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Bryan B. v. Commissioner, Social Security Administration

United States District Court, D. Oregon

April 9, 2019

BRYAN B., [1] Plaintiff,
v.
COMMISSIONER, Social Security Administration, Defendant.

          OPINION AND ORDER

          MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE.

         Bryan B. (“Plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c) seeking judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) under the Social Security Act (“Act”). All parties have consented to allow a Magistrate Judge to 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 that follow, the Commissioner's decision is REVERSED and REMANDED to the ALJ for the calculation and award of benefits.

         PROCEDURAL BACKGROUND

         On February 26, 2014 Plaintiff filed an application for DIB alleging disability as of May 13, 2013. Tr. 147-48.[2] The Commissioner denied Plaintiff's application initially, and upon reconsideration, after which Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). Tr. 92-101. Plaintiff and a vocational expert (“VE”) testified at the hearing held on December 13, 2016. Tr. 34-55. On January 26, 2017, the ALJ issued a decision finding Plaintiff was not disabled. Tr. 13-33. On December 6, 2017, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6, 145-46. Plaintiff timely filed this complaint for review of the Commissioner's final decision. ECF No. 1.

         Plaintiff was born on February 19, 1978. Tr. 27. He has a bachelor's degree in chemistry and past relevant work experience as a quality control technician, chemist, and prep cook. Tr. 26, 40. He was thirty-five (35) years old at the time of the alleged onset date of his disability. Tr. 27. He alleged disability due to major depression, post-traumatic stress disorder (“PTSD”), anxiety, autism, and spinal arthritis. Tr. 57.

         STANDARD OF REVIEW

         This 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) (citation and internal quotations omitted). This Court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusions.” 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, [this Court] may not substitute [its] judgment for the ALJ's.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).

         Disability Analysis

         The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 404.1520(a). The five-step sequential inquiry is summarized below, as described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).

         Step One: The Commissioner determines whether the claimant is engaged in substantial gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to evaluate the claimant's case under step two. 20 C.F.R. § 404.1520(b).

         Step Two: The Commissioner determines whether the claimant has one or more severe impairments. A claimant who does not have any such impairment is not disabled. If the claimant has one or more severe impairment(s), the Commissioner proceeds to evaluate the claimant's case under step three. 20 C.F.R. § 404.1520(c).

         Step Three: Disability cannot be based solely on a severe impairment; therefore, the Commissioner next determines whether the claimant's impairment “meets or equals” one of the presumptively disabling impairments listed in the Social Security Administration (“SSA”) regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that meets a listing is presumed disabled under the Act. If the claimant's impairment does not meet or equal an impairment in the listings, the Commissioner's evaluation of the claimant's case proceeds under step four. 20 C.F.R. § 404.1520(d).

         Step Four: The Commissioner determines whether the claimant is able to perform work he or she has done in the past. A claimant who can perform past relevant work is not disabled. If the claimant demonstrates he or she cannot do past relevant work, the Commissioner's evaluation of claimant's case proceeds under step five. 20 C.F.R. §§ 404.1520(e), 404.1520(f).

         Step Five: The Commissioner determines whether the claimant is able to do any other work. A claimant who cannot perform other work is disabled. If the Commissioner finds claimant is able to do other work, the Commissioner must show that a significant number of jobs exist in the national economy that claimant is able to do. The Commissioner may satisfy this burden through the testimony of a vocational expert (“VE”), or by reference to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the Commissioner demonstrates that a significant number of jobs exist in the national economy that the claimant is able to perform, the claimant is not disabled. If the Commissioner does not meet the burden, the claimant is disabled. 20 C.F.R. § 404.1520(g).

         At steps one through four of the sequential inquiry, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098. If the claimant satisfies her burden with respect to the first four steps, the burden then shifts to the Commissioner regarding step five. 20 C.F.R. § 404.1520(g). At step five, the Commissioner's burden is to demonstrate that the claimant can make an adjustment to other work after considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id.

         The ALJ's Findings

         At step one, the ALJ found that Plaintiff met the insured status requirements of the Act through December 31, 2018 and had not engaged in substantial gainful activity since May 13, 2013, the alleged onset date. Tr. 18.

         At step two, the ALJ found that Plaintiff had the following severe impairments: PTSD, autism, major depressive disorder, anxiety disorder, lumbar and cervical degenerative disc disease, peripheral neuropathy, and fibromyalgia. Id.

         At step three, the ALJ found that Plaintiff's impairments or combination of impairments did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 19.

         Prior to step four, the ALJ determined Plaintiff's RFC allowed him to:

perform light exertion work with lifting, carrying, pushing, and pulling 20 pounds occasionally and 10 pounds frequently, standing and/or walking six hours of an eight-hour workday and sitting six hours of an eight-hour workday. He can understand, remember, and carry out simple routine tasks with simple work related decisions. He can respond appropriately to coworkers, supervisors, and the public occasionally. Time off task would be accommodated by normal breaks and absences would be one day a month or less.

Tr. 21.

         At step four, the ALJ found that Plaintiff could not perform his past relevant work as a quality control technician (skilled work performed at very heavy), chemist (skilled work performed at very heavy), or prep cook (unskilled work, but performed at very heavy) given his RFC. Tr. 26.

         At step five, the ALJ concluded that based upon the VE's testimony and considering the Plaintiff's age, education, work experience, and RFC, Plaintiff would be capable of making a successful adjustment to other work that exists in significant numbers in the national economy.

         Tr. 27. Specifically, the ALJ found Plaintiff could perform work as a small products assembler, electronic worker, or electrical accessory assembler. Tr. 27-28. Therefore, the ALJ found Plaintiff was not disabled from May 13, 2013 through the date of the decision. Tr. 28.

         DISCUSSION

         Plaintiff argues that the ALJ erred by improperly rejecting: (1) Plaintiff's testimony; (2) medical opinions;[3] and (3) lay witness statements from Plaintiff's girlfriend.

         1. Plaintiff's Testimony

         Plaintiff argues that the ALJ failed to identify a specific, clear, and convincing basis for rejecting his subjective symptom testimony.

         A. Analytical Framework

         There is a two-step process for evaluating a claimant's testimony about the severity and limiting effect of the claimant's symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

         “Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; [the ALJ] must state which pain testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons 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) (citing Bunnell, 947 F.2d at 345-46).

         Effective March 16, 2016, the Commissioner superseded Social Security Rule 96-7p governing the assessment of a claimant's “credibility” and replaced it with a new rule, SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to “credibility, ” clarifies that “subjective symptom evaluation is not an examination of an individual's character, ” and requires the ALJ to consider all the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *1-2.

         The Commissioner recommends that the ALJ examine “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. at *4. The Commissioner recommends assessing: (1) the claimant's statements made to the Commissioner, medical providers, and others regarding the claimant's location, frequency and duration of symptoms, the impact of the symptoms on daily living activities, factors that precipitate and aggravate symptoms, medications and treatments used, and other methods used to alleviate symptoms; (2) medical source opinions, statements, and medical reports regarding the claimant's history, treatment, responses to treatment, prior work record, efforts to work, daily activities, and other information concerning the intensity, ...


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