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Tatiana R. v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

September 3, 2019

TATIANA R., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          MARK D. CLARKE UNITED STATES MAGISTRATE JUDGE

         Tatiana R. ("Plaintiff') seeks judicial review of the final decision of the Commissioner of the Social Security Administrations ("Commissioner") denying her applications for disability insurance benefits ("DIB") under Title II and for supplemental security income ("SSI") under Title XVI of the Social Security Act ("the Act"). For the reasons below, the Commissioner's decision should be REVERSED and this case should be REMANDED for further proceedings, BACKGROUND

         Born in October 1962, Plaintiff was forty-eight years old on the amended alleged onset date. Tr. 17, 124, 129. Plaintiff is the single mother of two children ages nine and eleven, both of whom have been diagnosed mental health issues. Tr. 50, 656. Plaintiff is a recovering alcoholic who is twenty-eight years sober, and participates in an Alcoholic Anonymous ("AA") program. Tr. 55. Plaintiff alleges disability due to depression, obsessive compulsive disorder ("OCD"), attention deficit disorder ("ADD"), neck pain, hip pain, and arthritis. Tr. 317. She has past relevant work as a bookkeeper. Tr. 318.

         Plaintiff filed applications for DIB on May 22, 2012, and SSI on February 19, 2013. Tr. 140, 289-90, 298-303. After an administrative hearing and subsequent unfavorable decision, the Appeals Council remanded the matter for further proceedings. Tr. 90-122, 137-54, 155-56. A second administrative hearing was held before an administrative law judge ("ALJ"), on September 28, 2016. Tr. 39-89. On January 13, 2017, a second ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. Tr. 16-31. After the Appeals council denied her request for review, Plaintiff timely filed a complaint in this Court. Tr. 1-6.

         DISABILITY ANALYSIS

         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). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm V Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R. §§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:

1. Is the claimant performing "substantial gainful activity?" 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment "severe" under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(H), 416.920(a)(4)(ii). An impairment or combination of impairments is "severe" if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death, this impairment must have lasted or be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(H), 416.920(a)(4)(H). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis continues.
a. At that point, the ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's "residual functional capacity" ("RFC"). This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five.
5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1560(c), 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.

See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).

         The claimant bears the burden of proof at steps one through four. Id. at 953; see also Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Id.; see also 20 C.F.R. §§ 404.1566, 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 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, 262 F.3d at 953-54; Tackett, 180F.3d at 1099.

         THE ALJ'S FINDINGS

         Applying the five-step analysis, the ALJ made the following findings:

1. Plaintiff had not engaged in substantial gainful activity from the period of July 1, 2011, the alleged onset date, and met the insured requirements through December 31, 2014. Tr. 19.
2. Plaintiff has the following severe impairments: obesity; cervical degenerative disc disease; and "mental health conditions described variously as [attention deficit disorder ("ADD"), obsessive compulsive disorder ("OCD")] and depression." Id.
3. Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. Tr. 21.
a. Plaintiff has the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(c), 416.967(b), but with the following limitations: she is further limited to no more than frequent handling or fingering bilaterally; she is further limited to simple, repetitive, routine tasks requiring no more than occasional contact with supervisors, coworkers, and the general public, Tr. 23.
4. Plaintiff is unable to perform any past relevant work. Tr. 29.
5. Considering Plaintiffs age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that the claimant can perform. Tr. 30-31.

         Consequently, the ALJ concluded Plaintiff was not disabled as defined by the Act. Tr. 31.

         STANDARD OF REVIEW

         The reviewing court must affirm the Commissioner's decision if it is based on the 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 Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); See also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). '"Substantial evidence' means 'more than a mere scintilla but less than a preponderance,' or more clearly stated, 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Bray v. Comm 'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). In reviewing the Commissioner's alleged errors, this Court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F, 2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         Where the evidence before the ALJ is subject to more than one rational interpretation, the Commissioner's conclusion must be upheld. Batson, 359 F.3d at 1198 (citing Andrews, 53 F.3d at 1041). "However, a reviewing court must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum of supporting evidence.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock, 879 F.2d at 501). Additionally, a reviewing court "cannot affirm the [Commissioner's] decision on a ground that the [Administration] did not invoke in making its decision." Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citations omitted). Finally, a court may not reverse an ALJ's decision on account of an error that is harmless. Id. at 1055-56.

