United States District Court, D. Oregon, Eugene Division
JAMES C. GARDNER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
FINDINGS AND RECOMMENDATION
Yim You, United States Magistrate Judge.
James C. Gardner (“Gardner”), seeks judicial
review of the final decision by the Commissioner of Social
Security (“Commissioner”) denying his application
for Supplemental Security Income (“SSI”) under
Title XVI of the Social Security Act (“SSA”), 42
USC §§ 1381-1383f. This court has jurisdiction to
review the Commissioner's decision pursuant to 42 USC
§§ 405(g) and 1383(c)(3). For the reasons set forth
below, the Commissioner's decision should be REVERSED and
REMANDED to the Commissioner for further proceedings.
protectively filed for SSI on September 27, 2012, alleging a
disability onset date of May 24, 2010. Tr. 14, 29,
179-87. His application was denied initially on
March 20, 2013, and on reconsideration on August 20, 2013.
Tr. 110-113, 121-122. On November 18, 2014, a hearing was
held before Administrative Law Judge (“ALJ”)
Robert Spaulding. Tr. 34-81. The ALJ issued a decision on
February 9, 2015, finding Gardner not disabled. Tr. 14-29.
The Appeals Council denied a request for review on April 13,
2016. Tr. 1-3. Therefore, the ALJ's decision is the
Commissioner's final decision subject to review by this
court. 20 CFR §§ 416.1481, 422.210.
1971, Gardner was 43 years old at the time of the hearing
before the ALJ. Tr. 28. Gardner has a ninth grade education.
Tr. 201. He has no past relevant work at the level of
substantial gainful activity, although he has worked as a gas
station attendant, dockworker, groundskeeper, line server,
and sweeper at a mill. Tr. 189-92, 201. Gardner alleges he is
unable to work due to back and shoulder problems, as well as
mental health issues. Tr. 84, 200.
reviewing court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record. 42 USC
§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911
(9th Cir. 2007). This court must weigh the evidence that
supports and detracts from the ALJ's conclusion.
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715,
720 (9th Cir. 1998)). The reviewing court may not substitute
its judgment for that of the Commissioner when the evidence
can reasonably support either affirming or reversing the
decision. Parra v. Astrue, 481 F.3d 742, 746 (9th
Cir. 2007). Instead, where the evidence is susceptible to
more than one rational interpretation, the Commissioner's
decision must be upheld if it is “supported by
inferences reasonably drawn from the record.”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
2008) (citation omitted); see also Lingenfelter, 504
F.3d at 1035.
ANALYSIS AND ALJ FINDINGS
is the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 USC §
423(d)(1)(A). The ALJ engages in a five-step sequential
inquiry to determine whether a claimant is disabled within
the meaning of the Act. This sequential analysis is set forth
in the Social Security regulations, 20 CFR § 416.920, in
Ninth Circuit case law, Tackett v. Apfel, 180 F.3d
1094, 1098-99 (9th Cir. 1999) (applying 20 CFR §
404.1520), and in the ALJ's decision in this case, Tr.
one, the ALJ concluded that Gardner has not engaged in
substantial gainful activity since May 24, 2010, the alleged
onset date of disability. Tr. 16. At step two, the ALJ
determined that Gardner has the following severe impairments:
anxiety disorder, attention deficit hyperactivity disorder
(“ADHD”), major depressive disorder, degenerative
disc disease, degenerative joint disease of the right
shoulder, and obesity. Id. The ALJ found several
other impairments non-severe, including amphetamine
dependence in self-reported sustained full remission and
right otitis media. Tr. 17.
three, the ALJ concluded that Gardner does not have an
impairment or combination of impairments that meets or equals
any listed impairment. Tr. 19. The ALJ found that Gardner has
the RFC to perform less than the full range of light work,
with the following limitations:
He is limited to occasional climbing of ramps and stairs and
no climbing of ladders or scaffolds. He is limited to
occasional balancing and stooping. He is limited to no
kneeling, crouching, or crawling. He is limited to no
exposure of hazards, such as moving mechanical parts or
unprotected heights. He is limited to occasionally reaching
overhead with his dominant, right upper extremity. He is
limited to simple and routine tasks. He is limited to
occasional interaction with supervisors and co-workers. He is
limited to superficial contact, defined as casual or
perfunctory, with the public.
determined at step four that Gardner had no past relevant
work. Tr. 28.
five, the ALJ found that considering Gardner's age,
education, and RFC, he was capable of performing jobs as an
office helper, photocopy machine operator, and
nongovernmental mail clerk. Tr. 28-29. Accordingly, the ALJ
determined that Gardner was not disabled at any time through
the date of the decision. Tr. 29.
