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Lisa L. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

December 13, 2018

LISA L., [1] Plaintiff,


          Jolie A. Russo United States Magistrate Judge

         Plaintiff Lisa L. brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her applications for Title II Disability Insurance Benefits and Title XVI Social Security Income. All parties have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision is reversed and this case is remanded for further proceedings.


         Born in 1962, plaintiff alleges disability beginning February 7, 2010, due to anxiety, depression, fibromyalgia, migraines, and irritable bowel syndrome. Tr. 187, 199, 219. On May 16, 2014, the Administrative Law Judge (“ALJ”) issued a decision finding plaintiff not disabled. Plaintiff timely appealed that decision to this Court on December 10, 2015. Tr. 881. On January 19, 2017, this Court affirmed the ALJ's decision as to all issues except for the medical opinion of Neal Musselman, D.O. Tr. 884-910. Based on this error, the Court reversed the ALJ's 2014 decision and remanded for further proceedings. Tr. 883.

         On September 22, 2017, the ALJ held a second hearing, wherein plaintiff was represented by counsel and testified, as did a vocational expert. Tr. 805-36. On November 7, 2017, the ALJ issued a partially favorable decision, finding plaintiff disabled as of August 17, 2017, her 55th birthday. Tr. 776-94. After the Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 911-15.


         At step one of the five step sequential evaluation process, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 779. At step two, the ALJ determined plaintiff's fibromyalgia, migraines, aneurysm, anxiety disorder, and personality disorder were medically determinable and severe as of the alleged onset date. Id. After the date last insured (i.e., March 31, 2015), the ALJ found the following additional impairments medically determinable and severe: cervical spine degenerative disc disease and ankylosing spondylitis. Id. At step three, the ALJ found plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 780.

         Because she did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that, as of the alleged onset date, plaintiff had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) and 20 C.F.R. § 416.967(b) except:

she can never climb ladders, ropes or scaffolds. She can occasionally climb ramps and stairs. She can occasionally balance, stoop, kneel, crouch or crawl. She must avoid concentrated exposure to hazards. She is limited to the performance of simple, routine, repetitive tasks, consistent with unskilled work. She can have no contact with the public. She can have superficial contact with coworkers. She is limited to low stress work, which is defined as requiring few decisions and few changes. She can work at a standard or ordinary pace, but she cannot work at a strict production rate pace.

Tr. 782. Beginning on the date last insured, the ALJ also found that plaintiff can “frequently reach overhead bilaterally.” Id.

         At step four, the ALJ determined plaintiff could not perform any past relevant work. Tr. 792. At step five, the ALJ concluded that, prior to her 55th birthday, plaintiff was capable of performing other work existing in significant numbers in the national economy despite her impairments, such as office helper, mail room sorter, and silver wrapper. Tr. 793. However, beginning on August 17, 2017, the date plaintiff's age category changed, the ALJ found her disabled. Tr. 793-94.


         This case hinges on whether there is sufficient evidence in the record to establish an earlier disability onset date. Specifically, plaintiff argues the ALJ erred by: (1) discrediting her subjective symptom statements; (2) failing to address the lay testimony of her son, Robert F.; and (3) rejecting the medical opinions of physician assistant Daniela Schlechter-Keenan, social worker Leslie Ann Gellert, counselor Sharon Cabana, and Dr. Musselman.

         I. Plaintiff's Testimony

         Plaintiff asserts the ALJ erred by discrediting her subjective pain testimony regarding the extent of her impairments. Pl.'s Opening Br. 12-14 (doc. 16). When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A general assertion the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).

         Thus, in formulating the RFC, the ALJ is not tasked with “examining an individual's character” or propensity for truthfulness, and instead should assess whether the claimant's subjective symptom statements are consistent with the record as a whole. SSR 16-3p, available at 2016 WL 1119029. If the ALJ's finding regarding the claimant's subjective symptom testimony is “supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).

         This Court previously considered and affirmed the ALJ's rejection of plaintiff's testimony. Tr. 28-34, 906-08. On remand, the ALJ relied on many of the same legally valid reasons: both the 2014 and 2017 ALJ decisions cited to plaintiff's activities of daily living, failure to seek treatment or follow her providers' recommendations, and ability to work for many years with the same allegedly disabling impairments, as well as the lack of corroborating medical evidence. Compare Tr. 782-92, with Tr. 28-34. Plaintiff now attacks those reasons on the same bases she did in her prior appeal, such that plaintiff presented no justification for this Court to diverge from its prior ruling. See Khal v. Colvin, 2015 WL 5092586, *3-5 (D. Or. Aug. 27, 2015), aff'd, 690 Fed.Appx. 499 (9th Cir. 2017) (affirming the ALJ's decision in regard to the claimant's subjective symptom testimony under virtually identical circumstances) (citations omitted); see also Moisa v. Barnhart, 367 F.3d 882, 887 (9th Cir. 2004) (“[t]he Commissioner, having lost this appeal, should not have another opportunity to show that [the claimant] is not credible any more than [the claimant], had he lost, should have an opportunity for remand and further proceedings to establish his credibility”) (citation omitted).

         Significantly, plaintiff does not refer to any new evidence concerning “worsening in symptoms” or of “disabling impairment outside the home.” Pl.'s Opening Br. 12-14 (doc. 16). Rather, her citations largely pertain to prior statements that were considered pursuant to the ALJ's 2014 decision and affirmed by this Court in January 2017. Id. (citing Tr. 3-56, 60-61, 229-31, 234, 272, 278, 786, 790-91). The remaining citations - i.e., Tr. 699, 821, 1015, 1681 - do not evince any significant disruption in functioning. Id. Indeed, the record generally indicates plaintiff engaged in activities outside the home when she wanted to or believed she needed to. For instance, plaintiff took cabs to medical appointments, independently attended weekly or bi-weekly physical therapy/massage and counseling sessions, completed a group sailing class, [2] engaged in various activities through her synagogue, travelled alone to New Mexico for more than two months to spend time with family, travelled to Seattle for her son's graduation, walked her dog, went camping, and talked to friends. See, e.g., Tr. 687, 689, 700, 703, 737, 815-23, 1152, 1161, 1164, 1184, 1211, 1219, 1225, 1241, 1285, 1357, 1546, 1567, 1574; see also Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (ALJ may discredit a claimant's testimony where his or her daily activities “contradict claims of a totally debilitating impairment”) (citations omitted). In other words, plaintiff's 2014 hearing testimony did not materially differ from her 2017 hearing testimony, except to the extent it revealed new activities (e.g., driving, sailing, conducting online research regarding cat breeding, property, and boats). Compare Tr. 51-80, with Tr. 811-27.

         Finally, contrary to plaintiff's assertion, the enactment of SSR 16-3p does not constitute a change in controlling law. Pl.'s Reply Br. 2-3 (doc. 19). Indeed, the Ninth Circuit expressly held that SSR 16-3p is a rule clarification as opposed to rule change. See Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (SSR 16-3p “makes clear what our precedent already required”). Under these circumstances, the Court is precluded from upsetting the ALJ's 2014 assessment of plaintiff's testimony. See Stacy v. Colvin, 825 F.3d 563, 567-69 (9th Cir. 2016) (rule of mandate and law of the case doctrine apply in the Social Security context, meaning that the district court cannot reconsider “an ...

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