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Tatyana K. v. Berryhill

United States District Court, D. Oregon, Portland Division

February 6, 2019

TATYANA K. Plaintiff,
v.
NANCY A. BERRYHILL, in her capacity as Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          JOHN V. ACOSTA JUDGE

         Introduction

         Plaintiff Tatyana K.[1] seeks judicial review of the Commissioner of Social Security's final decision denying her application for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the Court affirms the ALJ's decision.

         Background

         Plaintiff was born in 1952, was 61 years old on the alleged onset of disability date, and was 64 years old on the date of the hearing. Plaintiff has a college degree and has worked as an economist. Plaintiff moved to the United States from Kazakhstan approximately twenty years ago and has past relevant work experience as a childcare specialist.

         Plaintiff protectively filed her DIB application on February 13, 2014, alleging disability beginning February 13, 2014 as a result of insomnia; depression and anxiety; chronic pain in her right hip, right knee, and low back; hypertension; carpal tunnel; cataracts; and gastroesophageal reflux disease. The claim was denied initially on August 21, 2014, and again upon reconsideration on January 14, 2015. Plaintiff filed a written request for a hearing on March 16, 2015, which an Administrative Law Judge ("ALJ") held on September 12, 2016 in Portland, Oregon. Plaintiff appeared and testified at the hearing through a Russian language interpreter and waived her right to legal representation. Vocational Expert ("VE") Patricia B. Ayerza also appeared and testified. The ALJ issued an unfavorable decision, and the Appeals Council declined review. Plaintiff filed this appeal.

         Legal Standards

         The district court must affirm the Commissioner's decision if the Commissioner applied the proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). "'Substantial evidence is more than a mere scintilla but, less than a preponderance. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (quoting Desrosiers v. Sec 'y Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).

         The ALJ's Decision

         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).

         The ALJ found Plaintiff met the Social Security Act's insured status requirements through December 31, 2017. At step one, the ALJ determined Plaintiff has not engaged in substantial gainful activity since February 13, 2014, the alleged onset date. At step two, the ALJ found Plaintiff is impaired by the single severe impairment of obesity which more than minimally affects her ability to perform basic work activities. At step three, the ALJ found Plaintiffs obesity causes only transient and mild symptoms and limitations and does not meet or medically equal a listed impairment. The ALJ assessed Plaintiff with a Residual Functional Capacity ("RFC") to perform the full range of medium work as defined in 20 C.F.R. § 404.1567(c). Tr. 30. At step four, the ALJ found Plaintiff capable of performing her past relevant work as a childcare specialist. Accordingly, the ALJ concluded Plaintiff is not disabled.

         Discussion

         Plaintiff contends the ALJ committed the following errors: (1) the ALJ failed to find her insomnia severe at step two; (2) the ALJ improperly rejected her testimony; (3) the ALJ improperly rejected the opinion of the examining psychologist Donna C. Wicher, Ph.D.; (4) Plaintiff did not knowingly waive her right to representation; (5) the ALJ failed to order a physical consultative examination; and (6) the ALJ improperly rejected the lay testimony of her husband. The Commissioner contends the ALJ's decision is supported by substantial evidence and is free of legal error. Alternatively, the Commissioner argues that even if ALJ erred, Plaintiff has not demonstrated harmful error.

         I. The ALJ Did Not Err at Step Two

         At step two, a claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairments or combination of impairments. Webb v. Barnhart, 433 F.3d683, 686-87 (9th Cir. 2005); 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment "significantly limits" a claimant's "physical or mental ability to do basic work activities." 20 C.F.R. §§ 404. 1521(a), (b); Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005). The ability to do basic work activities is defined as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. §§ 404. 1521(a), (b). Step two is a "de minimus screening device used to dispose of groundless claims." Webb, 433 F.3d at 687.

