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Milton v. Commissioner of Social Security

United States District Court, D. Oregon, Eugene Division

March 26, 2018

NICOLE M. MILTON, Plaintiff,



         Plaintiff, Nicole Milton (“Milton”), seeks judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying her application for Title II Disability Insurance Benefits (“DIB”) and Title XVI Social Security Income (“SSI”) under the Social Security Act (“Act”). This court has jurisdiction to review the Commissioner's decision pursuant to 42 USC §§ 405(g) and 1383(c)(3). Because the Commissioner's decision fails to provide any legally sufficient basis for rejecting multiple sources of testimony regarding Milton's need to lie down during the day, the decision should be reversed, and this case should be remanded to the Commissioner for further proceedings.


         Milton filed an application for DIB on December 18, 2012, and an application for SSI on December 27, 2012. Tr. 178-87.[2] She alleged disability beginning March 21, 2012, due to depression, tendonitis, bursitis, severe pain in her hip resulting from a hip replacement, and side effects from medication. Tr. 66, 178, 180. Her applications were denied initially and upon reconsideration. Tr. 118-25, 131-32, 135-37. On January 28, 2015, a hearing was held before Administrative Law Judge Marilyn Mauer (“ALJ”), wherein Milton was represented by counsel and testified, as did a vocational expert (“VE”). Tr. 35-63. On April 9, 2015, the ALJ issued a decision finding Milton not disabled within the meaning of the Act. Tr. 17-34. After the Appeals Council denied her request for review, Milton filed a complaint in this court. Tr. 1-4. The ALJ's decision is therefore the Commissioner's final decision subject to review by this court. 20 CFR §§ 404.981, 416.1481, 422.210.


         Born in June 1978, Milton was 33 years old on the alleged onset date. Tr. 66. She has a high school education and completed some college. Tr. 40. She has past work experience as a purchasing clerk and an advertising clerk. Tr. 28. She worked for Bi-Mart until March 21, 2012. Tr. 43. During the 12 years she had worked for Bi-Mart, her responsibilities included event planning, bookkeeping, database management, and coordinating with publications for advertisement. Tr. 41. Milton received an administrative termination from Bi-Mart in January 2013 after exhausting FMLA, OFLA, and short-term disability benefits following her April 2012 surgery (discussed below). Tr. 318.

         Milton fractured her hip as a teenager in 1991, and had open reduction and internal fixation of a left proximal femur fracture. Tr. 262. Due to what Milton describes as the “screws scratching the inside of the joint” and avascular necrosis, the hip hardware was removed less than a year later. Tr. 223, 346, 358. Eventually, Milton developed severe left hip posttraumatic arthritis, and the hip joint degenerated to the point that the only option left to her was hip replacement surgery. Tr. 223, 262, 346, 349.

         Following a severe exacerbation of her symptoms in mid-March 2012, Milton underwent a total hip arthroplasty in early April 2012. Tr. 43, 49, 327, 349. Post-surgery, Milton's arthritic pain resolved, but she developed chronic muscular pain and “shooting pains of unclear etiology.” Tr. 340-44. She also developed patellofemoral syndrome in her right knee. Tr. 339-40. Additionally, Milton developed depression. Tr. 224. Although she is taking Cymbalta, Milton reported on more than on occasion that it is not improving her symptoms. Tr. 49, 341. Since the surgery, she spends “pretty much” all of the day lying down. Tr. 51. She is usually up at 3 pm but returns to bed at 4:30 or 5 pm. Id.


         The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 USC § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035; Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.”).


         Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 USC § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. This sequential analysis is set forth in the Social Security regulations, 20 CFR § 416.920, in Ninth Circuit case law, Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999) (applying 20 CFR § 404.1520), and in the ALJ's decision in this case, Tr. 18-19.

         At step one, the ALJ found that Milton had not engaged in substantial gainful activity after the alleged onset date. Tr. 19.

         At step two, the ALJ found that Milton has the following severe impairments: status post left hip replacement, anxiety disorder, irritable tendon right ankle, and depressive disorder. Id.

