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Johnson v. Berryhill

United States District Court, D. Oregon

March 16, 2017

MICHELLE MARIE JOHNSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          Robert E. Jones, Senior Judge

         Plaintiff Michelle Johnson appeals the Commissioner's decision denying her concurrent applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the Commissioner's decision.

         PRIOR PROCEEDINGS

         Johnson alleged disability beginning July 1, 2009, due to blindness in one eye, epilepsy, Graves' disease, blood clot disorder, anemia, hypertension, and lupus. Admin, R. 103. She satisfied the insured status requirements under the Act through September 30, 2014, and must establish that she was disabled on or before that date to prevail on her Title II claim. Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998).

         The AL J applied the sequential disability determination process described in the regulations and in Bowen v. Yuckert, 482 U.S, 137, 140 (1987). The ALJ found that Johnson's ability to work was adversely affected by encephalomalacia with a history of a cerebrovascular accident, seizure disorder, and a cognitive disorder with borderline intellectual functioning. Admin. R. 22-23. The ALJ found that, despite these impairments, Johnson retained the residual functional capacity ("RFC") to perform a range of light work involving simple, repetitive, routine tasks, in a structured work environment with predictable work goals, limited postural activities such as stooping, crawling, kneeling, and so forth, and limited exposure to hazards. Admin. R. 24-29.

         The vocational expert testified that a person with Johnson's vocational factors and RFC could perform light, unskilled occupations such as garment sorter, linen folder, and tray setter which represent hundreds of thousands of jobs in the national economy. Admin. R. 30-31, 63-64. The ALJ concluded that Johnson was not disabled within the meaning of the Social Security Act. Admin. R. 31.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings of fact are supported by substantial evidence in the record as a whole. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Substantial evidence is relevant evidence that a reasonable person might accept as adequate to support a conclusion, Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence may be less than a preponderance of the evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Under this standard, the court must consider the record as a whole, and uphold the Commissioner's factual findings that are supported by inferences reasonably drawn from the evidence even if another interpretation is also rational. Robbins, 466 F.3d at 882; Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

         ASSIGNMENTS OF ERROR

         The claimant bears the burden of showing that the ALJ erred and that any error was harmful. McLeod v. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). Johnson contends the ALJ erred by discrediting her subjective statements, discounting the opinion of Richard LaFrance, M.D., and rejecting the lay witness statements of her stepfather, Stefan Jones. She contends these errors led the ALJ to elicit testimony from the vocational expert with hypothetical assumptions that did not accurately reflect all of her functional limitations and to erroneously conclude that she is not disabled.

         DISCUSSION

         I. Credibility Determination

         In her application papers, Johnson said her ability to work was limited by seizures, inability to remember or comprehend, extreme fatigue, nausea, dizziness, vomiting, lupus, anemia, and being in and out of the hospital. Admin. R. 216, 221 -22. In her hearing testimony, Johnson said that she had a stroke in 2007 and began taking anticoagulation medications. She began to have seizures in July 2009 which corresponds to the alleged onset of her disability. Admin. R. 25, 50-51. She said she was unable to work because she had difficulty speaking and thinking and could never tell when she would have a seizure. Johnson said her anticonvulsant medications limited her grand mal seizures but she continued to have them two or three times a month. She continued to experience smaller seizure episodes a few times a week. Admin. R. 25, 52, 60.

         The ALJ said that Johnson's medically determinable impairments could reasonably be expected to cause some of the symptoms she alleged and he did not identify affirmative evidence of malingering. Admin. R. 25, Under such circumstances, an ALJ must assess the credibility of the claimant regarding the severity of symptoms, An adverse credibility determination must include specific findings supported by substantial evidence and clear and convincing reasons. Carmickle v. Comm'r, Soc. Sec. Admin.,533 F.3d 1155, 1160 (9thCir. 2008); Smolen v. Chafer,80 F.3d 1273, 1281-82 (9th Cir. 1996). The findings must be ...


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