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McKenzie v. Astrue

United States District Court, Ninth Circuit

July 25, 2013

Michael Alan McKenzie, Plaintiff,
v.
Michael J. Astrue, Commissioner of the Social Security Administration, Defendant.

REPORT AND RECOMMENDATION

FRANK R. ZAPATA, District Judge.

Plaintiff Michael Alan McKenzie brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of a final decision by the Commissioner of Social Security denying his claim for disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-433. Plaintiff presents four issues on appeal: (1) whether the Administrative Law Judge ("ALJ") properly evaluated examining physician Dr. Rothbaum's opinions; (2) whether the ALJ properly evaluated examining psychologist Dr. Rau's opinions; (3) whether the ALJ properly relied on Social Security Ruling 85-15 in lieu of obtaining testimony from a vocational expert; and (4) whether the ALJ properly evaluated lay witness statements. Pending before the court is an Opening Brief filed by Plaintiff (Doc. 14), the Commissioner's Opposition (Doc. 15), and Plaintiff's Reply Brief (Doc. 16). Based on the pleadings and the administrative record submitted to the Court, the Magistrate Judge recommends that the District Court, after its independent review, remand this case for further proceedings.

I. PROCEDURAL HISTORY

Plaintiff filed an application for disability insurance benefits in May 2009. (Administrative Record (AR) 109-32.) The Social Security Administration denied Plaintiff's application for DIB initially and upon reconsideration. (AR 102, 103.) Plaintiff requested a hearing before an ALJ. (AR 55-56.) An initial hearing was held on January 27, 2011, after which the ALJ determined there was insufficient medical evidence to decide the claim and therefore postponed the hearing and order mental and physical consultative examinations of the Plaintiff. (AR 88-101.) A second hearing was then conducted on June 7, 2011. (AR 60-87.) In a decision issued on June 17, 2011, the ALJ concluded that Plaintiff was not disabled within the meaning of the SSA. (AR 20-28.) The Appeals Council denied Plaintiff's request for review of the ALJ's decision. (AR 1-4.) This appeal followed.

II. FACTUAL HISTORY

A. Plaintiff's Background

Plaintiff was 52 years old at the time of the hearing and had attended some college, but had not obtained a degree. (AR 27, 338.) His past relevant work was in construction and he last worked as a laborer for a water department, but he was terminated for "excessive absenteeism" in August of 2008 because he missed too much work due primarily to caregiver obligations for his mother and also due to his own neck and back problems. (AR 66-67, 163, 191.) Plaintiff alleges disability since May 2001 due to depression and back problems. (AR 163.)

B. Medical Records

1. Physical Impairment

On September 27 or 28, 2002, Plaintiff was in an automobile accident and was subsequently seen by Family Practitioner Jorge O'Leary, M.D., complaining of neck and mid-back pain. (AR 284, 285.) Dr. O'Leary ordered x-rays and physical therapy. (AR 283.) Plaintiff was seen by a physical therapist on February 12, 2003. His care plan prepared by the physical therapist consisted of exercise, manual therapy, postural education, and heat and ice as needed. (AR 271.) In a January 2005 letter to Plaintiff's lawyer, Dr. O'Leary reported a diagnosis of a whiplash injury and noted that Plaintiff continued to have discomfort with neck and shoulder movement. (AR 279-80.) Dr. O'Leary also noted that the Plaintiff had been discharged from care and was prescribed Naprosyn and advised to expect some residual pain. (AR 280.)

An x-ray examination from July 30, 2004, revealed mild degenerative changes and small anterior hypertrophic osteophyte formation in the mid-thoracic spine; a slight anterior subluxation of L4 on L5 with mild to moderate disc space narrowing in the lumbar spine. (AR 277.)

Plaintiff was then referred by his lawyer to Orthopedic Surgeon Mark Frankel, M.D., who saw Plaintiff on October 21, 2005. (AR 285.) Dr. Frankel reported Plaintiff was complaining of neck pain, dizziness, mid-back pain, and headaches related to the weather. (AR 286.) Upon examination, Dr. Frankel found Plaintiff suffered a limited range of motion in his neck and full range of motion in his back. (AR 288.) After reviewing other medical records, Dr. Frankel recommended that Plaintiff do range of motion exercises at home and noted that intermittent physical therapy might be necessary. He stated that Plaintiff's Tylenol and Ibuprofen medications were appropriate, and found that surgery was not warranted at that time, but might become appropriate in the future. (AR 289.)

In March 2011, Jerome Rothbaum, M.D., performed a consultative examination of the Plaintiff at the request of the ALJ. (AR 337-46.) Dr. Rothbaum noted Plaintiff's auto accident history and his occupational background. (AR 337-38.) He noted that Plaintiff appeared "profoundly depressed, " crying and apathetic in appearance. (AR 338.) After examination, Dr. Rothbaum's impression was that Plaintiff's most significant impairment was depression, and that he suffered from myofascial cervicalgia and low back pain. (AR 339.)

