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Skaggs v. Berryhill

United States District Court, D. Oregon

March 7, 2018

SONJA K. SKAGGS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS AND RECOMMENDATION

          JOLIE A. RUSSO United States Magistrate Judge

         Sonja K. Skaggs (“plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Supplemental Security Income (“SSI”) under 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 additional proceedings as described below.

         BACKGROUND

         Plaintiff filed for SSI on June 4, 2012, alleging disability beginning June 15, 1993. Tr. 24. Plaintiff alleged disability based on: dyslexia, lack of education, bad ankles, and diabetes. Tr. 24, 79. Her application was denied initially and upon reconsideration. Tr. 79-90, 93-106. An Administrative Law Judge (“ALJ”) held hearings on August 26, 2014, and September 23, 2014, and on January 26, 2015, issued a decision finding plaintiff not disabled. Tr. 21-40; 41-69; 70- 77. On July 12, 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. § 416.920. At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since the date of her application. Tr. 26. At step two, the ALJ determined the following impairments were medically determinable and severe: “type-2 diabetes (DM-2); left trochanter bursitis; mild left ankle [degenerative joint disease]; methamphetamine dependence in early remission; marijuana dependence; dysthymia; [and] antisocial personality features.” Id. At step three, the ALJ determined plaintiff's impairments, neither individually nor in combination, met or equaled the requirements of a listed impairment. Tr. 27.

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

The claimant can lift, carry, push and pull 20 pounds occasionally and 10 pounds frequently. She can sit 6 hours in an 8 hour workday and also stand and walk 6 hours in an 8 hour workday. The claimant can understand and remember simple instructions and procedures. She has sufficient concentration, persistence and pace to complete simple, routine tasks for a normal workday and workweek but her concentration, persistence and pace will diminish if required to complete more complex tasks. She should only have occasional brief, superficial interactions with the general public and with co-workers. She is able to accept supervision. The claimant should be in a workplace with few changes to the work setting. She should not be required to do math as a work function and should not have to read for work at any level greater than 5th grade.

Tr. 29.

         At step four, the ALJ determined plaintiff had no past relevant work as defined by the regulations. Tr. 35. 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 her impairments. Tr. 35-36. Specifically, the ALJ found plaintiff could perform the jobs of laundry folder and silver wrapper. Tr. 36.

         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) failing to develop the record, specifically in failing to order IQ testing under Listing 12.05C and failing to order a neuropsychological evaluation; and (2) improperly discrediting her subjective symptom testimony. Pl.'s Op. Br. at 2-3 (doc. 16). The Commissioner concedes the ALJ's decision is not supported by substantial evidence and that this case ...


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