Wilbur v. Colvin, No. 4:2014cv05046 - Document 29 (E.D. Wash. 2015)
Court Description: ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND REMANDING FOR ADDITIONAL PROCEEDINGS - granting in part and denying in part 16 Motion for Summary Judgment; and denying 22 Motion for Summary Judgment. Signed by Senior Judge Edward F. Shea. (CC, Case Administrator)
Download PDF
<![CDATA[
Wilbur v. Colvin Doc. 29 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 7 DOBIE WILBUR, Plaintiff, 8 v. 9 10 11 No.: 4:14-CV-5046-EFS ORDER GRANTING IN PART PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT, AND REMANDING FOR ADDITIONAL PROCEEDINGS CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant. 12 13 14 Before the Court are cross-summary-judgment motions. ECF Nos. 16 & 15 22. Plaintiff Dobie Wilbur appeals the Administrative Law Judge’s (ALJ) 16 denial of benefits. ECF No. 16. Mr. Wilbur contends the ALJ erred because 17 she 1) failed to fully accept the medical opinions of Mr. Wilbur’s treating 18 physicians Dr. Jeannette Flammang and Dr. Alison Madsen, 2) improperly 19 rejected Mr. Wilbur’s testimony regarding the severity and limiting 20 effects of his impairments, and 3) the identified jobs are not consistent 21 22 with Mr. Wilbur’s functional limitations as the ALJ failed to include all 23 of Mr. Wilbur’s functional limitations into the hypothetical question 24 posed to the vocational expert. The Commissioner of Social Security 25 (“Commissioner”) asks the Court to affirm the ALJ’s decision that Mr. 26 Wilbur is capable of performing substantial gainful activity in a field 27 for which a significant number of jobs exist in the national economy. 28 After reviewing the record and relevant authority, the Court is fully ORDER - 1 Dockets.Justia.com 1 informed. 2 to require the ALJ to fully consider Dr. Flammang’s and Dr. Madsen’s 3 medical opinions and Mr. Wilbur’s testimony regarding the severity and 4 For the reasons set forth below, the Court remands this matter limiting effects of his impairments. The Court, therefore, grants in part 5 Mr. Wilbur’s motion and denies the Commissioner’s motion. 6 A. Statement of Facts1 7 Mr. Wilbur was born in 1961. Transcript of admin. hrg. (“Tr.”) at 8 9 97, ECF No. 9. Mr. Wilbur suffered severe childhood abuse. Tr. 333. Mr. 10 Wilbur 11 including bipolar disorder with psychosis, depression, generalized anxiety 12 disorder, and obsessive-compulsive disorder (OCD). Tr. 276, 332-33, 353, 13 366-70, 385, 519, 552, 581, 643, 668, 768, 840, 871, 929, 1023-24, & 1092- 14 94. Mr. Wilbur also suffered a variety of physical conditions: injured 15 has been diagnosed with a number of psychiatric conditions, left thumb, cervical spondylosis with probable left C5-6 radiculopathy, 16 hepatitis C, carpal tunnel syndrome, sacroiliitis and degenerative disc 17 disease, lumbosacral spondylosis with degenerative changes at the 18 thoracolumbar and lumbosacral junctions, and acromioclavicular joint 19 20 21 degenerative changes with a small amount of sparring. Mr. Wilbur underwent surgeries and physical therapy to address many of these conditions. 22 From 1990-2005, he worked approximately thirty-five different jobs. 23 Tr. 71, 231-236, & 1023. Mr. Wilbur stated that he is able to get hired 24 but he is unable to keep a job because he is unable to multitask and 25 26 1 The facts are only briefly summarized. Detailed facts are 27 contained in the administrative hearing transcript, the ALJ’s decision, 28 the parties’ briefs, and the underlying records. ORDER - 2 1 maintain focus. Tr. 70-71, 74, 333, & 548. During the September 11, 2012 2 administrative hearing, Mr. Wilbur stated, “I’ve got anxieties and I would 3 just start rambling.” Tr. 53. Mr. Wilbur had to be redirected by the ALJ 4 and at times closed his eyes while testifying in order to help focus on 5 the question at hand. Tr. 71 & 74. 6 B. Procedural History 7 Mr. Wilbur applied for disability insurance benefits and 8 9 10 supplemental security income on August 3, 2010. Tr. 22 & 214-27. His alleged onset date of disability is March 1, 2009. Tr. 54. 11 Mr. Wilbur’s claims were denied initially and upon reconsideration. 12 Tr. 95-96, & 123-24. An administrative hearing was held before ALJ Caroline 13 Siderius in September 2012, where Mr. Wilbur, vocational expert (VE) Janie 14 Lawsen, and medical expert (ME) Margaret Moore testified. Tr. 50-51. The 15 ALJ determined that Mr. Wilbur has the severe impairments of hepatitis C, 16 diabetes, status post-anterior cervical discectomy and fusion (ACDF), 17 obsessive-compulsive disorder (OCD), anxiety, and personality disorder. 