Case 3:05-cv-00875-PK Document 25 Filed 10/30/06 Page 1 of 20 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON SUSAN PRYOR, ) ) Plaintiff, ) ) CV 05-875-PK v. ) ) JO ANNE B. BARNHART, Commissioner of Social ) FINDINGS AND Security, ) RECOMMENDATION ) Defendant. ) PAPAK, Magistrate Judge: INTRODUCTION Plaintiff Susan Pryor brings this action for judicial review of a final decision of the Commissioner of Social Security denying her application for disability insurance benefits (DIB) and supplemental security income payments (SSI) under Titles II and XVI of the Social Security Act. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383©)(3). The Commissioner concedes 1 - FINDINGS AND RECOMMENDATION Case 3:05-cv-00875-PK Document 25 Filed 10/30/06 Page 2 of 20 that her decision contains errors and moves the court to remand for further proceedings (docket # 21). Pryor opposes additional proceedings and seeks an immediate award of benefits. The Commissioner’s motion to remand for further proceedings should be denied. The Commissioner’s final decision should be reversed and remanded for an award of benefits. BACKGROUND Pryor was born September 4, 1953. Tr. 234.1 She graduated from high school and attended nursing school for two years. Tr. 250. Pryor was employed as a computer wafer processor. On December 12, 1999 she was in an automobile accident as she was leaving work. Tr. 59-60, 246. Pryor alleges disability from this date due to a cognitive disorder from a head injury, lumbar spine degenerative disc disease, chronic pain syndrome, headaches, obesity, depression, and a personality disorder. Pryor applied for DIB on October, 1, 2001 and SSI on September 23, 2002. Her claim was denied and she requested a hearing. A hearing and supplemental hearings were held before an Administrative Law Judge (ALJ) on March 5, 2003, July 21, 2003, January 15, 2004 and March 25, 2004. Pryor satisfied the insured status requirements for a claim under Title II through September 30, 2001, and must establish that she was disabled on or before that date to prevail on her DIB claim. 42 U.S.C. § 423(a)(1)(A). See Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). The ALJ issued an opinion on May 12, 2004 and found Pryor was not disabled, which is the final decision of the Commissioner. 1 Citations to “Tr.” refer to the page(s) indicated in the official transcript of the administrative record filed with the Commissioner’s Answer. 2 - FINDINGS AND RECOMMENDATION Case 3:05-cv-00875-PK Document 25 Filed 10/30/06 Page 3 of 20 DISABILITY ANALYSIS The initial burden of proof rests upon the claimant to establish disability. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To meet this burden, a claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . to last for a continuous period of not less than 12 months. .” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has established a sequential process of up to five steps for determining whether a person over the age of 18 is disabled within the meaning of the Act. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. If the adjudication proceeds beyond step three, the Commissioner must assess the claimant’s residual functional capacity (RFC). The claimant’s RFC is an assessment of the sustained work-related activities the claimant can still do on a regular and continuing basis, despite the limitations imposed by her impairments. 20 C.F.R. §§ 404.1545, 416.945; Social Security Ruling (SSR) 96-8p. Pryor challenges the ALJ's determination of her RFC. At step four, the Commissioner must determine whether the claimant retains the RFC to perform work she has done in the past. If the ALJ determines that she retains the ability to perform her past work, the Commissioner will find the claimant not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). The ALJ found Pryor was not able to perform her past work. At step five, the Commissioner must determine whether the claimant retains the RFC to perform work that exists in the national economy. Bowen v. Yuckert, 482 U.S. at 142; 20 C.F.R. §§ 404.1520(e), (g), 416.920(e), (g). Here the burden shifts to the Commissioner to show that a significant number of jobs exist in the national economy that the claimant can do. Tackett v. Apfel, 3 - FINDINGS AND RECOMMENDATION Case 3:05-cv-00875-PK Document 25 Filed 10/30/06 Page 4 of 20 180 F.3d 1094, 1099 (9th Cir. 1999). If the Commissioner meets this burden, then the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966. The