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Choat v. Berryhill

United States District Court, D. Oregon

April 30, 2018

DEBRA CHOAT, 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 Howard SPECIAL ASSISTANT UNITED STATES ATTORNEY Attorneys for Defendant

          OPINION & ORDER

          Marco A. Hernandez, United States District Judge.

         Plaintiff Debra Choat 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 affirm the Commissioner's decision at step two in part, and otherwise reverse the Commissioner's decision and remand for additional proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB on September 3, 2013, alleging an onset date of March 6, 2010. Tr. 151-52[1]. Her application was denied initially and on reconsideration. Tr. 67-67, 76, 90-94 (Initial); Tr. 77-87, 97-101 (Recon.). On May 27, 2015, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 33-66. On August 7, 2015, the ALJ found Plaintiff not disabled. Tr. 14-32. The Appeals Council denied review. Tr. 1-5.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on having deteriorating bones and depression. Tr. 164. At the time of the hearing, she was fifty-seven years old. Tr. 37. She has a GED and has past relevant work experience as a teacher's aide, a grocery checker, a deli worker, and a sales clerk. Tr. 39, 62.

         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 March 31, 2012, her date of last insured. Tr. 19. Next, at steps two and three, the ALJ determined that Plaintiff has the severe impairment of depressive disorder, but that she did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 20.

         At step four, the ALJ concluded that Plaintiff has the RFC to perform a full range of work at all exertional levels but that she was limited to understanding, remembering, and carrying out simple routine repetitive tasks and to only occasional contact with the general public and coworkers. Tr. 22. With this RFC, the ALJ determined that Plaintiff is unable to perform any of her past relevant work. Tr. 25-26. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as garment bagger, labeler, and collator. Tr. 27. 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 made three errors: (1) failing to find any of her physical impairments to be severe at step two; (2) improperly rejecting the opinion of her treating physician; and (3) failing to give any reasons for disregarding her subjective statements.

         I. Credibility Assessment

         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. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains, an adverse credibility finding must be based on 'clear and convincing reasons'"); see also 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). 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).

         In determining Plaintiff's RFC between steps three and four, the ALJ recited the appropriate two-part credibility analysis. Tr. 22. She identified Plaintiff's statements in Plaintiff's disability application regarding difficulty standing and walking, unspecified episodes of nervousness, and being "jumpy." Tr. 22-23. The ALJ also cited to Plaintiff's September 13, 2013 Adult Function Report where Plaintiff alleged that her impairments limited her ability to lift more than five pounds, stand for more than five minutes, walk for more than one-half of a block, and sit for more than ten minutes. Tr. 23 (citing Tr. 176). The ALJ then noted Plaintiff's limited ...


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