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Jewell-Greene v. Berryhill

United States District Court, D. Oregon

July 18, 2017

ROBIN CAROL JEWELL-GREENE, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          Katherine L. Eitenmiller and Mark A. Manning, Harder, Wells, Baron & Manning, 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, Sarah L. Martin, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon, United States District Judge

         Robin Jewell-Greene (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her applications for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”). For the reasons discussed below, the Commissioner's decision is REVERSED and REMANDED for further proceedings.

         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 1226.

         BACKGROUND

         A. Plaintiff's Application

         Plaintiff protectively filed applications for DIB and SSI on May 2, 2013, alleging disability beginning on January 2, 2013. AR 95, 105. She was born on March 23, 1964, and was 49 years old at the time she filed her application. AR 94, 104. She alleged disability due to migraine headaches, fibromyalgia, and chronic fatigue syndrome. AR 95, 105. The Commissioner denied her applications both initially and upon reconsideration; thereafter, she requested a hearing before an Administrative Law Judge (“ALJ”). AR 102, 112, 123, 134, 138, 142, 148, 151, 153. An administrative hearing was held on May 12, 2015. AR 24. On June 24, 2015, the ALJ issued a decision finding that Plaintiff was not disabled under the Social Security Act for both DIB and SSI. AR 24-34. On July 7, 2015, Plaintiff requested a review of the ALJ decision by the Appeals Council, and on December 18, 2015, the appeals council denied her request for review and the ALJ's decision became final. AR 6-10, 18-19. 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? 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 found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2015. AR 26. He noted that Plaintiff must establish disability on or before that date in order to be entitled to DIB.[1] AR 24. The ALJ then applied the sequential analysis. AR 25-34.

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since January 2, 2013, the alleged onset date. AR 26. At step two, the ALJ found that Plaintiff's migraine headaches, fibromyalgia, and chronic fatigue syndrome all constituted severe impairments, meaning that they more than minimally affected her ability to perform basic work activities. Id. The ALJ also noted that the medical evidence indicated a history of depression and anxiety; however, pursuant to the disability regulations for evaluating mental disorders, the ALJ found these mental impairments to be non-severe. AR 27. The ALJ further found that there was no indication that Plaintiff's history of other various health issues resulted in any functional limitations and found those to be non-severe as well. AR 28.

         At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 28-29. The ALJ next assessed Plaintiff's RFC as capable of performing light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b), and he concluded that Plaintiff could stand or walk for only two hours out of an eight-hour work-day and any time spent off-task could be accompanied by normal breaks. AR 30. At step four, based on that determination and the recommendation of the vocational expert (“VE”), the ALJ found that after Plaintiff's alleged onset date of disability she was still capable of performing past relevant work (“PRW”) as a data entry clerk, a bookkeeper, or an office manager, as those positions were generally performed. AR 33-34. Accordingly, the ALJ did not make a step five finding and ruled that Plaintiff was not under a disability from the alleged onset date through the date of the ALJ's decision. AR 34.

         DISCUSSION

         Plaintiff seeks review of the determination that she was not disabled. She argues that the ALJ erred by: (1) failing to provide clear and convincing reasons supported by substantial evidence when discounting Plaintiff's symptom testimony; (2) discrediting the opinion of Dr. Jotham Lefford, her treating physician, and instead assigning greater weight to the reviewing state agency physicians; and (3) assessing a flawed RFC, erroneously concluding that she retained the ability to perform the requirements of her PRW.

         A. Credibility and Symptom Testimony

         1. ...


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