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Brandi L. v. Commissioner of Social Security Administration

United States District Court, D. Oregon, Pendleton Division

October 17, 2019

BRANDI L., [1]Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          OPINION AND ORDER

          MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE

         Brandi L. (“Plaintiff”) seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) denying her claim for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-33, and supplemental security income pursuant to Tile XVI of the Social Security Act. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). The parties consented to full jurisdiction by a U.S. Magistrate Judge. ECF No. 9. For the reasons set forth below, the Court remands for the immediate calculation and award of benefits.

         BACKGROUND

         Plaintiff filed for a period of disability, disability insurance benefits, and supplemental security income on March 23, 2017. Tr. 242. The amended alleged onset date of disability is February 1, 2016 (“AAOD”). Tr. 24; Pl.'s Br. 1, ECF No. 13; Def.'s Br. 2, ECF No. 16. The claims were initially denied, and Plaintiff timely filed a request for a hearing. Tr. 142-50, 157-63. On April 17, 2018, the Administrative Law Judge (“ALJ”) Michele Kelley held a video hearing between Plaintiff in Boise, Idaho, and the ALJ in Billings, Montana. Tr. 41. On May 9, 2017, the ALJ issued an unfavorable decision. Tr. 20. Plaintiff requested an Appeals Council (“AC”) review on July 2, 2018. Tr 238-40. The AC denied the request. Tr. 1. Plaintiff now seeks judicial review of the Commissioner's decision.

         Disability Analysis

         The definition of disability and the five-step sequential analysis of disability is set forth in 42 U.S.C. § 423(d) and 20 C.F.R. §§ 404.1520(b)-(f), 416.920(b)-(f). At steps one through four of the sequential inquiry, the burden of proof is on the claimant. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the agency. Id. The five-step sequential inquiry, as described in Tackett, is explained below.

         Step One: The ALJ determines whether the claimant is engaged in substantial gainful activity. A claimant who is engaged in such activity is not disabled. If the claimant is not engaged in substantial gainful activity, the ALJ proceeds to evaluate the claimant's case under step two. 20 C.F.R. § 416.920(b).

         Step Two: The ALJ determines whether the claimant has one or more severe impairments. A claimant who does not have any such impairment is not disabled. If the claimant has one or more severe impairment(s), the ALJ proceeds to evaluate the claimant's case under step three. 20 C.F.R. § 416.920(c).

         Step Three: Disability cannot be based solely on a severe impairment. Therefore, the ALJ next determines whether the claimant's impairment “meets or equals” one of the presumptively disabling impairments listed in the Social Security Administration (“SSA”) regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. A claimant who has an impairment that meets a listing is presumed disabled under the Act. If the claimant's impairments are not equivalent to one of the enumerated impairments, between the third and fourth steps the ALJ is required to assess the claimant's residual functional capacity (“RFC”), based on all the relevant medical and other evidence in the claimant's record. See 20 C.F.R. § 416.920(e). The RFC is an estimate of the claimant's capacity to perform sustained, work-related physical and/or mental activities on a regular and continuing basis, despite limitations imposed by the claimant's impairments. See 20 C.F.R. § 416.945; see also SSR 96-8p, 1996 WL 374184.

         Step Four: The ALJ determines whether the claimant is able to perform work he or she has done in the past. A claimant who can perform past relevant work is not disabled. If the claimant demonstrates he or she cannot do past relevant work, the ALJ's evaluation of claimant's case proceeds under step five. 20 C.F.R. §§ 416.920(e), 416.920(f).

         Step Five: At step five, the ALJ's's burden is to demonstrate that the claimant can make an adjustment to other work after considering the claimant's RFC, age, education, and work experience. 20 C.F.R. § 416.920(g). A claimant who cannot perform other work is disabled. If the ALJ finds the claimant is able to do other work, the ALJ must show that a significant number of jobs exist in the national economy that claimant is able to do. The ALJ may satisfy this burden through the testimony of a vocational expert (“VE”), or by reference to the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. If the ALJ demonstrates that a significant number of jobs exist in the national economy that the claimant is able to perform, the claimant is not disabled. If the ALJ does not meet the burden, the claimant is disabled. 20 C.F.R. § 416.920(g).

         The ALJ's Findings

         At step one of the sequential evaluation process, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through June 30, 2019. Tr. 25. The ALJ found that Plaintiff had not engaged in substantial gainful activity since the AAOD. Id. At step two, the ALJ found that Plaintiff suffered from the following severe impairments: bipolar disorder, anxiety disorder, personality disorder, and hypersomnia. Id.

         At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 of the Act. Tr. 26. The ALJ found that Plaintiff has the RFC to understand, remember, and carry out unskilled tasks. Tr. 27. Plaintiff can maintain attention, concentration, persistence, and pace for eight-hour workdays. Id. Further, Plaintiff cannot tolerate interaction with the public, no more than occasional interaction with supervisors, and no more than occasional interaction with coworkers. Id.

