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Blake L. v. Berryhill

United States District Court, D. Oregon, Portland Division

January 4, 2019

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

          FINDINGS AND RECOMMENDATIONS

          Youlee Yim You United States Magistrate Judge

         Blake L. (“plaintiff”), seeks judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying his application for Title II Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security Income (“SSI”) under the Social Security Act (“Act”). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the Commissioner's decision is not supported by substantial evidence, it should be REVERSED and REMANDED for further proceedings.

         BACKGROUND

         Born in 1983, plaintiff was 30 years old on his alleged disability onset date, and 33 years old at the time of his administrative hearing. Tr. 34, 78, 89. He completed two years of college towards a bachelor's degree in accounting. Tr. 29, 32. Plaintiff has past relevant work as a fast food restaurant manager and retail cashier. Tr. 32. He alleges disability due to vasovagal syncope, bipolar disorder, chronic migraines, depression, anxiety, social anxiety, and obsessive-compulsive disorder. Tr. 78, 89.

         PROCEDURAL HISTORY

         Plaintiff filed applications for DIB and SSI on February 18, 2014, alleging disability beginning February 28, 2013. Tr. 22. Plaintiff's claim was denied initially and upon reconsideration. Id. On April 20, 2016, a hearing was held before an Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as did a vocational expert (“VE”). Tr. 40-75. On June 3, 2016, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 22-34. After the Appeals Council denied his request for review, plaintiff filed a complaint in this court. Tr. 1-7. The ALJ's decision is therefore the Commissioner's final decision subject to review by this court. 20 C.F.R. § 422.210.

         STANDARD OF REVIEW

         The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and “may not affirm simply by isolating a specific quantum of supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The reviewing court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.

         SEQUENTIAL ANALYSIS AND ALJ FINDINGS

         Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. This sequential analysis is set forth in the Social Security regulations, 20 C.F.R. §§ 404.1520, 416.920, in Ninth Circuit case law, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)), and in the ALJ's decision in this case, Tr. 23-24.

         At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity after the alleged onset date and met the insured status requirements of the Act through the relevant time frame. Tr. 24.

         At step two, the ALJ found that plaintiff has the following severe impairments: affective disorder with bipolar features; generalized anxiety disorder; borderline personality disorder; and marijuana abuse. Id.

         At step three, the ALJ found plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 25. The ALJ next assessed plaintiff's residual functional capacity (“RFC”) and determined that he could perform a full range of work at all exertional levels with the following limitations: plaintiff was “capable of performing work involving simple, routine tasks; and may have occasional, superficial contact with the public.” Tr. 27 At step four, the ALJ found plaintiff could not perform his past relevant work as a fast food services manager or retail cashier/store keeper. Tr. 32.

         At step five, the ALJ found that considering plaintiff's age, education, and RFC, a significant number of jobs existed in the national and local economy such that plaintiff could sustain employment despite his impairments. Tr. 33. Specifically, the ALJ found plaintiff could perform representative occupations of laundry sorter, hand packager, and office helper. Tr. 33-34. Accordingly, the ALJ determined that plaintiff was not disabled at any time through the date of his decision. Tr. 34.

         DISCUSSION

         Plaintiff argues that the ALJ: (1) improperly discounted his subjective symptom testimony; (2) erroneously assessed the medical opinion of treating physician, Joel Julian, M.D.; (3) improperly discounted the lay testimony of plaintiff's father Mark L. and his partner David K.; (4) failed to properly evaluate whether he met a listing at step three; and (5) failed to include all of plaintiff's limitations into his RFC at step five.

         I. Subjective Symptom Testimony

         Plaintiff alleges that the ALJ wrongfully discounted his subjective symptom testimony. 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) (citation omitted). A general assertion that 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). If the “ALJ's credibility finding 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) (citation omitted).

         Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”) 96-7p, governing the assessment of a claimant's “credibility, ” and replaced it with SSR 16-3p. See SSR 16-3p, available at2016 WL 1119029. SSR 16-3p eliminates the reference to “credibility, ” clarifies that “subjective symptom evaluation is not an examination of an individual's character, ” and requires the ALJ to consider all of the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must examine “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. at *4.

         A. Background Facts

         At the hearing, plaintiff testified he was first diagnosed with bipolar disorder in 2007. Tr. 49. He explained that, during 2008, his anxiety and bipolar disorder made things “tough, ” but that it “was a pretty up year.” Tr. 50. By 2009, however, “things started to fall apart, ” at which point plaintiff focused on his medication management. Id. It was “very hard for him to show up on time” for his job at a fast food restaurant, he “missed several days a week, ” and his supervisor “covered for [him] a lot.” Id. In 2009, plaintiff received a medical marijuana card for migraines. Tr. 51. At various points throughout the relevant time period, plaintiff used marijuana between “five to seven” days per week, sometimes daily, to calm himself down when in a “manic state.” Tr. 51.