18 Tr. 24. The ALJ found though that Mr. Wilbur’s sleep apnea, carpal tunnel 19 20 syndrome (CTS), and musculoskeletal pain of the back, left hip, right 21 knee, and right shoulder do not constitute severe impairments. Tr. 25. 22 The ALJ proceeded to find that Mr. Wilbur’s impairments do not meet or 23 medically equal the severity of any listed impairments. Tr. 25-27. The 24 ALJ ultimately determined that Mr. Wilbur has the residual functional 25 capacity (RFC) to perform light work, as he can sit for up to six hours 26 per day, stand and/or walk up to six hours per day, climb stairs and ramps 27 frequently, handle and finger occasionally with his left, non-dominant 28 hand, and occasionally stoop, kneel, and crouch, but cannot climb on ORDER - 3 1 ladders, ropes or scaffolds, can only occasionally crawl, and should avoid 2 exposure to vibration. Tr. 27. 3 can have superficial contact with the public and occasional contact with 4 The ALJ also determined that Mr. Wilbur co-workers, needs a consistent routine, is able to perform one-to-three 5 step tasks with little change in day-to-day routine, but cannot perform 6 food industry jobs. Tr. 27. Based on this RFC assessment, which was 7 presented to the VE, the ALJ concluded Mr. Wilbur can perform other work 8 9 existing in significant numbers in the national economy, such as laundry 10 worker and price marker, and thus he is not disabled pursuant to the 11 Social Security Act. Tr. 37-38. 12 The Appeals Council denied review of the ALJ’s decision. Tr. 1-7. 13 Thereafter, Mr. Wilbur filed this lawsuit, appealing the ALJ’s decision. 14 The parties then filed the instant summary-judgment motions. 15 C. Disability Determination 16 A "disability" is defined as the "inability to engage in any 17 substantial gainful activity by reason of any medically determinable 18 physical or mental impairment which can be expected to result in death or 19 20 which has lasted or can be expected to last for a continuous period of 21 not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 22 The decision-maker uses a five-step sequential evaluation process to 23 determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. 24 Step one assesses whether the claimant is engaged in substantial 25 gainful activities during the relevant period. If he is, benefits are 26 denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is not, the decision- 27 maker proceeds to step two. 28 ORDER - 4 1 Step two assesses whether 2 impairment 3 416.920(c). If the combination of impairments, 4 or combination of claimant the claimant impairments. does the not has 20 have disability a medically C.F.R. a severe claim is §§ severe 404.1520(c), impairment denied. If or the 5 impairment is severe, the evaluation proceeds to the third step. 6 Step three compares the claimant's impairment with a number of listed 7 impairments acknowledged by the Commissioner to be so severe as to preclude 8 9 substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 Subpt. P App. 10 1, 416.920(d). If the impairment meets or equals one of the listed 11 impairments, the claimant is conclusively presumed to be disabled. If the 12 impairment does not meet or equal one of the listed impairments, the 13 evaluation proceeds to the fourth step. 14 15 Step four assesses whether the impairment prevents the claimant from performing work he has performed in the past. This includes determining 16 the claimant’s residual functional capacity. 20 C.F.R. §§ 404.1520(e), 17 416.920(e). If the claimant is able to perform his previous work, he is 18 not disabled. If the claimant cannot perform this work, the evaluation 19 20 proceeds to the fifth step. 21 Step five, the final step, assesses whether the claimant can perform 22 other work in the national economy in view of his age, education, and work 23 experience. 20 C.F.R. §§ 404.1520(f), 416.920(f); see Bowen v. Yuckert, 24 482 U.S. 137 (1987). 25 26 The burden of proof shifts during this sequential disability analysis. The claimant has the initial burden of establishing a prima 27 facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 28 F.2d 920, 921 (9th Cir. 1971). The claimant meets this burden if he ORDER - 5 1 establishes 2 engaging in his previous occupation. The burden then shifts to the 3 Commissioner to show 1) the claimant can perform other substantial gainful 4 that a physical or mental impairment prevents him from activity, and 2) that a “significant number of jobs exist in the national 5 economy” which the claimant can perform. Kail v. Heckler, 722 F.2d 1496, 6 1498 (9th Cir. 1984). A claimant is disabled only if his impairments are 7 of such severity that he is not only unable to do his previous work but 8 9 cannot, considering his age, education, and work experiences, engage in 10 any other substantial gainful work which exists in the national economy. 