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Moore v. Berryhill

United States District Court, D. Oregon, Portland Division

January 3, 2018

LORI LYNN MOORE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          Mark D. Clarke United States Magistrate Judge.

         Lori Lynn Moore ("'plaintiff') brings this action pursuant to the Social Security Act (the "Act") to obtain judicial review of a final decision of the Commissioner of Social Security (the "Commissioner"). The Commissioner denied plaintiffs application for Title XVI Supplemental Security Income ("SSI") under the Act. For the reasons set forth below, the Commissioner's decision is AFFIRMED.

         PROCEDURAL BACKGROUND

         On June 21, 2012, plaintiff protectively applied for SSI alleging disability beginning October 6, 2004. Tr. 10, 160-68. Her application was denied initially on September 17, 2012, and upon reconsideration on December 19, 2012. Tr. 10, 63-92. Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"). Tr. 10, 110-12. On September 12, 2014, plaintiff appeared and testified at the ALJ hearing before the Honorable Kelly Wilson. Tr. 10, 27-62. An impartial vocational expert ("VE") also appeared and testified at the hearing. Id. On October 31, 2014, ALJ Wilson issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 7-26. The Appeals Council denied plaintiffs request for review on March 18, 2016, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6. Plaintiff thereafter filed a complaint in this court.

         FACTUAL BACKGROUND

         Born on May 7, 1964, plaintiff was 40 years old on the alleged onset date of disability and 50 years old at the time of the hearing. Tr. 31, 64, 79, 160. She did not graduate from high school, but later earned her GED. Tr. 32, 76, 91. Plaintiff previously worked as an office worker, book shelver, and mail clerk. Tr. 32-34, 59, 75-76, 91. Plaintiff alleges disability beginning October 6, 2004 due to fibromyalgia, depression, panic attacks, and arthritis.[1] Tr. 10, 35-37, 64, 79.

         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 and internal quotations 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. § 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 § 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. § 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141.

         At step three, the Commissioner determines whether the claimant's impairment meets or equals "one of a number of listed impairments that. . . are so severe as to preclude substantial gainful activity." Id.; 20 C.F.R. § 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.

         At step four, the Commissioner determines whether the claimant can still perform "past relevant work." Id.; 20 C.F.R. § 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 141.

         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. § 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 416.966.

         THE ALJ'S FINDINGS

         At step one of the sequential evaluation process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since June 21, 2012, the application date. Tr. 12. At step two, the ALJ determined that plaintiff had the following severe impairments: fibromyalgia, migraine, personality disorders, anxiety disorders, and affective disorders. Id. The ALJ also noted that the record contained evidence that plaintiff suffered from carpal tunnel syndrome, but found this impairment was not severe since plaintiff had not received any treatment for it during the last three years. Tr. 13. At step three, the ALJ found that plaintiffs impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Id.

         The ALJ continued the sequential evaluation process to determine how plaintiffs impairments affected her ability to work. The ALJ concluded that plaintiff had the residual functional capacity ("RFC") to perform light work, but with the following exceptions:

[S]he can perform occasional crawling and frequent balancing, stooping, kneeling, crouching, and climbing of ramps and stairs. She also cannot climb ladders, ropes, or scaffolds. She should avoid concentrated exposure to extreme heat, noise, vibration, fumes, odors, dusts, gases, and hazards. She is capable of simple, routine tasks, but cannot perform detailed or complex tasks consistently. She should not work with the public. The claimant can have superficial work with coworkers in that she can be around coworkers and interact with them briefly, but she would do better in a more solitary work setting. Finally, there should be few changes in the work setting. Tr. 14.

         At step four, the ALJ concluded that plaintiff could perform her past relevant work as a mail clerk. Tr. 21. Based on these findings, the ALJ determined that plaintiff was not disabled within the meaning of the Act. Tr. 22. The ALJ did not proceed to step five.

         DISCUSSION

         Plaintiff argues that the ALJ erred by: 1) improperly rejecting the medical opinions of Dr. Scott Alvord, Dr. Joshua Russell, Dr. Joseph Resendiz, and Dr. M. John Givi; 2) failing to find her impairments of arthritis, asthma, bilateral hip bursitis, and wrist pain were severe at step two; 3) improperly evaluating the lay witness statement of Christopher Fesler; 4) failing to provide a clear and convincing reason, supported by substantial evidence, for rejecting her subjective symptom testimony; and 5) failing to conduct a proper step four inquiry. Pl.'s Opening Br. 5-20. Pl.'s Reply Br. 1-10.

         I. Evaluation of the Medical Opinion Evidence

         Plaintiff argues that the ALJ improperly rejected the medical opinion evidence of Dr. Scott Alvord, Dr. Joshua Russell, Dr. Joseph Resendiz, and Dr. M. John Givi. Pl.'s Opening Br. 7-12, Pl.'s Reply Br. 1-5.

         In social security cases, there are three categories of medical opinions: those that come from treating, examining, and non-examining doctors. Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2008). "Generally, a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's." Id. at 1202. Opinions supported by explanations are given more authority than those that are not, as are opinions of specialists directly relating to their specialties. Id. If the treating doctor's opinion is supported by medically acceptable clinical findings and is consistent with substantial evidence in the record, controlling weight is given. Id. Nonetheless, an ALJ may discount a treating doctor's uncontroverted opinion by providing "clear and convincing" reasons supported by the record. Id. (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). If the treating doctor's opinion is in dispute, the ALJ must provide "specific and legitimate reasons" for rejecting the opinion. Tommasetti v. Astrue, 533 F.3d 1035. 1041 (9th Cir. 2008).

         A. The Opinion of ...


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