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Barbara M. v. Berryhill

United States District Court, D. Oregon

November 20, 2018

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

          OPINION AND ORDER

          MICHAEL J. MCSHANE, UNITED STATES DISTRICT JUDGE

         Plaintiff Barbara M. brings this action for judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         The issues before this Court are whether: (1) the Administrative Law Judge (“ALJ”) erred in finding Plaintiff's right knee osteoarthritis was “non-severe”; (2) the ALJ gave clear and convincing reasons for rejecting Plaintiff's testimony; (3) the ALJ erred in disregarding the lay witness' testimony; and (4) the Commissioner met her burden of proving that Plaintiff can perform “other work” in the national economy.

         Because the ALJ articulated sufficient reasons supported by substantial evidence in her evaluation of the respective evidence and, to the extent that she erred, such errors were harmless, the Commissioner's decision is AFFIRMED.

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff applied for DIB and SSI on April 29, 2014, alleging disability since September 22, 2012. Tr. 168, 175. Both claims were denied initially, tr. 107, and upon reconsideration, tr. 118, 121. Plaintiff timely requested a hearing before an ALJ, tr. 124, and appeared before the Honorable Katherine Weatherly on February 12, 2016, Tr. 39. ALJ Weatherly denied Plaintiff's claim by a written decision dated April 8, 2016. Tr. 18. Plaintiff sought review from the Appeals Council and was denied on May 31, 2017, tr. 1, rendering the ALJ's decision final. Plaintiff now seeks judicial review of the ALJ's decision.

         Plaintiff was 50 years old at the time of her alleged disability onset, tr. 32, and 53 at the time of her hearing, see tr. 39. Plaintiff is a high school graduate and worked as a home attendant, dishwasher, nurse's assistant, cashier, and fast food worker. Tr. 59, 212. Plaintiff alleges disability due to congestive heart failure, chronic obstructive pulmonary disease, end-stage osteoarthritis in the right knee with “bone-on-bone” degenerative changes, type II diabetes mellitus, hypertension, obesity, and depressive disorder. Pl.'s Am. Br. 1, ECF No. 15.

         STANDARD OF REVIEW

         The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of 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, the court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986)). “‘If the evidence can reasonably support either affirming or reversing,' the reviewing court ‘may not substitute its judgment' for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

         DISCUSSION

         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden of proof rests on the claimant for steps one through four, and on the Commissioner for step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step five, the Commissioner's burden is to demonstrate that the claimant can make an adjustment to other work existing in significant numbers in the national economy after considering the claimant's residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is considered disabled. Id.

         I. Plaintiff's Right Knee Osteoarthritis

         Plaintiff argues that the ALJ erred in finding that her right knee osteoarthritis was non-severe. Pl.'s Am. Br. 11, ECF No. 15. Plaintiff points to Dr. Randall Jennings', M.D., February 2016 report, id.; see tr. 671, and other records Plaintiff submitted to the Appeals Council after the ALJ's decision, Pl.'s Am. Br. 12-14, ECF No. 15; see Pl.'s Am. Br. Ex. A., 4-5, 41, 42-43, 44- 46.

         A severe impairment is an “impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). “An impairment is not severe if it is merely a ‘slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities.'” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Social Security Ruling 96-3p, 1996 WL 374181).

         Based on the lack of objective medical evidence and Plaintiff's activities of daily living, the ALJ found that the Plaintiff's right knee complaints to be exaggerated. Tr. 24. Plaintiff told her counselor on August 18, 2015 that she had a long history of right knee pain, may require another surgery, and occasionally needed to use a walker. Tr. 663. On February 12, 2016, Plaintiff testified that she “normally use[s]” a walker that Dr. Joshi prescribed her. Tr. 49. Plaintiff testified that she usually used it when she went to appointments and things outside of her home, but not at home. Id. The medical record, however, does not support Plaintiff's statements. As the ALJ noted, Plaintiff never mentioned knee pain or surgery to a medical provider until October 2015. Plaintiff was prescribed a walker, but she did not use it as often as asserted. For example, Plaintiff indicated on May 11, 2014 that she used only handicap carts at stores, not a walker or any other aids. Tr. 239. Likewise, Plaintiff's daughter-in-law indicated on June 23, 2014 that Plaintiff used only handicap carts at stores and reading glasses, not a walker or any other aids. Tr. 247. Although Dr. Sushan Joshi prescribed Plaintiff a walker on July 3, 2014, tr. 555, he explained that Plaintiff had been “walking around fine” and had no shortness of breath, tr. 516. The record does not show that Plaintiff attended her appointments with a walker. See tr. 24. For example, in a report from a visit on October 28, 2015, Dr. Joshi did not say that Plaintiff used a walker. Tr. 589. In fact, Dr. Joshi said that Plaintiff's gait and station was “normal.” Id. These facts constitute substantial evidence that Plaintiff's right knee osteoarthritis is non-severe.

         The ALJ also noted that imaging in October 2015 and February 2016 showed only mild to moderate degenerative changes in Plaintiff's right knee with no acute abnormalities. Tr. 24; see tr. 639, 670. Yet Plaintiff alleged on February 19, 2016 that her knee pain interfered with her daily activities and prevented her from walking more than one block. Tr. 24; see tr. 667; see also tr. 50 (testifying that she could only walk for half a block before she had to stop due to shortness of breath). To the contrary, a physical examination that same day revealed some tenderness but normal strength and range of motion. Tr. 24; see tr. 669. Likewise, an ...


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