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Borst v. Berryhill

United States District Court, D. Oregon

September 29, 2017

ZAK BORST, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Zak Borst ("Borst") filed this action January 29, 2016, seeking judicial review of the Commissioner of Social Security's final decision denying his application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act (the "Act").[1] This court has jurisdiction over Borst's action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). I have considered all of the patties' briefs and all of the evidence in the administrative record. For the reasons set forth below, the Commissioner's final decision is REVERSED and REMANDED for the immediate payment of benefits.


         To establish disability within the meaning of the Act, a 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 sequential process for determining whether a claimant has made the requisite demonstration. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).[2] At the first four steps of the process, the burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

         At the first step, the Administrative Law Judge ("ALJ") considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will proceed to the second step.

         At the second step, the ALJ considers the medical severity of the claimant's impairments, See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. §§ 404.1520(a)(4)(h), 416.920(a)(4)(h). An impairment is "severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 20 C.F.R, §§ 404.1520(c), 416.920(c). The ability to perform basic work activities is defined as "the abilities and aptitudes necessaiy to do most jobs." 20 C.F.R. §§ 404.1521(b), 416.921(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(h), 404.1520(c), 416.920(a)(4)(h), 416.920(c). Nevertheless, it is well established that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-154. "An impairment or combination of impairments can be found 'not severe' only if the evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual[']s ability to work.'" Id., quoting S.S.R. 85-28, 1985 SSR LEXIS 19 (1985).

         If the claimant's impairments are severe, the evaluation will proceed to the third step, at which the ALJ determines whether the claimant's impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the claimant will conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii)} 404.1520(d), 416.920(a)(4)(iii), 416.920(d).

         If the claimant's impairments are not equivalent to one of the enumerated impairments, between the third and the fourth steps the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all the relevant medical and other evidence in the claimant's case record. See 20 C.F.R. §§ 404.1520(e), 416.920(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related physical and/or mental activities on a regular and continuing basis, [3] despite the limitations imposed by the claimant's impairments. See 20 C.F.R. §§ 404.1545(a), 416.945(a); see also S.S.R. No. 96-8p, 1996 SSR LEXIS 5 (July 2, 1996).

         At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable of performing his or her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden of proof shifts, for the first time, to the Commissioner.

         At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's age, education, and work experience to determine whether a person with those characteristics and RFC could perform any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. If the Commissioner meets her burden to demonstrate the existence in significant numbers in the national economy of jobs capable of being performed by a person with the RFC assessed by the ALJ between the third and fourth steps of the five-step process, the claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416.966. A claimant will be found entitled to benefits if the Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.l520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).


         A reviewing court must affirm an Administrative Law Judge's decision if the ALJ applied proper legal standards and his or her findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); see also Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). '"Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).

         The court must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id., quoting Reddick v. Chafer, 157 F.3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of the Commissioner. See id., citing Robbins, 466 F.3d at 882; see also Edlimdv. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Moreover, the court may not rely upon its own independent findings of fact in determining whether the ALJ's findings are supported by substantial evidence of record. See Connettv. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chenery Corp., 332 U.S, 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible to more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).


         Borst was born on January 3, 1982. Tr. 114, 127, 144, 339, 341, 413.[5] He graduated college, serves in the National Guard, and speaks English. Tr. 94, 106-07, 155, 165, 167, 170, 427, 429. According to the evidence of record, prior to his disability onset date of January 23, 2014, Borst worked as an attendant at a children's institution, volunteer information clerk, clinical counselor, body guard, artillery or naval gun fire observer, and sales clerk. Tr. 93-94, 105-06, 108.

         The earliest medical evidence in the administrative record is from April 16, 2012, when Borst received treatment from Michael Drager, D.P.M., for discomfort in both of his feet. Tr. 602. Borst reported that his feet become more uncomfortable with increased activity, and had he tried different shoes and insoles without success, Id. Upon examination, Dr. Drager found no swelling or discoloration, and noted that Borst's feet were warm to the touch, that his light touch and gross sensation were normal, and he had a "relatively stable gait with only mild pronation and not medical column collapse." Id. Dr. Drager diagnosed mechanical foot pain with intrinsic tendonitis, placed Borst in orthotics, and prescribed the use of Ibuprofen twice a day with icing and stretching. Id.