11 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 12 D. Standard of Review 13 On review, the court considers the record as a whole, not just the 14 evidence supporting the ALJ’s decision. Weetman v. Sullivan, 877 F.2d 20, 15 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 16 1980)). The court upholds the ALJ’s determination that the claimant is 17 not disabled if the ALJ applied the proper legal standards and there is 18 substantial evidence in the record as a whole to support the decision. 19 20 Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 21 405(g)); Brawner v. Sec’y of Health & Human Servs., 839 F.2d 432, 433 (9th 22 Cir. 1987) (recognizing that a decision supported by substantial evidence 23 will be set aside if the proper legal standards were not applied in 24 weighing the evidence and making the decision). Substantial evidence is 25 more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 26 n.10 (9th Cir. 1975), but less than a preponderance, McAllister v. 27 Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989); Desrosiers v. Sec’y of 28 Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). “It means such ORDER - 6 1 relevant evidence as a reasonable mind might accept as adequate to support 2 a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations 3 omitted). “[S]uch inferences and conclusions as the [ALJ] may reasonably 4 draw from the evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 5 289, 293 (9th Cir. 1965). If the evidence supports more than one rational 6 interpretation, the court must uphold the ALJ’s decision. Allen v. 7 Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 8 9 10 11 E. Analysis The Court addresses each of Mr. Wilbur’s challenges to the ALJ’s decision. 12 1. 13 Mr. Wilbur contends the ALJ erred by rejecting the medical opinions 14 of his treating physicians, Dr. Flammang and Dr. Madsen, in regard to his 15 Treating Physicians mental-health and physical conditions. The Court agrees. 16 As to Dr. Flammang, the ALJ determined that Dr. Flammang’s January 17 2010 diagnosis of severe bipolar with psychosis was not supported by the 18 record and gave it no weight. Further, the ALJ rejected Dr. Flammang’s 19 20 opinion in June 2011 that Mr. Wilbur had been disabled for the last two 21 years due to psychiatric issues because the ALJ determined that Mr. Wilbur 22 was described as well-appearing and that his mental-health symptoms were 23 stable when on medication. As to Dr. Madsen, the ALJ determined that the 24 evidence did not support Dr. Madsen’s diagnosis of left low back pain from 25 sacroiliac 26 joint dysfunction, right shoulder pain from arthritis, hepatitis C, and bipolar disorder. 27 Based on the entire medical record, the Court determines the ALJ’s 28 rejection of these treating physicians’ opinions is not supported by ORDER - 7 1 substantial evidence in the record. See Lester v. Chater, 81 F.3d 821, 2 830-31 (9th Cir. 1995) (requiring the ALJ to give greater weight to the 3 opinion of a treating physician than the opinion of a non-treating 4 physician). Both Dr. Flammang and Dr. Madsen observed, interviewed, 5 counseled, and treated Mr. Wilbur for over a year. Their opinions were 6 not based simply on Mr. Wilbur’s reported symptoms. Instead their opinions 7 were also based on their personal observations and interactions with Mr. 8 9 Wilbur and his mental-health and physical conditions. Although the 10 severity of his symptoms waned through the months and his symptoms were 11 affected by his discontinuation of medication due to his failure to timely 12 refill prescriptions at times and, on at least two occasions, his use of 13 either alcohol or a controlled substance, the Court finds the ALJ failed 14 to fully consider that Mr. Wilbur’s inconsistent prescription use and 15 relapses could be symptomatic of his mental-health impairment. The very 16 nature of a mental-health impairment is that the individual experiences 17 fluctuations in their symptoms. See Scott v. Astrue, 647 F.3d 734 (9th 18 Cir. 2011). Mr. Wilbur had taken great strides in ceasing his substance 19 20 abuse, albeit he had two or three uses since 2010. However, it is possible 21 that Mr. Wilbur’s substance abuse was a means by which to alleviate the 22 symptoms his experiences as a result of his mental-health impairment. And 23 his inability to timely refill his prescriptions could be a symptom of 24 his mental-health impairment, and is consistent with his testimony that 25 he is unable to maintain his focus and remember to do certain tasks on a 26 timely basis: problems that he reported he experienced in the workforce 27 and were the basis for many terminations. See Kangail v. Barnhart, 454 28 F.3d 627, 629 (7th Cir. 2006) (“[T]he fact that substance abuse aggravated ORDER - 8 1 his mental illness does not prove that the mental illness itself is not 2 disabling.”). 