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Cynthia O. v. Berryhill

United States District Court, D. Oregon, Eugene Division

June 20, 2019

CYNTHIA O., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Youlee Yim You, United States Magistrate Judge

         Cynthia O. (“plaintiff”), seeks judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying plaintiff's application for Title II Disability Insurance Benefits (“DIB”) under the Social Security Act (“Act”). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).[2] Because the Commissioner's decision is not supported by substantial evidence, it is REVERSED and REMANDED for further proceedings.


         Born in 1953, plaintiff was 59 years old on the alleged onset date. Tr. 90. Plaintiff has past relevant work as a secretary. Tr. 30.

         Plaintiff has been diagnosed with pathological gambling, major depressive disorder, bulimia nervosa, hypothyroidism, posttraumatic stress disorder (“PTSD”), adjustment disorder, agoraphobia, panic disorder, anxiety disorder, dysthymic disorder, and Stage III chronic kidney disease. Tr. 353-54, 456, 465, 514, 556, 623, 632, 680.

         Plaintiff was terminated from her most recent work as a secretary at the Lane County School District after she admitted to embezzling funds from the school. Tr. 180, 196. She was ordered to pay restitution and sentenced to twenty-two months in prison, of which she served sixteen. Tr. 196, 484. Prior to her prison sentence, plaintiff began treatment for her gambling addiction. Tr. 355-62.

         Plaintiff suffers from PTSD and anxiety resulting from her older brother sexually abusing her from age nine to sixteen. Tr. 351-52, 632. Her parents knew about the abuse, but never did anything to stop it. Id. Plaintiff also was physically abused by her first husband. He began abusing her in 1974, and “[s]he suffered broken bones, [a] fractured skull, and bruises until she divorced him in 1981.” Tr. 352.


         Plaintiff filed an application for DIB on February 2, 2014, alleging disability beginning February 11, 2013. Tr. 18. Plaintiff's claim was initially denied on June 27, 2014, and upon reconsideration on January 25, 2015. Id. A hearing was held before an Administrative Law Judge (“ALJ”) on February 9, 2017, in which the plaintiff testified, as did a vocational expert (“VE”). Tr. 39-79. On April 20, 2017, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 18-32. After the Appeals Council denied her request for review, plaintiff filed a complaint in this court. Tr. 1-7. The ALJ's decision is therefore the Commissioner's final decision subject to review by this court. 20 C.F.R. § 422.210.


         The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and “‘may not affirm simply by isolating a specific quantum of supporting evidence.'” Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). The reviewing court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.


         Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. This sequential analysis is set forth in the Social Security regulations, 20 C.F.R. §§ 404.1520, 416.920, in Ninth Circuit case law, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)), and in the ALJ's decision in this case, Tr. 19-20.

         At step one, the ALJ found plaintiff had not engaged in substantial gainful activity after February 11, 2013, the alleged onset date. Tr. 20.

         At step two, the ALJ found plaintiff has the following severe impairments: anxiety disorder, PTSD, affective disorder, gambling addiction, and an eating disorder. Tr. 21.

         At step three, the ALJ found plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 22. The ALJ next assessed plaintiff's residual functional capacity (“RFC”) and determined that she could perform a full range of work at all exertional levels, except she was limited to no more than frequent interaction with the general public and she should have no close cooperative work with coworkers. Tr. 24.

         At step four, the ALJ found plaintiff was able to perform her past relevant work as a secretary. Tr. 30.

         Although the ALJ was not required to continue the sequential analysis, he proceeded to step five and determined, in the alternative, that plaintiff could perform jobs that exist in significant numbers in the national economy, including general administrative clerk, data entry clerk, and billing typist. Tr. 31.


         Plaintiff argues that the ALJ erred by improperly discounting her subjective symptom testimony, erroneously assessing the medical opinions of Dr. Anderson and Zana Zeigler, improperly rejecting the lay witness testimony of her cousins, and erroneously evaluating her severe impairments.

         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) (citation omitted). A general assertion that the claimant is not credible is insufficient; 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 ...

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