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Lynch v. Commissioner of Social Security Administration

United States District Court, D. Oregon

April 3, 2017

LEA ANN LYNCH, Plaintiff,

          LISA R. J. PORTER Attorney for Plaintiff.

          BILLY J. WILLIAMS United States Attorney JANICE E. HEBERT Assistant United States Attorney GERALD J. HILL Special Assistant United States Attorney Attorneys for Defendant.



         Plaintiff Lea Ann Lynch seeks judicial review of the final decision of the Commissioner of Social Security denying her application for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403, and application for Supplemental Security Income ("SSI") disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, I affirm the Commissioner's decision.


         Plaintiff protectively filed applications for DIB and SSI on January 30, 2012, alleging disability beginning June 6, 2008, due to depression, anxiety, migraines, gluten intolerance, postsurgical foot tumor, regional complex pain syndrome, fibromyalgia, dyslexia, and shingles. Tr. Soc. Sec. Admin. R. ("Tr.") at 89, ECF Nos. 12-13. Plaintiffs claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge ("ALJ"). The ALJ held a hearing on June 2, 2014, at which Plaintiff appeared with her attorney and testified. A vocational expert, Steve Duchesne, also appeared at the hearing and testified. On August 1, 2014, the ALJ issued an unfavorable decision. The Appeals Council denied Plaintiffs request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review.

         Plaintiff was born in 1963, and was 45 years old on the alleged onset of disability date. Plaintiff has a high school education, has some training as a massage therapist, and at the time of the hearing was enrolled part-time in community college. Plaintiff has past relevant work as a location manager, and also has worked as a foo d demonstrator, intake worker/eligibility worker, and massage therapist, THE ALJ'S DISABILITY ANALYSIS

         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§404.1520, 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four, See Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir, 1999). At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).

         The ALJ found that Plaintiff meets the insured status requirements through June 30, 2014. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since her alleged onset of disability. At step two, the ALJ found that Plaintiff had the following severe impairments: fibromyalgia, depressive disorder, pain disorder with both psychological and general medical factors, personality disorder, and attention-deficit hyperactivity disorder ("ADHD"). At step three, the ALJ found that Plaintiffs impairments, or combination of impairments, did not meet or medically equal a listed impairment.

         The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform light work with additional limitations: Plaintiff can occasionally balance, stoop, kneel, crouch, and crawl; must avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation; can understand, remember, and cany out simple, repetitive, routine tasks; and can tolerate occasional contact with the general public.

         At step four, the ALJ found that Plaintiff is unable to perform her past relevant work. At step five, the ALJ found that considering Plaintiffs age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that Plaintiff can perform, including such representative occupations as: electronics assembler, mail clerk, and housekeeper. Accordingly, the ALJ concluded that Plaintiff has not been under a disability under the Social Security Act from June 6, 2008 through the date of the decision.


         On appeal to this court, Plaintiff contends the following errors were committed: (1) the ALJ improperly evaluated her testimony; (2) the ALJ improperly evaluated some of the medical evidence; (3) the ALJ improperly determined she does not meet Listing 12.04; and (4) the RFC and hypothetical to the vocational expert ("VE") fail to incorporate all of her mental health functional limitations. The Commissioner argues that the ALJ's decision is supported by substantial evidence and is free of legal error. Alternatively, the Commissioner contends that even if the ALJ erred, Plaintiff has not demonstrated harmful error.


         The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hill, 698 F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690, The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014); Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. Commissioner Soc, Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the a Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.2001); Garrison, 759 F.3d at 1010.

         I. The ALJ Did Not Err in Discounting Plaintiffs Credibility

         To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. 20 C.F.R. §§ 404.1529, 416.929. The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the seventy of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).

         The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider when making such credibility determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3dat 1039.

         At the hearing, Plaintiff testified that she is taking two classes in college (seven credit hours), has a 3.00 grade point average ("GPA"), and is trying to obtain a degree in Communications. Tr. 61-62. Plaintiff testified that she receives accommodations at school with dictation due to her dyslexia. Tr. 62. Plaintiff testified that she has tutoring two hours per week, attends classes for two hours a day, four days a week, and works in the library eight hours a week. Tr. 52, 62-63. Plaintiff testified that she worked full-time in 2011 for three months, and also has performed some part-time work doing wine demonstrations. Tr. 53. Plaintiff described her past work with movie production as scouting locations for filming. Tr. 55. Plaintiff testified that she can no longer perform any kind of prior work because she cannot physically work the long hours, sometimes lasting 14 hours, and needs to rest after taking a two hour class. Tr. 56.

         Plaintiff described being out of breath after walking short distances and that she is in pain due to her foot issues and fibromyalgia. Tr. 58-59. Plaintiff stated that she has pain in her shoulders, but that she can reach overhead and reach in front of her. Tr. 65-66. Plaintiff described difficulty with vomiting and that she has IBS. Tr. 60. Plaintiff testified that she takes zoloft and lorazepam for her mental health issues and that they help a little bit, but that she does not take any pain medication. Tr. 59, 66.

         Plaintiff testified that she is able to drive, does her own shopping, is able to clean house in small increments, and does her own laundry. Tr. 64. Plaintiff stated that she spends time reading and watching TV, and that she uses the computer to do homework and look for jobs. Tr. 68. Plaintiff testified that her biggest hurdle to employment is that she "can't stand being around people right now." Tr. 75. Plaintiff also stated that she cannot handle criticism. Tr. 75.

         In a February 8, 2012 Function Report, Plaintiff reported that she gets sick from her gluten intolerance, that she cannot stand on her feet, and that her muscles hurt from fibromyalgia. Tr. 266. Plaintiff described a typical day as taking a shower, washing clothes, feeding the animals, making lunch, looking for work, eating dinner, then going to bed. Tr, 227. Plaintiff stated that the pain in her stomach from her gluten intolerance wakes her at night. Tr. 227. Plaintiff indicated no difficulty with personal care and needs no reminders to take medication. Tr. 227-28, Plaintiff stated that she performs all cleaning, laundry and yard care. Tr. 228. Plaintiff drives, can shop independently for groceries once a month for two hours. Tr. 229. Plaintiff stated she leaves the house daily to run errands. Tr. 229. Plaintiff described that she no longer plays sports due to pain, and that she spends time with friends occasionally. Tr. 230. Plaintiff indicated she has trouble lifting and standing due to the pain in her foot, can walk half a mile before needing to rest for 15 minutes, and can concentrate for 30 minutes. Tr. 231. Plaintiff stated she has no trouble with authority figures, gets physically sick from stress, and has vertigo and tinnitus. Tr. 232. Plaintiff indicated she takes trazodone and flexeril. Tr. 233.

         In the decision, the ALJ offered specific, clear and convincing reasons for the adverse credibility determination, including: (1) inconsistency with objective medical records; (2) inconsistency with reported daily activities; (3) active ...

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