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Nicole L. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

March 28, 2019

NICOLE L., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION & ORDER

          Ann Alken United States District Judge

         Plaintiff Nicole L. seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner"). For the reasons set forth below, the decision of the Commissioner is REVERSED and REMANDED for immediate award of benefits.

         BACKGROUND

         Plaintiff filed a Title II application for a period of disability and disability insurance benefits on May 20, 2011, alleging disability beginning May 25, 2003. Tr. 16, 193. The application was denied initially and on reconsideration and a hearing was held by video conference at Plaintiffs request on December 12, 2013, Tr, 193. On January 17, 2014, the ALJ issued a decision finding that Plaintiff was capable of performing her past relevant work as a children's tutor and determining that Plaintiff was not disabled from the alleged onset date through March 31, 2007, which was Plaintiffs date last insured. Tr. 203-04.

         Plaintiff sought review by the Appeals Council, which reversed and remanded the unfavorable decision. Tr. 208-11. In its ruling, the Appeals Council held that Plaintiff could not perform her past relevant work as a children's tutor with the limitations described in her residual functional capacity ("RFC"). On remand, the Appeals Council instructed the ALJ to: (1) further evaluate Plaintiffs mental impairments in accordance with the special techniques described in the regulations; (2) give further consideration to Plaintiffs maximum residual functional capacity and provide rationale with specific references to the evidence supporting the assessed limitations; (3) further evaluate Plaintiffs ability to perform past relevant work at Step 4 of the sequential evaluation and make appropriate findings; and (4) if necessary by the expanded record, obtain additional vocational expert testimony. Tr. 15, 209-10.

         On remand from the Appeals Council, a second video conference hearing was held on November 9, 2015. Tr. 15. On May 18, 2016, the ALJ issued a decision finding that Plaintiff was not disabled between the alleged onset date and her date last insured. Tr. 28. The Appeals Council declined review, making the ALJ's decision the final decision of the Commissioner. Tr. 1. This appeal followed.

         DISABILITY ANALYSIS

         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). "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, 648 F.3d 721, 724 (9th Cir. 2011).

The five-steps are: (1) Is the claimant presently working in a substantially gainful activity? (2) Is the claimant's impairment severe? (3) Does the impairment meet or equal one of a list of specific impairments described in the regulations? (4) Is the claimant able to perform any work that he or she has done in the past? and (5) Are there significant numbers of jobs in the national economy that the claimant can perform?

Id. at 724-25; see also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Bustamante, 262 F.3d at 953. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that 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. 20 C.F.R. §§ 4O4.l52O(a)(4)(v); 4l6.92O(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54.

         THE ALJ'S FINDINGS

         The ALJ performed the sequential analysis. As previously noted, Plaintiffs date last insured was March 31, 2007. Tr, 17, At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date through the date last insured. Id. The ALJ determined Plaintiff had the following severe impairments: post-traumatic stress disorder ("PTSD"), depression, lumbar spine chronic compression deformity, and asthma. Id. The ALJ determined Plaintiffs impairments did not meet or equal a listed impairment. Tr. 18.

         The ALJ determined Plaintiff had the RFC to perform light work with the following additional limitations: she can sit, stand, or walk for six hours in an eight-hour workday; she can occasionally climb stairs, ramps, ladders, ropes, and scaffolds; she can occasionally balance, stoop, kneel, crouch and crawl; she must avoid concentrated exposure to lung irritants including fumes, odors, dust, gases, and poor ventilation; she can have occasional contact with co-workers and supervisors, but no interaction with the general public; she "should not work in an environment with the proper major changes at work, but is capable of tolerating normal and forewarn predictable changes [sic];" and "she requires a low stress job with few changes in work setting or work processes, no persuasive communication tasks, and no fast-paced production pace tasks." Tr. 20.

         The ALJ noted Plaintiff was 31 years old on her date last insured and has at least a high school education and is able to communicate in English. Tr. 26. The ALJ found Plaintiff was unable to perform any of her past relevant work. Id. Based on her RFC, the ALJ determined Plaintiff was able to perform work as an electronic worker, electronics assembler, and mail clerk. Tr. 27. As a consequence, the ALJ determined Plaintiff was not disabled during the period between her alleged onset date and her date last insured. Tr. 27-28.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm % 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence "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) (citation and internal quotation marks omitted). In reviewing the Commissioner's alleged errors, this 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). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Bamhart, 400 F.3d 676, 679 (9th Cir. 2005).

         When the evidence before the ALJ is subject to more than one rational interpretation, courts must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, cannot affirm the Commissioner's decision on a ground that the agency did not invoke in making its decision, Stout v. Comm >, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).

         DISCUSSION

         Plaintiff alleges the ALJ erred by (1) failing to find Plaintiffs migraines to be a severe impairment and incoiporating those limitations into Plaintiffs RFC; (2) improperly weighing the medical opinion evidence of Plaintiff s examining psychiatrist; (3) improperly rejecting Plaintiffs subjective symptom testimony; (4) improperly rejecting lay witness testimony; and (5) failing to include all of Plaintiff s limitations in the hypothetical question to the vocational expert ("VE").

         I. ...


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