United States District Court, D. Oregon, Portland Division
REPORT & RECOMMENDATION
D. CLARKE, UNITED STATES MAGISTRATE JUDGE.
Colt Craig Campredon seeks judicial review under 42 U.S.C.
§ 405(g) of the final decision of the Commissioner of
the Social Security Administration denying his application
for a period of disability and disability insurance benefits
pursuant to the Social Security Act. For the reasons below,
the Commissioner's decision should be REVERSED and
REMANDED for further administrative proceedings.
was born October 29, 1983, and is currently thirty-four years
old. Tr. 66. Plaintiff was engaged to his fiance during the
period of alleged disability, has a high school diploma, and
previously worked as a military recruiter and tire installer.
Tr. 68, 684, 774.
2012, Plaintiff filed for a period of disability and
disability insurance benefits; he alleged disability onset as
of December 1, 2011. Tr. 735. Plaintiff last worked in 2010
at Northwest Primary Care; he described his tasks as
"special jobs" and after-hour work, where he would
help "take things down for repaint/remodel type
things." Tr. 69. Plaintiff worked after hours in an
effort to avoid contact with large crowds and unknown people,
triggers that cause Plaintiff, who has been diagnosed with
post-traumatic stress disorder ("PTSD") after
serving two tours in Iraq in 2003-04 for the Army National
Guard, significant anxiety. Tr. 68, 76, 682-84. Plaintiff
ended up leaving this sporadic work, however, stating that he
was "unreliable and things were kind of getting bad for
[him]." Tr. 69. He said that he would routinely step
away while on the job, would get episodic, and severe,
headaches, and would "kind of go through my own panic
attacks." Tr. 69.
Plaintiff testified that he would cough up/vomit blood around
four times a week, with such episodes lasting anywhere from
five to fifteen minutes followed by "extreme
exhaustion." Tr. 74. He also experienced nosebleeds
"[a] few times a week, " which could last anywhere
from ten to thirty minutes. Tr. 73. Plaintiff attributes the
nosebleeds; the fact that he routinely coughs up or vomits
blood; his headaches; and liver problems, including a
diagnosis of fatty liver and increased urobilinogen, to the
fact that he was exposed to hexavalent chromium while serving
in Iraq. Tr. 683-84, 677. In fact, Plaintiff participated in
a lawsuit seeking compensation for the alleged health-related
problems caused by exposure to hexavalent chromium. See,
e.g., Tr. 43-44. Plaintiff states that he worries about
three friends also exposed to the chemical, one who died of
leukemia and two others who developed growths in their brain
and stomach. Tr. 684. Johnathan Harrison, M.D., stated that a
"history of nosebleeds and vomiting may be consistent
with hexavalent chromium exposure" and noted that
"frequent episodes of nosebleeds" after hexavalent
chromium exposure is colloquially referred to as "chrome
nose." Tr. 677, 680.
2003, while serving in Iraq, Plaintiff "suffered an
acute distal tibial fracture" in his right ankle, which
required reconstructive surgery in 2009. Tr. 676. Plaintiff
reports decreased stability and range of motion and
intermittent and unexplained right-ankle swelling, "as
well as many episodes of acute ankle injury, including
sprains and subluxations of his right ankle." Tr. 676.
He reports constant pain in his right ankle of "7/10 to
9/10, " with the ability to function at forty percent of
pre-injury capacity. Tr. 676. Dr. Harrison noted that
Plaintiff maintained a normal gait, could transfer easily
from the chair to the examination table, could walk to the
examination room without difficulty, and did not use nor did
he need an assistive device. Tr. 677-78. Dr. Harrison did
opine, however, that Plaintiff had "markedly decreased
range of motion and exquisite tenderness" in his right
ankle caused by the injury and subsequent reconstructive
surgery. Tr. 680.
is able to engage in many activities of daily living
independent and consistently, including grooming, hygienic
maintenance, driving, use of the telephone, cooking, doing
certain chores with the assistance of his fiance, and money
management. Tr. 236, 685. In addition, Plaintiff is capable
of going grocery shopping, though he prefers to go at
"night because he does not like big crowds." Tr.
