Osenbrock v. Apfel

• Decision Date: 05 October 2000
• Docket Number: No. 99-35376,99-35376
• Citation: 240 F.3d 1157
• Parties: (9th Cir. 2001) SCOTT A. OSENBROCK, Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner, Social Security Administration, Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1157

240 F.3d 1157 (9th Cir. 2001)

SCOTT A. OSENBROCK, Plaintiff-Appellant, v. KENNETH S. APFEL, Commissioner, Social Security Administration, Defendant-Appellee.

No. 99-35376

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted October 5, 2000^*

Filed March 2, 2001

COUNSEL: Denice L. Patrick, Law Office of Denice L. Patrick, Lynnwood, Washington, for the plaintiff-appellant.

Renee McFarland, Social Security Administration, Office of General Counsel, Seattle, Washington, for the defendant appellee.

Appeal from the United States District Court for the Western District of Washington Barbara J. Rothstein, District Judge, Presiding. D.C. No. CV-97-01938-BJR

Before: Arthur L. Alarcon, Warren J. Ferguson, and M. Margaret McKeown, Circuit Judges.

Opinion by Judge Alarcon; Dissent by Judge Ferguson

OPINION

ALARCON, Circuit Judge:

Scott Osenbrock ("Osenbrock") appeals from the order affirming the decision of the Commissioner of the Social Security Administration ("Commissioner") that denied his claim for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. Mr. Osenbrock contends that the administrative law judge's ("ALJ") determination that he was capable of performing substantial gainful work that exists in the national economy was not supported by substantial evidence. We affirm because we conclude that substantial medical evidence supports the ALJ's finding that Mr. Osenbrock is capable of performing substantial gainful work that exists in the national economy.

I

Mr. Osenbrock was born on July 28, 1958. He dropped out of high school after the 11th grade to enter the Air Force.

In 1987, he shot himself in the left shoulder with a shotgun. The resultant injury did not affect the use of his right hand. He testified that he has use of his left hand for "normal day stuff" but when he "was still picking stuff up, it would slip out sometimes." Notwithstanding the injury to his left arm, Mr. Osenbrock was able to perform the duties of a mill manager at State Roofing.

Mr. Osenbrock sustained a series of on-the-job injuries to his back over a period of years prior to October 12, 1992. After each back injury, he received treatment and returned to work. On October 12, 1992, he reinjured his back while lifting a cedar block weighing from 60 to 70 pounds while employed at State Roofing. After this injury, Mr. Osenbrock stayed home until his back pain was so severe that he reported to the emergency room of the Valley General Hospital on October 19, 1992. He was diagnosed as having an acute low back strain and muscle spasm. He was treated with Percodet and Robaxin.

He returned to work, but on January 7, 1993, because of continuing problems with his back, he reported to the office of Bruce A. Rolfe, M.D., an orthopedic surgeon at the Washington Sports Medicine Clinic. Dr. Rolfe recommended a magnetic resonance imaging ("MRI"). The MRI revealed that Mr. Osenbrock had a mild L3-4 circumferential disc bulge, and mild paracentral disc herniations at L4-5 and L5/S1. He has been unable to work as a mill manager since January 18, 1993 due to "sever[e] pain in back [and ] right leg from two herniated discs."

Sam Cullison, M.D., treated Mr. Osenbrock on April 28, 1993 for back pain. Dr. Cullison noted that Mr. Osenbrock was obese and had significant drinking problems with heavy alcohol use. On May 13, 1993, Dr. Cullison examined Mr. Osenbrock and diagnosed him as having chronic back pain, chronic pain disorder, and a history of alcoholism and chronic back syndrome. On. June 1, 1993, Dr. Cullison examined Mr. Osenbrock for chronic back pain. Dr. Cullison concluded that Mr. Osenbrock "was doing well and tolerating medicine" and could return to half-time light duty on June 3, 1993.

Mr. Osenbrock was involved in a jeep roll-over accident on July 4, 1993. On July 22, 1993, Mr. Osenbrock underwent an MRI of his lumbar spine. That MRI was compared to an MRI of Mr. Osenbrock's back performed on February 2, 1993. Jay Tsuruda, M.D., noted that "the study of the lumbar spine is stable. The size of the L3/4 bulge, central/right paracentral L4/5 disc herniation and right paracentral L5/S1 disc herniation are unchanged."

On August 13, 1993, Mr. Osenbrock went to Dr. Cullison complaining of back pain. Dr. Cullison diagnosed chronic back pain syndrome and alcoholism. Dr. Cullison recommended absolute alcohol abstinence.

Dr. Cullison examined Mr. Osenbrock on September 14, 1993 for depression and low back pain. Dr. Cullison noted that Mr. Osenbrock's depression was "of a fairly profound nature related to his injury." In a follow-up examination on September 27, 1993, he noted that Mr. Osenbrock was "having significant alcohol problems" and that he had been arrested for driving while under the influence of alcohol three times in the last six years. Dr. Cullison noted that he was trying to get Mr. Osenbrock a referral to physical medicine and rehabilitation.

