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Deborah H. v. Commissioner Social Security Administration

United States District Court, D. Oregon, Portland Division

October 22, 2019

DEBORAH H., [1]Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.



         Plaintiff Deborah H. seeks judicial review of the final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her applications for disability insurance benefits (“DIB”) under Title II and supplemental security income (“SSI”) under Title XVI of the Social Security Act (the “Act”). (Docket No. 1). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). See (Docket No. 21). For the reasons that follow, the Commissioner's decisions is REVERSED and this case is REMANDED for further proceedings.


         Plaintiff filed applications for DIB and SSI on October 24, 2013, alleging a disability onset date as of March 1, 2013. Tr. 18, 172-79.[2] Her applications were denied initially and upon reconsideration. Tr. 65-66, 87-88. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and a hearing was held on October 12, 2016. Tr. 40-64, 130-131. On November 30, 2016, an ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 18-28. The Appeals Council denied plaintiff's request for review on August 17, 2017, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6. This appeal followed.


         Born in 1966, plaintiff was 46 years old on her alleged onset date. Tr. 26, 67. She completed at least the twelfth grade and has past relevant work as a cosmetologist and horticultural nursery salesperson. Tr. 26, 44, 234. She alleged disability based on mental conditions that include bipolar 1 with severe mania and moderate psychosis; anxiety; depression; and posttraumatic stress disorder (“PTSD”). Tr. 233; see also Tr. 20. Plaintiff lives with her significant other, son, and two roommates. Tr. 43.


         The 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). 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) (quotation omitted). The court must weigh “both the evidence that supports and detracts from the [Commissioner's] conclusion.” Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). “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.” Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005) (holding that the court “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation”). “[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quotation omitted).

         The initial burden of proof rests on the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant 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 process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520, 416.920. First, the Commissioner determines whether a claimant is engaged in “substantial gainful activity”; if so, the claimant is not disabled. Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). At 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). A severe impairment is one “which significantly limits [the claimant's] physical or mental ability to do basic work activities[.]” 20 C.F.R. §§ 404.1520(c) & 416.920(c). If not, the claimant is not disabled. Yuckert, 482 U.S. at 141. At step three, the Commissioner determines whether the impairments meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Id.; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the analysis proceeds. Yuckert, 482 U.S. at 141.

         At this point, the Commissioner must evaluate medical and other relevant evidence to determine the claimant's “residual functional capacity” (“RFC”), an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations his impairments impose. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e), 416.945(b)-(c). At the fourth step, the Commissioner determines whether the claimant can perform “past relevant work.” Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. Yuckert, 482 U.S. at 146 n.5. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national economy. Id. at 142; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.


         At step one, the ALJ found that plaintiff met the insured requirements of the Act and had not engaged in substantial gainful activity since her alleged onset date. Tr. 20. At step two, the ALJ found that plaintiff had had the following severe impairments: PTSD, bipolar I disorder, persistent depressive disorder, generalized anxiety disorder, and alcohol use disorder. Id. At step three, the ALJ found that plaintiff did not have an impairment or combination thereof that met or equaled a listed impairment. Tr. 21. The ALJ found that plaintiff had the RFC to perform a full range of work at all exertional levels, but with the following nonexertional limitations: she could understand, remember, and carry out simple, routine, and repetitive tasks; she could tolerate only occasional contact with the public and coworkers. Tr. 23. At step four, the ALJ found that plaintiff could not perform any past relevant work. Tr. 26. At step five, the ALJ found, based on the RFC and VE testimony, a significant number of jobs existed such that plaintiff could sustain employment despite her impairments. Id. Specifically, the ALJ found plaintiff could perform the jobs of industrial cleaner, lumber straightener, and hand packager. Tr. 27. The ALJ thus found plaintiff was not disabled within the meaning of the Act. Id. at 27-28.


         Plaintiff asserts the ALJ erred by: (1) failing to provide clear and convincing reasons for rejecting her subjective symptom testimony; (2) improperly rejecting third party witness statements; and (3) failing to account for limitations expressed by the examining doctor in her RFC. The Court addresses each argument in turn.

         I. Subjective Symptom Testimony

         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) (citation omitted). 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 discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).

         Social Security Ruling (“SSR”) 16-3p clarified that ALJs are not tasked with “examining an individual's character” or propensity for truthfulness, and instead must assess whether the claimant's subjective symptom statements are consistent with the record as a whole. See SSR 16-3p, available at 2017 WL 5180304. If the ALJ's subjective symptom analysis “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) (citation omitted).

         The ALJ found that, although plaintiff's impairments could reasonably be expected to cause some of her alleged symptoms, her testimony concerning the intensity, persistence, and limiting effects of those symptoms were “not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in [her] decision.” Tr. 23. Plaintiff argues that the ALJ's reasoning does not satisfy the clear-and-convincing standard and that the ALJ failed to specify which testimony she found not credible. Pl.'s Opening Br. 5-10 (“Pl.'s Br.”) (Docket No. 20). The Commissioner contends the ALJ properly rejected plaintiff's testimony because (1) the medical evidence did not support plaintiff's allegations; (2) plaintiff ...

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