICHARD W. BYRD, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security Administration, Defendant.
OPINION AND ORDER
BECKERMAN, UNITED STATES MAGISTRATE JUDGE
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.
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.
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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.)
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
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.)
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.
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.