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Kristine A. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Portland Division

January 17, 2019

KRISTINE A., [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 her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C.§ 1382(c)(3)). The Court REVERSES the Commissioner's decision and REMANDS this case for further administrative proceedings.

         BACKGROUND

         Plaintiff was born on December 5, 1973 and was thirty-nine years old on July 31, 2013, the alleged disability onset date. Tr. 16, 26.[2] Plaintiff has at least a high school education but is unable to perform any past relevant work. Tr. 26. Plaintiff claims she is disabled based on, among other things, fibromyalgia, bipolar disorder, posttraumatic stress disorder, and generalized anxiety disorder.

         Plaintiff filed a prior application for disability insurance benefits on January 20, 2011 and a prior application for supplemental security income on February 18, 2011. Tr. 16. These applications were denied initially on July 26, 2011, and upon reconsideration on December 27, 2011. Tr. 16. A hearing was held before Administrative Law Judge Steve Lynch on May 21, 2013. Tr. 16, 33-57. ALJ Lynch issued a written decision on May 31, 2013, finding that Plaintiff was not disabled or entitled to benefits. Tr. 16. Plaintiff failed to file a timely request for review, rendering ALJ Lynch's decision the Commissioner's final decision.

         On June 11, 2014, Plaintiff protectively filed this application for supplemental security income. The claim was denied initially on August 21, 2014, and upon reconsideration on February 13, 2015. Tr. 16. A hearing was held before Administrative Law Judge Hoenninger. Tr. 16, 58-82. ALJ Hoenninger issued a written decision on February 17, 2017, finding that Plaintiff was not disabled or entitled to benefits. The Appeals Council declined review, rending ALJ Hoenninger's decision the Commissioner's final decision that Plaintiff now challenges before this Court. Tr. 1-6.

         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 application date. Tr. 18.

         At step two, the ALJ determined that Plaintiff had “the following severe impairments: Fibromyalgia, obesity, degenerative joint disease of the bilateral knees, bilateral carpal tunnel syndrome, and affective disorder and an anxiety disorder.” Tr. 18-19. The ALJ also determined that Plaintiff's “headaches/occipital neuralgia, degenerative disc disease of the cervical and lumbar spine, and bilateral hearing loss” were not severe. Tr. 19 (citations to the record omitted).

         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. 19-21. Before proceeding to step four, the ALJ found that Plaintiff had the residual functional capacity (RFC) to perform light work with the following exceptions:

She can frequently climb ramps and stairs. She can frequently climb ladders, ropes and scaffold. She can frequently stoop, kneel, crouch, and craw. She can frequently handle and finger bilaterally. She can understand and remember simple instructions. She has sufficient concentration, persistence and pace to complete simple entry-level tasks. She can occasionally interact with the general public and coworkers.

Tr. 21.

         At step four, the ALJ determined that Plaintiff was unable to perform any past relevant work, either as a health care provider or a sales assistant. Tr. 26. At step five, the ALJ relied on the testimony of a vocational expert to find that there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. Tr. 26-27. Accordingly, the ALJ concluded that Plaintiff was not disabled. Tr. 27.

         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 three issues on appeal. She argues the ALJ erred by: (1) knowingly causing a prohibited ex parte communication; (2) giving great weight to the Cooperative Disability Investigations Unit (CDIU)'s report and rejecting the opinions of treating and examining providers; and (3) failing to identify Plaintiff's headaches and lumbar degenerative disease as severe impairments.

         I. ...


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