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Melissa T. v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

February 14, 2019

MELISSA T., [1]Plaintiff,
v.
COMMISSIONER of Social Security, Defendant.

          OPINION AND ORDER

          PATRICIA SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Melissa T. brings this action pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security (the “Commissioner”). The Commissioner denied plaintiff Supplemental Security Income (“SSI”) under Title XVI of the Act. 42 U.S.C. § 1381 et seq. For the following reasons, the Court REVERSES and REMANDS the Commissioner's decision for further proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff protectively filed for SSI on January 9, 2014, alleging a disability onset date of August 1, 2011. Tr. 390-97.[2] Her claim was denied initially on May 7, 2014, and upon reconsideration on July 18, 2014. Tr. 301-30. On September 24, 2014, plaintiff requested a hearing, which was held by video on July 6, 2016, before Administrative Law Judge (“ALJ”) Katherine Weatherly. Tr. 284-300, 344-47. Plaintiff appeared and testified at the hearing, represented by counsel; a vocational expert (“VE”), Francene Geers, also testified. Id. On August 22, 2016, the ALJ issued a decision finding plaintiff not disabled under the Act and denying benefits. Tr. 256-72. Plaintiff requested Appeals Council review, which was denied December 7, 2017. Tr. 1-6. Plaintiff then sought review before this Court.[3]

         FACTUAL BACKGROUND

         Plaintiff was born in 1982. Tr. 390. She experiences depression with agoraphobia, panic disorder, posttraumatic stress disorder, conversion disorder, fibromyalgia, Sjogren's syndrome, periodic limb movement disorder, ocular migraines, bilateral patellar subluxation, and interstitial cystitis. Tr. 61, 111, 127, 519, 533, 631, 808, 815, 905, 924. She has a daughter, and they live with plaintiff's mother. Tr. 287. Plaintiff completed high school through a correspondence course. Tr. 288. Plaintiff has no work history. Tr. 294.

         LEGAL STANDARD

         The 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. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted). The court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “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.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation”). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five-step process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 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). A severe impairment is one “which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines whether the impairments meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.

         At this point, the Commissioner must evaluate medical and other relevant evidence to determine the claimant's “residual functional capacity” (“RFC”), an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). At the fourth step, the Commissioner determines whether the claimant can perform “past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, 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. 261. At step two, the ALJ found that plaintiff had these severe impairments: fibromyalgia, Sjogren's syndrome, mild periodic limb movement disorder, ocular migraines, bilateral patellar subluxation, interstitial cystitis, conversion disorder, dysthymia, and panic disorder. Id. At step three, the ALJ found that plaintiff did not have an impairment or combination thereof that met or equaled a listed impairment. Tr. 262. The ALJ considered, inter alia, Listings 12.04 (Affective Disorders) and 12.06 (Anxiety-Related Disorders). The ALJ then found that plaintiff had the RFC to perform sedentary work, with certain physical, cognitive, and social restrictions. Tr. 264. In making this determination, the ALJ gave “no weight” to the opinions of Heather Holmes, M.D., [4] plaintiff's treating primary care physician; Laura Schaben, M.D., plaintiff's treating neurologist; and William Herz, M.D., plaintiff's treating psychiatrist; and gave “limited weight” to the opinions of consultative examining neuropsychologist William Trueblood, Ph.D. Tr. 268-69. The ALJ also found plaintiff's symptom testimony “not entirely consistent” with the medical evidence and other evidence of record. Tr. 265. At step four, the ALJ found that plaintiff had no past relevant work. Tr. 271. At step five, the ALJ found that plaintiff could adjust to jobs that exist in significant numbers in the national economy, including board assembler, addresser, and patcher. Tr. 271-72. The ALJ thus found plaintiff not disabled under the Act and not entitled to benefits. Tr. 272.