Dr. Rothbaum also completed a medical source statement of Plaintiff's ability to do physical work-related activities. (AR 340-46.) The doctor indicated that Plaintiff could lift and/or carry 21-50 pounds frequently; sit four hours at a time for up to eight hours in a workday; stand and/or walk for two hours at a time and for six hours per workday; and frequently (one-third to two-thirds of the time) reach in all directions, handle, finger, feel, push, and pull, operate foot controls, climb, balance, stoop, kneel, crouch, crawl, and be exposed to various environmental conditions. (AR 341-344.) He reported also that Plaintiff could shop, travel without a companion, ambulate without assistance, climb steps, prepare meals, sort and use paper files, and take care of his own personal hygiene. (AR 345.)

2. Mental Impairment

Plaintiff presented to the La Frontera Center for therapy six times beginning in February of 2010 after his probation officer referred him for his depression. (AR 300-23.) He was diagnosed with a major depressive order and cannabis abuse. (AR 302.) He reported two prior suicide attempts, in 1997 and in 2009. (AR 314.) Plaintiff was prescribed medication for his depression. (AR 303.)

In February 2011, Plaintiff saw James Rau, Ph.D., for psychological evaluation at the request of the ALJ. (AR 324-31.) The examination and testing lasted three hours. (AR 329.) Dr. Rau observed that Plaintiff had a constricted affect; was tearful, nervous, anxious, stressed out, and worried, and had episodic suicidal ideation, but that his though process and content, orientation, insight, judgment, expressive and receptive language abilities, cooperation, and effort were all unremarkable. (AR 324-31.) Addressing Plaintiff's functional status, Dr. Rau noted that Plaintiff managed his activities of daily living without much difficulty, including grooming, household chores, shopping, cooking, babysitting his grandchild, managing money, driving, and playing guitar for pleasure. (AR 327-30.) Intelligence testing showed a Full Scale IQ of 99, which was in the "average range." (AR 328.) Dr. Rau opined that Plaintiff had a normal memory, processing speed, reasoning ability, and knowledge, but that he had some "inefficiency" with his memory "across the board." (AR 330.) Dr. Rau also believed that Plaintiff's prognosis for near term improvement was "quite guarded, " and noted he was not then in treatment. (AR 330.)

Dr. Rau also completed a psychological medical source statement. (AR 332-34.) Dr. Rau indicated that Plaintiff's understanding and memory were moderately limited, finding he could understand basic instructions and could register information if it was well-organized for him, but had "a bit of inefficiency and... is very deficient with his registration of any visual-spatial type of information." (AR 332.) His concentration and persistence were also moderately limited because, although he could follow instructions, he episodically would be pulled off task due to anxiety and depression. (AR 332.) His social interaction was also described as moderately limited because he would have difficulty dealing with criticism. (AR 332.) His adaption and ability to get around on his own were described as not significantly limited. ( Id. ) Dr. Rau felt that the limitations would persist for more than 12 months. (AR 332.)

Dr. Rau also completed a medical source statement in relation to Plaintiff's mental ability to do work related activities. (AR 334-36.) In that statement, Dr. Rau indicated that Plaintiff, due to his memory problems, high anxiety, and depression, was mildly limited in his ability to understand and remember simple instructions; moderately limited in his ability to carry out those instructions; mildly limited in the ability to make simple work-related judgments; moderately to markedly limited in the ability to understand, remember and carry out complex instructions; and moderately limited in the ability to make complex work-related judgments. (AR 334.) Dr. Rau also found Plaintiff moderately limited in the ability to interact with the public, supervisors, co-workers, and to work situations and changes in his work routine. (AR 335.)

C. Hearing Testimony

1. Plaintiff's Testimony

At the June 7, 2011, hearing, Plaintiff was represented by counsel and testified that he was not then working, but had previously worked for the City of Tucson in construction for the water department. (AR 66.) He said he was discharged for excessive absenteeism, about a day or two a month, due to him being obligated to be a caregiver to his mother and grandmother and due to his neck and back pain. (AR 67, 74.) When asked if physical problems prevented him from doing his job, the Plaintiff stated that the jobs he could get "can't pay anything, and I couldn't find a good job and that I'm not going to have the benefits I had or promotions or be able to make the money that I had..." (AR 71-72.)

He explained that depression had overwhelmed him and that he had several interviews, but did not get called back. (AR 72.) He did find some work installing water lines and fire hydrants in new subdivisions, but found that his depression and back pain prevented him from doing the work which he described as more demanding than what he had done for the City of Tucson water department. (AR 76.)

He told the ALJ that he had been taking anti-depressants, but that he had permission to "try not taking no more, go without them for a little while." (AR 72.) He stated that he first attempted suicide at the age to 13 or 14 and has had frequent thoughts of suicide since then. (AR 80-81.) The most recent instance was when his dogs were accused of something that he believed they did not due and were taken away by animal control. (AR ...


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