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Clara V. R. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

April 9, 2019

CLARA V. R., [1] Plaintiff,


          Jolie A. Russo, United States Magistrate Judge

         Plaintiff Clara R. brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Title II Disability Insurance Benefits. All parties have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision is reversed and this case is remanded for further proceedings.


         In February 2015, plaintiff applied for Title II benefits alleging disability beginning March 10, 2014, due to diabetes, high blood pressure, high cholesterol, chronic pain, and hip, knee, and ankle arthritis. Tr. 157-58, 178. Born in 1950, plaintiff was 63 years old as of the alleged onset date. Tr. 157, 174. Plaintiff's application was denied initially and upon reconsideration. Tr. 93-95, 101-03. On May 18, 2017, a hearing was held before an Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as did a vocational expert. Tr. 44-71. On July 7, 2017, the ALJ issued a decision finding plaintiff not disabled on or before March 31, 2016, the date last insured. Tr. 28-39. After the Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 1-6.


         At step one of the five step sequential evaluation process, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 30. At step two, the ALJ determined the following impairments were medically determinable and severe: “bilateral knee osteoarthritis; ankle osteoarthritis; glaucoma; edema; cellulitis; stasis dermatitis; polyneuropathy; diabetes; obesity; and hypertension.” Id. At step three, the ALJ found plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 31.

         Because plaintiff did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff had the residual functional capacity (“RFC”) to perform less than the full range of sedentary work:

[She] could occasionally lift and carry 10 pounds and frequently lift and carry less than 10 pounds. She could sit up to six hours in an eight-hour day and stand and walk two hours total in an eight-hour day. Further, [plaintiff] could push and pull as much as she can lift and carry. She was limited to occasionally climbing ramps, stairs, ladders, and scaffolds. Additionally, [plaintiff] was limited to frequent stooping. She was also limited to occasionally kneeling, crouching, and crawling. Due to vision difficulties, [plaintiff] was restricted from hazards, such as working at unprotected heights, working around heavy machinery, and operating a motor vehicle, but was able to avoid ordinary hazards in the workplace. Finally, she was limited to no concentrated exposure to extreme cold conditions and no concentrated exposure to machinery causing vibrations.

Tr. 32.

         At step four, the ALJ determined plaintiff was capable of performing her past relevant work as a medical clerk. Tr. 38.


         Plaintiff argues that the ALJ erred by: (1) discrediting her subjective symptom testimony; (2) rejecting the medical opinion of Jane Drummond, M.D.; and (3) failing to find her presumptively disabled at step three under listing 1.02.

         I. Plaintiff's Testimony

         Plaintiff asserts the ALJ erred by discrediting her subjective symptom testimony concerning the extent and severity of her impairments. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted). A general assertion the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).

         Thus, in formulating the RFC, the ALJ is not tasked with “examining an individual's character” or propensity for truthfulness, and instead assesses whether the claimant's subjective symptom statements are consistent with the record as a whole. SSR 16-3p, available at 2016 WL 1119029. If the ALJ's finding regarding the claimant's subjective symptom testimony is “supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).

         At the hearing, plaintiff testified that she was unable to work due to ankle and knee pain. Tr. 49-50. Plaintiff explained her pain had worsened over the years but she tried to limit her consumption of pain medication, even though it helped ease her symptoms, “because I don't want to become addicted.” Tr. 50. She stated that she used a cane to ambulate “[a]ll the time, yeah, indoors and outdoors.” Tr. 51. Although she needed surgery in both ankles, she could not go forward with this treatment because of her weight. Tr. 51-52, 55.

         In terms of activities, plaintiff testified that she spent the majority of the day - “at least eight hours” - in bed, usually with her feet elevated. Tr. 58-60. She acknowledged doing limited chores in short intervals - a load of laundry, washing “a few dishes, ” and basic food preparation. Tr. 60. She could drive but often used Trimet LIFT due to pain. Tr. 48-49. Plaintiff testified further that, on a “good day” and “with the cane, ” she could walk “maybe one block” but she has “more bad days” ...

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