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Nathan B. v. Saul

United States District Court, D. Oregon

October 3, 2019

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



         Nathan B. (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-34, 1381-83f. The Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons explained below, the Court reverses the Commissioner's decision and remands this case for further proceedings consistent with this opinion.


         Plaintiff was born in June 1977, making him thirty-seven years old on August 23, 2013, the alleged disability onset date. (Tr. 25, 67.) Plaintiff has a tenth-grade education and past relevant work as an automobile mechanic helper and construction worker. (Tr. 25, 214.) In his applications, Plaintiff alleges disability because of depression, dyslexia, and a back injury. (Tr. 67.)

         On July 26, 2013, one month before the alleged onset date, a magnetic resonance imaging (“MRI”) of Plaintiff's lumbar spine revealed “[m]ulti-level degenerative disk space disease with varying amounts of spinal canal and neural foraminal narrowing, most significant at ¶ 5-S1.” (Tr. 295.)

         On October 10, 2013, Plaintiff's rehabilitation counselor referred him to David Bush, Ph.D. (“Dr. Bush”), for a psychological evaluation. Dr. Bush interviewed Plaintiff and administered a battery of tests. Dr. Bush determined that Plaintiff “reads at a second-grade level and is functionally illiterate, ” Plaintiff “does not meet the criteria for an attention problem, ” Plaintiff has “struggled to maintain employment, in part because of learning challenges, ” Plaintiff's “primary concern is processing speed, ” and Plaintiff's “severe reading and writing delays are consistent with major learning disorder.” (Tr. 397-98.) Dr. Bush diagnosed Plaintiff with a reading disorder and disorder of written language. Dr. Bush added that Plaintiff “needs work that doesn't require reading or writing and limited math, ” Plaintiff “needs a supportive employer or supervisor who understands learning deficits and [Plaintiff's] slower processing speed, ” and Plaintiff “would [do] best in a position that does not require a great deal of speed.” (Tr. 399.)

         On April 23, 2014, Plaintiff visited Stuart King, M.D. (“Dr. King”), a physiatrist, complaining of “acute low back pain and sciatica.” (Tr. 377.) Plaintiff reported that he had “not been able to return to work with his back problems, ” he “had some jobs but when they discovered he had a back injury he was let go or not hired in the first place, ” he was “working with vocational rehabilitation toward becoming a security guard” and obtaining his General Equivalency Degree, and he was recently released “to occasional 75-pound lifts.” (Tr. 377.) Dr. King noted that Plaintiff did not complain of anxiety or depression, Plaintiff's Patrick's test was “positive for right sacroiliac joint pain and no hip joint contractures bilaterally, ” Plaintiff “react[ed] to straight leg raise on the right not the left, ” and Plaintiff exhibited “[g]reatly decreased lumbar range of motion with guarding.”[2] (Tr. 377-78.) Dr. King diagnosed Plaintiff with (1) “[a]cute lumbar disk herniation with low back pain and sciatica, ” (2) “[v]ery little evidence of lumbar strain, ” and (3) “[s]acroilitis right worse than left.” (Tr. 378.) Dr. King added that he would “need the MRI scan and reports . . . to confirm concerns with disk herniation, ” and that he could not release Plaintiff to work because he “may be at significant risk of reinjuring and worsening and having surgery he could've avoided with proper precautions and care.” (Tr. 378-79.)

         On January 28, 2015, Irmgard Friedburg, Ph.D. (“Dr. Friedburg”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 71-72.) Based on her review of Plaintiff's medical records, Dr. Friedburg determined that Plaintiff's mental impairments did “not precisely satisfy” the criteria of listing 12.04 (affective disorders). (Tr. 71-72.)

         On January 29, 2015, Susan Moner, M.D. (“Dr. Moner”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 73-74.) 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 (1) push and pull in accordance with his lifting and carrying restrictions, (2) occasionally crawl and climb ramps, stairs, ladders, ropes, and scaffolds, (3) frequently stoop, kneel, and crouch, and (4) balance without limitation. In addition, Dr. Moner concluded that Plaintiff does not suffer from any manipulative, visual, communicative, or environmental limitations.