3 4 Further, that some medical records report that Mr. Wilbur appeared stable does not equate to a finding that that he is able to perform 5 substantial gainful activity. As previously noted, mental-health 6 impairment symptoms can be transitory. The medical and counselling records 7 reflect that Mr. Wilbur may be able to focus for the limited time during 8 9 the appointment but his ability to maintain focus for an entire work day 10 is questioned by the records relating to his counseling, his self-reports, 11 and his work-termination history. 12 Accordingly, after a review of the medical records and the hearing 13 testimony, the Court concludes that the ALJ’s decision to reject the 14 opinions of Dr. Flammang and Dr. Madsen is not supported by substantial 15 evidence. In this regard, the Court grants Mr. Wilbur’s motion and denies 16 the Commissioner’s motion. 17 2. Mr. Wilbur’s Credibility 18 Mr. Wilbur argues the ALJ erred by failing to provide specific, 19 20 clear, and convincing reasons for discrediting his testimony regarding 21 the severity and limiting effects of his impairments. The Court agrees 22 with Mr. Wilbur on this point as well. 23 A two-step analysis is used by the ALJ to assess whether a claimant's 24 testimony regarding subjective pain or symptoms is credible. Garrison v. 25 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). Step one requires the ALJ to 26 determine whether the claimant presented objective medical evidence of an 27 impairment, which could reasonably be expected to produce some degree of 28 the pain or other symptoms alleged. Lingenfelter v. Astrue, 504 F.3d 1028, ORDER - 9 1 1035–36 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 2 1996). Objective medical evidence of the pain or fatigue, or the severity 3 thereof, need not be provided by the claimant. Garrison, 759 F.3d at 1014. 4 If the claimant satisfies the first step of this analysis, and there is 5 no evidence of malingering, the ALJ must accept the claimant's testimony 6 about the severity of his symptoms unless the ALJ provides specific, 7 clear, and convincing reasons for rejecting the claimant’s symptom- 8 9 10 severity testimony. Id. (recognizing that the clear-and-convincing standard is a demanding standard). 11 In pertinent part, the ALJ stated: 12 15 After careful consideration of the evidence, the undersigned finds the claimant’s medically determinable impairments could reasonably be expected to cause some of the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not fully credible for the following reasons. 16 Tr. 33. The ALJ proceeded to highlight that Mr. Wilbur’s daily activities 17 are quite involved as he is able to handle his personal care, prepare 18 simple 19 activities. The ALJ also determined that the record showed that Mr. Wilbur 13 14 20 meals, and do some housework, as well as the other listed was not motivated to work and mentioned that Mr. Wilbur lost his last job 21 due to a driving-under-the-influence conviction. The ALJ also highlights 22 Mr. Wilbur’s history of polysubstance abuse, that he had a couple of side23 jobs since he applied for disability, and that Mr. Wilbur himself thought 24 25 he would feel better mentally if he had a job. Lastly, the ALJ identifies 26 that Mr. Wilbur’s weight may be a factor in his back pain and that he had 27 reported improvement in some of his physical maladies with physical 28 therapy. ORDER - 10 1 The Court finds the ALJ’s summary and analysis of the record fails 2 to identify those facts which support Mr. Wilbur’s reported limitations. 3 Although Mr. Wilbur is able to personally care for himself, Mr. Wilbur 4 reported that he needs help staying on task and remembering to do certain 5 tasks. The record supports this as Mr. Wilbur failed to order his 6 prescription before it expired, and he has achieved employment on thirty7 five occasions but failed to maintain these jobs, which he largely 8 9 attributes to an inability to remain focused and on task. The record also 10 reflects that, although Mr. Wilbur put forth considerable effort to 11 address his physical and mental-health conditions through counseling, 12 surgery, and physical therapy, he was unable to keep track of all of his 13 appointments. A review of the record reflects that Mr. Wilbur’s daily 14 activities, as he described them during his testimony, are consistent with 15 his statements regarding the severity and limiting effects of his 16 impairments. See, e.g., Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 17 1996) (recognizing that the ALJ must consider the claimant’s mental-health 18 impairment in regard to his ability to seek and follow-through with 19 20 rehabilitation). 