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Chism v. Berryhill

United States District Court, D. Oregon, Portland Division

December 7, 2017

LEAH SUE CHISM, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE

         Leah Sue Chism ("plaintiff") seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her application for Disability Insurance Benefits ("DIB"). Because the Commissioner's decision is not supported by substantial evidence, her decision is REVERSED and REMANDED for further proceedings.

         Procedural Background

         Plaintiff filed her application for DIB on May 16, 2012, alleging disability beginning December 22, 2011. (Tr. 86-87.) The Commissioner denied her application initially and upon reconsideration. (Tr. 112-14, 121-25.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and an administrative healing was held on September 17, 2014. (Tr. 38-85, 126-27.) After the hearing, the ALJ issued a decision finding plaintiff not disabled dated October 31, 2014. (Tr. 20-37.) The Appeals Council denied plaintiffs subsequent request for review on April 20, 2016, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-7.) This appeal followed.

         Factual Background

         Born in January, 1977, plaintiff was 37 years old at the time of the administrative hearing. (Tr. 38, 100, 203.) She graduated high school and has past relevant work experience as a laser technician, central supply worker, and health club manager. (Tr. 31, 65, 99, 239, 243-45.) Plaintiff alleges disability due to multiple chemical sensitivity, mixed connective tissue disease, and a head injury resulting in traumatic brain injury. (Tr. 87, 100.)

         Standard of Review

         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) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." 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, [a court] may not substitute [its] judgment for the ALJ's, " Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation 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 sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404, 1520. First, the Commissioner determines whether the claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 404.1520(b). If so, she is not disabled.

         At step two, the Commissioner evaluates 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). If the claimant does not have a severe impairment, she is not disabled.

         At step three, the Commissioner determines whether the claimant's impairments, either individually 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). If so, she is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         At step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(f). If the claimant can perform past relevant work, she is not disabled; if she cannot, the burden shifts to the Commissioner.

         At step five, the Commissioner must establish the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566.

         The ALJ's Findings

         The ALJ performed the sequential analysis, as noted above. At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since her alleged onset date. (Tr. 25.) At step two, the ALJ concluded plaintiff had the severe impairment of a respiratory disorder. (Id.) At step three, the ALJ determined plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (Tr. 26.) The ALJ determined plaintiff had the residual functional capacity ("RFC") to perform "a full range of work at all exertional levels, " but with the following limitations;

She should not climb ladders, ropes or scaffolds. She should avoid concentrated exposure to extreme heat, humidity, and hazards. She should avoid even moderate exposure to pollutants.

(Id.) At step four, the ALJ found plaintiff was able to perform her past relevant work as a laser technician, central supply worker, and health club manager. (Tr, 31.) By finding plaintiff was able to do past relevant work, the ALJ determined plaintiff was not disabled; therefore, the ALJ did not proceed to step five. 20 C.F.R. §§ 404.1520(a)(4); 404.1520(f).

         Discussion

         Plaintiff alleges the ALJ erred by: (1) failing to provide a clear and convincing reason to reject her subjective symptom testimony; (2) improperly rejecting the medical opinions in the record; (3) improperly rejecting the lay testimony of Thomas Chism; (4) failing to find plaintiffs obesity and multiple chemical sensitivity to be medically determinable impairments; and (5) failing to find plaintiffs mixed connective tissue disease and traumatic brain injury to be severe impairments.

         I. Plaintiffs Subjective Symptom Testimony.

         Plaintiff argues that this case must be remanded because the ALJ discredited plaintiff without providing a specific, clear and convincing reason for doing so, Plaintiffs Motion for Summary Judgment 16-20 (ECF No. 16) ("Pl's Br.").

         If "there is no affirmative 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.' " Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which . . . testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).

         Examples of clear and convincing reasons include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or between his testimony and his conduct, daily activities inconsistent with the alleged symptoms, a sparse work history, testimony that is vague or less than candid, and testimony from physicians and third parties about the nature, severity and effect of the symptoms complained of. Tommasetti, 533 F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

         The ALJ found plaintiffs subjective symptom testimony "not fully credible" because: (1) plaintiff had a history of conservative treatment; (2) there was a lack of medical evidence to support plaintiffs allegations; (3) plaintiff exaggerated her symptoms and limitations; (4) plaintiffs activities of daily living were inconsistent with her alleged symptoms; and (5) plaintiff used a non-prescribed respiratory aide.

         A. Conservative Treatment.

         First, the ALJ discredited plaintiffs symptom testimony because he found that plaintiff had a history of conservative treatment. (Tr. 29.) Evidence of conservative treatment "is sufficient to discount a claimant's testimony regarding the severity of an impairment." Parra v. Astrue,481 F.3d 742, 751 (9th Cir. 2007). The ALJ noted that "despite her alleged impairments, plaintiff testified that "[n]ot one doctor has prescribed [her] with anything for anything." (Tr. 29, 56.) The ALJ also found that despite claiming multiple chemical sensitivity, plaintiff "has not seen an immunologist or allergy specialist to do an allergy test." (Tr. 29.) Plaintiff argues that she could not take medications because of her multiple chemical sensitivity. However, other than plaintiffs claim that she avoids medications because she has "some allergic reactions" to "high doses" and her claim that she has had allergic reactions to dyes, there is no evidence in the record that she cannot take medications. (Tr. 438, 443.) Indeed, the record ...


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