Edlund v. Massanari

Decision Date14 June 2001
Docket NumberDEFENDANT-APPELLEE,No. 99-35555,PLAINTIFF-APPELLANT,99-35555
Parties(9th Cir. 2001) CARL EDLUND,, v. LARRY G. MASSANARI, <A HREF="#fr1-*" name="fn1-*">* ACTING COMMISSIONER OF SOCIAL SECURITY,
CourtU.S. Court of Appeals — Ninth Circuit

NOTE: SEE AMENDED OPINION OF AUGUST 9, 2001.

Ralph Wilborn, Eugene, Oregon, Elie Halpern, Olympia, Washington, for the plaintiff-appellant.

Katrina C. Pflaumer, United States Attorney, Brian C. Kipnis, Assistant United States Attorney, Lucille G. Meis, Regional Chief Counsel, Seattle Region, Daphne Banay, Assistant Regional Counsel, Social Security Administration, Seattle, Washington, for the defendant-appellee.

Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding D.C. No. CV-98-05144-RJB

Before: Betty B. Fletcher, Ferdinand F. Fernandez and Richard A. Paez, Circuit Judges.

B. Fletcher, Circuit Judge

Carl Edlund appeals from the denial of his 1993 application for Social Security disability and supplemental benefits. Edlund has not engaged in substantial employment since June 1991, claiming both physical and mental impairments dating back to 1982. An Administrative Law Judge ("ALJ") denied his application for benefits, and the Social Security Appeals Council declined to review the ALJ's decision. Edlund then filed a complaint in the district court, which ruled in favor of the Commissioner. Edlund now appeals that decision.

Because we believe the ALJ erred in finding that Edlund failed to demonstrate a severe mental impairment under Step 2 of the five-step evaluative framework, we reverse the district court's decision upholding the Commissioner's denial of benefits and remand to the ALJ for a new Step 3 and Step 5 determination.

I.

The appellant, Carl Edlund, is a fifty year-old former sawmill laborer who left school after the eighth grade. Edlund has also worked at various times as a dishwasher, leather cutter, Cat loader, and dump truck driver. However, he has remained largely unemployed since June 1991.

From December 1982 to June 1986, and again from May 1993 until the time of his administrative hearing in June 1995,1 Edlund was examined by a series of doctors following an initial knee injury and subsequent complaints of hip and lower back pain. In addition, in September 1993, Edlund was treated several times for a fractured rib, for which he was given various pain medications. Virtually all of the doctors who examined Edlund over the years concluded that, apart from the rib fracture and in spite of his subjective complaints, there was little objective evidence of physical abnormalities or damage, nor was there any evidence of Edlund's inability to work. However, one physician, Dr. Lance Christiansen, found that based on his observations over a five-month period beginning in April 1995, Edlund was probably suffering from a herniated disk in his lower back. On the assumption that an MRI scan would confirm his diagnosis, Dr. Christiansen stated that Edlund was "probably a candidate for surgery on his lower back." In addition, Dr. Christiansen opined that Edlund did not "ha[ve] a chance of getting back to meaningful work without getting this fixed."

Edlund was also examined by a psychologist, Dr. Jeff Bremer, in November 1993 and March 1994.2 Based on the November 1993 evaluation, Dr. Bremer described Edlund as "markedly depressed and anxious" and in need of "supportive counseling and psychiatric evaluation." All told, Edlund "was found to meet the state's criteria as `seriously disturbed' and to be `at high risk of relapse.' " In March 1994, Dr. Bremer diagnosed Edlund with atypical (agitated) depression, alcohol dependence, and prescription drug (Valium) abuse. 3 In addition, based on the results of a battery of tests, Dr. Bremer estimated Edlund's general learning ability in the low average range, based on a full scale IQ at 87, with reading and spelling skills at the third-grade level, and arithmetic skills at the sixth-grade level. Dr. Bremer reported these results as being reasonably valid and reliable. Other results showed that Edlund was significantly below average on the delayed recall index, although Dr. Bremer observed that emotional and motivational factors likely affected this score. Finally, Dr. Bremer noted that with respect to a comprehensive personality test, Edlund "appears to have attempted to portray himself in an especially negative or pathological manner . . . . Test results, therefore, are considered to involve considerable distortion and are invalid. He sees his life as severely disrupted by a variety of physical problems, depressive symptomatology, high anxiety, and suspiciousness and hostility with his relationships with others."

