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Miles v. Berryhill

United States District Court, D. Oregon, Eugene Division

August 7, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.



         Plaintiff Kymberly LaGrassa Miles brings this action pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (the “Commissioner”). The Commissioner denied plaintiff Supplemental Security Income (“SSI”) under Title XVI of the Act. 42 U.S.C. § 1381 et seq. For the following reasons, the Court REVERSES the Commissioner's decision and REMANDS for further administrative proceedings.


         Plaintiff applied for SSI on June 22, 2011. Tr. 258-68.[2] She originally asserted disability beginning August 1, 2005, Tr. 258, but subsequently amended that date to June 9, 2011, with a closed period of disability ending March 31, 2013. Tr. 40-41, 258, 370. Her claim was denied initially on November 2, 2011, and on reconsideration on January 4, 2013. Tr. 177-80, 184-85. A hearing was held April 24, 2014, before Administrative Law Judge (“ALJ”) Janice E. Shave. Tr. 34-82 (hearing transcript). Plaintiff testified at the hearing, represented by counsel; a vocational expert (“VE”), Katie Macy-Powers, also testified. Id. On June 16, 2014, the ALJ issued a decision finding plaintiff not disabled under the Act and denying her SSI. Tr. 9-33. Plaintiff requested review before the Appeals Council, Tr. 6-8, which was denied October 15, 2015, Tr. 1-4. Plaintiff then sought review before this Court.[3]


         Born in 1969, plaintiff has a high-school-level education with some college. Tr. 103, 258. She has previously worked as a home health aide, Tr. 66, and currently works as “a tech for a detox and sobering company, ” Tr. 42. Plaintiff has been diagnosed with obesity, back pain, fibromyalgia, attention deficit disorder (“ADD”), bipolar disorder or other affective disorder (which the ALJ characterized as “bipolar disorder vs. depressive disorder vs. mood disorder due to medical condition”), anxiety disorder (“generalized anxiety disorder vs. a panic disorder”), bilateral degenerative joint disease in the knees with chronic knee pain, irritable bowel syndrome, headaches, insomnia, diabetes mellitus type 2, urinary incontinence and recurrent urinary tract infections, and chronic fatigue. Tr. 14, 377, 386, 392, 400-05, 421-22, 427, 433, 439, 408, 451, 474, 476-78, 480, 483, 487, 494-97, 507, 512, 515, 525, 586, 617-18. Some of these conditions improved somewhat after plaintiff lost weight and had gastric bypass surgery in March 2012; plaintiff also allows that some conditions became non-severe on or after March 31, 2013. See Pl. Br., at 3 (Docket No. 20); Tr. 57-58, 603-05. Plaintiff has other conditions that have affected her functioning, including polycystic ovarian syndrome, urinary incontinence, reactive airway disease (when plaintiff was a smoker), hyperlipidemia, dysuria, urinary tract infections, gastroesophageal reflux disease, polymyalgia, and possible borderline intellectual functioning. Tr. 400, 402, 403, 439, 456, 477, 480, 507, 539, 629.


         The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “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.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation”). “[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) (quotation omitted).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five-step 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. First, the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). At 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). A severe impairment is one “which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At 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.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141. At this point, the ALJ must evaluate medical and other 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 her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). The Commissioner proceeds to the fourth step to determine whether the claimant can perform “past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.


         At step one, the ALJ found that plaintiff did not engage in substantial gainful activity during the alleged disability period of June 9, 2011, to March 31, 2013. Tr. 14. At step two, the ALJ found that plaintiff had the following severe impairments: obesity, back pain and myalgia, ADD, “bipolar disorder vs. depressive disorder vs. mood disorder due to medical condition, ” and “generalized anxiety disorder vs. panic disorder.” Id. The ALJ found that the following were not severe impairments for plaintiff: post-Roux-en-Y gastric bypass surgery, history of methamphetamine dependence, chronically painful right knee, ankle injury and pain, diabetes mellitus, polycystic ovary syndrome, insomnia, irritable bowel syndrome, fibromyalgia, urinary incontinence, borderline intellectual functioning, and reactive airway disease. Tr. 15-17. At step three, the ALJ found that plaintiff did not have an impairment or combination thereof that met or medically equaled a listed impairment. Tr. 17.

         The ALJ then found that plaintiff had a RFC to perform light work, with certain physical, social, and mental limitations. Tr. 19. At step four, the ALJ found plaintiff unable to perform any past relevant work. Tr. 26. At step five, the ALJ found that plaintiff could perform jobs that exist in significant numbers in the national economy, including housekeeper, photocopy machine operator, and marker, and so determined that plaintiff was not disabled under the Act during the period of June 9, 2011, to March 31, 2013, and not entitled to benefits. Tr. 27.


         Plaintiff argues that the ALJ in four regards: (1) in weighing the medical evidence and expert medical opinions; (2) in finding that the combination of severe impairments did not equal a listed impairment; (3) in finding plaintiff's symptom testimony less than credible; and (4) in formulating the RFC and finding that plaintiff could perform other work. The Court finds that the ALJ erred in weighing the medical evidence and medical expert opinions, and that the ALJ must as a result also reevaluate the RFC and whether plaintiff could perform other work. The Court finds that the ALJ did not err in the other ways plaintiff contends.

         I. Medical Evidence and Expert Medical Opinions

         Plaintiff criticizes the weight that the ALJ assigned to the expert testimony of four doctors: Pamela Roman, Ph.D., a consultant evaluating psychologist who evaluated plaintiff after the closed period of disability (whose opinion the ALJ gave “significant weight”), Tr. 23; Linda Jensen, M.D., a non-examining state physician (given “partial weight”), Tr. 25; two non-examining, consultant state mental health professionals, psychiatrist Robert Winslow, M.D., and psychologist Bill Hennings, Ph.D. (given ...

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