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Jeffrey B. v. Saul

United States District Court, D. Oregon

September 10, 2019

JEFFREY B.,[1] Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

         Jeffrey B. (“Plaintiff”) brings this appeal challenging the Commissioner of the Social Security Administration's (“Commissioner”) denial of his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. The Court has jurisdiction to hear Plaintiff's appeal pursuant to 42 U.S.C. § 405(g). For the reasons explained below, the Court reverses the Commissioner's decision and remands this case for an award of benefits.

         BACKGROUND

         Plaintiff was born in November 1969, making him forty years old on December 1, 2009, the alleged disability onset date. (Tr. 64, 80.) Plaintiff is a high school graduate who attended one year of college and has past relevant work as a senior software engineer. (Tr. 22, 37, 53, 222.) In his DIB application, Plaintiff alleges disability because of fibromyalgia, osteoarthritis, anxiety, depression, posttraumatic stress disorder (“PTSD”), and degenerative disc disease.[2] (SeeTr. 15, 64, 80.)

         On August 20, 2014, the U.S. Department of Veterans Affairs (“VA”) assigned Plaintiff a ninety percent service-connected disability rating based, in large part, on his fibromyalgia. (See Tr. 205-07.)

         In a letter dated January 9, 2015, Plaintiff's primary care physician, Norbert Gerondale, M.D. (“Dr. Gerondale”), informed the VA that he “recommended individual unemployability” for Plaintiff.[3] (Tr. 703.) In support of his recommendation, Dr. Gerondale noted that Plaintiff suffers from: (1) fibromyalgia, (2) dyssomnia “due to disrupted sleep rhythms as a result of the chronic pain syndrome as well as chronic back pain, ” (3) chronic “fatigue syndrome causing a severe lack of energy and difficulty thinking and concentrating throughout the day, ” (4) chronic “flu-like symptoms, malaise, dizziness, nausea and dozing off unexpectedly, ” (5) major “depression, recurrent, severe, without psychosis, but with mild attendant anxiety [and] agitation, ” which “results in occupational and social impairment in most areas, ” and (6) chronic “back pain as a result of lumbosacral strain, arthritis in the right knee, patellofemoral syndrome of both knees, bilateral ankle pain due to recurrent sprains and strains, metatarsalgia and [pes] cavus deformity and hammer toes, [and] tibial neuropathy at medial malleolus right and left leg.” (Tr. 703.)

         On March 19, 2015, Martin Lahr, M.D. (“Dr. Lahr”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 72-73.) Dr. Lahr determined that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently, and sit, stand, and walk for about six hours during an eight-hour workday. Dr. Lahr added that Plaintiff can push and pull in accordance with his lifting and carrying restrictions and engage in no more than occasional overhead reaching bilaterally. In addition, Dr. Lahr concluded that Plaintiff does not suffer from any postural, visual, communicative, or environmental limitations.

         On March 23, 2015, Megan Nicoloff, Psy.D. (“Dr. Nicoloff”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 70.) Based on her review of Plaintiff's medical records, Dr. Nicoloff determined that Plaintiff's mental impairments failed to meet or equal listings 12.04 (affective disorders) and 12.06 (anxiety-related disorders).

         Also on March 23, 2015, Dr. Nicoloff completed a mental residual functional capacity assessment form, in which she rated Plaintiff's limitations in each of thirteen categories of mental ability. (Tr. 73-75.) Dr. Nicoloff rated Plaintiff as not significantly limited in nine categories and moderately limited in four categories. She also stated that Plaintiff can “carry out two to three step tasks independently without special supervision, ” maintain adequate hygiene and grooming, work independently, and “have occasional, indirect public and coworker contact.” (Tr. 73-75.)

         On April 22, 2015, Plaintiff's treating psychologist, Rex Turner, Ph.D. (“Dr. Turner”), completed a mental residual functional capacity assessment form, in which he rated Plaintiff's limitations in each of twenty categories of mental ability. (Tr. 696-99.) Dr. Turner rated Plaintiff to be severely limited in terms of his ability to “travel in unfamiliar places or use public transportation, ” and his ability to “complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods.” (Tr. 698-99.) In addition, Dr. Turner concluded that Plaintiff suffers from moderately severe limitations on his ability to carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, sustain an ordinary routine without special supervision, respond appropriately to changes in the work setting, set realistic goals or make plans independently of others, and “get along with co-workers or peers without distracting them or exhibiting behavioral extremes.” (Tr. 697-99.)

         On May 15, 2015, Susan Moner, M.D. (“Dr. Moner”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 89-90.) Dr. Moner determined that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently, and sit, stand, and walk for about six hours in an eight-hour workday. Dr. Moner added that Plaintiff can push and pull in accordance with his lifting and carrying restrictions and engage in no more than frequent overhead reaching bilaterally. In addition, Dr. Moner concluded that Plaintiff does not suffer from any postural, visual, communicative, or environmental limitations.

