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Lori G. v. Berryhill

United States District Court, D. Oregon, Portland Division

September 13, 2019

LORI G., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          JAMIE M. EVANS Evans & Evans PC Of Attorney for Plaintiff

          BILLY J. WILLIAMS United States Attorney RENATA GOWIE Assistant United States Attorney

          MICHAEL HOWARD Special Assistant United States Attorney Of Attorney for Defendant



         Lori G. ("Plaintiff) seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying her applications for disability insurance benefits ("DIB") under Title II and supplemental security income ("SSI") under Title XVI of the Social Security Act (the "Act"). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). (ECF No. 6.) Based on a careful review of the record, the Commissioner's decision is REVERSED and this case is REMANDED for further proceedings.

         Procedural Background

         Plaintiff applied for DIB on May 20, 2014, and SSI on October 20, 2014, alleging a disability onset date as of October 26, 2013. Tr. 17. Her applications were denied initially and upon reconsideration. (Tr. 88, 97, 108, 109.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and an administrative hearing was held on July 22, 2016. (Tr. 10, 43-87.) On March 17, 2017 an ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act. (Tr. 17-27.) The Appeals Council denied Plaintiffs request for review on February 9, 2017, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6.) This appeal followed.

         Factual Background

         Born in 1958, Plaintiff was 55 years old on the alleged onset date. (Tr. 89.) She has past relevant work as an office manager and medical secretary. (Tr. 22, 26.) Plaintiff alleged disability based upon balance issues, memory issues, depression, panic attacks, anxiety, and shakiness. (Tr. 257.)

         Standard of Review

         The 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. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The 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). "Where the evidence as a whole can support either a grant or a denial, [a court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140(1987);20C.F.R. §§404.1520, 416.920. At step one, the Commissioner determines whether the claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, she is not disabled.

         At step two, the Commissioner evaluates 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 the claimant does not have a severe impairment, she is not disabled.

         At step three, the Commissioner determines whether the claimant's impairments, either individually 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, she is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         At step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant can perform past relevant work, she is not disabled; if she cannot, the burden shifts to the Commissioner.

         At step five, the Commissioner must establish the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(g), 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§404.1566, 416.966.

         ALJ's Decision

         The ALJ performed the sequential analysis, as noted above. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date and met the insurance requirements of the Act. (Tr. 19.) At step two, the ALJ determined Plaintiff had the following severe impairments: dysthymic disorder/depressive disorder and anxiety disorder. (Id.) At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (Tr. 20.)

         The ALJ next determined Plaintiff had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels with the following non-exertional limitations:

She can perform simple, routine tasks defined as no greater than reasoning level 2; she is able to perform work that does not require public contact; she is able to have occasional, superficial contact with co-workers and occasional contact with supervisors.

(Tr. 22.) At step four, the ALJ determined that Plaintiff was unable to perform her past relevant work. (Tr. 25.) At step five, the ALJ found, based on the RFC and the vocational expert ("VE") testimony, a significant number of jobs existed in the national and local economy such that Plaintiff could sustain employment despite her impairments. (Tr. 26-27.) Specifically, the ALJ found Plaintiff could perform the jobs of "production assembler" and "assembler of electrical accessories I." (Tr.27.)


         Plaintiff argues the ALJ erred by: (1) failing to provide clear and convincing reasons for rejecting her subjective symptom testimony; and (2) improperly rejecting the medical opinions of James Powell, Psy.D., and Jennifer Reffel, Psychiatric Mental Health Nurse Practitioner ("PMHNP"); and (3) failing to account for her moderate limitation in concentration, persistence, and pace in the RFC.

         I. Plaintiffs Subjective Symptom Testimony

         Plaintiff contends the ALJ failed to provide clear and convincing reasons for rejecting her subjective symptom testimony. To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017); 20 C.F.R. §§ 404.1529, 416.929. The first stage is a threshold test in which the claimant must produce 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, absent affirmative evidence that the claimant is malingering, the ALJ must provide clear and convincing reasons for ...

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