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Monte Y. Shaw v. Michael J. Astrue

January 16, 2013

MONTE Y. SHAW,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (Doc. 21) ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF MONTE Y. SHAW

Monte Shaw ("Plaintiff") asserts he is entitled to benefits under the Social Security Act, and seeks judicial review of the decision denying his applications. Plaintiff argues the administrative law judge ("ALJ") erred in evaluating the medical evidence and hearing testimony, and in assessing his residual functional capacity. For the reasons set forth below, the administrative decision is affirmed, and Plaintiff's motion for summary judgment (Doc. 21) is DENIED.

PROCEDURAL HISTORY*fn1

Plaintiff filed an application for disability insurance benefits (DIB) on June 22, 2001, alleging disability beginning July 23, 2000. AR at 109-11. The Social Security Administration denied his claim at the initial level on November 15, 2001. Id. at 35. Plaintiff filed a second application for DIB on May 24, 2002, which was denied at the initial level and upon reconsideration. Id. at 35, 113-15.

After requesting a hearing, Plaintiff testified before an ALJ on June 9, 2004. AR at 476.

The ALJ noted Plaintiff "filed his new application within the one-year period following the date of the 3 notice of the initial determination made with respect to the prior application." Id. at 35. Therefore, the ALJ re-opened the first application for adjudication. Id. (citing 20 C.F.R. § 404.987). The ALJ 5 determined Plaintiff was not disabled and issued an order denying benefits on July 9, 2004. Id. at 35-6 42. Plaintiff requested the Appeals Council review the ALJ's decision.

While the action was pending before the Appeals Council, Plaintiff filed third application for DBI, as well as an application for supplemental security income (SSI) on September 20, 2004. AR at 9 124- 26, 446-48. The applications were denied at the initial level on November 18, 2004. Id. at 449-50. Plaintiff filed a second application for SSI and fourth application for DIB on February 9, 2005, alleging disability beginning October 15, 2000. Id. at 130-32, 456-59. These applications were denied on April 14, 2005. Id. at 461.

On November 9, 2005, the Appeals Council vacated the ALJ's decision and remanded the action for further proceedings after finding Plaintiff submitted new and material evidence with his request for review. Id. at 43-45. The ALJ consolidated Plaintiff's applications for DBI and SSI, and held a second hearing on June 8, 2006. Id. at 17, 497. The ALJ found Plaintiff was not disabled from July 23, 2000 through the date of the decision issued on July 28, 2006. Id. at 15-23. Plaintiff's request for review by the Appeals Council was denied on October 6, 2006. Id. at 8-10.

Plaintiff initiated an action for judicial review in the United States District Court for the District of Alaska, Case No. 4:06-cv-00037-RRB. Plaintiff and the Commissioner of Social Security ("Commissioner") stipulated that the action be remanded and assigned to a new ALJ for further administrative proceedings. AR at 591-92. Accordingly, the District Court remanded the action pursuant to sentence four of 42 U.S.C § 405(g), with instructions for a new ALJ to evaluate Plaintiff's subjective complaints, mental impairments, and the opinion evidence on June 26, 2007. Id. at 593.

On November 14, 2007, Plaintiff testified for the third time before an ALJ. AR at 627. The ALJ noted Plaintiff was alleging disability since July 8, 2004, and concluded he was not disabled through his date last insured of December 31, 2005. Id. at 579, 589. The Appeals Council found no reason to assume jurisdiction over the decision on June 27, 2008. Id. at 568-70.

Again, Plaintiff requested judicial review of the action by the District Court in Shaw v. Astrue, Case No. 4:08-cv-00028-RRB. On September 25, 2008, the parties stipulated to a remand of the 3 action, noting Plaintiff had alleged different onset dates in his applications for DBI and SSI benefits. 4

Id. at 683-84. Accordingly, the District Court remanded the matter pursuant to sentence four of 42 5 U.S.C. § 405(g), instructing the ALJ to (1) develop the record to clarify the exact date of disability 6 onset alleged by Plaintiff and (2) give further consideration to the cumulative case record for the entire 7 period at issue. Id. at 681-82. The Appeals Council vacated the final decision of the Commissioner 8 and remanded the action for further proceedings by an ALJ consistent with the District Court's order. 9

Id. at 679-80.

On March 15, 2010, Plaintiff testified for the fourth time before an ALJ. AR at 719. At the hearing, Plaintiff "amended the allege[d] onset date of disability to October 15, 2000." Id. at 663. The ALJ determined Plaintiff was not disabled under the Social Security Act, and issued an order denying benefits on August 24, 2010. Id. at 663-76. Plaintiff did not file written exceptions to the decision. Therefore, the ALJ's determination became the final decision of the Commissioner on October 25, 2010.

