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Gardner v. Berryhill

United States District Court, D. Oregon, Eugene Division

November 29, 2017

JAMES C. GARDNER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          Youlee Yim You, United States Magistrate Judge.


         Plaintiff, 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.


         Gardner protectively filed for SSI on September 27, 2012, alleging a disability onset date of May 24, 2010. Tr. 14, 29, 179-87.[2] 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.


         Born in 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.


         The 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.


         Disability 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. 15-16.

         At step 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.

         At step 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.

Tr. 21.

         The ALJ determined at step four that Gardner had no past relevant work. Tr. 28.

         At step 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.


         I. Pre-Application Medical Evidence

         At age 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 following morning.

         In 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.

         Two 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.

         In late 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.

         Gardner 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.

         In 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.

         In 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, ...

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