         On May 18, 2015, Winifred Ju, Ph.D. (“Dr. Ju”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 87-88.) Dr. Ju agreed with Dr. Nicoloff that Plaintiff's mental impairments failed to meet or equal listings 12.04 and 12.06.

         Also on May 18, 2015, Dr. Ju completed a mental residual functional capacity assessment form, in which she rated Plaintiff's limitations in each of thirteen categories of mental ability. (Tr. 90-92.) Dr. Ju agreed with Dr. Nicoloff that Plaintiff was not significantly limited in nine categories and moderately limited in four categories. She also agreed that Plaintiff can “carry out two to three step tasks independently without special supervision, ” maintain adequate hygiene and grooming, work independently, and “have occasional, indirect public and coworker contact.” (Tr. 91-92.)

         On January 19, 2016, the VA referred Plaintiff to Kacy Mullen, Ph.D. (“Dr. Mullen”), for a Compensation and Pension Examination. (Tr. 785-93.) Dr. Mullen conducted a seventy-five minute clinical interview, reviewed Plaintiff's medical records, and administered several tests. (Tr. 788-89.) Dr. Mullen stated that Plaintiff was “judged to be a truthful and reliable reporter of his circumstances within the limits of his limited insight.” (Tr. 792.) Dr. Mullen also stated that Plaintiff suffers from depressed mood, anxiety, panic attacks that “occur weekly or less often, ” chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and difficulty “establishing and maintaining effective work and social relationships.” (Tr. 791-92.)

         Dr. Mullen concluded that Plaintiff continues to meet the diagnostic criteria for insomnia and major depressive disorder and “[p]sychological [f]actors [a]ffecting [o]ther [m]edical [c]onditions.” (Tr. 793.) Dr. Mullen also determined that (1) Plaintiff's reported “symptoms are significant and have had moderate to severe impacts upon his social and occupational functioning, ” (2) Plaintiff's test results were “consistent with [the] information gathered during the diagnostic and social history interviews for the presence and level of symptomatology, ” (3) Drs. Gerondale and Turner “have indicated agreement with [Plaintiff's] symptoms, ” (4) Plaintiff could not recall significant dates or complete Serial 7's, and (5) Plaintiff “would benefit from working alone and remotely in a familiar environment, being given written instead of verbal instructions, supervised interactions with coworkers and/or customers, and a highly flexible schedule with [the] ability to take breaks as much and as often as needed.” (Tr. 793-94.)

         In a report to the VA dated January 19, 2016, Lucinda Dykes, M.D. (“Dr. Dykes”), addressed Plaintiff's fibromyalgia. (Tr. 795-98.) Dr. Dykes stated that Plaintiff “began to develop widespread joint pain” in 2007, Plaintiff's “pain has continued and progressed” since the VA first diagnosed him with fibromyalgia in 2010, Plaintiff “continues to meet [the] American College of Rheumatology criteria for fibromyalgia, ” and Plaintiff's “disabling pain continues.” (Tr. 796.) In addition, Dr. Dykes stated that (1) Plaintiff exhibited tender points for pain present, (2) Plaintiff suffers from widespread musculoskeletal pain, stiffness, fatigue, sleep disturbances, paresthesia, headaches, depression, anxiety, irritable bowel syndrome, and mild cognitive symptoms, (3) Plaintiff's “chronic pain from fibromyalgia, including sleep difficulties and cognitive symptoms, would interfere with his ability to work as a software engineer, ” (4) Plaintiff's chronic pain would “make it impossible for him to stay in one position for any length of time, so even sedentary work is not possible for any extended length of time, ” and (5) Plaintiff is constantly “trying to find a comfortable position, and this position is constantly changing.” (Tr. 797-98.)

         In a ratings decision dated April 2, 2016, the VA granted Plaintiff's claim for a TDIU, effective June 5, 2013. (Tr. 303-05.) This decision was based on, among other things, Dr. Gerondale's opinion and Drs. Dykes' and Mullen's exams, which showed that Plaintiff was “unable to maintain physical or sedentary employment due to his service-connected conditions.” (Tr. 303-04.)

         On March 23, 2017, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 35-62.) Plaintiff testified that he attended one year of technical college, he worked for nearly twenty years as a software engineer and database developer, he stopped working as a software engineer in December 2009, his ex-wife ran a daycare business out of their home in 2012 and 2013, he provided “very minimal” assistance in running the daycare business, and his accountant put the daycare earnings on his “tax form[] to better [their] returns.” (Tr. 37-39.) Plaintiff also testified that he suffers from an “extraordinary amount of pain” because of back and knee issues and fibromyalgia, frequent headaches, chronic fatigue, difficulty sleeping, depression, and “concentration issues, ” and he cannot sit for more than fifteen minutes at a time because of back and knee pain. (Tr. 44-52.) Plaintiff further testified that he lies in his recliner most of the day, he takes his dog for short walks, he cannot perform yardwork, he can perform only one household chore per day, he does not have friends, he rarely communicates with his family, and he sold his motorcycle and snowboarding and scuba diving equipment. (Tr. 44-52.)

