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Miller v. Berryhill

United States District Court, D. Oregon

February 15, 2018

PAUL JOSEPH MILLER, Plaintiff,
v.
NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY, Defendant.

          FINDINGS & RECOMMENDATION

          JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE

         Plaintiff 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.

         Plaintiff 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.[1] 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.

         After a 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 work.[2]

A. Treating Doctor: Ralph Fillingame, M.D.

         On June 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. 425.

         The ALJ 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.

Tr. 460.

         Although 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 opinion.

         While 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 disability.

         B. Examining Psychologist: Pamela Belcher, Ph.D.

         On June 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 ...

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