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Lori S. v. Berryhill

United States District Court, D. Oregon

October 2, 2018

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

          Merrill Schneider, Schneider, Kerr, & Robichaux, P.O. Attorneys for Plaintiff.

          Billy J. Williams, Jeffery E. Staples Of Attorneys for Defendant.



         Lori S. (“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”) under Title II and Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”). For the following reasons, the Commissioner's decision is REVERSED and REMANDED for further proceedings consistent with this Opinion and Order.


         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.


         A. Plaintiff's Application

         Plaintiff filed an application for DIB and SSI on August 9, 2013, alleging disability beginning on August 1, 2011. AR 22. Plaintiff was born in October 1963 and was 47 years old as of the alleged disability onset date. AR 87, 99, 218, 225. She alleged disability due to depression, emotional and bipolar disorder (“BPD”), post-traumatic stress disorder (“PTSD”), and “learning problems.” See AR 87, 99. The Commissioner denied Plaintiffs application initially and upon reconsideration. AR 22. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Id. In a decision dated April 22, 2016, the ALJ found Plaintiff not disabled from August 1, 2011, through the date of decision. AR 22-42. The Appeals Council denied Plaintiffs request for review, making the ALJ's decision the final decision of the Commissioner. AR 1-3; see also20 C.F.R § 422.210(a). Plaintiff seeks judicial review of that decision. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g).

         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 also20 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 also20 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

         The ALJ performed the sequential analysis as noted above. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since August 1, 2011, the application date; additionally, the ALJ found Plaintiff met the insured status requirements of the Act through March 31, 2017. AR 24. At step two, the ALJ found Plaintiff had the following severe impairments: bilateral patellofemoral malalignment, right greater than left; planter fasciitis; fibromyalgia; major depressive disorder; PTSD; borderline personality disorder; borderline intellectual functioning; and a history of alcohol abuse. AR 25. At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or equaled the severity of one of the specific impairments listed in the regulations. Id.

         The ALJ next determined Plaintiff's RFC and found she could perform light work, with the following limitations:

She can lift and/or carry 20 pounds occasionally and 10 pounds frequently in an eight-hour workday. She can sit, stand, and walk each six hours in an eight-hour workday. She requires the option [sic] change positions from sitting to standing at will without interrupting essential tasks. She can never crawl, kneel, and climb ladders, ropes, or scaffolds. She can occasionally crouch and climb ramps or stairs. She can frequently balance. She can never be exposed to hazards such as moving machinery and unprotected heights. She can understand, remember, and carry out simple tasks consistent with Specific Vocational Preparation (“SVP”) 1 or 2, which is work that can be learned in 30 days or less. She can perform work that deals primarily with objects rather than people and that does not have a strict production pace. She can perform work that does not require public contact or teamwork assignments.

AR 27. At step four, the ALJ found Plaintiff was unable to perform any of her past relevant work. AR 40. At step five, the ALJ found that considering Plaintiff's age, education, work experience, and RFC there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. AR 41. Specifically, the ALJ found Plaintiff could perform such representative occupations as: garment sorter; office helper; printed product assembler; bagger of garments, laundry; stock checker, apparel; and garment marker. Id. Accordingly, the ALJ found Plaintiff was not disabled from August 1, 2011, through the date of the decision, April 22, 2016. AR 42.


         Plaintiff seeks review of the determination by the ALJ that Plaintiff was not disabled. She argues that the ALJ erred in making that determination by: (A) failing to provide clear and convincing reasons to discount Plaintiff's subjective symptoms; (B) improperly evaluating the medical source evidence; (C) failing to provide germane reasons to discount lay witness evidence; (D) omitting carpal tunnel syndrome from Plaintiff's severe impairments at step two; and (E) failing to craft an RFC and corresponding hypothetical to the vocational expert (“VE”) that included all of Plaintiff's limitations at step five.

         A. Plaintiff's Subjective Symptoms

         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).

         Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”) 96-7p, governing the assessment of a claimant's “credibility, ” and replaced it with SSR 16-3p. See SSR 16-3p, available at2017 WL 5180304 (republished Oct. 25, 2017). SSR 16-3p eliminates the reference to “credibility, ” clarifies that “subjective symptom evaluation is not an examination of an individual's character, ” and requires the ALJ to consider all of the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *2; see also Trevizo, 871 F.3d at 678 n.5. The Commissioner recommends that the ALJ examine “the entire case record, including the objective medical evidence and individual's statements about the intensity, persistence, and limiting effects of symptoms statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. at *7. The Commissioner recommends assessing: (1) the claimant's statements made to the Commissioner, medical providers, and others regarding the claimant's location, frequency and duration of symptoms, the impact of the symptoms on daily living activities, and other methods used to alleviate symptoms; (2) medical source opinions, statements, and medical reports regarding the claimant's history, treatment, responses to treatment, prior work record, efforts to work, daily activities, and other information concerning the intensity, persistence, and limiting effects of an individual's symptoms; and (3) non-medical source statements, considering how consistent those statements are with the claimant's statements about his or her symptoms and other evidence in the file. See Id. at *6-7.

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

         The ALJ, applying the first step of the credibility framework, found that “the claimant's severe medically determinable impairments could reasonably be expected to cause the alleged symptoms.” AR 28. In applying the second step, however, the ALJ found that “the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” Id. In support of that finding, the ALJ offered two rationales: (1) the disparity between Plaintiffs testimony and her treatment record; and (2) the disparity between Plaintiffs claims of debilitating functioning and contemporaneous reports of actual functioning. Id. Notably, although the ALJ issued her decision April 22, 2016, the decision makes no mention of SSR 16-3p in its evaluation of Plaintiffs subjective symptom testimony. Compare SSR 16-3p, available at2017 WL 5180304, at *13 (explaining SSR 16-3p became effective March 28, 2016) with AR 42 (ALJ decision, dated April 22, 2016); see also Molina v. Astrue, 674 F.3d 1104, 1113 n.5 (9th Cir. 2012) (noting SSRs “do not carry the force of law, but they are binding on ALJs nonetheless.” (citation and quotation marks omitted)).

         Plaintiff failed to allege with specificity the subjective symptom testimony she believes the ALJ erroneously rejected. Instead, Plaintiff broadly contends she “consistently demonstrated serious mental health symptoms, with multiple long-term contemporaneous treatment providers noting ongoing limitations.” Pl.'s Op. Br. at 18. The Commissioner responds the ALJ offered numerous reasons for ...

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