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Neyman-Reese v. Berryhill

United States District Court, D. Oregon, Portland Division

March 13, 2018

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


          Ann Aiken United States District Judge

         Margaret Neyman-Reese brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), who denied plaintiffs application for Disability Insurance Benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is reversed and remanded for further proceedings.


         In January 2013, plaintiff applied for DIB. She alleged disability beginning May 31, 2011, due to chronic venous insufficiency ("CVI"), diabetes, back pain, obesity, hearing loss, and arthritis. Tr. 44-45. Plaintiffs application was denied initially and upon reconsideration, and she requested a hearing before an Administrative Law Judge ("ALJ"). Tr. 44, 56. Following the July 20, 2015 hearing, the ALJ issued a decision on August 27, 2015, finding plaintiff not-disabled within the meaning of the Social Security Act ("the Act"). Tr. 9-19. After the Appeals Council denied review, plaintiff filed a complaint in this Court.


         The district court must affirm the Commissioner's decision if it is based upon proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Berry v. Aslrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Gutierrez v. Comm'r of Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may not substitute its judgment for that of the Commissioner." Edhmd v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).


         The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged disability onset date of May 31, 2011. See 20 C.F.R, § 404.1520(a)(4)(i), (b). At step two, the ALJ found plaintiff had the following severe impairments: obesity, CVI, diabetes, and hearing loss. See 20 C.F.R. § 404.1520(a)(4)(ii), (c). At step three, the ALJ determined that plaintiffs impairments, whether considered singly or in combination, did not meet or equal "one of the listed impairments" that the Commissioner acknowledges are so severe as to preclude substantial gainful activity, See 20 C.F.R. § 404.1520(a)(4)(iii), (d).

         Before proceeding to step four, the ALJ assessed plaintiffs residual functional capacity ("RFC"):

[Plaintiff] has the [RFC] to perform light work . . . i.e., lift/carry twenty pounds occasionally and ten pounds frequently, except. . . [she] can stand and walk 4-5 hours and sit 5-6 hours out of an 8-hour day; can occasionally climb ramps and stairs, crouch, stoop, kneel, and crawl, but no climbing of ladders, ropes, or scaffolds and no balancing on narrow beams; should avoid strong vibration; should do no work in environments with noise level greater than III; and should not have more than occasional telephone interaction with the public and coworkers.

Tr. 13; see 20 C.F.R. § 404.1520(e).

         At step four, the ALJ concluded that based on her RFC, plaintiff could not perform her past work as a grocery clerk or courtesy clerk. See 20 C.F.R. §§ 404.1520(a)(4)(iv), (f). At step five, the ALJ found that, considering her age, education, work experience, and RFC, plaintiff could perform other jobs which existed in significant numbers in the national economy: namely, mail sorter and storage facility rental clerk. 20 C.F.R. §§ 404.1520(a)(4)(v), (g)(1). Accordingly, the ALJ found plaintiff not disabled.


         Plaintiff argues the ALJ's decision involved the following errors; (1) failing to find plaintiff meets Listing 4.11(B); (2) improperly discrediting plaintiff s symptom allegations; (3) according little weight to the medical opinion statement of plaintiffs treating physician; (4) failing to find plaintiffs hand and back impairments "severe" at step two; and (5) improperly relying on vocational expert testimony in identifying other work at step five.

         I. Listing 4.11(B)

         Plaintiff argues that because her CVI condition meets or equals the severity requirements of Listing 4.11(B), the ALJ should have determined she was presumptively disabled at step three. See 20 C.F.R. Part 404, Subpart P, Appendix 1. Instead, the ALJ determined that the objective medical record did not establish any of the criteria for Listing 4.11(B). Tr. 12.

         In order to meet Listing 4.11(B), the record must demonstrate: chronic venous insufficiency of a lower extremity with incompetency or obstruction of the deep venous system and . . . [superficial varicosities, stasis dermatitis, and either recurrent ulceration or persistent ulceration that has not healed following at least 3 months of prescribed treatment. 20 C.F.R. Pt. 404, Subpt, P, App. 1, § 4.11. In terms of the listing, "recurrent" means: "the longitudinal clinical record shows that, within a consecutive 12-month period, the finding(s) occurs at least three times, with intervening periods of improvement of sufficient duration that it is clear that separate events are involved." Id. at § 4.00(A)(3)(c). "Persistent" means: "the longitudinal clinical record shows that, with few exceptions, the required finding(s) has been present, or is expected to be present, for a continuous period of at least 12 months, such that a pattern of continuing severity is established." Id. at § 4.00 (A)(3)(b).

         Plaintiff argues that the objective medical evidence demonstrates she met Listing 4.11(B) during the period from approximately April 21, 2011 to July 22, 2011. Pl.'s Br. 5-6. To clarify the timeline of the medical evidence, a brief recitation of the record is appropriate. As a threshold matter, it appears plaintiff mistakenly attributed the ulceration onset recorded on May 5, 2011, to the date of another chart note, April 21, 2011. Compare Pl.'s Br. 5 ("now with venous stasis ulcers" attributed to the date of April 21, 2011) with Tr. 391 ("now with venous stasis ulcers" attributed to the date of May 5, 2011). On May 5, 2011, plaintiff was noted to have lesions on her lower legs bilaterally. Tr. 390-91. On the same day, she was sent out for a duplex scan (ultrasound), which revealed "[n]ormal venous examination of the left lower extremity." Tr. 296. By May 18, 2011, ulcers were again observed on plaintiffs legs bilaterally; on the same day, the duplex scan was interpreted as abnormal, revealing "mild deep venous reflux" on both lower extremities.[1] Tr. 315, 378-379. The record reflects that plaintiffs venous stasis ulcers worsened by May 25, 2011, despite treatment, and continued to worsen through June 3, 2011. Tr. 367, 371. A third duplex scan was ordered on June 3, 2011, and completed on June 6, 2011, which showed normal venous activity. Tr. 336-39, 367. On July 13, 2011, a treating physician noted that the duplex results ...

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