         On April 7, 2015, Neal Berner, M.D. (“Dr. Berner”), a non-examining state agency physician, completed a physical residual capacity assessment and made findings identical to Dr. Moner's findings. (Tr. 93-95.)

         On April 8, 2015, Winifred Ju, Ph.D. (“Dr. Ju”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 92.) Dr. Ju agreed with Dr. Friedburg that Plaintiff's mental impairments failed to meet or equal listing 12.04 (affective disorders).

         On December 30, 2015, Plaintiff visited Stephanie Parker (“Parker”), a licensed professional counselor. Plaintiff reported that he recently visited the emergency room because of increased paranoia and hallucinations. (Tr. 409.) Plaintiff also reported that he had been “depressed most of his life, ” he visited Parker to “make sure he is not crazy and not delusional, ” he had a long-term history of “smoking recreational marijuana, which he gets from friends and does not know [the] origin, ” and his mother had “‘paranoid schizophrenia' and killed his brother before drowning herself.” (Tr. 409-12.) Parker noted that Plaintiff suffers from “difficulty sleeping at night, low energy, low self-esteem, and difficulty making decisions, ” which cause “significant distress or impairments socially, occupationally, and in family relationships” and are not attributable to Plaintiff's “cannabis use or explained by any psychotic disorder, including schizophrenia.” (Tr. 413.) Parker also noted that Plaintiff “spends significant time obtaining cannabis from various friends” and Plaintiff “continues to smoke cannabis, ” even though he had been “experiencing increased panic, paranoia and hallucinations . . . intermittently [for] about 3 months and after he smokes cannabis.” (Tr. 413.) Parker's primary diagnoses were (1) persistent depressive disorder “with anxious distress, ” and (2) a “moderate” cannabis use disorder. (Tr. 413.)

         On August 24, 2016, Plaintiff's primary counselor, Peter Buhmann (“Buhmann”), referred him to William Herz, M.D. (“Dr. Herz”), for a psychiatric evaluation. Dr. Herz noted that he reviewed some of Plaintiff's mental health records, Plaintiff has a “significant family history” of mental illness, and Plaintiff complained of paranoia, delusions, and possible hallucinations. Dr. Herz also addressed the relationship between Plaintiff's marijuana use and schizophrenia:

It is possible that the use of Cannabis did contribute to the onset of the Schizophrenic symptoms, but the causal relationship between use of Cannabis and Schizophrenia is not well understood at all, and . . . it is also likely that the onset of Schizophrenia in a person predisposed to it could happen at any time regardless of whether Cannabis was used or not. . . . [H]e and his wife are both very much in agreement that he should not continue to use it if only because it could very likely exacerbate the symptoms. It is also possible that after a long enough period of abstinence from Cannabis, the Schizophrenic symptoms may significantly improve, but this is impossible to predict.

(Tr. 434.) Ultimately, Dr. Herz concluded that Plaintiff meets the criteria for a schizophrenia diagnosis:

Based on the history provided, as well as acknowledging that he does have what appear to be auditory hallucinations and a strong family history of Schizophrenia, it unfortunately appears he does have a high risk of having Schizophrenia. He has symptoms that meet the criteria of Schizophrenia, and the condition has not persisted more than six months, which is beyond the duration of the criteria for Schizophreniform Disorder. Because of the presence of hallucinations as well as delusions, and some possible negative symptoms such as decreased emotional expression, I believe he actually does meet the criteria for Schizophrenia now. . . . [T]here are increasing reports in literature that Schizophrenic symptoms can begin first onset at almost any point in the lifespan. There also do not appear to be any other factors such as substance use [or] medical conditions that would account for the symptoms.

(Tr. 435-36.)

