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Kirk M. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Portland Division

December 17, 2018

KIRK M., [1] Plaintiff,
v.
COMMISSIONER, Social Security Administration, Defendant.

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Plaintiff brings this action for judicial review of the Commissioner's final decision denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act in part. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). Because the Administrative Law Judge (ALJ) improperly discounted medical opinion testimony, the Court REVERSES the Commissioner's decision and REMANDS this case for further administrative proceedings.

         BACKGROUND

         Plaintiff was born on January 15, 1961 and was fifty years old on February 1, 2011, the alleged disability onset date. Tr. 210, 970.[2] Plaintiff met the insured status requirements of the Social Security Act (“SSA” or “Act”) through September 30, 2016. Tr. 973. Plaintiff has at least a high school education but is unable to perform any past relevant work. Tr. 982. Plaintiff claims he is disabled based on conditions including memory loss, vision loss, high blood pressure, depression, anxiety, and claustrophobia. Tr. 238.

         Plaintiff's benefits application was denied initially on November 13, 2012, and upon reconsideration on March 5, 2013. Tr. 970. A hearing was held before Administrative Law Judge Paul Robeck on June 20, 2014. Id.; Tr. 41-85. ALJ Robeck issued a written decision on June 26, 2014, finding that, as of January 1, 2014, Plaintiff was disabled and entitled to benefits. Tr. 970; 20-33. Plaintiff was therefore not disabled or entitled to benefits between November 1, 2011 and December 31, 2013. Tr. 20-33. The Appeals Council declined review, rendering ALJ Robeck's decision the Commissioner's final decision. Tr. 1-6. Plaintiff then challenged the Commissioner's final decision in the District of Oregon. Tr. 970. On August 17, 2016, the district court remanded the case to the Commissioner for additional administrative proceedings. Id. On November 14, 2016, the Appeals Council remanded the case but only as it related to the period prior to January 1, 2014. Id.

         Upon remand, a new hearing was held before ALJ Robeck on May 2, 2017. The ALJ issued a written decision on July 5, 2017, finding that, as of January 28, 2014, [3] Plaintiff was disabled and entitled to benefits. Tr. 970-84, Plaintiff was therefore not disabled or entitled to benefits between November 1, 2011 and January 27, 2014. Id. The Appeals Council declined review, rendering ALJ Robeck's decision the Commissioner's final decision. Tr. 1051-56.

         The central issue here is whether the ALJ properly determined that Plaintiff was not disabled during the relevant time period: February 1, 2011 through January 28, 2014.

         SEQUENTIAL DISABILITY ANALYSIS

         A claimant is disabled if 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). Disability claims are evaluated according to a five-step procedure. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.

         At the first step, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). At step two, the Commissioner determines whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         At step three, the Commissioner determines whether claimant's impairments, singly or in combination, meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         At step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets its burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date. Tr. 973.

         At step two, the ALJ determined that as of February 1, 2011, Plaintiff “had the following severe impairments: status post left rotator cuff surgery, mild narrowing of the medial compartment of the left knee and chondrocalcinosis of the right knee per x-ray, adjustment disorder with depression and anxiety, personality disorder, and methamphetamine and alcohol abuse.” Tr. 973. Beginning on January 28, 2014, the ALJ found Plaintiff's cognitive disorder to be severe as well. Id. The ALJ determined that Plaintiff's gastroesophageal reflux disease, depression, anxiety, and history of cocaine abuse were not severe. Id.

         At step three, the ALJ determined that Plaintiff did not have any impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. Tr. 973-74. In particular, the ALJ found that Plaintiff's physical conditions did not meet the requirements of Listing 1.02 or 1.04, and his mental impairments did not satisfy paragraph “C” of the applicable mental disorder listings. Tr. 974.

         Before proceeding to step four, the ALJ found that, before January 28, 2014, Plaintiff had the residual functional capacity (RFC) to perform light work except that “he could occasionally balance, climb, stoop, kneel, crouch, or crawl, needed to avoid concentrated exposure to vibration, was limited to unskilled work, and could have occasional public contact.” Tr. 974. Beginning on January 28, 2014, the ALJ concluded that Plaintiff's “cognitive/memory impairment [became] severe enough to preclude sustaining fulltime work.” Tr. 981.

         At step four, the ALJ determined that Plaintiff was unable to perform any past relevant work. Tr. 982.

         At step five, the ALJ relied on the testimony of a vocational expert to find that prior to January 28, 2014, there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. Tr. 982-83. After January 28, 2014 there were no jobs that existed in significant numbers in the national economy that Plaintiff could perform. Tr. 983.

         Accordingly, the ALJ concluded that the Plaintiff was not disabled prior to January 28, 2014 but became disabled, and remained disabled, as of that date. Tr. 984.

         STANDARD OF REVIEW

         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “Substantial evidence means 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.” Id. (internal quotation marks omitted). Courts consider the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's.”) (internal quotation marks omitted).

         DISCUSSION

         Plaintiff raises six issues on appeal. He argues the ALJ erred by: (1) improperly rejecting medical opinion testimony; (2) improperly categorizing certain impairments as non-severe at step two; (3) improperly evaluating lay witness statements; (4) improperly rejecting Plaintiff's subjective symptom allegations; (5) failing to conduct an adequate analysis at step five; and (6) establishing an improper onset date. Because the ALJ improperly rejected medical opinion testimony, the Commissioner's decision is reversed and remanded for further administrative proceedings.

         I. Medical Opinion Testimony

         Plaintiff first argues the ALJ improperly rejected the opinions of five medical sources. Social security law recognizes three types of physicians: (1) treating, (2) examining, and (3) nonexamining. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). Generally, more weight is given to the opinion of a treating physician than to the opinion of those who do not actually treat the claimant. Id.; 20 C.F.R. §§ 404.1527(c)(1)-(2), 416.927(c)(1)-(2). More weight is also given to an examining physician than to a nonexamining physician. Garrison, 759 F.3d at 1012. If a treating physician's medical opinion is supported by medically acceptable diagnostic techniques and is not inconsistent with other substantial evidence in the record, the treating physician's opinion is given controlling weight. Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007).

         If the treating physician's opinion is not contradicted by another doctor, the ALJ may reject it only for “clear and convincing” reasons supported by substantial evidence in the record. Ghanim, 763 F.3d at 1160-61.

         Even if the treating physician's opinion is contradicted by another doctor, the ALJ may not reject the treating physician's opinion without providing “specific and legitimate reasons” which are supported by substantial evidence in the record. Id. at 1161; Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). And, when a treating physician's opinion is not given “controlling weight” because it is not “well-supported” or because it is inconsistent with other substantial evidence in the record, the ALJ must still articulate the relevant weight to be given to the opinion under the factors provided for in 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6); Id. at 1161; Orn, 495 F.3d at 632-33. “These factors include the ‘[l]ength of the treatment relationship and the frequency of examination' by the treating physician, the ‘[n]ature and extent of the treatment relationship' between the patient and the ...


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