ALJ found that Pryor could make a successful vocational adjustment to other work in the regional and national economy. Pryor asserts the Commissioner failed to meet her burden at this step. The Commissioner concedes the ALJ erred at step five and seeks a remand to correct the error. THE ALJ’s FINDINGS The ALJ found Pryor had severe impairments of back pain and depression and her combination of impairments did not meet or equal any impairment in the Listing of Impairments in 20 C.F.R. Pt. 404, subpt. P, app. 1. Tr. 42.2 The ALJ found Pryor's assertions regarding her limitations were not credible. Tr. 39. He determined her RFC was a light exertion level with a limit of occasional climbing of "ropes, ladders, or scaffolds." Id. The ALJ further found her RFC was limited to unskilled work requiring little contact with the general public. Id. A vocational expert (VE) testified at the January, 2004 hearing regarding Pryor's past relevant work as a wafer process, fast food manager and in home day care provider. Tr. 121-122. The VE testified these were jobs at the medium level of exertion. Id. The ALJ proposed a hypothetical question to the VE, with a person of Pryor's age, education, and work experience who was limited to sitting and standing for one half hour at a time for a maximum of four hours, and had limits on lifting, climbing, stooping, crawling, bending and reaching. The VE testified the person 2In his opinion, the ALJ stated he did not believe Pryor had severe impairments, but, giving her the "benefit of the doubt," deemed she had medically determinable impairments that were severe. In his findings, the ALJ stated her impairments were severe based on the requirements in 20 C.F.R. §§ 404.1520, 416. 920. 4 - FINDINGS AND RECOMMENDATION Case 3:05-cv-00875-PK Document 25 Filed 10/30/06 Page 5 of 20 would be unable to perform Pryor's past relevant work and identified three sedentary, unskilled jobs the person could perform. Tr. 122-123. The ALJ then proposed a hypothetical of the same individual with an RFC of a light exertion level. The VE responded the person would not be able to perform Pryor's past relevant work but could perform the same sedentary jobs. Tr. 124. Finally, the ALJ proposed a hypothetical with the physical limitations of the first hypothetical and additional moderate nonexertional limits. The VE eliminated one of the sedentary jobs. Tr. 126-127. The ALJ stipulated, for "purposes of the record and in the interest of judicial economy that if, in fact, I was to accept as true the MRFC ratings as given by Dr. Tongue on Pages 220 and 221, that person would not be able to work." Tr. 127. The ALJ found Pryor could not perform her past relevant work. Tr. 40. He found she could perform other work in the national economy and was not disabled. Tr. 42. DISCUSSION The Commissioner concedes that her decision cannot be sustained, but contends that further administrative proceedings are required at step five of the sequential evaluation. She admits some error by the ALJ in evaluation of the record. Pryor opposes the Commissioner's motion to remand and asserts the record, if fully credited, is sufficient for a finding of disability and a remand for award of benefits. I. Medical Evidence Pryor was involved in a motor vehicle accident while leaving work on December 12, 1999. She was taken by ambulance to Legacy Health System emergency room with bruising on the left side of her head and her right foot. She was instructed on using crutches, caring from sprains, and precautions following a head injury. Tr. 429-30. Later that evening, Pryor went to the emergency 5 - FINDINGS AND RECOMMENDATION Case 3:05-cv-00875-PK Document 25 Filed 10/30/06 Page 6 of 20 room at Kaiser Permanente with cervical sprain, left foot contusion, and pain in her jaw area. Tr. 339. She returned to Kaiser on December 14, 1999, for follow up to her whiplash, and complained of sagging on the left side of her face, neck and back pain, and loss of memory. Pryor was diagnosed with cervical strain and depression and given Prozac and Valium. Tr. 474. Follow up visits to Kaiser on December 19 and 23, 1999 noted lower back pain, right leg sciatica, and mood problems. Pryor had stopped taking Prozac due to insomnia and her medication was changed to Paxil. Tr. 338-339. Pryor began treatment with Dr. Scott on December 23, 1999. She complained of sagging on the left side of her face, pain in her face, arm, neck, shoulder, and head, and a bruised foot.