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Sandra P. v. Berryhill

United States District Court, D. Oregon

April 8, 2019

SANDRA P., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Sandra P. (“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 pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, the Court recommends that the district judge affirm the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence.


         Plaintiff was born in May 1971, making her forty-one years old on March 1, 2013, the alleged disability onset date. (Tr. 30, 62, 72.) Plaintiff has a tenth or eleventh grade education and past relevant work as a cashier checker. (Tr. 30, 50, 55-57.)[2] In her applications for Social Security benefits, Plaintiff alleges disability due to anxiety, depression, and leg and feet pain. (Tr. 62, 72.)

         On February 12, 2013, about three weeks before the alleged disability onset date, Plaintiff visited the emergency room, complaining of abdominal pain, nausea, dry heaves, and bloating. Dr. David Blanchard (“Dr. Blanchard”) noted that Plaintiff “has had extensive problems with her abdomen and 4 previous surgeries for hernia revision and a cholecystectomy [i.e., gall bladder removal].” (Tr. 258.) After examining Plaintiff, Dr. Blanchard declined to order another computed tomography (“CT”) scan:

This is a 41-year-old woman with mild to moderate abdominal discomfort and some evidence on x-ray of constipation. She has normal vital signs without any indication of hemorrhage or significant infection. . . . She has had somewhere in the neighborhood of 15 CT scans of her abdomen or chest in the past 5 years and at this time I think that doing further CT scans on her without indication of a significant abnormality would be doing her great disservice. . . .

         (Tr. 259; see also Tr. 296, indicating that Dr. Daniel Douglas (“Dr. Douglas”), an emergency room physician, stated on September 28, 2013, that he was “certainly concerned” that Plaintiff “has had 14 CT scans of the abdomen and pelvis and chest since 2010 at [his] facility” and that he informed Plaintiff that he was “in need of some supporting evidence of either a [pulmonary embolism] or an acute abdominal process that would warrant further radiation exposure with a CT scan”).

         On March 18, 2013, Plaintiff visited the emergency room, complaining of worsening leg pain. Plaintiff reported that she was working at Costco that day and her leg pain “became worse.” (Tr. 307.) Plaintiff added that her leg pain waxes and wanes and feels like a “Charlie horse.” (Tr. 307.) Dr. Alejandro Kitzis (“Dr. Kitzis”) diagnosed Plaintiff with myalgia. Dr. Kitzis also noted that he ruled out deep vein thrombosis, Plaintiff engages in heavy lifting at work, Plaintiff exhibited mild leg tenderness, he encouraged Plaintiff to “use support stockings at work, ” and he did not “suspect spinal cord, cauda equina or other potential etiologies.” (Tr. 307-08.)

         On August 21, 2013, a magnetic resonance imaging (“MRI”) of Plaintiff's lumbar spine was “[n]ormal.” (Tr. 374.) That same day, an MRI of Plaintiff's cervical spine revealed “[a]ge-appropriate” findings, as well as “[b]ilateral level II adenopathy” that was “likely reactive.”[3](Tr. 375.)

         In an Electrodiagnostic Laboratory Report dated August 27, 2013, Dr. Steven Day (“Dr. Day”) noted that Plaintiff complained of “leg burning pain and tingling in addition to leg weakness, cramps, and spasms since March 2013, ” and numbness and tingling in her hands and arms “[m]ore recently.” (Tr. 371.) Dr. Day stated that electrodiagnostic examinations of Plaintiff's right “upper and lower extremities reveal no diagnostic evidence of a generalized myopathy, large fiber peripheral neuropathy or motor radiculopathy effecting either extremity.” (Tr. 371.)

         On December 13, 2013, an ultrasound of Plaintiff's abdomen revealed “[p]robable edematous fat in a small midline epigastric hernia” and “[n]o loculations, fluid collections or bowel identified.” (Tr. 368.) That same day, a CT scan of Plaintiff's abdomen revealed the following: “Inflamed fat with a small epigastric hernia. No. associated bowel. No. acute intraabdominal or pelvic abnormality is identified. Clinical correlation may prove useful.” (Tr. 369.)

         On December 14, 2013, Dr. Patrick O'Leary (“Dr. O'Leary”), a surgeon at Tualatin Community Hospital, repaired Plaintiff's “[r]ecurrent incarcerated incisional hernia.” (Tr. 382-83.)