         At step three, the ALJ found Milton did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 20. The ALJ next assessed Milton's residual functional capacity (“RFC”) and determined that she could perform sedentary work with the following additional limitations: she can lift 10 pounds occasionally and less than 10 pounds frequently; she can stand and walk up to two hours in an eight-hour day and requires the use of a cane in one hand while walking; she can sit for at least six hours in an eight-hour day; she requires the option to change position from seated to standing at will without interrupting essential tasks; she can never climb ladders, ropes, or scaffolds; she can frequently balance and stoop; she can never kneel, crouch, or crawl; she can never operate foot controls with her left lower extremity; she can frequently balance; she can understand, remember, and carry out simple instructions; she should not be exposed to hazards such as unprotected heights and large moving equipment. Tr. 22.

         At step four, the ALJ found Milton could not perform any of her past relevant work. Tr. 28. At step five, based on the testimony of the VE, the ALJ determined that Milton could perform jobs that exist in significant numbers in the national economy, including document preparer, food and beverage order taker, and jewelry assembler. Tr. 29.


         I. Challenges to the ALJ's Decision

         Milton argues that the ALJ erred by: (1) improperly discounting her subjective symptom testimony; (2) improperly rejecting the medical opinions of Doherty Gilchrist, M.D. (treating physician) and Steven Shah, M.D. (orthopedic surgeon); (3) failing to include limitations described by her mother despite accepting her lay testimony; and (4) failing to meet the burden of showing that she is capable of performing other work. These challenges focus primarily on two specific limitations that Milton contends render her disabled: (1) her inability to sit or stand for longer than 30 minutes at a time; and (2) her need to lie down periodically due to pain.

         With respect to the first of these limitations, the RFC specifically incorporates a restriction that Milton must have the “option to change position from seated to standing at will without interrupting essential tasks.” Tr. 22. That restriction in the RFC essentially incorporates the limitation Milton contends is missing and, accordingly, provides no basis for challenging the ALJ's decision. However, the same cannot be said of the evidence regarding Milton's need to lie down due to pain or the side effects of the medications Milton takes to control her pain. For the reasons that follow, the Commissioner failed to properly reject testimony by Milton and her mother, as well as the opinions of two treating doctors, regarding that symptom.

         II. Subjective Symptom: Milton's Need to Lie Down

         Although Milton's orthopedic surgeon, Dr. Shah, initially thought she would return to work several months post-surgery (Tr. 315-16), over the next year, Milton developed chronic pain. In functional reports submitted in early 2013, both Milton and her mother, Deborah Johnson (“Johnson”), state that Milton spends most of the day lying down. In February 2013, Dr. Gilchrist, Milton's primary care doctor, completed a report indicating that the chronic pain in Milton's left hip requires Milton to lie down during the day. Tr. 323. In a similar report that same month, Dr. Shah opined that it was “unknown” whether Milton's impairment required her to lie down, but noted that “she does experience dizziness [with] pain meds so may lay down when these are needed.” Tr. 329. At the hearing in January 2015, Milton testified that she lies down most of the day because the pain she experiences “makes [her] not want to do anything.”[3] Tr. 54.

         The ALJ acknowledged that Milton's medically determinable impairments could reasonably be expected to cause some of her alleged symptoms. Tr. 23. Despite that finding, and despite purportedly giving “significant weight” to the functional report completed by Johnson (Tr. 28), the ALJ mentions Milton's need to lie down during the day only in passing, and discusses it only in reference to how Milton managed to make a trip to Texas. Tr. 24. Nevertheless, it is clear that the ALJ rejected the lay testimony and doctors' opinions regarding Milton's need to lie down during the day, as it is not a symptom incorporated into the RFC or otherwise mentioned in the ALJ's decision. After a thorough review of the record, this court concludes that the ALJ failed to provide legally adequate reasons for rejecting that subjective symptom evidence. This court further concludes that the Commissioner's error requires remand of this case for further proceedings.

         A. Rejection of ...

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