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Joanne C. v. Berryhill

United States District Court, D. Oregon

October 22, 2018

JOANNE C., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          STACIE F. BECKERMAN UNITED STATES MAGISTRATE JUDGE

         Joanne C. (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of her application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. The Court has jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Court affirms the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence.

         BACKGROUND

         Plaintiff was born in July 1956, making her fifty-four years old on December 31, 2010, the alleged disability onset date. (Tr. 54, 63.) Plaintiff has a General Equivalency Diploma and past relevant work as a claims clerk and customer complaint clerk. (Tr. 22, 31, 37, 46-47.) Plaintiff alleges disability due primarily to arthritis, cervical spine and neck issues, diabetic neuropathy, bouts of depression, occasional migraines, knee pain, and worsening fatigue. (See Tr. 39-46, 54.)

         On February 16, 2011, approximately a month and a half after the alleged onset date, Plaintiff established care with Caralynn Moore (“Moore”), a nurse practitioner. (Tr. 177.) Moore noted, among other things, that Plaintiff complained of pain in her neck, lower back, and knees. (Tr. 177.)

         On October 30, 2013, an x-ray of Plaintiff's cervical spine revealed “[d]egenerative disc disease and cervical spondylosis.” (Tr. 179.)

         On November 26, 2013, Moore completed a medical source statement. (Tr. 180-82.) In her medical source statement, Moore stated that she has treated Plaintiff for six months; Plaintiff has been diagnosed with, inter alia, diabetes, depression, and chronic neck and back pain; Plaintiff suffers from headaches, fatigue, and pain in her knees, neck, shoulders, arm, and lower back; Plaintiff's diabetes is “uncontrolled” and activity increases her pain; and on physical examination, Plaintiff reported musculoskeletal pain and exhibited palpable tenderness in the neck and upper back. (Tr. 180.) Moore also stated that Plaintiff must use a cane when walking, and that Plaintiff is not a malingerer. (Tr. 180.) In addition, Moore opined that: (1) Plaintiff can “[s]tand/walk” or sit for two hours or less during an eight-hour workday; (2) Plaintiff needs “a job that permits shifting positions at will from sitting, standing, or walking”; (3) Plaintiff can rarely lift and carry less than ten pounds and never lift and carry ten pounds or more; (4) Plaintiff can occasionally twist and climb stairs, rarely stoop or crouch, and never climb ladders; (5) Plaintiff suffers from “significant limitations with reaching, handling, or fingering”; and (6) Plaintiff would miss more than four days of work per month due to her impairments or treatment. (Tr. 181-82.)

         Plaintiff visited Dr. Paul Donaldson (“Dr. Donaldson”) for a consultative examination on or about January 6, 2014. (Tr. 184-90.) Based on a clinical interview, review of Plaintiff's medical records, and an examination, Dr. Donaldson's diagnoses were: (1) degenerative joint disease, which relates to Plaintiff's chronic lower back pain, cervical spondylosis with chronic cervical pain and slight decrease in range of motion, and “[b]ilateral knee pain with bilateral patellofemoral syndrome” that is worse on the right side; (2) diabetes that is “controlled with oral medications, ” but does result in peripheral neuropathy in the “bilateral lower extremities and to a lesser degree intermittent bilateral upper extremities”; (3) migraines “[t]hree to four times a year”; (4) hypertension; (5) hyperlipidemia; (6) chronic depression that is “[c]ontrolled on oral medication”; and (7) “[m]edically significant obesity.” (Tr. 189.) Dr. Donaldson also noted that Plaintiff is a “[c]igarette smoker.” (Tr. 189.)

         On September 25, 2015, a computed tomography (“CT”) scan of Plaintiff's abdomen revealed, among other things: (1) “[d]egenerative changes of the spine with disc space narrowing most prominent at ¶ 5-S1”; (2) “[e]vidence of bilateral L5 par defects [i.e., spondylosis] and [a] grade 1 anterolisthesis of L5 on S1”; and (3) no signs of any “destructive bony lesions.” (Tr. 223-24.)

