United States District Court, D. Oregon, Portland Division
SHEILA M. DOOHAN EARHART, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
Max Rae, Salem, Oregon, Attorney for Plaintiff.
S. Amanda Marshall, United States Attorney, District of Oregon, Ronald K. Silver, Assistant United States Attorney, Portland, Oregon, Thomas M. Elsberry Special Assistant Untied States Attorney, Office of the General Counsel, Social Security Administration, Seattle, Washington, Attorney for Defendant.
OPINION AND ORDER
GARR M. KING, District Judge.
Plaintiff Sheila M. Doohan Earhart brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner denying plaintiff's application for disability insurance benefits ("DIB"). I reverse the decision of the Commissioner and remand for a finding of disability.
The Social Security Act (the "Act") provides for payment of disability insurance benefits to people who have contributed to the Social Security program and who suffer from a physical or mental disability. 42 U.S.C. § 423(a)(1). In addition, under the Act, supplemental security income benefits may be available to individuals who are age 65 or over, blind, or disabled, but who do not have insured status under the Act. 42 U.S.C. § 1382(a).
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 cause death or to last for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual will be determined to be disabled only if his physical or mental impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner has established a five-step sequential evaluation process for determining if a person is eligible for either DIB or SSI due to disability. The evaluation is carried out by the Administrative Law Judge ("ALJ"). The claimant has the burden of proof on the first four steps. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007); 20 C.F.R. §§ 404.1520 and 416.920. First, the ALJ determines whether the claimant is engaged in "substantial gainful activity." If the claimant is engaged in such activity, disability benefits are denied. Otherwise, the ALJ proceeds to step two and determines whether the claimant has a medically severe impairment or combination of impairments. A severe impairment is one "which significantly limits [the claimant's] physical or mental ability to do basic work activities." 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment or combination of impairments, disability benefits are denied.
If the impairment is severe, the ALJ proceeds to the third step to determine whether the impairment is equivalent to one of a number of listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled. If the impairment is not one that is presumed to be disabling, the ALJ proceeds to the fourth step to determine whether the impairment prevents the claimant from performing work which the claimant performed in the past. If the claimant is able to perform work she performed in the past, the ALJ makes a finding of "not disabled" and disability benefits are denied. 20 C.F.R. §§ 404.1520(e), 416.920(e).
If the claimant is unable to perform work performed in the past, the ALJ proceeds to the fifth and final step to determine if the claimant can perform other work in the national economy in light of his age, education, and work experience. The burden shifts to the Commissioner to show what gainful work activities are within the claimant's capabilities. Parra, 481 F.3d at 746. The claimant is entitled to disability benefits only if he is unable to perform other work. 20 C.F.R. §§ 404.1520(f), 416.920(f).
STANDARD OF REVIEW
The court must affirm a denial of benefits if the denial is supported by substantial evidence and is based on correct legal standards. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" and is more than a "mere scintilla" of the evidence but less than a preponderance. Id. (internal quotation omitted). The court must uphold the ALJ's findings if they "are supported by inferences reasonably drawn from the record[, ]" even if the evidence is susceptible to multiple rational interpretations. Id.
THE ALJ'S DECISION
The ALJ found Earhart has severe impairments of degenerative disc disease, obesity, right shoulder rotator cuff tear post repair, fibromyalgia, depression, and anxiety. The ALJ also found that these impairments, either singly or in combination, are not severe enough to meet or medically equal the requirements of any of the impairments listed in 20 C.F.R. § 404, Subpart P, Appendix 1. After reviewing the record, the ALJ concluded Earhart has the residual functional capacity to perform light work except she can only occasionally climb ladders, ropes and scaffolds, crawl, and reach overhead; she can frequently climb ramps and stairs, balance, stoop, kneel, and crouch; she should avoid concentrated exposure to vibration; she is able to perform unskilled work and routine tasks; and she is able to have superficial interaction with the general public. Based on vocational expert testimony, the ALJ found that prior to September 1, 2011, Earhart could work as an office helper and clerical collator and, thus, is not disabled under the Act. As of September 1, 2011, however, the ALJ changed Earhart's age category from "closely approaching advanced age" to "advanced age." With the change in age category, Medical Vocational Rule 202.06 directed a finding of disabled. The ALJ found Earhart became disabled on September 1, 2011 and remained disabled through the date of his decision. Earhart challenges the conclusion she was not disabled between April 14, 2009 and September 1, 2011.
