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Suzanne E. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

April 9, 2019

SUZANNE E.[1], Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.

          Mark A. Manning HARDER WELLS BARON & MANNING, PC Attorney for Plaintiff

          Renata Gowie U.S. ATTORNEY'S OFFICE - DISTRICT OF OREGON Michael S. Howard SOCIAL SECURITY ADMINISTRATION Office of the General Counsel Attorneys for Defendant

          OPINION & ORDER

          THOMAS M. COFFIN, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Suzanne E. brings this action seeking judicial review of the Commissioner's final decision to deny Plaintiff's claim for social security disability insurance benefits (DIB). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). Because the Administrative Law Judge (“ALJ”) failed to provide clear and convincing reasons for discounting Plaintiff's testimony, the Court reverses and remands the decision for further proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB on December 2, 2014, alleging an onset date of October 2, 2014. Tr. 60. Her application was denied initially and on reconsideration. Tr. 60, 91. On December 20, 2016, Plaintiff appeared, with counsel, for a hearing before an ALJ. Tr. 40-59. On February 17, 2017, the ALJ found Plaintiff not disabled. Tr. 29. The Appeals Council denied review. Tr. 1-6.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on fibromyalgia, gastrointestinal bleeding, inflammatory bowel disease, thyroid disorder, asthma, anxiety disorder, depression, hand/wrist problem, myalgia, and myositis. Tr. 62. At the time of the hearing, she was 49 years old. Tr. 73 (stating date of birth). She obtained a GED. Tr. 44. Plaintiff has past work experience as a dietary aide, bartender, pizza deliverer, and shift manager. Tr 45-47.

         SEQUENTIAL DISABILITY EVALUATION

         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), 1382c(a)(3)(A).

         Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In 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). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether plaintiff's impairments, singly or in combination, meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (“RFC”) to perform “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. Tr. 20. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: obesity, fibromyalgia, “degenerative joint disease knee, ” “degenerative disc disease spine, ” and depression; however, the impairments or combination of impairments did not meet or medically equal the severity of one of the listed impairments. Tr. 20-21.

         At step four, the ALJ concluded that before May 1, 2016, Plaintiff had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b), except “[Plaintiff] can occasionally climb, stoop, crouch, kneel, and crawl. She should avoid concentrated exposure to noxious fumes and odors, and workplace hazards. She can perform simple, entry level work in a routine environment involving no interaction with the public.” Tr. 23.

         With this RFC, the ALJ determined that Plaintiff is unable to perform any of her past relevant work. Tr. 27. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the national economy such as light janitor/housekeeping and assembler. Tr. 28. Thus, the ALJ determined that Plaintiff is not disabled.

         STANDARD OF REVIEW

         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings “are based on legal error or are not supported by substantial evidence in the record as a whole.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). “Substantial evidence means 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.” Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). “Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed.” Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (“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”) (internal quotation marks omitted).

         DISCUSSION

         Plaintiff argues the ALJ erred by (1) relying on the “stale” opinion of non-examining state agency consultant Dr. Davenport when evaluating Plaintiff's fibromyalgia, and (2) improperly discounting Plaintiff's testimony. The Court finds that the ALJ reasonably relied on Dr. Davenport's opinion. However, because the ALJ erred in his consideration of Plaintiff's testimony, the Court reverses the ALJ's decision and remands the case for further proceedings.

         I. The ALJ reasonably relied on Dr. ...


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