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Robin P. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Eugene Division

April 4, 2019

ROBIN P., Plaintiff,
v.
COMMISSIONER, Social Security Administration, Defendant.

          FINDINGS AND RECOMMENDATION

          PATRICIA SULLIVAN United States Magistrate Judge.

         Plaintiff Robin P.[1] 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”) denying plaintiff Disability Insurance Benefits (“DIB”) under Title II of the Act. 42 U.S.C. § 401 et seq. For the following reasons, the Court should REVERSE and REMAND this action for further administrative proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff protectively filed for DIB on August 9, 2013, alleging a disability onset date of January 1, 2012, later amended to July 23, 2013. Tr. 75, 188-89.[2] Her claim was denied initially on December 13, 2103, and on reconsideration on June 20, 2014. Tr. 124-41. On July 27, 2014, plaintiff requested a hearing, which was held on May 17, 2016, in Eugene, Oregon, before Administrative Law Judge (“ALJ”) John Michaelsen. Tr. 148-49, 70-113. Plaintiff testified, represented by counsel; a vocational expert (“VE”), Jaye Stutz, also testified. Id. On June 10, 2016, the ALJ issued a decision finding plaintiff not disabled under the Act and denying benefits. Tr. 46-63. Plaintiff requested Appeals Council review, which was denied October 19, 2017. Tr. 1-6. Plaintiff then sought review before this Court.

         FACTUAL BACKGROUND

         Plaintiff was born in 1964. Tr. 75, 18. Tr. 159, 246. She has completed high school and some college coursework. Tr. 107. Plaintiff worked for fifteen years as a human resource assistant at a retail store. Tr. 107-08, 319. Plaintiff has been diagnosed with degenerative disc disease, osteoarthritis, anxiety, and depression. Tr. 119-21, 334, 346, 349, 366, 399, 418, 477. She lives with her partner, and she has a son who does not live with them. Tr. 284, 401.

         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 amended alleged onset date. Tr. 51. At step two, the ALJ found that plaintiff had the severe impairments of degenerative disc disease and osteoarthritis. 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. 53. The ALJ then found that plaintiff had the RFC to perform less than sedentary work with various physical restrictions. Tr. 53. In doing so, the ALJ considered the opinions of treating physician Peter Kosek, M.D., and took those opinions into account in formulating the RFC. Tr. 56. The ALJ passed over, without comment, the opinions of physician assistant Frank Hillman. The ALJ found plaintiff's statements regarding the intensity, persistence, and limiting effects of her symptoms not entirely consistent with the medical evidence and record. The ALJ did not consider a Work Activity Questionnaire that plaintiff's former employer completed. The ALJ afforded “no more than limited weight” to the statements of plaintiff's partner, Robert R., and sister, Theresa R. Tr. 54-55. At step four, the ALJ found plaintiff capable of performing past relevant work as a human resources assistant. Tr. 57. The ALJ thus found plaintiff not disabled under the Act and not entitled to benefits. Id.

         ANALYSIS

         Plaintiff asserts that the ALJ made four errors: (1) he failed to provide sufficient, legitimate bases to reject Dr. Kosek's opinions; (2) he failed to provide legally sufficient bases to reject P.A. Hillman's opinions; (3) he failed to provide specific, clear and convincing reasons to reject plaintiff's subjective symptom testimony; and (4) he failed to provide legally sufficient bases to reject the lay witness testimony. The Court should find that the ALJ erred in evaluating plaintiff's subjective symptom testimony and in discounting the lay witness opinions of Robert R. and Theresa R. The Court should find that the ALJ did not otherwise err.

         I. Treating Medical Source Opinions

         Dr. Kosek was plaintiff's treating physician in 2014 and 2015. In office visit notes of August 12, 2014, Dr. Kosek opined that “[d]espite high dose fentanyl, [plaintiff] remain[ns] disabled.” Tr. 532. In office visit notes of November 4, 2014, he also wrote that plaintiff “is disable[d] by her hip and flank pain.” Tr. 527. On January 28, 2015, he wrote: “I do not do disability determination evaluations, but if this is needed she can be referred for this. I [e]xplained to her that I can confirm that she has pain appropriate to her radiographic findings, and that is it limi[t]ing her activity despite her current therapy.” Tr. 521. After commenting on Dr. Kosek's records, the ALJ wrote, “After review of the full record at the hearing level, the undersigned has limited the claimant to sedentary residual functional capacity with additional postural limitations taking into consideration her history of lumbar degenerative disc disease status post multiple surgical interventions.” Tr. 56. Plaintiff argues that the ALJ erred in failing to properly weigh Dr. Kosek's statements.

         The weight given to the opinion of a physician depends on whether the physician is a treating, examining, or nonexamining physician. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing 20 C.F.R. § 404.1527). If a treating or examining physician's opinion is not contradicted by another physician, the ALJ may only reject it for clear and convincing reasons. Id. (treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006) (examining physician). Even if it is contradicted by another physician, the ALJ may not reject the opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. “An ALJ can satisfy the ‘substantial evidence' requirement by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quotation omitted). “The ...


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