Plaintiff initiated the action before this Court on December 24, 2010, seeking judicial review of the ALJ's decision. (Doc. 1). Because the Appeals Council could not locate the record, the parties stipulated to a remand pursuant to sentence six of 42 U.S.C. § 405(g). (Docs. 11-12). After the parties informed the Court the administrative record had been located and prepared, the matter was re-opened by the Court on October 4, 2011. (Doc. 13).

STANDARD OF REVIEW

District courts have a limited scope of judicial review for disability claims after a decision by the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, such as whether a claimant was disabled, the Court must determine whether the Commissioner's decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ's determination that the claimant is not disabled must be upheld by the Court if the proper legal standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec'y of Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a 2 reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 3 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole 4 must be considered, because "[t]he court must consider both evidence that supports and evidence that 5 detracts from the ALJ's conclusion." Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

DISABILITY BENEFITS

To qualify for benefits under the Social Security Act, Plaintiff must establish he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment 9 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). An individual shall be considered to have a disability only if: his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). When a claimant establishes a prima facie case of disability, the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).

ADMINISTRATIVE DETERMINATION

To achieve uniform decisions, the Commissioner established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. §§ 404.1520, 416.920 (a)-(f). The process requires the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional capacity to perform to past relevant work or (5) the ability to perform other work existing in significant numbers at the state and national level. Id. The ALJ must consider testimonial and objective medical evidence. 20 C.F.R. §§ 404.1527, 416.927, 416.929.

A. Relevant Medical Evidence 2

On July 24, 2000, Plaintiff was treated at Fairbanks Urgent Care for low back pain. AR at 363.

He informed Dr. Larry Harikian he injured his back while working. Id. He claimed the pain lasted for 4 several days but Plaintiff returned to work until suffering a second episode "which lasted for 5 approximately one week." Id. at 283.

On September 5, 2000, Dr. Harikian noted Plaintiff no longer had leg pain, although he reported "some soreness" in his low back. AR at 302. According to Dr. Harikian, Plaintiff was "much 8 improved" without spasms in his back or spinal tenderness, and he had a full range of motion. Id. 9

Therefore, he believed Plaintiff was able to work with limitations, including "no bending/lifting" and "no shoveling." Id. Dr. Leonie DeRamus, who also treated Plaintiff at Fairbanks Urgent Care, found Plaintiff's lumbar sprain was "resolving." Id. On September 25, 2000, Dr. Harikian recommended Plaintiff continue light duty for five days, and then return to work without limitations. Id. at 299.

Plaintiff reported he had a third injury at work on October 6, 2000, when he "slipped and fell and twisted on the ice at work." AR at 283. On October 9, Dr. DeRamus opined Plaintiff was able to return to work, but should be limited to a "desk job." Id.at 358

Plaintiff underwent an MRI examination of his lumbar spine on October 19, 2000. Id. at 305. Dr. Mark Burton found Plaintiff had desiccation at several levels, degenerative changes and a "small focal disc herniation present" at the L1-2 level, "a broad mild disc bulge" at the L4-5 level, and "a focal central disc herniation" at the L5-S1 level. Id. Based upon the MRI results, Dr. Rieck concluded Plaintiff had mild degenerative disc disease. Id. at 306.

Upon referral from Dr. Harikian, Dr. Roy Pierson performed an orthopedic evaluation on November 9, 2000. Id. at 282-84. Dr. Pierson observed Plaintiff "demonstrate[d] antalgic behavior with all of his movements during his interview and evaluation." Id. at 283. Dr. Pierson determined Plaintiff had "an L5-S1 herniated disc," which he treated with an epidural cortisone injection. Id. at 282. At a follow-up appointment on December 13, 2000, Plaintiff reported "moderate improvement" and "no lower extremity pain." Id. at 281. He said the pain was "localized to the buttocks and posterior low back." Id. Dr. Pierson observed Plaintiff "continue[d] to have an antalgic gait," although he did not use a cane or crutch. Id. Plaintiff declined a second epidural injection. Id.

On January 18, 2001, Plaintiff reported "he had several days of improvement of his symptoms, but that [the injection] wore off and he returned to his pre-injection level of symptoms." AR at 280.

In addition, Plaintiff "wishe[d] to consider returning to work in a light duty capacity." Id. Dr. Pierson 4 observed Plaintiff favored his lower back, but "move[d] easily about the office." Id. He determined 5

Plaintiff "should not return to heavy work activity." Id. However, on April 24, 2001, Dr. Pierson 6 noted Plaintiff had not returned to work "because no light duty laborer work is available." Id. at 279. 7

Dr. John Joosse conducted an independent medical evaluation on June 18, 2001, and reviewed

Plaintiff's MRI from October 2000. AR at 271. Plaintiff reported he was "able to be horizontal with 9 no pain, but [could] sit only two hours, and . . . stand one to two hours before he has to change position and move about." Id. Dr. Joosse noted Plaintiff was able to heel-walk, toe walk, and do a full squat. Id. Dr. Joosse opined:

Based upon the MRI appearance and the patient's continued symptomatic painful low back, I would advise him to seek light duty, sedentary-type employment rather than continue heavy lifting and laboring.

