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Pamela O. v. Berryhill

United States District Court, D. Oregon

June 28, 2019

PAMELA O., [1] Plaintiff,
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.


          Michael McShane United States District Judge.

         Plaintiff 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).

         On June 4, 2014, Plaintiff applied for DIB, alleging disability as of May 1, 2013. Tr. 18.[2]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 benefits.


         The 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. 1996)).


         The 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 Cir. 2001).

         Born in 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.

         The ALJ 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.

         Plaintiff 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.

         I. Plaintiff's Migraines

         The ALJ 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).

         Here, 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.

         Plaintiff 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 ...

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