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Kubat v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Eugene Division

June 20, 2019

THERESA M. K.[1], Plaintiff,


          MUSTAFA T. KASUBHAI United States Magistrate Judge

         Plaintiff Theresa M. K. brings this action for judicial review of the Commissioner of Social Security's (“Commissioner's”) decision denying her application for Disability Insurance Benefits under the Social Security Act (the “Act”). This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). Both parties consent to jurisdiction by a U.S. Magistrate Judge.

         For the reasons discussed below, the Court remands for the immediate calculation and award of benefits.


         Plaintiff applied for Disability Insurance Benefits on December 23, 2013, alleging disability beginning April 22, 2013. Tr. 53. Her claims were initially denied, and Plaintiff timely requested and appeared for a hearing before Administrative Law Judge (“ALJ”) Steven A. De Mondbreum on May 1, 2017. Id. During the hearing, Plaintiff's attorney amended the onset date of disability to June 1, 2014 (“AOD”). Tr. 53, 80-81. The ALJ denied Plaintiff's application in a written decision dated June 22, 2017. See Tr. 53-65. Plaintiff sought review from the Appeals Council and submitted new evidence. Pl.'s Br. 18 (ECF No. 21); see Tr. 2, 16-49. The Appeals Council declined to include the newly submitted evidence into the record and denied review of the ALJ's decision, rendering the ALJ's decision the final decision of the Commissioner. Tr. 1-4. Plaintiff now seeks judicial review of the decision.


         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 detracts from the ALJ's conclusion.” Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).


         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. See 20 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 has not engaged in substantial gainful activity since the amended onset date of June 1, 2014. Tr. 56. At step two, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease (DDD) status post lumbar surgery (October 12, 2015), depressive disorder, history of posttraumatic stress disorder (PTSD), history of attention deficit hyperactivity disorder (ADHD), and peripheral neuropathy. Id. While noting that the record also references other conditions including fine tremor, the ALJ found that they do not constitute “severe” impairments. 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 CFR Part 404, Subpart P, Appendix 1. Tr. 56-58.

         Prior to step four, the ALJ determined that Plaintiff retained residual functional capacity

(“RFC”) that allowed her to perform light work. Tr. 58. Specifically, the ALJ found that Plaintiff can lift/carry 20 pounds occasionally and 10 pounds frequently, sit for about 6/8 hours total, and stand/walk for about 6/8 hours total, except the claimant can frequently balance, occasionally climb ramps and stairs but never ladder, ropes or scaffolds, occasionally kneel, crouch, and stoop/bend but never crawl, should have no exposure whatsoever to vibration and hazards such as dangerous machinery and unprotected heights, and can understand, remember, and carry out short, simple, routine job instructions with a DOT GED reasoning level of 2 or less, consistent with unskilled work.

Tr. 58.

         At step four, the ALJ found that Plaintiff is unable to perform any past relevant work. Tr. 63. At step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform based on her age, education, work experience, and RFC, such as garment sorter, bottle line attendant, and routing clerk. Tr. 64.

         Plaintiff seeks review by this Court contending that (1) the ALJ committed harmful error by finding Plaintiff's weak grip strength and tremors did not meet step two; (2) the Appeals Council erred in reviewing but not considering the new evidence Plaintiff submitted to the Appeals Council; (3) the ALJ failed to provide clear and convincing reasons to reject Plaintiff's subjective complaints; and (4) the ALJ did not provide legitimate germane reasons to reject the lay witness testimony of Plaintiff's husband.

         Plaintiff requests this case to be remanded with specific direction for the ALJ to reconsider (1) Plaintiff's hand tremors, (2) the diagnosis of Parkinson's disease, (3) Plaintiff's complaints in light of her retroactive diagnosis, and (4) given the limitations whether or not Plaintiff could sustain jobs in the national economy.

         Plaintiff argues that the ALJ based his finding of non-severity at step two of Plaintiff's tremors largely on his discrediting of Plaintiff's testimony and his finding that her tremors had not worsened. Pl.'s Br. 15 (ECF No. 21). The Court therefore first addresses the issue of subjective testimony.

         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; instead, 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).

         Social Security Ruling (“SSR”) 16-3p[2] provides 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. SSR 16-3p, available at 2016 WL 1119029 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.

