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Rita L. S. v. Commissioner of Social Security

United States District Court, D. Oregon

September 13, 2018

RITA L. S.[1], Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY[2], Defendant.

          OPINION & ORDER

          MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE.

         Plaintiff Rita L. S. seeks judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying disability and disability insurance benefits pursuant to Title II and supplemental security income pursuant to Title XVI of the Social Security Act. For the reasons set forth below, the decision of the Commissioner is REVERSED and REMANDED for award of benefits.

         BACKGROUND

         Plaintiff filed a Title II application for a period of disability and disability insurance benefits on December 17, 2013, and a Title XVI application for supplemental security income on November 13, 2015. Tr. 20. Plaintiff alleged disability beginning February 21, 2012.[3] Id. Her applications were denied. Id. Plaintiff appeared by video conference before an Administrative Law Judge (“ALJ”) at a hearing held January 14, 2016. Id.

         Plaintiff had previously applied for Title II benefits on June 10, 2011, which was denied on November 8, 2013. Tr. 20. Plaintiff did not appeal that unfavorable decision. Id. As Plaintiff's alleged onset date, February 21, 2012, was within the period adjudicated by the November 8, 2013, decision, the ALJ interpreted the present application to be “an implied request [to] reopen the prior final decision, ” which the ALJ denied. Tr. 21. The ALJ did find, however, that Plaintiff had increased pain symptoms, constituting “changed circumstances sufficient to rebut a presumption of continuing nondisability.” Id.

         On February 4, 2016, the ALJ issued a decision finding Plaintiff not disabled. Tr. 33. The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. Tr. 4. This appeal followed.

         DISABILITY 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, 648 F.3d 721, 724 (9th Cir. 2011).

The five-steps are: (1) Is the claimant presently working in a substantially gainful activity? (2) Is the claimant's impairment severe? (3) Does the impairment meet or equal one of a list of specific impairments described in the regulations? (4) Is the claimant able to perform any work that he or she has done in the past? and (5) Are there significant numbers of jobs in the national economy that the claimant can perform?

Id. at 724-25; 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. Bustamante, 262 F.3d at 953. The Commissioner bears the burden of proof at step five. Id. at 953-54.

         THE ALJ'S FINDINGS

         The ALJ performed the sequential analysis. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the original alleged onset date of February 21, 2012. Tr. 23. The ALJ determined that Plaintiff had the following severe impairments: degenerative joint disease of the bilateral knees; degenerative joint disease of the right shoulder, status-post surgery; fibromyalgia; and mild carpal tunnel syndrome. Tr. 23. The ALJ determined that Plaintiff's severe impairments did not meet or equal a listed impairment. Tr. 24.

         The ALJ determined that Plaintiff had the RFC to perform light work with the following additional restrictions: Plaintiff is limited to lifting fifteen pounds with the dominant (right) upper extremity; she is limited to frequent handling, fingering, and feeling with the dominant (right) shoulder; she requires the option to change positions at will while remaining on task; she is limited to frequent operation of foot controls; she is limited to occasional climbing of ramps and stairs, as well as occasional stooping and kneeling; she is limited to no crouching, crawling, or climbing ladders, ropes, or scaffolds; she is to have no exposure to hazards such as unprotected heights and moving mechanical parts. Tr. 24.

         The ALJ determined that Plaintiff was capable of performing past relevant work as a program manager or social worker. Tr. 32. Accordingly, the ALJ determined that Plaintiff was not disabled. Tr. 33.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotation marks omitted). In reviewing the Commissioner's alleged errors, this court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         When the evidence before the ALJ is subject to more than one rational interpretation, courts must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, cannot affirm the Commissioner's decision on a ground that the agency did not invoke in making its decision. Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56. “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

         DISCUSSION

         Plaintiff alleges the ALJ erred by (1) de facto reopening Plaintiff's prior unfavorable adjudication and failing to provide legally sufficient reasons for finding Plaintiff not disabled for the already-adjudicated period; (2) improperly rejecting Plaintiff's subjective symptom testimony; and (3) improperly discounting the medical opinion of Plaintiff's treating physician.

         I. De facto Re-opening of Prior Disability Determination

         As previously noted, Plaintiff unsuccessfully applied for disability benefits in June 2011, alleging disability beginning July 17, 2010. Tr. 109. Following a hearing, an ALJ denied that earlier application on November 8, 2013. Tr. 109-120. Plaintiff contends that the ALJ in the present case conducted a de facto ...


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