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Heather G. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

October 16, 2019

HEATHER G., [1] Plaintiff,


          Jolie A. Russo, United States Magistrate Judge.

         Plaintiff Heather G. brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Title II Disability Insurance Benefits. All parties have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision is reversed and this case is remanded for further proceedings.


         Born in 1972, plaintiff alleges disability beginning May 26, 2011, due to fibromyalgia, post-traumatic stress disorder, and pain in her shoulders, back, hips, arms, and hands. Tr. 158, 184. On November 29, 2017, a hearing was held before an Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as did a vocational expert (“VE”). Tr. 28-60. On March 7, 2018, the ALJ issued a decision finding plaintiff not disabled. Tr. 15-23. After the Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 1-5.


         At step one of the five step sequential evaluation process, the ALJ found that plaintiff had not engaged in substantial gainful activity from alleged onset date “through her date last insured of June 30, 2016.” Tr. 17. At step two, the ALJ determined plaintiff's fibromyalgia, degenerative disc disease, and “right shoulder impairment status post two surgeries” were medically determinable and severe. Id. At step three, the ALJ found plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 17.

         Because plaintiff did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff had the residual functional capacity (“RFC”) to perform light work as defined by 20 C.F.R. § 404.1567(b) except:

she could stand and walk for 4 hours and can sit for to 6 hours, could occasionally climb ramps and stairs, could never climb ladders, ropes or scaffolds, could occasionally balance, stoop, kneel and crouch, could never crawl, could occasionally reach overhead, could frequently reach in all other directions, could frequently handle and finger, and should not have concentrated exposure to extreme temperatures, vibration, pulmonary irritants and hazards.

Tr. 18.

         At step four, the ALJ determined plaintiff was unable to perform any past relevant work. Tr. 21. At step five, the ALJ concluded, based on the VE's testimony, that plaintiff could perform a significant number of jobs in the national economy despite her impairments, such as laundry sorter and electronics worker. Tr. 22-23.


         Plaintiff argues the ALJ erred by: (1) discrediting her subjective symptom testimony; (2) rejecting the medical opinions of Thomas Gwynn Carver, M.D., Patrick Denard, M.D., Jonathan Hoppert, M.D., and Scott Kitchel, M.D.; (3) neglecting to address the lay opinion of Colleen Cormack, vocational rehabilitation consultant; and (4) failing to account for all of her limitations in the RFC and at step five. Pl.'s Opening Br. 4-19 (doc. 12).

         I. Plaintiff's Testimony

         Plaintiff asserts the ALJ erred by discrediting her subjective symptom testimony concerning the severity of her impairments. When a claimant has medically documented impairments that could reasonably 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) (internal citation omitted). A general assertion 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 discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).

         Thus, in formulating the RFC, the ALJ is not tasked with “examining an individual's character” or propensity for truthfulness, and instead assesses whether the claimant's subjective symptom statements are consistent with the record as a whole. SSR 16-3p, available at 2016 WL 1119029. If the ALJ's finding regarding the claimant's subjective symptom testimony is “supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal citation omitted).

         At the hearing, plaintiff testified she was unable to work since her May 2011 on-the-job injury due to right shoulder, hip, and back pain (especially following her April 2014 motor vehicle accident). Tr. 33-40. Plaintiff also endorsed numbness in her right hand and arm, which made grasping objects and repetitive motions difficult. Tr. 41, 43. Because of her impairments, plaintiff testified that she cannot: unload the dishwasher “without dropping stuff, ” type or write because her “hand and arm usually will [cramp up or] go numb after a very short period, ” or “walk a normal gait” due to “stabbing” hip pain. Tr. 34, 36, 43. In addition, plaintiff stated she can only stand for 15 minutes before needing to change position and reclines for 60-70% of the day to take the pressure off her back. Tr. 40, 42. Since her second shoulder surgery in April 2013, plaintiff explained that she naps during the day for approximately two hours. Tr. 47-48.

         In terms of daily activities, plaintiff stated: “I don't do a whole lot. I'm at the house by myself.” Tr. 35. Namely, plaintiff indicated that she might drive once or twice per week to grocery shop, do one load of laundry per day with breaks, and/or pick up the house but not “all in one shot.” Tr. 33-36. Plaintiff denied any medication side-effects; however, she noticed “quite a bit of difference in [her] pain level” due to the recent taper of her narcotic medications. Tr. 45.

         After summarizing her hearing testimony, the ALJ determined that plaintiff's medically determinable impairments could reasonably be expected to produce some degree of symptoms, but her “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” Tr. 18-21. Specifically, the ALJ cited to plaintiff's daily activities and treatment record. Id.

         Concerning the latter, the ALJ determined the medical record reflected that plaintiff's “pain was well-controlled” with medication. Tr. 21. “[W]hether the alleged symptoms are consistent with the medical evidence” is a relevant consideration. Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (citations omitted). Similarly, failure to report allegedly disabling symptoms to treatment providers ...

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