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Dreesman v. Berryhill

United States District Court, N.D. California

June 30, 2017



          HOWARD R. LLOYD United States Magistrate Judge.

         Claimant Roger Dreesman (“Dreesman”) appeals a decision denying social security disability benefits under Title II of the Social Security Act and supplemental security income under Title XVI of the Social Security Act. He seeks a reversal of the Commissioner's decision and remand for further administrative proceedings. Dkt. No. 19. Defendant filed a cross-motion for summary judgment defending the ALJ's decision. Dkt. No. 23. Each party consented to magistrate judge jurisdiction. Dkt. Nos. 7, 9. For the reasons explained below, the court grants Plaintiff's motion for summary judgment, denies Defendant's cross-motion for summary judgment, and remands this matter to the agency for further administrative proceedings.


         Dreesman suffers from severe migraines, panic and anxiety disorder, tinnitus, osteoarthritis in both knees, depressive disorder, and obesity. AR 17, 234, 599. Several of these ailments date back to his period of military service in the mid-1970s, AR 364-65, 599, but Dreesman asserts that his knee problems have “gotten worse over the years to the point where I always have pain in my knees making it extremely difficult to walk very far or stand[ for] more than short periods of time, ” AR 365. Before 2010, Dreesman worked with computers, then later as a security guard and in electronics repair and support. AR 69. He stopped working after frequent panic attacks and migraines prevented him from keeping a regular schedule. AR 76, 77.

         Dreesman first applied for social security disability benefits and supplemental security income in 2011, asserting a disability onset date of February 2010. In May 2012, after considering Plaintiff's first application, ALJ Hoskins-Hart determined that he was not disabled. Though she found that Dreesman had severe impairments including “migraines, hypertension, panic and anxiety disorder without agoraphobia, and depressive disorder, ” AR 103, she found his testimony regarding his symptoms to be not credible, AR 108-09. ALJ Hoskins-Hart concluded that Dreesman had the residual functional capacity to perform medium work, AR 106, and that he could perform work existing in the national economy, including positions such as janitor and kitchen helper, AR 112-13. The ALJ denied Dreesman's first application. AR 113.

         One year later, Dreesman submitted a second application for benefits. Though he initially claimed a disability onset date of February 2010, AR 220, at the new hearing before ALJ Gaye, Dreesman's attorney requested to amend the onset date to May 2012, “right after the prior ALJ decision, ” AR 35.

         In the time between his first and second hearings, Dreesman asserts, his weight increased and his knee injury worsened. Dreesman went from a weight of 197 pounds in February 2010, to 263 pounds in February 2012, to 276 pounds in March 2014. AR 388, 494, 593. As for his knees, Veteran's Affairs (VA) examiner Dr. Cesana diagnosed osteoarthritis in both knees and determined that “pain would significantly limit [Dreesman's] functional ability during flare-ups, or when the joint is used repeatedly over a period of time.” AR 598-613. Dreesman also had x-rays taken of his knees. The x-rays showed possible indications of “mild local degenerative change.” AR 569-70.

         In 2014, the VA determined that Dreesman was entitled to a disability pension, finding that he had a combined disability rating of 70%. AR 234-36. The VA found him disabled due to migraine headaches and tinnitus, 10% disabled for instability in the left knee, 10% disabled for instability in the right knee, 10% disabled for limitation of flexion in the left knee, and 10% disabled for limitation of flexion in the right knee. AR 234. Also at about that time (in June 2013), examining doctor Clark Gable concluded that Dreesman “would be able to stand and walk for a total of six hours per day with usual breaks.” AR 536.

         At the hearing before ALJ Gaye, Dreesman testified that his knees had worsened since his previous hearing and decision. AR 40. He stated that if he walked too far or too long, his knees might “pop out” and cause him to fall. AR 46. This issue had “started in the Army, ” he said, but “it gets to be now where I have to be real careful” when climbing stairs or stepping up on curbs. AR 46. Dreesman testified that he could stand for 30-45 minutes before pain in his knees caused him to sit. AR 47. After the ALJ observed that the “ten percent [disability rating from the VA for his knees] isn't going to do much, ” Dreesman pointed out that “[t]here are four different [ratings] each of 10 percent, so the knees are at ¶ 40 percent rating is the way I read it.” AR 46. The ALJ acknowledged this comment, saying, “that's the way you read it, okay.” Id.

         ALJ Gaye denied benefits in October 2014. AR 14. Because a prior ALJ decided a previous application, ALJ Gaye applied res judicata principles to the earlier decision, citing Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), and the related Acquiescence Ruling. AR 14. ALJ Gaye determined that, due to a change in his age category, Dreesman rebutted the presumption of non-disability. AR 15. Despite this determination, ALJ Gaye found that “the claimant did not provide new and material evidence related to the prior ALJ's findings.” AR 15. As a result, ALJ Gaye adopted the findings of the prior ALJ for steps one to three. AR 15-18.

         ALJ Gaye also adopted the prior ALJ's residual functional capacity finding that Dreesman was capable of medium work. AR 19. In reaching this decision, ALJ Gaye observed that Dreesman had sought treatment for his knee pain, and he considered the x-rays of Dreesman's knees. AR 20. He noted that this admittedly new evidence was “not material” because the x-rays revealed only minor abnormalities supporting a finding “that the claimant's knee impairment is non-severe.” AR 20. ALJ Gaye “decline[d] to evaluate the credibility of the claimant's testimony, ” on the grounds that a new “subordinate” finding of credibility is not needed under Chavez if there is no new and material evidence related to the “required” residual functional capacity finding. AR 21. ALJ Gaye also considered the VA ratings, but found that they did not constitute new and material evidence because “the VA uses a different standard of disability than the Agency” and “the claimant attributed these impairments to injuries that occurred decades prior.” AR 21. ALJ Gaye also mentioned only the 10% rating of osteoarthritis of the right knee, one of the four VA ratings concerning Dreesman's knees. AR 21.

         Finally, at step five, ALJ Gaye adopted the prior ALJ's findings as to Dreesman's ability to work in some available positions and determined that Dreesman was not disabled. AR 22-23.

         Dreesman appeals the second ALJ's decision. In his motion for summary judgment, Dreesman argues that ALJ Gaye erred in several respects. First, he asserts that ALJ Gaye erred by failing to evaluate evidence of his increased obesity since the prior ALJ rendered her decision, as this evidence was new and material evidence sufficient to overcome the presumption of continuing non-disability. Dkt. No. 19. Second, he argues that ALJ Gaye erred by ruling that his VA disability ratings were not new and material evidence. Id. Dreesman asserts that ALJ Gaye (1) did not consider the full VA disability rating, (2) erroneously accorded no perceptible weight to the ratings concerning Dreesman's knees, (3) rejected the VA ratings on unacceptable grounds, (4) erred in failing to consider that Dreesman's condition could have worsened over time, and (5) failed to consider Dr. Cesana's opinions as to the functional impact of his knee injury. Dreesman argues that all of these errors were harmful, in that the resulting step five finding does not account for the allegation that Dreesman cannot stand or walk for six hours per day. Id.

         In its cross-motion for summary judgment, Defendant contends that ALJ Gaye did not err. Specifically, Defendant argues that Dreesman has not shown that his increased obesity has caused any additional functional limitations and that ALJ Gaye ...

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