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Hesketh v. Berryhill

United States District Court, D. Oregon

May 23, 2017

JACK JAY HESKETH, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN United States Magistrate Judge.

         Jack Hesketh (“Hesketh”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of his application for Social Security disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g). For the reasons explained below, the Court affirms the Commissioner's decision because it is free of legal error and supported by substantial evidence.

         BACKGROUND

         Hesketh was born in October 1958, making him fifty-three years old on November 1, 2011, the alleged disability onset date. Hesketh has a twelfth-grade education, and his past relevant work includes time as a telecommunications technical account executive. He alleges disability due primarily to peripheral neuropathy.

         On July 13, 2012, Hesketh visited the emergency department at Three Rivers Community Hospital, complaining of ringing in his left ear that had “progressively become worse” over the prior months. (Tr. 220.) Hesketh was treated for probable otitis externa and discharged from the hospital.[1]

         On October 10, 2012, Hesketh underwent a consultative examination with Dr. Roger Steinbrenner (“Dr. Steinbrenner”). Dr. Steinbrenner's musculoskeletal examination revealed the following:

Motor strength is normal, [five out of five strength], upper and lower extremities. He has an abnormal gait, which is somewhat waddling and with feet externally rotated, walking more on the balls of his feet than the heels. Deep tendon reflexes are [two plus] and equal, knees and ankles. Vibratory sensation is intact. He is unable to walk on his heels, is able to walk on his toes. Straight leg raising is positive at about [sixty] degrees because of tightness in the hamstrings, sitting and supine. He has a good grip. Fingering and handling are normal. Limited range of motion at right shoulder with abduction limited to [ninety] degrees.

(Tr. 269.) Based on his examination and discussion with Hesketh, Dr. Steinbrenner assessed peripheral neuropathy of an uncertain etiology and probable adhesive capsulitis in the right shoulder. He opined that Hesketh is unable to sit, stand, or walk for more than twenty to thirty minutes at a time due to pain in his legs and feet, or lift and carry more than twenty-five pounds due to adhesive capsulitis. Dr. Steinbrenner found no evidence of rheumatoid arthritis on physical examination.

         On October 22, 2012, Dr. J. Scott Pritchard (“Dr. Pritchard”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 79-81.) Based on his review of the record, Dr. Pritchard determined that Hesketh could lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, or walk up to six hours in an eight-hour workday; push or pull in accordance with his lift and carry restrictions; occasionally climb ladders, ropes, or scaffolds; balance, stoop, kneel, crouch, crawl, and climb ramps and stairs without limitation; handle, finger, and feel without limitation; and occasionally reach in any direction. Dr. Pritchard also found no evidence of visual, communicative, or environmental limitations.

         On January 16, 2013, Hesketh established care with Karen Hoskins (“Hoskins”), a nurse practitioner.[2] Hesketh complained of worsening peripheral neuropathy, rheumatoid arthritis, pain in his ankles, legs, and left knee, weakness in his legs, and a burning sensation in his heels and toes. Hoskins noted that Hesketh exhibited a “normal gait, ” and full range of motion and strength in his upper and lower extremities. (Tr. 279-80.) Hoskins prescribed Cymbalta to treat Hesketh's pain, and advised Hesketh to avoid refined foods and to engage in “[r]egular exercise most days for [thirty] minutes or more, including cardiovascular, strength and flexibility training.” (Tr. 281.)

         On January 23, 2013, Dr. Lloyd Wiggins (“Dr. Wiggins”), a non-examining state agency physician, completed a physical residual functional capacity assessment, agreeing with Dr. Pritchard's findings. (Tr. 89-91.)

         On January 30, 2013, Hesketh presented for a follow-up visit with Hoskins and complained of pain in his left hip and knee. Hesketh also reported that he uses a walker in the morning due to leg weakness, that his “mobility improves with moving around, ” that “he is able to get around using a cane, ” that “he stoves up if he is sedentary for more than [thirty] minutes, ” and that “he has dealt with this pain for a numbers of years.” (Tr. 284.) Hoskins noted that a number of autoimmune/inflammatory studies were ordered based on Hesketh's prior reports of joint pains. Hoskins added that antinuclear antibody (“ANA”), cyclic citrullinate peptide (“CCP”) antibody, and lyme disease tests were negative, and peripheral neuropathy-related testing (i.e., vitamin B12, folate, homocysteine, and ferritin) “[a]ll were at normal levels.” (Tr. 284.)

         On March 27, 2013, Hesketh presented for a consultation with his neurologist, Dr. Yung Kho (“Dr. Kho”), regarding his “bilateral lower extremities peripheral neuropathy.” (Tr. 314.) Dr. Kho noted that Hesketh's diagnosis was “idiopathic neuropathy” that had not responded to Gabapentin, and that Hesketh's health had “gradually worsened” over time. (Tr. 314.) Dr. Kho also noted that Hesketh has suffered from “idiopathic neuropathy” since 1986, and had a work-up “already at that time.” (Tr. 316.) Dr. Kho added that Hesketh exhibited a normal gait, was able to stand without difficulty, and exhibited “[five out of five] bilateral symmetric [strength] in all four extremities.” (Tr. 315.)

