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Catherine L. E. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

October 11, 2018

CATHERINE L. E., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          OPINION AND ORDER

          Jolie A. Russo United States Magistrate Judge.

         Plaintiff Catherine E. brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Title II Disability Insurance Benefits. All parties have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision is reversed and this case remanded for further proceedings.

         BACKGROUND

         Born in 1955, plaintiff alleges disability beginning November 15, 2010, [2] due to fibromyalgia, hepatitis C, back pain, migraines, chronic fatigue, and depression. Tr. 36-37, 144-45, 164. On June 24, 2016, the ALJ issued a decision finding plaintiff not disabled prior to the date last insured (“DLI”) of December 31, 2011. Tr. 18-28. After the Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 1-6.

         THE ALJ'S FINDINGS

         At step one of the five step sequential evaluation process, the ALJ found that plaintiff had not engaged in substantial gainful activity “from her amended alleged onset date of November 15, 2010 through her DLI of December 31, 2011.” Tr. 20. At step two, the ALJ determined plaintiff's fibromyalgia, degenerative disc disease of the lumbar spine, right carpal tunnel release, and left carpal tunnel syndrome were medically determinable and severe. Id. At step three, the ALJ found plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 22.

         Because she did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) except she: “is able to occasionally climb stairs and ramps but should never climb ladders, ropes, and scaffolds”; “can occasionally balance, stoop, kneel, crouch, and crawl”; and “will need an assistive device for ambulation [and] can frequently handle and finger bilaterally.” Tr. 22.

         At step four, the ALJ determined plaintiff was capable of performing her past relevant work as a unit coordinator. Tr. 27.

         DISCUSSION

         Plaintiff argues that the ALJ erred by: (1) failing to find her depression and obesity as medically determinable at step two; (2) rejecting the medical opinion of treating doctor Kimberly Kisor, M.D., and (3) discrediting her subjective symptom testimony.

         I. Step Two Finding

         Plaintiff contends the ALJ erroneously omitted her depression and obesity as medically determinable impairments. At step two, the ALJ determines whether the claimant has an impairment, or combination of impairments, that is both medically determinable and severe. 20 C.F.R. § 404.1520(c). An impairment is medically determinable if it is diagnosed by an acceptable medical source and based upon acceptable medical evidence, such as “signs, symptoms, and laboratory findings.” SSR 96-4p, available at 1996 WL 374187; 20 C.F.R. § 404.1513(a). An impairment is severe if it significantly limits the claimant's ability to do basic work activities, which are defined as “abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521; Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). The step two threshold is low; the Ninth Circuit describes it as a “de minimus screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted).

         As a preliminary matter, plaintiff did not include obesity as one of her allegedly disabling impairments in applying for benefits, nor did she ever seek treatment for any obesity-related symptoms. Tr. 164, 228-799. As a result, plaintiff's entire argument as to this issue is premised on medical evidence demonstrating that, at 5' 5” tall and approximately 200 pounds, she qualified as mildly obese. Pl.'s Opening Br. 13 (doc. 12).

         Regarding plaintiff's remaining step two challenge, the record contains few references to depression, all but one of which transpired outside of the adjudicative period. In January 2006, more than four years prior to the amended alleged onset date, plaintiff presented to her general practitioner with feelings of depression due to her ongoing physical impairments and stressful work environment. Tr. 464. She was diagnosed with depression at that time and prescribed Celexa. Tr. 465. During late 2006 and early 2007, plaintiff continued to report depression and obtained psychiatric counseling; she was tapered off Celexa due to weight gain and started on a new medication regime. Tr. 52-53, 399, 409, 411, 414-16, 418-19. By mid-2007, Dr. Kisor noted that plaintiff's depression was “stable” and she encouraged plaintiff to continue on her current mental health medications, which were generally effective. Tr. 380, 389. Except for a single instance in March 2009, plaintiff thereafter did not report any mental health symptoms or seek any mental health treatment until immediately prior to the DLI. Tr. 325-68.

         Specifically, in December 2011, plaintiff presented to Dr. Kisor complaining of nausea and bladder problems; she also reported being “[v]ery depressed for some reason.” Tr. 325. Dr. Kisor did not perform a formal diagnostic assessment or otherwise note any signs or symptoms, but nonetheless listed “DEPRESSION, MAJOR, SINGLE EPISODE, ” as a diagnosis. Id. The doctor did not refer plaintiff to counseling or any other psychiatric treatment, and plaintiff did not again report any depressive symptoms until her son passed away in December 2012. Tr. 306, 312-25. Plaintiff did not reinitiate mental health counseling until April 2016. Tr. 52.

         At step two, the ALJ thoroughly summarized medical evidence pertaining to plaintiff's physical and mental impairments, and found that plaintiff's fibromyalgia, degenerative disc disease of the lumbar spine, right carpal tunnel release, and left carpal tunnel syndrome were medically determinable and severe. Tr. 20-22. As such, “[a]ny alleged error at step two was harmless because step two was decided in ...


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