         On May 14, 2012, Borst had a follow-up appointment with Dr. Drager where he reported wearing the orthotics "most all of the time, " and only noticing pain when he runs. Tr. 603. Dr. Drager found Borst's "neurovascular status is grossly intact, " and there was "no edema, erythema, or discoloration, " and "no discomfort in the interspaces with palpation and compression, " or discomfort around the tarsal tunnel area. Id. He scheduled a follow-up appointment for Borst for the next week to consider an injection for Borst's foot pain. Id.

         On May 21, 2012, Borst returned for his one-week follow-up appointment with Dr. Drager where Dr, Drager noted mild foot discomfort in Borst's "area of the 3rd interspace near the metatarsal heads and into the adjacent aspects of the toes." Tr. 603. Dr. Drager injected Borst with Kenalog and Marcaine and in a separate note from that same day wrote that Borst "must run at own pace to tolerance until issues are resolved." Tr. 601, 734.

         On June 4, 2012, Borst failed to show up for his scheduled appointment with Dr. Drager, but was seen on June 18, 2012. Tr. 603, 604. On June 18, Dr. Drager found "no real change" since his last appointment, but noted that Borst complained of "general weakness and muscle pain, " explaining that sometimes he cannot get out of bed, move, and has a hard time lifting his arms above his shoulders. Tr. 604. Borst also reported having "some strange sensations in his legs and feet, " and that he "is very tired and can sleep 14 plus hours per day." Id. Upon examination, Dr. Drager found Borst's sensation was intact, there was no edema, erythema, or discoloration, and his muscle strength was normal and symmetrical. Id.

         On July 16, 2012, Borst underwent a sleep study, and the following day results were interpreted by Dr. David Ramey. Tr. 554, 716. Borst was found to suffer from "profound daytime somnolence requiring multiple over-the-counter stimulant medications, " and was diagnosed with "very mild obstructive sleep apnea." Id.

         On December 1, 2012, an Officer Evaluation Report was completed on Borst's behalf. Tr. 566-70, 710-13. The report indicated that Borst was able to carry and fire his assigned weapon, evade direct and indirect fire, ride in a military vehicle for 12 hours in a day, wear a helmet and body armor for at least 12 hours in a day, wear load bearing equipment or military boots and uniform for 12 hours a day, and wear a protective mask for at least 2 continuous hours in a day. Tr. 569, 712, He was unable to move 40ibs while wearing protective gear, or live in an austere environment without worsening his medical condition. Id.

         On January 14, 2013, Borst had a follow-up appointment with Dr. Ramey, where he noted that Borst had "a history of hypersomnolence with a relatively unremarkable diagnostic polysomnogram, " Tr. 615, 623. Dr. Ramey noted that Borst was taking Adderall twice daily, which "has resulted in dramatic improvement of his daytime symptoms, " and he "is not having any problems tolerating it." Id. Dr. Ramey also noted Borst's history of "diffuse shooting pains in both his arms and his legs" noting that Borst had an electromyography and nerve conduction studies done, which returned normal results. Id. Overall, Dr. Ramey found Borst was "doing well on Adderall, " and planned to refer Borst to rheumatology for his diffuse pain complaints. Tr. 616, 624.

         On March 5, 2013, Borst presented at Kootenai Rheumatology and Internal Medicine to establish care and was seen by Dr. Andrea Dinning. Tr. 661. Borst was noted to have narcolepsy, chronic fatigue syndrome, and caipal tunnel and reported taking Adderall and Provigil for his narcolepsy and chronic fatigue syndrome, but reported Provigil caused stiffness in his back. Id. Borst was also noted to suffer from connective tissue disease, for which he received a steroid shot, which "helped a lot." Id. Dr .Dinning increased his Adderall dosage to treat his chronic fatigue syndrome. Tr. 663.

