United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATION
PAUL PAPAK, Magistrate Judge.
Plaintiff Sheri Lynn Gibson Hegar filed this action March 26, 2010, seeking judicial review of the Commissioner of Social Security's final decision denying her application for supplemental security income ("SSI") under Title XVI of the Social Security Act (the "Act"). This court has jurisdiction over plaintiffs action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3).
Hegar 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 Hegar capable of performing work as a table worker or hand stuffer 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 should be reversed and this case should be remanded for further administrative proceedings.
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. §§ 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. §§ 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. § 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,  despite the limitations imposed by the claimant's impairments. See 20 C.F.R. § 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. § 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. §§ 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. §§ 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. §§ 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits if the Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 416.920(a)(4)(v), 416.920(g).
A reviewing court must affirm an Administrative Law Judge's decision if the 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. Chafer, 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 Edlundv. 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
Regar was 48 at the time of the hearing. Tr. 47. She did not finish high school, and has received no subsequent formal education or vocational training. Id. According to the evidence of record, prior to her claimed disability onset date of October 15, 2008, Regar had no substantial gainful activity.
A. The Medical Record
On June 6, 2008, Regar saw Robert Oksenholt, D.O. to follow up on an emergency room visit for a headache. Regar reported headaches three to four times per week. Dr. Oksenholt noted normal strength and gait, and prescribed imitrex and Timolol. Tr. 314. On June 17, Plaintiff returned to Dr. Oksenholt reporting she had had only one "slight headache" that resolved with Ultram. Tr. 311. By September 2008, Regar reported her migraines were "almost resolved" with propranolol and imitrex. Tr. 309. She had intermittent pain in her knees and neck. A CT scan of the neck showed degenerative disc disease and arthritis.
In January 2009, Hegar reported stomach pain and was prescribed Ultram. Tr. 308. In March 2009 Hegar reported bilateral knee pain. Tr. 305. She had fatigue, and the doctor noted she had a somewhat "poor memory and historian." Id. She received iajections of Kenalog and Decadron for her arthritis. She was counseled on diet and exercise and advised to stop smoking tobacco.
In July 2009 Hegar reported neck pain radiating to her left hand. Tr. 303. MRI's of the brain and cervical spine showed an impingement of the C7 nerve root and a small number of white matter abnormalities in deep and periventricular regions of the brain. Tr. 242. On July 14, Plaintiff reported fatigue and muscle weakness. Tr. 301. She was counseled about diet and exercise and referred to a neurologist. Tr. 302.
On August 7, 2009, Hegar saw neurologist Rebecca Reiser, M.D. regarding a possible diagnosis of multiple sclerosis. Tr. 241. Plaintiff reported neck pain since a motor vehicle accident 20 years ago, with some weakness of the right arm. She reported headaches about once a week. Dr. Reiser stated her "symptoms are not consistent with a history of multiple sclerosis and although her brain MRI has some white matter lesions, I think they are more likely to be from small vessel disease versus multiple sclerosis." Tr. 242. Dr. Reiser prescribed Topamax for headaches.
On August 19, Dr. Oksenholt noted he did "not suspect MS, " Hegar's depression was better, and he referred her for follow up in neurology. Tr. 299. On September 10, an electromyogram (EMG) of Hegar's right upper extremity was consistent with carpal tunnel syndrome. Tr. 292. Hegar declined a carpal tunnel release. Id. On September 17, D Oksenholt counseled Regar about diet, exercise, and weight loss. On October 8, Stephen Shea, D.O., evaluated complaints of numbness and weakness in Hegar's hands. Tr. 291.
On January 27, 2010, Regar reported a recent headache and left face numbness. Tr. 288. On February 2, Regar reported to Dr. Reiser headaches three to four times per week not alleviated by amitriptyline or gabapentin. She was swimming three times a week and taking lyrosine with some pain relief. On February 24, Regar had diffuse muscle pain "without trigger points, " and intermittent weakness. Tr. 286-87, She had no regular exercise routine. On March 25, Regar reported a headache with left side fatigue for which she received an injection of Kenalog. Tr. 285.
On March 26, 2010, Hegar filed her application for disability benefits because of "multiple sclerosis, migraines, anemia." Tr. 187.
On May 28, 2010, Dr. Oksenholt saw Plaintiff for diffuse muscle pain, irritation, abdominal pain, anxiety, and headache. Tr. 429. Her depression was improved. In June, neurologist Andrew Rontal, M.D., evaluated Plaintiff for non-specific weakness over the past year, mostly in both lower extremities lasting from 30 minutes to three hours. Tr. 248. She had numbness and tingling in all extremities, and intermittent blurred vision. Dr. Rontal opined that Regar did not have multiple sclerosis, and would benefit from an increase in propranolol. Tr. 251. He thought "the most likely cause of her symptoms is ...