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Jacqueline S. v. Berryhill

United States District Court, D. Oregon

March 8, 2019

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

          FINDINGS AND RECOMMENDATION

          BECKERMAN, U.S. MAGISTRATE JUDGE

         Jacqueline S. (“Plaintiff”) brings this appeal challenging the Commissioner of Social Security's (“Commissioner”) denial of her applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401-34, 1381-83f. The Court has jurisdiction to hear Plaintiff's appeal pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons explained below, the Court recommends that the district judge reverse the Commissioner's decision and remand this case for further proceedings.

         BACKGROUND

         Plaintiff was born in October 1979, making her twenty years old on March 1, 2000, the alleged disability onset date. (Tr. 29, 71, 82.) Plaintiff has “at least a high school education” and no past relevant work experience. (Tr. 29, 42, 196, 281.) In her applications for Social Security benefits, Plaintiff alleges disability due to anxiety, manic depression, and migraines. (Tr. 71, 82, 195.)

         On April 23, 2014, Dr. Arthur Lewy (“Dr. Lewy”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 76-77.) Dr. Lewy determined that Plaintiff's mental impairments failed to meet or equal Listing 12.04 (affective disorders).

         On November 4, 2014, Dr. James Buskirk (“Dr. Buskirk”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 96-97.) Dr. Buskirk determined that Plaintiff's mental impairments failed to meet or equal Listings 12.04 and 12.06 (anxiety-related disorders).

         Also on November 4, 2014, Dr. Buskirk completed a mental residual functional capacity assessment form, in which he rated Plaintiff's limitations in each of eight categories of mental ability. (Tr. 98-99.) Dr. Buskirk rated Plaintiff to be not significantly limited in six categories and moderately limited in two categories (i.e., the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, and the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods). Dr. Buskirk added that Plaintiff can maintain pace and persistence “through a workday/week given adequate breaks, ” and “can understand and carry out work instructions.” (Tr. 98.)

         On June 1, 2016, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 38-59.) Plaintiff testified that she lives with her parents and three children (ages ten, fourteen, and sixteen at the time of the hearing); she has a license and does not drive often; she completed the twelfth grade; she stopped working in 1999; she applied for jobs after she stopped working; she interviewed for an overnight stocking position at Target in April 2016; and she would like to enroll in a nursing program. (Tr. 41-44.) Plaintiff also testified that she occasionally gives her children rides to and from school; her children are “all self-sufficient” and “really do their own things, ” but Plaintiff does help them “with their homework, ” prepare meals for them, and read books to them before bed; she tries “to do stuff around the house, ” such as laundry and dishes; and she grocery shops once a month when there are not “many people shopping.” (Tr. 45-47.) In addition, Plaintiff testified that she would accept a position at Target for “maybe just a couple days [or] weeks, ” but then she would leave because she does not like “being around a lot of people, ” and that she believed that she is capable of working in a job that involved “packing stuff into a box” if she was “doing it just by [her]self.” (Tr. 48-49.)

         The ALJ posed hypothetical questions to a Vocational Expert (“VE”) who testified at Plaintiff's hearing. First, the ALJ asked the VE to assume that a hypothetical worker of Plaintiff's age, education, and work experience could perform medium work that: (1) involves walking for six hours in an eight-hour workday, sitting and standing “for a combined total of six hours” in an eight-hour workday, performing “simple routine repetitive work, with a [General Educational Development] level of two or lower, ” no more than occasional workplace changes, and no more than occasional contact with co-workers; and (2) does not involve teamwork, tandem tasks, or contact with the public. (Tr. 52-53.) The VE testified that the hypothetical worker could be employed as an industrial cleaner, hospital cleaner, and warehouse worker. (Tr. 53-54.)

         Second, the ALJ asked the VE to assume that the hypothetical worker described above could perform light work (as opposed to medium work) that also: (1) involves frequent balancing, stooping, kneeling, crouching, crawling, and climbing ramps, stairs, ladders, ropes, and scaffolds; and (2) does not involve exposure to hazards such as “unprotected heights and moving mechanical parts.” (Tr. 54.) The VE testified that the hypothetical worker could be employed as a laundry worker, electronics worker, and “a small products assembler II.” (Tr. 56-57.) Responding to the ALJ's final question, the VE confirmed that the hypothetical worker could not sustain competitive employment if she was off task for twenty percent of the workday. (Tr. 57.)

         On June 27, 2016, Disability Determination Services referred Plaintiff to Dr. Daniel Scharf (“Dr. Scharf”), a clinical psychologist, for an intellectual assessment. (Tr. 705-09.) Dr. Scharf administered the Wechsler Adult Intelligence Scale-Fourth Edition (“WAIS-IV”), and Plaintiff received: (1) a full-scale Intelligence Quotient (“IQ”) score of sixty-nine, placing her in the second percentile; (2) a processing speed index score of seventy-six, placing her in the fifth percentile; (3) a working memory index score of sixty-six, placing her in the first percentile; (4) a perceptual reasoning index score of eighty-one, placing her in the tenth percentile; and (5) a verbal comprehension index score of seventy, placing her in the second percentile. (Tr. 708.) Dr. Scharf's diagnostic impression was borderline intellectual functioning, “[o]ther [s]pecified [d]epressive [d]isorder, ” and “[o]ther [s]pecified [a]nxiety [d]isorder.” (Tr. 709.) Dr. Scharf added that Plaintiff “put forth her best effort on intellectual testing” and “performed in the borderline range, demonstrating modest intellectual ability”; Plaintiff “likely would have difficulties with persistence in her attention after 10 to 15 minutes”; and Plaintiff's “limited verbal ability affected her ability to engage in appropriate social interaction” with Dr. Scharf. (Tr. 709.)

         On July 5, 2016, Dr. Scharf completed a medical source statement, in which he rated Plaintiff's limitations in each of ten categories of mental ability. (Tr. 702-04.) Dr. Scharf rated Plaintiff to be moderately limited in seven categories, mildly limited in one category, and not significantly limited in two categories (i.e., the ability to understand and remember simple instructions and the ability to carry out simple instructions). Dr. Scharf also stated that Plaintiff “had difficulty understanding moderately complex instructions on intelligence testing for [her] exam, ” and she “had difficulty interacting during the exam due to [her] limited verbal ability.” (Tr. 702-04.)

         In a written decision issued on October 5, 2016, the ALJ applied the five-step process set forth in 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4), and found that Plaintiff was not disabled. See infra. The Social Security Administration Appeals Council denied Plaintiff's petition for review, making the ALJ's decision the Commissioner's final decision. Plaintiff timely appealed.

         THE FIVE-STEP SEQUENTIAL ANALYSIS

         I. LEGAL STANDARD

         A claimant is considered 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). “Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act.” Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are: (1) whether the claimant is currently engaged in any substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the claimant is capable of performing other work that exists in significant numbers in the national economy. Id. at 724-25. The claimant bears the burden of proof for the first four steps. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those steps, the claimant is not disabled. Id.; Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987).

         The Commissioner bears the burden of proof at step five of the process, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, “taking into consideration the claimant's residual functional capacity, age, education, and work experience.” Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If the Commissioner fails to meet this burden, the claimant is disabled. Bustamante, 262 F.3d at 954 (citations omitted).

         II. THE ...


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