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Treichler v. Commissioner of Social Security Administration

United States Court of Appeals, Ninth Circuit

December 24, 2014

ALLEN L. TREICHLER, Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee

Argued and Submitted, Portland, Oregon May 14, 2014.

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Oregon. D.C. No. 3:11-cv-01333-SI. Michael H. Simon, District Judge, Presiding.

SUMMARY[*]

Social Security

The panel affirmed in part and reversed in part the district court's decision affirming in part and reversing and remanding in part the Social Security Commissioner's denial of Allen Treichler's application for disability insurance benefits pursuant to the Social Security Act.

The panel held tat the administrative law judge erred in failing to provide specific reasons for rejecting Treichler's testimony regarding the severity of his symptoms, and reversed the district court's decision to the extent it affirmed the ALJ's credibility determination. The panel also held that the record does not compel a finding of disability, and remanded to the district court to remand to the agency for further proceedings.

Judge Tashima concurred in part and dissented in part. Judge Tashima agreed with the majority that the ALJ erred in discrediting Treichler's medically determinable pain and symptom testimony based on a boilerplate credibility determination, but disagreed with the majority's remand for further proceedings. Judge Tashima would hold that the three factors of the credit-as-true rule were satisfied and that there was little doubt that Treichler was disabled, and he would remand for the award of benefits.

James S. Coon (argued), Swanson, Thomas, Coon & Newton, Portland, Oregon, for Plaintiff-Appellant.

Gerald J. Hill (argued), Assistant Regional Counsel; David Morado, Regional Chief Counsel, Social Security Administration, Seattle, Washington; S. Amanda Marshall, United States Attorney; Kelly A. Zusman, Assistant United States Attorney, Portland, Oregon, for Defendant-Appellee.

Before: Arthur L. Alarcón, A. Wallace Tashima, and Sandra S. Ikuta, Circuit Judges. Opinion by Judge Ikuta; Partial Concurrence and Partial Dissent by Judge Tashima.

OPINION

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IKUTA, Circuit Judge:

Allen Treichler appeals the district court's decision affirming in part and reversing and remanding in part the Social Security Commissioner's denial of his application for disability insurance benefits pursuant to the Social Security Act. He argues that the administrative law judge (ALJ) failed to provide sufficient reasons for finding him not credible, and therefore erred in rejecting his disability claim. He also contends that in light of this error, we should remand his case to the Commissioner for the payment of benefits. We agree the ALJ erred in failing to identify the portions of Treichler's testimony the ALJ found not credible, and in failing to explain how the ALJ arrived at that conclusion.

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Given the conflicts and ambiguity that remain in the record, however, we remand for further proceedings rather than for an award of benefits.

I

Treichler worked as a tree trimmer until July 14, 2004, when he fell out of a tree and sustained fractures to his lumbar spine, right tibia, right heel, and left ankle. According to the evidence in the record, Treichler's fractures healed well, except for his left ankle, which developed osteomyelitis and was eventually fused.

After his surgeries, Treichler received an independent medical examination from Dr. Mark Leadbetter, an orthopedic surgeon, in November 2005. Treichler's chief complaint was lower back pain, right knee pain and ankle pain. He also reported that he had " normal bowel and bladder control," but had " difficulty with evacuation." After reviewing Treichler's medical history and performing a physical examination, Dr. Leadbetter concluded that all of Treichler's conditions, except the fractured left ankle, were medically stationary as of that date. He also opined that Treichler would be able to participate in vocational assistance activities, though weight-bearing activities would be hampered by his left ankle condition. According to Dr. Leadbetter, Treichler " would be able to stand for a total of two hours at a time in an eight hour day" but " would have to have reasonable breaks."

On the same day as Treichler's examination by Dr. Leadbetter, an occupational therapist conducted an outpatient physical capacity evaluation of Treichler. According to the evaluation, Treichler demonstrated residual physical capacities in the sedentary-light work range, and could sit, stand, and walk, each for 60 minutes at a time, four to six hours per day; could occasionally lift 20 pounds from waist to chest level and from waist to overhead level; occasionally carry ten pounds up to 50 feet; push and pull 44 pounds occasionally; perform light, repetitive work; frequently bend and twist; occasionally do a partial squat; and climb limited stairs. Treichler agreed with this assessment.

In 2006, Treichler enrolled in a return-to-work program for becoming a cost estimator. A position as a cost estimator would require Treichler to sit for up to 30 minutes at a time for a total of four hours a day, and stand for four hours a day. The cost estimator could frequently change positions and would have to walk occasionally.

A July 2006 report from Dr. Craig McNabb, Treichler's treating physician, stated that he had reviewed the job description for cost estimator and felt " that [Treichler] could tolerate this job." The same medical report stated that Treichler was on an " intermittent catheterization program" for his " neurogenic bladder," and that " [h]e seems to be tolerating it fairly well but has continued to have some problems with urinating and the intermittent catheterization is allowing him to empty his bladder fully." Dr. McNabb also noted that Treichler was taking methadone for pain. Dr. McNabb subsequently confirmed to the worker's compensation insurance company that he would release Treichler for the position as cost estimator. Dr. Charles Pederson, one of Treichler's surgeons, also released Treichler for the job.