         Plaintiff argues that the ALJ erred in failing to find her insomnia severe at step two. Plaintiff insists that the ALJ erred because the ALJ failed to account for her excessive daytime sleepiness. Pl.'s Br. 7, ECF No. 17. However, as the ALJ correctly determined, the medical record does not support Plaintiffs allegations of excessive daytime sleepiness. Tr. 344. As the ALJ noted, Plaintiff does not experience excessive drowsiness while driving, nor does she nap during the day. Plaintiff has an Epworth Score of zero.[2] As the ALJ correctly indicated, Plaintiff does not experience conditions such as sleep paralysis, hypnagogic or hypnopompic hallucinations, or cataplexy. Tr. 26, 344. And, as the ALJ indicated, Plaintiff declined to undergo cognitive behavioral therapy treatment recommended by her physician and declined further workup on the condition for years despite her contrary allegations of ongoing insomnia. Tr. 26. The ALJ's findings are wholly supported by substantial evidence. Because the record shows Plaintiff does not experience excessive daytime sleepiness, the could reasonably conclude that Plaintiffs chronic insomnia caused no more than minimal limitations in Plaintiffs ability to perform basic mental work activities, and therefore was nonsevere. Tr. 26.

         Moreover, as noted above, the ALJ found that Plaintiffs obesity was severe at step two, and continued with the sequential evaluation through step four. Thus, the ALJ resolved step two in Plaintiffs favor. Therefore, even assuming arguengo that the ALJ erred at step two, the error is harmless. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir, 2005); see also Gray v. Comm'r Soc. Sec. Admin., 365 Fed.Appx. 60, 61 (9th Cir. 2010) (rejecting argument that the ALJ erred at step two by determining certain impairments were nonsevere, because any alleged error was harmless since "the ALJ concluded that [claimant's] other medical problems were severe impairments"); Mondragon v. Astrue, 364 Fed.Appx. 346, 348 (9th Cir. 2010) ("Any alleged error at step two was harmless because step two was decided in [claimant]'s favor with regard to other ailments."). And, to the extent that Plaintiff contends the ALJ erred in failing to account for Plaintiffs insomnia in the RFC, the argument fails. Plaintiff has not identified any functional limitations caused by insomnia and supported by substantial evidence in the medical record that the ALJ was required to include in the RFC. Accordingly, the court concludes the ALJ's finding that Plaintiffs insomnia nonsevere is supported by substantial evidence and reasonable inferences drawn from the record; the ALJ's decision will not be disturbed.

         II. The ALJ Did Not Err in Discounting Plaintiffs Subjective Symptom Testimony

         Plaintiff contends the ALJ failed to provide clear and convincing reasons for rejecting her subjective symptom testimony. To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. Trevizo, 871 F.3d at 678; 20 C.F.R. § 404.1529. The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Molina, 674 F.3d at 1112; Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, absent affirmative evidence that the claimant is malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).

         The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Brown-Hunter, 8 06 F.3d at 493. Factors the ALJ may consider when making such credibility determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, and inconsistencies in testimony.[3] Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013); Tommasetti, 533F.3d at 1039.

         At the hearing, Plaintiff testified that she lives with her husband in a two-story house, and that she attended college and worked as an economist. Tr. 44. Plaintiff testified that after moving to the United States, she taught herself English, and can read, write, and speak some English, but prefers to use an interpreter. Tr. 45. Plaintiff stated that she currently works as a child care specialist for eight hours a week. Tr. 46. Plaintiff testified that she worked for 16 years as a child care specialist for children born to drug addicted parents. Tr. 47. Plaintiff stated that she can no longer perform that work because it was very difficult; the children all have special needs, and the work made her anxious and depressed, interfered with her sleep, and negatively impacted her health. Tr. 45-46, 54.

         Plaintiff estimated that she can walk for ten minutes before needing rest, and can sit for 20 to 30 minutes. Tr. 48. Plaintiff described that she speaks to her daughter almost daily on the telephone, can drive independently, can do laundry, shops with her husband, but does not vacuum. Tr. 50. Plaintiff noted she loves to cook, but it is sometimes hard. Tr. 50.

         In a May 26, 2014 Function Report, Plaintiff indicated that she has chronic insomnia; irritability; anxiety; has pain in her hip, knee, and shoulder; fatigue; high blood pressure; hot flashes; depression; poor vision; stomach problems; and numbness in her hands. Tr. 181, 186. Plaintiff described that in a typical day, she has difficulty waking because she sleeps poorly, then cooks, cleans the house a bit, buys groceries, watches television, then goes to bed. Tr. 182. Plaintiff reported no problems with personal care and that she is able to cook complete meals. Tr. 183. Plaintiff noted she is able to do laundry and household chores for only one hour each week. Tr. 184. Plaintiff provided that her impairments affect her ability lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, concentrate, and use her hands. Tr. 186. Plaintiff noted that she has difficulty paying attention, does not handle stress well, and ...


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