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Lori L. K. v. Commissioner Social Security Administration

United States District Court, D. Oregon, Portland Division

September 30, 2019

Lori L. K., [1] Plaintiff,
v.
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.

          OPINION AND ORDER

          Ann Aiken United States District Judge

         Lori K. ("Plaintiff”) brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiffs application for Disability Insurance Benefits ("DIB") on February 27, 2018. For the reasons that follow, the decision of the Commissioner is AFFIRMED.

         BACKGROUND

         On November 20, 2014, Plaintiff filed for DIB, alleging disability beginning on Marcb 26, 2014. The claim was denied initially on March 23, 2015, and upon reconsideration on May 29, 2015. Following denials at the initial and reconsideration levels, Plaintiff filed a written request for a hearing on June 9, 2015. An administrative law judge ("ALJ") held a hearing on November 18, 2016. Plaintiff was represented by counsel at the hearing, and she and a vocational expert ("VE") offered testimony. The ALJ found Plaintiff not disabled in a written decision issued on February 28, 2017. Plaintiff requested a review of the ALJ's decision from the Appeals Council ("AC") and submitted new evidence for its consideration. On February 15, 2018, the AC denied review of the ALJ's decision and declined to consider and admit Plaintiffs new evidence. Following that denial, Plaintiff filed the present complaint in this Court.

         STANDARD OF REVIEW

         42 U.S.C. § 405(g) provides for judicial review of the Social Security Administration's disability determinations: "The court shall have power to enter ...a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." In reviewing the ALJ's findings, district courts act in an appellate capacity, not as the trier of fact. Fair v, Bowen, 885 F.2d 597, 604 (9th Cir. 1989). The district court must affirm the ALJ's decision unless it contains legal error or is not supported by substantial evidence." Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Harmless legal errors are not grounds for reversal. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citing Burch v. Bamhart, 400 F.3d 676, 679 (9th Cir. 2005)). "Substantial evidence is 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." Gutierrez v. Comm'r of Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014) (citation and internal quotation marks omitted). The court must evaluate the complete record and weigh "both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation, but the Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

         COMMISSIONER'S DECISION

         The initial burden of proof rests upon the plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the plaintiff 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); 20 C.F.R. § 404.1520(a)(4); id. § 416.920(a)(4). At step one, the ALJ found that Plaintiff had not engaged in "substantial gainful activity" since the alleged onset date of March 26, 2014 through the date last insured. Tr. 16. 20 C.F.R; §§ 404.1520(a)(4) (i), (b); id. §§ 416.920(a)(4)(i), (b). At step two, the ALJ found that plaintiff had severe impairments of "obesity, diabetes mellitus with neuropathy, sacroilitis, depression, and anxiety." Tr. 16. 20 C.F.R. §§ 404.1520(a)(4)(h), (c); id. §§ 416.920(a)(4)(ii). At step three, the ALJ determined plaintiffs impairments, whether considered singly or in combination, did not meet or equal "one of the listed impairments" that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Tr. 17. 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); id. §§ 416.920(a)(4)(in), (d).

         The ALJ then assessed plaintiffs residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e); id. § 416.920(e). The ALJ found that Plaintiff

has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant is limited to no more than occasional climbing ladders, ropes, and scaffolds. She needs to avoid concentrated exposure to unprotected heights, moving machinery, and similar hazards. She is limited to performing simple, repetitive, routine tasks that require no more than occasional contact with coworkers and the public.

Tr. 18. At step four, the ALJ found that Plaintiff was "unable to perform any past relevant work." Tr. 28. At step five, the ALJ found that there were "other jobs existing in significant numbers in the national economy that Plaintiff could perform, " including motel cleaner, electronics worker, and price marker. Tr. 28-29. Accordingly, the ALJ found that Plaintiff was not disabled under the Act. Tr. 29.

         DISCUSSION

         Plaintiff raises five issues on appeal. Plaintiff contends that the Commissioner erred in: (1) improperly evaluating plaintiffs subjective symptom testimony, (2) improperly evaluating lay witness statements; (3) improperly analyzing the medical evidence; (4) improperly assessing Plaintiffs RFC; and (5) not considering and reviewing the new evidence submitted to the AC. The Court will address each issue in turn.

         I. Subjective Symptom Testimony

         Plaintiff argues that the ALJ improperly evaluated Plaintiffs subjective symptom testimony. Plaintiff partially relies on the additional medical records which were submitted to the AC following the ALJ initial decision. As discussed below, the Court finds that the supplemental evidence Plaintiff does not provide any new or relevant information which would cause the Court to find harmful error in the ALJ's decision. Therefore, in this section, the Court examines Plaintiffs additional arguments concerning the ALJ's evaluation of Plaintiffs symptom testimony.