Pre-Application Medical Evidence
11, in June 1982, Gardner presented to the emergency
department with complaints of a head injury and nausea after
falling from a low roof. Tr. 329. A head x-ray was negative
for fractures and he was instructed to treat with bed rest
and Tylenol. Tr. 329-30. Eight years later, Gardner was again
seen urgently complaining of right shoulder pain after he was
in an accident while driving an all-terrain vehicle. Tr.
326-27. An x-ray revealed a “comminuted . . . fracture
of the mid clavicle.” Tr. 326-27. Six months later, in
December 1990, Gardner overdosed on over-the-counter and
prescription medications in an apparent suicide attempt. Tr.
325. He reported being depressed after his girlfriend left
him three days earlier. Id. Gardner was treated and
released after agreeing to seek counseling services the
April 2007, Gardner sought emergency treatment, complaining
of a severe frontal headache and reporting a history of
headaches dating back two years. Tr. 309. A head CT-scan
proved negative. Tr. 311. Diagnosed with an acute headache
and high blood pressure, Gardner was discharged with Vicodin
and instructed to treat with rest and fluids. Tr. 309-10.
years later, in May 2009, Gardner underwent an intake
screening with the Oregon Department of Corrections
(“ODOC”). Tr. 246-53. He reported a history of
hypertension, severe anxiety, and mental health issues. Tr.
253. Gardner reported feeling symptom relief after taking
anti-depressant and anti-psychotic medications he was
prescribed during a previous period of incarceration.
Id. The record, however, does not contain any
records of mental health treatment or medication prior to
this self-report. Although the intake form shows Gardner was
referred for a mental health assessment, no ODOC chart notes
indicate he underwent any mental health treatment during his
time in prison.
December 2009, Gardner reported severe back, neck, head, and
left shoulder pain after slipping and falling on ice while
housed at Deer Ridge Correctional Institute in Madras,
Oregon. Tr. 258. Initially, medical staff found no indicators
for an x-ray, and instructed Gardner to treat with heat,
stretching, and Tylenol. Id. However, two-weeks
post-fall, Gardner endorsed continuing headaches and back
pain. Tr. 257. By January 14, 2010, Gardner was experiencing
severe back pain, giving out in his left leg, and pain
radiating down his leg. Tr. 256. Medical staff prescribed a
corticosteroid taper and muscle relaxers. Tr. 256. A
subsequent x-ray showed no abnormalities and normal disc
spacing, resulting in a “normal examination.” Tr.
259. Prison medical records do not reveal any additional
treatment relating to that injury during the remainder of his
time at ODOC. However, in April 2010, one month before he was
released, Gardner reported headache, nausea, and diarrhea
after injuring his neck lifting weights the prior day. Tr.
256. Medical staff made some changes to Gardner's
medications and educated him to take ibuprofen as
directed-believing overconsumption of ibuprofen was the
likely cause of his gastrointestinal issues. Tr. 255.
was released from custody on May 24, 2010. Eight months
later, in January 2011, Gardner sought treatment in a
hospital emergency department complaining of severe back
pain, exacerbated by movement. Tr. 272. On examination, he
showed a full range of motion, but had a positive bilateral
straight leg raise test at 30 degrees. Tr. 273. The treating
doctor suspected lumbar disc disease. Id. Gardner
received intravenous Dilaudid, and was discharged with a
prescription for Percocet and a referral to a low-cost clinic
for continuing treatment. Id.
April 2011, Gardner attempted to establish care at
PeaceHealth Medical Group. Tr. 342-48. He complained of lower
back pain and reported suffering from chronic back pain for
22 years, with worse pain over the preceding two years. Tr.
347-48. Gardner also described pain that radiated into his
buttocks, but denied any pain, weakness, or tingling into his
legs. Tr. 347. On examination, Nurse Practitioner Jennifer
DiFrancesco noted, “some tenderness in the lumbosacral
area, [and] 4/5 strength in lower extremities.” Tr.
348. She recommended physical therapy, but Gardner informed
her that in the past, physical therapy worsened his symptoms.
Tr. 348. Instead, Gardner requested pain medications, noting
that he had run out of Percocet from his January emergency
department visit. DiFrancesco denied his medication request,
at least until a primary care physician could be established.
Id. Gardner never returned to PeaceHealth Medical
Group for physical therapy or follow up care.
March 2012, Gardner established care with Dr. Jack Kyman for
the purpose of obtaining a medical cannabis card. Tr. 306,
308. On examination, Dr. Kyman observed that Gardner had a
positive bilateral straight leg raise at 30 degrees and
muscle spasms. Tr. 308. Dr. Kyman diagnosed chronic pain,