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Frost v. Berryhill

United States District Court, D. Oregon

March 27, 2018

BARRY B. FROST, Plaintiff,
v.
NANCY A. BERRYHILL, Commissioner of Social Security Defendant.

          Richard F. McGinty, McGinty & Belcher, Of Attorney for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney Ryan Ta Lu, Special Assistant United States Attorney Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon United States District Judge

         Plaintiff Barry B. Frost (“Plaintiff) seeks judicial review of the decision of Social Security Commissioner denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. After a review of the record, the Court reverses and remands the Commissioner's decision for further proceedings.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means “more than a mere scintilla but less than a preponderance.” Bray v. Comm 'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

         Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id; see also Bray, 554 F.3d at 1226.

         BACKGROUND

          A. Plaintiff's Application

         Plaintiff was born on August 6, 1953, was 55 years old as of the date of his alleged disability onset, and is currently 64 years old. Plaintiff lives in Corvallis, Oregon. AR 110. He lives alone and receives the majority of his care from his partner, Mary. He holds a four-year degree and has past relevant work as a Database Software Developer. AR 118. Plaintiff filed for DIB on September 6, 2012, citing primarily discogenic and degenerative disc disorders and secondarily affective mood disorders, alleging a disability onset date of July 1, 2009. AR 110, 214. Upon notice that his application was denied, Plaintiff filed for reconsideration in March 2013. AR 138. Plaintiff filed a request for an administrative hearing after subsequent denial upon reconsideration. AR 145. Plaintiff received an administrative hearing in 2014 before an administrative law judge (“ALJ”), and a supplemental hearing several months later. The ALJ then issued a partially favorable opinion, finding Plaintiff disabled as of June 18, 2014, but not earlier. AR 15-26. Plaintiff appealed the ALJ's partially-favorable decision to the Appeals Council, who denied review, making the ALJ's determination the final decision of the agency. AR 1. Plaintiff challenges the ALJ's decision before this Court. Plaintiff argues that the ALJ erred in determining that Plaintiff was not disabled until June 18, 2014, because Plaintiff was disabled as of the alleged disability onset date, July 1, 2009.

         B. The Sequential Analysis

         A claimant is disabled if he or she is 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). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm 'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment “severe” under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's “residual functional capacity” (“RFC”). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Id; see also 20 C.F.R. §§ 404.1566, 416.966 (describing “work which exists in the national economy”). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.

         C. The ALJ's Decision

         At step one, the ALJ found Plaintiff was not currently engaged in substantially gainful activity (“SGA”) and has not been since July 1, 2009. Because Plaintiff had not been performing SGA, the inquiry proceeded to step two. At step two, the ALJ determined, based on the medical record and Plaintiffs testimony, that Plaintiff suffers from impairments that are “severe” within the meaning of the Social Security Regulations (“SSR”). The ALJ found that Plaintiffs cervical degenerative disc disease and mild left shoulder bursitis significantly limit Plaintiffs ability to perform basic work activities. The ALJ also determined that Plaintiffs alleged, remaining diagnoses of hypertension, migraines, heel injury, allergic rhinitis, depression, and adjustment disorder were not severe per the SSRs.

         At step three, the ALJ concluded that Plaintiffs impairments did not meet or equal the listed impairments in 20 C.F.R. 404.1521. The ALJ then assessed Plaintiffs RFC to determine Plaintiff's functional limitations necessary for step four. In this assessment, the ALJ concluded that Plaintiff's subjective pain testimony regarding his impairments was not fully credible before June 18, 2014. The ALJ then prepared two RFC analyses, one for Plaintiff's abilities from July 1, 2009 until June 18, 2014, and one for June 18, 2014 through the date of the ALJ's decision, April 10, 2015. At step four, the ALJ found both of Plaintiff's RFCs barred him from continuing past relevant work.

         Finally, at step five, based on the testimony of a vocational expert (“VE”), the ALJ concluded that from July 1, 2009 until July 18, 2014, Plaintiff possessed transferable skills and could perform the work of a data clerk, DOT 209.687-010. Because Plaintiff is of advanced age, the ALJ evaluated the degree of vocational adjustment Plaintiff would undergo. Relying on the VE testimony, the ALJ found Plaintiff would undergo “little to no” vocational adjustment. This finding led the ALJ to conclude that Plaintiff was not disabled until July 18, 2014. The ALJ found that as of July 18, 2014, however, based in part on the chiropractic recommendation for a medial branch block, that Plaintiff would be unable to continue work as a data clerk. Thus, the ALJ found Plaintiff disabled as of that date.

         DISCUSSION

         Plaintiff challenges the ALJ's determination finding Plaintiff disabled as of June 18, 2014. Plaintiff argues that the ALJ erred by: (A) discrediting Plaintiff's subjective pain testimony without valid reasons; (B) failing to identify Plaintiff's transferable skills or degree of vocational adjustment; (C) determining Plaintiff's RFC without including certain functional limitations; and (D) arbitrarily selecting Plaintiff's disability onset date. The Court discusses each of Plaintiff's contentions in turn.

         A. Credibility Analysis

         There is a two-step process for evaluating a claimant's testimony regarding the severity and limiting effect of the claimant's symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

         “Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must state which pain testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell, 947 F.2d at 345-46).

         Plaintiff argues that the ALJ erred in his credibility analysis because the ALJ failed to provide clear and convincing reasons to discount Plaintiff's testimony. The ALJ cited Plaintiff's retirement reasons, activities of daily living (“ADL”), and lack of objective medical evidence. AR 21. The ALJ's credibility decision may be upheld overall even if not all of the ALJ's reasons for rejecting the claimant's testimony are upheld. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). The ALJ may not, however, make a negative credibility finding “solely because” the ...


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