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Hulit v. Berryhill

United States District Court, D. Oregon

March 27, 2017

JENNIFER LEE HULIT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Lisa R.J. Porter JP Law PC Attorney for Plaintiff.

          Billy J. Williams United States Attorney District of Oregon Janice E. Hebert Assistant United States Attorney Erin F. Highland Special Assistant United States Attorney Office of the General Counsel Social Security Administration Attorneys for Defendant.

          OPINION AND ORDER

          Garr M. King United States District Judge.

         Plaintiff Jennifer Lee Hulit 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[1] denying Hulit's application for disability insurance benefits (“DIB”). I reverse the decision of the Commissioner and remand for a finding of disability.

         BACKGROUND

         Hulit filed an application for DIB on July 24, 2012, alleging disability beginning August 29, 2011. The application was denied initially and upon reconsideration. After a timely request for a hearing, Hulit, represented by counsel, appeared and testified before an Administrative Law Judge (“ALJ”) on June 5, 2014.

         On June 19, 2014, the ALJ issued a decision finding that Hulit was not disabled within the meaning of the Act and therefore not entitled to benefits. This decision became the final decision of the Commissioner when the Appeals Council declined to review the decision of the ALJ on January 29, 2016.

         DISABILITY ANALYSIS

         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) and 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) and 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 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.” 20 C.F.R. §§ 404.1520(b) and 416.920(b). 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) and 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) and 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, a finding of “not disabled” is made and disability benefits are denied. 20 C.F.R. §§ 404.1520(f) and 416.920(f).

         If the claimant is unable to do 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 not able to perform other work. 20 C.F.R. §§ 404.1520(g) and 416.920(g).

         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 identified Hulit's severe impairments as: degenerative disc disease of the thoracic spine; status post C4-5, C5-6, C5-7 anterior cervical microdiscectomy with osteophytectomy; foraminotomies, and canal decompression; obesity with BMI 42.4; patellofemoral pain; lumbar radiculopathy; cervical spondylosis; and postlaminectomy syndrome, cervical region. The ALJ also found that these impairments, either singly or in combination, did not meet or medically equal the requirements of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Given these impairments, the ALJ found Hulit has the residual functional capacity (“RFC”) to perform sedentary work. Specifically, Hulit can lift and/or carry 10 pounds occasionally and less than 10 pounds frequently; she can stand and/or walk for two hours in an eight-hour day; she can sit for six hours in an eight-hour day; her ability to balance is unlimited; she can occasionally climb ladders, ropes, or scaffolds; she can occasionally climb ramps or stairs; she can occasionally stoop, kneel, crouch, or crawl; and she must avoid concentrated exposure to heights, hazards, and heavy equipment. Given this RFC, the ALJ concluded Hulit could perform her past relevant work as a telemarketer and receptionist.

         FACTS

         Hulit was 32 years old on her alleged onset date of disability. She first injured her back in 2003, eight years earlier. She had an L5-S1 microdiscectomy that failed. In fact, she applied for disability in 2005 but was not eligible. She worked from 2005 through 2011 as a mail sorter, receptionist, and performing other clerical work.

         Joseph Knaus, Nurse Practitioner with Portland Pain & Spine, examined Hulit in October 2010, when Hulit was still working. She reported needing to lie down and rotate, using ice and heat, as well as taking Percocet and baclofen. Knaus suggested she return to Dr. Gore at Micro Neurosurgical Consultants. Hulit informed Knaus that she was working full time and needed to remain employed. Her pain averaged 3 out of 10. Knaus gave her a prescription for a TENS unit and recommended an epidural steroid injection at the L5-S1 level. The injections did not relieve her pain, but, she reported in April 2011, a regular medication regimen helped her control her pain. She had carpal tunnel surgery that month and recovered well from it. At a June appointment with Knaus, Hulit told him that she had recovered from the carpal tunnel surgery, but that her back grew to be more painful after five hours of work. She was taking MS Contin every eight hours and oxycodone as needed.

         Five days before her alleged onset date of disability, Hulit reported for a followup with Knaus. She said her lower back had been bothering her, as had her mid-back between her shoulder blades. They discussed additional imaging, and her need to be more pain free in order to exercise and lose some weight.

         Hulit applied for short-term disability and, as a result, Trevor Tash, OTR, evaluated her functional capacities in September 2011. Tash found that Hulit demonstrated some pain behavior (verbal reports of pain, frequent rest breaks, moving stiffly) but that she did not appear exaggerated or dramatic. He found her capable of performing light work part-time. He thought Hulit could sit for one hour at a time for a total of five hours, could stand for 30 minutes at a time for four hours, and could move about or walk for an hour at a time for five hours. Tash identified several weight limits, as well as positional limitations. He noted Hulit's gait was smooth and she demonstrated full strength in the upper and lower extremities. Tash observed Hulit's facial expressions did not match her reports of pain on palpation.

         Hulit's short-term disability claim was denied. Knaus supported Hulit's appeal as he did not feel that it had been appropriate for Tash to include his observations in his report. In November 2011, Hulit informed Knaus that her pain had improved since she stopped working. An MRI showed degenerative changes from T6-7 through T11-12, with moderate right foraminal stenosis at ¶ 7-8. At ¶ 9-10, there was a paracentral disk protrusion abutting the cord. She was trying to stay active, but felt better as she could rest as needed.

         Fred Williams, M.D., examined her in February 2012. She was able to walk normally and symmetrically. She could walk on her heels and toes, but had some difficulty walking on the right toes. She could step on a platform with either extremity, and she had no difficulty rising from sitting. An MRI showed a central to leftward herniated disc and edema of the spinal cord causing spinal cord compression at ¶ 4-5, a central herniated disc and edema causing severe central canal stenosis at ¶ 5-6, and a central leftward herniated disc causing severe left foraminal stenosis impinging on the C7 ...


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