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Barstad v. Shlala
Entered By: Marc C Gabriel/LymeNetDate Created: 4-15-94
Document Type: Decision
Title: Case Decision for: Barstad v. Shlala
SANDRA GAIL BARSTAD, Plaintiff, v. DONNA E. SHALALA, Secretary of Health and Human Services, Defendant.

BARSTAD v. SHALALA

Civil No. 93-687-FR

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

1994 U.S. Dist.


April 15, 1994, Decided
April 15, 1994, Filed

COUNSEL: [*1] For Plaintiff: Kathleen G. Dolan, Lane County Legal
Aid Service, Inc., Eugene, Oregon.

For Defendant: Kristine Olson Rogers, United States Attorney, Craig
J. Casey, Assistant United States Attorney, Portland, Oregon,
Richard H. Wetmore, Special Assistant United States Attorney,
Seattle, Washington.

JUDGES: FRYE

OPINIONBY: HELEN J. FRYE

OPINION: OPINION

FRYE, Judge:

The matter before the court is the appeal of the plaintiff from
the final decision of the Secretary of Health and Human Services
(the Secretary) denying her application for Social Security
disability benefits (SSI disability benefits).

FACTS

The plaintiff, Sandra Gail Barstad, filed an application for SSI
disability benefits with a protective filing date of December 31,
1990. The application was denied initially and upon reconsideration.
After a timely request for a hearing, Bars tad appeared and testified
before an Administrative Law Judge (ALJ) on September 10, 1992. A
medical advisor and a vocational expert also testified.

The ALJ considered the testimony and the other evidence of record
and on September 23, 1992 issued a decision finding Barstad not
disabled within the meaning of the Social Security Act and,
therefore, not entitled to disability [*2] benefits. This became
the final decision of the Secretary when the Appeals Council declined
to review the decision of the ALJ.

At the time of the hearing, Barstad was thirty-nine years old.
She is a high school graduate and has completed some courses at a
community college. Barstad contends that she became disabled as a
result of severe arthritis beginning on October 17, 1989.

Barstad was treated for three years by Dr. Clyde Byfield, her
family physician. In a letter dated April 5, 1991, Dr. Byfield
states that he began treating Barstad in 1988 for weakness, fatigue,
chest pain, neck pain, back pain, stiffness to the arms and legs,
and anxiety and depression. TR 142. Dr. Byfield stated that Barstad
had degenerative disc disease in the neck at C5-6 and C6-7. Id.
The Lyme's Disease test was positive. Id. In Dr. Byfield's opinion,
Barstad was unable to work due to pain, weakness and stiffness. Id.

In October, 1990, Barstad was referred by Dr. Byfield to Dr. Jane
Nishio, a rheumatologist, who made a tentative diagnosis of
systemic lupus erythematosis (SLE). TR 158, 160. Dr. Nishio
reported that Barstad had suffered from a variety of symptoms
common to SLE for several years. [*3] She had stiffness in her
back which was pronounced with bending and stiffness in her neck.
TR 156. The stiffness worsened over the years to include her hands
and fingers, both knees, her left elbow, and her left foot. Id.
She had periodic episodes of joint pain and fatigue. Id. An x-ray
examination showed degenerative disc disease in her neck and
spine. Id.

At the time of her examination by Dr. Nishio in 1990, Barstad
reported a history of hair loss, as well as an intermittent malar
rash, oral ulcers, and chronic fatigue. TR 156. Barstad reported
experiencing stiffness for approximately two hours each morning
and stiffness when she sat down. Id. She also reported that she
slept poorly and was tired upon awakening. Id. She had multiple
areas of tenderness.

Dr. Nishio treated Barstad over the course of nine months with
different medications, including Plaquenil, Feldene, Doxycycline
and Trilisate. Barstad was also treated for depression with
Elavil and Prozac. She had difficulty tolerating some of the
medications.

In November, 1990, Dr. Nishio stated that she would support a
request for temporary disability benefits for Barstad for a
six-month period. TR 162. Barstad [*4] last saw Dr. Nishio in
June of 1991. At that time, Dr. Nishio noted that Barstad's SLE
was mild and fairly well controlled. TR 173. In a final
examination, Dr. Nishio's diagnosis was SLE, positive Lyme serology,
instability of the detrusor sphincter of the bladder, and chronic
back pain. TR 172.

After June of 1991, Barstad moved from the State of California
to Eugene, Oregon, where she continued to see Dr. Byfield, who had
also relocated to the State of Oregon. Dr. Byfield accepted the
diagnosis of SLE that had been made by Dr. Nishio and continued
treating Barstad. TR 134.

In September, 1991, Barstad was seen by Dr. William P. Maier.
He found no evidence of active SLE at that time. TR 195. Barstad
had discontinued all of the medications she had been taking prior
to the time she was examined by Dr. Maier. Barstad reported that
treatment with Plaquenil had improved the malar rash, but that she
continued to have musculoskeletal pain. TR 194. Dr. Maier's
examination revealed that Barstad had a full range of motion in
all joints, except for multiple trigger points. Id. His diagnosis
was that Barstad suffered from fibrositis. TR 195.

