United States District Court, D. Oregon
OPINION AND ORDER
F. BECKERMAN United States Magistrate Judge.
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.
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
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
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
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.
January 16, 2013, Hesketh established care with Karen Hoskins
(“Hoskins”), a nurse practitioner. 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.”
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.)
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.)
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.)
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.
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.)
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.)
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.
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.)
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.
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.)
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.
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.
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.
FIVE-STEP SEQUENTIAL ANALYSIS
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).
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).
THE ALJ'S DECISION
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.
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)).
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)).
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.
an express finding of malingering, an ALJ must provide clear
and convincing reasons for ...