         On October 24, 2013, Borst had a follow-up appointment with Dr. Dinning to clarify his previous diagnosis of connective tissue disorder. Tr. 656. Borst also complained of depression and anxiety, and expressed interest in receiving prescription medications for this. Id. Upon examination, he was found positive for depression, anxiety, fatigue, back pain, joint pain, and neck pain, and was started on Lexapro for his depression, Tr. 657-58.

         On October 28, 2013, Borst had a appointment with Mr. Thomas Byrne, PA-C, to establish care. Tr. 611-14. Borst complained of pain and fatigue symptoms and reported that he experiences pain daily, with occasional flares which he described as feeling like "his joints are being pulled apart." Tr. 611. Borst reported taking Prednisone for pain flare-ups and Tramadol and Ibuprofen for daily pain management. Id. Mr. Byrne diagnosed Borst with a sleep disorder and chronic pain, which was described as "stable, " and prescribed Mobic, Minocycline, Lexapro, hydroxychloroquine, and Tramadol. Tr. 613.

         On November 26, 2013, Borst had an appointment with Dr.Dinning to discuss his medications and disability paperwork where she noted that Borst was taking Adderall for narcolepsy, Lexapro for depression, and Plaquenil and Ultram for his connective tissue disorder. Tr. 653. Dr. Dinning also noted that Borst had recently seen a counselor who "thinks he has PTSD, " Id. Dr. Dinning increased Borst's Adderall, continued his Lexapro, Plaquenil and Ultram, and encouraged him to see Dr. Dustin Dinning for an appointment to discuss switching medication for his connective tissue disorder after reporting that he was "not doing well." Tr. 654.

         On December 16, 2013, Dustin Dinning, D.O., wrote a letter noting that he had been treating Borst for chronic fatigue, chronic pain, and fibromyalgia syndrome since February 28, 2013. Tr. 562, 735. Dr. Dinning noted that Borst's fatigue and musculoskeletal pain persisted despite the use of medications, and wrote he "foresee[s] these problems being persistent and refractory to medical treatment." Id. Overall, Dr. Dinning concluded that "[a]t this time, due to the severity of his symptoms, I don't think he can work any job." Tr. 735.

         The following day, on December 17, 2013, Dr. Dustin Dinning wrote a letter noting that he would no longer serve as Borst's physician due to "frequent no shows" for his scheduled appointments. Tr. 563, 736.

         On January 7, 2014, Borst had a follow-up appointment with Dr. Ramey for idiopathic hypersomnia. Tr. 556, 729. Dr, Ramey noted that Adderall was "now having decreased effectiveness, " so he switched Borst back to Provigil. Tr. 558, 731. Dr. Ramey also noted that Borst was diagnosed with fibromyalgia and placed on Gabapentin by the rheumatology department, but was not tolerating the prescription well due to increased somnolence. Tr. 556, 729. Dr. Ramey suggested that Borst speak with Dr. Dustin Dinning for an alternative medication for his fibromyalgia pain. Tr. 558, 731.

         On January 8, 2014, Dr. Ramey completed a Narcolepsy Disability Benefits Questionnaire where he diagnosed Borst with idiopathic hypersomnia. Tr. 751-63. Dr. Ramey wrote that Borst complained of excessive daytime sleepiness, "despite adequate total sleep time, " and overall noted that Borst's narcolepsy affected his ability to work. Tr. 751-52.

         On February 26, 2014, Borst had a follow-up appointment with Dr. Andrea Dinning where she noted that his De Quervain's tenosynovitis[6] was doing "much better, " and Adderall and Flexeril were working well for his chronic fatigue and insomnia, respectively. Tr. 651. Borst was noted to be taking Venlafaxine for depression, but admitted to still having a depressed mood, so Dr. Dinning increased his Venlafaxine dosage. Id.