Dr. Byfield completed a residual functional capacity [*5]
examination on August 28, 1992. TR 216-218. He stated on a form
that bursitis in Barstad's left shoulder and cervical strain limited
her to lifting five pounds; that Barstad could stand and/or walk for
one hour at a time and two hours a day; that Bars tad could sit for
one hour at a time for six hours during a day; that Barstad should
avoid climbing, stooping and similar movements; and that Barstad
should avoid extreme temperatures. Id.

A hearing was held on September 10, 1992. Barstad testified that
she does the cooking at home and her children do the cleaning; that
she walks to relieve the stiffness that she feels; that she needs to
lie down several times a day; and that fatigue and pain require her
to stay in bed two days a week. TR 238-240. She further testified
that her sleep is sometimes hampered by muscle spasms. Id.

Dr. Sarah Stewart, who testified at the hearing as a medical
advisor, stated that there was no record of a psychiatric disorder
and that neither the medical records nor Barstad's own description
of her symptoms support a diagnosis of SLE based on the criteria for
the disease established by the Rhematological Association. TR 248-251.

Dr. Stewart could not [*6] state an opinion as to whether
Barstad had fibromyalgia based on the record. Dr. Stewart explained
that the official criteria for the diagnosis of fibromyalgia, which
must involve eleven of eighteen trigger points, were set only a year
earlier, near the time of Dr. Maier's examination. TR 251-254.
Because Dr. Maier stated that Barstad had multiple trigger points
but did not specify these trigger points, Dr. Stewart concluded that
the evidence in the record did not satisfy the new criteria for
the diagnosis. TR 252. However, Dr. Stewart testified that Barstad's
symptoms were typical of a diagnosis of fibromyalgia. Id.

A vocational expert testified at the hearing. He was asked to
assume a person of Barstad's age, education, and past work
experience who was further limited as indicated on Exhibit 25,
the evaluation made by Dr. Byfield on August 28, 1991. TR 267.
Assuming these factors, the vocational expert testified that such a
person could perform the job of general clerk. TR 268.

In a decision dated September 23, 1992, the ALJ found that Barstad
suffered from severe fibrositis (also known as fibromyalgia) and
cervical degenerative disc disease and dysthymia (a form of
depression), [*7] but that she did not have an impairment or
combination of impairments listed in, or medically equal to one of
the listings in Appendix 1. TR 23-24. The ALJ also found that Barstad
was credible, "except insofar as she stated she was incapacitated or
incapable of working. TR 24. The ALJ concluded that Barstad's
impairments did not preclude her from performing her past relevant
work of general clerk. TR 24.

CONTENTIONS OF THE PARTIES

Barstad contends that the Secretary erred in failing to consider
her testimony regarding the pain and the fatigue from which she
suffers. Barstad contends that the ALJ erred in failing to find her
eligible for benefits for a closed period based on evidence of active
systemic lupus erythematosis. The Secretary contends that the
decision of the ALJ on these two issues was supported by substantial
evidence.

APPLICABLE STANDARD

The court will uphold the decision of the ALJ provided that the
findings of the ALJ are supported by substantial evidence and the
ALJ applied the correct legal standards. Drouin v. Sullivan,
966 F.2d 1255, 1257 (9th Cir. 1992). Substantial evidence "means
such relevant evidence as a reasonable mind [*8] might accept as
adequate to support a conclusion." Id. (quoting Richardson v.
Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971)).

ANALYSIS AND RULING

1. Consideration of Pain Testimony Pursuant to SSR 88-13

SSR 88-13 mandates that statements of a claimant as to the
intensity and persistence of pain which are consistent with the
medical signs and laboratory findings are to be included in the
evidence to be considered in making a disability determination.
SSR 88-13 provides:

In evaluating a claimant's subjective complaints of pain, the
adjudicator must give full consideration to all of the available
evidence, medical and other, that reflects on the impairment and
any attendant limitations of function.

. . . .

In instances in which the adjudicator has observed the individual,
the adjudicator is not free to accept or reject that individual's
subjective complaints soley on the basis of such personal
observations. Rather, in all cases in which pain is alleged, the
determination or decision rationale is to contain a thorough
discussion and analysis of the objective medical evidence and the
nonmedical [*9] evidence, including the individual's subjective
complaints and the adjudicator's personal observations. The
rationale is then to provide a resolution of any inconsistencies
in the evidence as a whole and set forth a logical explanation of
the individual's capacity to work.

The introductory statement to SSR 88-13 lists "weakness" as one of
the symptoms in the general discussion of pain.

Barstad testified:

A Depending on the amount of pain that I'm having, that really
decides my day. I can't really do anything for the first one to
two hours when I get up because there's something seriously wrong
with my feet since I tried working a few months ago. It hasn't
cleared up. We've tried letting it clear up by me just being off
my feet. So the past four months I've been totally off my feet unless
if I really have to do something. . . .

There's probably two days out of the week that I stay in bed
because that helps, helps my energy level. I have a lot of fatigue
with what's going on in my body, so I rest a lot.