         On January 21, 2014, Dr. Michael Hicken (“Dr. Hicken”), a treating physician, referred Plaintiff to Dr. Harry Reahl (“Dr. Reahl”), a neurologist, for a follow-up visit. Dr. Reahl noted that Plaintiff previously complained of paresthesia, muscle weakness, joint pain, and sleepiness. Dr. Reahl stated that: (1) Plaintiff's laboratory results “did not indicate a cause of the sensory changes”; (2) electromyography (“EMG”) and nerve conduction velocity (“NCV”) tests were “normal”; (3) the MRI of the cervical spine was “unremarkable, showing only normal aging”; (4) Plaintiff's work-up “really has cleared her of any neurologic cause for her symptoms”; (5) Plaintiff's reports of “mainly burning in all limbs” is “not typical for neuropathy”; (6) Plaintiff was “back to work” following her hernia repair; (7) a sleep study is “the most important test to find out why [Plaintiff] is so sleepy”; and (8) a consultation with a rheumatologist could also “be helpful.” (Tr. 385-86.) In addition, Dr. Reahl stated that his exam continued “to be normal, with only effort dependent objective findings”; Plaintiff did not follow up on Dr. Reahl's sleep study recommendation because of “issues with child care”; he “urge[d]” Plaintiff to participate in a sleep study and to make the necessary childcare arrangements; he previously “recommended [work] accommodations [for Plaintiff] based on the concern of spinal stenosis, ” but “imaging did not reveal spinal stenosis”; and “[n]eurologically, [Plaintiff] can work unrestricted.” (Tr. 391-92.)

         On September 8, 2014, Plaintiff visited her primary care physician, Dr. Hicken. Plaintiff informed Dr. Hicken that she “would like [a] disability permit since she cannot walk.” (Tr. 517.) Dr. Hicken prescribed a nerve pain medication and ordered x-rays of Plaintiff's right leg. (Tr. 517-18.)

         On December 2, 2014, Plaintiff was referred to Dr. Kim Webster (“Dr. Webster”) for a comprehensive neurology evaluation. (Tr. 506-13.) Dr. Webster noted that Plaintiff's chief complaints were leg and hand weakness and abnormal sensations in her arms and legs, and that Dr. Hicken's chart notes stated that Plaintiff suffers from muscle weakness, depression with anxiety, and gastroesophageal reflux disease (“GERD”), but there is “really nothing in the objective findings that indicates or verifies that she has weakness.” (Tr. 506-07.) Dr. Webster added that there “were multiple instances of poor effort and inconsistencies”; Plaintiff exhibited “5/5 strength throughout, although she exhibited extraordinarily poor effort, especially with regards to the upper extremities”; and Dr. Webster's “impression was of very poor effort.” (Tr. 509, 511.)

         Ultimately, Dr. Webster's diagnoses were: (1) subjective reports of leg weakness, but in Dr. Webster's opinion, Plaintiff “has 5/5 strength throughout”; (2) subjective reports of abnormal sensations in the arms and legs with “a neurologic examination that does not conform to any known pathways that [Dr. Webster] is aware of”; (3) indigestion; and (4) depression. (Tr. 512.) In terms of a functional assessment/medical source statement, Dr. Webster made the following observations:

There is no consistent objective evidence to limit standing, walking, sitting, lifting or carrying, both occasionally and frequently.
There is no evidence for the need of an assistive device.
There is no objective evidence for postural, manipulative, visual, communicative or environmental limitations.
[Plaintiff's] stated functional impairments are not supported by objective findings.

         (Tr. 512.)

         On December 17, 2014, Dr. Scott Kaper (“Dr. Kaper”), a non-examining state agency psychologist, completed a psychiatric review technique assessment. (Tr. 67-68.) Dr. Kaper determined that Plaintiff's mental impairments failed to meet or equal listing 12.04 (affective disorders).

         On March 17, 2015, Dr. Joshua Boyd (“Dr. Boyd”), a non-examining state agency psychologist, completed a second psychiatric review technique assessment. (Tr. 77-78.) Like Dr. Kaper, Dr. Boyd determined that Plaintiff's mental impairments failed to meet or equal listing 12.04.

