Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Kimberly S. v. Berryhill

United States District Court, D. Oregon

November 19, 2018

KIMBERLY S., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security, Defendant.

          FINDINGS & RECOMMENDATION

          JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE.

         Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision denying plaintiff's application for disability insurance benefits and supplemental security income. Plaintiff asserts disability beginning October 2, 2011, due to arthritis, asthma, and high blood pressure. Tr. 102. After a hearing held on May 18, 2016, an Administrative Law Judge (ALJ) determined plaintiff was not disabled. Plaintiff argues the ALJ erred by: (1) improperly rejecting her testimony; (2) improperly rejecting the opinion of an examining physician; and (3) failing to obtain a consultative psychological evaluation. For the reasons stated below, the Commissioner's decision should be affirmed and this case should be dismissed.

         A. Plaintiff's Credibility

         Plaintiff worked primarily as a data entry clerk before a layoff in August 2011. Tr. 349, 353. Plaintiff asserts she lost jobs due to her asthma and that her asthma is getting worse. Tr. 349, 353.

         Plaintiff testified she can't work:

Because I'm in too much pain. I can't walk, my knees. I can't even stand for five minutes waiting for the bus.
....
I spend a lot of time sitting.
....
I can barely get to the bus stop across the street and I'm out of breath and I'm in pain.

Tr. 59, 60, 63. Plaintiff also reported that changing positions from sitting to standing is “excruciating” and “standing can't be done.” Tr. 324.

         The ALJ determined plaintiff's residual functional capacity limited her to sedentary work and to the extent plaintiff asserted additional limitations that precluded her from work, the ALJ found plaintiff lacked credibility. Tr. 25-26. Plaintiff asserts the ALJ erred in rejecting her testimony.

         The ALJ noted plaintiff recently attended community college for more than a year taking computer and data entry classes. Tr. 25, 47-48. The ALJ found plaintiff's ability to travel to and from school and attend classes was inconsistent with plaintiff's asserted limitations. Tr. 26. Although plaintiff argues attending community college is not equivalent to working full-time, the ALJ reasonably concluded that the ability to attend classes contradicted plaintiff's professed inability to walk, change positions from sitting to standing, or do more physically than cross a street. Plaintiff did not testify she had difficulty walking to her classes and did not otherwise explain how she managed her symptoms while attending classes. The ALJ appropriately determined that plaintiff's community college attendance provided a clear and convincing reason to discount her symptom testimony. See Carmickle v. Commissioner, 533. F.3d 1155, 1161 (9th Cir. 2008) (asserted need to constantly change position inconsistent with college attendance).

         The ALJ also noted that Dr. Sue Lewis, after conducting a physical consultative exam on June 12, 2010, [2] opined plaintiff could stand/walk up to half an hour at a time. Tr. 26, 438. This also undermined plaintiff's alleged limitation regarding walking and standing. See Bray v. Commissioner of Social Security, 554 F.3d 1219, 1227 (9th Cir. 2009) (in ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.