United States District Court, D. Oregon
OPINION AND ORDER
AIKEN, UNITED STATES DISTRICT JUDGE
Rhea W. brings this action pursuant to the Social Security
Act ("Act"), 42 U.S.C § 405(g), to obtain
judicial review of a final decision of the Commissioner of
Social Security ("Commissioner"). The Commissioner
denied plaintiffs application for Disability Insurance
Benefits ("DIB") and Supplemental Security Income
("SSI") or the reasons set forth below, the
Commissioner's decision is REVERSED and REMANDED for
immediate award of benefits.
applied for DIB on August 16, 2013, and she filed for SSI on
August 12, 2014. Plaintiff alleged disability beginning
August 18, 2012, due to a history of cardiac catheterization
and triple bypass surgery, diabetes mellitus, migraine
headaches, congenital hearing loss, and depression.
Plaintiffs applications were denied initially and upon
reconsideration, with the reconsideration denial dated July
29, 2014. Plaintiff appeared before an Administrative Law
Judge ("ALJ") at a hearing held June 23, 2016. At
the hearing, plaintiff testified and was represented by
counsel. A medical expert and a vocational expert also
testified. On September 20, 2016, the ALJ denied plaintiffs
DIB and SSI applications, finding that she was not disabled
on September 23, 2016. After the Appeals Council denied
review, plaintiff filed the present complaint before this
Court must affirm the Commissioner's decision if it is
based upon proper legal standards and the findings are
supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Berry v. Astrue, 622 F.3d 1228, 1231
(9th Cir. 2010). "Substantial evidence" means
"more than a mere scintilla, but less than a
preponderance." Bray v. Comm 'r Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.
1995) (quotation marks omitted)). 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).
court must weigh "both the evidence that supports and
the evidence that detracts from the ALJ's
conclusion." Mayes v. Massanari, 279 F.3d 453,
459 (9th Cir. 2001). 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 the
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 (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)). However, a reviewing court may not affirm
the Commissioner on a ground upon which the Commissioner did
not rely. Id.; see also Bray, 554 F.3d at 1225-26
(citing SEC v. Cheney Corp., 332 U.S. 194, 196
initial burden of proof rests upon plaintiff to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, plaintiff must
demonstrate an "inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected . . . to
last for a continuous period of not less than 12
months[.]" 42 U.S.C. § 423(d)(1)(A).
Commissioner has established a five-step sequential process
for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
404.1520(a)(4); 416.920(a)(4). At step one, the ALJ found
that plaintiff had not engaged in "substantial gainful
activity" since the alleged disability onset date. Tr.
21; 20 C.F.R. §§ 404.1520(a)(4)(i), (b);
416.920(a)(4)(i), (b). At step two, the ALJ found that
plaintiff had the following severe impairment as of the
alleged onset Dated: congestive heart failure with a history
of cardiac catheterization and triple bypass surgery,
diabetes mellitus, migraines headaches, congenital hearing
loss, and depression. Tr. 21; 20 C.F.R. §§
404.1520(a)(4)(ii), (c); 416.920(a)(4)(ii), (c). At step
three, the ALJ determined that plaintiffs impairments,
whether considered singly or in combination, did not meet or
equal "one of the listed impairments" that the
Commissioner acknowledges are so severe as to preclude
substantial gainful activity. Tr. 22; 20 C.FR. §§
404.1520(a)(4)(iii), (d); 416.920(a)(4)(iii), (d). The ALJ
then assessed plaintiffs residual functional capacity
("RFC"). 20 C.F.R. § 404.1520(e); 416.920(e).
The ALJ found that plaintiff had
the residual function capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except the
following: she is unable to climb ladders, ropes, and
scaffolds. She is able to tolerate a moderately noisy work
environment. Mentally, due to pain, side effects of
medication and mental impairments, the claimant can
understand, remember, and carry out only short and simple
instructions. She can only make simple work-related judgments
and decision. Socially, she can maintain no more than
occasional interactive contact with the public. She is able
to maintain frequent proximity contact with coworkers or
At step four, the ALJ concluded that plaintiff could not
perform her past relevant work as a receptionist. Tr. 30; 20
C.F.R. §§ 404.1520(a)(4)(iv), (f). The ALJ
continued to step five and found that plaintiff could perform
work existing in the national economy; specifically,
plaintiff could work as mail sorter, price marker, and
electronics worker. Tr. 31; 20 C.F.R. §§
appeal plaintiff contends that the ALJ erred by (1) failing
to provide specific, clear, and convincing reasons supported
by substantial evidence to discredit plaintiffs subjective
symptom testimony, (2) discounting the medical opinion of Dr.
Seligman, (3) rejecting the opinions of Theo Orchard, PA and
Jeremy Springer, LCSW, and (4) failing to incorporate all
medical findings regarding her shoulder impairment into her
RCF. I address each argument in turn.
