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Peck v. Colvin

United States District Court, D. Oregon

March 4, 2015

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

Nancy J. Meserow, Law Office of Nancy J. Meserow, Portland, Oregon, Attorney for plaintiff.

S. Amanda Marshall, Adrian L. Brown, Ronald K. Silver, United States Attorney's Office, Portland, Oregon, Lars J. Nelson, Social Security Administration, Office of General Counsel, Seattle, Washington, Attorneys for defendant.


ANN AIKEN, Chief District Judge.

Plaintiff Karen Peck brings this action pursuant to the Social Security Act ("Act") to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiff's applications for Title II disability insurance benefits ("DIB") and Title XVI supplemental security income ("SSI"). For the reasons set forth below, the Commissioner's decision is reversed and this case is remanded for further proceedings.


On May 6, 2010, plaintiff applied for SSI and DIB. Tr. 160-72. Her applications were denied initially and upon reconsideration. Tr. 99-108, 111-17. On July 18, 2012, a hearing was held before an Administrative Law Judge ("ALJ"), wherein plaintiff was represented by counsel and testified, as did a vocational expert ("VE"). Tr. 29-47. On August 3, 2012, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 13-23. After the Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 1-5.


Born on November 22, 1976, plaintiff was 31 years old on the alleged onset date of disability and 35 years old at the time of the hearing. Tr. 33, 162, 169. Plaintiff graduated from high school. Tr. 33, 198. She worked previously as a cashier, deli worker, customer service representative, and photo lab operator. Tr. 43-44, 199. Plaintiff alleges disability as of April 30, 2008, due to anxiety, post-traumatic stress disorder ("PTSD"), and fibromyalgia. Tr. 162, 169, 197.


The 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. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, 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 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 person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1502, 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, the claimant is not disabled.

At step two, the Commissioner evaluates 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 the claimant does not have a severe impairment, she is not disabled.

At step three, the Commissioner determines whether the claimant's impairments, either singly or in combination, meet or equal "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 140-41; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant can work, she is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national and local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(g), 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.


At step one of the five step sequential evaluation process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 15. At step two, the ALJ determined plaintiff's anxiety and affective disorders were severe. Id. At step three, the ALJ found plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 16.

Because she did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff possessed the residual functional capacity ("RFC") to "perform a full range of work at all exertional levels" but "she should avoid concentrated exposure to noise" and "is limited to performing unskilled work and routine tasks that require no interaction with the public and only superficial interaction with co-workers but no close cooperation or coordination." Tr. 17.

At step four, the ALJ determined plaintiff could perform her past relevant work as a photo lab operator. Tr. 21. Alternatively, at step five, the ALJ found that plaintiff could perform a significant number of jobs existing in the national and local economy despite her impairments, such as industrial cleaner and motel cleaner. Tr. 22. Accordingly, the ALJ concluded that plaintiff was not disabled under the Act. Tr. 23.


Plaintiff argues that the ALJ erred by: (1) finding her not fully credible; (2) neglecting to include her fibromyalgia, psychotic disorder, and disc disease as medically determinable, severe impairments at step two; (3) rejecting medical evidence furnished by nurse practitioner David Theon and licenced counselor Erin Menczer, as well as John Adler, Ph.D., and Brian Frank, M.D.; (4) failing to account for all of her impairments in the RFC; and (5) relying on invalid VE testimony at steps four and five.

I. Plaintiff's Credibility

Plaintiff asserts that the ALJ failed to provide a clear and convincing reason, supported by substantial evidence, for rejecting her subjective symptom testimony concerning the severity of her impairments. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of... symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted).

A general assertion that the claimant is not credible is insufficient; the ALJ must "state which... testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the "ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

At the hearing, plaintiff testified that she is primarily unable to work due to "anxiety and the PTSD, and like hallucinations and that stuff." Tr. 35. She also testified to being paranoid "[a]ll the time" and obsessive compulsive about "germs and bugs, " such that she did not like to leave to house or "touch anything that other people touch." Tr. 39. In addition, plaintiff endorsed physical problems with "fibromyalgia and the IBS." Tr. 35. Plaintiff stated she was capable of dressing and driving herself, but that her mother had to help her in and out of the bathtub. Tr. 36. She reported engaging in limited household chores, such as cooking, laundry, and occasional grocery shopping, and independently taking care of her two youngest children; her parents took care of her oldest, disabled son because she could not "lift him in and out of the tub" or attend his various "school functions[, ...

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