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Kristyn P. v. Commissioner of Social Security

United States District Court, D. Oregon

June 17, 2019

KRISTYN P., [1] Plaintiff,

          OPINION & ORDER


         Plaintiff Kristyn P, seeks judicial review of the final decision of the Commissioner of Social Security ("Commissioner"). The decision of the Commissioner is REVERSED and REMANDED for further proceedings.


         On February 25, 2014, Plaintiff filed an application for supplemental security income alleging disability beginning May 25, 2008.[2] Tr. 16. The claims were denied initially and upon reconsideration. Id. At Plaintiffs request, a hearing was held before an administrative law judge ("ALJ") on January 30, 2017. Id. On February 24, 2017, the ALJ issued a decision finding Plaintiff not disabled. Tr. 30. The Appeals Council denied Plaintiffs request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1. This appeal followed.


         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, 648 F.3d 721, 724 (9th Cir. 2011).

The five-steps are: (1) Is the claimant presently working in a substantially gainful activity? (2) Is the claimant's impairment severe? (3) Does the impairment meet or equal one of a list of specific impairments described in the regulations? (4) Is the claimant able to perform any work that he or she has done in the past? and (5) Are there significant No. of jobs in the national economy that the claimant can perform?

Id. at 724-25; 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. Bustamante, 262 F.3d at 953. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that the claimant can perform other work that exists in significant No. in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). 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 No. in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54.


         The ALJ performed the sequential analysis. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the application date, February 25, 2014. Tr. 18. The ALJ determined Plaintiff had the following severe impairments: asthma, pain syndrome variously diagnosed to include fibromyalgia and polyavthralgia, mental impairment (variously diagnosed as including somatic symptom disorder, alcohol use disorder, in sustained remission, amphetamine use disorder, in sustained remission, dependent personality disorder, post-traumatic stress disorder, and major depressive disorder). Id. The ALJ determined Plaintiffs impairments did not meet or equal a listed impairment. Tr. 19.

         The ALJ determined Plaintiff had the RFC to perform a range of light work with the following additional restrictions: climbing of ladders, ropes, or scaffolds must be precluded entirely from work duties as assigned; within the assigned work area there must be no exposure to hazards such as machinery or heights; assigned work must be limited to simple 1 or 2 step tasks, which must be learned in 30 days or less by brief demonstrations and the tasks must have minimal change in the tasks as assigned; contact with supervisors, coworkers, and the general public must be limited to no more than occasional. Tr. 20-21.

         The ALJ noted Plaintiff was 28 years old on the application date, has limited education, and is able to communicate in English. Tr. 28. The ALJ found Plaintiff has no past relevant work. Id. Based on her RFC, the ALJ determined Plaintiff was able to perform work as a garment sorter, laundry folder, or bottle line attendant at the light exertional level. Tr. 29. In the alternative, the ALJ determined that Plaintiff was able to perform work as an addresser/sorter, optical final assembler, and cutter paster at the sedentary exertional level. Id. As a consequence, the ALJ determined Plaintiff was not disabled. Tr. 30.


         The district court must 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); Balson v. Comm 'r, 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotation marks omitted). In reviewing the Commissioner's alleged errors, this Court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusion." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).

         When the evidence before the ALJ is subject to more than one rational interpretation, courts must defer to the ALJ's conclusion. Batson, 359 F.3d at 1198 (citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). A reviewing court, however, cannot affirm the Commissioner's decision on a ground that the agency did not invoke in making its decision. Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006). Finally, a court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56. "[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009).


         Plaintiff alleges the ALJ erred by (1) failing to properly consider Plaintiffs pseudoseizures; (2) failed to properly weigh medical opinion evidence concerning Plaintiffs rheumatological condition; (3) failed to properly consider "other medical source" opinion evidence concerning Plaintiffs mental limitations; and (4) failed to consider relevant VE testimony at step five of the sequential analysis.

         I. Pseudoseizures

         Plaintiff contends that the ALJ erred by discounting Plaintiffs pseudoseizure disorder. As a preliminary matter, Plaintiff asserts that the ALJ entirely failed to account for Plaintiffs pseudoseizures at steps two or three of the sequential analysis. However, at step two of the analysis the ALJ included "somatic symptom disorder" as one of Plaintiff s severe impairments. Tr. 18. Under the regulations, pseudoseizures are included under somatic symptom disorders. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(B)(6)(a). As for step 3, the ALJ expressly considered the "severity of the mental impairments, considered singly and in combination, do not meet or medically equal the criteria list of listings 12.04, 12.06, 12.07, and 12.08." Tr. 19. Listing 12.07 is the appropriate listing for pseudoseizures. 20 C.F.R. Pt. 404, Subpt. 2, App. 1, § 12.00(B)(6). Plaintiff does not ...

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