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Rema R. v. Berryhill

United States District Court, D. Oregon

November 14, 2018

REMA R., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner, Social Security Administration, Defendant.

          OPINION AND ORDER

          MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Rema R. brings this action for judicial review of the Commissioner of Social Security's (“Commissioner”) decision denying her applications for Disability Insurance and Supplemental Security Income benefits. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         On May 1, 2014 Plaintiff filed an applications for Disability Insurance and Supplemental Security Income benefits, alleging disability as of September 1, 2006. Tr. 185-191, 192-197.[2]Plaintiff was denied initially upon application and upon reconsideration. Tr. 141-145, 146-149. Upon Plaintiff's request a hearing was held and on December 22, 2016, an Administrative Law Judge (“ALJ”) determined that Plaintiff was not disabled and denied her claim. Tr. 17-38. The Appeals Council denied the request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6. This appeal followed.

         Plaintiff now contends that the ALJ erred: (1) in failing to provide a legally sufficient reason to discount the opinion of treating physician Dr. Kemerling; (2) in rejecting Plaintiff's subjective symptom testimony; and (3) in failing to include all of Plaintiff's supported functional limitations in the residual functional capacity (“RFC”) assessment. Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the Commissioner's decision is AFFIRMED.

         STANDARD OF REVIEW

         A reviewing court shall affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence on the record. 42 U.S.C. § 405(g); Batson v. Comm'r for 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, this court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

         DISCUSSION

         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. If the claimant satisfied her burden with respect to the first four steps, the burden then shifts to the Commissioner with regard to step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate 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.

         In the present case, the ALJ found that Plaintiff was not disabled. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since September 1, 2006. Tr. 22. A step two, the ALJ found that Plaintiff had the following severe impairments: posttraumatic stress disorder/anxiety, depression, fibromyalgia, irritable bowel syndrome, Bells palsy, and obesity. Id. At step three, the ALJ found that Plaintiff's impairments or combination of impairments did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 22-25.

         Prior to step four, the ALJ determined that Plaintiff's RFC allows her to perform less than a full range of light work as defined in 20 C.F.R. 404.1567(b) and 416.967(b). She can lift and carry 20 pounds occasionally and 10 pounds frequently. She can sit, stand, and walk about six hours each in an eight-hour workday. She can do simple, routine work with occasional contact with supervisors, superficial contact with coworkers with no teamwork or collaboration, and no public contact. Tr. 25. At step four, the ALJ found Plaintiff has no past relevant work (Tr. 31) but at step five, determined based on the assessed RFC she could perform jobs existing in significant numbers in the national economy, specifically the representative occupations laundry worker, DOT#302.685-010, and photocopy machines operator, DOT#207.685-014. Tr. 32. As a result the ALJ concluded that Plaintiff was “not disabled” for purposes of the Social Security Act and therefore did not qualify for benefits. Tr. 32.

         Plaintiff challenges the ALJ's non-disability determination on three grounds. First, Plaintiff argues that the ALJ failed to provide legally sufficient reasons to discount the opinion of Dr. Kemerling. Second, the ALJ erred in rejecting Plaintiff's subjective symptom testimony. And third, the ALJ erred in failing to include all of Plaintiff's supported functional limitations in the RFC.

         I. Dr. Kemerling's opinion

         Plaintiff first challenges the ALJ's decision to give Dr. Kemerling's opinion little weight. Pl.'s Br. 5. The ALJ found that Dr. Kemerling's opinion was not well-supported by substantial evidence and appeared to be “based primarily on the claimant's self-report, ” which rendered it less persuasive. Tr. 30. Because her opinion is contradicted by other medical opinions in the record, the ALJ need only provide specific and legitimate reasons, supported by substantial evidence, for rejecting her opinion. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ may reject a psychological opinion that is “not supported by clinical evidence” and is based on a claimant's subjective complaint. Id. at 1217.

         Here, the ALJ provided specific and legitimate reasons for giving Dr. Kemerling's opinion little weight. While Dr. Kemerling opined that Plaintiff “struggles with depression and anxiety” that “appears to cause severe impairments in her day-to-day functioning” (Tr. 1071), she offered no clinical findings to support her conclusion. Rather than objectively assess how Plaintiff's depression and anxiety affect her functioning, Dr. Kemerling's measured Plaintiff's progress primarily using Plaintiff's own self-reports. See, e.g., Tr. 903, 905, 908, 911, 914, 917, 923, 926. At times Dr. Kemerling's treatment notes call into question the validity of Plaintiff's self-reports regarding her ...


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