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Ann P. v. Commissioner Social Security Administration

United States District Court, D. Oregon, Eugene Division

September 28, 2018

JANE ANN P., Plaintiff,



         Plaintiff Jane P. brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiffs application for Disability Insurance Benefits ("DIB"). For the reasons set forth below, the Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this opinion.


         On September 18, 2012, plaintiff applied for DIB pursuant to Title II. Plaintiff alleged disability beginning November 1, 2008, due to Hepatitis C, migraine headaches, chronic fatigue, chemical sensitivities, and degenerative disc disorder. Plaintiffs DIB application was denied initially and upon reconsideration, with the reconsideration denial dated July 25, 2013. An administrative hearing was held before an Administrative Law Judge ("ALJ") on May 20, 2015, At the hearing, plaintiff testified and was represented by counsel. A vocational expert also testified. On July 16, 2015, the ALJ denied plaintiffs DIB application, finding that she was not disabled on September 30, 2011, her date last insured ("DLI") for Title II purposes. After the Appeals Council denied review, plaintiff filed the present complaint before this Court.


         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 Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quotation marks omitted)). 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 the Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (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)). However, a reviewing court may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).


         The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A).

         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(a)(4); id § 416.920(a)(4), At step one, the ALJ found that plaintiff had not engaged in "substantial gainful activity" since the alleged disability onset date. 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id. 416.920(a)(4)(i), (b). Tr. 20. At step two, the ALJ found that plaintiff had the following severe impairment as of the alleged onset dates: lumbar spine degenerative disc disorder, cervical spine degenerative disc disorder, right hip degenerative joint disease, arthritis, and migraines. 20 C.F.R. §§ 404.1520(a)(4)(h), (c); id. §§ 416.920(a)(4)(h), (c). At step three, the ALJ determined that plaintiffs impairments, whether considered singly or in combination, did not 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), (d); id. §§ 416.920(a)(4)(iii), (d). Tr, 21.

         The ALJ then assessed plaintiffs residual functional capacity ("RFC"). 20 C.F.R. 404.1520(e); id § 416.920(e). The ALJ found that plaintiff

had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant is limited to no more than frequent climbing of ramps or stairs and no climbing of ladders, ropes, or scaffolds. The claimant is limited to no more than occasional bilateral overhead reach and no more than frequent bilateral handling as well as no more than frequent balancing, stopping, kneeling, crouching, and crawling. She must avoid concentrated exposure to fumes, odors, dust, gases, and poorly ventilated areas.

Tr. 22. At step four, the ALJ concluded that plaintiff was capable of performing past relevant work as a clothing store owner, billing instructor, clothing store manager, and account manager. The ALJ denied plaintiffs application for DIB without proceeding to step five because she "was not under a disability within the meaning of the . . . Act at any time from November 1, 2008, the alleged onset date, through September 30, 2011, the date last insured." Tr. 27.


         Plaintiff contends that the ALJ committed harmful errors with respect to her step two, four, and five analysis. First, plaintiff argues the ALJ improperly rejected several of plaintiff s impairments as non-severe at step two. Secondly, she avers the ALJ erred in failing to credit her subjective symptom complaints and improperly evaluating the medical evidence of her treating physicians, Dr. House and Dr. Klos. Finally, plaintiff avers that the ALJ failed to conduct an adequate analysis of her past relevant work experience and that the ALJ failed to properly assess whether plaintiffs RFC was sufficient to perform other work in the national economy. I address each argument in turn.

         I. Plaintiff's Subjective Symptom Complaints

         I begin with plaintiffs argument that the ALJ failed to provide legally sufficient reasons to reject her testimony of existing limitations that plaintiff asserts amount to a qualifying disability. When a claimant's medically documented impairments reasonably could be expected to produce some degree of the symptoms complained of and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of...symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). The ALJ makes such a determination amidst a two-step process that first evaluates the existence of an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the symptoms and, secondly, addresses the intensity, persistence, and limiting effects of the alleged symptoms based on an examination of the entire record. 20 C.F.R §§ 404.1529(a) & (c)(1); 416.929(a) & (c)(1). Within this analysis, the ALJ has discretion to dismiss portions of the plaintiffs testimony so long as the adjudicator provides "clear and convincing reasons" for doing so. A general assertion that the claimant is not credible is insufficient; the ALJ must "state which...testimony is not credible and what evidence suggests that the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).

         Moreover, the reasons proffered by the ALJ for discrediting a claimant's testimony must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the [testimony]." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). If the "ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhardt, 278 F.3d 947, 959 (9th Cir. 2002).

         At the administrative hearing, the ALJ asked plaintiff a series of questions related to the ownership and management of her clothing business through the end of 2008, the time ...

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