McCrea v. Colvin

RICHARD MCCREA, Plaintiff, v. CAROLYN W. COLVIN,Commissioner of Social Security, Defendant.

Case No. 3:15-cv-00166-SB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

March 8, 2016

OPINION AND ORDER

BECKERMAN, Magistrate Judge.

Richard McCrea ("McCrea") appeals from the Commissioner of the Social Security's ("Commissioner") denial of his application for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. The Court has jurisdiction over McCrea's appeal pursuant to 42 U.S.C. § 1383(c)(3), which incorporates the review provisions of 42 U.S.C. § 405(g). For the reasons that follow, the Commissioner's decision is reversed and this case is remanded for an award of benefits.

I. FACTS AND PROCEDURAL HISTORY

McCrea stands five-feet, ten-inches tall and weighs approximately 200 pounds. He was born in March 1960, making him thirty-seven years old on June 15, 1997, the alleged disability onset date, and fifty-one years old on September 9, 2011, the protective filing date.¹ McCrea obtained a general equivalency degree and attended two years of college. He has prior work experience as a landscaper and part-time maintenance worker at a motel, but he has not been gainfully employed since 1997. McCrea alleges disability due primarily to hand, back, leg, foot, and ankle pain and associated limitations.

On October 18, 1998, McCrea was admitted to the hospital with an abscess on the inner crook of his right elbow and "extensive cellulitis." (Tr. 250.) McCrea reported that he had injected heroin into the crook of his elbow "multiple times recently and . . . ha[d] noted that the abscess ha[d] gotten progressively larger, with warmth and swelling around the entire upper arm." (Tr. 252.) Doctors drained the abscess and administered antibiotics before discharging McCrea on October 21, 1998.

On April 26, 2005, McCrea visited the emergency room at Legacy Emanuel Medical Center. McCrea informed Dr. Aloysiu Fobi that he was having difficulty walking due to pain in his right foot, and that he "hit [a] tractor trailer door with [his] right hand [and thought] that it might be broken." (Tr. 414.) X-rays of McCrea's right hand revealed an "[a]cute fracture of the distal third metacarpal" and a "[s]evere chronic deformity of the carpal joints," and x-rays of McCrea's rightfoot were negative for a fracture, but they did reveal a mild "hallux valgus," also known as a bunion. (Tr. 276, 279.)

On January 12, 2007, McCrea again visited the emergency room at Legacy Emanuel Medical Center. McCrea informed Dr. Jeffrey Campbell that he was involved in a collision while riding his bicycle. (Tr. 410-13.) A computerized tomography ("CT") scan of McCrea's cervical spine was negative for fracture, but it did reveal "[a]dvanced degenerative changes." (Tr. 285.) X-rays obtained that day also revealed "[d]egenerative changes in the glenohumeral joint" of the left shoulder, "[d]egenerative changes [in the] first carpometacarpal joint" of the left wrist, and "[f]used distal arcade of carpals which are fused to the second through fourth metacarpals" of the right wrist. (Tr. 291, 299, 302.)

On March 17, 2007, McCrea visited Legacy Emanuel Medical Center, complaining of severe left scrotal pain. McCrea was diagnosed with an inguinal hernia and "[l]ikely testicular carcinoma." (Tr. 244.) He underwent a radical orchiectomy and hernia repair, and was discharged on March 20, 2007.

On September 7, 2010, x-rays of McCrea's right foot revealed that he was suffering from bunions and "hammer toes." (Tr. 311.)

On May 18, 2011, x-rays of McCrea's right clavicle revealed a "comminuted fracture" with "some displacement and angulation." (Tr. 450.)

On October 17, 2011, Cori McCrea ("Mrs. McCrea") completed a third-party adult function report, in support of her husband's application for benefits.² Mrs. McCrea stated that her husbandlives in transitional housing for recovering addicts, and he suffers from foot and leg pain, anxiety, and vision problems. Mrs. McCrea added that her husband's impairments interfere with his ability to sleep, put on shoes, lift, squat, bend, "stand for any amount of time," reach, "walk [long] distance[s]," sit, kneel, climb stairs, complete tasks, concentrate, use his hands, and get along with others. (Tr. 199.) However, McCrea is capable of preparing simple meals, counting change, handling a savings account, shopping at the local convenient store three times a week, using a checkbook or money order, performing household chores on a limited basis, using public transportation, and attending meetings.