Plaintiffs Subjective Symptom Complaints
with plaintiffs argument that the ALJ failed to provide
legally sufficient reasons to reject her testimony about the
extent of her symptoms and functional limitations. When a
claimant's medically documented impairments reasonably
could 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
makes such a determination amidst a two-step process that,
first, evaluates the existence of an underlying medically
determinable physical or mental impairment that could
reasonably be expected to produce the symptoms and, second,
addresses the intensity, persistence, and limiting effects of
the alleged symptoms based on an examination of the entire
record. 20 C.F.R §§ 404.1529(a), (c)(1);
416.929(a), (c)(1). Within this analysis, the ALJ has
discretion to dismiss portions of the plaintiffs testimony so
long as the adjudicator provides "clear and convincing
reasons" for doing so. Brown-Hunter v. Colvin,
806 F.3d 487, 493 (9th Cir. 2015) (quoting Lingenfelter
v. Astrue, 504 F.3d 1029, 1036 (9th Cir. 2007)). A
general assertion that the claimant is not credible is
insufficient; the ALJ must "state which . . . testimony
is not credible and what evidence suggests that the
complaints are not credible." Dodrill v.
Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
the reasons proffered by the ALJ for discrediting a
claimant's testimony must be "sufficiently specific
to permit the reviewing court to conclude that the ALJ did
not arbitrarily discredit the [testimony]." Orteza
v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). If the
"ALJ's credibility finding is supported by
substantial evidence in the record, [the court] may not
engage in second-guessing." Thomas v.
Barnhardt, 278 F.3d 947, 959 (9th Cir. 2002).
discussed several reasons that she found plaintiffs
statements concerning the intensity, persistence and limiting
effects of her symptoms not entirely consistent with the
medical evidence and other evidence in the record. See Tr.
the ALJ observed that the medical evidence did not support
plaintiffs reports of disabling migraines. Tr. 26, 30. At the
hearing, plaintiff testified that she had to miss work on
several occasions due to the severity of her migraines. Tr.
52-53. Plaintiff further testified that when she first
stopped working her headaches diminished, but "now
they're back and it's anywhere from two to five days
a week . . . ." Tr. 53. Plaintiff reported that these
migraines lasted from "a couple of hours to a couple of
days." Id. Her migraines sometimes improved
with Excedrin, but sometimes required Oxycodone or
injections. Tr. 52. The ALJ noted plaintiffs failure to
routinely report migraines during office visits and an
absence of documented debilitating migraines in plaintiffs
"more recent treatment notes" as evidence that
plaintiffs migraines were not as debilitating as she
described. Tr. 26.
evidence of plaintiff s failure to routinely report migraines
the ALJ cited six office visits where the plaintiff failed to
report migraines. Id. Additionally, The ALJ claimed
that the plaintiffs subjective symptom testimony was not
credible because plaintiff had not reported "an
inability to function" or the presence of debilitating
migraines during office visits leading up to her hearing.
Id. To support this conclusion, the ALJ noted a
single April 2016 hospital visit. Tr. 27, 695-704.
the ALJ overlooked thirty other office visits where the
plaintiff complained of headaches or migraines. See Tr. 431,
468, 477, 501, 569, 571, 592, 610, 617, 622, 634, 638, 643,
647, 659, 668, 688, 682-83, 712, 714, 716, 741, 746, 749,
791, 848, 903, 931-32, 952, 967, 978, 995, 100, 1035, 1057,
1060, 1075. In addition, plaintiff reported and was treated
for migraines during January 2016, February 2016, March 2016,
April 2016, May 2016, and June 2016. Tr. 672, 682-83, 688,
712, 714, 716, 931-32, 995, 1000, 1035, 1057, 1060. During
several of these visits, the patient described her migraine
headaches as resistant to oxycodone and other pain
medications. Tr. 682-83, 1057. In fact, on one occasion,
plaintiffs migraine was so severe that she reported being
unable to do laundry. Tr. 688.
of improvement and debilitating symptoms are a common
occurrence, and in such circumstances, it is error for an ALJ
to pick out a few isolated instances of improvement over a
period of months or years and to treat them as a basis for
concluding a claimant is capable of working."
Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir.
2014) (citing Holohan v. Massanari, 246 F.3d 1195,
1205 (9th Cir. 2001)). In this case, the ALJ cherry picked
six office visits that occurred over the course of three
years in which plaintiff failed to report migraine headaches.
After considering the plaintiffs entire medial record, it is
clear that plaintiff routinely reported migraines during
office and hospital visits and experienced a few isolated
instances of improvement. It is also clear that the ALJ
cherry picked the record regarding plaintiffs April 2016
hospital visit and ignored plaintiffs reports of severe and
occasionally debilitating migraines in all six months leading
up to the hearing.
cherry picking the record, the ALJ did not consider the
medical record as a whole and failed to provide substantial
evidence in the record to support her decision. Therefore,
the ALJ ...