Salazar v. Astrue

• Decision Date: 13 March 2012
• Docket Number: No. 3:10–cv–00895–HU.,3:10–cv–00895–HU.
• Citation: 859 F.Supp.2d 1202
• Parties: Karen SALAZAR, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Oregon

859 F.Supp.2d 1202

Karen SALAZAR, Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 3:10–cv–00895–HU.

United States District Court,

D. Oregon,

Portland Division.

March 13, 2012.

Tim D. Wilborn, Wilborn Law Office, P.C., Oregon City, OR, for Plaintiff.

Adrian L. Brown, U.S. Attorney's Office, Portland, OR, Gerald J. Hill, Social Security Administration, Seattle, WA, for Defendant.

OPINION AND ORDER

MOSMAN, District Judge.

On January 25, 2012, Magistrate Judge Hubel issued his Findings and Recommendation (“F & R”) [20] in the above-captioned case, recommending that I remand the Commissioner's decision for further proceedings. Defendant filed objections [22] and plaintiff responded [23].

STANDARD OF REVIEW

The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F & R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Reyna–Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). While the level of scrutiny under which I am required to review the F & R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any part of the F & R. 28 U.S.C. § 636(b)(1)(C).

DISCUSSION

The Commissioner makes three objections to the F & R. The first raises two distinct arguments concerning the May 4, 2009, supplemental statement from Nurse Practitioner (“NP”) Kevin Probst. The Commissioner argues that by considering this supplemental statement, Judge Hubel improperly reviewed the decision of the Appeals Council, which is prohibited under Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228 (9th Cir.2011). I reject this argument because, as the Ninth Circuit recognized in Taylor, consideration of evidence submitted to the Appeals Council does not constitute improper review of the Appeals Council's decision. 659 F.3d at 1232. The Commissioner also argues that, even if it may be considered, NP Probst's supplemental statement is “entitled to little weight” since it was written after the Administrative Law Judge (“ALJ”) issued his decision. (Def.'s Obj. [22] 3). This argument fails because the Commissioner cites no authority suggesting a statement receives less weight solely because it is issued after an ALJ's decision, and has not presented any other basis for discrediting NP Probst's supplemental statement.

Second, the Commissioner argues Judge Hubel erred in his analysis of opinions from non-examining physician William Habjan, D.O., and examining physician John Ellison, M.D. ( Id. at 4). According to the Commissioner, Judge Hubel misconstrued these physicians' opinions. I agree with Judge Hubel's conclusion that these non-treating physicians' opinions were based on their improper findings that the objective medical evidence did not suggest Ms. Salazar's impairments imposed limitations, and I therefore reject this argument. The Commissioner's third objection is that Judge Hubel should not have found error in the ALJ's analysis of Ms. Salazar's credibility. ( Id. at 6). I agree with Judge Hubel on this point as well and this issue is adequately addressed in the F & R.¹

Therefore, upon review, I agree with Judge Hubel's recommendation and I ADOPT the F & R[20] as my own opinion.

IT IS SO ORDERED.

FINDINGS AND RECOMMENDATION

DENNIS JAMES HUBEL, United States Magistrate Judge.

The plaintiff Karen Salazar seeks judicial review pursuant to 42 U.S.C. § 405(g) of the Commissioner's final decision denying her application for Disability Insurance (“DI”) benefits under Title II of the Social Security Act, 42 U.S.C. § 1381 et seq. Salazar argues the Administrative Law Judge (“ALJ”) erred in failing to include all of her restrictions in his hypothetical question to the Vocational Expert, in discounting her subjective complaints and finding her allegations not to be fully credible, in rejecting the opinions of Salazar's treating Nurse Practitioner Kevin Probst, and in finding she has transferable skills. See Dkt. # 17 & 19.

