Manenica v. Astrue, CASE NO. 12-cv-05131 JRC

• Decision Date: 09 November 2012
• Docket Number: CASE NO. 12-cv-05131 JRC
• Court: U.S. District Court — Western District of Washington
• Parties: PETER MANENICA, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.

PETER MANENICA, Plaintiff,

v.MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.

CASE NO. 12-cv-05131 JRC

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA

Dated: November 9, 2012

ORDER ON PLAINTIFF'S COMPLAINT

This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local Magistrate Judge Rule MJR 13 (see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 6; Consent to Proceed Before a United States Magistrate Judge, ECF No. 8). This matter has been fully briefed (see ECF Nos. 14, 18, 22).

While this former recipient of Social Security benefits has shown some changes in his condition since he was first awarded benefits, the ALJ failed to evaluate properly or to make further inquiry regarding those conditions on rehearing. Specifically, the ALJ failed to evaluate properly the opinion testimony from the Administration's examining consultant, Dr. Mark Heilbrunn, M.D. ("Dr. Heilbrunn"), who identified limitations on plaintiff's ability to work, but failed to quantify those limitations. Further, the ALJ failed entirely to evaluate some claimed impairments and the lay testimony from plaintiff's friend, Aaron Erickson, or his brother, Michael Manenica. For these reasons, and for other reasons set forth below, the Court concludes that the ALJ's findings are not supported by substantial evidence in the record as a whole. Since this matter has not been fully developed, this case is REVERSED and REMANDED pursuant to sentence four of 42 U.S.C. § 403(g) for further administrative proceedings.

BACKGROUND

Plaintiff, PETER MANENICA, initially was awarded Social Security benefits on June 20, 2002. Before that time, plaintiff had been a longshoreman for 19 years (Tr. 218). He injured his back on the job in 1998 and was unable to maintain his previous work schedule (id.) At the time of his initial award, he had the following medically determinable impairments: chronic back pain with herniated disc at L5-S1; disc bulge at L4-5; and dysthymia (Tr. 17). He also had moderate deficits in his ability to understand, carry out and remember instructions, use judgment in making work related decisions, and respond appropriately with supervisors, co-workers, work situations, and deal with changes in a routine work setting (id.).

Following this initial determination, plaintiff underwent lumbar surgery in 2003 (Tr. 18). Although he initially showed improvement, he reinjured his back and also reported problems with his knees, which he attributed to wear and tear from his job (Tr. 221). He then had surgery on his left knee (id.). He also has reported problems with neck pain (Tr. 225). Plaintiff attempted to return to his previous employment as a longshoreman in 2007, with a more limited, light level job of driving cars off the ship to a parking lot (Tr. 224). However, after six or seven shifts, he had to give up the job due to back pain (Tr. 218, 224). Since that time, he has remained unemployed.

Pursuant to the Administration's policy, plaintiff was examined by administrative examining physician Dr. Mark Heilbrunn, M.D. ("Dr. Heilbrunn") in December of 2008 (Tr. 21). Dr. Heilbrunn concluded that plaintiff was capable of working at the light levels of exertion and would be able to maintain activities of walking and standing for at least one hour uninterrupted and "after adequate resting," resume similar activities (Tr. 169). "After adequate resting" was not further defined. Following that examination, the administration terminated plaintiff's benefits due to alleged "medical improvement" (Tr. 59-67). On January 21, 2011, this decision was reviewed by Administrative Law Judge Gordon W. Griggs ("the ALJ") (Tr. 24). The ALJ concluded that plaintiff's impairments did not prevent him from being employed as a folder, production line solderer or semiconductor die loader (Tr. 23-24). Therefore, he upheld the Administration's decision to terminate benefits. Plaintiff's request for review of the ALJ's decision was denied by the Appeals Council on January 6, 2012 (Tr. 4-6), making the written decision by the ALJ the final agency decision subject to judicial review (Tr. 1-6). See 20 CFR §404.981.Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision (ECF No. 4). On May 8, 2012 defendant filed the sealed administrative record ("Tr.") (ECF No. 12).