         ANALYSIS

         Plaintiff argues that the ALJ erred in four ways: (1) failing to find that plaintiff met the listed impairments for Listings 12.04 and 12.06;[5] (2) improperly rejecting the medical opinions of Drs. Holmes, Schaben, Trueblood, and Herz; (3) improperly discounting plaintiff's testimony; and (4) failing to include all of plaintiff's limitations in the RFC and VE hypothetical questions. The Court finds that the ALJ erred in each of these regards.

         I. Step Three Listings

         At step three, the ALJ found that plaintiff did not satisfy certain disability listing criteria, including Listing 12.04 (Affective Disorders) and 12.06 (Anxiety-Related Disorders). The ALJ found that plaintiff did not meet the listings' “paragraph B” criteria because she had only mild or moderate restrictions, and no extended episodes of decompensation. Tr. 262-63. The ALJ found that plaintiff also did not meet the listings' “paragraph C” criteria. Tr. 263-64. Plaintiff argues that the ALJ's findings entail that she meets the listings' paragraph A criteria, and that Dr. Trueblood and Herz' assessments entail that she meets the listings' paragraph B criteria.

         “To meet a listed impairment, a claimant must establish that he or she meets each characteristic of a listed impairment relevant to his or her claim.” Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999) (italics omitted). For a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria; an impairment that manifests only some of those criteria, no matter how severely, does not qualify. Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (footnotes and citations omitted), superseded by statute on other grounds as stated in Kennedy v. Colvin, 738 F.3d 1172, 1174 (9th Cir. 2013)

For a claimant to qualify for benefits by showing that his unlisted impairment, or combination of impairments, is “equivalent” to a listed impairment, he must present medical findings equal in severity to all the criteria for the one most similar listed impairment.

Sullivan, 493 U.S. at 530-31. A determination of medical equivalence must rest on objective medical evidence. See Lewis v. Apfel, 236 F.3d 503, 513-14 (9th Cir. 2001); Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) (“Medical equivalence must be based on medical findings. A generalized assertion of functional problems is not enough to establish disability at step three.” (quotation omitted)); 20 C.F.R. § 404.1529(d)(3) (“In considering whether your symptoms, signs, and laboratory findings are medically equal to . . . a listed impairment, we will look to see whether your symptoms, signs, and laboratory findings are at least equal in severity to the listed criteria. However, we will not substitute your allegations of pain or other symptoms for a missing or deficient sign or laboratory finding to raise the severity of your impairment(s) to that of a listed impairment.”). “The mere diagnosis of an impairment listed in Appendix 1 is not sufficient to sustain a finding of disability.” Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985). Instead, all the specified medical criteria must be met or equaled. Id. at 1550.

         Plaintiff's argument as to why she meets Listings 12.04[6] and 12.06[7] rely on Dr. Trueblood and Herz' opinions. Plaintiff argues that Dr. Trueblood's December 6, 2012, Mental Residual Function Capacity Report assessed marked limitations in the first two paragraph B criteria, activities of daily living and social functioning, Tr. 635; and that Dr. Herz' May 28, 2014, Medical Source Statement assessed marked limitations in the second and third paragraph B criteria, social functioning, and concentration, persistence, or pace, Tr. 853-854. Plaintiff argues that because the Court should credit these opinions as true, the Court should find that plaintiff meets the listings. As discussed below, the ALJ erred in assessing Drs. Trueblood's and Herz' opinions. The ALJ must thus reassess on remand whether plaintiff fulfills the criteria of Listings 12.04 and 12.06. See, e.g., Tammy L.O. v. Commissioner, No. 3:17-cv-774-SI, 2018 WL 3090196, at *15 (D. Or. June 20, 2018). Nonetheless, as discussed below, it would not be proper for the Court to credit as true those physicians' opinions at this stage of review, and so it cannot be determined as a matter of law at this stage that plaintiff meets these listings.

         The ALJ erred her step three findings, and must reconsider whether plaintiff meets Listings 12.04 and 12.06 after reassessing ...


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