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Kittie H. v. Commissioner of Social Security

United States District Court, D. Oregon

March 30, 2019

KITTIE H., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, [2] Defendant.

          OPINION AND ORDER

          ANN AIKEN UNITED STATES DISTRICT JUDGE

         Plaintiff Kittie H. seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act. For the reasons set forth below, the Commissioner's decision is REVERSED and REMANDED for further proceedings.

         BACKGROUND

         Plaintiff protectively filed an application for DIB on July 29, 2013. She alleged disability beginning October 28, 2010, due to degenerative neck disease, arthritis, past knee surgeries, high cholesterol, migraines, depression, panic attacks, and anxiety. Her application was denied initially and upon review. Plaintiff appeared before an Administrative Law Judge ("ALJ") at a hearing held October 30, 2015. She was represented by an attorney. A vocational expert ("VE") also appeared and testified at the hearing. On February 25, 2016, the ALJ issued a decision finding Plaintiff not disabled through December 15, 2015, the date last insured. On July 12, 2017, the Appeals Council denied plaintiffs request for review, making the ALJ's decision the final decision of the Commissioner. This appeal followed.

         STANDARD OF REVIEW

         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 of 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).

         COMMISSIONER'S DECISION

         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 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). At step one, the ALJ found that plaintiff had not engaged in "substantial gainful activity" during the period from her alleged onset date of October 28, 2010 through her date last insured of December 31, 2015. Tr. 22; 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id. at § 404.1571. At step two, the ALJ found that plaintiff suffers from the following severe impairments: "spine disorder and migraines." Tr. 22-24; 20 C.F.R. §§ 404.1520(a)(4)(ii), (c). At step three, the ALJ determined that 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. 24; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); id. § 404.1525; id. § 404.1526.

         The ALJ then assessed plaintiffs residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e). The ALJ found that plaintiff retained the RFC to

perform light work as defined in 20 C.F.R. § 404.1567(b) except the [plaintiff] is limited to frequent climbing of stairs, ramps, ladders, ropes, and scaffolds. [Plaintiff) is limited to occasional overhead reaching bilaterally. [Plaintiff] is limited to occasional exposure to extreme heat, extreme cold, vibrations, and moderate noise.

Tr. 24.

         At step four, the ALJ concluded plaintiff could perform her past relevant work as a server. Tr. 28; 20 C.F.R. §§ 4O4.1520(a)(4)(iv), (f), (h); id. at § 404.1565. Accordingly, the ALJ found plaintiff was not disabled during the relevant period and denied her application. Id.

         DISCUSSION

         As an initial matter, the Commissioner concedes that the ALJ committed error at step four and that the case should be remanded.

         At step four, the ALJ determined that plaintiff was capable of performing her past relevant work as a server. Tr. 28. In making her determination, the ALJ noted that the VE testified that plaintiff "would have been able to perform this job as generally performed in the Dictionary of Occupational Titles" ("DOT'). Id. The ALJ adopted the VE's testimony because the ALJ found that it was consistent with the information in the DOT and plaintiffs RFC. Id.

         Both parties agree that this was error because the hypotheticals that the ALJ posed to the VE at the hearing were incomplete. The RFC limits plaintiff to "occasional exposure to .. . moderate noise," Tr. 24, but the ALJ asked the VE whether a person "limited to noise at a moderate level" could perform work as a server without specifying the duration of that exposure. Tr. 60. The VE responded that the person would be able to work as a server, as the DOT provides that work as server requires exposure to a moderate level of noise. Id.; see also DOT 311.477-030.

         "If the hypothetical does not reflect all of the claimant's limitations, we have held that the expert's testimony has no evidentiary value to support a finding that the claimant can perform jobs in the national economy." DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). Thus, the ALJ's step four determination was not based on substantial evidence. Id.

         The parties dispute whether further proceedings are required, or whether the case ought to be remanded for an immediate award of benefits.

         Plaintiff also alleged that the ALJ erred in (1) determining that other impairments alleged by plaintiff were either not medically determinable or not severe; (2) finding that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of Listing 1.04A in 20 C.F.R. Part 404, Subpart P, Appendix 1; (3) finding that plaintiffs testimony was partially credible; (4) rejecting testimony of plaintiffs ex-husband and (5) rejecting certain medical opinions. Thus, before determining what type of remand is appropriate, I address each additional assignment of error in turn.

         I. Step Two

         Plaintiff argues that the ALJ erred by determining that certain impairments that she alleged were either not medically determinable or not severe. Plaintiff asserts that, in addition to spinal disorder and migraines, the ALJ should have found that she had the following severe impairments: depression and anxiety, degenerative joint disease of the left shoulder, degenerative joint disease of bilateral knees, hyperlipidemia, and left hip bursitis.

         At step two, a claimant must make a threshold showing that he or she has medically determinable impairments that significantly limit his or her ability to perform basic work activities. See Bowen, 482 U.S. at 145; 20 C.F.R. § 404.1520(c). "[T]he step two inquiry is a de minimis screening device to dispose ...


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