685. He is, however, "able to manage daytime shopping
with a short list." Tr. 685. Finally, Plaintiff
maintains a small social group of friends; he is also able to
care for his pets, which include cats, dogs, and fish; and he
likes to work on cars, play video games, and visit family.
Tr. 71-72, 685.
his capacity to carry out these activities of daily living,
he frequently feels paranoid and anxious due to his PTSD and
would not do well in a noisy environment, nor in an
environment requiring extensive external demands, such as
dealing with members of the public. Tr. 55, 684-85. Indeed,
Dr. Robert McDevitt, a board-certified psychologist testified
that Plaintiff, who, "[i]t's pretty clear, "
has "PTSD, " "would have difficulty getting
along with other people" but "no difficulty getting
along with people that he's familiar with." Tr. 59,
September 2013, Plaintiff had a hearing before an
administrative law judge ("ALJ"). Tr. 735. Ten days
later, on September 23, 2013, the ALJ issued a decision
denying Plaintiffs claim and finding that he was not disabled
as the term is defined in the Social Security Act. Tr. 735.
The ALJ's decision was appealed to the Appeals Council,
who denied Plaintiffs request for review, rendering the
ALJ's findings the Commissioner's final decision. Tr.
735. Accordingly, Plaintiff appealed to this Court, and,
based on a stipulated order for remand, the Court reversed
and remanded the Commissioner's decision. Tr. 735.
Specifically, the Court vacated the ALJ's September 2013
decision and remanded Plaintiffs claim to an ALJ to obtain
and evaluate a Veterans Administration ("VA")
rating decision, adequately evaluate Plaintiffs credibility
pursuant to SSR 96-7p, and properly evaluate third-party
statements contained in the record. Tr. 735.
rating decision, dated June 11, 2010, noted that Plaintiff
was deemed to be 70 percent service-connected disabled due to
PTSD and right-ankle tendonitis but was being paid at 100
percent disability because he was deemed unemployable due to
his service-connected disabilities. Tr. 303. The June 2010 VA
rating decision was conducted before Plaintiffs alleged onset
date of December 1, 2011.
requested, on remand, the ALJ reviewed the June 2010 VA
rating decision. Tr. 746. For a variety of reasons that will
be discussed later, the ALJ afforded little weight to the
decision. Tr. 746.
as this Court requested, the ALJ reconsidered Plaintiffs
credibility. Tr. 742-44. The ALJ found Plaintiff to be less
than fully credible, noting inconsistencies between
Plaintiffs testimony and the medical evidence contained in
the record. Tr. 743. Specifically, the ALJ took issue with
Plaintiffs failure to seek treatment for his alleged
impairments, such as PTSD, during the time period at issue,
"despite having access to medical and mental health
treatment through the VA." Tr. 743. And, while the ALJ
considered possible reasons for Plaintiffs failure to seek
treatment, she ultimately concluded that neither Plaintiff
nor his attorney "provided any explanation or argument
for why [Plaintiff] did not seek any medical treatment during
the relevant time period." Tr. 744. She also noted
Plaintiffs apparent decision to cease medical treatment after
the VA awarded him unemployment benefits also tended to
indicate Plaintiffs ailments were not as severe as he
alleged. Tr. 744.
the ALJ reconsidered the third-party statement submitted by
Plaintiffs mother, Joanne Lynn Campredon. Tr. 748. As with
Plaintiffs testimony, the ALJ afforded little weight to Ms.
Campredon's statements. Tr. 748. Much as with Plaintiffs
testimony, the ALJ found Ms. Campredon's assertions that
Plaintiff had difficulty with everyday situations, often
tired, experienced severe stomach pain, and would routinely
vomit blood inconsistent with Plaintiffs failure to seek
medical treatment during the period of alleged disability.
