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Wesman v. Berryhill

United States District Court, D. Oregon

February 21, 2018

CHRISTOPHER S. WESMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS AND RECOMMENDATION

          JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE.

         Christopher S. Wesman (“plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Supplemental Security Income (“SSI”) and disability insurance benefits (“DIB”) under Titles II and XVI of the Social Security Act (“the Act”). For the reasons set forth below, the decision of the Commissioner should be REVERSED and REMANDED for an immediate payment of benefits.

         BACKGROUND

         Plaintiff was born in Coos Bay, Oregon, in May 1988. Tr. 324.[1] He applied for SSI and DIB in July 2012, alleging disability with an amended onset date of October 1, 2011. Tr. 15, 43, 75, 90. Plaintiff has a Bachelor of Arts degree in English literature and film and no past relevant work as defined by the regulations, although he did work briefly as a barista and part-time as a custodian. Tr. 49-50, 58, 87, 106. At the time of his hearing, he was living with his grandparents. Tr. 41.

         Plaintiff alleged disability based upon: fibromyalgia, depression/anxiety, recurrent syncope, asthma, irritable bowel syndrome (“IBS”), and chronic insomnia. Tr. 76, 91. His application was denied initially and upon reconsideration. Tr. 75-108. On September 22, 2014, an Administrative Law Judge (“ALJ”) held a hearing, and on November 13, 2014, issued a decision finding plaintiff not disabled. Tr. 15-30; 35-72. On April 22, 2016, the Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6. This appeal followed.

         THE ALJ'S FINDINGS

         The ALJ performed the five step sequential analysis, for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since his amended alleged onset date. Tr. 17. At step two, the ALJ determined the following impairments were medically determinable and severe: “fibromyalgia, asthma, anxiety/post-traumatic stress disorder (“PTSD”), and depression.” Tr. 18. At step three, the ALJ determined plaintiff's impairments, neither individually nor in combination, met or equaled the requirements of a listed impairment. Tr. 19.

         Because he did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected his ability to work. The ALJ resolved plaintiff had the residual functional capacity (“RFC”) to perform light work with the following limitations:

[He should] avoid exposure to fumes, dust, gases, poor ventilation and other noxious odors, as well as unprotected heights, moving machinery and similar hazards. The [plaintiff] is also limited to simple, repetitive, routine tasks.

Tr. 20.

         At step four, the ALJ determined plaintiff had no past relevant work as defined by the regulations. Tr. 28. At step five, the ALJ found, based on the RFC and the vocational expert (“VE”) testimony, a significant number of jobs existed in the national and local economy such that plaintiff could sustain employment despite his impairments. Tr. 28-29. Specifically, the ALJ found plaintiff could perform the jobs of library helper, clerical checker, and address clerk. Tr. 29.

         STANDARD OF REVIEW

         A district court must affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence “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) (internal citation omitted). In reviewing the Commissioner's alleged errors, a court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         When the evidence before the ALJ is subject to more than one rational interpretation, a court must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (internal citation omitted). The reviewing court, however, cannot affirm the Commissioner's decision on grounds the agency did not invoke in making its decision. Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, the court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56. “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

         DISCUSSION

         Plaintiff argues the ALJ erred by: (1) erroneously discounting his subjective symptom testimony; (2) failing to give adequate weight to the opinions of his treating physicians; and (3) failing to meet the Commissioner's burden at step five of the sequential evaluation.

         I. Subjective Symptom Testimony

         Plaintiff assigns error to the ALJ's evaluation of his subjective symptom testimony. Pl.'s Br. at 12-14. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A general assertion 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.”[2] 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). If the ALJ's finding regarding the claimant's subjective symptom testimony is “supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).

         At the hearing, plaintiff testified his fibromyalgia was centered in his “lower back and it spreads from there when it is active.” Tr. 58-59. He testified on “bad days, ” which he rated as seven or above on the pain scale, “even just breathing will hurt.” Tr. 59. He testified his “bad days far outnumber” his good days. Tr. 59. Finally, he testified on his “worst days” he would “end up lying in bed unable to even pay attention to the people around [him], ” and he could not “carry on a conversation when the pain is going on at its worst.” Id.

         The Commissioner responds that plaintiff “simply disagrees with the ALJ's rational assessment of” his subjective symptom testimony. Def.'s Br. at 5. According to the Commissioner, the ALJ provided three permissible rationales which undermined plaintiff's subjective complaints: (A) work activities; (B) activities of daily living; and (C) the objective medical evidence. The Court addresses each in turn.

         A. Work Activities

         The Commissioner argues plaintiff's ability to work part-time undermined his subjective symptom testimony relating to his fibromyalgia. Def.'s Br. at 6-7. Indeed, the regulations contemplate that “work done during any period in which [a claimant alleges disability may demonstrate the ability] to work at the substantial gainful activity level.” 20 C.F.R. §§ 404.1571, 416.971. The Commissioner also cites Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009), for the proposition that part-time work can undermine subjective complaints.

         Bray, however, is distinguishable from this case. In reversing and remanding the ALJ's decision on an unrelated error, Bray upheld the ALJ's credibility determination based on “four . . . independent bases for discounting” the claimant's testimony, one being the claimant's prior work history. Bray, 554 F.3d at 27. That work history included part-time work as a “caregiver” for an ill friend, as well as “seeking out other employment” after the caregiver work concluded. Id. at 1221-27. Here, by contrast, the work activities relied on by the Commissioner are distinguishable in two important ways. First, unlike the claimant in Bray, after plaintiff was fired he did not seek other work. Compare Bray, 554 F.3d at 1227 (claimant “sought out other employment” after her part-time work concluded) with Tr. 48 (ALJ asking plaintiff if he had “looked for any other jobs” since being fired from his part-time work and plaintiff answering he had not).

         Second, unlike the claimant in Bray, plaintiff struggled with and was ultimately unable to maintain his part-time employment. See Tr. 45 (“Originally, it was a five-day a week job . . . And I was able to do it in five days . . . Then as the [] fibromyalgia progressed, it became a six-day [a week] job, then a seven day [a week job] and then eventually I told them I could not do the entirety anymore, and I asked them to cut the job in half for me, which they agreed to.”); Tr. 45-46 (explaining that plaintiff necessitated working additional days because “it was taking longer” to complete the same amount of work); Tr. 48 (explaining that plaintiff was “let go” when his work reached an unsatisfactory level).[3] In Bray, there was no indication the claimant struggled with or was terminated from her “recent[] work[] as a personal caregiver[.]” Bray, 554 F.3d at 1227. In other words, Bray is inapposite because there the claimant was successful in her recent part-time work; and that fact coupled with seeking out other employment after that work concluded provided a permissible rationale to discount her testimony. Here, by contrast, plaintiff was unable to maintain part-time work; nor did plaintiff seek out other work after his employer fired him. Bray, therefore, does not control here.

         The Commissioner's citation to Greger v. Barnhart,464 F.3d 968, 972 (9th Cir. 2006), is similarly unpersuasive. There, the ALJ properly rejected the claimant's subjective symptom testimony because the claimant failed to report his alleged symptoms to his doctors, failed to participate in treatment, continued to work “under the table . . . well after his date of last insured, ” and continued to engage in “his past work activities as a contractor.” Id. Here, by contrast, plaintiff consistently reported his symptoms to medical providers, diligently complied with treatment, and although plaintiff worked part-time during a portion of the relevant time period, the volume of work he performed progressively ...


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