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Scott v. Colvin

United States District Court, D. Oregon

March 18, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Lisa R.J. Porter, Portland, OR, Attorney for Plaintiff.

S. Amanda Marshall, U.S. Attorney's Office, District of Oregon, Portland, OR, Heather L. Griffith, Office of the General Counsel, Social Security Administration, Seattle, WA, Attorneys for Defendant.


MARCO A. HERNANDEZ, District Judge.

Plaintiff Tammy Renee Scott brings this action for judicial review of the Commissioner's final decision denying her application for Supplemental Security Income under Title XVI of the Social Security Act and for Disability Insurance Benefits under Title II of the Social Security Act. I have jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). For the following reasons, I reverse the Commissioner's decision and remand for additional proceedings.


Plaintiff was born in 1966 and was 40 years old at the alleged onset of disability. Tr. 222. She completed a General Educational Development (GED) test and some college and reports past work as a caregiver and cashier. Tr. 63, 262, 267. Plaintiff alleged disability since March 31, 2006 due to cervical cancer, chronic obstructive pulmonary disease, post-traumatic stress syndrome (PTSD), memory problems, myocardial problems, high blood pressure, urinary problems, two previous heart attacks, hearing problems, leg problems, migraines, cramping pain, anxiety attacks, panic attacks, and depression. Tr. 94, 261.

The Commissioner denied her application initially and upon reconsideration, and an Administrative Law Judge ("ALJ") held a hearing on July 8, 2011. Tr. 38-90, 131-40, 144-50. The ALJ held a supplemental hearing on October 5, 2011. Tr. 91-115. The ALJ found Plaintiff not disabled on October 21, 2011. Tr. 18-31. The Appeals Council denied review of the matter on January 23, 2013, making the ALJ's decision the final decision of the Commissioner. Tr. 1-3.


A claimant is disabled if unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A).

Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r , 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, the agency uses a five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert , 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert , 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

In step three, the Commissioner determines whether the impairment meets or equals "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert , 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert , 482 U.S. at 141.

In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity ("RFC") to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert , 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.


At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her alleged onset date through her date of last insured. Tr. 23. At step two, the ALJ found Plaintiff's uterine cancer, chronic pain, depressive disorder, and amphetamine dependence (in remission) to be "severe" impairments. Id . At step three, the ALJ found that the impairments, singly or in combination, did not meet or equal a listed impairment. Tr. 24. The ALJ assessed Plaintiff's RFC and concluded that she could perform "light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: occasionally climb, stoop, crouch, crawl, and kneel; no concentrated exposure to noxious fumes and odors; perform only simple, entry level work; and occasional public interaction." Tr. 25. At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. Tr. 30. At step five, the ALJ found there were jobs existing in the national economy in sufficient numbers that Plaintiff can perform. Id . The ALJ therefore found Plaintiff not disabled. Tr. 31.


The reviewing court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r , 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence" means "more than a mere scintilla, but less than preponderance." Bray v. Comm'r , 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala , 53 F.3d 1035, 1039 (9th Cir. 1995)). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id.

This court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue , 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater , 157 F.3d 715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the Commissioner. Id . (citing Robbins v. Soc. Sec. Admin. , 466 F.3d 880, 882 (9th Cir. 2006)); see also Edlund v. Massanari , 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading. Id .; see also Batson , 359 F.3d at 1193. However, this court cannot now rely upon reasoning the ALJ did not assert in affirming the ALJ's findings. Bray , 554 F.3d at 1225-26 (citing Sec. & Exch. Comm'n v. Chenery Corp. , 332 U.S. 194, 196 (1947)); see also Connett v. Barnhart , 340 F.3d 871, 874 (9th Cir. 2003) (citing same).


Plaintiff argues that the ALJ made the following errors: 1) improperly found that Plaintiff was not credible; 2) improperly discounted lay witness testimony; 3) improperly evaluated medical testimony; 4) failed to properly discuss Plaintiff's activities of daily living ("ADLs"); and 5) presented an invalid hypothetical to the vocational expert ("VE").

I. Plaintiff's Credibility

The ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms "have limited credibility." Tr. 26, 27. The ALJ is responsible for determining credibility. Vasquez v. Astrue , 572 F.3d 586, 591 (9th Cir. 2009). Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r , 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes objective medical evidence establishing that the claimant suffers from an ...

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