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Despinis v. Commissioner Social Security Administration

United States District Court, D. Oregon

May 10, 2017

SANDRA MARIE DESPINIS, Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.

          Tim Wilborn Wilborn Law Office, P.C. Attorney for Plaintiff

          Janice E. Hebert Assistant United States Attorney, Lars Nelson Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Plaintiff Sandra Despinis brings this action for judicial review of the Commissioner's final decision denying her application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). The Commissioner's decision is reversed and remanded for further proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff applied for SSI on October 16, 2012, alleging disability as of August 7, 2012. Tr. 197-202.[1] Her application was denied initially and on reconsideration. Tr. 90, 108. On December 11, 2014, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 32. On January 29, 2015, the ALJ found Plaintiff not disabled. Tr. 24. The Appeals Council denied review. Tr. 1.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on bipolar disorder, PTSD, severe migraine headaches, ovarian cysts, lower back pain-sciatica, and pain in her right knee. Tr. 221. Plaintiff was 29 years-old at the time of the administrative hearing. Tr. 197. Plaintiff obtained a GED. Tr. 222. She worked as a cashier, crew member at a fast food restaurant, housekeeper, and shift manager at a video store. Id.

         SEQUENTIAL DISABILITY ANALYSIS

         A claimant is disabled if 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). Disability claims are evaluated according to a five-step procedure. See, e.g., Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. 137 at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether the impairment meets or equals “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity to perform “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful activity since October 16, 2012, the application date. Tr. 14. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: “migraine headaches; sciatica; lumbar radiculopathy; popliteal cysts of the knees; benign paroxysmal positional vertigo; bipolar disorder; posttraumatic stress disorder (PTSD); somatic disorder[.]” Tr. 14. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 15. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work as defined in 20 C.F.R. § 416.967(b), with the following limitations:

[Plaintiff] is limited to no more than frequent climbing of ramps and stairs. She is limited to no more than occasional climbing of ladders, ropes, or scaffolds. She is limited to no more than frequent stooping and crouching and no more than occasional balancing, kneeling, and crawling. The claimant must avoid moderate exposure to hazards, such as operational control of moving machinery, hazardous machinery, and unprotected heights. The claimant can understand and carry out simple instructions in a work environment with few, if any workplace changes. She is limited to only occasional interaction with the general public and coworkers.

Tr. 16. The ALJ concluded that Plaintiff is unable to perform any past relevant work. Tr. 22. However, at step five the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as “routing clerk, ” “inspector/hand packager, ” and “shipping and receiving weigher.” Tr. 23. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 24.

         STANDARD OF REVIEW

         The reviewing 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);Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence” means “more than a mere scintilla, but less than 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 is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

         The court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading. Id.; see also Batson, 359 F.3d at 1193. However, the court cannot not rely upon reasoning the ALJ did not assert in affirming the ALJ's findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

         DISCUSSION

         Plaintiff contends that the ALJ erred by (1) failing to address whether Plaintiff's migraine headaches equal a listed impairment; (2) rejecting Plaintiff's testimony; (3) discounting the testimony of Plaintiff's treating physician's assistant and treating psychiatric mental health nurse practitioner; and (4) discounting the testimony of lay witnesses. According to Plaintiff, because the ALJ erred, the RFC and hypothetical posed to the VE do not include all of her limitations. The Court finds that the ALJ erred in her failure to consider whether Plaintiff's migraine headaches equal a listed impairment and in discounting the testimony of treating Physician's Assistant Brasher. Thus, the Court remands the case to the ALJ for further proceedings.

         I. Listing 11.03

         The ALJ found that Plaintiff's migraines constituted a severe impairment, yet did not meet or medically equal a listed impairment. Tr. 14, 15. However, in her Step 3 discussion, the ALJ failed to mention Plaintiff's migraines. Plaintiff contends that the ALJ erred by failing to consider whether Plaintiff's migraine headaches, either by themselves or in combination with her other impairments, equaled 20 C.F.R. § 404, Subpart P, App. 1, Listing 11.03, as it existed at the time of the ALJ's decision. The Court agrees.

         If a claimant has an impairment or combination of impairments that meets or equals a condition outlined in the “Listing of Impairments, ” then the claimant is presumed disabled at step three, and the ALJ need not make any specific finding as to his or her ability to perform past relevant work or any other jobs. 20 C.F.R. § 404.1520(d). An ALJ must evaluate the relevant evidence before concluding that a claimant's impairments do not meet or equal a listed impairment. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). A boilerplate finding is insufficient to support a conclusion that a claimant's impairment does not do so. Id. (citing Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (holding that ALJ erred by failing to consider evidence of equivalence)). However, the Ninth Circuit has explained that, while an ALJ must discuss and evaluate the evidence that supports her conclusion, it is not required that she do so under the heading “Findings.” Kennedy v. Colvin, 738 F.3d 1172, 1178 (9th Cir. 2013). “Moreover, ‘[a]n ALJ is not required to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination, unless the claimant presents evidence in an effort to establish equivalence.'” Id. (quoting Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005)).

         There is no medical listing for migraines. However, Defendant concedes that, at the time of the administrative hearing[2], Listing 11.03 was the appropriate listing for an equivalence analysis:

11.03 Epilepsy-nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented by detailed description of a typical seizure pattern, including all associated phenomena; occurring more frequently than once weekly in spite of at least 3 months of prescribed treatment. With alteration of awareness or loss of consciousness and transient postictal ...

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