         Plaintiff testified that he last worked as a cashier at Bed Bath and Beyond in 2014. Tr. 46. He explained that he had difficulty maintaining attendance due to “stress around dealing with coworkers and dealing with customers.” Tr. 46-47. He testified that he “would arrive at work and sit [in his] car for quite a while—to the tune of, like, a half-hour to an hour and just kind of go through [his] head, you know what happens if [he went] in? What happens if [he didn't] go in? What [was he] going to have to deal with?” Tr. 46 (punctuation supplied). Although plaintiff's employer “worked with [plaintiff's] doctor” and allowed him to “go out on leave, ” he was ultimately terminated. Tr. 47.

         During manic episodes, plaintiff was able to perform numerous household projects, such as painting and refinishing furniture; however, he had problems with his behavior, and became “extremely irritable” and had difficulty interacting with his son and partner. Tr. 59. He testified that during one two-month depressive period, he slept “a minimum” of 15 hours per day and had difficulty completing basic household chores. Tr. 60.

         B. Analysis

         The Commissioner argues the ALJ provided three clear and convincing rationales for rejecting plaintiff's subjective symptom testimony: (1) objective findings; (2) the treatment record; and (3) inconsistencies in the record.

         1. Objective Findings

         The Commissioner argues that the ALJ properly relied on objective evidence in rejecting plaintiff's subjective symptom testimony. While an ALJ may consider the lack of objective evidence in some circumstances, as the Commissioner correctly concedes, it may not be the sole basis for rejecting a claimant's subjective symptom testimony. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

         The Commissioner directs the court to treating physician Dr. Julian's chart notes that document improved insight and judgment, good eye contact, normal speech, a pleasant and cooperative affect, and normal thought processes. Other than parroting the ALJ's summary of the medical evidence, however, the Commissioner fails to articulate what testimony the ALJ found not credible and what objective evidence led the ALJ to such a conclusion. See Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (rejecting an ALJ's reliance of the claimant's “good eye contact, organized and logical thought content, and focused attention” because “[t]hese observations of cognitive functioning during therapy sessions [did] not contradict [the claimant's] reported symptoms of depression and social anxiety”); see also Smolen, 80 F.3d at 1284 (“The ALJ must state specifically which symptom testimony is not credible and what facts in the record lead to that conclusion.”) (citation omitted).

         Moreover, viewed in context, Dr. Julian's findings are not in fact inconsistent with plaintiff's testimony that he had difficulties with attendance during depressive periods, and fail to account for the cyclical nature of his manic and depressive episodes. See Ghanim, 763 F.3d at 1162 (the “fact that a person suffering from depression makes some improvement does not mean that person's impairment no longer seriously affects his ability to function in the workplace”) (quotation marks and bracketing omitted); see also Garrison, 759 F.3d at 1017 (“Cycles of improvement and debilitating symptoms are a common occurrence.”). Indeed, a review of the treatment record reveals that plaintiff repeatedly presented with objective findings of depression and a low mood consistently between three and five out of a ten-point scale. See Tr. 454, 458, 460, 472, 564, 567-68, 571, 574, 579, 583, 586, 590, 594, 598.

         As such, the objective medical record was not a proper basis to reject plaintiff's subjective symptom testimony.

         2. Treatment Record

         The Commissioner next argues that the ALJ properly considered plaintiff's response to treatment in discounting his subjective symptom testimony. The effectiveness of treatment is a factor an ALJ may consider, and a favorable response to conservative treatment can undermine reports of disabling limitations. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); Tommasetti, 353 F.3d at 1035. The Commissioner advances four rationales in support of this argument.

         First, the Commissioner asserts that plaintiff responded positively to his psychotropic medications, specifically Abilify, with “additional medications added to the treatment regimen at various times.” Def.'s Br. 5. The Commissioner, however, mischaracterizes the record, which shows that various medications, including Abilify, did not effectively control plaintiff's symptoms. In fact, plaintiff's cocktail of medications were in a near-constant state of flux as his providers sought to provide him with some relief. For example, the Commissioner relies on a November 2013 appointment where plaintiff “show[ed] some improvement with [a] recent increase in Abilify.” Tr. 408. At ...


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