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Campredon v. Berryhill

United States District Court, D. Oregon, Portland Division

January 10, 2018

COLT CRAIG CAMPREDON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT & RECOMMENDATION

          MARK D. CLARKE, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff 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.

         BACKGROUND

         Plaintiff 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.

         In July 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.

         Moreover, 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.

         In 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.

         Plaintiff 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.

         Despite 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, 62.

         In 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.

         The VA 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.

         As 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.

         Next, 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.

         Last, 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.

         Accordingly, 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.

         DISABILITY ANALYSIS

         A 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).

         The 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 ALJ'S FINDINGS

         Applying 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. 738.
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 ยง 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 public ...

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