         On January 23, 2014, Dr. William Fernandez (“Dr. Fernandez”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 58-60.) Based on his review of the record, Dr. Fernandez concluded that Plaintiff can lift and carry twenty pounds occasionally and ten pounds frequently; sit, stand, and walk about six hours in an eight-hour workday; push and pull in accordance with her lifting and carrying restrictions; frequently balance and climb ramps and stairs; and occasionally stoop, kneel, crouch, crawl, and climb ladders, ropes, or scaffolds. Dr. Fernandez also concluded that Plaintiff does not suffer from any manipulative, visual, or communicative limitations, but she does need to avoid concentrated exposure to extreme cold, vibration, and workplace hazards (environmental limitations).

         On July 31, 2014, Dr. Howard Horsley (“Dr. Horsley”), a non-examining state agency physician, completed a physical residual functional capacity assessment. (Tr. 69-70.) Dr. Horsley agreed with Dr. Fernandez's functional assessment in all respects, with the exception of the following: (1) Dr. Horsley concluded that Plaintiff could only stand or walk for four hours during an eight-hour workday; and (2) Dr. Horsley concluded that Plaintiff can frequently stoop. (Tr. 69-70.)

         On February 8, 2016, an x-ray of Plaintiff's cervical spine revealed “[n]o acute osseous abnormality” and “[m]ultilevel spondylolisthesis, ” which was “likely degenerative related.” (Tr. 222.)

         On April 2, 2016, a magnetic resonance imaging (“MRI”) of Plaintiff's cervical spine revealed: (1) “[m]ultilevel degenerative disc disease, spondylosis and facet arthropathy”; (2) “[a]t C3-4, mild central canal stenosis and moderate left neural foraminal stenosis which could affect the exiting left C4 nerve root”; (3) “[a]t C4-5, moderate central canal stenosis with cord flattening, and moderate bilateral neural foraminal stenosis”; (4) “[a]t C5-6, mild right neural foraminal stenosis”; (5) at ¶ 7-T1, “[n]o significant central canal or neural foraminal stenosis, ” and “[m]ild posterior central disc protrusion”; (6) “moderate disc height loss throughout the cervical spine”; and (7) “[n]o central canal or neural foraminal stenosis” at the C2-3 level. (Tr. 226.)

         On June 30, 2016, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 29-52.) Plaintiff testified that she last worked on December 31, 2009, that she was fired from her last job based on a dispute with her supervisor, and that she suffers from diabetes and cervical spine and neck-related issues, which results in, inter alia, numbness in her hands, and impacts her ability to open jars and use a keyboard and computer mouse. (Tr. 37-40.) Plaintiff also testified that she has a hard time holding her head up, stress causes her neck to tighten up, and her diabetes has “come more under control” within the last year, but she still suffers from neuropathy that impacts her ability to walk more than a block and a half without resting. (Tr. 40-43.) In addition, Plaintiff testified that knee pain impacts her ability to maintain her balance, stand, and walk; that she experiences “a lot of fatigue” due to kidney disease; that she has a hard time sleeping due to pain; that she needs to “rest a lot” when doing household chores; and that she suffers from occasional migraines and monthly bouts of depression. (Tr. 44-46.)

         The ALJ posed a series of hypothetical questions to a Vocational Expert (“VE”) who testified at Plaintiff's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform work that involves lifting twenty pounds occasionally and ten pounds frequently; standing and/or walking four hours in an eight-hour workday; sitting for six hours in an eight-hour workday; no more than occasional climbing of ramps or stairs; never climbing ladders, ropes, or scaffolds; no more than occasional balancing, stooping, kneeling, crouching, and crawling; and avoiding concentrated exposure to extreme cold, excessive vibration, and workplace hazards, such as hazardous machinery and unprotected heights. (SeeTr. 47.) The VE testified that the hypothetical worker could not perform Plaintiff's past work as a bartender, but the hypothetical worker could perform Plaintiff's past relevant work as a claims clerk and customer complaint clerk. (SeeTr. 46-47.)

