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Fowler v. Berryhill

United States District Court, D. Oregon

January 26, 2018

KAREN FOWLER, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.

          Bruce W. Brewer, Law Offices of Bruce W. Brewer, PC, Of Attorney for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata A.Gowie, Assistant United States Attorney, United States Attorney's Office, Martha A. Boden, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon, United States District Judge

         Karen Fowler (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her applications for Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”) pursuant to the Social Security Act. Because the Commissioner's decision is not based on the proper legal standards and the findings are not supported by substantial evidence, the decision is REVERSED and REMANDED for further proceedings consistent with this opinion.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means “more than a mere scintilla but less than preponderance.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

         Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[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) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.

         BACKGROUND

         A. Plaintiff's Application

         Plaintiff was born December 1, 1951. Administrative Record (“AR”) 113. She filed her application for DIB on May 20, 2013, when she was 61 years old, alleging disability beginning on February 28, 2009, when she was 57 years old. AR 113. She also prospectively filed an application for SSI on the same date. AR 115. Plaintiff alleges disability based on chronic neck and back pain, hearing loss, hypertention, and vertigo. AR 115. The Commissioner denied Plaintiff's applications for DIB and SSI on August 1, 2013, and on reconsideration on October 8, 2013. AR 69, 78, 93, 104.

         On October 28, 2013, Plaintiff requested a hearing to review the denial of her applications for SSI and DIB. AR 148. The ALJ granted the request on November 17, 2014, and scheduled the hearing for February 20, 2015. AR 181. Administrative Law Judge (“ALJ”) Vadim Mozyrsky presided over the hearing. AR 30. The ALJ issued a decision finding Plaintiff was not disabled and denied Plaintiff's application for SSI and DIB on May 22, 2015. AR 14. On June 17, 2015, Plaintiff requested review by the agency Appeals Council and requested more time to submit additional evidence. AR 13. On July 22, 2015, the Appeals Council granted the request for additional time. AR 8. On May 24, 2016, the Appeals Council granted Plaintiff's request to add audiology reports from Albertina Kerr dating from February 10, 2015 through April 29, 2015, and a letter from Plaintiff's representative dated August 31, 2015. AR 7. On the same day, the Appeals Council, finding no reason under the Agency's rules to review the ALJ's decision, denied Plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner. AR 1. Plaintiff seeks review of the Commissioner's decision that Plaintiff is not disabled.

         B. The Sequential Analysis

         A claimant is disabled if he or she is 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). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment “severe” under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant 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 his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966 (describing “work which exists in the national economy”). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.

         C. The ALJ's Decision

         The ALJ applied the sequential analysis described above. AR 17-23. At step one, the ALJ found Plaintiff had not engaged in any substantial gainful activity after the alleged onset date of February 28, 2009. AR 19. At step two, the ALJ found that Plaintiff had the severe impairments of bilateral hearing loss, chronic neck and back pain, and vertigo. AR 19. At step three, the ALJ found that Plaintiff's impairments did not meet the criteria of any listed impairment singularly or in combination under 20 CFR §§ 404.1520(d), 404.1525, 404.1526, 416.920, 416.920(d) or 416.926. AR 20.

         The ALJ then determined that Plaintiff's RFC allow her:

[T]o lift 20 pounds occasionally and 10 pounds frequently, carry 20 pounds occasionally and 10 pounds frequently, sit 6 hours out of an 8-hour day and stand or walk 2 hours out of an 8-hour day, push and pull as much as she can lift and carry, occasionally reach overhead bilaterally, frequently climb ramps and stairs, never climb ladders and scaffolds, occasionally balance, occasionally crawl, and [that she] would need a quiet noise environment.

AR 20. At step four, the ALJ found that Plaintiff was capable of performing the past relevant work of an appointment setter and telephone solicitor and that such jobs were not precluded by Plaintiff's RFC. AR 23. As such, the ALJ found that Plaintiff was “not disabled” from the filing date of Plaintiff's application to the date of the decision, and rejected Plaintiff's application for SSI and DIB. AR 23.

         DISCUSSION

         Plaintiff argues that the ALJ erred by: (A) finding that Plaintiff could perform the job of telephone solicitor because it conflicts with Plaintiff's RFC and the ALJ improperly relied on the testimony of the Vocational Expert (“VE”) without explaining the divergence with the job description in the Dictionary of Occupational Titles (“DOT”); (B) failing to provide specific and legitimate reasons for discounting Dr. Michael Flaming's opinion that Plaintiff was limited in operating over the telephone; (C) finding that Plaintiff's past relevant work of appointment setter was performed at the level of substantial gainful activity (D) rejecting the opinion of Audiologist (“Au.D.”) Ela Nelson; and (E) failing to offer clear and convincing reasons for rejecting Plaintiff's testimony. ECF 15. The Court addresses each assignment of error in turn.

         A. ...


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