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Henderson v. Colvin

United States District Court, D. Oregon, Portland Division

April 7, 2015

KRISTINA M. HENDERSON, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION AND ORDER

PAUL PAPAK, Magistrate Judge.

Plaintiff Kristina M. Henderson filed this action July 15, 2013, seeking judicial review of the Commissioner of Social Security's final decision denying her applications for supplemental security income ("SSI") under Title XVI of the Social Security Act (the "Act") and for disability insurance benefits under Title II. This court has jurisdiction over plaintiff's action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).

Henderson argues that by erroneously rejecting medical evidence and erroneously rejecting her testimony regarding the extent of her impairments, the Commissioner failed properly to assess her residual functional capacity after completing step three of the five-step sequential process for analyzing a Social Security claimant's entitlement to benefits, and for that reason erred by finding Henderson capable of performing work as a candy maker helper, laundry helper, and hand packager at step five of the process.

I have considered all of the parties' briefs and all of the evidence in the administrative record. For the reasons set forth below, the Commissioner's decision is affirmed.

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. § 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. § 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. §§ 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 140-141; see also 20 C.F.R. § 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. § 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. § 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. §§ 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 153-154. "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 the relevant medical and other 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(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©, 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.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. A claimant will be found entitled to benefits ifthe Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.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 ifthe 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 of Soc. Sec. Admin., 359 F.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 F.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc. Sec. Admin., 466 F.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., quoting 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, 466 F.3d at 882; see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Moreover, the court may not rely upon its own independent findings of fact in determining whether the ALJ's findings are supported by substantial evidence of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). 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 f.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).

SUMMARY OF ADMINISTRATIVE RECORD[2]

Henderson was 32 at the time of the hearing. Tr. 51.[3] She attended school through the ninth grade, and has received no subsequent formal education or vocational training. Id. According to the evidence of record, prior to her claimed amended disability onset date of May 18, 2009, Henderson had no substantial gainful activity.

The medical record is extensive. The medical records for the year prior to the alleged onset date and the year after the alleged onset date are summarized below.

On April 1, 2008, Plaintiff reported to Donald McFerran, P.M.H.N., that she was diagnosed with ADHD and bipolar disorder at age 12. She stated she had been off drugs for 12 years and alcohol for two years. Tr. 783. Plaintiff reported being raped three times since leaving high school, and sexually abused as a child. Id. Nurse McFerran noted Plaintiffs cognition was clear, she was not delusional or paranoid, and she had not cut herself since she was a teenager. Nurse McFerran assessed PTSD, ADHD, and probable bipolar disorder, and prescribed Adderall. By April 15, 2008, Plaintiff reported she was calmer, able to do chores, and less irritable on Adderall. Nurse McFerran increased the Adderall. Tr. 782. On May 27, 2008, Plaintiff reported "doing much better, " and Nurse McFerran added seroquel for insomnia and lamictal. Tr. 781.

On June 10, 2008, Plaintiff reported she had taken lamictal and had severe pain, tremors, anxiety, and desperation. Nurse McFerran noted "[s]he is angry and hinting at suicide if she doesn't begin to feel better soon." Tr. 780. Plaintiff was told to stop taking lamictal. Nurse McFerran assessed attention deficit disorder without hyperactivity, noting "[r]emarkable response I am concerned that there is another cause, rather than lamictal." Id.

On June 11, 2008, Plaintiff was seen in the emergency room for right foot pain. Tr. 526-27. She did not know how she hurt her foot. An xray showed no fracture though there was a cyst in the distal fibular head. Plaintiff was given 12 Percocet.

On June 16, 2008, Plaintiff was seen in the emergency room for right ankle and foot pain. Plaintiff said she injured the ankle while sleepwalking six days prior. Tr. 511. There was some tenderness and swelling, and Plaintiff was prescribed Percocet for right ankle sprain. Tr. 512. Two days later Plaintiff returned to the emergency room, was placed in an ankle sprint, and referred to her doctor, Richard Bolt, M.D. Tr. 779. Dr. Bolt saw slight swelling of the toes and "small areas of bruising" on the foot, Plaintiff was "extremely tender to light touch laterally on the foot and ankle and diffusely about the foot and ankle, " and "seems to be in significant pain. Id. Dr. Bolt referred her to an orthopedist and prescribed 20 Percocet. A June 23, 2008, xray showed a lesion in the distal right fibula. Tr. 487.

On July 8, 2008, Nurse McFerran noted Plaintiff was "calmer, " and was waiting for surgery to remove a cyst in her ankle. Tr. 778. He stated Adderall "is still working, but fading out at different times of the day." Id.

On August 11, 2008, Plaintiff had an open reduction internal fixation right fibula bone tumor removed with bone graft. Tr. 426. By August 22 her pain was decreasing and she was to discontinue Oxycontin and start Percocet. Tr. 414.

On September 11, 2008, James R. Verheyden, M.D., examined Plaintiff for left thumb pain. Tr. 957-58. She had pinched her thumb in her wheelchair a couple of days prior, and the pain was "exquisite" with sharp burning and throbbing. Tr. 957. Dr. Verheyden noted Plaintiff was "quite frustrated and angry" and continuously tapped the ground with her left foot. Id. Plaintiff was missing a small piece of skin from her thumb, about 2 × 3 millimeters in size, with superficial skin loss, scabbed over with no drainage or sign of infection. Dr. Verheyden stated Plaintiffs nerves appeared to be significantly flared up, she was "very angry" and "appears quite anxious and distressed." Tr. 958. He recommended massaging the area to desensitize the nerves, and Plaintiff "is adamant that she is not going to touch her finger, as she is still in pain from her right ankle surgery.... The patient refuses to touch her finger and states she cannot believe how she is being treated." Id.

At a September 16 surgical follow up Plaintiff reported some ache but the pain was tolerable and she was not taking pain medication. Tr. 412. On September 22 Plaintiff was seen in the emergency room for pain behind the right knee persisting for six days. Tr. 638. At a physical therapy appointment on September 29 Plaintiff had significant muscle wasting of her right calf. Tr. 406.

Plaintiff was seen in the emergency room on October 13, 2008, for hip and back pain radiating into her neck after she "blacked out and fell into [the] metal border of [her] bed" four days prior. Tr. 627. She refused to give a urine sample, and "was focused on pain meds in spite of having [symptoms]" four days." Tr. 628. Xrays of the lumbar spine, pelvis, and hand were normal. Tr. 631-37. At an October 22 surgical follow up, Michael C. Dennis, P.A.C., noted mild swelling and pain "somewhat out of proportion to the exam." Tr. 409. She had a full range of motion and was advised to work on weight bearing to ease her symptoms. Physician's Assistant Dennis noted she might require a referral to pain management. Tramadol was prescribed.

On October 31, 2008, Plaintiff was seen in the emergency room for pelvic pain, refused pelvic examination, and was prescribed Darvocet. Tr. 619-20. On November 29, Plaintiff was seen in the emergency room for two days of acute ankle pain. Tr. 610. There was a little bit of swelling, she was to be ...


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