21 The ALJ also determined some of Mr. Wilbur’s physical limitations 22 were a result of his excessive weight. Yet, a side effect of Mr. Wilbur’s 23 medication is weight gain. In addition, Mr. Wilbur had shown the desire 24 to reduce his weight by engaging in physical therapy, joining a gym, and 25 engaging in some limited exercise. The record reflects that his inability 26 to follow through on these weight-loss measures may have resulted from 27 his inability to focus and remember—a reported symptom of his mental28 health impairment. ORDER - 11 1 Mr. Wilbur’s desire and effort at engaging in odd jobs does not 2 demonstrate that he can perform work-related activities on a regular and 3 continuing basis. Rather, he held thirty-five different jobs—jobs that he 4 was unable to maintain likely due to his inability to focus and multitask. 5 Accordingly, a complete review of the record indicates that Mr. Wilbur 6 was not spending a substantial part of his day engaged in pursuits that 7 involved functions that are transferable to the work place. See Orn v. 8 9 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (recognizing that daily 10 activities are grounds for an adverse credibility finding only where a 11 claimant spends a substantial part of his day engaged in pursuits involving 12 “functions that are transferable to a work setting”). 13 In summary, the medical evidence reflects that Mr. Wilbur’s claim of 14 severe mental and physical impairments was not “groundless.” Smolen v. 15 Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996). The Court thus finds the 16 ALJ erred at step two of the sequential evaluation process. In this regard, 17 Mr. Wilbur’s motion is granted and the Commissioner’s motion is denied. 18 C. Conclusion 19 20 For the above-given reasons, the Court remands this matter for 21 additional proceedings. Although the Court finds the ALJ erred, it is not 22 clear from the record, as it currently stands, whether Mr. Wilbur’s severe 23 mental and physical impairments, either singly or in combination, prevent 24 him from performing substantial gainful employment. Further development 25 is necessary for a proper determination. 26 The ALJ must take into consideration Mr. Wilbur’s severe mental and 27 physical impairments and the limitations those impairments have on Mr. 28 Wilbur’s residual functional capacity (RFC). The ALJ shall reconsider Mr. ORDER - 12 1 Wilbur’s statements and discuss what statements, if any, are not credible 2 and, if necessary, what evidence undermines those statements. When re- 3 assessing Mr. Wilbur’s RFC, the ALJ is to take into consideration the 4 medical opinions of Dr. Flammang and Dr. Madsen, as well as the other 5 medical evidence of record relevant to Mr. Wilbur’s claim for disability 6 benefits. The ALJ shall direct Mr. Wilbur to undergo a new consultative 7 psychological examination. If warranted, the ALJ shall elicit the 8 9 testimony of a medical expert to assist the ALJ in formulating a new RFC 10 determination. The ALJ shall present the new RFC assessment to a vocational 11 expert to help determine whether Mr. Wilbur is capable of performing any 12 work existing in sufficient numbers in the national economy. 13 Accordingly, IT IS HEREBY ORDERED: 14 1. 15 Mr. Wilbur’s Motion for Summary Judgment, ECF No. 16, is GRANTED IN PART (remand) and DENIED IN PART (no immediate award 16 of benefits). 17 2. The Commissioner’s Motion for Summary Judgment, ECF No. 22, is 18 DENIED. 19 3. 20 This matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 21 22 4. The Clerk’s Office is to enter Judgment in favor of Mr. Wilbur. 23 5. An application for attorney fees may be filed by separate 24 25 26 motion by Mr. Wilbur. /// // 27 / 28 ORDER - 13 1 6. 2 IT IS SO ORDERED. 3 4 The case shall be CLOSED. The Clerk’s Office is directed to enter this Order and provide copies to counsel and ALJ Caroline Siderius. DATED this 10th day of December 2015. 5 6 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q:\EFS\Civil\2014\5046.social.sec.lc1.docx ORDER - 14
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
