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Jean K. v. Commissioner, Social Security Administration

United States District Court, D. Oregon

July 10, 2019

MARTI JEAN K., [1] Plaintiff,

          Katherine L. Eitenmiller Brent Wells HARDER, WELLS, BARON & MANNING, P.C. Attorneys for Plaintiff

          Renata Gowie Assistant United States Attorney District of Oregon, L. Jamala Edwards Social Security Administration Office of the General Counsel Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ United States District Judge

         Plaintiff Marti Jean K. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB) and supplemental security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). The Court reverses and remands the Commissioner's decision for further proceedings.


         Plaintiff applied for DIB and SSI on February 10, 2014, and November 3, 2015, alleging onset dates of January 9, 2014, and August 23, 2013, respectively. Tr. 79, 182.[2] Her application was denied initially and on reconsideration. Tr. 110-14, 120-24

         On October 17, 2016, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 38. At the hearing, Plaintiff amended her alleged onset date to September 1, 2014. Tr. 45. On December 8, 2016, the ALJ found Plaintiff not disabled. Tr. 32. The Appeals Council denied review. Tr. 1.


         Plaintiff alleges disability based on multiple sclerosis; visual disturbances, including loss of vision, double vision, and blurred vision; neuropathy; chronic pain and weakness; fibromyalgia; cognitive problems; depression; anxiety; migraines; and “abnormal brain mri's.” Tr. 241. At the time of the hearing, she was 46 years old. Tr. 30. She has a high school education and some additional coursework, tr. 49, and she has past relevant work experience as a home attendant and insurance clerk/receptionist, tr. 30.


         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), 1382c(a)(3)(A). Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether plaintiff's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.


         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after her amended alleged onset date of September 1, 2014. Tr. 23. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: “multiple sclerosis (MS), fibromyalgia, and depressive disorder.” Tr. 24. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 25. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b) with the following limitations:

[T]he claimant can lift and carry 20 pounds occasionally, and 10 pounds frequently. She can stand and walk 4 hours in an 8 hour day, and sit for 6 hours in an 8 hour day. The claimant can occasionally climb ramps and stairs, and never climb ladders, ropes, or scaffolds. She is able to perform simple, routine tasks.

         Tr. 26. Because of these limitations, the ALJ concluded that Plaintiff could not perform her past relevant work as a home attendant and insurance clerk/receptionist. Tr. 30. But at step five the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as “office helper, ” “parking lot attendant, ” and “router.” Tr. 31. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 31.


         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings "are based on legal error or are not supported by substantial evidence in the record as a whole." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). "Substantial evidence means 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." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's") (internal quotation marks omitted).


         Plaintiff contends that the ALJ erred by: (1) improperly rejecting Plaintiff's subjective symptom testimony; (2) improperly discounting the opinions of Plaintiff's treating physicians Dr. Boggs, Dr. Yates, and Dr. Cole; and (3) improperly discounting the lay witness testimony of Karen A., Plaintiff's mother. Pl. Br. 12-13, ECF 14. This Court agrees.

         I. Subjective Symptom Testimony

         Plaintiff argues that the ALJ erred in discounting her subjective symptom testimony. The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591. In assessing a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929. The first stage is a threshold test in which the claimant must present objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage of this analysis, absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. Carmickle v. Comm'r Soc. Sec. Admin, 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter, 504 F.3d at 1036.

         The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Factors the ALJ may consider when making such determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, and inconsistencies in the testimony. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039. In addition, conflicts between a claimant's testimony and the objective medical evidence in the record can undermine a claimant's credibility. Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).

         When the ALJ's credibility findings are supported by substantial evidence in the record, the reviewing court “may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). However, a general assertion that plaintiff is not credible is insufficient; the ALJ must ‚Äústate which . . . testimony is not credible and what evidence suggests the complaints are ...

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