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Elizabeth H. v. Berryhill

United States District Court, D. Oregon, Eugene Division

April 15, 2019

ELIZABETH H., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

          MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Elizabeth H. seeks judicial review under 42 U.S.C. § 405(g) and § 1383(c)(3) of the final decision of the Commissioner of the Social Security Administration denying her application for Disability Insurance Benefits ("DIB"). For the reasons below, the Commissioner's decision should be REVERSED and REMANDED for further proceedings.

         BACKGROUND[2]

         On August 22, 2013, Plaintiff filed an application for DIB, alleging disability beginning March 13, 2013. Tr. 21. The claim was denied initially on February 6, 2014, and upon reconsideration on July 25, 2014. Id. Thereafter, Plaintiff filed a written request for a hearing on September 10, 2014. Id. Plaintiff appeared and testified at a hearing before Administrative Law Judge ("ALJ") Tom L. Morris on July 1, 2016, in Kennewick, Washington, and was represented by Casey Cox, an attorney. Tr. 35-77. Daniel R. McKinney Sr., a vocational expert ("VE") also testified at the hearing. Id. On August 26, 2016, the ALJ issued a decision denying Plaintiffs claim for benefits. Tr. 21-30. Plaintiff requested review of the hearing decision, which was denied by the Appeals Council on June 10, 2016. Tr. 1-7. Accordingly, the ALJ's decision became the final decision of the agency from which Plaintiff seeks judicial review. See 20 C.F.R. § 422.210(a).

         Plaintiff was born in 1970 and was 42 years old on the alleged onset date. Tr. 79. She has a high school education in addition to one year of college. Tr. 29, 188. Plaintiff alleged disability due to degenerative disk disease, carpal tunnel syndrome, and bad knees. Tr. 79.

         Plaintiff has been diagnosed with asthma, depression, ADHD, carpal tunnel syndrome, radicular low back pain, osteoarthritis, severe gastroesophageal reflux disease ("GERD"), degenerative joint disease, lumbosacral neuritis, migraine headaches, cervical radiculopathy, chronic low back pain with radiculopathy, fatigue, obesity, and irritable bowel syndrome ("IBS"). Tr. 83, 452, 517, 536, 546, 668, 833, 874, 997, 1059, 1187. In 2013 and 2014, Plaintiff underwent carpal tunnel release surgeries. Tr. 326, 364. Despite the surgeries, Plaintiff continued to suffer from pain due to carpal tunnel syndrome and continued to experience problems with her fingers locking. Tr. 266, 344, 647, 662, 1188.

         In 2015, Plaintiff underwent right knee surgery. Tr. 553. However, several months later, MRI imaging revealed osteoarthritis in Plaintiffs left knee. Tr. 848-49. Subsequent imaging revealed osteoarthritis in the right knee as well. Tr. 1115. Plaintiff was treated with pain medications as well Cortisone and Lidocaine injections to her knees. Tr. 551, 1172, 1184-85. Plaintiff also suffered from back pain throughout the relevant period. Her back pain was treated with a cocktail of strong pain medications and muscle relaxers, as well as Toradol and Phenergan injections. Tr. 209, 438, 443, 447, 449, 452, 454, 456, 467, 469, 574, 619, 647, 658, 662, 680, 683-84, 725, 745, 755, 761, 1059, 1092.

         DISABILITY ANALYSIS

         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). "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). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing "substantial gainful activity"? 20 C.F.R. §§ 404.l520(a)(4)(i); 4l6.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R.

§§ 404.l520(a)(4)(i); 4l6.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.

2. Is the claimant's impairment "severe" under the Commissioner's regulations? 20 C.F.R. §§ 404.152O(a)(4)(ii); 4l6.920(a)(4)(ii). Unless expected to result in death, an impairment is "severe" if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or must be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§404.1509; 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 4l6.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Listings")? If so, then the claimant is disabled. 20 C.F.R. §§ 404.l520(a)(4)(iii); 4l6.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis proceeds to the "residual functional capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's RFC. This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.l545(b)-(c); 416.920(e); 4l6.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. § § 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 4l6.920(a)(4)(v); 404.1560(c); 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954-55 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 954. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that 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) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§404.1520(a)(4)(v); 4l6.92O(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55; Tackett, 180 F.3d at 1099.

         THE ALJ'S FINDINGS

         Applying the five-step analysis, the ALJ found:

         1. Plaintiff did not engage in substantial gainful activity since March 13, 2013, the alleged onset date. (20 C.F.R. §§ 404.1571 et seq.). Tr. 23.

         2. Plaintiff has the following severe medically determinable impairments: degenerative joint disease, dysfunction-major joints, disorders of muscle, ligament and fascia, asthma, carpal tunnel syndrome, and obesity. (20 C.F.R. § 404.1520(c)). Id.

         3. Plaintiff does not have an impairment or a combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. (20 C.F.R §§ 404.1520(d), 404.1525 & 404.1526). Id.

a. Plaintiff has the RFC to perform light work as defined in 20 C.F.R. 404.1567(b) but with the following limitations: Plaintiff can stand and/or walk for a total of about four hours in an eight-hour workday, sit for a total of six hours in an eight-hour workday, frequently climb ramps and stairs, frequently stoop and crouch, occasionally climb ladders, ropes, scaffolds, kneel, and crawl, occasionally finger with the right hand, avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation, would be off task under 10% of the time during an eight-hour workday, would be unable to perform at a production rate pace but could perform goal oriented work. Tr. 24.

         4. Plaintiff could perform past relevant work as a cashier. (20 C.F.R. § 404.1565). Tr. 27.

         5. Considering Plaintiff s age, education, work experience, and residual functional capacity, there are additional jobs that exist in significant numbers in the national economy that Plaintiff can perform (20 CFR §§ 404.1569 and 404.1569(a)), including: bottle packer and garment sorter. (SSR 00-4p). Tr. 29.

         Consequently, the ALJ concluded Plaintiff was not disabled as defined by the Social Security Act. (20 C.F.R. § 404.1520(g)). Tr. 30.

         STANDARD ...


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