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Mike F. v. Berryhill

United States District Court, D. Oregon, Portland Division

October 9, 2018

MIKE F., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Youlee Yim You United States Magistrate Judge

         Mike F. (“plaintiff”), seeks judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying his application for Title II Disability Insurance Benefits (“DIB”) under the Social Security Act (“Act”). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the Commissioner's decision is not supported by substantial evidence, it is REVERSED and REMANDED for further proceedings.


         Born in August 1979, plaintiff was 29 years old on the alleged onset date. Tr. 30, 97. He has a high school education and has completed some college. Tr. 30, 45. Plaintiff has past work experience as a wafer polisher, computer mechanic, inventory clerk, and computer parts salesperson. Tr. 29.

         In October 2009, plaintiff began experiencing paresthesia and optic neuritis. Tr. 359, 373. The next month, plaintiff continued experiencing numbness and clumsiness with his hands. Tr. 384. Imaging revealed white matter lesions on his spinal cord. Id. At that point, plaintiff was diagnosed with multiple sclerosis. Tr. 405. His multiple sclerosis was causing “significant sensory abnormalities.” Tr. 418. In the following months, plaintiff experienced increasing weakness and numbness. Tr. 402, 404.

         Plaintiff went long stretches without seeing a neurologist because he could not afford the co-pays. Tr. 55-56, 473. He was eventually terminated from his treating neurologist's care for non-payment. Tr. 454. In 2012 and 2013, plaintiff continued to suffer from weakness, numbness, and loss coordination in his arms and hands. Tr. 400, 425, 427, 442, 444. During severe flare-ups, plaintiff had almost no sensation in his hands and his dexterity was limited. Tr. 239. He explained that he had trouble with buttons and zippers, was no longer shaving, and had difficulty cleaning himself after going to the bathroom. Tr. 241. Plaintiff was also experiencing urinary incontinence, fatigue, and difficulty walking due to dizziness. Tr. 378, 400, 427.

         By the end of 2013, plaintiff was no longer able to perform yard work, mow the lawn, garden, shave, or play video games. Tr. 61, 289-90. Activities that used to take him a few minutes, like washing the dishes, would take him over an hour. Tr. 319. He constantly felt weak and tired, had trouble getting around, and experienced vertigo and dizzy spells. Tr. 293, 314, 318, 322, 336, 442. Additionally, plaintiff's productivity at work declined to a significant degree. Tr. 72-75, 310. Indeed, his employer explained that the only reason he did not fire plaintiff was because they were friends, noting that “it was costing [his] company money to keep [plaintiff] around.” Tr. 73, 75-76. During that period, due to his impairments, plaintiff regularly came in to work late, left early, took rests on the couch during work hours, and missed work for months at a time. Tr. 73-74. In January 2014, plaintiff stepped down, because even under such accommodating circumstances, he was no longer able to do the work. Tr. 448.


         Plaintiff filed applications for DIB and SSI on December 1, 2009, alleging disability beginning August 1, 2009. Tr. 18. Plaintiff's claims were initially denied on March 16, 2010, and those denials were not appealed. Id. Plaintiff filed a new application for DIB on May 30, 2013. Id. He alleged disability beginning on August 1, 2009, based on multiple sclerosis. Tr. 97. His application was denied initially and upon reconsideration. Tr. 152-56, 158-60. On May 16, 2016, a hearing was held before an Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as did a vocational expert (“VE”). Tr. 39-95. On July 6, 2016, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 18-31. After the Appeals Council denied his request for review, plaintiff filed a complaint in this court. Tr. 1-6. The ALJ's decision is therefore the Commissioner's final decision subject to review by this court. 20 C.F.R. § 422.210.


         The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and “‘may not affirm simply by isolating a specific quantum of supporting evidence.'” Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The reviewing court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.


         Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. This sequential analysis is set forth in the Social Security regulations, 20 C.F.R. §§ 404.1520, 416.920, in Ninth Circuit case law, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)), and in the ALJ's decision in this case, Tr. 19-20.

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity after the alleged onset date. Tr. 20.

         At step two, the ALJ found that plaintiff has the following severe impairments: multiple sclerosis, neurocognitive disorder, organic mental disorder, and affective disorder. Tr. 21.

         At step three, the ALJ found plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 22. The ALJ next assessed plaintiff's residual functional capacity (“RFC”) and determined that he could perform light work with the following limitations: he could frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl; he could occasionally climb ladders, ropes, and scaffolds; he could engage in frequent bilateral fingering, he was unable to have any exposure to extreme heat, he could have occasional exposure to hazards such as unprotected heights and moving mechanical parts; he was limited to the performance of simple, routine tasks; he was limited to simple work-related decisions; and he was limited to occasional interaction with the public. Tr. 23.

         At step four, the ALJ found plaintiff could not perform his past relevant work as a wafer polisher, computer mechanic, inventory clerk, or computer parts salesperson. Tr. 29.

         At step five the ALJ determined that plaintiff could perform jobs that exist in significant numbers in the national economy, including office helper, router, and electronics worker. Tr. 30-31.


         Plaintiff argues that the ALJ (1) improperly discounted his subjective symptom testimony; (2) erroneously assessed the medical opinions of Dr. Hills, Dr. Smoot, Dr. Lewy, and Dr. Hennings; (3) improperly rejected the lay witness testimony of his wife and employer; and (4) and improperly crafted the hypothetical to the VE.

         I. Subjective Symptom Testimony

         When a claimant has medically documented impairments that could reasonably 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) (citation omitted). A general assertion that the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered 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) (internal citation omitted). If the “ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

         At the hearing, plaintiff testified that his multiple sclerosis was marked by flare-ups of diminished sensation in his hands, which caused him to drop things. Tr. 47. He described the reduced sensation as feeling “like I was holding two spatulas and trying to do stuff with spatulas. I couldn't button my pants. I couldn't really do much of anything.” Tr. 63. He explained that he needed assistance with eating, dressing, bathing, and going to the ...

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