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Bickford v. Berryhill

United States District Court, D. Oregon

March 20, 2017

EVA BICKFORD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          ANN L. AIKEN United States District Judge

         Plaintiff Eva Bickford seeks judicial review of the Commissioner's decision denying her application for disability insurance benefits (DIB) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g). Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the Commissioner's decision is AFFIRMED.

         BACKGROUND

         Plaintiff protectively filed an application for DIB on August 2, 2011, alleging disability beginning February 20, 2011. Tr, 15. Plaintiff was insured under Title II through December 31, 2016. Tr. 17. Following a denial of benefits, plaintiff requested a hearing before an administrative law judge (ALJ). On March 10, 2014, an ALJ determined plaintiff was not disabled. Tr. 16-24. Plaintiff appealed that decision to the Appeals Council and submitted as new evidence, Linn County Mental Health records dated March 13, 2014 to March 31, 2014, a MRI of the lumbar spine dated May 7, 2014 from Good Samaritan Albany General Hospital, medical records from Corvallis Medical group dated April 21, 2014 to July 14, 2014, and records from Good Samaritan Regional Medical Center dated March 6, 2014 to June 2, 2014. Tr. 5-6. After considering the new evidence and making it part of the record, the Appeals Council affirmed the ALJ's decision on July 23, 2016. Tr. 1. This appeal followed.

         STANDARD OF REVIEW

         The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 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). In reviewing the Commissioner's alleged errors, this 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).

         When the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, "cannot affirm the Commissioner's decision on a ground that the Administration did not invoke in making its decision." Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). Finally, a court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination, " Shimeki v. Sanders, 556 U.S. 396, 409 (2009).

         DISCUSSION

         Plaintiff argues the ALJ erred by: (1) not presenting clear and convincing reasons to reject her subjective symptom statements; (2) rejecting the lay witness's credibility; and (3) improperly considering the new evidence submitted to the Appeals Council. Pl's Br. 18-30.

         I. Plaintiffs Credibility

         Plaintiff argues that the ALJ failed to articulate a clear and convincing reason, supported by substantial evidence, for rejecting her subjective symptom statements concerning the extent and severity of her impairments. Id. at 18. Specifically, plaintiff argues that the ALJ engaged in "extreme selective recounting of the record, " which cannot take into consideration the pain and symptoms of her primary impairment of fibromyalgia. Id. at 20-21. Accordingly, plaintiff argues that the ALJ failed to take into account the entire medical record, id. at 20, and the ALJ's reasoning for rejecting plaintiffs complaints "fails on multiple levels." Id. at 21.

         Plaintiff also argues that the ALJ "engaged in sit and squirm jurisprudence" when the ALJ found her subjective symptom statements not entirely credible. Id. at 20, According to plaintiff, the ALJ based her decision after witnessing plaintiff bend over and lift her bag during the hearing and observing plaintiffs in court persona. Id. at 20-22. Plaintiff notes that fibromyalgia is a disease that "manifests symptoms that wax and wane." Id. at 22. Plaintiff contends she has good and bad days, which means her ability to lift heavy objects varies. Id. at 22. Plaintiff notes that her testimony during the 2014 hearing regarding her limited function is an accurate account of the worsening pain and symptoms, even though it conflicts with previous written testimony from 2011. Id. at 23. Despite the new testimony, plaintiff argues the ALJ failed to give specific reasons for rejecting the testimony in 2014 as opposed to written testimony from 2011. Id. at 23. Plaintiff argues the ALJ relied more on the testimony from Dr. Bruce Matthews and Dr. Vivek Deshmukh regarding her "embellishments" and "benign objective medial findings" despite her appearance and pain distributions. Id. at 23-24.

         The ALJ found plaintiffs statements concerning the intensity, persistence, and limiting effects of these symptoms "not entirely credible." Tr. 21. In so finding, the ALJ considered plaintiffs claims of "debilitating pain and mental symptoms, " including her testimony that her pain has had an adverse effect on her strength and stamina. Id. at 20. The ALJ considered plaintiffs claim of her inability to work full-time because of various "physical and mental impairments, including chronic low back pain, balance problems, hip and leg pain, insomnia, and problems with anger and depression." Id.

         In finding plaintiffs subjective symptom statements not credible, the ALJ first contrasted instances in the record where plaintiff asserted her chronic pain was a nine out of a ten on a ten point scale without medication and an eight out of a ten with medication, with conflicting statements made by her treating physicians. Id. at 21. The ALJ specifically noted that once of plaintiffs treating physicians opined that plaintiff did not appear to be in distress and "exhibited normal strength in all extremities." Id. The ALJ considered other statements made by another one of plaintiff s treating physicians that despite her account of her antalgia, both her "sensation and reflexes were both in tact." Id. Additionally, the ALJ considered the opinion of Dr, Bruce Matthews, plaintiffs examining doctor, that plaintiff showed "fairly significant pain behaviors and embellishment" during her examination in June 2011. Id. at 22. Furthermore, the ALJ noted the opinion of Dr. Vivek Deshmukh, another one of plaintiff s examining doctors, that plaintiffs claims of pain did not match her ...


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