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Tanya P. v. Commissioner, Social Security Administration

United States District Court, D. Oregon

September 20, 2019

TANYA P., [1] Plaintiff,

          Katherine Eitenmiller HARDER, WELLS, BARON, & MANNING, P.C. Attorney for Plaintiff.

          Renata Gowie Assistant United States Attorney, Michael Howard Social Security Administration Office of the General Counsel Attorneys for Defendant.

          OPINION & ORDER


         Plaintiff Tanya P. brings this action for judicial review of the Commissioner’s final decision denying her application for Supplemental Security Income (“SSI”). This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). The Commissioner’s decision is reversed and remanded for immediate payment of benefits.


         Plaintiff applied for SSI on December 12, 2011, alleging disability as of August 1, 2001. Tr. 465.[2] Plaintiff amended her onset date to December 12, 2011, at the hearing. Tr. 854. Her application was denied initially and on reconsideration. Id. Plaintiff appeared, with counsel, for a hearing on December 17, 2013, before Administrative Law Judge (ALJ) Janice Shave. Tr. 850. On January 13, 2014, ALJ Shave found Plaintiff not disabled. Tr. 477. On June 26, 2015, the Appeals Council issued a decision finding Plaintiff disabled as of October 7, 2013. Tr. 478–84. The Appeals Council remanded the matter for reconsideration of the period from December 12, 2011, through October 6, 2013. Tr. 485–88.

         On March 8, 2016, Plaintiff appeared at a hearing before ALJ Katherine Weatherly. Tr. 903. On May 2, 2016, ALJ Weatherly found Plaintiff not disabled during the relevant period. Tr. 37. The Appeals Council denied review of ALJ Weatherly’s opinion. Tr. 9–12.


         Plaintiff initially alleged disability based on arthritis, a stroke suffered in 2009, hepatitis C, hernia, back and neck problems, right shoulder pain and numbness, pain in her hip, and “mental problems.” Tr. 39. She was 53 at the time of her amended alleged onset date and 57 at the time of the second administrative hearing. Tr. 39, 855, 903. Plaintiff has a high school education but she has no past relevant work. Tr. 36.


         A claimant is disabled if 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. See, e.g., Valentine v. Comm’r, 574 F.3d 685, 689 (9th Cir. 2009). 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. 137 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 impairment meets or equals “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 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. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at141–42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his 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 determined that Plaintiff had not engaged in substantial gainful activity after her amended alleged onset date of December 12, 2011. Tr. 26. Next, at step two, the ALJ determined that Plaintiff has the following severe impairments: “cervical degenerative disc disease with myelopathy/cervicalgia; lumbar degenerative disc disease; right shoulder arthralgia; anxiety disorder with aspects of posttraumatic stress disorder (PTSD); cognitive disorder, NOS; bipolar affective disorder; and history of polysubstance dependence.” Tr. 27. However, at step three, the ALJ determined that Plaintiff’s impairments did not meet or medically equal the severity of a listed impairment. Id. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b) with the following limitations:

[S]he could lift and carry 20 pounds occasionally and 10 pounds frequently, sit six hours of an eight-hour workday, and stand and walk about six hours of an eight-hour workday. She could occasional[ly] push and pull overhead no more than 10 pounds with the dominant right upper extremity. She could occasionally reach in all directions on the right side. She could never climb ladders, ropes, or scaffolds, and frequently crouch, crawl, stoop, and kneel. She could perform occasional flexion of the neck but must avoid repetitive and prolonged flexion, including looking down. The claimant must avoid even moderate exposure to workplace hazards such as unprotected heights and moving machinery. She could have brief, occasional, and non-transactional interaction with the public. The claimant could understand, remember, and carry out simple routine repetitive tasks.

Tr. 29. Plaintiff did not have past relevant work, but at step five the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as “Guard, security.” Tr. 36–37. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 37.


         The reviewing court must affirm the Commissioner’s decision if the Commissioner applied proper legal standards and the 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). “Substantial evidence” means “more than a mere scintilla, but less than preponderance.” 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)). It is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

         The court must weigh the evidence that supports and detracts from the ALJ’s conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the evidence are insignificant if the Commissioner’s interpretation is a rational reading. Id.; see also Batson, 359 F.3d at 1193. However, the court cannot not rely upon reasoning the ALJ did not assert in affirming the ALJ’s findings. Bray, 554 F.3d at 1225–26 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).


         Plaintiff contends that the ALJ erred by: (1) improperly discrediting Plaintiff’s subjective symptom testimony; (2) giving little weight to the opinion of examining licensed psychologists, Scott Alvord, Psy.D and David Northway, Ph.D.; (3) giving no weight to the opinion of nurse practitioner, Nan Rich; and (4) giving partial weight to the lay witness testimony of Plaintiff’s boyfriend. Pl. Op. Br. 6–28, ECF 17. Because the ALJ erred in the analysis of Plaintiff’s symptom testimony, the lay witness testimony of Plaintiff’s boyfriend, and the medical opinions of Dr. Alvord and Dr. Northway, the Court reverses the ALJ’s decision and remands this case for an immediate payment of benefits.

         I. Credibility Determination

         The ALJ is responsible for determining credibility. See Vasquez v. Astrue,572 F.3d 586, 591 (9th Cir. 2009). 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’”); see also Molina v. Astrue,674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages in two-step analysis to determine credibility: 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 ...

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