         Hesketh presented for follow-up visits with Hoskins in April 2013. Hoskins' notes indicate that Hesketh exhibited “positive symptoms” of posttraumatic stress disorder (“PTSD”) and “moderately severe depression.” (Tr. 289-90.) Hoskins' notes also indicate that Hesketh continued to complain of chronic pain in his “lower extremities, left knee, ” which Hesketh reported was “made better by elevating feet” and “made worse by standing or sitting too long.” (Tr. 296.) Hesketh rated the “severity of interference [with] his general activity” caused by pain as a three on a ten-point scale. (Tr. 296.) Hoskins advised Hesketh to continue exercising and eating healthier.

         In a treatment note dated July 17, 2013, Hoskins noted that Hesketh recently left “his bag of pills on [her] door step with a note saying ‘[W]on't need these. [D]on't want to live. [T]hanks for trying.'” (Tr. 301.) Hoskins noted that 911 was called and Hesketh denied being suicidal. He later informed Hoskins that he recently “ended up in jail” after his ex-wife took his dog and turned him in for an outstanding warrant. (Tr. 301.) Hesketh was taken off his medications, agreed to return to counseling, and reported that he was applying for a medical marijuana card because he felt that it was “amazing” and would help treat his peripheral neuropathy and PTSD. (Tr. 301.)

         On September 19, 2013, Hesketh was seen by Michael Swartz (“Swartz”), a physician's assistant at Paragon Orthopedic Center, based on complaints of left knee pain. Hesketh informed Swartz that his symptoms began four years ago, that he had fallen off a ladder in 2007, and that he “worked as a logger and pole climber” for years, but was “now limited to wedding musician work.” (Tr. 28, 344.) A magnetic resonance imaging (“MRI”) scan revealed “a partial radial tear of the posterior horn of the medial meniscus, with a few posterior fibers remaining intact.” (Tr. 343.)

         On October 29, 2013, Hesketh presented for an orthopedic consultation with Dr. Robert Bents (“Dr. Bents”). Dr. Bents discussed the “findings of meniscal tear” with Hesketh and “nonoperative versus operative options, ” and mentioned that “there may be findings of chondromalacia or early arthritis noted by arthroscopy which may comprise pain relief.” (Tr. 337.) Hesketh consented to surgery after being advised of the risk of limited to incomplete pain relief.

         On December 11, 2013, Hesketh underwent arthroscopic knee surgery with medial meniscectomy. On December 24, 2013, Hesketh presented for a post-operative visit with Swartz. Hesketh reported that his “satisfaction with surgery is very good, ” he was “improving, ” and his pain was “occasional.” (Tr. 321.)

         In a medical source statement dated January 21, 2014, Dr. Kho addressed Hesketh's diagnoses and estimated limitations. (Tr. 310-13.) Dr. Kho stated that Hesketh suffers from peripheral neuropathy and rheumatoid arthritis, which results in severe leg and foot pain, weakness, sensory loss, decreased deep tendon reflexes, chronic fatigue, and cramping and burning in the calves and feet. Dr. Kho estimated that Hesketh (1) can sit for thirty minutes at a time, (2) can stand for five minutes at a time, (3) can stand and walk for less than two hours in an eight-hour workday, (4) can sit for about two hours in an eight-hour workday, (5) needs a job that permits shifting positions, walking for five minutes every thirty minutes, taking fifteen-minute unscheduled breaks every thirty minutes, (6) needs to elevate his feet for up to six hours during a sedentary work day, (7) needs to use an assistive device when standing or walking, (8) can never lift twenty or more pounds, rarely stoop, crouch, or squat, and occasionally twist, and (9) would be absent from work more than four days per month as a result of his impairments or treatment needs.

         Hesketh visited with Dr. Bents on January 27, 2014. Dr. Bents noted that Hesketh had not been attending physical therapy or doing his home exercise program “other than walking his dog.” (Tr. 318.) Hesketh reported that he had lost weight, was “wearing a knee brace when walking long distances, ” and was “able to walk up to a mile at this point which he could not do pre-operatively.” (Tr. 318.) Dr. Bents noted that Hesketh was advised to “continue a home exercise program” and understood that his symptoms may “continue to improve with time.” (Tr. 320.)

