Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fritz v. Berryhill

United States District Court, D. Oregon

November 16, 2017

BERNITA LOUISE FRITZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Merrill Schneider SCHNEIDER KERR & ROBICHAUX Attorney for Plaintiff.

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon Janice E. Hebert ASSISTANT UNITED STATES ATTORNEY.

          Alexis L. Toma SPECIAL ASSISTANT UNITED STATES ATTORNEY Attorneys for Defendant.

          OPINION & ORDER

          Marco A. Hernandez United States District Judge

         Plaintiff Bernita Fritz brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB) and supplemental security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I affirm the Commissioner's decision.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB and SSI on December 28, 2010, alleging an onset date of November 6, 2009. Tr. 188-95 (DIB); Tr. 196-01 (SSI). Her applications were denied initially and on reconsideration. Tr. 77-86, 97 (DIB, Initial); Tr. 87-96, 98 (SSI, Initial); Tr. 99-110, 123 (DIB, Reconsideration); Tr. 111-22, 124 (SSI, Reconsideration). On November 28, 2012, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 485-526. On January 24, 2013, the ALJ found Plaintiff not disabled. Tr. 13-25. The Appeals Council denied review. Tr. 1-3 Plaintiff appealed that decision to this Court. On May 13, 2015, Judge Marsh found that the ALJ had erred in several respects and remanded the case for further administrative proceedings. Tr. 559-81. The Appeals Council remanded the case to an ALJ in October 2015. Tr. 585. On July 12, 2016, a different ALJ held a new hearing at which Plaintiff appeared with counsel. Tr. 454-84. On September 28, 2016, that ALJ found Plaintiff not disabled. Tr. 432-53. Plaintiff then filed a Complaint in this Court.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on having bipolar disorder, high blood pressure, and high cholesterol. Tr. 217. At the time of the July 2016 hearing, she was fifty-three years old. Tr. 459. She has a GED and has past relevant work experience as a nursing assistant and gas station attendant. Tr. 224, 478.

         SEQUENTIAL DISABILITY EVALUATION

         A claimant is disabled if 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), 1382c(3)(a).

         Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In 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). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether plaintiff's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. Tr. 437. Next, at step two, the ALJ determined that Plaintiff has severe impairments of obesity, respiratory disorders described as asthma and COPD, and mental health conditions described as bipolar disorder and alcohol dependence. Tr. 437-38. However, at step three, the ALJ determined that Plaintiff's impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 438-40.

         At step four, the ALJ concluded that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.927(b), except that she can lift and carry ten pounds frequently and twenty pounds occasionally, she can stand or walk up to six hours in an eight-hour workday with normal breaks, and she has no limit on her ability to sit. Tr. 440. She is also limited to no climbing of ladders, ropes, or scaffolds, she should avoid exposure to extremes of cold, she should avoid exposure to respiratory irritants such as fumes, odors, dust, and gasses, and she should not work around hazards such as unprotected heights and dangerous machinery. Id. Further, the ALJ restricted her to remembering, understanding, and carrying out tasks or instructions consistent with occupations which have a significant vocational preparation (SVP) of 1- 2. Id. Additionally, she should have no interaction with the general public, which the ALJ explained meant that while she could walk by the general public, she should not be performing tasks involving "real verbal communication[.]" Id. Finally, the ALJ stated that while Plaintiff could work in proximity to coworkers, she would do best performing tasks that do not require teamwork. Id.

         With this RFC, the ALJ determined that Plaintiff is unable to perform any of her past relevant work. Tr. 445. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as laundry worker and electronics worker. Tr. 446. Thus, the ALJ determined that Plaintiff is not disabled. Id.

         STANDARD OF REVIEW

         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("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") (internal quotation marks omitted).

         DISCUSSION

         In her Opening Memorandum, Plaintiff contends that the ALJ erred by (1) improperly finding her subjective testimony not credible; (2) improperly rejecting lay opinion testimony; and (3) improperly considering medical opinions. ECF 14. In her Reply Memorandum, she suggests that the ALJ further erred in assessing Plaintiff's concentration abilities and in regard to her physical impairments. ECF 17.

         I. Plaintiff's Credibility

         The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591. Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains, an adverse credibility finding must be based on 'clear and convincing reasons'"); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages in two-step analysis to determine credibility: First, the ALJ determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged"; and second, if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give "specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.") (internal quotation marks omitted).

         When determining the credibility of a plaintiff's complaints of pain or other limitations, the ALJ may properly consider several factors, including the plaintiff's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may also consider the ability to perform household chores, the lack of any side effects from prescribed medications, and the unexplained absence of treatment for excessive pain. Id.; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) ("The ALJ may consider many factors in weighing a claimant's credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.") (internal quotation marks omitted).

         As the Ninth Circuit explained in Molina;

In evaluating the claimant's testimony, the ALJ may use ordinary techniques of credibility evaluation. For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct, unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and whether the claimant engages in daily activities inconsistent with the alleged symptoms[.] While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant's testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting[.] Even where those ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.