         At step four, the ALJ determined that Plaintiff was able to perform her past relevant work as a sample gatherer, cleaner (housekeeping), and janitor. Tr. 32. Therefore, the ALJ held that Plaintiff has not been under a disability as defined by the Social Security Act at any time from September 1, 2012, through the date of the decision. Tr. 34.

         STANDARD OF REVIEW

         This 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). However, the Court may set aside a denial of Social Security benefits when the agency's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Desrosiers v. Sec. of Health & Human Serv., 846 F.2d 573, 575-76 (9th Cir. 1988) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986)). 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) (citation and internal quotations omitted); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). “The court must consider both evidence that supports and evidence that detracts from the ALJ's conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.” Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing Vidal v. Harris, 637 F.2d 710, 712 (9th Cir. 1981); Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975)). “Where the evidence as a whole can support either a grant or a denial, [this Court] may not substitute [its] judgment for the ALJ's.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted). But a decision supported by substantial evidence must be set aside if the Commissioner did not apply the proper legal standards in weighing the evidence and making the decision. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

         DISCUSSION

         Plaintiff contends that the ALJ erred in finding Plaintiff could sustain work activities in an ordinary work setting on a regular and continuing basis. See Pl.'s Br. 7-20, ECF No. 13. Plaintiff seeks review of the following issues: (1) whether the ALJ erred by rejecting Plaintiff's subjective symptoms for less than clear and convincing reasons; (2) whether the ALJ erred in rejecting the opinion of treating psychiatrist Dr. Steinberg; and (3) whether the ALJ erred by failing to consider Plaintiff's impairments in combination. Id. The Court will address each issue in turn.

         I. Subjective Symptom Testimony

         The ALJ improperly rejected Plaintiff's testimony. The ALJ found that Plaintiff's statements regarding the intensity, persistence, and limiting effects of her symptoms were not entirely consistent with the medical evidence and other evidence in the record. Id.

         The agency employs a two-step process to evaluate a claimant's symptoms. Molina v. Astrue, 674 F.3d at 1112. “First, the ALJ must determine whether there is objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged.” Id. (internal citations and quotations omitted). A plaintiff need only show that her impairment could cause some degree of the symptom; she need not prove the severity or degree of the symptom. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ may not reject a plaintiff's subjective testimony as to the degree of symptoms as long as some objective evidence is produced of underlying impairment. Id.

         If a plaintiff presents objective evidence of impairment, the ALJ must next find either affirmative evidence of malingering, or give specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms. Id. (internal citations and quotations omitted). “This is not an easy requirement to meet: ‘The clear and convincing standard is the most demanding in Social Security cases.'” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). Lastly, rejection of a claimant's credibility that amounts to little more than a recitation of medical evidence in support of the RFC assessment is insufficient as a matter of law. Treichler v. Massanari, 775 F.3d 1090, 1102-03 (9th Cir. 2014); Brown-Hunter v. Colvin, 806 F.3d 487, 501 (9th Cir. 2015).

         First, the ALJ found that there was objective medical evidence of an underlying impairment that could reasonably be expected to produce Plaintiff's symptoms. Tr. 29. Next, the ALJ did not find evidence of malingering. See Tr. 23-34. Thus, the ALJ must have provided specific, clear and convincing reasons for rejecting claimant's testimony. Plaintiff argues that the ALJ failed to provide clear and convincing reasons for discounting Plaintiff's testimony of fatigue, anxiety, or difficulty remaining awake during the day. See Pl.'s Br. 17, ECF No. 13. Specifically, Plaintiff argues that sporadic completion of minimal activities is an insufficient basis for rejecting Plaintiff's testimony. Id. at 16.

         One need not vegetate in a dark room in order to be eligible for benefits. Molina, 674 F.3d at 1112-13 (citing Cooper v. Bowen, 815 F.2d 557, 561 (9th Cir. 1987)) (internal quotation marks omitted). “[M]any home activities may not be easily transferable to a work environment” because a plaintiff at home has more flexibility to schedule tasks, get assistance from others, and is not held to a minimum standard of performance as she would be at work. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007); Garrison, 759 F.3d at 1016 (internal citations and quotations omitted).

         Plaintiff cares for her companion animals, and regularly attends doctor's appointments, counseling, church, and occasionally book club. Tr. 313-14. However, Plaintiff stated that she is unable to work, in part, due to her mental impairments, including severe anxiety and panic attacks when exposed to “everyday living experiences” (e.g., leaving apartment, grocery shopping, driving, filling out forms, and interactions with people). Tr. 310, 312-13. Plaintiff testified that she does not cook, has not been reading for book club meetings, neglects household chores, naps excessively, and has anxiety about leaving her home. Tr. 28, 60-63. Plaintiff states that her condition affects her ability to think clearly, concentrate, and remember. Tr. 310. Further, Plaintiff contends that she has sleep abnormalities that impede her ability to function, which have worsened over time. Tr. 310-11. Despite using ...


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