         An administrative law judge (“ALJ”) convened a video hearing on February 13, 2014, at which Hesketh testified about the limitations resulting from his impairments. (Tr. 26-71.) Hesketh testified that he stopped working in 2009 and exhausted his unemployment benefits in November 2011. Hesketh further testified that he spent the majority of the last fifteen years working as a sales representative in the telecommunications industry, and that he was “let go” because he had trouble meeting his job-related quotas and showing up for scheduled appointments on time. (Tr. 51.) Hesketh stated that his performance deteriorated because he suffers from peripheral neuropathy and had to interrupt his travel to reduce swelling and regain feeling in his legs. (Tr. 51.) Hesketh also testified that he had his left meniscus surgically repaired in December 2013, uses a walker in the morning due to leg weakness, has to elevate his feet eighty percent of the day in order to reduce swelling and pain in his legs, lives in an apartment with his eighty-five-year-old mother who assists with his basic care, and watches fourteen hours of television per day.

         The ALJ also received testimony from Dr. Irvin Belzer (“Dr. Belzer”), a medical expert who testified at Hesketh's administrative hearing. Dr. Belzer testified that, based on his review of the medical records, Hesketh's peripheral neuropathy “hasn't [a]ffected [his] ability to stand and walk to any significant extent, ” citing physical examination findings that undermined opinions and testimony to the contrary. (Tr. 34.) Dr. Belzer also testified that Hesketh lacked the serology and physical examination findings to support a diagnosis of rheumatoid arthritis, and that Hesketh did not have an impairment or combination of impairments that met or equaled one of the Listed Impairments. In terms of Hesketh's residual functional capacity, Dr. Belzer testified that he agreed with Drs. Pritchard and Wiggins' assessment that Hesketh could perform a modified version of light work. However, Dr. Belzer added that he would further restrict Hesketh to (1) no climbing of ladders, ropes, or scaffolds, and (2) no pushing or pulling of bilateral foot controls.

         In a written decision issued on May 28, 2014, the ALJ applied the five-step process set forth in 20 C.F.R. § 404.1520(a)(4), and found that Hesketh was not disabled. See infra. The Social Security Administration Appeals Council denied Hesketh's petition for review, making the ALJ's decision the Commissioner's final decision. Hesketh timely appealed to federal district court.

         THE FIVE-STEP SEQUENTIAL ANALYSIS

         I. LEGAL STANDARD

         A claimant is considered disabled if he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are as follows:

(1) Is the claimant presently working in a substantially gainful activity? (2) Is the claimant's impairment severe? (3) Does the impairment meet or equal [one of the listed impairments]? (4) Is the claimant able to perform any work that he or she has done in the past? and (5) Are there significant numbers of jobs in the national economy that the claimant can perform?

Id. at 724-25. The claimant bears the burden of proof for the first four steps in the process. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of the first four steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).

         The Commissioner bears the burden of proof at step five of the process, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954 (citations omitted).

         II. THE ALJ'S DECISION

         The ALJ first determined that Hesketh had not engaged in substantial gainful activity since November 1, 2011, the alleged disability onset date. At the second step, the ALJ concluded that Hesketh had the severe impairments of peripheral neuropathy, shoulder joint dysfunction, cervical degenerative disc disease, and a history of meniscus tears “status post arthroscopy.” (Tr. 12.) At the third step, the ALJ found that Hesketh did not have an impairment or combination of impairments that met or equaled one of the Listed Impairments. The ALJ then assessed Hesketh's residual functional capacity (“RFC”) and found that he could perform light work that does not involve (1) climbing ropes, ladders, or scaffolds, or (2) pushing or pulling of bilateral foot controls. At the fourth step, the ALJ found that Hesketh is capable of performing his past work as a telecommunications technical account executive. Accordingly, the ALJ concluded that Hesketh was not disabled.

         STANDARD OF REVIEW

         The district court may set aside a denial of benefits only if the Commissioner's findings are “‘not supported by substantial evidence or [are] based on legal error.'” Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).

         The district court “cannot affirm the Commissioner's decision ‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the Commissioner's conclusions. Id. If the evidence as a whole can support more than one rational interpretation, the ALJ's decision must be upheld; the district court may not substitute its judgment for the judgment of the ALJ. Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).

         DISCUSSION

         In this appeal, Hesketh argues that the ALJ erred by: (1) failing to provide clear and convincing reasons for discounting his subjective symptom testimony; (2) failing to offer legally sufficient reasons for rejecting the limitations assessed by Drs. Pritchard, Wiggins, Steinbrenner, and Kho; (3) failing to fully and fairly develop the record regarding Hesketh's mental impairments; and (4) concluding, at step four of the sequential process, that Hesketh could perform his past work as a telecommunications technical account executive. As explained below, the Court concludes that the Commissioner's decision is free of legal error and supported by substantial evidence in the record. Accordingly, the Court affirms the Commissioner's denial of benefits.

         I.CREDIBILITY DETERMINATION

         A. Applicable Law

         Absent an express finding of malingering, an ALJ must provide clear and convincing reasons for ...


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