On November 18, 2011, McCrea was referred to Dr. Kevin Yuen ("Dr. Yuen") for a physical evaluation. Dr. Yuen observed that McCrea scored a thirty out of thirty on a Mini-Mental Status Examination.³ In terms of physical limitations, Dr. Yuen opined that McCrea could stand and walk for less than two hours during an eight-hour workday; sit for up to six hours in an eight-hour workday; and occasionally lift and carry twenty pounds, climb ramps, stairs, ladders, ropes, and scaffolds, balance, stoop, kneel, crouch, and crawl. Dr. Yuen added that McCrea needed to avoid working at heights, but he otherwise had no reaching, handling, fingering, feeling, or environmental limitations.

On November 21, 2011, x-rays revealed that McCrea was suffering from "multi-level degenerative changes in [the] lumbar spine." (Tr. 320.)

On December 15, 2011, Dr. Richard Alley ("Dr. Alley"), a non-examining state agency physician, completed a physical residual functional capacity assessment. Based on his review ofMcCrea's medical records, Dr. Alley determined that McCrea could lift and carry twenty pounds occasionally and ten pounds frequently; could stand, walk, and sit for six hours in an eight-hour workday; could push and/or pull in accordance with the lift and carry restriction; could frequently balance, kneel, crouch, and climb ramps and stairs; could occasionally stoop, crawl, and climb ladders, ropes, and scaffolds; and needed to avoid concentrated exposure to hazards like machinery and heights. Dr. Alley also found that McCrea had no manipulative, visual, or communicative limitations.

On December 19, 2011, Dr. Kordell Kennemer ("Dr. Kennemer"), a non-examining state agency psychologist, completed a psychiatric review technique assessment, wherein he evaluated McCrea's impairments under listings 12.04 (affective disorders) and 12.09 (substance addiction disorders).⁴ Dr. Kennemer concluded that the limitations imposed by McCrea's impairments failed to satisfy listings 12.04 and 12.09. In a mental residual capacity assessment completed that same day, Dr. Kennemer observed that McCrea is capable of understanding and remembering simple, routine tasks, "but is unable to remember and understand complex and detailed tasks on a sustained basis." (Tr. 58.)

On April 4, 2012, Dr. Neal Berner ("Dr. Berner"), a non-examining state agency physician, recommended that the Social Security Administration affirm Dr. Alley's initial physical residual functional capacity assessment "as written." (Tr. 70.) The following day, Dr. Bill Hennings ("Dr. Hennings"), a non-examining state agency psychologist, recommended affirmance of Dr.Kennemer's psychiatric review technique assessment and mental residual capacity assessment "as written." (Tr. 70.)

On April 19, 2012, McCrea presented for a psychological evaluation with Dr. Steven Barry ("Dr. Barry"). Dr. Barry reviewed McCrea's medical file and conducted a clinical interview and Personality Assessment Inventory.⁵ Dr. Barry observed that the Personality Assessment Inventory elicited a profile that "should be considered marginally valid," because the scores suggested that "it's likely [McCrea] might be depicting himself somewhat more impaired than others might view him." (Tr. 337.) Dr. Barry, however, made clear that the scores did not invalidate McCrea's profile, and that he "can't envision how [McCrea] can work," given his depression, isolating behavior, and lack of coping skills. (Tr. 339.) Dr. Barry's diagnoses included, among other things: major depressive disorder and posttraumatic stress disorder stemming from childhood sexual abuse (Axis I); financial and social stressors, a limited support system, and "being clean and sober with limited coping resources" (Axis IV); and a Global Assessment of Functioning Score ("GAF") score of 43-45.⁶ (Axis V).

An administrative law judge ("ALJ") convened a hearing on July 23, 2013, at which McCrea testified about the limitations resulting from his impairments. McCrea testified that he stopped working in 1997 due to "[p]ain mostly." (Tr. 31.) McCrea further testified that he had been convictedof burglary and a number of alcohol-related driving infractions, but he has been clean and sober since 2011. In terms of daily activities, McCrea stated that he spends most of the day sleeping, and he occasionally walks to the park or to the pharmacy to pick up his medications. In terms of physical limitations, McCrea stated that he has difficulty gripping objects, moving his wrists, reading due to vision problems, and walking due to back, left leg, and foot impairments. McCrea acknowledged that is he able to cook, shop once a month, and walk twenty-two blocks with periodic breaks.

The ALJ posed a series of questions to a vocational expert ("VE") who testified at McCrea's hearing. The ALJ first asked the VE to assume that a hypothetical worker of McCrea's age, education, and work experience could "walk [twenty-two] blocks at a time, four of eight hours," "stand for four of eight hours," "sit [for] six of eight hours," lift fifty pounds occasionally and twenty-five pounds frequently, and have occasional interaction with co-workers and supervisors, but no contact with the public. (Tr. 43.) The VE testified that the hypothetical worker could be employed as a recycling reclaimer (DOT 929.687-022), hand packer (DOT 920.587-018), and price marker (DOT 209.587-034). The VE further...