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McNair v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

April 10, 2018


          D. JAMES TREE Attorney for Plaintiff

          BILLY J. WILLIAMS United States Attorney RENATA GOWIE Assistant United States Attorney

          BENJAMIN GROEBNER Special Assistant United States Attorney Office of the General Counsel Social Security Administration Attorneys for Defendant




         Shanna McNair ("Plaintiff) seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying her application for Title XVI Supplemental Security Income ("SSI") under the Social Security Act ("Act"). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). For the reasons that follow, the Commissioner's decision is REVERSED and REMANDED for additional proceedings.

         Procedural Background

         Plaintiff protectively filed for SSI on July 19, 2011, alleging disability beginning August 28, 2010. (Tr. 94.) After the Commissioner denied her application initially and upon reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 104, 116-17, 149.) A hearing was held via video teleconference on January 24, 2013. Plaintiff, represented by counsel, testified. (Tr. 149.) Paul Prachyl, a vocational expert ("VE") and Stephanie Boyce ("Ms. Boyce"), Plaintiffs daughter, also testified. (Tr. 35-93.) On March 19, 2013, the ALJ issued an unfavorable decision, finding Plaintiff not disabled. (Tr. 17-30.) The Appeals Council denied Plaintiff s request for review, making the ALJ's decision final. (Tr. 1.) Plaintiff filed a complaint for review of the Commissioner's final decision in the United States District Court for the Eastern District of Washington, resulting in a remand for additional proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Tr. 584-99.) On May 3, 2016, a second hearing before the ALJ was convened, but not completed, due to the late receipt of additional medical records. (Tr. 538-48.) On August 16, 2016, the ALJ held a full hearing via video teleconference. (Tr. 482.) Plaintiff, Ms. Boyce, and VE, Ann Jones, testified. (Tr. 506-35.) On November 22, 2016, the ALJ issued another unfavorable opinion finding Plaintiff not disabled, making it the final decision of the Commissioner. (Tr. 479-96); 20 C.F.R. §§ 416.1483-416.1484. Plaintiff filed this complaint for review of the Commissioner's final decision on February 17, 2017.

         Factual Background

         Born on February 15, 1964, Plaintiff was 47 years old when she filed her SSI application and 52 years old at the second administrative hearing. (Tr. 94, 48 8.) Plaintiff completed her GED and has past work as an in-home health care provider and convenience store cashier. (Tr. 214-15, 218.) She alleges disability due to low back pain, depression, anxiety, irritable bowel disease, memory loss, extreme fatigue, joint pain, muscle weakness, and loss of concentration. (Tr. 95.)

         Standard of Review

         The 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. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "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." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant 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).

         The 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. § 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). If so, the claimant is not disabled.

         At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 416.920(c). If the claimant does not have a medically determinable, severe impairment, he is not disabled.

         At step three, the Commissioner determines whether the claimant's impairments, either 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 140-41; 20 C.F.R. § 416.920(d). If so, the claimant is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. § 416.920(f). If the claimant can work, she is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141 - 42; 20 C.F.R. § 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 416.966.

         The ALJ's Findings

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her application date. (Tr. 485.)

         At step two, the ALJ found that Plaintiff had the following severe impairments: disorder of the gastrointestinal systems; disorders of muscle, ligament, and fascia; osteoarthritis and allied disorders; degenerative disc disease; other unspecified arthropathies; chronic obstructive pulmonary disorder (COPD); affective disorders; and obesity. (Tr. 485.)

         The ALJ found anxiety to be non-severe, noting "evidence fails to establish the claimant's anxiety would have more than minimal limitations on her ability to perform basic work activities." (Id.) Further, the ALJ determined that fibromyalgia was not a medically-determinable impairment. (Id.) Noting that Plaintiffs primaiy symptom allegations with regards to fibromyalgia are fatigue and body pain, the ALJ found that even if the condition was medically determinable, it would not cause any additional limitations beyond those already accounted for in the residual functional capacity ("RFC") determination. (Id.)

         At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (Tr. 486-87.)

         Next, the ALJ assessed Plaintiffs RFC and found that she could perform unskilled, light work as defined in 20 C.F.R § 416.967(b), except that she "is not able to perform at a production rate pace (e.g., assembly line work, i.e., where pace is mechanically controlled) but can perform goal-oriented work (e.g., office cleaner or those tasks where pace is more controlled by the worker)." (Tr. 487.) Plaintiff is expected to be "off-task" about ten percent of the time in an eight-hour work day and her "work tasks should not carry her more than five minutes from a restroom, such as having to travel from one job site to another." (Tr. 487-88.)

         At step four, the ALJ found that Plaintiff is unable to perform past relevant work as a home attendant. At step five, based on the testimony of the VE, the ALJ determined that Plaintiff could perform work as a cashier II, fast food worker, and cleaner/housekeeper, all of which exist in significant numbers in the national economy. (Tr. 495.) The ALJ therefore concluded that Plaintiff was not disabled. (Id.)


         Plaintiff alleges the ALJ erred by: (1) improperly discrediting Plaintiff s subjective symptom allegations; (2) improperly assessing medical opinion evidence; (3) improperly discrediting lay witness testimony; (4) failing to recognize fibromyalgia as a medically determinable impairment at step two; and (5) failing to appoint a medical expert.

         I. Plaintiffs Subjective Symptom Testimony

         If "there is no affirmative 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.'" Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which ... testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, l2F.3d9l5, 9l8(9thCir. 1993). The reasons proffered 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) (internal citation omitted).

         Examples of clear and convincing reasons include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or between her testimony and her conduct, daily activities inconsistent with the alleged symptoms, a sparse work history, testimony that is vague or less than candid, and testimony about the nature, severity and effect of the symptoms complained of from physicians and third parties. Tommasetti, 533 F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

         A. Pain Symptoms

         Plaintiff argues the ALJ erred by discrediting her subjective pain allegations based solely on a lack of objective medical evidence. An ALJ may not discredit a claimant's subjective symptom allegations based solely on a lack of medical evidence; however, it may be considered ...

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