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Wilbur E. W. v. Commissioner Social Security Administration

United States District Court, D. Oregon, Portland Division

July 30, 2019

BRIAN E. W.[1] Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.

          OPINION & ORDER

          JOHN V. ACOSTA, United States Magistrate Judge.

         Plaintiff Brian E. W. (“Plaintiff”) filed this action under section 205(g) of the Social Security Act (the “Act”) as amended, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of Social Security (the “Commissioner”) who denied him supplemental security income benefits (“SSI Benefits”). The court finds the Commissioner erred by not justifying his rejection of Plaintiff's treating physician's opinion that Plaintiff is limited to occasional reaching and, as a result, relying on vocational expert testimony based on an incomplete hypothetical. Accordingly, the Commissioner's final decision is reversed and remanded for further proceedings consistent with this Opinion and Order.

         Procedural Background

         On or about March 13, 2014, Plaintiff protectively filed an application for SSI Benefits alleging an onset date of July 27, 2013. The application was denied initially, on reconsideration, and by the Administrative Law Judge (the “ALJ”) after a hearing. The Appeals Council denied review and the ALJ's decision became the final decision of the Commissioner.

         Factual Background

         Plaintiff is fifty-five years old. He obtained the equivalent of a high-school education. His past relevant work experience includes farm worker, construction laborer, and agricultural packer. Plaintiff has not been involved in a successful work attempt since July 27, 2013. Plaintiff alleges disability because of back and leg problems, and chest and hip pain.

         I. Testimony

         Plaintiff claims he became disabled on July 23, 2013, the date of his last successful work attempt. However, Plaintiff did not stop working for medical reasons in July 2013, but was laid off when his employer retired. (Tr. of Social Security Administrative R., ECF No. 13 (“Admin. R.”), at 174.) Shortly after his last day of work, Plaintiff fell fifty feet down a steep hill onto a concrete pad and hurt his upper back.[2] (Admin. R. at 36-37.) He did not seek medical treatment for his injuries, assuming they would just take some time to heal and medical care would not hasten or temper the healing process. (Admin. R. at 229.) Plaintiff started having issues with his left shoulder in February 2016, after attending an osteopathic manipulation session for his upper back and right shoulder. (Admin. R. at 51-52.)

         In his Function Report dated April 22, 2014, Plaintiff reported constant pain from his hips to his shoulders regardless of his activity level. (Admin. R. at 179.) He indicated he intermittently suffers from breathing problems, ringing in his ears, light-headedness, chest pains, and anxiety. (Admin. R. at 179.) He is able to care for himself and between periods when he is resting, stretching, or in pain, he prepares his meals; cleans the kitchen; loads the dishwasher; feeds, waters, picks up after, and walks his dogs for fifteen to twenty minutes in nice weather; provides transportation and runs errands for his roommate, who does not drive; and shops for groceries and does laundry on a weekly basis. (Admin. R. at 180-82.)

         Plaintiff enjoys playing with his dogs, although not as aggressively or for as long as before his injury, watching television and movies, listening to the stereo, and socializing with friends a few times a week. (Admin. R. at 183.) He is no longer able to pick up heavy items, walk long distances, or stand or sit for long periods, and has difficulty sleeping. (Admin. R. at 180.) Plaintiff represented his medical conditions prevent him from lifting more than fifteen pounds, walking more than twenty minutes, standing more than an hour, sitting more than two hours, squatting or bending more than a few moments, kneeling more than two minutes, or concentrating for more than short time. (Admin. R. at 184.) In April 2014, Plaintiff's medications were limited to Ibruprofen. (Admin. R. at 185.)

         At the time of the hearing in December 2016, Plaintiff lived with his girlfriend, Linda Davis, his friend, John Henparn, and nine dogs (two adult Pit Bulls, one adult German Shepherd, Pit Bull mix, and six puppies. (Admin. R. at 42-44.) On a typical day, Plaintiff stretches each morning to help with his back, hip and shoulder pain while drinking coffee, cleans up the kitchen while taking regular rest breaks, lets the dogs outside, cleans up the dog's mess inside, walks around the yard cleaning up the mess outside, and then listens to music. (Admin. R. at 54-55.) He helps Davis with the grocery shopping, using the cart for support while walking, drives home after stretching a bit in the car, and, as much as possible, helps transport the groceries into the house. (Admin. R. at 55.) He has difficulty sleeping at night and wakes up every two hours with hip and shoulder pain. (Admin. R. at 55.)

         Plaintiff testified he is unable to lift more than ten pounds from the ground without having to push on something to straighten, stand for more than two hours due to lower hip pain and right leg numbness, or walk for more than block due to upper back pain. (Admin. R. at 48-50.) Plaintiff represented he used anti-inflammatories and nerve medications, as well as muscle relaxants when he can afford them, only some of which provide some pain relief. (Admin. R. at 46-47.)