         Here, the ALJ discredited Plaintiff's subjective complaints based on several stated reasons: (1) Plaintiff “was actually working more even though she [claimed that] she was in more pain, Tr. 61; (2) Plaintiff had earnings in the third and fourth quarters of 2014, and she earned more money in 2014 “because she took on extra work, ” Tr. 61; (3) Plaintiff generally received conservative treatment, Tr. 59, 61; (4) Plaintiff did not receive physical therapy for her back pain as recommended by doctors, Tr. 59; (5) Plaintiff's back surgery and procedures “appeared to be successful, ” Tr. 60; (6) Plaintiff's “depression was considered under control in spite of some stress” in 2017, Tr. 60; and (7) Plaintiff's “daily activities are quite involved, ” including watching her grandson, home tasks and crocheting, Tr. 60-61.

         A. Pre-AOD Work History and Post-AOD Earning

         Where the claimant's lengthy history of impairment did not prevent her from working, the ALJ may discredit the claimant's subjective complaints. Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 1988) (finding that the claimant's back problems had remained constant for a number of years and had not prevented her from working, which are substantial evidence to support the decision that the claimant's back problems did not render her disabled). An ALJ may also find the claimant's subjective complaints not credible if the claimant left a job for reasons unrelated to the impairments. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (affirming the ALJ's finding that the claimant's subjective complaints not credible because, among other factors, the claimant left his job because he was laid off, rather than because he was injured).

         Here, Plaintiff first reported low back pain of an 8/10 pain scale on December 9, 2013. Tr. 415. Unlike the claimant in Gregory who was able to work despite constant back pain for “a number of years, ” Plaintiff left her school bus driver job about six months later. Tr. 80. She did not have a lengthy history of low back pain when she left her job. Plaintiff “attributes the worsening [of the low back pain] to starting to drive the bus in September which she does during the school year. She states that every school year the pain becomes worse as the school year goes on.” Tr. 487. Plaintiff put her name on the list to be on call as an education assistant. Tr. 90. She testified at the hearing that as an education assistant she would work on the playground or go from desk to desk to help students. Tr. 88-89. The duty of an education assistant does not require Plaintiff to sit at all times like a school bus driver. See id.

         As to the ALJ's discrediting of Plaintiff's subjective complaints because she was working more while she was in more pain, the ALJ failed to consider or develop the pertinent records for possible explanations why Plaintiff worked more. Since Plaintiff attributes the worsening of her low back pain to driving the school bus, she may have taken on the education assistant duty in order to alleviate her low back pain from driving the bus. As such, the ALJ did not provide specific, clear and convincing reasons to discredit Plaintiff's subjective complaints based on her extra work.

         Regarding Plaintiff's earnings in the third and fourth quarters of 2014, Plaintiff testified that she tried to perform three insurance jobs after leaving the school bus driver job but was unable to meet the jobs' demands. Tr. 102-04. She couldn't move her hands or function on the same level as what was expected of her. Tr. 102. She “was let go each time.” Id. Plaintiff's earnings after the school district job totaled $4, 486 in 2014. See Tr. 255 (Plaintiff earned $675, $2, 733, and $1, 078 respectively from three employers). The record does not include specific job descriptions for these three jobs from which any reasonable conclusions could be drawn of what the work Plaintiff was actually doing. For example, the records do not specify Plaintiff's hourly wage, weekly hours, how long she was employed with each employer, and what the job duties were. Therefore, the ALJ's rejection of Plaintiff's subjective statements based on her earnings after the AOD lacks specific, clear and convincing reasons.

         B. Treatment

         Treatment received by a claimant is a relevant factor in determining the severity of a claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

         a. Conservative Treatment

         An ALJ may discredit a claimant's pain testimony based on a history of conservative treatment. Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (finding that the ALJ provided clear and convincing reasons to properly decline to rely on the claimant's testimony and noting that the doctor prescribed only “conservative treatment” which suggested a lower level of both pain and functional limitation).

         The ALJ noted “conservative treatment” three times in his decision. He first found that “[c]onservative treatment was recommended” while referring to Plaintiff's low back pain symptoms in February 2014. Tr. 59. The ALJ then found that “the record reveals [that Plaintiff] has received general conservative and routine treatment” because “a neurosurgeon did not think [Plaintiff] was a good candidate for surgery.” Tr. 61. Dr. Matthew Miller, the neurosurgeon who did not think Plaintiff was a good candidate for surgery, examined Plaintiff and rendered his opinion on April 30, 2014. Tr. 491-92. These conservative treatments pre-date Plaintiff's amended onset date and do not conflict with Plaintiff's symptoms after the amended onset date. Plaintiff received conservative treatment a few months after ...

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