Tr. 748. Likewise, the ALJ pointed to Karen Bates-Smith,
Ph.D., P.C., 's examination where Plaintiff described
"robust activities of daily living[.]" Tr. 748.
in sum, the ALJ reaffirmed her earlier ruling, finding
Plaintiff was not under a disability as that term is defined
in the Social Security Act. Tr. 750. In particular, the ALJ
concluded that Plaintiff could obtain employment as an
electronic assembler or as an appointment clerk, both jobs
that existed in significant numbers in the national economy
through the date last insured. Tr. 749. On December 29, 2016,
the Appeals Council denied Plaintiffs request for review,
making the ALJ's denial the Commissioner's final
decision. Tr. 726. This timely appeal followed.
claimant is 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). Each step is
potentially dispositive. 20 C.F.R. §§
404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1. Is the claimant performing "substantial gainful
activity"? 20 C.F.R. §§404.1520(a)(4)(i);
416.920(a)(4)(i). This activity is work involving significant
mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510; 416.910. If the
claimant is performing such work, she is not disabled within
the meaning of the Act. 20 C.F.R.
§§404.1520(a)(4)(i); 416.920(a)(4)(i). If the
claimant is not performing substantial gainful activity, the
analysis proceeds to step two.
2. Is the claimant's impairment "severe" under
the Commissioner's regulations? 20 C.F.R. §§
404.1520(a)(4)(ii); 416.920(a)(4)(h). Unless expected to
result in death, an impairment is "severe" if it
significantly limits the claimant's physical or mental
ability to do basic work activities. 20 C.F.R. §§
404.1521(a); 416.921(a). This impairment must have lasted or
must be expected to last for a continuous period of at least
12 months. 20 C.F.R. §§404.1509; 416.909. If the
claimant does not have a severe impairment, the analysis
ends. 20 C.F.R. §§ 404.1520(a)(4)(ii);
416.920(a)(4)(ii). If the claimant has a severe impairment,
the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or
equal" one or more of the impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1? If so, then the
claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment
does not meet or equal one or more of the listed impairments,
the analysis proceeds to the "residual functional
capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence
to assess and determine the claimant's RFC. This is an
assessment of work-related activities that the claimant may
still perform on a regular and continuing basis, despite any
limitations imposed by his or her impairments. 20 C.F.R.
§§ 404.1520(e); 404.1545(b)-(c); 416.920(e);
416.945(b)-(c). After the ALJ determines the claimant's
RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant
work" with this RFC assessment? If so, then the claimant
is not disabled. 20 C.F.R. §§404.1520(a)(4)(iv);
416.920(a)(4)(iv). If the claimant cannot perform his or her
past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and
work experience, is the claimant able to make an adjustment
to other work that exists in significant numbers in the
national economy? If so, then the claimant is not disabled.
20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v);
404.1560(c); 416.960(c). If the claimant cannot perform such
work, he or she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949,
954-55 (9th Cir. 2001).
claimant bears the burden of proof at steps one through four.
Id. at 954. The Commissioner bears the burden of
proof at step five. Id. at 953-54. At step five, the
Commissioner must show that 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) (internal citation omitted); see
also 20 C.F.R. §§ 404.1566; 416.966
(describing "work which exists in the national
economy"). If the Commissioner fails to meet this
burden, the claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform
other work existing in significant numbers in the national
economy, the claimant is not disabled. Bustamante,
262 F.3d at 954-55; Tackett, 180 F.3d at 1099.
the five-step analysis, the ALJ found:
1. Plaintiff did not engage in substantial gainful activity
during the period from his alleged onset date of December 1,
2011, through his date last insured of December 31, 2013. (20
CFR § 404.1571 et seq.). Tr. 738.
2. Through the date last insured, Plaintiff had the following
severe medically determinable impairments: PTSD, depression
right anterior talofibular ligament tear, and status post
flat foot reconstruction. (20 CFR § 404.1520(c)). Tr.
3. Through the date last insured, Plaintiff did not have an
impairment or a combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 CFR Pt. 404, Subpt. P, App. 1. (20 CFR
§§ 404.1520(d), 404.1525 & 404.1526). Tr. 739.
a. Through the date last insured, Plaintiff had the RFC to
perform sedentary work as defined in 20 CFR §
404.1567(a), except for the following. He should not have had
to use the right lower extremity to push or pull. He could
occasionally climb ramps, stairs, ladders, ropes, and
scaffolds. He could occasionally balance, stoop, kneel,
crouch, and crawl. He had sufficient concentration,
persistence, and pace to complete both simple and detailed
tasks. He should have had only rare (10 percent of the time
or less), brief, superficial interactions with the general