         Second, the ALJ asked the VE to assume that the hypothetical worker described above was also limited to occasional bilateral overhead reaching, and frequent bilateral handling and fingering. (Tr. 47.) The VE testified that the hypothetical worker could still perform the jobs of claims clerk and customer complaint clerk, because the Dictionary of Occupational Titles “does not distinguish between overhead reaching and other types of reaching, ” and because, in the VE's opinion, “[t]here would be no more than occasional overhead reaching in either of these jobs.” (Tr. 48.)

         Responding to the ALJ's follow-up questions, the VE confirmed that the hypothetical worker could not perform the jobs of claims clerk or customer complaint clerk if she was limited to occasional bilateral handling and fingering; testified that the hypothetical worker could not perform other jobs if she was limited to occasional handling and fingering, and to standing and walking four hours “without a sit/stand” option; and stated that the hypothetical worker could not sustain gainful employment if she missed work twice a month on a consistent basis. (Tr. 48-49.) Responding to a question from Plaintiff's attorney, the VE testified that the hypothetical worker could not sustain gainful employment if she was off task more than five percent of the workday. (Tr. 50.)

         In a written decision issued on August 9, 2016, the ALJ applied the five-step evaluation process set forth in 20 C.F.R. § 404.1520(a)(4), and found that Plaintiff was not disabled. See infra. The Social Security Administration Appeals Council denied Plaintiff's petition for review, making the ALJ's decision the Commissioner's final decision. Plaintiff timely appealed to federal district court.

         THE FIVE-STEP DISABILITY ANALYSIS

         I. LEGAL STANDARD

         A claimant is considered 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). Those five steps are: (1) whether the claimant is presently engaged in any substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the claimant is capable of performing other work that exists in significant numbers in the national economy. Id. at 724-25. The claimant bears the burden of proof for the first four steps. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).

         The Commissioner bears the burden of proof at step five of the process, where the Commissioner must show 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.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954 (citations omitted).

         II. THE ALJ'S DECISION

         The ALJ applied the five-step sequential process to determine if Plaintiff is disabled. (Tr. 13-23.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity during the period between her alleged onset date (December 31, 2010) and date last insured (December 31, 2014).[2] (Tr. 15). At step two, the ALJ determined that Plaintiff had the following severe impairments: “[D]egenerative disc disease of the cervical spine; and spondylosis and facet arthropathy.” (Tr. 15.) At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or equals a listed impairment. (Tr. 19.) The ALJ then concluded that Plaintiff had the residual functional capacity (“RFC”) to perform light work that involves: (1) lifting and carrying twenty pounds frequently and ten pounds occasionally; (2) standing and walking up to four hours during an eight-hour workday; (3) sitting for up to six hours during an eight-hour workday “with normal breaks”; (4) no more than occasional bilateral overhead reaching; (5) no more than frequent bilateral handling and fingering; (6) no more than occasional climbing of ramps and stairs; (7) never climbing ladders, ropes, or scaffolds; (8) no more than occasional balancing, stooping, kneeling, crouching, and crawling; and (9) avoiding concentrated exposure to extreme cold, excessive vibration, and workplace hazards. (Tr. 18.) At step four, the ALJ determined that Plaintiff could perform her past relevant work as a claims clerk and customer complaint clerk. (Tr. 22.) Accordingly, the ALJ determined that Plaintiff “was not under a disability, as defined in the Social Security Act, at any time from December 31, 2010, the alleged [disability] onset date, though December 31, 2014, the date last insured.” (Tr. 23.)

         STANDARD OF REVIEW

         The district court may set aside a denial of benefits only if the Commissioner's findings are “‘not supported by substantial evidence or based on legal error.'” Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as “‘more than a mere scintilla [of evidence] but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)).

         The district court “cannot affirm the Commissioner's decision ‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett, 180 F.3d at 1097). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the Commissioner's conclusions. Id. If the evidence as a whole can support more than one rational interpretation, the ALJ's decision must be upheld; the district court may ...


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