Overlund v. Berryhill

          Alan Graf, Alan Stuart Graf, P.C. Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Janice E. Hébert, Assistant United States Attorney, United States Attorney's Office, District of Oregon, ; Lars J. Nelson, Special Assistant United States Attorney, Office of the General Counsel, Social Security Administration Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon United States District Judge

         Kathy J. Overlund (“Plaintiff) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act (“Act”). For the reasons discussed below, the Commissioner's decision is REVERSED and REMANDED further proceedings consistent with the instructions herein.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means “more than a mere scintilla but less than a preponderance.” Bray v. Comm 'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

         Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id; see also Bray, 554 F.3d at 1225-26.

         BACKGROUND

         A. Plaintiff's Application

         Plaintiff protectively filed an application for DIB on October 17, 2011, alleging disability beginning on January 7, 2009. AR 28. She was born on November 14, 1956, and was 52 years old on the alleged disability onset date. AR 106. Plaintiff alleges disability due to osteoarthritis of the knees, osteoarthritis of the shoulders, degenerative disc disease of the lumbar and cervical spine, obesity, carpel tunnel syndrome, sleep apnea, essential hypertension, and severe hip impairment. AR 30-32. Plaintiffs claim was denied initially on June 19, 2012, and upon reconsideration on October 11, 2012. AR 28. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) on December 6, 2012. Id. On November 26, 2013, an administrative hearing was held before ALJ Janice Shave. Id. On January 2, 2014, ALJ Shave issued a written decision in which she found Plaintiff not disabled within the meaning of the Act. AR 28-44.

         On February 25, 2014, Plaintiffs attorney requested review of the ALJ's decision by the Appeals Council. AR 9. In doing so, Plaintiffs attorney attached two signed letters-drafted in February 2014-from Plaintiffs husband, Norm Overlund, and daughter, Amy Overlund (collectively, the “post-decision letters”). AR 7-9. On June 30, 2015, the Appeals Council denied Plaintiffs request for review, making the ALJ's decision the final decision of the Commissioner. AR 11-15. Plaintiff now seeks judicial review of that decision.

         B. The Sequential Analysis

         A claimant is disabled if he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm 'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant's impairment “severe” under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.

3. Does the claimant's severe impairment “meet or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”)? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's “residual functional capacity” (“RFC”). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.

4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.

5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Id; see also 20 C.F.R. §§ 404.1566, 416.966 (describing “work which exists in the national economy”). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.

         C. The ALJ's Decision

         The ALJ began her opinion by noting that Plaintiff met the insured status requirements of the Act through March 31, 2014. AR 28. The ALJ further noted that Plaintiff must establish disability on or before that date in order to be entitled to a period of disability and disability benefits. Id. The ALJ then applied the sequential analysis. AR 30-44. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the alleged onset date of January 7, 2009. AR 30. At step two, the ALJ found that Plaintiffs osteoarthritis of the bilateral knees, osteoarthritis of the bilateral shoulders, degenerative disk disease of the lumbar and cervical spine, and obesity were severe impairments. AR 30-32. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled one of the specific impairments listed in the regulations. AR 32-33.

         The ALJ next determined that Plaintiff has the RFC to perform sedentary work. AR 33-42. In making that determination, the ALJ found several specific limitations that the ALJ included in the RFC: (1) Plaintiff is able to lift and/or carry ten pounds occasionally and less than ten pounds frequently; (2) Plaintiff can stand and/or walk for approximately two hours in an eight-hour workday, but not all at one time; (3) Plaintiff must elevate her left leg 12 to 18 inches when sitting; (3) Plaintiff must sometimes use a cane for ambulation during the two hours she can stand or walk over the workday, and needs the option to use the cane when needed; (4) Plaintiff cannot walk on uneven terrain or in a cluttered area; (5) Plaintiff is unable to climb ladders, ropes, or scaffolds, and she is unable to kneel or crawl; (6) Plaintiff is able to occasionally crouch, stoop, and balance while holding a hand-held assistive device; (7) Plaintiff can climb ramps and stairs occasionally within the two hour maximum that she can stand or walk; (8) Plaintiff is able to perform extended reaching in the front with the left upper extremity frequently, but not prolonged or all at once, and she must be able to rest her left arm; (9) Plaintiff is able to occasionally reach overhead bilaterally; (10) Plaintiff must avoid concentrated exposure to extreme cold, moderate exposure to unprotected heights, and hazardous or moving machinery; and (10) Plaintiff is limited to mildly complex instructions due to the distractions of pain. Id.

         In evaluating Plaintiff's RFC, the ALJ considered Plaintiff's testimony, but found that it was less than fully credible. AR 39-40. In addition, the ALJ considered the written lay testimony submitted by Norm Overlund. AR 39-40, 42. The ALJ also considered the medical testimony and evidence. She gave significant weight to the consultative examination performed by Dr. DeWayde C. Perry in May 2012, but found that he overestimated Plaintiffs lifting and carrying capacity, in addition to her capacity to stand and walk. AR 41, 523-30. The ALJ gave great weight to the conclusions conveyed in a form completed in October 2014 by Plaintiffs treating physician, Dr. Mark Litchman. AR 41, 686-89. In that report, Dr. Litchman stated that Plaintiff needed to be “off her feet” periodically throughout the day due to knee pain, and concluded that Plaintiff could perform sedentary work. AR 686-89.

         The ALJ assigned limited weight to a check-the-box form filled out by Plaintiffs treating physician, Dr. Mark Fletcher, in December 2013. AR 41, 718-21. Specifically, the ALJ limited the weight given to Dr. Fletcher's opinion that Plaintiff could not effectively ambulate, as that term is defined in the Act, because Dr. Fletcher provided no explanation for that conclusion, Plaintiff had never claimed that she required a hand-held assistive device that limited both upper extremities, and the question of whether Plaintiff is able to ambulate effectively is a legal question reserved to the Commissioner. AR 42. The ALJ also gave little weight to Dr. Fletcher's checking the box indicating that Plaintiff would be unable to maintain a regular work schedule for more than four days per month, because the doctor did not explain his reasons for checking that box and the medical record did not support that assertion. AR 42, 721. The ALJ gave great weight to most of the opinions of the state reviewing physicians; however, the ALJ found that Plaintiff was more limited in postural activities than found by the state agency consultants. AR 42, 106-132.

         At step four, the ALJ found-with the assistance of a Vocational Expert (“VE”)-that based on the Plaintiffs RFC, Plaintiff is capable of performing her past relevant work as a bookkeeper, office helper, and receptionist bookkeeper. AR 42-43. Based on the finding that Plaintiff could perform her past relevant work, the ALJ concluded that Plaintiff was not disabled within ...