         On March 26, 2014, Borst had a follow-up appointment with Dr. Andrea Dinning for his chronic fatigue syndrome and narcolepsy. Tr. 649-50. Dr. Dinning noted that Borst struggled daily with fatigue, but had a normal sleep study. Tr. 649. Borst was referred to Dr. Craig Weisenhutter for his fibromyalgia and told to continue with Adderall and Venflaxine for chronic fatigue syndrome and depression respectively. Tr. 649-50.

         The following month, on April 22, 2014, Borst had another follow-up appointment with Dr. Andrea Dinning for his chronic fatigue syndrome and fibromyalgia. Tr. 647-48. Borst complained of dizziness, seeing spots, and occasional confusion, and that taking Provigil and Adderall together was making him "too sleepy." Tr. 647. Dr. Dinning ordered an MRI for Borst's confusion and dizziness. Tr. 648.

         On April 29, 2014, Borst had an MRI taken of his brain. Tr. 665. Imaging results showed "[n]egative enhanced and unenhanced MRI of the brain" with results that were unremarkable, with no abnormal findings. Tr. 665, 667.

         On May 21, 2014, Borst had an appointment with Dr. Andrea Dinning for questions concerning his fibromyalgia. Tr. 644-46. Borst reported pain that "comes and goes" in his shoulders, wrist, and low back, and that he had taken a Hydrocodone which had helped. Tr, 644. He also requested a prescription of Paxil for his depression after reporting that his wife uses it and it had worked for him. Id. Dr. Dinning gave Borst a referral to Dr. Michael Coats for chronic fatigue syndrome, prescribed him Paxil for depression, and scheduled neurocognitive testing. Tr. 645.

         That same day, Borst was referred to Dr. Daryl MacCarter for a second opinion and further evaluation of "migratory joint complaints and myalgias." Tr. 685-87. Dr. MacCarter wrote that Borst reported fatigue, somnolence, and low back pain, and was previously diagnosed with fibromyalgia. Tr. 685. Upon physical examination, Dr. MacCarter found Borst had "no tender points on joint exam suggestive of fibromyalgia, " mild tenderness in both wrists, normal range of motion in his elbows and shoulders with mild range of motion in the right shoulder, mild loss of flexion in his lumbar spine, and tenderness in his low back and the sacroiliac joints. Tr. 686. Dr. MacCarter assessed Borst with probable rheumatoid arthritis and associated Sjogren's syndrome, and ordered x-rays and consideration of an MRI to check for bone marrow edema. Tr. 687.

         On May 29, 2014, Borst returned for a follow-up appointment with Dr. Ramey where he found on examination that Borst "still has no other symptoms suggestive of narcolepsy including cataplexy, sleep paralysis, or hypnagogic/hypnopompic hallucinations." Tr. 620-22, 628-30. Dr. Ramey wrote that Borst suffers from idiopathic hypersomnia, but noted that whether Borst "has another coexisting condition such as chronic fatigue syndrome is not entirely clear, " and that he would not be able to make that diagnosis. Tr. 621, 629. Dr. Ramey also wrote that Borst had "seemed to develop a tolerance" to Adderall, which he was currently treating with. Tr. 620, 628.

         On June 19, 2014, Borst had an follow-up appointment with Amy Ellsworth, PA-C for his migratory myalgias, arthralgias, and extreme fatigue. Tr. 641-43. Borst reported using Pro vigil and Adderall, but noted that Provigil caused extreme fatigue and the Adderall was no longer as effective as before. Tr. 641. Borst also presented with questions regarding exposure to polyhydrocarbons, and wondered if they were related to his symptoms. Id. Ms. Ellsworth prescribed Cymbalta for Borst's fibromyalgia, chronic fatigue syndrome, and depression and told Borst to stop taking Paxil. Tr. 643. Ms. Ellsworth also wrote that she would inquire about testing for polyhydrocarbon exposure after Borst was found to be positive for anti-nuclear antibody (ANA). Id.