         On April 26, 2016, Plaintiff established care with Anna Miller (“Miller”), a licensed marriage and family therapist. Plaintiff reported that “she was struggling with her oldest son, boyfriend, and life in general, ” that she had “been struggling with a lot of physical problems and her doctor continues to ask if she has been seeing anyone for counseling, ” that she had “been told for years she needed a counselor, ” and that she cannot work due to physical and mental issues. (Tr. 673.) Plaintiff attributed “much of her stress” to her fifteen-year-old son's manipulative and “mean/conniving” behavior, and detailed an “extensive history of trauma, neglect, and abuse.” (Tr. 673.)

         In a progress note dated July 6, 2016, Miller observed that Plaintiff's appearance, orientation, behavior, affect, mood, thought process, thought content, perception, judgment, insight, appetite, and sleep were within normal limits. Miller also noted that, during the therapy session, Plaintiff processed “how her week and vacation went with her kids and friends” and discussed the fact that a friend failed to pay her back money that she needed “to pay [the] bills.” (Tr. 708-09.)

         In a progress note dated September 8, 2016, Miller noted that Plaintiff's appearance, orientation, behavior, affect, mood, thought process, thought content, perception, judgment, insight, appetite, and sleep were within normal limits, and she did not report suicidal or homicidal ideation. Miller's diagnostic impression was posttraumatic stress disorder (“PTSD”). (Tr. 680; see alsoTr. 738, stating that on April 28, 2016, Miller and Plaintiff discussed an initial mental health assessment and “a possible diagnosis of PTSD and reviewed what it would look like”).

         On October 12, 2016, Plaintiff appeared and testified at a hearing before an Administrative Law Judge (“ALJ”). (Tr. 40-60.) Plaintiff testified that she cannot work because she had five abdominal surgeries and suffers from “horrific” pain “due to scar tissue and the corroded pins” in her abdomen, and because she suffers from burning and stabbing pain in her feet and legs. (Tr. 41-42.) Plaintiff rated her pain level as “usually around an eight to a nine” on a ten-point scale. (Tr. 42.) Plaintiff added that she can only sit comfortably for ten to fifteen minutes at a time; she spends about two hours a day on her feet; she spends eighty to eighty-five percent of her day resting; she lives with her two boys, ages twelve and fifteen; she suffers from about two or three panic attacks per week; she has a hard time performing household chores and, at times, needs assistance from her sons because she “drop[s] stuff” and “break[s] stuff” like “gallons of milk”; she is not sure why her grip strength is poor; she uses the generic form of Percocet to treat her chronic pain; she worked at Costco for seventeen years and stopped working in or around late 2013; and she cannot perform a job where she “could sit for substantially the whole day” because “it's extremely painful to sit.” (Tr. 43-48.) In addition, Plaintiff testified that she dropped out of school in the tenth or eleventh grade; she cared for her husband before he passed away in 2012; her fifteen-year-old son needs “constant . . . structure” because he suffers from PTSD, attention deficit hyperactivity disorder (“ADHD”), and a defiance disorder; her twelve-year-old son also suffers from ADHD and has an individualized education program at school; and her sons are able to dress themselves and “do chores around the house.” (Tr. 44, 49-54.)

         The ALJ posed several 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 light work, subject to these limitations: (1) Plaintiff can “occasionally climb, stoop, crouch, kneel, crawl, and balance”; (2) Plaintiff “should avoid unprotected heights and workplace hazards”; (3) Plaintiff “could perform entry level work in a routine environment”; and (4) Plaintiff “could have occasional interaction with the public and coworkers.” (Tr. 57-58.) The VE testified that the hypothetical worker could not perform Plaintiff's past work, but she could be employed as an office cleaner and office helper.

         Responding to the ALJ's second hypothetical, the VE confirmed that the hypothetical worker could not sustain competitive employment if she “needed extra breaks of at least two to three hours out of each eight-hour workday.” (Tr. 58-59.) Responding to Plaintiff's counsel's follow-up questions, the VE confirmed that the hypothetical worker could not sustain competitive employment if she was off task for twenty percent of the time, was absent from work twice a month, or could only stand and walk for two hours and sit for about four hours. (Tr. 59.)

         In a written decision issued on November 16, 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.



         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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