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Claire G. v. Berryhill

United States District Court, D. Oregon, Portland Division

May 29, 2019

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

          James W. Moller, Attorney for Plaintiff Billy J. Williams

          Renata Gowie Assistant United States Attorney, Catherine Escobar, Special Assistant United States Attorney, Office of the General Counsel Social Security Administration, Attorneys or Defendant

          OPINION & ORDER

          Marco A. Hernandez, United States District Judge

         Plaintiff Claire G. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB) and supplemental security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I reverse the Commissioner's decision and remand for additional proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff protectively filed applications for DIB and SSI on August 22, 2014, alleging an onset date of July 22, 2013. Tr. 179-80, 181-86. Her applications were denied initially and on reconsideration. Tr. 54, 58-68 (DIB Initial); Tr. 55, 69-81 (SSI Initial); Tr. 112-16 (DIB & SSI Initial); Tr. 82-95, 110, 122-24 (DIB Recon.); Tr. 96-109, 111, 125-47 (SSI Recon.). On December 21, 2016, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 33-53. On February 23, 2017, the ALJ found Plaintiff not disabled. Tr. 13-32. The Appeals Council denied review. Tr. 1-5.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on having depression, post-traumatic stress disorder (PTSD), gender dysphoria, anxiety, obsessive compulsive disorder (OCD), and attention deficit disorder (ADD). Tr. 218. At the time of the hearing, she was thirty years old. Tr. 37. She is a high school graduate and has past work experience in a variety of part-time jobs but no relevant full-time work experience. Tr. 37-39.

         SEQUENTIAL DISABILITY EVALUATION

         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), 1382c(a)(3)(A).

         Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether plaintiff's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since her July 22, 2013 alleged onset date. Tr. 18. Next, at steps two and three, the ALJ determined that Plaintiff has severe impairments of gender dysphoria, a depressive disorder, and an anxiety disorder, but that the impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 18-20.

         At step four, the ALJ concluded that Plaintiff has the RFC to perform a full range of work at all exertional levels. Tr. 20. However, the ALJ concluded that Plaintiff has the following nonexertional limitations: she should have ready access to a restroom facility; she can perform entry-level work with a reasoning level not to exceed 2; she should have no interaction with the public; and she can have occasional interaction with coworkers and supervisors. Tr. 20-25. With this RFC, the ALJ determined at step five[2] that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as janitor, hand packager, and small products assembler. Tr. 25-26. Thus, the ALJ determined that Plaintiff is not disabled. Tr. 27.

         STANDARD OF REVIEW

         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings "are based on legal error or are not supported by substantial evidence in the record as a whole." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). "Substantial evidence means 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." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).

         DISCUSSION

         Plaintiff contends the ALJ erred by (1) finding her subjective limitations testimony not credible; (2) rejecting the opinion of her treating therapist; and (3) finding the testimony of the lay witness not credible.

         I. Claimant Credibility

         The ALJ is responsible for determining credibility. See Vasquez, 572 F.3d at 591. Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains, an adverse credibility finding must be based on 'clear and convincing reasons'"); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages in two-step analysis to determine credibility: First, the ALJ determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged"; and second, if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give "specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.") (internal quotation marks omitted).

         When determining the credibility of a plaintiff's complaints of pain or other limitations, the ALJ may properly consider several factors, including the plaintiff's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may also consider the ability to perform household chores, the lack of any side effects from prescribed medications, and the unexplained absence of treatment for excessive pain. Id.; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) ("The ALJ may consider many factors in weighing a claimant's credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.") (internal quotation marks omitted).

         As the Ninth Circuit explained in Molina:

In evaluating the claimant's testimony, the ALJ may use ordinary techniques of credibility evaluation. For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct, unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and whether the claimant engages in daily activities inconsistent with the alleged symptoms[.] While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant's testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting[.] Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.

Molina, 674 F.3d at 1112-13 (citations and internal quotation marks omitted).

         The ALJ cited the proper two-step inquiry. Tr. 21. He noted Plaintiff's allegations that her ability to work is limited by clinical depression, PTSD, gender dysphoria, anxiety, OCD, and ADD. Tr. 21 (citing Tr. 218). He further noted her hearing testimony that she experiences stomach problems when stressed, she has difficulty interacting with the public, and she experiences nightmares that keep her awake. Id. But, the ALJ explained, while Plaintiff's medically determinable impairments could reasonably be expected to produce such symptoms, Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were not "entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." Id. Thus, the ALJ found Plaintiff's statements "to affect [her] ability to work only to the extent they can reasonably be accepted as consistent with the objective medical and other evidence." Id.

         The ALJ then addressed Plaintiff's gender dysphoria and noted that while she had been diagnosed with this impairment, she had taken steps to transition from male to female. Tr. 22. He observed that she had taken hormones and had surgery to change her appearance. Id. She had further surgery planned. Id.

         Next, the ALJ found that the record showed little mental health treatment during the period at issue. Id. He noted records showing that in June 2014, she had not been seen for more than one year, and that she had additional appointments in December 2014, at which she reported she was not in counseling. Id. In July 2015, she had another appointment and was advised to seek therapy. Id. She began treatment with Charlotte Redway, LCSW in November 2015, seeing Redway eight times in thirteen months. Id.

         The ALJ rejected Plaintiff's testimony about experiencing manic episodes for several reasons. Tr. 23. The diagnosis, by Redway, was not from an acceptable medical source and thus, under controlling regulations, could not be considered a valid medically determinable impairment. Id. Further, the record showed that the diagnosis was based on Plaintiff's self-reported history. Id. And, at that time, Plaintiff denied manic episodes. Id. At one point in July 2015 when Plaintiff reported that she cleans repeatedly and does not sleep ...


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