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Kelsi R. v. Berryhill

United States District Court, D. Oregon

May 8, 2019

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

          OPINION AND ORDER

          MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE

         Plaintiff Kelsi R. brings this action for judicial review of the Commissioner of Social Security's (“Commissioner's”) decision denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“the Act”). This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c).

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff applied for SSI on August 13, 2013, alleging disability beginning January 23, 2009. Tr. 20.[2] The claim was denied initially and upon reconsideration. Id. Plaintiff timely requested a hearing before an ALJ and appeared before the Honorable Katherine Weatherly on July 14, 2016. Tr. 20, 43-61. ALJ Weatherly denied Plaintiff's application in a written decision dated September 15, 2016. Tr. 20-30. Plaintiff sought review from the Appeals Council, which was denied, rendering the ALJ's decision the final decision of the Commissioner. Plaintiff now seeks judicial review of the decision.

         STANDARD OF REVIEW

         A reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence is ‘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.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, a court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).

         DISCUSSION

         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. See20 C.F.R. §§ 404.1520 & 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. Id. If the claimant satisfies her burden with respect to the first four steps, the burden shifts to the Commissioner at step five. Id.; see also Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). At step five, the Commissioner must show that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v) & 416.920(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is disabled. Id. 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. Id.; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).

         In the present case, the ALJ found that Plaintiff was not disabled. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the application date. Tr. 22. At step two, the ALJ found Plaintiff had the following severe impairments: “migraine headaches, idiopathic scoliosis, mild intellectual disability, ADHD by history, anxiety disorder NOS/mild PTSD, and depressive disorder NOS.” Id. At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or equaled the requirements of a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 23.

         Prior to step four, the ALJ determined that Plaintiff's RFC allowed her to perform light work as defined in 20 C.F.R. 404.1567(b), with the following limitations:

she needs to avoid all exposure to workplace hazards, such as heights and heavy machinery. The claimant can understand, remember, and carry out simple, routine, and repetitive tasks with no more than occasional contact with the general public.

Tr. 25. At step four, the ALJ found that Plaintiff had no past relevant work. Tr. 28. At step five, the ALJ found that, based on Plaintiff's age, education, work experience and RFC, jobs existed in significant numbers in the national economy such that Plaintiff could sustain employment despite her impairments. Tr. 29-30. Specifically, the ALJ found Plaintiff could perform the representative occupations of: hand packager, Dictionary of Occupational Titles (“DOT”) #920.587-018; laundry laborer, DOT #361.687-018; and clothes marker, DOT #369.687-026. Tr. 30. As a result, the ALJ concluded that Plaintiff was not disabled within the meaning of the Act. Id.

         Plaintiff contends that the ALJ erred by: (1) erroneously discounting Plaintiff's subjective symptom testimony; (2) improperly rejecting the medical opinion evidence of Dr. South and Dr. Ward; and (3) failing to adequately account for Plaintiff's social limitations in the RFC.

         I. Subjective Symptom Testimony

         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). 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).

         Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”) 96-7p, governing the assessment of a claimant's “credibility, ” and replaced it with SSR 16-3p. See SSR 16-3p, available at2016 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 of the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must 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.

         A. Activities of Daily Living

         Activities of daily living can form the basis for an ALJ to discount a claimant's testimony in two ways: (1) as evidence a claimant can work if the activities “meet the threshold for transferable work skills”; or (2) where the activities “contradict [a claimant's] testimony.” Orn v. Astrue,495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ relied on the former, finding that Plaintiff's ability to care for her two children indicates that she would be able to sustain work activities on a regular basis. Tr. 26. “[D]aily activities may be grounds for an adverse credibility finding ‘if a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting.'” Orn, 495 F.3d at 639 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). The ALJ, however, did not identify how any of Plaintiff's activities transferred to gainful work; instead, the ALJ offered a boilerplate statement that Plaintiff's activities indicated she was able to work. The ALJ's rationale is not clear and ...


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