United States District Court, D. Oregon, Eugene Division
NICOLE M. MILTON, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
FINDINGS AND RECOMMENDATION
YIM YOU UNITED STATES MAGISTRATE JUDGE
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.
filed an application for DIB on December 18, 2012, and an
application for SSI on December 27, 2012. Tr.
178-87. 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.
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).
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.
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.
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.”).
ANALYSIS AND ALJ FINDINGS
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.
one, the ALJ found that Milton had not engaged in substantial
gainful activity after the alleged onset date. Tr. 19.
two, the ALJ found that Milton has the following severe
impairments: status post left hip replacement, anxiety
disorder, irritable tendon right ankle, and depressive
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.
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.
Challenges to the ALJ's Decision
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.
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.
Subjective Symptom: Milton's Need to Lie Down
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.” Tr. 54.
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.
Rejection of ...