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Jeanette R. v. Berryhill

United States District Court, D. Oregon

October 3, 2018

JEANETTE R., [1] Plaintiff,
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Michael McShane United States District Judge

         Jeanette R. (“Plaintiff”) brings this action for judicial review of the Commissioner's decision denying her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act (“the Act”). This court has jurisdiction under 42 U.S.C. § 405(g).

         On June 10, 2013, Plaintiff filed an application for DIB and SSI, alleging disability as of May 30, 2011. After a hearing, the administrative law judge (“ALJ”) determined Plaintiff was not disabled under the Act from May 30, 2011, through the date of the decision. Tr. 75-85.[2]Plaintiff argues the ALJ erred by improperly discounting Plaintiff's subjective symptom testimony, erroneously rejecting the medical opinions of Dr. Gomes, Dr. Dobles, and Licensed Marriage and Family Therapist (“LMFT”) Kammerer, improperly rejecting the lay witness testimony of Plaintiff's friend, and incorrectly finding that Plaintiff could perform other work. Because the Commissioner's decision is not based on proper legal standards and not supported by substantial evidence the Commissioner's decision is REVERSED and this case is REMANDED for further proceedings.


         The reviewing court shall 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 of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “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 v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, I review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can reasonably support either affirming or reversing, ‘the reviewing court may not substitute its judgment' for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).


         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If the claimant satisfies his burden with respect to the first four steps, the burden shifts to the Commissioner at step five. 20 C.F.R. §§ 404.1520 & 416.920. At step five, the Commissioner must show that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id. If the Commissioner fails to meet this burden, then 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 v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).

         Plaintiff was 27 years old on her alleged onset date. Tr. 139. She has past relevant work as a gas station attendant and mold maker. Tr. 84. She alleged disability based on posttraumatic stress disorder (“PTSD”), social anxiety, borderline bipolar disorder, and depression. Tr. 139. The ALJ found Plaintiff's testimony not entirely credible. Tr. 80-81. The ALJ determined Plaintiff had the severe impairments of: depression, PTSD, anxiety, panic disorder, and alcohol abuse. Tr. 78. Ultimately, the ALJ resolved that Plaintiff retained the RFC to perform a full range of work at all exertional levels, except she was limited to simple, repetitive, routine tasks requiring no more than occasional interaction with supervisors and no more than brief, infrequent, superficial contact with co-workers and the general public. Tr. 80. The VE opined someone with Plaintiff's RFC as constructed by the ALJ could perform the jobs of janitor, housekeeper/cleaner, and printed product assembler. Tr. 84. Therefore, the ALJ concluded Plaintiff was not disabled under the Act. I address each of Plaintiff's argument in turn.

         As a preliminary matter, I note that the living situation Plaintiff described was somewhat unusual. Plaintiff and her son live with a man (“Bob”) and she apparently performs a number of live-in housekeeping and farming chores in lieu of rent. Tr. 80-81, 306, 394. Bob is referred to throughout the record interchangeably as her friend, boss, landlord, roommate, employer, and co-parent. Tr. 17, 394, 411, 439, 447, 463, 466, 745, 771.

         I. Weight of the Claimant's Testimony

         Plaintiff argues that the ALJ erred in finding Plaintiff not fully credible. “Where, as here, Claimant has presented evidence of an underlying impairment and the government does not argue that there is evidence of malingering, we review the ALJ's rejection of her testimony for ‘specific, clear and convincing reasons.'” Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (quoting Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). An ALJ is not “required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina, 674 F.3d at 1112 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The ALJ “may consider a range of factors in assessing credibility.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). These factors can include “ordinary techniques of credibility evaluation, ” id., as well as:

(1) whether the claimant engages in daily activities inconsistent with the alleged symptoms; (2) whether the claimant takes medication or undergoes other treatment for the symptoms; (3) whether the claimant fails to follow, without adequate explanation, a prescribed course of treatment; and (4) whether the alleged symptoms are consistent with the medical evidence.

Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). However, a negative credibility finding made solely because the claimant's symptom testimony “is not substantiated affirmatively by objective medical evidence” is legally insufficient. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Nonetheless, the ALJ's credibility finding may be upheld even if not all of the ALJ's rationales for rejecting claimant testimony are upheld. See Batson, 359 F.3d at 1197.

         The ALJ relied on Plaintiff's activities of daily living in discounting her subjective symptom testimony. An ALJ may consider a claimant's activities of daily living in assessing whether those activities contradict her testimony about symptoms or functional limitations, or in assessing whether those activities represent functional capacities that are transferable to the workplace. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ discounted Plaintiff's testimony based on the latter. The ALJ cited Plaintiff's ability to go shopping, play with her son, help her son with homework, perform various household chores including meal preparation and housekeeping, as well as her ability to attend occasional family events “such as school concerts, summer camps, weddings, and funerals.” Tr. 80. The ALJ also cited the fact that Plaintiff served as a “live-in housekeeper in lieu of rent, ” and she took care of her son and two nephews. Tr. 80-81. The ALJ found that “[s]uch activities reasonably suggest she retains significant work-related functioning.” Tr. 80.

         There were some indications in the record that Plaintiff struggled at times to complete her chores and Plaintiff cites a few isolated instances in which Bob performed some of the housework instead of Plaintiff; however, the overwhelming weight of the evidence supports the ALJ's finding that Plaintiff's activities represented functional capacities transferable to the workplace. Tr. 488, 492, 554, 558, 591, 735, 791. In addition to cleaning, laundry, and cooking, Plaintiff cared for four cats, one dog, 15 laying hens, two roosters, five butchering chickens, two pigs, and one cow. Tr. 308, 394. Plaintiff tended a large garden, harvested the vegetables, and canned or froze the excess crops. Tr. 35, 37, 308, 401. Plaintiff described her farm work as “intense” and “ongoing.” Tr. 591. Between cleaning and farming duties, she reported ...

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