United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge.
Pamela O. brings this action for judicial review of the
Commissioner's decision denying her application for
disability insurance benefits (“DIB”) under Title
II of the Social Security Act (“the Act”). This
court has jurisdiction under 42 U.S.C. § 405(g).
4, 2014, Plaintiff applied for DIB, alleging disability as of
May 1, 2013. Tr. 18.Plaintiff requested an administrative
hearing after her application was denied initially and on
reconsideration. Id. A hearing was held before
Administrative Law Judge (“ALJ”) John D. Sullivan
on December 1, 2016. Tr. 40-65. In a written decision dated
December 19, 2016, the ALJ determined Plaintiff was not
disabled under the Act from May 1, 2013, through the date of
the ALJ's decision. Tr. 18-29. For the reasons discussed
herein, the Commissioner's decision is REVERSED, and this
case is REMANDED for the immediate calculation and payment of
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, I review the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th
Cir. 1989). “If the evidence can reasonably support
either affirming or reversing, ‘the reviewing court may
not substitute its judgment' for that of the
Commissioner.” Gutierrez v. Comm'r of Soc. Sec.
Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. § 404.1520. The initial burden of
proof rests upon the claimant to meet the first four steps.
If the claimant satisfies her burden with respect to the
first four steps, the burden shifts to the Commissioner for
step five. Id. 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. Id. 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.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th
1970, Plaintiff was 42 years old on the alleged disability
onset date and 46 years old on the date of her hearing. Tr.
28. She has a master's degree in social work. Tr. 46.
Plaintiff previously worked as a case worker and teacher
aide. Tr. 27. She alleged disability due to migraines, neck
pain, posttraumatic stress disorder (“PTSD”),
depression, anxiety, and panic attacks. Tr, 24, 162.
determined Plaintiff had the following severe impairments:
major depressive disorder, PTSD, generalized anxiety
disorder, and impulse control disorder. Tr. 20. The ALJ
further found Plaintiff's neck pain, migraines, obesity,
and remitted opioid dependence were non-severe impairments.
Tr. 20-21. The ALJ resolved that Plaintiff retained the RFC
to perform a full range of work at all exertional levels,
except she was limited to understanding, remembering, and
carrying out instructions for simple, routine tasks; making
simple, work-related decisions generally, and when dealing
with changes in the workplace setting; occasional interaction
with supervisors, co-workers, and the general public; and her
time off task would be accommodated by normal breaks. Tr. 23.
The ALJ determined Plaintiff was unable to return to her past
relevant work; however, the ALJ found Plaintiff could perform
other jobs in the national economy, such as
cleaner/housekeeping, marker, and small products assembler.
Tr. 27-29. Therefore, the ALJ concluded Plaintiff was not
disabled under the Act. Tr. 29.
raises a host of arguments challenging the ALJ's findings
and ultimate non-disability determination. However, because
the ALJ's erroneous treatment of Plaintiff's
migraines is dispositive, I decline to discuss the remainder
of Plaintiff's arguments.
erred by failing to find Plaintiff's migraines were a
severe impairment at step two. The step-two inquiry is a
de minimis screening device used to dispose of
groundless claims. Bowen v. Yuckert, 482 U.S. 147,
153-54 (1987). An impairment or combination of impairments is
“not severe only if the evidence establishes a
slight abnormality that has no more than a minimal effect on
an individual's ability to work.” Webb v.
Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (emphasis in
original) (citing Smolen v. Chater, 80 F.3d 1273,
1290 (9th Cir. 1996)). However, if an ALJ fails to properly
identify a severe impairment at step two, but properly
considers the erroneously omitted impairment at subsequent
steps of the sequential evaluation process, the step two
error is harmless. Lewis v. Astrue, 498 F.3d 909,
911 (9th Cir. 2007).
the ALJ found Plaintiff's migraines were
“non-severe, ” because the frequency and severity
of Plaintiff's migraines were purportedly relieved by
medication. Tr. 20-21. The record demonstrates, however, that
Plaintiff's tortured course of treatment provided some
relief, but did not effectively treat her migraines. Contrary
to the ALJ's finding that Plaintiff did not report an
exacerbation in her migraine symptoms until early 2015,
Plaintiff's migraines and corresponding treatments are
well documented throughout the record. See,
e.g., Tr. 283-84, 296, 302, 309, 315-16, 320, 324,
343, 429, 435, 441, 445, 533-34, 646, 670-71, 685, 701.
Further, Plaintiff's photophobia was documented on
numerous occasions, she required the lights dimmed at several
of her appointments, an MRI of Plaintiff's brain taken in
April 2015 revealed “tiny scattered white matter
hyperintensities [that] could relate to chronic migraine
headaches, ” and her eye examinations were inconsistent
due to migraines and associated blurry vision. See,
e.g., Tr. 284, 288-89, 307, 310, 314, 339, 353, 429,
435441, 429, 533, 672-73, 678, 685, 690. Indeed, even the
April 2015 treatment record cited by the ALJ in support of
his non-severity finding notes that prior to reporting an
increase in her migraines due to exacerbating an “old
neck injury, ” Plaintiff was experiencing two migraines
per week on average. Tr. 429.
tried numerous treatments to prevent and alleviate her
migraine symptoms, including a trigger point injection,
acupuncture, chiropractic care, and tai chi, as well as
prescriptions for propranolol, nadolol, baclofen,
sumatriptan, meloxicam, amitriptyline, oxycodone, relpax, and
ketorolac. See, e.g., 165, 303, 307, 315,
408, 426, 779, 782. The ALJ mischaracterized the record in
finding that while Cymbalta was not necessarily effective for
Plaintiff's depression and chronic pain symptoms, it
provided some decrease in the frequency and severity of
Plaintiff's migraines. Tr. 20 (citing Tr. 402). Although
Plaintiff reported in July 2014 that she noticed “some
decrease” in the severity and frequency of her
migraines while taking Cymbalta, Dr. Bradford discontinued
use of Cymbalta because the drug made Plaintiff's
“energy levels worse, ” she was sleeping 12 to 14
hours per day and feeling “really depressed, ”
and her social anxiety was “bad.” Tr. 402. As
noted by the ALJ, even when Plaintiff reported her
medications were helping “a lot” in October 2013,
she was still experiencing three or four migraines per month.
Tr. 20 (quoting Tr. 296). Similarly, when Plaintiff reported
in September 2013 that baclofen “helped significantly
to reduce her headache frequency and severity, ” she
was still experiencing one migraine per week. Tr. 297-98. If
Plaintiff was ...