         When a claimant's medically-documented impairments reasonably could be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which . . . testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discount the claimant's testimony, " Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). If the ALJ's credibility finding is specific, clear, and convincing, and supported by substantial evidence in the record, the court may not engage in second-guessing. See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

         The regulations describe a two-step process for evaluating symptoms testimony. 20 C.F.R. §§ 404.1529(a) & (c)(1); 416.929(a) & (c)(1). The ALJ must consider whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce symptoms, including pain. Id. Second, the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations. Id. For this purpose, whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the undersigned must consider other evidence in the record to determine if the claimant's symptoms limit the ability to do work-related activities. Id.

         In the present case, the ALJ's findings regarding Plaintiffs symptom testimony were specific, clear, and convincing as to why he did not find Plaintiffs symptoms to be consistent with the other evidence in the record. Tr. 19-22. In his decision, the ALJ split the symptom analysis into two parts: mental health and physical health.

         Regarding Plaintiffs mental health-related symptoms, the ALJ found that they "primarily show symptoms of anxiety that appear to be in reaction to situational stressors, such as poor finances or believing herself to be harassed by supervisors." Tr. 22. The ALJ relied on evidence from the medical record to reach this conclusion. Tr. 19-22. The ALJ relied on the reports of Dr. Patricia Engle, MD, Catherine Melo, MSW, Dr. Laurence Binder, MD, Sara Mueller, MA, QMHP, Wendy Sell, BSW, and Dr. Robert Olsen, MD. Id. The ALJ used these sources to cite specific examples of inconsistencies between Plaintiffs testimony and other evidence in the record. Id. For example, with Dr. Engle's reports, the ALJ noted that in March of 2014, two days after the alleged onset date, Plaintiff had complained of "corrective feedback" and a "work plan" at her job that aggravated her anxiety. Tr. 19. At a follow-up with Dr. Engle in May of 2014, Plaintiff reported sleeping better with a new medication, and that her medication was being managed by a psychiatrist. Id. Additionally, Plaintiff also described her work conditions as "toxic" and said that her plan was to leave her job. Id. In August of 2014, Plaintiff reported more situational stressors to Dr. Engle, including financial and family-related issues. Tr. 20. In both July and August of 2014, Plaintiff reported to Dr. Engle that she was "excited" about starting vocational rehabilitation. Tr. 19-20. Dr. Engle wrote that she felt Plaintiff was "clearly motivated to work." Tr. 20.

         For Dr. Binder, the ALJ noted that Plaintiff also complained of stress and anxiety caused by work conditions and financial problems. Tr. 19. The ALJ viewed Ms. Mueller's and Ms. Sell's notes longitudinally and observed that Plaintiffs anxiety fluctuated based off situational stressors but that she experiencing success with using techniques she learned in counseling. Tr. 20-21. Additionally, the ALJ noted that Ms. Sell's notes reflected that Plaintiff could maintain regular appointments and navigate various local social service agencies, Tr. 21. Finally, the ALJ looked at the notes of Dr. Olsen, who reported that Plaintiff was conversing cordially with clinic staff before her appointment, but that Plaintiffs demeanor changed "drastically" at the start of the appointment. Id. The ALJ also quoted Dr. Olson's objective findings, which reported a fairly normal and calm demeanor despite the Plaintiffs expressed panic and stress. Id. Indeed, Dr. Olson noted that Plaintiff was "very invested" in a PTSD diagnosis. Id. The ALJ also described how, at Plaintiffs follow-ups with Dr. Olson, Plaintiff displayed the same calm, alert, and oriented behavior. Tr. 21-22.

         The ALJ cited to numerous sources within the record and notes patterns within Plaintiffs history of seeking mental health treatment. In sum, the ALJ relied on objective medical evidence in the record, as well as on Plaintiffs work history, on the pattern of situational stressors that correlated with Plaintiffs anxiety, and on the evidence of some improvement with treatments. Thus, based on this record, the Court finds that the ALJ did not err in discrediting Plaintiffs statements related to the intensity, persistence, and limiting effects of her mental health symptoms.

         Regarding Plaintiffs physical health-related symptoms, the ALJ found that Plaintiffs treatment plan had been conservative and not indicative of physical symptoms or limitations so severe as to be disabling. Tr. 23. The ALJ relied on sources within the record to cite to specific examples of inconsistencies between Plaintiffs testimony and other evidence in the record. Tr. 22-23. For example, Plaintiff underwent elective laparoscopic gastric bypass surgery on July 2015 to address her obesity and subsequent health complaints. Tr. 22-23. The ALJ identified notes from Dr. Richard Hsu two months after the surgery that stated Plaintiff was doing well and that her blood sugars were doing better. Tr. 23. The ALJ reviewed several other notes from Dr. Hsu that indicated overall that, besides some sacral and lower lumbar tenderness, Plaintiffs systems were running normally. Id. The ...


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