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Hale v. Berryhill

United States District Court, D. Oregon

May 15, 2018

VANESSA D. HALE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          George J. Wall Attorney for Plaintiff.

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon Renata Gowie ASSISTANT UNITED STATES ATTORNEY Kathryn A. Miller SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Attorneys for Defendant.

          OPINION & ORDER

          Marco A. Hernandez United States District Judge.

         Plaintiff Vanessa Hale brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB) and supplemental security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I reverse the Commissioner's decision and remand for additional proceedings.


         Plaintiff applied for DIB and SSI in August 2013, alleging an onset date of May 15, 2010. Tr. 229-29, 230-33. Her applications were denied initially and on reconsideration. Tr. 167-71 (Initial); 124-63, 173-78 (Recon.). On August 13, 2015, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 44-71. On November 4, 2015, the ALJ found Plaintiff not disabled. Tr. 17-43. The Appeals Council denied review. Tr. 1-6.


         Plaintiff alleges disability based on right leg pain, left leg pain, anxiety, depression, and back pain. Tr. 254. At the time of the hearing, she was forty-nine years old. Tr. 50 (testifying to date of birth). She is a high school graduate and has past relevant work experience as a ticket taker, gate attendant/bouncer, service station attendant, fast food worker, game attendant, cook, and food service supervisor. Tr. 51, 64-65.


         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.


         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. Tr. 22. Next, at step two, the ALJ determined that Plaintiff has severe impairments of lumbar radiculopathy, arthritis, status/post back surgery, status/post right leg fracture, adjustment disorder with mixed anxiety and depressed mood, borderline intellectual functioning, and cocaine abuse. Tr. 23. However, at step three, the ALJ determined that Plaintiff's impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 25-28.

         At step four, the ALJ concluded that Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), meaning she can lift and/or carry 20 pounds occasionally and 10 pounds frequently. Tr. 29. The ALJ's RFC includes several additional limitations as follows: (1) she can stand and/or walk for two hours in an eight-hour workday with normal breaks and she can sit for up to eight hours in an eight-hour workday with normal breaks, but she must be allowed to alternate sitting and standing such that she can sit for an hour and then be permitted to stand for five to ten minutes before returning to a seated position, which can occur throughout the eight-hour workday without a need to leave the workstation; (2) she should not perform work that requires the operation of foot controls; (3) she can occasionally climb ramps or stairs but can never climb ladders, ropes, or scaffolds; (4) she can occasionally balance, stoop, kneel, crouch, or crawl; (5) she must avoid exposure to excessive vibration such as jackhammers; (6) she must avoid all exposure to hazards, such as unprotected heights or dangerous machinery; (7) she can remember, understand, and carry-out tasks or instructions consistent with occupations that are rated with specific vocational preparation (SVP) level of 1 or 2; (8) she would do best in a job that did not require the use of math skills that exceed a third-grade level; (9) she can have superficial, incidental interaction with the general public; and (10) she can work in proximity with co-workers but she will do best in a job that does not require teamwork. Id.

         With this RFC, the ALJ determined that Plaintiff is unable to perform any of her past relevant work. Tr. 36. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as assembler and small products assembler. Tr. 37-38. Thus, the ALJ determined that Plaintiff is not disabled. Tr. 38.


         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).


         Plaintiff alleges that the ALJ made two errors: (1) she improperly found Plaintiff's subjective limitations testimony not credible, and (2) she improperly rejected the opinion of an examining physician. She also contends that the Appeals Council erred by declining to review the ALJ's decision in light of new and material evidence.

         I. Plaintiff's Credibility

         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). The ALJ may also consider the ability to perform household chores, the lack of any side effects from prescribed medications, and the unexplained absence of treatment for excessive pain. Id.; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) ("The ALJ may consider many factors in weighing a claimant's credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.") (internal quotation marks omitted).

         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).

         The ALJ recited the correct two-step credibility analysis. Tr. 29. She then summarized Plaintiff's testimony, noting statements Plaintiff had made either to medical practitioners or in her Adult Function Report. Tr. 29-30. The ALJ stated that in March 2012, Plaintiff told examining psychologist Roderick Calkins, Ph.D., that she was unable to work because of back and leg pain. Tr. 30 (citing (Tr. 533-34, 540). She expressed an inability to stand because of her leg. Id. In her August 2013 Adult Function Report, Plaintiff stated that back pain made it difficult to stand, bend, or sit, and leg pain limited standing, kneeling, and walking. Tr. 30 (citing Tr. 263). She complained that stomach issues caused her to frequently run to the bathroom and that depression made it difficult to ...

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