United States District Court, D. Oregon
FINDINGS & RECOMMENDATION
A. RUSSO UNITED STATES MAGISTRATE JUDGE
brings this proceeding to obtain judicial review of the
Commissioner's final decision denying plaintiff's
application for disability insurance benefits and
supplemental security income.
asserts disability beginning December 1, 2006, due to a
number of problems including diabetes, hepatitis C,
cirrhosis, peripheral edema, cellulitis, and post-traumatic
stress disorder (PTSD). Tr. 451, 454, 476-77. After a hearing
held on July 12, 2012, an Administrative Law Judge (ALJ)
determined plaintiff was not disabled. Plaintiff sought
judicial review and, based on a stipulation by the parties,
the case was remanded for further proceedings before the ALJ.
second hearing held on May 26, 2016, the ALJ again determined
plaintiff was not disabled. Plaintiff argues the ALJ erred
in: (1) rejecting the opinion of a treating doctor; (2)
rejecting the opinion of an examining psychologist; (3)
rejecting plaintiff's testimony; and (4) finding that
plaintiff retains the ability to perform other
A. Treating Doctor: Ralph Fillingame, M.D.
1, 2012, plaintiff's treating physician, Dr. Ralph
Fillingame, noted plaintiff suffers from chronic hepatitis C,
cirrhosis, obesity, type 2 diabetes, and low back pain. Tr.
424. As a result of these impairments and related edema in
his legs, Dr. Fillingame opined plaintiff can stand/walk
"at least" two hours and sit "less than"
six hours in an eight-hour workday, lift 20 pounds
occasionally and 10 pounds frequently, and would be absent
from work more than two days per month. Tr. 426. Dr.
Fillingame also opined that due to leg swelling, plaintiff
needs to periodically rest or lie down during the day. Tr.
credited the exertional limitations identified by Dr.
Fillingame and accommodated plaintiff's need to elevate
his legs by requiring flexibility to elevate his legs for 30
minutes during a lunch break. Tr. 460, 458. The ALJ otherwise
rejected Dr. Fillingame's opinion stating:
Contemporaneous treatment records from this evaluation reveal
pedal edema, but it was noted that this was improving.
(Exhibit 24F/10). Subsequent records also document
improvement with edema. (Exhibit 24F/19). It was also noted
in December 2012 that the claimant was losing weight and that
his diabetes was well controlled. (Exhibit 24F/28). By early
2013, it was noted that he was doing well with treatment for
his Hepatitis C and cirrhosis. (Exhibit 24F/44). While Dr.
Fillingame later assessed the claimant in 2015 with the need
to elevate his legs in the evening, I note that the need to
elevate his legs in the evening would not affect his ability
to work during the day, and I have also included a need to
elevate his legs during his lunch break in the residual
functional capacity above.
the parties differ as to whether Dr. Fillingame's opinion
is contradicted, even assuming the specific and legitimate
standard applies, the ALJ failed to properly discredit the
it is true that Dr. Fillingame's treatment notes dated
June 1, 2012, show plaintiff's edema improved, in context
this does not demonstrate any discrepancy with his opinion.
The treatment notes show plaintiff had been on bed rest for
about a week prior June 1, 2012, with the result his pedal
edema "is better, not resolved." Tr. 740. Indeed,
the notes show plaintiff still had 1 to 2 pitting edema down
to his mid shins. Id. In addition, the record shows
continued problems with edema after June 1, 2012. See,
e.g., Tr. 748-49, 774, 776, 785. Moreover, by June 2016,
plaintiff was hospitalized for two days due to cirrhosis
complications including increasing weakness, pedal edema, and
confusion resulting from hepatic encephalopathy. Tr. 871. The
ALJ relies on Dr. Fillingame's statement that plaintiff
need only elevate his legs at night, however, the ALJ does
not cite where this statement is made in the record. The
Commissioner similarly fails to cite support for the
ALJ's finding. The ALJ's rejection of Dr.
Fillingame's opinion is not supported by the record.
However, as noted below, further proceedings are necessary to
resolve outstanding issues regarding plaintiff's alleged
Examining Psychologist: Pamela Belcher, Ph.D.
25, 2010, Dr. Pamela Belcher examined plaintiff's mental
status and assessed plaintiff with dysthymic disorder. Tr.
277-82. Dr. Belcher also assessed alcohol dependence, cocaine
abuse, and heroin dependence all in sustained full remission.
Id. Dr. Belcher opined that plaintiff:
appears to have made a significant transition into reversing
the direction of his life from drug use and criminal behavior
to recovery and a desire to work and continue his education.
His self-concept and associated depression are presently
interfering significantly in his ability to secure
employment. He will not be a viable candidate for securing
and maintaining employment until his recovery and counseling
are effective. However, at such time as he ...