         II. Medical Evidence

         The earliest medical record offered in support of Plaintiff's claim is the review of an x-ray of Plaintiff's lumbar spine dated June 30, 2014. (Admin. R. at 221.) The x-ray revealed degenerative changes in “essentially all lumber levels with disc height loss and osteophyte formation” leading to a diagnosis of “[m]ultilevel lumber discogenic degenerative changes at essentially all lumber levels” but “most prominent at ¶ 3-L4.” (Admin. R. at 221.) The vertebral body height and alignment, and posterior elements were intact; the sacrum and sacroiliac joints were unremarkable, and there was no evidence of a significant compression deformity. (Admin. R. at 221.)

         On July 9, 2014, James E. Heder, M.D. examined Plaintiff at the request of the Commissioner. (Admin. R. at 229.) Plaintiff reported back pain limited his ability to walk, reach, and pull, and prevented him from getting a good night's sleep. (Admin. R. at 229.) Plaintiff informed Dr. Heder he was a regular smoker and enjoyed two to five beers per day, but he denied using street drugs. (Admin. R. at 230.) Dr. Heder noted Plaintiff had no difficulty walking to the examination room, removing his shoes, or transferring from the chair to the examination table. (Admin. R. at 231.) He observed Plaintiff had a normal gait, no difficulty walking toe to heel, hopping on both feet, or squatting, but did get shaky with tandem walking. (Admin. R. at 231-32.) Dr. Heder indicated:

There are no paravertebral muscle spasms, tenderness, crepitus, or effusions. He does have an “S” shape scoliosis of the thoracic lumbar spine. It is open to the left in the lumbar area and open to the right in the thoracic area. His right shoulder significantly drops off compared to the left, which appears to be due to the scoliosis.
* * *
Strength 5/5 in the upper and lower extremities bilaterally. Grip strength is 5/5 bilaterally. Normal muscle bulk and tone. No. atrophy noted.

(Admin. R. at 233.) Dr. Heder diagnosed Plaintiff with “thoracic lumbar spine dysfunction” which limited Plaintiff's ability to stand, walk, or sit to a maximum of six hours. (Admin. R. at 233.) Dr. Heder did not identify any additional restrictions, noting Plaintiff was not limited in his ability to lift, carry, climb, balance, stoop, kneel, crouch, crawl, reach, handle, finger, and feel. (Admin. R. at 233.)

         Later that month, Neal E. Berner, M.D., reviewed Plaintiff's application and function report, and Dr. Heder's conclusions, and found Plaintiff's residual functional capacity was limited to “medium” exertion with additional limitations to account for Plaintiff's reports of pain. (Admin. R. at 72-75.) Dr. Berner found Plaintiff could occasionally lift and carry fifty pounds; frequently lift and carry twenty-five pounds; stand, walk, and sit for six hours in an eight-hour day with normal breaks; and push and pull frequently, but not constantly, based on limitations in Plaintiff's upper extremities. (Admin. R. at 77.) Dr. Berner considered Plaintiff unlimited in his ability to climb ramps or stairs, balance, stoop, kneel, and crouch, but restricted him to crawling frequently and climbing ladders, ropes, and scaffolds occasionally. (Admin. R. at 77.) Richard Alley, M.D., performed a second review of Plaintiff's records and in a report dated February 4, 2015, concurred with the limitations identified by Dr. Berner. (Admin. R. at 88.)

         The first report of Plaintiff's treating physician, John R. Ward Jr., M.D., is dated April 22, 2015. (Admin. R. at 244.) Plaintiff sought medical assistance for his chronic back and neck pain. (Admin. R. at 244.) Dr. Ward noted spasm and tenderness along the cervical and lower lumbar paraspinous muscles, with strength intact in the upper extremities and some decreased sensation to light touch along the right lateral thigh. (Admin. R. at 245.) Dr. Ward indicated “Plaintiff has not had medical care in quite some time, ”[3] ordered x-rays, and prescribed salsalate. (Admin. R. at 247.) The results of the x-rays of Plaintiff's lumbar spine were “similar to that seen on the prior exam, ” with evidence of discogenic degenerative changes, disc loss, and osteophyte formation at all lumbar levels, and slight anterolisthesis of L4 under L3 and L5 under L4. (Admin. R. at 278.) However, there was “no significant compression deformity observed.” (Admin. R. at 278.) X-rays of Plaintiff's hip were found to be normal and x-rays of his thoracic spine revealed multilevel thoracic degenerative changes with no significant compression deformity. (Admin. R. at 279-80.)

         Plaintiff returned to Dr. Ward on May 6, 2015, and reported the salsalate was not providing effective pain relief. (Admin. R. at 249.) Dr. Ward prescribed physical therapy, to which Plaintiff appeared open, naproxen as a replacement for sasalate, and intermittent tramadol. (Admin. R. at 249.) Additionally, in light of Plaintiff's continued reports of pain, Dr. Ward requested additional testing to screen for inflammatory arthritis. (Admin. R. at 249.) A month later, Plaintiff indicated the tramadol made him dizzy, the naproxen cause him to bleed more, and the physical therapy was not very helpful. (Admin. R. at 251.) Dr. Ward discontinued the tramadol and naproxen, and prescribed ...

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