         Even where findings are supported by substantial evidence, "the decision should be set aside if the proper legal standards were not applied in weighing the evidence and making the decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the case for a rehearing.

         DISCUSSION

         Plaintiff assigns error to numerous portions of the ALJ's decision. First, she contends the ALJ erred by not finding additional impairments severe at step two. Second, Plaintiff asserts that the ALJ erroneously found her impairments did not satisfy a Listing at step three. Third, she argues the ALJ improperly discounted her subjective symptom testimony. Fourth, Plaintiff contends the ALJ erroneously rejected the third-party statements from her parents. Fifth, Plaintiff asserts the ALJ erroneously rejected medical opinion evidence. Sixth, she asserts the ALJ's step five finding is not supported by substantial evidence. The Court discusses each assignment of error in turn.

         I. The ALJ properly evaluated Plaintiffs severe impairments at step two.

         Plaintiff asserts the ALJ erred in not finding the following impairments severe at step two: post-traumatic stress disorder ("PTSD"); chronic strain of the shoulder; chronic sprain or strain of the left hip/thigh; bilateral carpal tunnel syndrome; sleep disturbance/insomnia and fatigue; tinnitus; post-concussion syndrome; chronic joint pain in bilateral knees; chronic lower back pain; gastroesophageal reflux disease ("GERD"); and chest pain.

         At step two of the sequential process, the ALJ must determine 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). To demonstrate a severe medically determinable impairment requires a determination that (1) the impairment results from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques; and (2) the severity must be such that it significantly decreases the physical or mental ability of a person to perform basic work activities. 20 C.F.R. §§ 404.1508, 416.908 (effective through March 26, 2017).[2] The impairment "must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms." 20 C.F.R. §§ 404.1528, 416.908. "Signs, symptoms and laboratory findings" are defined as:

(a) Symptoms are your own description of your physical or mental impairment. Your statements alone are not enough to establish that there is a physical or mental impairment.
(b) Signs are anatomical, physiological, or psychological abnormalities which can be observed, apart from your statements (symptoms). Medically acceptable clinical diagnostic techniques must show signs[.]
(c) Laboratory findings are anatomical, physiological, or psychological phenomena which can be shown by the use of a medically acceptable laboratory diagnostic techniques. Some of these diagnostic techniques include chemical tests, electrophysiological studies ..., (X-rays), and psychological tests.

Id.

         Other than listing the impairments she believes the ALJ failed to find severe at step two, Plaintiff failed to argue with sufficient specificity how those impairments were "established by medical evidence consisting of signs, symptoms, and laboratory findings, [and] not only by [her] statement of symptoms." 20 C.F.R. §§ 404.1528, 416.908; see also Clemens v. Berryhill-No. 3:16-cv-02123-MC, 2018 WL 1730723, at *2 (D. Or. Apr. 10, 2018) (rejecting claimant's step two argument that "was not argued with specificity") (citing Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1162 n.2 (9th Cir. 2003) ("[I]ssues not argued with specificity in briefing will not be addressed.")). Moreover, the ALJ discussed at length many of the impairments Plaintiff asserts were erroneously rejected. See Tr. 19 (noting that Plaintiff had "exhibited a constellation of symptoms that have resulted in varying diagnosis for her mental health conditions depending on her presentation during different examinations" and that the ALJ "considered all mental health symptoms regardless of diagnosis"); Tr. 20 (discussing hip pain, carpal tunnel, back pain, and concussions). Finally, to the extent the ALJ erred, any error was harmless because the ALJ resolved step two in Plaintiffs favor. See Burch, 400 F.3d at 682-83 (explaining that any error in omitting an impairment from the severe impairments at step two is harmless where step two is resolved in claimant's favor).

         The ALJ should be affirmed as to this issue.

         II. The ALJ's step three ...


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