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Capistrano v. Commissioner Social Security

United States District Court, D. Oregon

May 3, 2018

HEATHER C. CAPISTRANO, Plaintiff,
v.
COMMISSIONER, Social Security, Defendant.

          OPINION AND ORDER

          Honorable Paul Papak United States Magistrate Judge.

         Plaintiff Heather Capistrano protectively filed this action on December 9, 2016, seeking judicial review of the Commissioner of Social Security's final decision denying her applications for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act (the "Act"), [1] This court has jurisdiction over Capistrano's action pursuant to 42 U.S, C. § 405(g) and 1383(c)(3). The parties have consented to jurisdiction by U.S. Magistrate Judge in this matter. Docket No. 11.

         Capistrano argues that the ALJ erred in (1) assessing the credibility of her symptom allegations; and (2) evaluating the medical opinions of two treating physicians. I have considered the parties' briefs and all of the evidence in the administrative record. For the reasons set forth below, the Commissioner's final decision is reversed, and this case is remanded for further proceedings.

         DISABILITY ANALYSIS FRAMEWORK

         To establish disability within the meaning of the Act, a 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 claimant has made the requisite demonstration. See Bowen v. Yuckert, 482 U.S. 137, 140 (1987); see also 20 C.F.R. §§ 404.1520(a)(4), 416, 920(a)(4).[2] At the first four steps of the process, the burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift to the Commissioner. See Tackett v. Apfel, 180F.3d 1094, 1098 (9th Cir. 1999).

         At the first step, the ALJ considers the claimant's work activity, if any. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the ALJ finds that the claimant is engaged in substantial gainful activity, the claimant will be found not disabled. See Bowen, 482 U.S. at 140; see also 20 C.F.R. §§ 404.1520(a)(4)(i), 404.1520(b), 416.920(a)(4)(i), 416.920(b). Otherwise, the evaluation will proceed to the second step.

         At the second step, the ALJ considers the medical severity of the claimant's impairments. See Bowen, 482 U.S. at 140-141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment is "severe" if it significantly limits the claimant's ability to perform basic work activities and is expected to persist for a period of twelve months or longer. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(c), 416.920(c). The ability to perform basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ 404.1521(b), 416.921(b); see also Bowen, 482 U.S. at 141. If the ALJ finds that the claimant's impairments are not severe or do not meet the duration requirement, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(iii), 416.920(c). Nevertheless, it is well established that "the step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chafer, 80 F.3d 1273, 1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-54. "An impairment or combination of impairments can be found 'not severe' only if the evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual[']s ability to work, '" Id., quoting Social Security Ruling ("SSR") 85-28, 1985 SSR LEXIS 19 (1985).

         If the claimant's impairments are severe, the evaluation will proceed to the third step, at which the ALJ determines whether the claimant's impairments meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d). If the claimant's impairments are equivalent to one of the impairments enumerated in 20 C.F.R. § 404, subpt. P, app. 1, the claimant wiil conclusively be found disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d).

         If the claimant's impairments are not equivalent to one of the enumerated impairments, between the third and the fourth steps the ALJ is required to assess the claimant's residual functional capacity ("RFC"), based on all the relevant medical and other evidence in the claimant's case record. See 20 C.F.R. §§ 404.1520(e), 416.920(e), The RFC is an estimate of the claimant's capacity to perform sustained, work-related physical and/or mental activities on a regular and continuing basis, [3] despite the limitations imposed by the claimant's impairments. See 20 C.F.R. §§ 404.1545(a), 416.945(a); see also SSR 96-8p, 1996 SSR LEXIS 5 (July 2, 1996).

         At the fourth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's past relevant work. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.9520(a)(4)(iv). If, in light of the claimant's RFC, the ALJ determines that the claimant can still perform his or her past relevant work, the claimant will be found not disabled. See Bowen, 482 U.S. at 141; see also 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f), 416.920(a)(4)(iv), 416.920(f). In the event the claimant is no longer capable of performing his or her past relevant work, the evaluation will proceed to the fifth and final step, at which the burden of proof shifts, for the first time, to the Commissioner.

         At the fifth step of the evaluation process, the ALJ considers the RFC in relation to the claimant's age, education, and work experience to determine whether a person with those characteristics and RFC could perform any jobs that exist in significant numbers in the national economy. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g), If the Commissioner meets her burden to demonstrate the existence in significant numbers in the national economy of jobs capable of being performed by a person with the RFC assessed by the ALJ between the third and fourth steps of the five-step process, the claimant is found not to be disabled. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 404.1560(c), 404.1566, 416.920(a)(4)(v), 416.920(g), 416.960(c), 416, 966. A claimant will be found entitled to benefits if the Commissioner fails to meet that burden at the fifth step. See Bowen, 482 U.S. at 142; see also 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g), 416.920(a)(4)(v), 416.920(g).

