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Beaudry v. Berryhill

United States District Court, D. Oregon, Portland Division

September 8, 2017

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


          PATRICIA SULLIVAN United States Magistrate Judge.

         Plaintiff Sheryle Beaudry 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 Disability Insurance Benefits (“DIB”) under Title II of the Act. 42 U.S.C. § 401 et seq. For the following reasons, the Court AFFIRMS the Commissioner's decision.


         Plaintiff applied for DIB on August 27, 2012, claiming disability beginning February 11, 2010. Tr. 157-58.[2] Her claim was denied initially on December 11, 2012, and upon reconsideration on April 23, 2013. Tr. 64-73, 74-83. A hearing was held October 2, 2014, before Administrative Law Judge (“ALJ”) S. Andrew Grace. Tr. 14, 107-11, 122. Plaintiff testified at the hearing, represented by counsel; a vocational expert (“VE”), Patricia Ayerza, also testified. Id. After the hearing, the ALJ ordered a consultative physical examination report and medical source statement for plaintiff. Tr. 608-24. In light of the report and the VE's testimony, plaintiff's attorney requested either that plaintiff be found incapable of the full range of sedentary work and of sustained work activity, or that a supplemental hearing be held. Tr. 231-32. Consequently, a supplemental hearing was held on May 7, 2015. Tr. 35-63. Plaintiff testified, represented by counsel; VE Lynn Jones also testified. Id. On June 12, 2015, the ALJ issued a decision finding plaintiff not disabled under the Act and denying her benefits. Tr. 14-29. Plaintiff requested review before the Appeals Council, Tr. 9-10, which was denied September 20, 2016, Tr. 1-4. Plaintiff then sought review before this Court.[3]


         Born in 1968, plaintiff has A.A. and B.S.N. degrees in nursing, and has worked as a registered nurse. Tr. 157, 560, 612-13. At the time of the hearing, plaintiff worked two part-time jobs: magazine editor (for forty hours every three months) and Christian counselor (initially training fifteen hours per week, three hours per day, then later for fewer hours seeing clients). Tr. 40-42, 612, 686. Plaintiff suffers from chronic fatigue and pain. Tr. 200-05, 259, 306. She has had two lumbar laminectomies, a fusion in her cervical spine, and surgery for a torn rotator cuff in her left shoulder. Tr. 242, 319, 346, 424, 550. The hardware from the cervical fusion failed, and her C6-C7 vertebrae are no longer fused. Tr. 242, 500, 611. Plaintiff suffers from Lyme disease and protomyxzoa rheumatica. Tr. 299, 307, 472. Plaintiff states that she lies down a few hours every day, and has mobility and flexibility limitations. Tr. 48, 259. Plaintiff reports joint pain, cognitive dysfunction, severe fatigue, and insomnia from Lyme disease. Tr. 245-47, 252-57, 299, 509-13. Plaintiff is divorced and lives with her two high-school-age daughters, who have special needs and whom plaintiff homeschools. Tr. 44, 300, 423.


         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 had not engaged in substantial gainful activity since the alleged disability onset date. Tr. 16. Plaintiff's counseling and editing work did not constitute substantial gainful activity. Tr. 16-17. At step two, the ALJ found that plaintiff had the following severe impairments: degenerative disc disease of the cervical spine, status post cervical fusion; degenerative joint disease of the lumbar spine, status post two lumbar laminectomies; a SLAP (superior labrum, anterior to posterior) tear of the left shoulder, status post surgical arthroplasty and repair; asthma; protomyxzoa rheumatica; migraines; Lyme disease; and chronic pain syndrome. Tr. 17. The ALJ found that mitral regurgitation was not a severe impairment. Id. The ALJ found no severe medically determinable impairments of the liver, nor medically determinable impairments of anxiety, depression, or posttraumatic stress disorder. Tr. 17-19. The ALJ found no medical evidence of record of multiple sclerosis or chronic fatigue syndrome. Tr. 18. 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. 19. The ALJ found that plaintiff had the RFC to perform light work, with certain physical and cognitive limitations. Tr. 20. At step four, the ALJ found plaintiff unable to perform past relevant work. Tr. 27. At step five, the ALJ found that plaintiff could perform jobs that exist in significant numbers in the economy, including office helper, mail clerk, and storage facility rental clerk, and determined that she was not disabled under the Act and not entitled to benefits. Tr. 27-28.


         Plaintiff argues that the ALJ in three regards: (1) in rejecting her symptom testimony; (2) in rejecting the opinion of her treating physician, Douglas Eubanks, D.O.; and (3) in not assessing her neck mobility limitations. The Court finds that the ALJ did not so err.

         I. Plaintiff's ...

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