Because of the risk of aggravating the existing degenerative discs, Mr. Shaw should avoid bending and twisting his spine and lifting more than 25 to 30 pounds at a time.

Id. at 272. Dr. Joosse noted: "I believe these limitations are permanent, although typically patients with degenerative disc disease have good days and bad days, and [Plaintiff] may feel much less pain in the future." Id. Dr. Joosse opined surgery "may relieve a good portion of Mr. Shaw's discomfort," but Plaintiff said he was "not interested in surgery" and "declined any further treatment." Id. at 273.

Dr. Pierson noted he concurred with the assessment of Dr. Joosse on July 24, 2001. AR at 278. Plaintiff stated "his symptoms . . . dramatically improved" and he had "minimal low back symptoms." Id. Dr. Pierson observed Plaintiff moved "easily" about the office. Id. Therefore, he recommended Plaintiff begin vocational rehabilitation immediately. Id.

On June 27, 2002, Dr. DeRamus explained he could not evaluate Plaintiff's ability to work because he had not been treated at Fairbanks Urgent Care since 2000. AR at 294.

Dr. Loren Jensen reviewed Plaintiff's records and performed an orthopedic consultation on August 7, 2002. AR at 307-10. Plaintiff reported pain in his lower back, which "worsened with sitting and standing for prolonged periods of time." Id. at 308. He described "pain shooting anteriorally in the side, down as far as the knees," as well as "some knee pain . . ., which is present if 2 he arises from a sitting position after a prolonged period of inactivity." Id. Upon examination, Dr. 3

Jensen found Plaintiff's muscle strength was "5/5 for all specific muscle groups," and he had "a full 4 range of motion at the hips and knees." Id. at 309. Plaintiff had "tenderness over the entire lumbar 5 spine, principally in the midline and to a lesser extent over the paralumbar musculature with some 6 mild tenderness over the sacroiliac joints themselves." Id. Plaintiff complained of pain when he bent 7 over and touched his knees. Id. Dr. Jensen determined Plaintiff was "capable of lifting and carrying 8

25 pounds," as well as "handling, speaking, seeing, and traveling without restrictions." Id. at 310. 9

Therefore, Dr. Jensen concluded Plaintiff was "capable of working on light to moderate levels of work without restrictions, other than being allowed to change positions frequently." Id.

On September 9, 2002, Dr. William Backlund reviewed the functional capacity assessment of a single decision maker ("SDM"), and agreed with the assessment that Plaintiff was able to lift and carry 10 pounds frequently and 20 pounds occasionally, and sit, stand or walk about six hours in an eight-hour day. AR at 312, 320. He opined Plaintiff was able to frequently kneel; crouch; crawl; and climb ramps, stairs, ladders, ropes, and scaffolds. Id. at 313, 320. According to Dr. Backlund, "[b]alancing should not be a problem" for Plaintiff, but he should be limited to occasional stooping. Id. at 320. Further, he found Plaintiff should avoid concentrated exposure to vibrations. Id. at 315, 320.

Dr. David Witham performed a physical examination of Plaintiff at Tanana Valley Medical-Surgical Group Clinic ("Tanana Valley Clinic") on October 2, 2003. AR at 337. Dr. Witham observed Plaintiff exhibited "considerable pain behavior with grimacing on all lumbar range of motion testing." Id. Dr. Witham ordered another MRI of Plaintiff's lumbar spine, and determined Plaintiff "continue[d] to exhibit degenerative disc changes at 4, 5 and a central and primarily right-sided disc herniation at L5, S1." Id. at 334. Dr. Witham compared the results to the prior MRI and concluded: "No major changes in appearance of lumbar MRI has occurred in the interim since the year 2000." Id. Therefore, he recommended conservative treatment be continued. Id.

Dr. Clay Triplehorn, another physician at Tanana Valley Clinic, began treating Plaintiff on December 17, 2003. AR at 380. Plaintiff wanted to establish care for his "chronic pain," which he described as "4-5/10 in intensity." Id. at 406-07. Dr. Triplehorn observed that Plaintiff walked "with a slightly broad based guarded gait due to apparent low back discomfort." Id. at 405. In addition, 2

Plaintiff sat and rose "with apparently difficulty due to low back stiffness." ...


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