         In a progress note dated January 5, 2017, Dr. Herz noted that Plaintiff was not using marijuana and that Plaintiff continued to suffer from symptoms of schizophrenia, such as auditory hallucinations and “having feelings of things not being real.” (Tr. 438.) Dr. Herz also noted that it did “appear” that Plaintiff's marijuana use was “the initial trigger to set off his psychosis, ” and that he believes Plaintiff is “in early or mild form of Schizophrenia, with a lot of understanding of reality even though the symptoms he experiences are separated from it.” (Tr. 438-39.)

         On March 3, 2017, Plaintiff's counselor, Buhmann, filled out a questionnaire prepared by Plaintiff's counsel. (Tr. 441-44.) Buhmann reported that he treated Plaintiff fourteen times since July 6, 2016, he and Dr. Herz diagnosed Plaintiff with schizophrenia, and Plaintiff's symptoms include delusions and anxiety. Buhmann opined that Plaintiff is extremely limited in his ability to (1) ignore or avoid distractions while working, (2) work “a full day without needing more than the allotted number or length of rest periods during the day, ” and (3) keep “social interactions free of excessive irritability, sensitivity, argumentativeness, or suspiciousness.” (Tr. 443.) Buhmann also opined that Plaintiff would “miss . . . the equivalent of two full workdays . . . or more per month from even a simple, routine job because of his impairments, symptoms, or medications and their side effects.” (Tr. 444.) Dr. Herz signed the questionnaire and stated that he “concur[s] completely with the findings, ” which are “consistent” with his own observations. (Tr. 444.)

         On April 3, 2017, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 37-64.) Plaintiff testified that his back pain is exacerbated by driving and standing too long, and he cannot “lift very much weight” or “bend[] over a car all day” because of the “bad discs in [his] back.” (Tr. 41-42, 47-48.) Plaintiff added that he suffers from mental health issues, his mother was mentally ill and killed herself and his brother, he does not “want to hurt anybody, ” he instructed his wife “to call the cops or whatever” if he starts “acting too weird, ” he visits his counselor once or twice a month, his counselor is trying to find a medication that will make him “more stable, ” he cannot “lift more than 50 pounds, ” he experiences pain when he lifts household objects, such as “a couple gallons of milk, ” and he takes mental health medication daily but does not take pain medication because he does not “want to get addicted to pills.” (Tr. 48-50.) Plaintiff also testified that he attended community college in 2015 and attempted to earn his General Equivalency Degree, although he does not “remember . . . even going” to community college due to his psychosis, and he only remembers being “in a house and people wouldn't let [him] leave and they were interrogating [him] and had [him] tied up and stuff.” (Tr. 51-52.)

         The ALJ posed several hypothetical questions to a Vocational Expert (“VE”) who testified at Plaintiff's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform the “full range of light exertion work, ” subject to the following limitation: Plaintiff can engage in no more than occasional crawling and climbing of ramps, stairs, ladders, ropes, and scaffolds. (Tr. 60.) The VE testified that the hypothetical worker could not perform Plaintiff's past work, but the worker could be employed as a “cleaner housekeeping, ” cafeteria attendant, and small products assembler. (Tr. 61.)

         Second, the ALJ asked the VE to assume that the hypothetical worker described above also needed to be limited to “simple, routine tasks requiring a reasoning level of one or two.” (Tr. 61.) The VE testified that the hypothetical worker could not perform Plaintiff's past work, but the worker could still perform the jobs the VE identified in response to the first hypothetical. (Tr. 61-62.)

         Responding to the third and final hypothetical, the VE confirmed that a hypothetical worker could not sustain gainful employment if he needed “reminders once per hour in order to stay on task.” (Tr. 62.) Responding to Plaintiff's counsel's hypothetical questions, the VE confirmed that a hypothetical worker could not sustain gainful employment if (1) he was off task fifteen to twenty percent of the time, or (2) missed sixteen hours of work “per month on average on an ongoing basis” because of absences, leaving work early, or arriving late to work. (Tr. 62-63.)

         In a written decision issued on June 21, 2017, the ALJ applied the five-step process set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(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.


         A claimant is considered 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). 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 is capable of performing 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. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those 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 ...

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