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Cochrane v. Berryhill

United States District Court, D. Oregon

May 18, 2017

MARCELLE RANEE COCHRANE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Laurie B. Mapes Attorney at Law Attorney for Plaintiff.

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon Janice E. Hebert ASSISTANT UNITED STATES ATTORNEY Sarah Moum SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Attorneys for Defendant.

          OPINION & ORDER

          MARCO A. HERNANDEZ, UNITED STATES DISTRICT JUDGE

         Plaintiff Marcell Cochrane brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB), supplemental security income (SSI), and disabled widow's benefits (DWB). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I reverse the Commissioner's decision and remand for an award of benefits.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB on November 1, 2011, and for SSI and DWB on September 26, 2013, alleging an onset date in August 2011. Tr. 160-61, 168-73, 175-77[1]. At the hearing, Plaintiff amended her alleged onset date to September 1, 2011. Tr. 69. Plaintiff's DIB application was denied initially and on reconsideration. Tr. 85-110, 114-17. The other applications were escalated to the hearing level. Tr. 11. On July 17, 2014, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 26-84. On August 15, 2014, the ALJ found Plaintiff not disabled. Tr. 8-25. The Appeals Council denied review. Tr. 1-5.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on having hepatitis C, bilateral brachial plexopathy, hernia, and pain. Tr. 198. At the time of the hearing, she was fifty-three years old. Tr. 29. Plaintiff completed seventh grade and has past relevant experience as a housekeeper. Tr. 199.

         SEQUENTIAL DISABILITY EVALUATION

         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), 1382c(3)(a).

         Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). 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. 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 plaintiff's impairments, singly or in combination, meet or equal "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 (RFC) 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 had not engaged in substantial gainful activity since her alleged onset date. Tr. 13. Next, at steps two and three, the ALJ determined that Plaintiff has severe impairments of brachial plexus disorder and hepatitis, but that her impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 14-16.

         At step four, the ALJ concluded that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), except she can only occasionally handle, finger, and feel. Tr. 16. She can reach to shoulder level, but not higher. Id. She is limited to unskilled, repetitive, routine work. Id. She will be off task five-percent of the time, but would still meet minimum production requirements. Id. She would be absent from work one time each month. Id. With this RFC, the ALJ determined that Plaintiff is unable to perform any of her past relevant work. Tr. 20. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as counter clerk and furniture rental clerk. Id. Thus, the ALJ determined that Plaintiff is not disabled. Tr. 21.

         STANDARD OF REVIEW

         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). "Substantial evidence means 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." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).

         DISCUSSION

         Plaintiff argues that the ALJ erred by (1) finding her subjective testimony not credible; (2) improperly rejecting her treating physician's opinions; (3) failing to include all credited limitations in the hypothetical presented to the vocational expert (VE); and (4) failing to verify that the VE's testimony was consistent with the Dictionary of Occupational Titles (DOT). Based on these errors, she seeks a reversal and remand for the payment of benefits.

         I. Credibility

         The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591. Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains, an adverse credibility finding must be based on 'clear and convincing reasons'"); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages in two-step analysis to determine credibility: First, the ALJ determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged"; and second, if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give "specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.") (internal quotation marks omitted).

         When determining the credibility of a plaintiff's complaints of pain or other limitations, the ALJ may properly consider several factors, including the plaintiff's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may also consider the ability to perform household chores, the lack of any side effects from prescribed medications, and the unexplained absence of treatment for excessive pain. Id.; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) ("The ALJ may consider many factors in weighing a claimant's credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.") (internal quotation marks omitted).

         As the Ninth Circuit explained in Molina;

In evaluating the claimant's testimony, the ALJ may use ordinary techniques of credibility evaluation. For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct, unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and whether the claimant engages in daily activities inconsistent with the alleged symptoms[.] While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant's testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting[.] Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.

Molina, 674 F.3d at 1112-13 (citations and internal quotation marks omitted).

         The ALJ initially set forth the appropriate two-step credibility inquiry. Tr. 17. Because he made no express finding of malingering and the record does not support one, his rejection of the severity of Plaintiff's symptoms must be by specific, clear and convincing reasons, supported by substantial evidence in the record. The ALJ gave several reasons in support of his credibility determination which are discussed in more detail below.[2] Plaintiff argues that the ALJ's reasons for discrediting her symptom severity testimony are based on a mischaracterization of the record and the failure to address substantial evidence supporting her allegations.

         A. Objective Medical Evidence

         First, the ALJ found that several alleged symptoms were not supported by the objective medical evidence. Tr. 18-19. He noted the lack of imaging studies or clinical findings consistent with debilitating musculoskeletal pain. Tr. 18. He found that the record contained no reports or findings that Plaintiff fell a lot and remarked that no medical provider had prescribed a cane or other assistive device. Id.

         As to the cane or assistive device, the record includes statements by Plaintiff's primary care treating physician that Plaintiff's use of a cane, walker, or other assistive device was "medically appropriate." Tr. 392, 560. Given that one can purchase a cane without a prescription, the ALJ erred by relying on the lack of one to discredit Plaintiff's allegations.

         Regarding the lack of objective medical evidence to substantiate her pain complaints, the law is clear that once there is objective medical evidence on an underlying impairment, "the ALJ may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the alleged severity of pain." Rollins v. Massanari, 261 F.3d 853, 856, 857 (9th Cir. 2001); see also 20 C.F.R. §§ 404.1529(c), 416.929(c). The primary source of Plaintiff's musculoskeletal pain is her brachial plexus disorder. The ALJ expressed his doubts about the existence of this impairment at step two, but nonetheless found it to be a severe impairment. Tr. 14. As such, he cannot solely rely on the lack of objective medical evidence to find that Plaintiff's symptoms about musculoskeletal pain are not credible. Once he accepted, even for the purposes of his own opinion, that the brachial plexus disorder was a severe impairment, he was obligated to carry that determination throughout his opinion.

         Furthermore, as Plaintiff points out, the Commissioner previously found her disabled for a ten-year period based on this disorder. See Tr. 195 (noting prior DIB claim allowed in January 1994). During the hearing, Plaintiff testified that her injury occurred as a result of laparoscopic surgery she had in 1992. Tr. 40. During that procedure, she was positioned in a way that harmed her brachial plexus, a "network of the anterior branches of the last four cervical and the first thoracic spinal nerves supplying the arm, forearm, and hand." Taber's Cyclopedic Medical Dictionary 1807 (21st ed 2005); see alsohttp://www.mayoclinic.org/diseases-conditions/brachial- ...


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