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Kuhns v. Berryhill

United States District Court, D. Oregon, Portland Division

February 12, 2018

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          Drew L. Johnson Sherwood J. Reese Drew L. Johnson, P.C. Attorneys for Plaintiff

          Billy Williams United States Attorney Renata Gowie Assistant United States Attorney

          Martha A. Boden Special Assistant United States Attorney Attorneys for Defendant

          OPINION & ORDER

          HERNÁNDEZ, District Judge

         Plaintiff Roxie Ann Kuhns brings this action for judicial review of the Commissioner's final decision denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). The issues before the Court are whether the Administrative Law Judge (“ALJ”) erred by: (1) discounting Plaintiff's symptom testimony; (2) discounting the opinion of Fred Weisensee, M.D., Plaintiff's primary-care provider; (3) discounting the opinions of Licensed Clinical Social Workers (“LCSW”) Tanya Thompson and Carolyn Moore; and (4) discounting the lay-witness testimony of Ellen Kuhns, Plaintiff's daughter. Because the ALJ improperly discredited testimony that, when credited as true, would warrant awarding benefits, the Court reverses the Commissioner's final decision and remands this case for an immediate award of benefits.


         Plaintiff applied for SSI on September 29, 2011, alleging a disability onset date of September 28, 2009. Tr. 146, 530.[1] Plaintiff's application was denied initially and upon reconsideration. Tr. 62-70. Plaintiff's first administrative hearing was held on July 24, 2013, before Administrative Law Judge Elizabeth Watson. Tr. 27. ALJ Watson denied Plaintiff's claim in a written decision issued on August 13, 2013. Tr. 12-21. The Appeals Council denied review, rendering ALJ Watson's decision final. Tr. 1-4.

         United States Magistrate Judge John V. Acosta reversed the Commissioner's decision and remanded the case for further administrative proceedings on February 8, 2016. Tr. 583-94. See also Kuhns v. Colvin, No. 6:15-cv-00430-AC, 2016 WL 520981 (D. Or. Feb. 8, 2016). Judge Acosta found ALJ Watson erred when she discredited Plaintiff' symptom testimony and the lay testimony of four of Plaintiff's friends and family members (including Ellen Kuhns) without providing legally sufficient reasons for doing so. Tr. 587-91. Judge Acosta, however, noted the “record as a whole creat[ed] serious doubt that plaintiff is, in fact, disabled” because the consultative nonexamining physicians found Plaintiff capable of performing medium-exertional work. Tr. 593. Accordingly, Judge Acosta remanded the matter to the Commissioner to “resolve the conflict between plaintiff's testimony, the lay opinion evidence, and the opinions of the consultative physicians.” Tr. 593.

         In the meantime, on March 17, 2015, Plaintiff filed subsequent applications for SSI and Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. Tr. 530. At the remand hearing on September 20, 2016, however, Plaintiff voluntarily dismissed her DIB application, and the SSI application was consolidated with her original September 29, 2011, application. Tr. 527, 530-31. ALJ Katherine Weatherly presided over Plaintiff's remand hearing. Tr. 527. ALJ Weatherly, however, also determined Plaintiff was not disabled from the September 29, 2011, alleged onset date, until January 23, 2016. Tr. 505-19. As of January 23, 2016, however, ALJ Weatherly found Plaintiff to be disabled. Tr. 518-19.


         A claimant is disabled if 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). Disability claims are evaluated according to a five-step procedure. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.

         At 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). 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. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         At step three, the Commissioner determines whether claimant'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.

         At 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, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. At 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 its 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.


         At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since September 28, 2009. Tr. 508.

         At step two, the ALJ determined Plaintiff had the following severe impairments: status-post right shoulder SLAP repair; fibromyalgia; chronic left hip pain; left hip bursitis; degenerative disc disease at ¶ 4-5; mild cervical degenerative disc disease; status-post left small finger removal of deep hardware and extensor tenolysis; asthma; depressive disorder, not otherwise specified; post-traumatic stress disorder; headaches; and migraine headaches. Tr. 508- 10.

         At step three, the ALJ found Plaintiff's impairments or combination of impairments did not meet or equal the severity of one of the listed impairments. Tr. 510-11.

         Before step four, the ALJ determined Plaintiff had the RFC to perform sedentary work with the following limitations:

[Plaintiff] can frequently push or pull bilaterally. Additionally, she can engage in occasional foot control operation with the left. She can occasionally climb ramps or stairs. The claimant can never climb ladders, ropes, or scaffolds. She can occasionally balance, stoop, kneel, crouch, or crawl. The claimant can occasionally reach overhead with the right upper extremity. She can frequently handle objects with the left hand. The claimant should avoid all exposure to irritants, such as fumes, odors, dust, gases, and poorly ventilated areas. The claimant should also avoid all exposure to operational control of moving machinery, hazardous machinery and, unprotected heights. The claimant can understand and carry out simple routine repetitive tasks.

Tr. 511-12.

         At step four, the ALJ determined Plaintiff has been unable to perform any past relevant work as a heavy packer/lifter, cannery worker, or home attendant since September 28, 2009. Tr. 517.

         At step five, the ALJ concluded that other jobs existed in the national economy that Plaintiff could perform prior to January 23, 2016, including work as a charge account clerk, call-out operator, and order clerk. Tr. 517-18. The ALJ found, however, that beginning on January 23, 2016, there were not any jobs existing in the national economy that Plaintiff could perform. Tr. 518. Accordingly, the ...

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