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Florina P. v. Berryhill

United States District Court, D. Oregon, Portland Division

February 1, 2019

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

          Lisa R. J. Porter JP LAW PC Attorney for Plaintiff

          Billy J. Williams Sarah L. Martin Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNANDEZ UNITED STATES DISTRICT JUDGE.

         Plaintiff Florina P. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB) and supplemental security income (SSI) before July 26, 2016. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I reverse the Commissioner's decision and remand the case for additional proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB and SSI on February 14, 2014, alleging an onset date of May 20, 2007. Tr. 81-86. Her applications were denied initially and on reconsideration. Tr. 69-80, 126-30 (DIB Initial); Tr. 94-109, 137-39 (DIB Recon.); Tr. 68, 81-91, 131-34 (SSI Initial); Tr. 92, 110-25, 140-42 (SSI Recon.). On August 3, 2016, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 43-67. On September 30, 2016, the ALJ found Plaintiff not disabled before July 26, 2016, but disabled after that date. Tr. 17-42. The Appeals Council denied review. Tr. 1-6.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on a back injury and chronic back pain, fibromyalgia, chronic knee pain, anxiety, depression, and panic attacks. Tr. 224. At the time of the hearing, she was fifty years old. Tr. 48 (stating date of birth). She completed eighth grade and half of ninth grade in Mexico. Tr. 49. Plaintiff speaks, reads, and understands very little English. Tr. 52. She does not write in English. Tr. 52-53. The ALJ found that Plaintiff's "main language" is Spanish. Tr. 35. Because Plaintiff can read only very little English and cannot write in English, the ALJ found her to be illiterate. Tr. 35. Plaintiff has past relevant work experience as an agricultural produce sorter, hand packager, production helper, and harvest worker. Tr. 62-63.

         SEQUENTIAL DISABILITY EVALUATION

         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), 1382c(a)(3)(A).

         Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

         In 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). In 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.

         In step three, the Commissioner determines whether plaintiff'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.

         In 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 perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In 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 his 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 determined that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. Tr. 23. Next, at steps two and three, the ALJ determined that Plaintiff has severe impairments of headaches, a spine disorder, and fibromyalgia, but that the impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 23-27.

         At step four, the ALJ concluded that before July 26, 2016, Plaintiff had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), with the following additional limitations: (1) she can occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl, but can never climb ladders, ropes, or scaffolds; (2) she is limited to hearing and understanding simple oral instructions and to communicating simple information orally; and (3) she can have no exposure to hazards such as moving mechanical parts, unprotected heights, or operating a motor vehicle, and she can be exposed to a loud level noise at most. Tr. 28. However, beginning on July 26, 2016 and thereafter, the ALJ concluded that Plaintiff had the RFC to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a), 416.967(a), along with the same additional limitations provided for in the pre-July 26, 2016 RFC. Tr. 33.

         With the pre-July 26, 2016 RFC, the ALJ determined that Plaintiff is able to perform her past relevant work of agricultural produce sorter. Tr. 34-35. Thus, the ALJ determined that before that date, Plaintiff was not disabled. 36. With the RFC applicable on July 26, 2016 and thereafter, the ALJ found that Plaintiff is unable to perform any of her past relevant work. Tr. 35. Continuing at step five, the ALJ determined that under the RFC applicable on July 26, 2016 and thereafter, there were no jobs that exist in significant numbers that Plaintiff is able to perform and thus, she was disabled beginning on July 26, 2016 and continuing thereafter. Tr. 35-36.[2]

         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) (internal quotation marks omitted). "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). The court considers 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 and brackets 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 argues that the ALJ erred in her determination of non-disability before July 26, 2016 by (1) finding her subjective limitations testimony not credible; (2) finding her anxiety and depression to be non-severe impairments at step two; (3) improperly rejecting lay opinion testimony; and (4) improperly rejecting the opinion of her treating physicians. She also argues that the ALJ erred by failing to "incorporate all medical findings" into the RFC and failed to assess whether Plaintiff was capable of working on a "regular and continuing basis." Pl.'s Brief 31, ECF 13. This last argument appears to challenge the ALJ's RFC and adds nothing to the previous arguments raising specific errors. Id. at 31-32. Thus, I do not address it as a separate alleged error by the ALJ.

         I. Plaintiff's Credibility

         The ALJ is responsible for determining credibility. See Vasquez, 572 F.3d at 591. Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains, an adverse credibility finding must be based on 'clear and convincing reasons'"); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages in two-step analysis to determine credibility: First, the ALJ determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged"; and second, if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give "specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.") (internal quotation marks omitted).

         When determining the credibility of a plaintiff's complaints of pain or other limitations, the ALJ may properly consider several factors, including the plaintiff's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may also consider the ability to perform household chores, the lack of any side effects from prescribed medications, and the unexplained absence of treatment for excessive pain. Id. As the Ninth Circuit explained in Molina:

In evaluating the claimant's testimony, the ALJ may use ordinary techniques of credibility evaluation. For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct, unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and whether the claimant engages in daily activities inconsistent with the alleged symptoms[.] While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant's testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting[.] Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.

Molina, 674 F.3d at 1112-13 (citations and internal quotation marks omitted).

         The ALJ summarized Plaintiff's subjective limitations testimony and noted that Plaintiff's low back pain has caused pain in her knees which limits the amount of time she can stand to thirty minutes to an hour and the amount of time she can sit in one position; that she has numbness in her legs; that she has severe pain from her fibromyalgia which makes it painful for her to work; that she forgets things because of her pain; that she has headaches every two to three weeks which sometimes last all day and make her dizzy and unable to walk; that due to her sleep apnea, she feels fatigued all day; that she does not handle stress or changes in routine well; that her ...


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