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Jacqueline, L. v. Berryhill

United States District Court, D. Oregon

April 30, 2019

JACQUELINE, L.[1], Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security, Defendant.

          Brian Scott Wayson, Cascadia Disability Law, llc, P.O. Box 12028, Portland, OR 97212. Of Attorneys for Plaintiff.

          Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney, United States Attorney's Office, 1000 SW Third Avenue, Suite 600, Portland, OR 97204; Erin F. Highland, Special Assistant United States Attorney, Office of General Counsel, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of Attorneys for Defendant.

          OPINION AND ORDER

          Michael H. Simon, United States District Judge.

         Jacqueline L. (“Plaintiff) seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying Plaintiffs application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-33. For the following reasons, the Commissioner's decision is reversed and remanded.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on the proper legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means “more than a mere scintilla but less than a preponderance.” Bray v. Comm 'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).

         Where the evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading of the record, and this Court may not substitute its judgment for that of the Commissioner. See Batson v. Comm 'r of Soc. Sec. Admin., 359 F.3d 1190, 1193, 1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the Commissioner on a ground upon which the Commissioner did not rely. Id; see also Bray, 554 F.3d at 1226.

         BACKGROUND

         A. Plaintiff's Application

         Plaintiff was born on August 27, 1966. AR 221. Plaintiff applied for Disability Insurance Benefits on December 29, 2013, AR 126, alleging a disability onset date of August 1, 2009. Id. As of the alleged disability onset date, Plaintiff was 42 years and 11 months old. Id. Plaintiff alleges that she is disabled due to high blood pressure, arthritis, edema in the lower extremities, bipolar disorder, PTSD from childhood trauma, and post-concussive syndrome resulting from a fall in 2009. Id. Disability Determination Services denied Plaintiffs claim on November 25, 2014 and denied her claim upon reconsideration on February 7, 2015. AR 10. Plaintiff appeared at a hearing held before Administrative Law Judge (“ALJ”) Richard Geib on May 18, 2016. AR 75-77. A second hearing was held before the ALJ on February 14, 2017, but Plaintiff did not appear that hearing. The ALJ denied Plaintiffs claims on February 28, 2017. AR 7. On March 13, 2017, Plaintiff requested review of the ALJ's decision by the Appeals Council, which the Appeals Council denied. ECF 8. Plaintiff now seeks review in this Court.

         B. The Sequential 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); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). 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. §§ 404.1520(a)(4)(i), 416.920(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. §§ 404.1520(a)(4)(i), 416.920(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. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments 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). Unless expected to result in death, this impairment must have lasted or 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), 416.920(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? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's “residual functional capacity” (“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), 404.1545(b)-(c), 416.920(e), 416.945(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), 416.920(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 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. 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.” Id; 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), 416.920(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 953-54; Tackett, 180 F.3d at 1099.

         C. The ALJ's Decision

         The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through September 30, 2014. AR 13. At step one, the ALJ found that Plaintiff had not performed substantial gainful activity between the alleged onset date of August 1, 2009 and her last insured date of September 30, 2014. Id. At step two, the ALJ found that Plaintiff had the following severe impairments: bilateral knee osteoarthritis status post total knee replacement, degenerative disc disease, obesity. Id. The ALJ also found that Plaintiff had the following mental impairments: PTSD, other specific anxiety disorder, unspecified neurocognitive disorder, and bipolar disorder. AR 13-14. At step three, the ALJ found that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled one of the impairments listed in the regulations. AR 14-15.

         The ALJ then determined that Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) with the following limitation:

[Plaintiff] could frequently climb ramps and stairs, but never climb ladders, ropes, and scaffolds. She could never kneel. She could occasionally stoop crouch and crawl. She should have avoided even moderate exposure to work hazards. She could perform simple, routine tasks with occasional public and coworker contact (defined as interaction, and not relating to working in proximity to others).

AR 15.

         At step four, the ALJ found that Plaintiff was unable to perform past relevant work as a clinical social worker and a university professor because those are skilled occupations, and Plaintiff was limited to unskilled work during the time period relevant to DIB calculation. AR 25. At step five, the ALJ identified three jobs in the national economy that Plaintiff could perform based on her age, education, work experience, and RFC. AR 25-27. The ALJ concluded that Plaintiff was not disabled between the alleged onset date of August 1, 2009 and the date last insured of September 30, 2014. AR 27.

         DISCUSSION

         Plaintiff argues that the ALJ erred by: (A) improperly rejecting subjective symptom testimony given by Plaintiff; (B) improperly rejecting the treating source opinions of Dr. Reams, Dr. Kuttner, and Dr. Lamprecht; (C) improperly rejecting lay witness source testimony given by Plaintiffs husband, Dr. John G.; and (D) improperly finding that Plaintiff did not have an impairment or a combination of impairments that met or medically equaled one of the impairments listed in the regulations.

         A. Rejection of Plaintiffs Subjective Testimony

         A claimant “may make statements about the intensity, persistence, and limiting effects of his or her symptoms.” SSR 16-3p, 2017 WL 5180304, at *6. The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). The Ninth Circuit has consistently held that the ALJ must provide specific, clear and convincing reasons to reject a claimant's symptom testimony. E.g., Smolen v. Chater, 80 F.3d 1273, 1280 (9th Cir. 1996).

         “There is a two-step process for evaluating a claimant's testimony regarding 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, 80 F.3d at 1282. ‚ÄúSecond, if the claimant meets this first test, and there is no evidence of malingering, ...


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