I. PROCEDURAL BACKGROUND

Salazar protectively filed her application for DI benefits on October 10, 2005, at age 42, claiming a disability onset date of June 14, 2005. (A.R. 14, 30, 74–76, 105 ¹) She later amended her alleged disability onset date to September 30, 2005. (A.R. 14, 29) Her application was denied initially and on reconsideration. (A.R. 44–54) Salazar requested a hearing, and a hearing was held before an ALJ on January 20, 2009. (A.R. 23–43) On March 4, 2009, the ALJ found that although Salazar has severe impairments consisting of rheumatoid arthritis and asthma, her impairments do not meet the Listing level of severity, and she retains the capacity to perform sedentary work such as telephone solicitor, and telephone answering service operator. The ALJ therefore concluded Salazar was not disabled at any time through the date of his decision. (A.R. 14–22)

Salazar requested review, and submitted additional evidence that was considered by the Appeals Council. ( See A.R. 5) On May 28, 2000, the Appeals Council denied Salazar's request for review, making the ALJ's decision the final decision of the Commissioner. (A.R. 2–4)

Salazar filed a timely Complaint in this court, requesting judicial review. Dkt. # 1. The matter is fully briefed, and the undersigned submits the following Findings and Recommendation for disposition of the case pursuant to 28 U.S.C. § 636(b)(1)(B).

II. FACTUAL BACKGROUND

A. Summary of the Medical Evidence

Salazar saw Nurse Practitioner (“NP”) Pat Turley on June 2, 1999, with complaints of aches and pains all over her body, and shoulder pain for several months. She specifically complained of pain in her hands and feet. No redness or swelling was observed in any of her areas of concern. She complained of pain with movement of her shoulders. The progress notes are incomplete with regard to any treatment that was provided. (A.R. 261–62)

On June 17, 1999, Salazar saw William L. Melcher, M.D., a specialist in Rheumatology and Internal Medicine, for an Outpatient Rheumatology Consultation, due to her complaints of “[j]oint aches and pains and swelling.” (A.R. 258) After his examination, Dr. Melcher's impression was, “Seropositive rheumatoid arthritis—the patient has a chronic arthropathy of the hands and feet as well as multiple other joints with a positive serum rheumatoid factor.” ( Id.; see A.R. 259) The doctor discussed with Salazar “the chronic nature” of her condition, “and how nonsteroidal anti-inflammatory drugs are only minimally effective and the use of disease modifying agents as treatment.” ( Id.) He wanted to avoid prescribing steroids, if possible, due to the potential side effects. Salazar was advised to cease breast-feeding her son due to the medications she would be prescribed for the arthritis. X-rays were ordered for further evaluation. She was given information on various medications and a pool exercise program. She was directed to return for follow-up in one week to begin treatment, and then again in three months to assess her response to the new medications. ( Id.) X-rays of Salazar's hands showed “[n]o radiographic evidence of any of the arthritides.” (A.R. 263)

On August 24, 2000, Salazar saw Dr. Melcher for review of a supplement she was taking for rheumatoid arthritis; i.e., Arthro–7. Notes indicate the supplement did not contain glucosamine or chondroitin sulfate, but it contained Vitamin C, “chicken cartilage, and MSM among other ingredients.” (A.R. 256) At some point in August 2000, Salazar was started on hydroxychloroquine. She experienced hair loss with the medication, so it was stopped. However, since stopping the medication, her symptoms of pain, swelling, and morning stiffness had improved. ( See undated progress note at A.R. 260; A.R. 248, indicating Salazar was started on the hydroxychloroquine in August 2000)

On January 17, 2001, Salazar saw John A. McDonald, M.D., an Occupational Health specialist, with a complaint of a low back injury the day before that “occurred when she was lifting heavy ramps from behind [a] vehicle.” (A.R. 256) She immediately felt soreness, which worsened over the next 24 hours. She complained of pain across her lower back area, with no radiculopathy. She moved guardedly, sat “with great discomfort,” and had limited ranges of motion and tenderness in her lumbar spine. She was diagnosed with an acute lumbosacral strain. Physical therapy was ordered, and she was given prescriptions for Ibuprofen 600 mg three times daily and Flexeril 10 mg as needed at night. She was placed on work restrictions including “minimal stooping, twisting or bending, no pushing, pulling or lifting over ten pounds. No repetitive lifting over five pounds. No vehicle driving.” ( Id.) She was directed to return in one week for followup. ( Id.)

Salazar saw Dr. McDonald on January 24, 2001, for followup. Notes indicate she moved “around the room, on and off the exam table without distress,” and she was “able to squat, forward flex, touching both hands on the floor and raising independently without discomfort.” (A.R. 255) She was deemed “medically stationary without impairment,” and she was released to return to “regular work.” ( Id.; A.R. 249)

Salazar saw Dr. Melcher for followup in August of 2001.² She was taking Vioxx “about 3 times a week for pain,” and also was taking glucosamine and chondroitin, which she believed was helping her. Upon examination, she had no signs of...