United States District Court, D. Oregon, Portland Division
L. Johnson Sherwood J. Reese Drew L. Johnson, P.C. Attorneys
Williams United States Attorney Renata Gowie Assistant United
A. Boden Special Assistant United States Attorney Attorneys
OPINION & ORDER
HERNÁNDEZ, District Judge
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.
applied for SSI on September 29, 2011, alleging a disability
onset date of September 28, 2009. Tr. 146, 530. 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.
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.
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.
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.
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.
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.
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. §§
one, the ALJ found Plaintiff had not engaged in substantial
gainful activity since September 28, 2009. Tr. 508.
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-
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.
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.
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.
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 ...