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Bair v. Commissioner of Social Security Administration

United States District Court, D. Oregon

May 8, 2018

RAYMOND BAIR, Plaintiff,

          NANCY J. MESEROW Attorney for Plaintiff

          BILLY J. WILLIAMS United States Attorney

          RENATA GOWIE Assistant United States Attorney

          MICHAEL W. PILE Acting Regional Director DIANA ANDSAGER Special Assistant United States Attorney Social Security Administration Attorneys for Defendant



         Plaintiff Raymond Bair seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) in which she denied Plaintiff's application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act. This Court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. § 405(g).

         For the reasons that follow, the Court REVERSES the decision of the Commissioner and REMANDS this matter for the immediate calculation and award of benefits.


         Plaintiff filed applications for DIB on July 10, 2012, alleging a disability onset date of March 5, 2011. Tr. 255.[1]The application was denied initially and on reconsideration. Tr. 109-33. An Administrative Law Judge (ALJ) held a hearing on June 30, 2014. Tr. 69-108. Plaintiff was represented at the hearing. Plaintiff and a vocational expert (VE) testified. The ALJ issued a decision on July 18, 2014, in which he found Plaintiff is not disabled and, therefore, is not entitled to benefits. Tr. 138-154. The Appeals Council remanded for a second hearing. Tr. 159-62.

         An ALJ held a subsequent hearing on December 16, 2015. Tr. 40-68. The ALJ issued a decision on January 27, 2016, in which he again found Plaintiff is not disabled. Tr. 17-32. Pursuant to 20 C.F.R. § 404.984(d), that decision became the final decision of the Commissioner on March 8, 2017, when the Appeals Council denied Plaintiff's request for review. Tr. 1-4. See also Sims v. Apfel, 530 U.S. 103, 106-07 (2000).


         Plaintiff was born in 1963 and was 51 years old at the time of the hearing. Tr. 17, 47. Plaintiff completed high school and has an Associate's Degree in electrical engineering. Tr. 31, 48. Plaintiff has past relevant work experience as a research engineering technician, manufacturing technician, and field-service engineer. Tr. 30.

         Plaintiff alleges disability due to fibromyalgia, migraines, depression, and grand mal seizures. Tr. 122. Plaintiff took some time off in March 2011 because of his back pain. Tr. 846. When he tried to go back to work, the pain got worse. Tr. 528, 603. Plaintiff stopped working due to his back pain, and he continued to have chronic lower-back pain from that point. Tr. 19, 489, 519, 847. Brett Stacey, M.D., treating physician, concluded Plaintiff meets the American College of Rheumatology criteria for fibromyalgia. Tr. 484.

         In addition to his back pain, Plaintiff states he experiences pain in his feet, legs, arms, hands, and shoulders. Tr. 485, 489, 499, 510, 514, 659. Plaintiff reported his pain is constant and persistent and became so severe at one point that he was bedridden for days. Tr. 513, 676, 847, 1322, 1376. Plaintiff also reported difficulties with memory and stated he suffers at times from frequent memory lapses that last as long as an entire day. Tr. 90, 293, 411, 413, 416, 847, 1337. In addition, he reported he suffers from PTSD due to an incident when he was 12 years old in which his stepfather attacked his mother and Plaintiff shot and killed his stepfather. Tr. 489, 848. Plaintiff also suffers from chronic depression. Tr. 476, 484. Dr. Stacey observed Plaintiff "has longstanding depression with prior suicidal attempts and ideation." Tr. 484. Treating psychologist Beth Darnall, Ph.D., concluded Plaintiff is severely depressed and another treating provider determined Plaintiff was at risk for suicide. Tr. 491, 1309. His depression is exacerbated by the stress of his son's terminal brain cancer, which has resulted in his son's blindness. Tr. 492, 569, 848. Plaintiff also suffers from excruciating migraines that have caused him to go to the emergency room on dozens of occasions. Tr. 411, 423, 431, 460, 465, 469, 472, 476, 479, 628, 672, 681, 684, 687, 700, 705, 721, 804, 807, 810, 812, 815, 821, 823, 833-34, 868, 871, 963, 1002, 1050, 1230, 1357, 1368. To provide relief from the migraines Plaintiff generally has to be treated with a cocktail of intravenous drugs. Tr. 460, 628, 672, 823. At multiple appointments, treating physician Michelle Mears, M.D., observed Plaintiff lying on the floor in the fetal position due to migraine pain. Tr. 628, 632. Despite trying a wide variety of treatment options, Plaintiff's migraines have persisted. See, e.g., Tr. 25, 1357, 1368, 1370.


