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Torrey v. Colvin

United States District Court, D. Oregon

November 4, 2014

LINDA M. TORREY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION AND ORDER

PAUL PAPAK, Magistrate Judge.

Plaintiff Linda M. Torrey filed this action on August 8, 2013, seeking judicial review of the Commissioner of Social Security's final decision denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"). This court has jurisdiction over plaintiff's action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). I have considered the parties' briefs and the evidence in the administrative record. For the reasons set forth below, the Commissioner's decision is reversed and the matter is remanded for further proceedings.

DISABILITY ANALYSIS FRAMEWORK

To establish disability within the meaning of the Act, 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). The Commissioner has established a five-step sequential process for determining whether a claimant has made the requisite demonstration. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At the first four steps of the process, the burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

At the first step, the Administrative Law Judge considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will proceed to the second step.

At the second step, the ALJ considers the medical severity of the claimant's impairments. See Bowen, 482 U.S. at 140-41; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is "severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to perform basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1521(b), 416.921(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii), 416.920(c). Nevertheless, it is well established that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996), citing Bowen, 482. U.S. at 153-54. "An impairment or combination of impairments can be found not severe' only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual[']s ability to work." Id., quoting S.S.R. 85-28, 1985 SSR LEXIS 19 (1985).

If the claimant's impairments are severe, the evaluation will proceed to the third step, at which the ALJ determines whether the claimant's impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d).

If the claimant's impairments are not equivalent to one of the enumerated impairments, between the third and the fourth steps the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all of the relevant evidence in the claimant's case record. See 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related physical and/or mental activities on a regular and continuing basis, [1] despite the limitations imposed by the claimant's impairments. See 20 C.F.R. §§ 404.1545(a), 416.945(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996).

At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable of performing his or her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden of proof shifts, for the first time, to the Commissioner.

At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's age, education, and work experience to determine whether a person with those characteristics and RFC could perform any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner meets her burden to demonstrate the existence in significant numbers in the national economy of jobs capable of being performed by a person with the RFC assessed by the ALJ between the third and fourth steps of the five-step process, the claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.P.R.§§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits if the Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.P.R.§§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).

LEGAL STANDARD

A reviewing court must affirm an Administrative Law Judge's decision if the ALJ applied proper legal standards and his or her findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); see also Batson v. Comm'r for Soc. Sec. Admin., 359 P.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 P.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc. Sec. Admin., 466 P.3d 880, 882 (9th Cir. 2006).

The court must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id., citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of the Commissioner. See id., citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); see also Edlund v. Massanari, 253 P.3d 1152, 1156 (9th Cir. 2001). If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible [of] more than one rational interpretation." Magallanes v. Bowen, 881 P.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).

BACKGROUND

Linda Torrey was born May 9, 1956. Tr. 23, 95, 151.[2] She attended school through the tenth grade, received average grades, attended no special education classes, did not receive her GED, [3] and has received no subsequent formal education or vocational training. Tr. 66, 364, 429, 499. According to the evidence of record, Torrey worked full-time as a cook for various restaurants between 1994 and 2003. Tr. 12, 156-61, 200, 364, 499-500. She then worked as a housekeeper for Phoenix Inn from 2003 through 2006, prior to her claimed disability onset date of January 4, 2006. Torrey was fired in January 2006 for her alleged involvement "in a scheme to get a reward for a ring she had found in a room." Tr. 499; Tr. 67-68, 85, 173, 200, 206, 364. Torrey has been unemployed since her claimed disability onset date. Tr. 67, 222, 364, 499-500.

The earliest medical record appearing in the administrative record is a report from February 23, 2005, when Torrey sought emergency treatment for persistent chest pains that began after she lifted a heavy mattress in the course of her work at the Phoenix Inn. Tr. 262. A treatment in April 2005 revealed lesions related to cervical intraepithelial neoplasia ("CIN"). Tr. 233-44. Follow-up on that examination in July 2005 by Dr. Martha Kim resulted in surgery to remove Torrey's lesions, as well as a recommendation for further surgery. Tr. 308, 312-13. In the course of her discussions with Dr. Kim during that treatment, Torrey revealed issues with anxiety, sleep loss, and depression. Tr. 316.

Subsequent reports in 2005, dated July through December, document Torrey's medical treatment for four separate abscesses resulting from her heroin use. Tr. 247, 252, 255, 259, 316.

In January 2006, Dr. Kim conducted additional examinations that revealed further signs of CIN and invasive cancer cells. Tr. 304. Dr. Kim determined that Torrey required a vaginal hysterectomy, which was conducted on March 20, 2006. Tr. 279. In May 2006, Dr. Audrey Ganett revealed to Torrey that post-surgery pathology reports shoed no evidence of persistent or residual cancer. Tr. 275.

In February 2007, Torrey sought a routine physical examination from Dr. Kim, who noted that Torrey was incredibly thin and was using morphine multiple times per week. Tr. 301-02. Torrey reported feeling depressed and constantly sick. Tr. 302. In her report, Dr. Kim mentions concerns over polydipsia, polyphagia, and polyuria, the three hallmark symptoms of diabetes. Tr. 303.

In June 2007, Torrey visited an urgent care clinic seeking treatment for an abscess from which she had suffered for three months, but claimed she did not use heroin during that period. Tr. 292.

In February 2008, Torrey visited Dr. Kim seeking treatment for inguinal lymph node inflamation. Tr. 299. Dr. Kim reported that Torrey gained weight and had not used heroin for one year. Id. At that point, Torrey was living with her elderly parents. Id.

In November 2008, Torrey sought treatment for recurring acute headaches that began during a period of straining. Tr. 390. The treating physician noted that Torrey's affliction was possibly a prolonged sinus infection or cluster headaches, and he informed her of the potentially serious problems relating to each. Tr. 391. After the physician ordered a CT scan, however, Torrey left through the office's backdoor and did not return. Id.

In February 2009, Torrey once again visited Dr. Kim, this time seeking treatment related to bi-weekly headaches. Tr. 296. Dr. Kim tentatively diagnosed Torrey with cluster headaches and indicated that Torrey reported she was not using illicit drugs. Id.

In 2009, Torrey sought treatment on three separate occasions between July and December for various abscesses. Tr. 356, 375, 379. Two medical reports state that Torrey denied recent drug use. Tr. 375, 379. A third report states that her social history was positive for illicit drug use, yet is unclear as to her use status at the time. Tr. 356. The administrative record contains no other medical records dating from prior to Torrey's application for disability insurance benefits.

On January 12, 2010, Torrey protectively filed applications for both DIB and SSI. Tr. 144-55. Her alleged disability onset date was January 2006 and she listed uterine cancer, pain, depression, and anxiety as ...


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