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Jackson v. Colvin

United States District Court, D. Oregon, Portland Division

October 14, 2014

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

Kathryn Tassinari, Mark Manning, Harder, Wells, Baron & Manning, P.C., Eugene, Oregon, Attorneys for Plaintiff.

S. Amanda Marshall, United States Attorney, District of Oregon, Ronald K. Silver, Assistant United States Attorney, Portland, Oregon, Erin F. Highland, Special Assistant United States Attorney Office of the General Counsel Social Security Administration, Seattle, Washington, Attorneys for Defendant.


GARR M. KING, District Judge.

Plaintiff Lucille S. Jackson brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying plaintiff's application for disabled widow's benefits, disability insurance benefits ("DIB"), and supplemental security income benefits ("SSI"). I reverse the decision of the Commissioner and remand for further proceedings.


The Social Security Act (the "Act") provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security income benefits may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a).

The 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 cause death or to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for either DIB or SSI due to disability. The evaluation is carried out by the Administrative Law Judge ("ALJ"). The claimant has the burden of proof on the first four steps. Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ determines whether the claimant is engaged in "substantial gainful activity." If the claimant is engaged in such activity, disability benefits are denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a medically severe impairment or combination of impairments. A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied.

If the impairment is severe, the ALJ proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant performed in the past. If the claimant is able to perform work she performed in the past, the ALJ makes a finding of "not disabled" and disability benefits are denied. 20 C.F.R. §§ 404.1520(e), 416.920(e).

If the claimant is unable to perform work performed in the past, the ALJ proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his age, education, and work experience. The burden shifts to the Commissioner to show what gainful work activities are within the claimant's capabilities. Parra , 481 F.3d at 746. The claimant is entitled to disability benefits only if he is unable to perform other work. 20 C.F.R. §§ 404.1520(f), 416.920(f).


The court must affirm a denial of benefits if the denial is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue , 674 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" and is more than a "mere scintilla" of the evidence but less than a preponderance. Id . (internal quotation omitted). The court must uphold the ALJ's findings if they "are supported by inferences reasonably drawn from the record[, ]" even if the evidence is susceptible to multiple rational interpretations. Id.


The ALJ found Jackson had severe impairments of fibromyalgia syndrome, lumbar spine status post fusion with continued discogenic pain, carpal tunnel syndrome, anxiety disorder, narcotic dependence, psychogenic pain syndrome, depressive disorder not otherwise specified, borderline personality disorder, and obesity. The ALJ also found that these impairments, either singly or in combination, were not severe enough to meet or medically equal the requirements of any of the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1.

After reviewing the record, the ALJ found Jackson has the residual functional capacity to perform less than the full range of light work; lift and/or carry and push and/or pull 20 pounds occasionally and 10 pounds frequently; stand and/or walk six hours and sit six hours in an eight-hour day with normal breaks; never climb ladders, ropes, or scaffolds; occasionally perform all other postural activities such as balance, stoop, kneel, crouch, and crawl; avoid concentrated exposure to hazards, such as heights and dangerous moving machinery; remember work-like procedures and understand short and simple instructions; unable to understand or remember detailed instructions on a consistent basis; able to carry out short, simple instructions and make work-related decisions; would be limited to occasional interaction with co-workers as a result of her social phobia; complete a normal workday and workweek without the surfacing of any psychologically-based symptoms; ask questions and maintain socially appropriate behavior; accept instruction and respond to appropriate criticism; and to need less rather than more interpersonal contact, including with supervisors.

Based on vocational expert testimony, the ALJ found Jackson could work as a marker, housekeeping cleaner, or collator operator and, thus, was not disabled under the Act.


Jackson alleges she became disabled on March 10, 2008, [1] when she was 48 years old. She only completed the fifth grade but later earned a GED. Jackson worked as a companion, institutional cook, and domestic cook.

Jackson complains of severe migraines approximately twice a week, which make it difficult to function on some days, and pain in her hands, neck, hips, and between the shoulder blades. She can stand for 20 minutes; after doing any activity for 30 minutes, Jackson must lie down for 30 minutes to relieve the pain. Jackson takes two or three naps a day of 60 to 90 minutes each. She took methadone for pain relief for years but started tapering off in July 2011. The methadone does not completely resolve her pain but allows her to take a bath and move around her apartment. She completes her household chores such as cooking, washing dishes, or tidying up by working for a few minutes, sitting and resting, and returning to the task. Her adult children do all of the shopping.

Jackson also complains of mental symptoms, including confusion, anxiety, panic attacks, and depression. Physical abuse by her parents and husbands caused Jackson to become increasingly frightened around people. She has little to no social contact other than with her children and grandchildren.


I. Jackson's Credibility

Jackson claims the ALJ failed to give clear and convincing reasons for rejecting her testimony.

I decline to accept the Commissioner's invitation to apply agency rules which do not require clear and convincing reasons to reject a claimant's testimony, when that would be contrary to Ninth Circuit precedent. Garrison v. Colvin , 759 F.3d 995, 1015 & n.18 (9th Cir. 2014) (rejecting the government's suggestion to apply a lesser standard than clear and convincing). The law in this Circuit is explained as follows:

In assessing the credibility of a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis. First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged. If the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.

Molina , 674 F.3d at 1112 (internal quotations and citations omitted).

The ALJ gave several reasons for discrediting Jackson. He found the objective medical evidence did not support the severity of symptoms Jackson claimed. The ALJ considered Jackson's fibromyalgia diagnosis and Dr. Ramchandani's examination finding that Jackson was positive for 17 out of 18 fibromyalgia tender points and had some reduced range of motion, even though there was no formal fibromyalgia assessment utilizing the American College of Rheumatology guidelines. Nevertheless, the ALJ interpreted the vast majority of the physical examinations in the record as essentially normal, including straight leg-raising test, gait, ...

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