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Melody A. v. Berryhill

United States District Court, D. Oregon, Eugene Division

July 25, 2019

MELODY A.,[1]Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS AND RECOMMENDATION

          YOULEE YIM YOU UNITED STATES MAGISTRATE JUDGE

         Melody A. (“plaintiff”), seeks judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) finding that she had medically improved as of January 1, 2012, resulting in the termination of her Disability Insurance Benefits (“DIB”).[2] This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the Commissioner's decision is not supported by substantial evidence, it should be REVERSED and REMANDED for the immediate calculation of benefits.

         BACKGROUND

         Born in 1962, plaintiff was 44 years old when she was granted benefits and 49 when the Commissioner determined that she was no longer disabled. Tr. 94. Plaintiff has past relevant work as a pharmacy technician. Tr. 1010.

         As a child, plaintiff was abandoned by her mother and raised by her father who physically and sexually abused her. Tr. 876, 920. She also suffered sexual abuse from two other individuals. Tr. 876, 883. As an adult, plaintiff was traumatized when a coworker threatened to kill her. Tr. 876.

         Plaintiff has been diagnosed with post-traumatic stress disorder (“PTSD”) secondary to childhood abuse, bipolar disorder, panic disorder, dependent personality style, urinary incontinence, obesity, fibromyalgia, myofascial pain syndrome, migraines, sleep apnea, insomnia, mood disorder, trichotillomania, anxiety disorder, ADHD, and major depressive disorder. Tr. 924, 974, 1238-39, 1414, 1469.

         PROCEDURAL HISTORY

         Plaintiff filed an application for DIB on September 14, 2006, alleging disability beginning on May 31, 2006. Tr. 1112. Plaintiff's claim was denied initially and she requested a hearing for reconsideration before an ALJ. Tr. 1112-13. In a decision dated June 11, 2008, plaintiff was found disabled beginning May 31, 2006. Tr. 995. This initial disability determination is referred to as the comparison point decision (“CPD”) under the Social Security regulations. Tr. 999.

         On January 12, 2012, the Commissioner determined that plaintiff's impairments improved enough after the CPD that she was able to return to work and was no longer disabled as of January 1, 2012. Tr. 995. That determination was upheld upon reconsideration after a disability hearing by a State agency Disability Hearing Officer. Id. A subsequent hearing was held before Administrative Law Judge Riley Atkins (“ALJ Atkins”) on November 20, 2013. Tr. 23. On December 23, 2013, ALJ Atkins issued a decision affirming the cessation date of January 1, 2012. Tr. 995. The Appeals Council denied plaintiff's request for review, making ALJ Atkins' decision the final decision of the Commissioner. Tr. 1113.

         Plaintiff then sought judicial review with this court. On November 30, 2016, Judge Simon issued an opinion holding that ALJ Atkins had improperly rejected the medical opinion of examining physician Dr. Carter and remanded the case for further proceedings. Tr. 1143.

         On remand, the case was sent to ALJ Andrew Grace (“the ALJ”). Tr. 1043. Plaintiff testified at a hearing before the ALJ on October 24, 2017. Tr. 1043-75. On May 3, 2018, the ALJ issued an amended decision finding that plaintiff's impairments improved enough after the CPD that she was able to return to work and was no longer disabled as of January 1, 2012; however, the ALJ found that plaintiff became disabled again on June 1, 2016, and her benefits were reinstated as of that date. Tr. 995-1012. The Appeals Council denied plaintiff's request for review, and plaintiff filed a complaint with this court. Tr. 1-7. The ALJ's decision is therefore the Commissioner's final decision subject to review. 20 C.F.R. § 422.210.

         The court's review is limited to the relevant period of January 1, 2012, to June 1, 2016.

         STANDARD OF REVIEW

         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.

         SEQUENTIAL ANALYSIS AND ALJ FINDINGS

         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, and 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)).

         Once the Commissioner finds a claimant to be disabled, a presumption of continuing disability arises. Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983) (citation omitted). To revoke benefits, “[t]he Commissioner bears the burden of establishing that a claimant has experienced medical improvement that would allow him to engage in substantial gainful activity.” McCalmon v. Astrue, 319 Fed.Appx. 658, 659 (9th Cir. 2009) (citing Murray, 722 F.2d at 500). The Commissioner must follow an eight-step sequential evaluation process in determining whether the claimant's impairments have sufficiently improved to warrant a cessation of DIB. See20 C.F.R. § 404.1594(f).

         The eight steps are as follows: (1) if the claimant is currently engaged in substantial gainful activity (“SGA”), disability has ended; (2) if not, and the claimant has an impairment or combination of impairments that meets or equals a listing, disability continues; (3) if the claimant does not meet or equal a listing, the ALJ will determine whether medical improvement has occurred; (4) if so, the ALJ will determine whether the improvement is related to the claimant's ability to work (i.e., to an increase in the claimant's RFC); (5) if no medical improvement-or no improvement related to ability to work-has occurred, disability continues, unless certain exceptions apply; (6) if there has been medical improvement related to the claimant's ability to work, the ALJ will determine whether all the current impairments, in combination, are “severe”; if not, disability ends; (7) if the claimant meets the “severity” criteria, the ALJ will determine the current RFC, and, if the claimant is able to do past work, disability ends; (8) if the claimant remains unable to do past work, the ALJ will determine whether the claimant can do other work, given her RFC, age, education and past work experience. If so, disability ends. If not, disability continues. 20 C.F.R. § 404.1594(f).

         At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since her disability ended on January 1, 2012. Tr. 999.

         At step two, the ALJ found plaintiff did not have an impairment or combination of impairments that met or equaled a listing. Tr. 1000.

         At step three, the ALJ found medical improvement had occurred as of January 1, 2012. Tr. 1001.

         At step four, the ALJ found plaintiff's medical improvement was related to her ability to do work because plaintiff's impairments no longer met a listing. Id. Thus, step five was rendered inapplicable and the ALJ moved on to step six.

         At step six, the ALJ found that as of January 1, 2012, plaintiff's impairments continued to be severe and caused more than minimal limitation in her ability to perform work activities. Id.

         At step seven, the ALJ assessed plaintiff's residual functional capacity (“RFC”) and determined that she could perform a range of light work except that she could never climb ladders ropes and scaffolds; could occasionally kneel, crouch, and crawl; needed to avoid concentrated exposure to hazards; could perform simple, routine, repetitive tasks consistent with unskilled work; was limited to low stress work defined as work requiring few decisions or changes; could have occasional contact with the public, coworkers, and supervisors; could perform at a standard or ordinary pace, but not at strict a production rate pace in which she had no control over the speed of the work. Id. The ALJ concluded step seven with the determination that plaintiff was incapable of performing her past relevant work. Tr. 1010.

         At step eight, the ALJ found that plaintiff could perform jobs that exist in significant numbers in the national economy, including photocopy machine operator, collator operator, and office helper. Tr. 1010-11.

         FINDINGS

         Plaintiff argues that the ALJ erred by improperly discounting her subjective symptom testimony; erroneously rejecting the medical opinions of Dr. Carter, Dr. Deschamps, and licensed clinical social worker Laila Ayyoub; improperly concluding that she had experienced medical improvement related to the ability to work; erroneously finding that her impairments no longer met or equaled Listings 12.04 and 12.06; and providing an inadequate hypothetical to the VE.

         I. Subjective ...


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