Earhart alleges she became disabled on April 14, 2009, when she was 52 years old, due to fibromyalgia pain, fatigue, and mental impairments. She has an associate degree in criminal justice and a certificate in paralegal studies. Earhart most recently held several administrative jobs for the Oregon judicial department, and worked earlier as an airline reservations agent and a legislative office administrative assistant. She had three different jobs for the Oregon judicial department. Because of her worsening symptoms, each succeeding job had less demanding duties and fewer hours per week.
When Earhart was still working, she had a panic attack nearly every day. After she stopping working in 2009, the frequency decreased to about once a week, usually precipitated by anticipation of a social situation. She often has to cancel plans to leave home because of panic attacks. The depression causes Earhart to feel like she is in a situation with no hope. She claims to have no focus and must re-read passages multiple times. Her cognitive problems caused Earhart to switch from reading books to reading magazines. Earhart's husband took over billpaying for the family because she was making too many mistakes. At the time of the hearing, she was seeing a psychologist once a week and taking medication.
Earhart complains of constant aching, stabbing, stinging, cramping pain throughout her body when sitting, lying down, or walking. She has trouble holding things without dropping them. Earhart has no pain one or two days a month.
Earhart's husband does most of the cooking, laundry, shopping, and cleaning. Earhart spends her day by reading, keeping in touch with friends by email, talking to family on the phone, eating dinner with her husband and watching television with him. She does some cleaning in short bursts, resting in between. She belongs to weekly Bible study and art groups but only attends each about once every six weeks because of pain and exhaustion. Earhart tries to attend church every week but had missed four out of the last six weeks prior to the hearing. Once or twice a week she is in too much pain to shower. Earhart naps at least twice a day to deal with severe fatigue.
I. Lay Testimony
Earhart's husband filled out a Function Report on December 10, 2009 stating that Earhart's typical day included watching television, eating meals, talking with her husband, taking one or two naps a day, and occasionally going to a doctor's appointment. The husband reported he does the shopping, cooking, cleaning, and laundry; any tasks Earhart attempts take her twice the usual time to complete. At the hearing on June 27, 2012, the husband testified that his wife had deteriorated quite a bit in the last few years, to the point he retired as a police officer to help around the house. The husband observed concentration and memory problems in Earhart. He often has to remind Earhart to do something, such as write out a grocery list, two or three times. Earhart's memory problems had increased to the point she forgets things the couple had discussed at length; at times she has trouble comprehending what her husband is saying. She cannot not maintain any reasonable pace when trying to work around the house and must rest for extended periods afterwards. Earhart is very fatigued, she no longer likes to go out and socialize, and they often have to cancel activities because Earhart has a panic attack beforehand.
The ALJ concluded the husband's testimony generally supports Earhart's allegations but does not establish she is disabled because: (1) the accuracy of the husband's report is questionable because he is not medically trained to make the exacting observations; (2) the husband is not a disinterested third party witness; and (3) the husband's report is not consistent with the preponderance of the opinions and observations by medical doctors.
Lay testimony about a claimant's symptoms is competent evidence which the ALJ must take into account unless he gives reasons for the rejection that are germane to each witness. Molina, 674 F.3d at 1114. The germane reasons must be specific. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). A legitimate reason to discount lay testimony is that it conflicts with medical evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). But the ALJ cannot discredit ...