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Gartner v. Berryhill

United States District Court, D. Oregon

July 28, 2017

NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          Tim D. Wilborn, Wilborn Law Office, PC, Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Janice E. Hebert, Assistant United States Attorney, United States Attorney's Office, Sarah L. Martin, Special Assistant United States Attorney, Office of General Counsel, Of Attorneys for Defendant.


          Michael H. Simon United States District Judge

         Penny Gartner (“Plaintiff) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Plaintiffs application for Supplemental Security Income (“SSL) disability benefits under Title II of the Social Security Act. For the following reasons, the Court reverses the Commissioner's decision and remands for further proceedings.


         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.


         A. Plaintiff's Application

         Plaintiff was born on April 20, 1964, to a woman addicted to many different medications, and was adopted by her mother's sister at an early age. AR 447. Plaintiff dropped out of school in the tenth grade because she had trouble concentrating. Since then, Plaintiff has struggled to maintain employment and relationships. Following an abusive marriage, Plaintiff became homeless and currently lives off of food stamps and $50 per month that her adopted mother sends her. Id. On the date of the hearing, Plaintiff was living out of a tent in Bend, Oregon. AR 48.

         On May 21, 2014, Plaintiff filed her second application alleging disability beginning the date of the application. AR 171. Plaintiff requested a hearing after the application was denied. After the hearing on January 7, 2015, Administrative Law Judge (“ALJ”) John Michaelsen found Plaintiff not disabled. AR 17-30. Plaintiff timely appealed ALJ Michaelsen's decision to the Appeals Council and her appeal was denied review on May 24, 2016, making the ALJ's decision final. AR 1-7. This appeal followed.

         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 denied Plaintiffs claim for benefits using the sequential analysis. At step one, the ALJ noted that Plaintiff has not engaged in substantial gainful activity since the application date. AR 22. At step two, the ALJ found the following severe impairments: anxiety disorder; depressive disorder; post-traumatic stress disorder (“PTSD”); attention deficit hyperactivity disorder (“ADHD”); and a history of poly substance abuse. AR 22-23. At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 23. The ALJ next assessed Plaintiffs RFC, concluding that Plaintiff could perform work as follows: “full range of work at all exertional levels. In addition, the claimant is limited to simple, repetitive, routine tasks requiring no more than occasional, brief interaction with co-workers and the general public.” AR 25. At step five, the ALJ, with the testimony of a vocational expert (“VE”), determined that Plaintiff could not perform any past relevant work, but is able to perform the job of hand packager, laundry sorter, or basket filler. AR 29-30.


         Plaintiff argues that the ALJ erred by: (1) failing to provide clear and convincing reasons supported by substantial evidence to discredit Plaintiffs symptom testimony; (2) failing properly to credit the opinions of treating and examining medical sources; (3) failing fully to credit the lay witness statement; (4) failing properly to calculate Plaintiffs RFC in regards to concentration, persistence, and pace; and (5) failing to give a proper hypothetical question to the VE. The Court addresses each issue in turn.

         A. Plaintiff's Symptom Testimony

         Plaintiff argues that the ALJ improperly discounted her subjective symptom testimony when the ALJ determined that the evidence suggests Plaintiff is not as limited as she alleges. There is a two-step process for evaluating the credibility of a claimant's testimony about the severity and limiting effect of the claimant's symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ “must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Lingenfelter v. Astrue, 504 F.3d 1029, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, the claimant “need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

         Second, “if the claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter, 503 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must state which pain testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Ortez v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell, 947 F.2d at 345-46).

         Effective March 16, 2016, the Commissioner superseded Social Security Ruling (“SSR”) 96-7p, governing the assessment of a claimant's “credibility, ” and replaced it with SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to “credibility, ” clarifies that “subjective symptom evaluation is not an examination of an individual's character, ” and requires the ALJ to consider all of the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The Commissioner recommends that the ALJ examine “the entire case record, including the objective medical evidence and individual's statements about the intensity, persistence, and limiting effects of symptoms statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. at *4. The Commissioner recommends assessing: (1) the claimant's statements made to the Commissioner, medical providers, and others regarding the claimant's location, frequency and duration of symptoms, the impact of the symptoms on daily living activities, and other methods used to alleviate symptoms; (2) medical source opinions, statements, and medical reports regarding the claimant's history, treatment, responses to treatment, prior work record, efforts to work, daily activities, and other information concerning the intensity, persistence, and limiting effects of an individual's symptoms; and (3) non-medical source statements, considering how consistent those statements are with the claimant's statements about his or her symptoms and other evidence in the file. See Id. at *6-7.

         The ALJ's credibility decision may be upheld overall even if not all of the ALJ's reasons for discounting the claimant's testimony are upheld. See Batson, 359 F.3d at 1197. The ALJ may not, however, make a negative credibility finding “solely because” the claimant's symptom testimony “is not substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883.

         At the administrative hearing, Plaintiff testified that she is not able to work because she is paranoid and does not do well around a lot of people. AR 49. Plaintiff testified that she suffers from concentration issues, is always paranoid that someone is behind her, she hears voices, is always stressed, and has constant mood swings. AR 60-64. She testified she has been on and off her medication because she cannot afford it without insurance. AR 52-53. Plaintiff also testified to hand and back numbness issues that have been untreated because she cannot afford care. AR 66-67. With visible bruises and abrasions, Plaintiff testified she had been beaten by an ex-boyfriend two days before the hearing. AR 43, 64. Regarding Plaintiffs drinking problem, she testified that she drank to help her sleep and to calm herself. AR 64-65.

         The ALJ did not fully credit Plaintiffs statements regarding the extent, severity, and limiting effects of her impairments. AR 26-27. The ALJ gave three reasons for discrediting Plaintiffs claimed limitations: (1) Plaintiffs testimony was inconsistent with the scope of the her reported activities of daily living; (2) Plaintiffs treatment history and medication are inconsistent with her poverty and disability claims; and (3) Plaintiffs alcohol abuse likely affected her functioning. Plaintiff argues that the ALJ's reasons were not specific, clear, or convincing enough to discount Plaintiffs symptom testimony.

         1. Plaintiffs Daily Living Activities

         The ALJ did not fully credit Plaintiffs testimony, in part because of her daily living activities. Even though Plaintiff is homeless, the ALJ found that Plaintiff “is able to complete her activities of daily living in spite of her difficult living conditions.” AR 26. An ALJ may discount a claimant's testimony if it is inconsistent with the claimant's daily activities, or to show that the activities “meet the threshold for transferable work skills[.]” Orn, 495 F.3d at 639; Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). Although “disability claimants should not be penalized for attempting to lead normal lives in the face of their limitations, ” a level of activity that is inconsistent with claimed limitations has a bearing on the credibility of a claimant's symptom testimony. Reddick v. Chater, 157 F.3d 715, 722 (1998).

         Plaintiffs daily living activities include going to the community center and the post office, going to the shelter for food, attending appointments to find housing, spending time with friends, word searches, reading, helping another homeless gentleman who has only one leg, caring for a cat, and riding public transportation. AR 26. The ALJ found these activities to be inconsistent with Plaintiffs (1) alleged limitations from mental health symptoms; (2) alleged limitations from cognitive impairments; and (3) alleged social limitations. Id.

         a. Alleged Limitations from ...

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