United States District Court, D. Oregon
ARTHUR WILBER STEVENS, III, Medford, OR, Attorneys for Plaintiff.
S. AMANDA MARSHALL, United States Attorney, ADRIAN L. BROWN, Assistant United States Attorney, RONALD K. SILVER, Assistant United States Attorney, Portland, OR, DAVID MORADO, Regional Chief Counsel, KATHRYN ANN MILLER, Special Assistant United States Attorneys Social Security Administration, Seattle, WA, Attorneys for Defendant.
OPINION AND ORDER
ANNA J. BROWN, District Judge.
Plaintiff Connie Jo Frazier seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act) and Supplemental Security Income (SSI) under Title XVI of the Act.
This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Following a thorough review of the record, the Court REVERSES the Commissioner's final decision and REMANDS this matter.
Plaintiff filed her applications for DIB and SSI on March 10, 2006. Tr. 19. Her applications were denied initially and on reconsideration. An Administrative Law Judge (ALJ) held a hearing on August 13, 2009. Tr. 94. At the hearing Plaintiff was represented by an attorney. Plaintiff, Janice Frazier (Plaintiff's mother), and a vocational expert (VE) testified at the hearing. Tr. 95.
The ALJ issued a decision on September 25, 2009, in which he found Plaintiff is not entitled to benefits. Tr. 146. The Appeals Council, however, reversed and remanded the matter back to the ALJ for further consideration of medical testimony and Plaintiff's mental impairments. Tr. 149-50.
On remand an ALJ held a second hearing on November 18, 2011. Tr. 39. At the hearing Plaintiff was represented by an attorney. Plaintiff, Plaintiff's mother, and a VE testified at the hearing. Tr. 40.
The ALJ issued a decision on December 28, 2011, in which he once again found Plaintiff is not entitled to benefits. Tr. 32. That decision became the final decision of the Commissioner on May 29, 2013, when the Appeals Council denied Plaintiff's request for review. Tr. 1-3.
Plaintiff was born on April 4, 1965, and was 46 years old on the date of the hearing. Tr. 45, 98. Plaintiff graduated from college with a Bachelor of Arts in public relations. Tr. 45. Plaintiff has prior relevant work experience as a secretary, legal secretary, general clerk, appointment clerk, and customer-service representative. Tr. 84-85.
Plaintiff alleges disability since August 1, 2003, due to "[c]hronic nerve pain, " lower-back pain, fibromyalgia, and seizures. Tr. 237, 276.
Except when noted, Plaintiff does not challenge the ALJ's summary of the medical evidence. After carefully reviewing the medical records, this Court adopts the ALJ's summary of the medical evidence except where noted. See Tr. 24-28.
The initial burden of proof rests on the claimant to establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). To meet this burden a claimant must demonstrate her inability "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). The ALJ must develop the record when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). See also Brewes v. Comm'r, 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Molina, 674 F.3d. at 1110-11 (quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). It is "more than a mere scintilla" of evidence but less than a preponderance. Id. (citing Valentine, 574 F.3d at 690).
The ALJ is responsible for determining credibility, resolving conflicts in the medical evidence, and resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even when the evidence is susceptible to more than one rational interpretation, the court must uphold the Commissioner's findings if they are supported by inferences reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The court may not substitute its judgment for that of the Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).
I. The Regulatory Sequential Evaluation
Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act. Keyser v. Comm'r of Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). See also Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520, 416.920. Each step is potentially dispositive.
At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). See also Keyser, 648 F.3d at 724.
At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairment or combination of impairments. Stout v. Comm'r Soc. Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). See also 20 C.F.R. § 416.920(a)(4)(ii); Keyser, 648 F.3d at 724.
At Step Three the Commissioner must determine whether a claimant's impairments meet or equal one of the listed impairments and are so severe that they preclude substantial gainful activity. The claimant is disabled if the Commissioner determines the claimant's impairments meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii). See also Keyser, 648 F.3d at 724. The criteria for the listed impairments, known as Listings, are enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must assess the claimant's residual functional capacity (RFC). The claimant's RFC is an assessment of the sustained, work-related physical and mental activities the claimant can still do on a regular and continuing basis despite his limitations. 20 C.F.R. §§ 404.1520(e), 416.920(e). See also Social Security Ruling (SSR) 96-8p. "A regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule." SSR 96-8p, at *1. In other words, the Social Security Act does not require complete incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The assessment of a claimant's RFC is at the heart of Steps Four and Five of the sequential analysis when the ALJ is determining whether a claimant can still work despite severe medical impairments. An improper evaluation of the claimant's ability to perform specific work-related functions "could make the difference between a finding of disabled' and not disabled.'" SSR 96-8p, at *4.
At Step Four the claimant is not disabled if the Commissioner determines the claimant retains the RFC to perform work she has done in the past. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine whether the claimant is able to do any other work that exists in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here the burden shifts to the Commissioner to show a significant number of jobs exist in the national economy that the claimant can perform. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). The Commissioner may satisfy this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines set forth in the regulations at 20 C.F.R. part 404, subpart P, appendix 2. If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).
At Step One the ALJ found Plaintiff has not engaged in substantial gainful activity since March 15, 2010, her application date. Tr. 22.
At Step Two the ALJ found Plaintiff has the severe impairments of degenerative disc disease of the cervical spine, "status post fusion"; degenerative disc disease of the lumbar spine, "status post laminectomy"; fibromyalgia; histrionic personality disorder with dependent features; "status post ulnar nerve transposition"; pseudoseizures; depression, mild; pain disorder; and obesity. Tr. 22.
At Step Three the ALJ found Plaintiff's impairments do not meet or equal the criteria for any impairment in the Listing of Impairments. Tr. 22-23. In his RFC assessment the ALJ found Plaintiff has the functional capacity to
lift and carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk for six hours per eight-hour work day, and sit for six hours per eight-hour work day. She can perform no more than frequent kneeling and climbing ramps or stairs, and she can perform no more than occasional balancing, stooping, crouching, crawling, and climbing ladders, ropes, or scaffolds. The claimant should avoid continuous use of her right arm and hand. She is limited to occasional overhead lifting and reaching bilaterally. She has no visual or communicative limitations. Due to her orthopedic conditions, the claimant should avoid concentrated exposure to vibrations, and she should avoid hazardous, dangerous machinery or unprotected heights due to medication. The claimant is limited to remembering, carrying out, and performing out [sic] simple instructions and tasks. She should [not] perform work that requires close interaction with the general public, but she is capable of casual contact.
At Step Four the ALJ found Plaintiff is unable to perform any past relevant work. Tr. 30.
At Step Five, however, the ALJ found Plaintiff could perform jobs that exist in significant numbers in the national economy such as a job as a label coder, bottling-line attendant, or garment sorter. Tr. 31. Accordingly, the ALJ found Plaintiff is not disabled and, therefore, is not entitled to benefits. Tr. 32.
Plaintiff contends the ALJ erred by (1) failing to follow the remand order from the Appeals Council; (2) rejecting Plaintiff's testimony; (3) discounting the medical opinions of Peter LeBray, Ph.D., David R. Truhn, Psy.D., and Kenneth P. Butters, M.D.; (4) discrediting the lay-witness testimony of Janice Frazier, Carol Kilgore, and Mary J. Willis; (5) failing to consider the combined effects of Plaintiff's impairments in the RFC; (6) failing to consult a medical expert concerning Plaintiff's remote alleged onset date; and (7) posing an inadequate hypothetical to the VE.
I. Compliance with Appeals Council Remand Order
Plaintiff contends the ALJ failed to comply with the Appeals Council's remand order because the ALJ failed to take further action to ...