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Debbie B. v. Commissioner of Social Security

United States District Court, D. Oregon, Eugene Division

March 28, 2019

DEBBIE B., [1] Plaintiff,


          Ann Aiken, United States District Judge.

         Plaintiff Debbie B. seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner found Plaintiff disabled and awarded Disability Insurance Benefits pursuant to Title II and Supplemental Security Income pursuant to Title XVI of the Social Security Act as of February 4, 2016 but did not find that Plaintiff was disabled before this date. For the reasons set forth below, the decision of the Commissioner is REVERSED and REMANDED for an immediate award of benefits.


         In November 15, 2013, Plaintiff filed an application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") that alleged disability since July 15, 2013, Plaintiff based her request for benefits on back conditions, hypothyroidism, obesity, and asthma. Plaintiffs DIB and SSI applications were initially denied on March 19, 2014, and upon reconsideration, with the reconsideration denial dated September 11, 2014. An administrative hearing was held before an Administrative Law Judge ("ALJ") on June 1, 2016. At the hearing, Plaintiff testified and was represented by council. A vocational expert ("VE") also testified. On July 8, 2016, the ALJ issued a partially favorable decision finding that Plaintiff became disabled on February 4, 2016. Plaintiff sought review by the Appeals Council which was denied on August 7, 2017 and Plaintiff filed a complaint in this Court.


         The district court must affirm the Commissioner's decision if it is based upon proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is 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." Gutierrez v. Comm'r Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014) (citation and quotation marks omitted). The court must weigh "both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed because "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).


         The initial burden of proof rests upon Plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1484 (9th Cir. 1986). To meet this burden, Plaintiff must demonstrate and "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be 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 sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4); id § 416.920(a)(4). At step one, the ALJ found Plaintiff had not engaged in "substantial gainful activity" since the alleged disability onset date. Tr. 22; 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id. §§ 4l6.92O(a)(4)(i), (b). At step two, the ALJ found Plaintiff had the following severe impairments: "obesity; degenerative disc disease; lumbar post-laminectomy syndrome with an L4-Sl fusion; and bilateral leg edema; 20 C.F.R. §§ 404.1520(c); id. §§ 416.920(c)." Tr. 22. At step three, the ALJ determined that since the alleged onset date of disability July 15, 2013, Plaintiffs impairments, whether considered singly or in combination, did not meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Tr. 28; 20 C.F.R. §§ 4O4.l52O(a)(4)(iii), (d); id §§ 4l6.92O(a)(4)(iii), (d).

         The ALJ then assessed Plaintiffs residual functional capacity ("RFC"). 20 C.F.R. §§ 404.1520(e); id. §§ 416.920(e). The ALJ found that Plaintiff had:

The residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416(a) except she can lift, carry, push, pull, and pull 20 pounds occasionally and 10 pounds frequently. She can sit, stand, or walk for four hours each in an eight-hour day. She can sit for two hours at a time, but then will need to stand or walk for no more than five minutes before resuming a seated position. She can occasionally climb ramps, stairs, ladders, ropes, and scaffolds. She can tolerate no exposure to hazards such as machinery and unprotected heights.

         Tr.24, At step four, the ALJ concluded that since July 15, 2013, Plaintiff could not perform her past relevant work. Tr. 28; 20 C.F.R. §§ 4O4.l52O(a)(4)(iv), (f). Additionally, the ALJ found that prior to February 4, 2016, the Plaintiff was not disabled, but on that date, Plaintiffs age category changed to an individual closely approaching advanced age. Tr. 28; 20 C.F.R. §§ 404.1563 and 416.963. The ALJ continued to step five and found that between July 13, 2015 and July 4, 2016, Plaintiff could perform work existing in the national economy. The ALJ based this decision on Plaintiffs age, education, work experience, and RFC, and determined that Plaintiff could have performed the requirements of occupations like the following: a bench hand, table worker, or a stem mounter. Tr. 29; 20 C.F.R. §§ 4O4.l52O(a)(4)(v), (g)(1). Accordingly, the ALJ found Plaintiff was not disabled for that time and denied her applications for benefits prior to February 4, 2016.


         Plaintiff alleges that the ALJ erred in four ways in determining that she was not disabled before July 4, 2016. First, the ALJ improperly determined that Plaintiff was not a reliable source for subjective symptom testimony. Second, the ALJ failed to provide specific germane reasons for discounting the lay witness testimony of Plaintiffs roommate. Third, the ALJ failed to provide legally sufficient reasons for discounting medical opinions of treating physician, Dr. Beckstrand, and Plaintiffs surgeon, Dr. Angeles. Fourth, the ALJ failed to adequately account for Plaintiffs sitting and standing limitations when questioning the VE and in determining Plaintiffs RFC. It is not disputed that Plaintiff is disabled, the dispute is over the onset date of Plaintiffs disability. I address each of Plaintiffs arguments in turn.

         I. Subjective Symptom Testimony

         Plaintiff claims the ALJ failed to give specific, clear and convincing reasons for rejecting her subjective symptom testimony. To determine whether a claimant's testimony is credible, an ALJ must perform a two-stage analysis. 20 C.F.R. § 416.929. 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 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). At the second stage, absent evidence of malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the claimant's testimony regarding the severity of symptoms. 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. Ghanim u. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014).

         The ALJ found that Plaintiffs medically determinable impairments could reasonably be expected to cause her symptoms, but that Plaintiffs statements concerning the intensity, persistence, and limiting effects of her symptoms were "not fully supported." Tr. 25.

         The ALJ stated that "[t]he medical record partially supports the severity of the claimant's symptoms." Id. The ALJ then summarized the medical record but did not identify any specific testimony or explain how that testimony was inconsistent with the record, A general assertion that the claimant is not credible is insufficient; the ALJ must "state which...testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).

         The only specific reason that the ALJ provided for discounting Plaintiffs testimony was that Plaintiffs reported daily activities "support[ed] that [Plaintiff] was able to function at a reduced range of ...

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