United States District Court, D. Oregon, Portland Division
MARGARET A. NEYMAN-REESE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
Aiken United States District Judge
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
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.
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).
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).
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),
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).
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.
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.
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).
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).
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. 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 ...