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Turner v. Berryhill

United States District Court, D. Oregon

March 15, 2018

MARY ELIZABETH TURNER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Merrill Schneider SCHNEIDER KERR & ROBICHAUX Attorney for Plaintiff

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon Renata Gowie ASSISTANT UNITED STATES ATTORNEY Michael S. Howard SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration Attorneys for Defendant

          OPINION & ORDER

          Marco A. Hernandez, United States District Judge

         Plaintiff Mary Elizabeth Turner brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). I reverse the Commissioner's decision and remand for an award of benefits.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB on December 6, 2012, alleging an onset date of August 12, 2012. Tr. 165-70. Her application was denied initially and on reconsideration. Tr. 79-92, 111-14 (Initial); Tr. 93-107, 116-18 (Reconsideration). On November 12, 2014, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 53-78. On April 10, 2015, the ALJ found Plaintiff not disabled. Tr. 34-52. The Appeals Council denied review. Tr. 1-6.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on chronic pain and coagulation defects. Tr. 193. At the time of the hearing, she was fifty-four years old. Tr. 165 (showing date of birth). She is a high school graduate and has past relevant work experience as a biomedical equipment technician, a sleep technician, and a retail stocker. Tr. 46, 61.

         SEQUENTIAL DISABILITY EVALUATION

         A claimant is disabled if 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), 1382c(3)(a).

         Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

         In the 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). In 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.

         In step three, the Commissioner determines whether plaintiff'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.

         In step 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 perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In 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 his 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. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her alleged onset date through her date of last insured. Tr. 39. Next, at steps two and three, the ALJ determined that Plaintiff has the severe impairment of chronic venous insufficiency, but that Plaintiff did not have an impairment or combination of impairments that meets or medically equals a listed impairment. Tr. 41.

         At step four, the ALJ concluded that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) except for the following: (1) she can lift or carry twenty pounds occasionally and ten pounds frequently; (2) she can sit up to six hours in an eight-hour day and can stand or walk for a total of two hours in an eight-hour day; (3) she has occasional foot control with her left lower extremity; (4) she can occasionally climb ramps and stairs but is precluded from climbing ladders and scaffolds; (5) she can occasionally kneel, crouch, and crawl; and (6) she needs a cane to ambulate. Tr. 42.

         With this RFC, the ALJ determined that Plaintiff is unable to perform any of her past relevant work. Tr. 45-46. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as cashier, small products assembler, and electronics worker. Tr. 47. Thus, the ALJ determined that Plaintiff is not disabled. Id.

         STANDARD OF REVIEW

         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). "Substantial evidence means 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." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).

         DISCUSSION

         Plaintiff argues that the ALJ improperly assessed her subjective limitations testimony as not fully credible, improperly rejected the opinions of two treating physicians and one non-examining physician, improperly rejected lay witness testimony, and failed to find several impairments severe at step two. Based on these errors, she contends that the ALJ's step five finding of no disability is in error.

         I. Plaintiff's Credibility

         The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591. Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages in two-step analysis to determine credibility: First, the ALJ determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged"; and second, if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give "specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.") (internal quotation marks omitted).

         When determining the credibility of a plaintiff's complaints of pain or other limitations, the ALJ may properly consider several factors, including the plaintiff's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may also consider the ability to perform household chores, the lack of any side effects from prescribed medications, and the unexplained absence of treatment for excessive pain. Id.; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) ("The ALJ may consider many factors in weighing a claimant's credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.") (internal quotation marks omitted).

         As the Ninth Circuit explained in Molina;

In evaluating the claimant's testimony, the ALJ may use ordinary techniques of credibility evaluation. For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct, unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and whether the claimant engages in daily activities inconsistent with the alleged symptoms[.] While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant's testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting[.] Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.

Molina, 674 F.3d at 1112-13 (citations and internal quotation marks omitted).

         The ALJ found that Plaintiff's history of deep venous thrombosis and May-Thurner Syndrome[1] could reasonably be expected to cause her alleged symptoms of pain, fatigue, coagulation defects, headaches, and limb swelling. Tr. 42. But, he concluded that her statements regarding the intensity, persistence, and limiting effects of these symptoms were not entirely credible. Id. In support, the ALJ discussed various parts of the medical record and then concluded that Plaintiff's complaints of severe pain when walking and standing were contradicted by "relatively normal findings" upon physical examinations by medical professionals. Tr. 43-44. Additionally, he cited what he considered to be a "history of no more than conservative treatment" to find that Plaintiff's "pain is not as limiting as alleged." Tr. 44.

         Plaintiff argues that the ALJ mischaracterized the medical evidence and failed to support the allegation that she had undergone no more than conservative treatment. Defendant ...


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