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Teresa M. v. Commissioner Social Security Administration

United States District Court, D. Oregon

July 27, 2018

TERESA M. Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.

          OPINION AND ORDER

          Malcolm F. Marsh United States District Judge.

         Plaintiff Teresa M.[1] seeks judicial review of the final decision of the Commissioner of Social Security denying her applications for a period of disability and disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-403, and 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, the court affirms Commissioner's decision.

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff protectively filed her application for SSI on June 21, 2013. Plaintiff protectively filed her application for a period of disability and DIB benefits on July 16, 2013. In both applications, Plaintiff alleges disability beginning March 1, 2002, due to PTSD, agoraphobia, fear of driving, suicidal thoughts, obesity, type II diabetes, kidney failure, severe muscle cramping, scoliosis, bad arms and legs, severe sleep apnea, right leg shorter than left leg, fibromyalgia, MRS A, five hernias, asthma, high blood pressure, memory loss, severe irritable bowel syndrome, status post gallbladder removal, knee injury, full hysterectomy, bad shoulders, left eye cataract, hip problems, severe insomnia, depression, chronic nausea, chronic diarrhea, chronic heart burn, and persistent headaches. Tr. Soc. Sec. Admin. R. ("Tr.") 29, 87, ECF No. 7. Plaintiffs claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge ("ALJ"). The ALJ held a hearing on May 14, 2015, at which Plaintiff appeared with her attorney and testified. A vocational expert, Nancy E. Bloom, also appeared at the hearing and testified. At the hearing, Plaintiff amended her alleged onset date to June 21, 2013, and dismissed her claim for Title II benefits. Tr. 49. On July 27, 2015, the ALJ issued an unfavorable decision. The Appeals Council denied Plaintiff s request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review.

         Plaintiff was 35 years old on the alleged onset of disability date and was 50 years old on the date of the hearing. Tr. 38, 104, 143. Plaintiff obtained a GED and has past relevant work as a certified nursing assistant. Tr. 37.

         THE ALJ'S DISABILITY ANALYSIS

         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. §§404.1520, 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014). At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).

         At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since her alleged onset of disability. At step two, the ALJ found that Plaintiff has the following severe impairments: degenerative joint disease of the bilateral shoulders, degenerative joint disease of the left hip and left knee, morbid obesity, diabetes mellitus with peripheral neuropathy, chronic obstructive pulmonary disorder ("COPD"), asthma, affective disorder, anxiety disorder, attention deficit hyperactivity disorder, obsessive-compulsive disorder, borderline personality disorder, and post-traumatic stress disorder. At step three, the ALJ found that Plaintiffs impairments, or combination of impairments, did not meet or medically equal a listed impairment.

         The ALJ assessed Plaintiff with a residual functional capacity ("RFC") to perform sedentary work with additional limitations:

[Plaintiff] requires the option to alternate between sitting and standing, at will, while remaining on-task. She may not climb, kneel, crouch, or crawl. She occasionally may bend and stoop. [Plaintiff] is limited to occasional overhead reaching bilaterally. She should avoid all exposure to pulmonary irritants, such as fumes, odors, dusts, gases, or poor ventilation. She also should avoid all exposure to workplace hazards, such as unprotected heights or moving mechanical parts. [Plaintiff] is limited to performing simple routine tasks, which can be learned within 30 days and which do not require more than superficial (defined as casual or perfunctory) interaction with coworkers and the public.

Tr. 28.

         At step four, the ALJ found that Plaintiff is unable to perform her past relevant work. At step five, the ALJ found that considering Plaintiffs age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that Plaintiff can perform, including such representative occupations as: addresser, semiconductor wafer breaker, and document preparer. Accordingly, the ALJ concluded that Plaintiff has not been under a disability under the Social Security Act through July 27, 2015.

         ISSUES ON REVIEW

         On appeal to this court, Plaintiff contends the following errors were committed: (1) the ALJ improperly evaluated her testimony; (2) the ALJ improperly evaluated the opinion of Dr. Santana; (3) the ALJ erred by failing to find her fibromyalgia a medically determinable impairment at step two; and (4) the ALJ erred at step five. The Commissioner argues that the ALJ's decision is supported by substantial evidence and is free of legal error. Alternatively, the Commissioner contends that even if the ALJ erred, Plaintiff has not demonstrated harmful error.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). "Substantial evidence is 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." Hill, 698 F.3d at 1159; (internal quotations omitted); Garrison, 759 F.3d at 1009. The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Trevizo, 871 F.3d at 675; Garrison, 759 F.3d at 1009. The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Garrison, 759 F.3d at 1010.

         DISCUSSION

         I. The ALJ Did Not Err in Discounting Plaintiffs Credibility

         To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. Trevizo, 871 F.3d at 678; 20 C.F.R. § 416.929. The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).

         The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider when making such credibility determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence.[2] Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.

         At the hearing, Plaintiff testified that in the previous two years, she has not received any ongoing mental health counseling, but instead discussed her mental health conditions with her primary care physician Castel Santana, M.D. Tr. 55-56. Plaintiff indicated that Dr. Santana treated her for a number of issues, including depression, anxiety, and COPD. Tr. 56-57. Plaintiff indicated that in a typical day, she stays in her apartment and keeps to herself and reads or watches television. Tr. 58. Plaintiff testified that her left hip is rubbing "bone on bone" and that six months earlier, she had an injection in her hip. Tr. 60. Plaintiff stated that prior to the injection, she was trying to ride her stationary bike and trying to lift a few weights for exercise. Tr. 60.

         Plaintiff testified that in July 2014, she and her son unloaded bags of pellets from a pickup truck for her father's pellet stove. Tr. 58. Plaintiff stated that she dragged the bags of pellets in the bed of the pickup, then let it fall from the bed of the pickup to the ground, and then her son picked up the bag and put it in the garage for her parents. Tr. 59. Plaintiff stated that she wanted to help her parents because her father has Parkinson's disease. Tr. 59. Plaintiff testified that she has fibromyalgia and tears in her shoulders, and that she should not have been lifting and dragging 40 pound bags of pellets. Tr. 60.

         Plaintiff testified that she is right hand dominant and she can pick up a gallon of milk with her left arm. Tr. 60-61. Plaintiff testified that once a week she shops at the grocery store with her daughter for 25 minutes, but that she is panicked the whole time, and she does not like to be around people. Tr. 61-62. Plaintiff described that she lives by herself, and her adult daughter comes over to assist with washing dishes, and occasionally brings her meals. Tr. 62. Plaintiff testified that she smokes half a pack of cigarettes per day and has asthma and COPD. Tr. 63.

         Plaintiff stated that she cannot work due to her unpredictable diarrhea, pain in her arms and legs, and her inability to be around people. Tr. 66. Plaintiff described that she feels overwhelmed by people in public. Tr. 74. Plaintiff testified that she worked as a certified medication assistant ("CMA") passing out medications at a nursing home and hospital. ...


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