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Cheryl R. v. Commissioner of Social Security Administration

United States District Court, D. Oregon, Eugene Division

November 19, 2019

CHERYL R., [1] Plaintiff,

          OPINION AND ORDER [2]



         Cheryl R.[3] (“Plaintiff”) seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) denying her claim for Title II disability and disability insurance benefits, and Title XVI Supplemental Security Income (“SSI”) under 42 U.S.C. §§ 1381a and 1382c(a)(3)(A). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and § 1383(c)(3). For the reasons set forth below, the Commissioner's decision is affirmed.


         Plaintiff applied for a period of Disability and Disability Insurance Benefits (“DIB”) under Title II on November 19, 2013, and for supplemental security income under Title XVI on November 19, 2013, alleging disability beginning October 22, 2010. Tr. 55[4]; Pl. Br. 1, ECF No. 17. The agency denied the claims both initially and upon reconsideration, and Plaintiff requested a hearing. Tr. 55. Plaintiff appeared for a hearing before Administrative Law Judge (“ALJ”) Katherine Weatherly on April 6, 2017. Id. At the hearing, the Plaintiff amended her alleged onset date of disability to October 22, 2013. Id. On January 17, 2018, the ALJ issued a decision denying both of Plaintiff's claims for benefits. Tr. 65.

         Plaintiff requested review of the hearing decision with the Appeals Council. Pl. Br. 5, ECF No. 17. Plaintiff obtained new counsel, and the Appeals Council allowed additional time for Plaintiff to submit new evidence. Id. Plaintiff submitted a Walmart pharmacy log tracking her prescriptions from January 1, 2013 through November 7, 2017 (Tr. 12-17); a medical opinion letter and medical source statement from Richard Browning, PMHNP completed January 9, 2018 (Tr. 18-24); and a Psychological Evaluation dated October 25, 2017 (Tr. 24-30) and a medical source statement dated May 25, 2018 (Tr. 31-34) provided by examining psychologist Scott Alvord. Id. The Appeals Council denied Plaintiff's request for review on June 15, 2018. Tr. 1-6. The Appeals Council stated that it “did not consider and exhibit [Plaintiff's additional] evidence” because the Council found that the evidence did “not show a reasonable probability that it would change the outcome of the decision.” Pl. Br. 5-6, ECF No. 17.

         Thus, the ALJ's decision became the final decision of the Commissioner. Compl. 2, ECF No. 1.


         Plaintiff was born October 25, 1966. Tr. 247 Plaintiff's records describe a history of childhood and adult physical, emotional, and sexual abuse. See, e.g. Tr. 415, 471, 528, 531. Plaintiff graduated from high school. Tr. 86. Plaintiff worked in various jobs over the years, including as a cashier and as a deli clerk. Tr. 88. After losing her job in 2010, Plaintiff attempted to return to college from 2011-2012, but could not complete her course work because she struggled to “make it to classes with [her] health.” Tr. 87. Plaintiff then consulted a doctor about her mental health issues. Tr 93.

         Plaintiff lives in Eugene, Oregon with a cousin during the week, and stays with her ill mother in Drain, Oregon on weekends. Tr. 84. Plaintiff performs general house chores and some caretaking of her mother, although her mother can generally care for herself when alone. Tr. 85-86. About twice a month while at her mother's home, Plaintiff contacts her aunt to help, because both Plaintiff and Plaintiff's mother need assistance. Tr. 96. Plaintiff reported that she often remains at her mother's house longer than the weekend because Plaintiff experiences her own health problems and stays until she feels better. Id.

         Plaintiff fell from a height of approximately six feet onto her right knee in 2007 or 2008, Tr. 91; Pl. Br. 8, ECF No. 17. She underwent arthroscopic knee surgery in November 2016, and a post-surgery steroid injection in December 2016, both with Jeffrey Tuman, M.D. Tr. 803, 784. At the hearing, Plaintiff testified that she continued to use crutches for walking, and motorized carts when in stores, although Plaintiff did not use the crutches on the date of the hearing. Tr. 83, 94.

         Plaintiff began treatment in October 2012 with Dr. Chaplin at PeaceHealth Medical Group for hypertension, fibromyalgia, and headaches. Tr. 458. Dr. Chaplin's notes report that Plaintiff was on psychiatric medications prescribed by a prior doctor at Oregon Medical Group, and had been for about three years, for anxiety and panic attacks, depression, and possibly bipolar disorder. Tr. 460. Dr. Chaplin diagnosed Plaintiff with anxiety state, unspecified; bipolar disorder with depression, panic disorder without agoraphobia; unspecified essential hypertension; asthma exacerbation, and insomnia on March 26, 2014. Tr. 479-89.

         Kriz Topaz, LMFT, QMHP at Options Counseling, performed Plaintiff's Mental Health Assessment on November 21, 2014. Tr. 534-35. Plaintiff continued to receive counseling through Options for complaints of cycles of elevated mood, binge eating, racing thoughts, decreased need for sleep, and increased talkativeness and distractibility alternating with depressed mood, decreased interest in activities, fatigue, feelings of hopelessness and worthlessness, and inability to concentrate. Tr. 534. Plaintiff's depressive symptoms culminated in her complaints of “wanting to go to sleep and not wake up, ” on March 7, 2017. Tr. 771. Richard Browning, PMHNP at Options, managed Plaintiff's multiple psychotropic medications starting in January 2016. Tr. 727. Pl. Br. 10, ECF No. 17. Plaintiff continued to attend counseling at Options as of the date of her Administrative Hearing on April 6, 2017. Tr. 91.


         The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 416.920(a). The five-step sequential inquiry is summarized below, and as described in Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999).

         Step One: The Commissioner 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 Commissioner proceeds to evaluate the claimant's case under step two. 20 C.F.R. § 416.920(b).

         Step Two: The Commissioner 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 Commissioner 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 Commissioner 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 Commissioner 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 Commissioner's evaluation of claimant's case proceeds under step five. 20 C.F.R. §§ 416.920(e), 416.920(f).

         Step Five: The Commissioner determines whether the claimant is able to do any other work. A claimant who cannot perform other work is disabled. If the Commissioner finds claimant is able to do other work, the Commissioner must show that a significant number of jobs exist in the national economy that claimant is able to do. The Commissioner 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 Commissioner 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 Commissioner does not meet the burden, the claimant is disabled. 20 C.F.R. § 416.920(g).

         At steps one through four of the sequential inquiry, the burden of proof is on the claimant. Tackett, 180 F.3d at 1098. If the claimant satisfies his burden with respect to the first four steps, the burden then shifts to the Commissioner regarding step five. 20 C.F.R. § 416.920(g). At step five, the Commissioner'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. Id.


         The ALJ found that Plaintiff met the insured status requirements of the ...

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