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Daniel D. v. Commissioner, Social Security Administration

United States District Court, D. Oregon

September 17, 2019

DANIEL D.,[1] Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.

          Nancy J. Meserow Attorney for Plaintiff

          Billy J. Williams United States Attorney Renata Gowie Assistant United States Attorney, Erin F. Highland Social Security Administration Office of the General Counsel Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Plaintiff Daniel D. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB). This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). The Court reverses the decision of the Commissioner and remands this case for further proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB on January 21, 2015, alleging an onset date of May 31, 2009. Tr. 147.[2] Plaintiff's date last insured is December 31, 2012. Tr. 147. His application for DIB was denied initially and on reconsideration. Tr. 151-57, 159-61.

         On April 19, 2017, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 99. On July 5, 2017, the ALJ found Plaintiff not disabled. Tr. 23. The Appeals Council denied review. Tr. 1. In its decision, the Appeals Council also found that additional evidence submitted by Plaintiff did not “show a reasonable probability that it would change the outcome of the decision.” Tr. 2.

         FACTUAL BACKGROUND

         Plaintiff alleged disability based on chronic fatigue, Lyme disease, and depression. Tr. 262. At the time of his date last insured, he was 47 years old. Tr. 21. He has a high school education and past relevant work as sheet metal fabricator, cabinet installer, construction contractor, and tool rental clerk. Tr. 21, 118.

         SEQUENTIAL DISABILITY EVALUATION

         A claimant is disabled if they are 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 the 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.

         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 can perform other work that exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after his alleged onset date of May 31, 2009, through his date last insured of December 31, 2012. Tr. 16. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: “chronic fatigue syndrome, and degenerative joint disease affecting the right knee.” Tr. 16. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 18. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work “except not more than occasional climbing.” Tr. 18. Plaintiff could not perform any of his past relevant work, which was classified as above the light exertional range. Tr. 21. But at step five the ALJ found jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as mail sorter, laundry sorter, and office cleaner. Tr. 22. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 22-23.

         STANDARD OF REVIEW

         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).

         DISCUSSION

         Plaintiff argues that the ALJ erred by: (1) discounting Plaintiff's subjective symptom testimony; (2) discounting the opinion of treating physician A. Perry Hendin, MD; and (3) formulating an RFC after rejecting the medical opinion evidence and without further development of the record. Pl. Am. Br., ECF 18. Plaintiff also argues that a remand is warranted because new evidence submitted to the Appeals Council undermines the ALJ's decision. Id. This Court agrees.

         1. New Evidence Submitted to the Appeals Council

         Plaintiff argues that new evidence submitted to the Appeals Council changes the weight of the evidence such that the ALJ's decision is unsupported by substantial evidence. Pl. Am. Br. 2. “[W]hen a claimant submits evidence for the first time to the Appeals Council, which considers that evidence in denying review of the ALJ's decision, the new evidence is part of the administrative record, which the district court must consider in determining whether the Commissioner's decision is supported by substantial evidence.”[3] Brewes v. Comm'r, Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012).

         As the Commissioner points out, some of the evidence submitted to the Appeals Council was duplicative or outside the relevant period. Def. Br. 4, ECF 19. Yet much of the additional evidence is directly relevant to findings made by the ALJ in this case. See Ward v. Colvin, No. 3:14-CV-01162-HZ, 2015 WL 5032038, at *6 (D. Or. Aug. 25, 2015) (when new evidence conflicted with evidence upon with the ALJ relied and supported the discounted opinion of a medical provider, the Court found that the ALJ's decision was not supported by substantial evidence). As described below, the new evidence includes additional records from Dr. Hendin that contradict the reasons cited by the ALJ for discounting Plaintiff's testimony and the opinion evidence of Dr. Hendin. See infra Part II(D)-(C), Part III. After considering these new records, the Court finds that the ALJ's decision is unsupported by substantial evidence.

         II. Subjective Symptom Testimony

         Plaintiff argues that the ALJ erred in discounting his subjective symptom testimony. Pl. Am. Br. 23. The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591. In assessing a claimant's testimony about 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 ...


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