         The initial burden of proof rests on the claimant to establish disability. Molina v. Astrue, 674 F.3d 1104, 1110 (9thCir. 2012). To meet this burden, a claimant must demonstrate his inability "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). The ALJ must develop the record when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence. McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)).

         The district 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 as a whole. 42 U.S.C. § 405(g). See also Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012). Substantial evidence is "relevant evidence that a reasonable mind might accept as adequate to support a conclusion." Molina, 674 F.3d. at 1110-11 (quoting Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). "It is more than a mere scintilla [of evidence] but less than a preponderance." Id. (citing Valentine, 574 F.3d at 690).

         The ALJ is responsible for determining credibility, resolving conflicts in the medical evidence, and resolving ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). The court must weigh all of the evidence whether it supports or detracts from the Commissioner's decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). Even when the evidence is susceptible to more than one rational interpretation, the court must uphold the Commissioner's findings if they are supported by inferences reasonably drawn from the record. Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012). The court may not substitute its judgment for that of the Commissioner. Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir. 2006).


         The Commissioner has developed a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). See also 20 C.F.R. § 404.1520 (2016). Each step is potentially dispositive.

         At Step One the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(I). See also Keyser v. Comm'r of Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).

         At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1509, 404.1520(a)(4)(ii). See also Keyser, 648 F.3d at 724.

         At Step Three the claimant is disabled if the Commissioner determines the claimant's impairments meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(iii). See also Keyser, 648 F.3d at 724. The criteria for the listed impairments, known as Listings, are enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed Impairments).

         If the Commissioner proceeds beyond Step Three, he must assess the claimant's residual functional capacity (RFC). The claimant's RFC is an assessment of the sustained, work-related physical and mental activities the claimant can still do on a regular and continuing basis despite his limitations. 20 C.F.R. § 404.1520(e). See also Social Security Ruling (SSR) 96-8p. "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule." SSR 96-8p, at *1. In other words, the Social Security Act does not require complete incapacity to be disabled. Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

         At Step Four the claimant is not disabled if the Commissioner determines the claimant retains the RFC to perform work he has done in the past. 20 C.F.R. § 404.1520(a)(4)(iv). See also Keyser, 648 F.3d at 724.

         If the Commissioner reaches Step Five, he must determine whether the claimant is able to do any other work that exists in the national economy. 20 C.F.R. § 404.1520(a)(4)(v). See also Keyser, 648 F.3d at 724-25. Here the burden shifts to the Commissioner to show a significant number of jobs exist in the national economy that the claimant can perform. Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). The Commissioner may satisfy this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines set forth in 20 C.F.R. part 404, subpart P, appendix 2. If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1520(g)(1).


         At Step One the ALJ found Plaintiff had not engaged in substantial gainful activity since March 5, 2011, the alleged onset date. Tr. 19.

         At Step Two the ALJ found Plaintiff has the severe impairments of migraines, myofascial pain syndrome of the back, and fibromyalgia. Tr. 19. The ALJ found Plaintiff's depression, diabetes mellitus, hypertension, Vitamin D deficiency, and hyperlipidemia are nonsevere. Tr. 20-22.

         At Step Three the ALJ concluded Plaintiff's medically determinable impairments during the relevant period did not meet or medically equal one of the listed impairments in 20 C.F.R. part 404, subpart P, appendix 1. Tr. 22. The ALJ then found Plaintiff has the RFC to perform light work with the following limitations: Plaintiff can sit, stand, and walk about six hours each in an eight-hour workday; frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; occasionally stoop, kneel, crouch, and crawl; and do no more than simple routine work. He also must avoid concentrated exposure to hazards such as machinery and heights. Tr. 22.

         At Step Four the ALJ found Plaintiff is unable to perform any of his past relevant work. Tr. 30.

         At Step Five the ALJ found Plaintiff can perform jobs that exist in significant numbers in the national economy such as laundry folder, storage-facility rental clerk, and office helper. Tr. 31. Accordingly, the ALJ found Plaintiff is not disabled and, therefore, is not entitled to benefits. Tr. 32.


         Plaintiff contends the ALJ erred by (1) improperly discounting Plaintiff's subjective symptom testimony; (2) erroneously rejecting the medical opinions of treating physician Dr. Mears and examining physician Thomas Anderson, M.D.; (3) improperly crediting the opinion of nonexamining physician Neal Berner, M.D., over the opinions of Dr. Mears and Dr. Anderson; (4) erroneously rejecting the lay-witness testimony of Sheryll Bair, Plaintiff's mother; (5) improperly ...

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