As for work-related activities, Dr. Bremer determined that Edlund had only a "fair"4 ability to relate to co-workers, deal with the public, exercise judgment, interact with supervisors, remember and carry out complex job instructions, and function independently. He was deemed to have only "fair" or "poor to no[ ]" ability to deal with work stressors. On the other hand, Edlund was assessed to have "good " ability to follow work rules and carry out simple job instructions, and "good to fair" ability to maintain concentration. Finally, Dr. Bremer determined that while Edlund could satisfactorily maintain his personal appearance, he had only "fair" ability to behave in an emotionally stable manner, to relate predictably in social situations, and to demonstrate reliability. In sum, Dr. Bremer concluded:

Mr. Carl Edlund impressed me as a markedly depressed and anxious, separated, 43-year-old man of low average intelligence with learning disabilities in reading and writing, who is dependent on "street" Valium and has little social support. He could benefit from timely concurrent psychologic/psychiatric and chemical dependency counseling. It would be futile, I believe, to address one without the other.

Multiple disabilities, discussed above, lead to restriction of activities of daily living judged to be currently moderate; moderate to marked difficulties maintaining social functioning; frequent deficiencies of concentration, persistence and pace; and repeated episodes of deterioration or decompensation in work or work-like settings are anticipated, without comprehensive treatment . . . .

In January 1993 and April 1993, Edlund applied for Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§§§ 401-33, and Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§§§ 1381-83f, respectively.5 Following the denial of his applications, he requested reconsideration in October 1993. His applications were denied once again, and on April 21, 1994, he filed a request for a hearing. An administrative law judge ("ALJ") reopened Edlund's 1993 applications for good cause and conducted a hearing on June 29, 1995.

Edlund, his girlfriend Kim Lay, and a vocational expert testified at the hearing. In his testimony, Edlund maintained that he suffered from concentration problems as well as depression and anxiety. He also testified that he had reduced his alcohol and Valium intake. Critically, however, Edlund also admitted that he continued to abuse drugs and alcohol and that his addiction caused him to exchange his prescription painkillers (probably obtained from Dr. Christiansen) for Valium on the street. Finally, Edlund also stated that he could lift up to fifteen pounds without significant pain in his shoulder or back, and that he could be up on his feet for 45 minutes at a time. For approximately two to four days per month, Edlund stated that he needed to lie down five to six hours during the day.

The ALJ subsequently rendered an adverse decision denying benefits on December 4, 1995. Citing his apparent "ruse to obtain prescription drugs for trade," the fact that he did not seek treatment from 1986 until 1993, and "the absence of severe objective medical findings" supporting the existence of severe pain, the ALJ discredited Edlund's subjective complaints of pain. The ALJ also refused to credit Edlund's girlfriend's testimony regarding Edlund's pain symptoms and diminished substance abuse due to a perceived conflict of interest. Significantly, citing Dr. Bremer's observations about probable distortions in Edlund's psychological evaluation due to emotional and motivational factors (as well as possible substance abuse), the ALJ "f[ou]nd that the claimant has no severe mental impairment which would limit his capacity to perform substantial gainful work activity." Finally, the ALJ adopted the vocational expert's opinion regarding the existence of grader/sorter and assembler positions that Edlund could perform even with his impairments. In sum, despite finding that Edlund suffered from "severe orthopedic impairments" and was unable to perform his past work as a sawmill laborer, the ALJ denied his application for benefits on the grounds, inter alia, that none of his impairments qualified as a per se disability under Step 3 of the evaluating criteria; the objective findings of any disability were "minimal" and Edlund's subjective complaints were not credible; and that with his residual functional capacity, Edlund could perform less-taxing jobs that existed in significant numbers in the regional and national economy.

Edlund asked the Social Security Appeals Council to review the ALJ's decision. In a letter dated February 19, 1998, the Appeals Council stated that even after receiving Dr. Christiansen's letter, it found no basis for reviewing the ALJ's decision. In particular, the Appeals Council cited the fact that no MRI scan had ever been conducted to confirm Edlund's complaints (as well as Dr. Christiansen's diagnosis). Furthermore, it pointed to the lack of laboratory reports, clinical findings or treatment records to support Dr. Christiansen's conclusion...

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