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Christina v. Berryhill

United States District Court, D. Oregon

December 7, 2018

CHRISTINA, S[1], Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Defendant for Operations, performing the duties and functions not reserved to the Defendant of Social Security, Defendant.

          Merrill Schneider, Schneider Kerr & Robichaux, Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney, United States Attorney's Office, Thomas M. Elsberry, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon, United States District Judge

         Christina S. (“Plaintiff”) seeks judicial review of the final decision of the Social Security Administration (“Defendant”) denying Plaintiff's application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, and Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. For the following reasons, Defendant's decision is reversed and remanded for further proceedings consistent with this Opinion and Order.

         STANDARD OF REVIEW

         The district court must affirm Defendant's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means “more than a mere scintilla but less than a preponderance.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

         Where the evidence is susceptible to more than one rational interpretation, Defendant's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if Defendant's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of Defendant. See Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm Defendant on a ground upon which Defendant did not rely. Id.; see also Bray, 554 F.3d at 1226.

         BACKGROUND

         A. Plaintiff's Application

         Plaintiff was born on March 9, 1978. AR 30. Plaintiff filed for DIB and SSI on June 13, 2013. AR 20. She alleges disability beginning March 10, 2012, when she injured her arm while working as a secretary. AR 60, 318. The injury created arm spasms, increased Plaintiff's anxiety, and led Plaintiff to stop working in her secretarial position. Id. Plaintiff was 34 years old at the time of the alleged disability onset date. AR 30.

         Defendant denied Plaintiff's application initially and upon reconsideration. AR 1, 20. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). On June 2, 2016, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act. AR 17-19. The Appeals Council declined Plaintiff's request for review of the ALJ's decision. AR 1. Plaintiff now seeks judicial review of the ALJ's decision.

         B. The Sequential Analysis

         A claimant is 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); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing “substantial gainful activity?” 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment “severe” under Defendant's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is “severe” if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment “meet or equal” one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's “residual functional capacity” (“RFC”). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her “past relevant work” with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. Defendant bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, Defendant must show that 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.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966 (describing “work which exists in the national economy”). If Defendant fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however, Defendant proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54; Tackett, 180 F.3d at 1099.

         C. The ALJ's Decision

         The ALJ found that Plaintiff was not disabled under §§ 216(i), 223(d) and 1614(a)(3)(A) of the Social Security Act. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after March 10, 2012. AR 22-23. At step two, the ALJ found Plaintiff had the following severe impairments: major depressive disorder; general anxiety disorder; osteoarthritis; and ulnar neuropathy. AR 23. The ALJ also found that Plaintiff had the following non-severe conditions: obesity, hyperlipidemia, headaches, diverticulosis, gastritis, and marijuana use. Id. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ then determined that Plaintiff has an RFC to perform light work with additional restrictions. AR 25-26. These restrictions include, among others, the ability to perform work that is not at a production pace; completing simple work-related decisions; engaging in occasional superficial contact with the public, co-workers, and supervisors; and requiring the option to change her sit and stand option after 60 to 90 minutes, for three to five minutes. Id. At step four, the ALJ determined that Plaintiff could not perform any past relevant work. AR 30. At step five, relying on the testimony of a vocational expert, the ALJ determined that jobs existed in significant numbers in the national economy that Plaintiff could perform. Id. The ALJ thus concluded that Plaintiff was not disabled under the Social Security Act. AR 31.

         DISCUSSION

         Plaintiff contends that the Court should remand the ALJ's decision, arguing that the ALJ (A) improperly rejected portions of Dr. Manuel Gomes' opinion and (B) improperly rejected Plaintiff's subjective testimony regarding her mental health symptoms.

         A. Dr. Gomes' Opinion

         Dr. Gomes opined that Plaintiff had “severe impairment in her ability to tolerate the usual workplace stressors as she is currently experiencing high levels of anxiety and is experiencing panic attacks” and that she would be “quite sensitive to being triggered, responding strongly to any psychological stimuli such as excitement.” AR 322-33. The ALJ gave little weight to Dr. Gomes' opinion for three reasons. First, Dr. Gomes did not account for Plaintiff's abilities if she followed up with consistent mental health counseling and took medication for her psychological symptoms as prescribed. AR 29. Second, Dr. Gomes' opinion was inconsistent with Plaintiff's wide variety of daily and work activities. Id. Third, Dr. Gomes' opinion was not consistent with the record as a whole. Id. Plaintiff argues that these three reasons are insufficient to reject Dr. Gomes' opinion.

         1. Standard for Examining Physician Opinions

         The ALJ is responsible for resolving conflicts in the medical record, including conflicts among physicians' opinions. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). The Ninth Circuit distinguishes between the opinions of three types of physicians: treating physicians, examining physicians, and nonexamining physicians. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Generally, “a treating physician's opinion carries more weight than an examining physician's, and an examining physician's opinion carries more weight than a reviewing physician's.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). If a treating physician's opinion is supported by medically acceptable techniques and is not inconsistent with other substantial evidence in the record, the treating physician's opinion is given controlling weight. Id.; see also 20 C.F.R. § 404.1527(d)(2). A treating doctor's opinion that is not contradicted by the opinion of another physician can be rejected only for “clear and convincing” ...


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