TR 239. The Secretary is not required to believe testimony regarding
pain and may disregard this testimony entirely if the claimant does
not submit objective medical findings [*10] establishing a
medical impairment that could reasonably be expected to produce the
claimed pain. Green v. Heckler, 803 F.2d 528, 531 (9th Cir. 1986).

Barstad's subjective complaints were consistent with the
testimony of Dr. Stewart. Dr. Stewart stated that the disease of
fibromyalgia, one of the conditions which the ALJ found that
Barstad suffered from, is "terribly painful" and "one of the worst
diseases anybody can have." TR 263. "It's a disease of the tiny,
tiny, tiniest muscle fibers" that can cause severe pain in any of
the muscles of the body. TR 264. Dr. Stewart testified that the
only ways to relieve the pain are by resting, physical therapy,
water exercise, swimming, and non-corticoid type pain killers. Id.

Where there is evidence supporting a claimant's subjective
testimony regarding the effect of pain, the Secretary must make
specific findings justifying the decision to reject that testimony.
Gamer v. Secretary of Health & Human Servs., 815 F.2d 1275 (9th
Cir. 1987). The ALJ found that Barstad's testimony was
"basically credible, except insofar as she stated she was
incapacitated or incapable of working." [*11] TR 24. The ALJ
clearly rejected Barstad's conclusory statements that she was
incapacitated. However, the ALJ did not state whether he also
rejected Barstad's subjective complaints as to the pain and
fatigue caused by her condition. The ALJ erred in failing to reject
Barstad's testimony with the specificity required by Gamer and
SSR 88-13.

The ALJ was required to consider Barstad's subjective complaints
of pain and fatigue in making his determination as to Barstad's
capacity to work. See Martinez v. Heckler, 807 F.2d 771, 773
(9th Cir. 1986). The ALJ stated:

Although the claimant was unable to stand for four or five hours
continuously in her recent job, the claimant's current assessment of
her physical capabilities does not preclude sedentary work, provided
this work does not involve any of the activities such as climbing
described in Exhibit 25, does not involve respiratory irritants and
which also allows for a change of position hourly.

TR 23. In determining whether Barstad could return to her former
position as a general clerk, the ALJ failed to take into account
the testimony of Barstad as to how the fibrositis affects her
ability to work [*12] in terms of pain and fatigue.

Moreover, the ALJ failed to include in the hypothetical questions
posed to the vocational expert any of the limitations testified to
by Barstad. The hypothetical questions posed to the vocational
expert must set out all of the limitations and restrictions of the
claimant, including pain. Embrey v. Bowen, 849 F.2d 418 (9th Cir.
1988). If the assumptions of the vocational expert are incomplete
or lack support in the record, the vocational expert's opinion has no
evidentiary value. Gamer, 815 F.2d at 1279.

Upon remand, the ALJ must make specific findings to support his
rejection of the statements made by Barstad concerning her pain and
fatigue or consider the limitations described by Barstad in making
his determination as to whether she is entitled to benefits.

2. Benefits for a Closed Period

Barstad contends that the ALJ erred in failing to consider
whether she was disabled for a closed period of time lasting more
than twelve months. Barstad alleges that she became disabled on
October 17, 1989. The durational requirement is met if a claimant
suffers from an impairment or impairments that [*13] have lasted
or can be expected to last at least twelve contiguous months. 20
C.F.R. 416.905. If this durational requirement is met, then the
claimant should be awarded benefits for any time after the
protective filing date in which the condition or conditions are
so severe as to prevent a return to former work or preclude any
other substantial employment. If the condition improves or abates,
the claimant should be awarded benefits for a closed period.

The ALJ determined, based upon the reports of Dr. Nishio, that
the lupus which Bars tad suffered was "mild and fairly well
controlled," even during the time it was active. TR 22. Dr. Nishio,
the physician who diagnosed Barstad as having lupus, stated that she
could only support disability for a temporary period of six months
because Barstad did not have evidence of any major organ
involvement. TR 21. Dr. Byfield, Barstad's other treating
physician, suggested contact with Dr. Nishio for details regarding
Barstad's disability. Id. Barstad has not presented any evidence
to dispute the conclusion of Dr. Nishio regarding the temporary
severity of the lupus during this period. The decision of the ALJ
on this issue was supported by substantial [*14] evidence.

CONCLUSION

The decision of the Secretary is vacated, and this case is
remanded to the ALJ to make additional findings consistent with
this opinion.

DATED this 15th day of April, 1994.

HELEN J. FRYE

United States District Judge

ORDER

IT IS HEREBY ORDERED that the decision of the Secretary of Health
and Human Services is VACATED, and this case is REMANDED to the
Administrative Law Judge to make additional findings consistent with
the court's opinion of this date.

DATED this 15th day of April, 1994.

HELEN J. FRYE

United States District Judge

JUDGMENT

Based on the record,

The decision of the Secretary of Health and Human Services is
hereby VACATED, and this case is REMANDED to the Administrative Law
Judge to make additional findings consistent with the court's
opinion of this date.

DATED this 15th day of April, 1994.

HELEN J. FRYE

United States District Judge

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