On November 6, 1993, Ron Brockman, D.O., an orthopaedic surgeon, and Edward De Vita, M.D., a neurologist, performed a Department of Labor and Industries evaluation of Mr. Osenbrock's condition. They noted that he was working part-time at light duty, and attending physical therapy two times a week. Mr. Osenbrock reported that he was consuming 60 to 80 drinks per week. They concluded that Mr. Osenbrock's present condition was the result of an aggravation of a pre-existing herniated disc in his lumbar spine.

On November 16, 1993, Michael Mallahan, M.D., an audiologist, performed a hearing test on Mr. Osenbrock. Dr. Mallahan reported that Mr. Osenbrock had "high frequency and speech range loss in both ears" and that he "may have difficulty hearing in normal family and social conversations."

Dr. Cullison examined Mr. Osenbrock on November 18, 1993 for low back pain. Dr. Cullison recommended that Mr. Osenbrock continue taking Toradol, Carafate, Prozac; and then initiate Trazadone. He also recommended that Mr. Osenbrock continue in his rehabilitation and consume no alcohol.

On November 29, 1993, Dr. Cullison noted that Mr. Osenbrock had missed four or five visits at the Center for Outpatient Rehabilitation at Providence Hospital in Everett and had been dismissed from the program. Dr. Cullison advised him to start Antabuse, begin attendance at Alcoholics Anonymous, and urged him to "get back on track" with the rehabilitation center.

Mr. Osenbrock was discharged on December 14, 1993 from the work conditioning program at the rehabilitation center because he stated he would be unable to continue treatment until January 8, 1994. He gave no reasons for discontinuing treatment. In a work conditioning discharge report, Brian Nitta, an occupational therapist, noted that Mr. Osenbrock had "demonstrated good body mechanics for lifting, carrying, and other work related activities."

On March 15, 1994, Dr. Cullison noted that Mr. Osenbrock had not been able to work since March 3, 1994, "due to massive increased pain without any new specific injury. " On March 23, 1994, Dr. De Vita and Richard McCollom, M.D., conducted a Department of Labor and Industries evaluation. They concluded that Mr. Osenbrock was suffering from "[l]umbrosacral strain/sprain syndrome with evidence of MRI findings of L4-L5 and L5-S1 herniated disc, both pre-existing but aggravated by industrial injury." They recommended "fullduty except for no heavy lifting greater than 75 pounds."

Dr. Cullison referred Mr. Osenbrock to James Mowry, M.D., for an opinion based on Mr. Osenbrock's worsening symptoms. Dr. Mowry saw Mr. Osenbrock on April 7, 1994. Dr. Mowry concluded that Mr. Osenbrock's physical exam is "highly unreliable," and that he was not "a surgical candidate under almost any circumstances." He ordered an electomyogram ("EMG") examination.

Santosh Kumar, M.D., conducted an EMG on April 8, 1994. His report states: "Normal EMG/NCV findings in his symptomatic low back and right leg indicate no evidence of acute or chronic L1-S2 radiculopathy, sciatic nerve deficit or peripheral heuropathy. His chronic right leg pain appears to have significant subjective component without any objective neurologic deficit."

On April 14, 1994, Dr. Mowry reported that Mr. Osenbrock "returned today with his EMG which shows absolutely no abnormalities. I do not think that surgery or any other diagnostic intervention is indicated."

Steven P. Jewitt, M.D., conducted a psychiatric evaluation of Mr. Osenbrock on June 8, 1994. He noted that"[m]ost significant in his psychiatric history is a problem with substance abuse." Dr. Jewitt reported that Mr. Osenbrock has been charged four or five times with domestic violence and arrested five times for "DWI." Dr. Jewitt also noted that "he is going to an alcohol recovery program and still drinking while not telling them." Dr. Jewitt concluded that "I do not believe depression can be considered for a significant factor, in that he is still drinking heavily and Prozac will have little if any benefit on someone who is drinking a fifth of whiskey several times a week." Dr. Jewitt also noted that "an alcohol rehabilitation program would be essential for a return to gainful employment."

Mr. Osenbrock filed an application for disability insurance benefits on April 20, 1994. R. Emil Hecht, M.D., evaluated Mr. Osenbrock's tinnitus condition on October 18, 1995. He concluded that "amplification devices . . . may, in fact, help his ringing to some degree and assist in his communication abilities." (The record shows that Mr. Osenbrock did not purchase a hearing aid to relieve him of his tinnitus symptoms.)

Loren Ihle, M.D., became Mr. Osenbrock's treating physician in 1995. On February 1, 1996, twelve days prior to the hearing before the ALJ, Dr. Ihle submitted an evaluation form to the Washington State Department of Social and Health Ser-vices that stated Mr. Osenbrock was suffering from depression with a severity rating of "2." On the evaluation form, a severity rating of...