         The ALJ posed hypothetical questions to a Vocational Expert (“VE”) who testified at the administrative hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform medium work, subject to these limitations: (1) Plaintiff cannot climb ladders, ropes, or scaffolds; (2) Plaintiff cannot be exposed to workplace hazards, such as machinery and unprotected heights; (3) Plaintiff can “understand, remember, and carry out only short and simple instructions”; (4) Plaintiff “can only make simple work-related judgments and decisions”; (5) Plaintiff “can have no more than frequent proximity contact with the public and can have no more than frequent interactive contact with co-workers and supervisors.” (Tr. 53-54.) The VE testified that the hypothetical worker could not perform Plaintiff's past relevant work as a senior software engineer, but the hypothetical worker could perform the jobs of document preparer, dishwasher kitchen helper, industrial cleaner, and laundry worker.

         Second, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform light work, subject to these limitations: (1) Plaintiff “can only occasionally stoop, crouch, kneel, and crawl”; (2) Plaintiff cannot climb ladders, ropes, or scaffolds; (3) Plaintiff cannot be exposed to workplace hazards, such as machinery and unprotected heights; (4) Plaintiff “can understand, remember, and carry out only short and simple instructions”; (5) Plaintiff “can only make simple work-related judgments and decisions”; and (6) Plaintiff “can have no more than frequent proximity contact with the public and have no more than frequent interactive contact with co-workers and supervisors.” (Tr. 56.) The VE testified that the hypothetical worker could not perform Plaintiff's past relevant work, but he could perform the jobs of laundry sorter, small products assembler, and merchandise marker.

         Third, the ALJ asked the VE to assume that the hypothetical worker described in the second hypothetical also needed to “be permitted to lie down or recline in excess of 90 minutes during an eight-hour day.” (Tr. 57.) The VE testified that this added limitation would preclude employment.

         Plaintiff's counsel also posed questions to the VE who testified at the administrative hearing. Responding to Plaintiff's counsel's questions, the VE confirmed that the hypothetical worker could not sustain gainful employment if he: (1) “would need a highly flexible schedule with the ability to take breaks as much and as often as needed”; (2) suffered from moderately severe limitations in seven specific categories of mental ability; and (3) suffered from severe limitations on his “ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace without [extra breaks].” (Tr. 58-61.)

         In a written decision issued on May 2, 2017, the ALJ applied the five-step process set forth in 20 C.F.R. § 404.1520(a)(4), and found that Plaintiff was not disabled. See infra. The Social Security Administration Appeals Council denied Plaintiff's petition for review, making the ALJ's decision the Commissioner's final decision. Plaintiff timely appealed to federal district court.

         THE FIVE-STEP SEQUENTIAL ANALYSIS I.LEGAL STANDARD

         A claimant is disabled if he cannot “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). Those five steps are (1) whether the claimant is currently engaged in any substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the claimant can perform other work that exists in significant numbers in the national economy. Id. at 724-25. The claimant bears the burden of proof for the first four steps of the sequential process. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of the first four steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).

         The Commissioner bears the burden of proof at step five of the process, where the Commissioner must show 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). If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954 (citations omitted).

         II. THE ALJ'S DECISION

         The ALJ applied the five-step sequential process to determine whether Plaintiff is disabled. (Tr. 13-24.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since December 1, 2009, the alleged disability onset date. (Tr. 15.) At step two, the ALJ determined that Plaintiff suffered from the following severe impairments: “[F]ibromyalgia, osteoarthritis, anxiety, depression, posttraumatic stress disorder, and degenerative disc disease.” (Tr. 15.) At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or equals a listed impairment. (Tr. 15-16.) The ALJ then concluded that Plaintiff had the residual functional capacity (“RFC”) to perform light work, subject to these limitations: (1) Plaintiff “can occasionally stoop, crouch, kneel, and crawl”; (2) Plaintiff can “never climb ladders, ropes, or scaffolds”; (3) Plaintiff “cannot have any exposure to hazards, such as machinery and unprotected heights”; (4) Plaintiff “can understand, remember, and carry out only short and simple instructions”; (5) Plaintiff “can only make simple work related judgments and decisions”; and (6) Plaintiff “can have no more than frequent proximity contact with the public and no more than frequent interactive contact with coworkers and supervisors.” (Tr. 17.) At step four, the ALJ determined that Plaintiff could not perform his past work as a senior software engineer. (Tr. 22.) At step five, the ALJ determined that Plaintiff was not disabled because a significant number of jobs existed in the national economy that he could perform, including work as a laundry sorter, small products assembler, and merchandise marker. (Tr. 23.)

         ANALYSIS

         I. ...


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