In his Opening Brief plaintiff raises the following issues:

1 Whether or not the ALJ provided adequate reasons for rejecting the opinion of the Commissioner's examining special, Dr. Heilbrunn, that Mr. Manenica's impairments necessitate a rest period after one hour of work;

2 Whether or not the ALJ was required to consider the opinion of the Vocational Expert that position changes every 30 minutes would not be tolerated by any employer;

3 Whether or not the ALJ's Step 2 findings that Mr. Manenica's depression and cervical spine impairments were non-severe is reasonable;

4 Whether or not the ALJ's adverse credibility analysis was legally adequate;

5 Whether or not the ALJ was required to consider the lay evidence from Mr. Manenica's friend, Mr. Erickson, and his brother, Michael Manenica;

6 Whether or not the jobs identified by the VE were consistent with the DOT and the ALJ's limitation regarding working around machinery, and if not, whether the ALJ complied with SSR 00-4p.

7 Whether this case should be remanded for payment of benefits or for further administrative proceedings.

STANDARD OF REVIEW

To determine whether or not a claimant's disability has ceased, the ALJ must follow an eight-step evaluation process for the Title II claim and a seven-step process forthe a Title XVI claim. 20 C.F.R. §§ 404.1594(f), 416.994(b)(5). At step one (Title II only), the ALJ must determine whether or not the claimant is engaging in substantial gainful activity. 20 C.F.R. §§ 404.1594(f)(1). At step two of the Title II sequential analysis, and step one of the Title XVI sequential analysis [hereinafter referred to as "step two"], the ALJ must determine whether or not claimant has an impairment or combination of impairments that meets or medically equals "the severity of an impairment listed in appendix 1 of subpart P of part 404 of this chapter [20 C.F.R.]." 20 C.F.R. §§ 404.1594(f)(2), 416.994(b)(5)(i).

Next, (step three, Title II/ step two, Title XVI), the Commissioner must determine whether or not there has been any medical improvement in the claimant's condition. 20 C.F.R. § 404.1594(f)(3); see also 20 C.F.R. §§ 404.1594(a), 416.994(b)(5)(ii). Medical improvement is "any decrease in the medical severity of [the claimant's] impairment(s) which was present at the time of the most recent favorable medical decision that [the claimant was] disabled or continued to be disabled." 20 C.F.R. § 404.1594(b)(1), (f)(3) See also Potts v. Commissioner of Social Security Administration, 357 Fed. Appx. 49, 50 (9th Cir. 2009) (per curiam) (unpublished) (quoting 20 C.F.R. § 404.1594(b)(1), (f)(3))..

Subsequently, (step four, Title II/ step three, Title XVI), the ALJ must determine whether or not medical improvement is related to the ability to work, "i.e., whether or not there has been an increase in the residual functional capacity." 20 C.F.R. §§ 404.159(f)(4), 416.994(b)(iii). If there has been no medical improvement or the medical improvement is not related to the claimant's ability to work, at step five, the ALJ next considers whether or not an exception to medical improvement applies. 20 C.F.R. §§404.1594(f)(5), 416.994(b)(5)(iv). At step six of the Title II analysis, (step five, Title XVI), the ALJ must determine whether or not the claimant's current impairments in combination are severe. 20 C.F.R. §§ 404.1594(f)(6), 416.994(b)(5)(v). At step seven of the Title II sequential analysis, (step six, Title XVI), the ALJ assesses claimant's residual functional capacity and determines whether or not he can perform his past relevant work. 20 C.F.R. §§ 404.1594(f)(7), 416.994(b)(5)(vi); Social Security Ruling ("SSR") 82-61, 1982 WL 31387. If the ALJ reaches the final step in the sequential analysis, the burden shifts to the Commissioner to prove that the claimant can perform other work in the national economy, given his age, education, residual functional capacity ("RFC") and past work experience (see Response Brief, ECF No. 16, p. 6). Cf. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); see also 20 C.F.R. §§ 404.1594(f)(8), 416.994(b)(5)(vii).

Prior to the final step, the burden to prove disability and continuing entitlement to disability benefits is on plaintiff. Cf. Bowen, supra, 482 U.S. at 146 n.5 (1987); see also 42 U.S.C. § 423(f)(1); 20 C.F.R. §§ 404.1594, 416.994. However, there must be substantial evidence that medical improvement has occurred. 42 U.S.C. § 423(f)(1). "Any determination made under this section shall be made on the basis of the weight of the evidence and on a neutral basis with regard to the individual's condition, without any initial inference as to the presence or absence of disability being drawn from the fact that the individual has previously been determined to be disabled." Id.

Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). "Substantial evidence" is more than a scintilla, less than a preponderance, and is such "'relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quoting Davis v. Heckler, 868 F.2d 323, 325-26 (9th Cir. 1989)); see also Richardson v. Perales, 402 U.S. 389, 401 (1971). Regarding the question of whether or not substantial evidence supports the findings by the ALJ, the Court ...