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Sandra M. v. Commissioner, Social Security Administration

United States District Court, D. Oregon

November 13, 2019

SANDRA M., [1] Plaintiff,


          Michael J. McShane United States District Judge.

         Plaintiff Sandra M. brings this action for judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). Plaintiff alleges that the Administrative Law Judge (“ALJ”) erred in rejecting both Plaintiff's subjective symptom testimony and Dr. Frank Sievert's, M.D., medical opinion. Because the ALJ erred in discounting both Plaintiff's testimony and Dr. Sievert's medical opinion, the Commissioner's decision is REVERSED and this matter is REMANDED for an award of benefits.


         Plaintiff applied for DIB on June 17, 2015, alleging disability since August 31, 2012. Tr. 17, 161-62.[2] Her claim was denied initially and upon reconsideration. Tr. 29-30, 59-60. Plaintiff timely requested a hearing before an ALJ and appeared before the Honorable Mark Triplett on September 11, 2017. Tr. 105-06, 17. ALJ Triplett denied Plaintiff's claims by a written decision dated February 22, 2018. Tr. 17-31. Plaintiff sought review from the Appeals Council and was denied on November 15, 2018, rendering the ALJ's decision final. Tr. 1-3. Plaintiff now seeks judicial review of the ALJ's decision.

         Plaintiff was 54 years old at the time of her alleged disability onset and 59 at the time of her hearing. See tr. 17, 71. Plaintiff completed medical transcription training and 1 year of college. Tr. 179-80 She worked as a care aide, clerical specialist, and special education assistant. Tr. 45-46. Plaintiff alleges disability due to intractable migraine, fibromyalgia, permanent neck injury, Hashimoto thyroid disease, insomnia, gastroesophageal reflux disease, exhaustion, chronic pain, asthma, and sleep apnea. Tr. 71-72.


         The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “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.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, the court reviews the administrative record as a whole, weighing both the evidence that supports and detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989) (citing Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986)). “‘If the evidence can reasonably support either affirming or reversing,' the reviewing court ‘may not substitute its judgment' for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).


         The Social Security Administration uses a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4) (2012). The burden of proof rests on the claimant for steps one through four, and on the Commissioner for step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step five, the Commissioner's burden is to demonstrate that the claimant can make an adjustment to other work existing in significant numbers in the national economy after considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v). If the Commissioner fails to meet this burden, then the claimant is considered disabled. Id.

         I. Plaintiff's Credibility

         An ALJ must consider a claimant's symptom testimony, including statements regarding pain and workplace limitations. See 20 CFR §§ 404.1529(a), 416.929(a). When there exists objective medical evidence in the record of an underlying impairment that could reasonably be expected to produce the pain or symptoms alleged and there is no affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony. Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The ALJ is not “required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina, 674 F.3d at 1112 (quoting Fair, 885 F.2d at 603). The ALJ “may consider a range of factors in assessing credibility.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). These factors can include “ordinary techniques of credibility evaluation, ” id., as well as:

(1) whether the claimant engages in daily activities inconsistent with the alleged symptoms; (2) whether the claimant takes medication or undergoes other treatment for the symptoms; (3) whether the claimant fails to follow, without adequate explanation, a prescribed course of treatment; and (4) whether the alleged symptoms are consistent with the medical evidence.

Lingenfelter, 504 F.3d at 1040. It is proper for the ALJ to consider the objective medical evidence in making a credibility determination. 20 C.F.R. §§ 404.1529(c)(2); 416.929(c)(2). However, an ALJ may not make a negative credibility finding “solely because” the claimant's symptom testimony “is not substantiated affirmatively by objective medical evidence.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). The Ninth Circuit has upheld negative credibility findings, however, when the claimant's statements at the hearing “do not comport with objective evidence in her medical record.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). “If the ALJ's credibility finding is supported by substantial evidence in the record, ” this Court “may not engage in second-guessing, ” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted), and “must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation, ” Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995) (citation omitted).

         Here, the ALJ found that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms” but that 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.” Tr. 30.

         Plaintiff testified her migraines began when she was 19. Tr. 49. This condition got progressively worse until Plaintiff's medical provider prescribed her methadone in 2000. This reduced her migraines to five or so per month, lasting three days per week. Id. She worked as a caregiver (four 12-hour days per week) and a recess monitor (five three-hour days per week). Tr. 47-48, 43, 51. She missed more than eight days per year because of her migraines. Tr. 61. In April 2012, Plaintiff's migraines and neck-related headaches “exploded” when a basketball hit her head and neck. Tr. 51-52. This incident resulted in the loss of her employment due to excessive absences. Tr. 44, 52, 61.

         From 2014 to the date of her hearing, Plaintiff had five migraines every month lasting three days. Tr. 56-57. In January 2017, her migraines decreased to two to three times per month after she began taking a number of supplements (Butterbur, Feverfew, and Riboflavin). These ultimately failed, resulting in 10 severe migraines in August 2017. Tr. 56-57. Since then, she has had migraines five days per month lasting three days. Tr. 62. The week before her testimony, she had a “pretty severe” headache on Friday that lasted through her hearing on Monday. Tr. 56, 51, 54. She called her attorney to say she could not attend the hearing, but after taking nausea medicine she felt well enough for her husband to take her to the hearing. Still, her migraine impacted her memory. Tr. 57, 51.

         Plaintiff is only able to drive once or twice per week due to her migraines. Tr. 45. She takes Percocet every day and Vistaril and Omeprazole during a migraine episode. Tr. 50. She has tried multiple preventative drugs, which have resulted in bad side effects. Tr. 50-51. She mostly stays home when she has ...

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