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Rhea W v. Commissioner of Social Security

United States District Court, D. Oregon

May 14, 2019

RHEA W, [1] Plaintiff,



         Plaintiff 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.


         Plaintiff 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.


         The 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).

         The 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 (1947)).


         The 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).

         The 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 supervisor.

         Tr. 24. 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. §§ 404.1520(a)(4)(v), (g)(1).


         On 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.

         I. Plaintiffs Subjective Symptom Complaints

         I begin 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 Cir. 1996).

         The ALJ 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).

         Moreover, 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).

         The ALJ 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. 26.

         A. Migraines

         First, 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.

         As evidence of plaintiff s failure to routinely report migraines the ALJ cited six office visits where the plaintiff failed to report migraines. Id.[3] 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.

         However, 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.

         "Cycles 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.

         By 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 ...

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