         On July 12, 2014, Borst had an appointment with Douglas Dero, D.O. for concerns regarding upper extremity symptoms. Tr. 631-32. Dr, Dero noted that Borst complained of tingling and pain, yet EMG results were negative. Tr. 631. Borst reported that he had "taken himself off all medications" and "was wondering if that was causing some problems." Id., Upon physical examination, Dr. Dero found that Borst's neck was unremarkable, he had no bony prominence tenderness, no muscle weakness by individual testing, and his upper extremities were neurovascularly intact. Id. Dr. Dero's impression was that Borst suffered from paresthesias and pain of both upper extremities and gave Borst a dose of Prednisone. Id. Dr. Dero did not recommend any other diagnostic tests, but did discuss having Borst get another MRI. Id.

         On July 17, 2014, Borst had an appointment with Ms. Ellsworth, PA-C for follow-up care relating to an emergency room visit he made for tingling and numbness of his bilateral upper extremities. Tr. 637-40. Borst reported experiencing tingling in his fingers that morning, which became worst when lying down, and blurry vision. Tr. 637. Borst also reported that his memory problems "have worsened" and he needs to set reminders in order to remember to take his medication, Id. Borst requested a letter requesting supervision while at work and the ability to "access bed rest as needed for flare ups." Id. Ms. Ellsworth noted that Borst had recently ran out of Adderall and was using Hydroxycut to stay awake, which she discouraged and recommended that Borst continue to use Adderall. Tr. 637, 639. She wrote that Borst's stress could be contributing to his fatigue and noted that the paresthesia of his hand "appear[ed] to be improving, " but she would schedule an MRI, per Borst's request, if the paresthesia continued. Tr. 639.

         On July 28, 2014, Borst filed applications for Disability Insurance Benefits and Supplemental Security Income alleging disability beginning January 23, 20124. Tr. 339-40, 341-50.

         On August 13, 2014, Borst had an appointment with Ms. Ellsworth with complaints of dizziness for two weeks, confusion, left arm pain, and chronic fatigue. Tr. 633-36. Borst described his dizziness as mild, and his confusion as "spontaneous and longstanding, " and indicated he was worse during the last two weeks with "confusion, dizziness, headaches, paresthesia, and tingling." Tr. 633. Additionally, Borst described his pain as "aching and electrical, " and was aggravated by lifting. Id. Borst noted that he had experienced a pain flare-up the week prior, which he tried to relieve with ibuprofen, ice, heat, and rest, but reported "little relief." Id. He requested pain medication for these pain flare-ups, Id. Ms. Ellsworth examined Borst and found no edema, normal memory, cranial nerves that were grossly intact, that he had an appropriate mood and affect, and was oriented to time, place, person, and situation. Tr. 635. She assessed Borst with dizziness, which she noted was resolved and had an unknown etiology; chronic fatigue syndrome, which was under "fair control with AdderaU" and noted that stress may be adding to this; and addressed Borst's left arm pain, noting that it had resolved and she prescribed Norco and encouraged massage therapy. Tr. 635-36.

         On September 18, 2014, Borst completed an Adult Function Report. Tr. 444-51. Borst wrote that his illnesses, injuries, or conditions affect his ability to work because he is unable to stay awake due to "narcoleptic symptoms caused by idiopathic hypersomnolence, " and is unable to attend recovery "due to 'flare-up' symptoms, diffuse pain, [and] weakness associated with chronic fatigue syndrome." Tr. 444. Borst also wrote that he cares for his wife and children, cooks one meal a week, drives his children to school, completes "1-4 chores a day, " including laundry, dishes, and vacuuming, yet noted that his wife helps care for their children when he "can't stay awake." Tr, 445. Borst reported being able to drive when his "meds are working" and gets out of the house by walking or driving. Tr. 447. Borst reported being able to shop in stores and online for food and household items, but was unable to pay bills, count change, handle a savings account, or use a checkbook because he "forget[s] things and misunderstands instructions, " and had "double paid bills in the past." Id., Borst reported spending time with others, occasionally needing someone to accompany him when he goes places, and always having someone to help if he "ha[s] both kids with him." Tr. 448. He also reported having trouble ...

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