In March 2007, Treichler filed an application for disability and disability insurance benefits. He had been seeing Dr. Kent Toland, a urologist, for a urinary tract infection. Dr. Toland advised Treichler that he should catheterize at least twice a day. A nurse had noted that Treichler's " bladder seems to be able to

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trigger a normal pressure but unable to sustain enough of a contraction to empty his bladder completely. He is having large postvoid residuals. This is contributing to his urinary frequency and nocturnal enuresis." The nurse also reported Treichler's claims that he " wet the bed" at night. During his visits to the urologist, Treichler complained of constipation, but denied any fecal incontinence.

On August 20, 2007, non-examining state physician Dr. Sharon Eder reviewed Treichler's medical file and completed a physical residual functional capacity assessment. Dr. Eder concluded that Treichler could lift and/or carry 20 pounds occasionally and ten pounds frequently, stand and/or walk for a total of at least two hours in an eight-hour workday, sit for a total of about six hours in an eight-hour workday, and occasionally balance, stoop, kneel, crouch and crawl. Nonexamining state physicians Dr. Martin Kehrli and Dr. Jeffrey Wheeler confirmed this assessment.

Treichler's disability claim was denied on August 22, 2007, and again upon reconsideration on January 9, 2008. Treichler filed a written request for a hearing on February 4, 2008.

In March 2008, Dr. McNabb reported that methadone " seems to be controlling [Treichler's pain] adequately." A subsequent report in September 2008 stated that while Treichler continued to have pain, " [t]he methadone does help significantly." A year later, Dr. McNabb stated that the methadone " seems to be allowing [Treichler] to be somewhat functional without any significant decrease in his abilities," though it also noted that Treichler " still is not very active because it does not take all of his pain away." And in September 2009, Dr. McNabb reported that Treichler " states that the methadone is making his life tolerable." While " he still has significant amount of pain at times," Treichler reported that " for the most part he is able to do most of his activities."

The hearing before the ALJ took place in Albany, Oregon, on December 15, 2009. Treichler submitted medical records and testified regarding the severity and impact of his symptoms. Treichler claimed he was " not very mobile," and that he frequently experienced severe pain in his back and right ankle. Treichler testified that although he can stand and walk, it causes pain and he has to sit down after five to ten minutes. He also stated that he drives a car a short distance, can do household chores if he has to, takes care of his dog, and goes fishing occasionally. In addition, he works in his woodworking shop when he gets bored. Treichler described a typical day as getting up, making himself a meal, playing with his pets, and sometimes doing yard work. According to Treichler, his back is always in pain and he has a really bad day " [p]robably twice a week." On a bad day, he may stay in bed all day. Treichler testified that methadone " takes away a lot of it [pain], but it--I mean nothing takes away all of it."

When asked about his urinary incontinence, Treichler testified that his " bladder just lets go" and he " wet[s] [him]self" around two to three times a week, " a lot at night." He also related that on a " bad week during the daytime" he might lose bladder control " [p]robably three times." Treichler's bladder difficulties require him to self-catheterize up to four times a day. With regard to fecal incontinence, Treichler claimed that " about once or twice a month" he " just lose[s] it."

His wife testified at the hearing and described the lifestyle changes she and her husband have had to make following his surgeries. She also described how Treichler " really has a problem [with urinary incontinence] at night. You know, I've

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noticed two or three times during the night a lot of times he'll even have to change his clothes."

The hearing concluded with testimony from a vocational expert. The ALJ described a hypothetical person who had the following characteristics: the person had " the same age, education and vocational background as Mr. Treichler" ; the person " could lift 20 pounds occasionally, 10 pounds frequently," could " sit[] six hours out of a normal eight-hour work day" and " stand and walk two hours," " should never be required to climb," although capable " of occasionally balancing, stooping, kneeling, crouching and crawling" ; the person should " avoid even moderate exposure to hazards," and " have the option . . . . to change position at least four times an hour to alleviate his discomfort" ; and finally the person " is going to need to be able to go to the bathroom essentially at will, because of incontinence issues." The expert testified that there were a significant number of jobs available in the national economy and in the region where Treichler lived that could be performed by someone with these physical characteristics, including the job of a document sorter.

Treichler's attorney then inquired whether a person who " twice a week . . . [is] going to make a mess and need time to . . . either take a shower or clean up or he's going to be unable to clean up and going to be a--frankly, a[n] ol[]factory nuisance" would be able to maintain employment. The vocational expert testified that such a person would not be able to do so. The attorney next asked about a different hypothetical person, one who " would miss more than two days of work per month on a random and unpredictable basis." The expert again opined that no work would be available for someone who would have to miss that much work.

The ALJ followed up by asking whether allowing breaks for self-catheterization was " an acceptable accommodation from employers," and the expert agreed that " it can be worked around." The ALJ asked whether a person could use two 10 to 15 minute breaks for self-catheterization and still be able to maintain employment. The vocational expert said that those breaks were not " excessive." But when asked by Treichler's attorney whether an employer would tolerate a situation where " twice a month at randomly and unpredictably there's a loss of bowel control despite best efforts," the expert said that there would not be available work for such a person.

The ALJ issued a written decision denying Treichler's application for disability on January 5, 2010. To assess whether Treichler was disabled, the ALJ employed the five-step sequential evaluation[1] for determining disability. At ...


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