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Gail A. N. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Portland Division

July 28, 2019

GAIL A. N., [1] Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.

          OPINION & ORDER

          MARCO A. HERNÁNDEZ, United States District Judge.

         Plaintiff brings this action for judicial review of the Commissioner's final decision denying her application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. The Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). Because the Administrative Law Judge (ALJ) erred by improperly discounting Plaintiff's subjective symptom testimony, lay witness testimony, and medical opinion evidence, the Court REVERSES the Commissioner's decision and REMANDS this case for further administrative proceedings.


         Plaintiff was born on September 9, 1974 and was thirty-nine years old on June 21, 2014, the alleged disability onset date. Tr. 88.[2] Plaintiff met the insured status requirements of the Social Security Act (“SSA” or “Act”) through December 31, 2019. Tr. 80. Plaintiff has at least a high school education and is unable to perform any past relevant work. Tr. 88. Plaintiff claims she is disabled based on conditions including fibromyalgia, depression, anxiety, and migraines. Tr. 241.

         Plaintiff's benefits application was denied initially on December 26, 2014, and upon reconsideration on March 2, 2015. Tr. 79. A hearing was held before Administrative Law Judge Rebecca Jones on August 11, 2016. Tr. 96-136. ALJ Jones issued a written decision on February 28, 2017, finding that Plaintiff was not disabled and therefore not entitled to benefits. Tr. 79-90. The Appeals Council declined review, rendering ALJ Jones's decision the Commissioner's final decision. Tr. 1-6.


         A claimant is disabled if 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). Disability claims are evaluated according to a five-step procedure. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.

         At step one, 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). At 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.

         At step three, the Commissioner determines whether claimant'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.

         At 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, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. At 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 its 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 found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date. Tr. 80.

         At step two, the ALJ determined that Plaintiff had “the following severe impairments: fibromyalgia and migraine headaches.” Tr. 80. The ALJ determined that Plaintiff's thyroid disorder, degenerative disc disease of the thoracic spine, depressive disorder, and anxiety disorder were not severe. Tr. 80-81.

         At step three, the ALJ determined that Plaintiff did not have any impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. Tr. 82.

         Before proceeding to step four, the ALJ found that Plaintiff had the residual functional capacity (RFC) to perform light work. The ALJ further specified that “[s]he could perform work that does not require climbing ladders, ropes or scaffolds. She [could] perform work that does not require exposure to unprotected heights or hazardous machinery. She [could] perform simple routine tasks defined as no greater than reasoning level 2.” Tr. 82.

         At step four, the ALJ determined that Plaintiff was unable to perform any past relevant work. Tr. 88.

         At step five, the ALJ relied on the testimony of a vocational expert to find that there were jobs that existed in significant numbers in the national economy that Plaintiff could have performed. Tr. 89. Accordingly, the ALJ concluded that the Plaintiff was not disabled. Tr. 90.


         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). “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). Courts consider 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 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 raises four issues on appeal. She argues the ALJ erred by improperly (1) rejecting her subjective symptom testimony; (2) categorizing her anxiety and depression as non-severe; (3) rejecting lay witness testimony; and (4) rejecting medical opinion evidence.

         I. Plaintiff's Testimony

         Plaintiff argues the ALJ improperly discounted her subjective symptom testimony. The ALJ is responsible for evaluating symptom testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017). Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, “where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains, an adverse credibility finding must be based on clear and convincing reasons” (quotation marks and citation omitted)); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (the ALJ engages in a two-step analysis for subjective symptom evaluation: First, the ALJ determines whether there is “objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged”; and second, “if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.” (quotation marks and citations omitted)). An ALJ must include specific findings supported by substantial evidence and a clear and convincing explanation for discounting a claimant's subjective symptom testimony.

         When evaluating subjective symptom testimony, an ALJ may properly consider several factors, including a plaintiff's “daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may also consider a plaintiff's ability to perform household chores, the lack of any side effects from prescribed medications, and the unexplained absence of treatment for excessive pain. Id.

         Here, the ALJ summarized Plaintiff's testimony as follows:

[Plaintiff] testified she was unable to work because of pain and migraines. She testified she could not sit, stand or walk for long periods. She testified she could not lift much. She testified her pain was caused by too much activity, not getting enough sleep, walking too much, and sitting for periods. She testified she could sit at most an hour. She testified that exercising and physical therapy did not help her pain. She testified her fibromyalgia caused her to be very forgetful and have difficulty focusing. She testified having migraines two to three times a month that last for two to four days. She testified her migraines "started back up" about a year ago. She testified she could walk a block before needing to rest for five to ten minutes. She testified she [] could not lift anything frequently. She testified the most she could lift was ten pounds. She testified her sleep has gotten progressively worse due to her pain. She testified having about "two bad" days a week in which she is resting most of the day. She testified that being around too many people (ten or more people) caused her anxiety. She testified she could not handle being around too many people.

Tr. 83.

         The ALJ concluded that Plaintiff's “medically determinable impairments could reasonably be expected to cause some of the alleged symptoms” and did not identify evidence of malingering. Tr. 83. However, the ALJ found that Plaintiff's allegations were not consistent with the record. Tr. 85. Specifically, (1) the alleged symptoms were not supported by objective medical evidence; (2) Plaintiff failed to follow the recommended treatment (i.e. exercise); (3) “medications/treatment” were relatively effective in controlling Plaintiff's symptoms; (4) Plaintiff's testimony regarding the frequency of her migraines was inconsistent with treatment notes; and (5) Plaintiff's daily activities were “not limited to the extent one would expect, given the complaints of disabling symptoms and limitations.” Tr. 86-87. The ALJ also found that Plaintiff's mental health limitations were inconsistent with the medical evidence. Tr. 86.

         1. Objective ...

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