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Valerie D. v. Berryhill

United States District Court, D. Oregon, Portland Division

October 22, 2018

VALERIE D., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Valerie D. (“plaintiff”), seeks judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying her 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 the immediate payment of benefits.


         Born in October 1952, plaintiff was 60 years old on the alleged onset date. Tr. 87. She has master's degrees in both finance and taxation. Tr. 52-53. Plaintiff has past relevant work experience as an accountant and a controller. Tr. 31.

         Plaintiff has been diagnosed with fibromyalgia, arthritis, migraines, severe fatigue, chronic pain, celiac disease, bursitis, hypoglycemia, gastro-esophageal reflux disease, asthma, IBS, alopecia, depression, ADHD, and anxiety. Tr. 319, 391, 394, 417, 444, 484, 522, 525.

         Plaintiff's depression and anxiety were treated with therapy and an ever-changing cocktail of medications, including Klonopin, Lexapro, Pristiq, Topamax, Paxil, Effexor, Zoloft, and Wellbutrin. Tr. 384, 440, 444, 535, 542. Notwithstanding treatment, plaintiff struggled with stress and would often become overwhelmed. Tr. 165, 305, 551, 599. Plaintiff suffers from alopecia, which resulted in a complete loss of all hair on her body. Tr. 414, 441. Dr. Puziss concluded that the alopecia was probably caused by stress. Tr. 542. Dr. Parent determined plaintiff was not capable of even a low-stress job. Tr. 165. Plaintiff explained that she structures her life to avoid as much stress as possible, mostly by avoiding social interaction. Tr. 305.

         Plaintiff consistently reported pain and fatigue to her treating providers. Tr. 448, 465, 468-69, 479, 495, 502, 518, 521, 537, 545, 550, 552, 564, 591, 595, 597, 603. Plaintiff's fatigue inhibited her ability to perform daily activities. She explained that she usually gives up on household chores because she runs out of energy, and she sometimes goes to bed hungry because she does not have the energy to prepare food. Tr. 298, 300. Dr. Parent opined that plaintiff's fatigue was caused by fibromyalgia. Tr. 521. Beginning in 2011, plaintiff began arriving later and later to her job due to the fibromyalgia-related fatigue. Tr. 54, 311. By the time she stopped working completely, plaintiff had been reduced to working only 10 hours per week. Tr. 54.


         Plaintiff filed an application for DIB on November 22, 2013, alleging disability beginning August 23, 2013. Tr. 21. Plaintiff's claim was initially denied on May 16, 2014, and upon reconsideration on September 4, 2014. Id. On March 21, 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. 38-76. On September 6, 2016, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 21-32. After the Appeals Council denied her request for review, plaintiff filed a complaint in this court. Tr. 1-7. 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. 22-23.

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity after the alleged onset date. Tr. 23.

         At step two, the ALJ found that plaintiff has the following severe impairments: obesity and fibromyalgia. Id.

         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. 27. The ALJ next assessed plaintiff's residual functional capacity (“RFC”) and determined that she could perform light work with the following limitations: she cannot climb ladders, ropes or scaffolds; she can frequently climb ramps and stairs; she can frequently stoop, kneel, crouch and crawl; and she should avoid exposure to hazards, dusts, odors, fumes, and gasses. Tr. 28.

         At step four, the ALJ found plaintiff could perform her past relevant work as an accountant or controller. Tr. 31. By finding plaintiff was able to do past relevant work, the ALJ determined plaintiff was not disabled; therefore, the ALJ did not proceed to step five. 20 C.F.R. §§ 404.1520(a)(4); 404.1520(f).


         Plaintiff argues that the ALJ: (1) improperly discounted her subjective symptom testimony; (2) erroneously assessed the medical opinion of Dr. Parent; (3) and incorrectly determined that plaintiff's depression and anxiety were not severe.

         I. Subjective ...

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