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Sailors v. Colvin

United States District Court, D. Oregon

November 7, 2014

SHERRY KAY SAILORS, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.

OPINION AND ORDER

MICHAEL J. McSHANE, District Judge.

Plaintiff Sherry Kay Sailors brings this action for judicial review of the Commissioner's decision denying plaintiff's application for disability insurance benefits. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

Plaintiff seeks benefits as of April 26, 2011 from disability resulting from figromyalgia, back pain, and irritable bowel syndrome. The administrative law judge (ALJ) determined plaintiff is not disabled. TR 30.[1] Plaintiff argues that the ALJ erred by failing to give the opinions of Doctor Tihanyi and Family Nurse Practitioner Harlan appropriate weight, failing to credit the lay evidence, and in finding plaintiff not credible. Plaintiff moves to remand this action for a determination of benefits. The Commissioner agrees the ALJ erred in failing to consider plaintiff's cervical spinal condition, but argues remand for further proceedings is appropriate as most of the ALJ's findings were supported by the record and free of legal error. Because the ALJ failed to give the medical opinions of plaintiff's treating physician and family nurse practitioner controlling weight, the ALJ's decision is REVERSED. Because the medical opinions, when credited as true, would require the ALJ to conclude plaintiff is in fact disabled under the Act, this matter is REMANDED for a determination of benefits.

STANDARD OF REVIEW

The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, the court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).

DISCUSSION

The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (RFC), age, education, and work experience. Id.

At step two, the ALJ found that plaintiff's fibromyalgia and degenerative disc disease qualify as severe impairments. TR 21. The ALJ found that plaintiff's irritable bowel syndrome and depression were non-severe impairments. TR 21-22.

At step three, the ALJ determined that none of the plaintiff's impairments, alone or in combination, met or medically equaled one of the listed impairments in 20 C.F.R. § 404, subpt. P, app. 1. TR 23. The ALJ found that plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), TR 23-29, and that plaintiff could perform her past relevant work as a receptionist, TR 29. Therefore, the ALJ concluded that plaintiff was not disabled as defined by the Social Security Act.

As noted, plaintiff argues the ALJ erred in not giving the opinions of Dr. Tihanyi and Nurse Harlan the appropriate weight. Specifically, plaintiff argues the ALJ erred in not giving the opinions expressed in questionnaires provided by plaintiff's attorney controlling weight.

In June 2012, Nurse Harlan filled out the questionnaire. TR 661-665. Nurse Harlan stated plaintiff could stand and/or walk up to thirty minutes at a time, for at least two hours total per eight-hour workday. TR 662. Nurse Harlan opined plaintiff could sit for about two hours per workday, TR 662, and could not maintain employment due to varying levels of severe pain and lack of stamina, TR 663. Nurse Harlan noted her belief that plaintiff was credible and, in Nurse Harlan's opinion, last able to maintain employment in April 2011, when plaintiff last worked. TR 665.

Dr. Tihanyi agreed with all of Nurse Harlan's opinions and added:

Patient has been a hard worker all her life and I do not feel she is exaggerating her symptoms or limitations.
If patient could work on a part-time basis only on days she feels better she may be able to manage this, but her symptoms are too variable and ...

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