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Patricia K. v. Berryhill

United States District Court, D. Oregon

August 7, 2018

PATRICIA K.[1] , Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.

          Katherine L. Eitenmiller and Robert A. Baron, Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney, Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon, United States District Judge.

         Patricia K. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her application for Disability Insurance Benefits (“DIB”). AR 15. For the reasons discussed below, the Commissioner's decision is REVERSED and REMANDED for further proceedings.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means “more than a mere scintilla but less than a preponderance.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

         Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1226.

         BACKGROUND

         A. Plaintiff's Application

         Plaintiff protectively filed an application for DIB on June 5, 2013, alleging disability beginning January 1, 1996. AR 177. Plaintiff alleged disability due to chronic migraines, fibromyalgia, and severe depression. AR 215. She was born on January 13, 1954 and was 41 years old as of her alleged disability onset date. AR 177. The Commissioner denied her applications both initially and upon reconsideration. AR 119, 129. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). AR 22. On September 10, 2015, an administrative hearing was held. AR 40. On September 21, 2015, the ALJ issued a decision finding that Plaintiff was not disabled under the Social Security Act and not entitled to DIB. AR 19-35. On November 16, 2015, Plaintiff requested a review of the ALJ decision by the Appeals Council. AR 15-18. On February 17, 2017, the Appeals Council denied her request for review, making the ALJ's decision the final decision of the Commissioner. AR 1-4. Plaintiff now seeks judicial review of that decision.

         B. The Sequential Analysis

         A claimant is disabled if he or she is 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). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment “severe” under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's “residual functional capacity” (“RFC”). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966 (describing “work which exists in the national economy”). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.

         C. The ALJ's Decision

         As a preliminary matter, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2002. AR 24. Thus, Plaintiff must establish disability on or before that date in order to be entitled to DIB. AR 22. Next, the ALJ applied the sequential analysis. AR 24-34. At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity from her alleged onset date through her date last insured. AR 24. At step two, the ALJ found that Plaintiff had three severe medical impairments, which more than minimally affect Plaintiff's ability to work: migraines; depressive disorder; and fibromyalgia. Id. The ALJ also noted that Plaintiff had a history of three non-severe medical impairments, which have no more than a minimal affect on her ability to work: intermittent hives; an abdominal hysterectomy and bilateral salpingo-oophorectomy; and an appendectomy. Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. AR 25-26.

         The ALJ then evaluated Plaintiff's RFC. The ALJ determined that Plaintiff had an RFC as follows:

to perform less than a full range of sedentary work as defined in 20 C.F.R. § 404.1567(a). Specifically, the claimant can lift and/or carry 10 pounds occasionally and less than 10 pounds frequently; she can stand and/or walk for two hours out of an eight-hour workday with regular breaks if she is allowed to sit for 5 minutes per hour of walking while remaining on task; she can sit for six hours out of an eight-hour workday with regular breaks if she can stand for five minutes per hour of sitting while remaining on task; she is unlimited with respect to pushing and/or pulling, other than as indicated for lifting and/or carrying. She can frequently climb ramps and stairs, but is precluded from climbing ladders, ropes or scaffolds. The claimant can occasionally stoop and crouch. The claimant is precluded from working at unprotected heights, with moving mechanical parts, or with extremes of heat and cold. The claimant can understand, remember and carryout simple and routine tasks. The claimant is limited to simple work-related decisions. The claimant's time off task can be accommodated by normal breaks.

AR 25-26.

         At step four, the ALJ compared the vocational expert's testimony, the mental and physical demands of Plaintiff's past relevant work, and the Plaintiff's RFC. Accordingly, the ALJ determined that Plaintiff was not able to perform any past relevant work. AR 32.

         At step five, the ALJ considered Plaintiff's RFC, age, education, and work experience and determined that, based on the vocational expert's testimony, jobs existed in significant numbers in the national economy that Plaintiff could have performed through the date last insured. AR 33. Therefore, the ALJ determined that Plaintiff was not disabled as defined in the Social Security Act at any time from the alleged onset date through the date last insured. AR 34.

         DISCUSSION

         Plaintiff contends that the ALJ made the following legal errors in evaluating her case: (A) improperly discrediting Plaintiff's subjective symptom testimony; (B) failing to adequately incorporate a limitation in public interaction as set forth by Richard Winslow, M.D., in the RFC and hypothetical posed to the vocational expert; (C) improperly discrediting the opinions and findings of treating physicians Kathleen Cordes, M.D. and Martin Klos, M.D.; and (D) improperly discrediting the opinions and findings of Plaintiff's therapist, Terry Fields, M.S.

         A. Plaintiff's Subjective Symptom Testimony

         1. Legal Standards

         There is a two-step process for evaluating a claimant's testimony about the severity and limiting effect of the claimant's symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

         “Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must state which pain testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell, 947 F.2d at 345-46).

         The ALJ's credibility decision may be upheld overall even if not all of the ALJ's reasons for rejecting the claimant's testimony are upheld. See Batson, 359 F.3d at 1197. The ALJ may not, however, make a negative credibility finding “solely because” the claimant's symptom testimony “is not substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d at 883.

         2. Analysis

         The ALJ determined that Plaintiff's medically determinable impairments could be expected to cause the alleged symptoms, but not to the extent claimed by Plaintiff. AR 28. The ALJ cited two reasons for discounting Plaintiff's subjective testimony regarding her symptoms: (a) she stopped work for reasons other than disability and (b) her activities of daily living were inconsistent with her allegations that she is unable to sustain employment.

         a. Plaintiff's reasons for leaving employment

         The ALJ determined that Plaintiff stopped working for reasons not related to the severity of her symptoms. The ALJ stated, “prior to alleged onset date, [Plaintiff's] Employer, EWEB had her working full time, but when her daughter was born she wanted to cut back to part time, but it didn't work out.” AR 27. Plaintiff responds that ...


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