         LEGAL STANDARD

         A reviewing court must affirm an Administrative Law Judge's decision if the ALJ applied proper legal standards and his or her findings are supported by substantial evidence in the record, See 42 U.S.C. § 405(g); see also Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "'Substantial evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007), citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).

         The court must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Id., quoting Reddick v. Chater, 157 F, 3d 715, 720 (9th Cir. 1998). The court may not substitute its judgment for that of the Commissioner. See id, citing Robbins, 466 F.3d at 882; see also Edlund v. Massanari, 253 F, 3d 1152, 1156 (9th Cir, 2001). Moreover, the court may not rely upon its own independent findings of fact in determining whether the ALJ's findings are supported by substantial evidence of record. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003), citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). If the ALJ's interpretation of the evidence is rational, it is immaterial that the evidence may be "susceptible [of] more than one rational interpretation." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989), citing Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).

         SUMMARY OF ADMINISTRATIVE RECORD

         Capistrano was born on May 26, 1974. Tr. 67. Capistrano graduated from high school and attended college for one year. Tr. 216. Prior to her amended alleged disability onset date of September 14, 2012 (Tr. 44), Capistrano worked at a daycare and as a cosmetics representative, although neither job constituted past relevant work (Tr. 32, 61).

         Capistrano was referred to the Oregon Health Sciences University Rheumatology department, where she was seen by Ajay Wanchu, M, D,, on April 11, 2011. Dr, Wanchu diagnosed fibromyalgia based on 14 positive tender points. Tr. 261-62.

         On May 13, 2011, Capistrano's treating physician, John Ward, M.D., interpreted a recent CT scan which showed right-sided sacroiliitis. Tr. 319. The doctor felt it was "more the source of her pain." Id. Other diagnoses included fibromyalgia, abnormal liver function, depression, hypothyroidism, anxiety disorder, attention deficit disorder, sleep apnea, gestational diabetes, GERD, and external otitis. Tr. 319-20.

         Capistrano was evaluated by rheumatologist Michelle M. Ryan, M.D., in December 2011. Tr. 482. The doctor noted that Capistrano's pain had worsened 14 months prior, to the extent Capistrano had difficulty walking. Dr, Ryan confirmed the sacroiliitis diagnosis, and indicated it was possible that Capistrano also had psoriatic arthritis. Tr. 485-86.

         On March 15, 2013, Capistrano was treated by Patricia O'Hare, M, D. She assessed chronic plaque-like psoriasis with psoriatic arthritis, based on observing 12% of Capistrano's body surface area covered in psoriatic plaques, and feet with fissures. Tr. 457.

         Consultative physician, Brandon Markus, D.O., examined Capistrano and produced a report on March 23, 2013. Tr. 452. Dr. Markus diagnosed fibromyalgia based on 14 tender points, and he included psoriatic arthritis as a diagnosis, although there were no objective findings. Tr. 456. Dr. Markus opined that Capistrano could stand/walk for six hours in a workday with frequent position changes, she could lift 50 pounds occasionally and 25 pounds frequently. Id.

         By February 2014, Capistrano had increased pain and anxiety symptoms, in conjunction with the death of her mother and, shortly thereafter, a divorce from her husband. Tr. 495.

         In March 2014, Dr. Ryan reported that Humira was not helpful in treating Capistrano's psoriatic arthritis, but the medication Enbrel seemed to help somewhat. Tr. 470. Capistrano was observed to have "very deep cracking" over the plantar area of her feet. Tr. 469. Dr. Ryan additionally noted Capistrano was getting two Enbrel injections per month to treat her sacroiliitis until her health insurance ran out. Tr. 467.

         Capistrano began treatment at Corvallis Pain Management in December 2014. Tr. 522. She received a steroid injection to treat sacroiliiac joint pain in February 16, 2015, which was reported to be 50% helpful in relieving pain. Tr. 516-17. In March 2015, Capistrano was discharged from the clinic for aberrant behaviors including taking non-prescribed medication, discontinued prescriptions, and not attending a pill count meeting. Tr. 513.

         Dr. Ward, in May 2015, noted that Capistrano had stopped taking her pain medications in favor of taking hemp oil. Tr. 541. ...


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