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Angela M. v. Commissioner Social Security Administration

United States District Court, D. Oregon, Portland Division

December 11, 2019

ANGELA M., [1] Plaintiff,



         Plaintiff Angela M. seeks judicial review of the denial of Title II disability insurance benefits by the Commissioner of Social Security (“Commissioner”). This court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g) and 1383(g)(3). For the reasons set forth below, the Commissioner's decision is REVERSED and REMANDED for the immediate award of benefits.


         Plaintiff protectively filed a Title II application for disability insurance benefits on November 21, 2014, alleging a disability onset date of March 28, 2013. Tr. 209. Her date last insured is December 31, 2015. Tr. 16. The Commissioner denied plaintiff's claim on April 9, 2015, and again upon reconsideration on July 10, 2015. Tr. 16. Plaintiff filed a written request for a hearing on August 4, 2015, and appeared for a hearing before Administrative Law Judge (“ALJ”) Allen G. Erickson, on August 4, 2017. Tr. 47. After receiving testimony from plaintiff and a vocational expert (“VE”), Francene M. Geers, the ALJ issued a decision, finding plaintiff not disabled within the meaning of the Act. Tr. 16. The Appeals Council denied plaintiff's request for review on November 24, 2018, and plaintiff filed her complaint with this court on December 12, 2018. Tr. 1. The ALJ's decision is the Commissioner's final decision and subject to review judicial review by this court. 42 U.S.C. § 405(g); 20 C.F.R. § 422.210.


         The reviewing 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. 42 U.S.C. § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and “‘may not affirm simply by isolating a specific quantum of supporting evidence.'” Garrison v. Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). This court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead, where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.


         Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 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. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)).

         At step one, the ALJ found that plaintiff did not engage in substantial gainful activity from her alleged onset date of March 28, 2013, through her date last insured of December 31, 2015. Tr. 18. At step two, the ALJ determined that plaintiff suffered from the following severe medical conditions: multiple sclerosis, obesity, bipolar disorder, anxiety disorder, and panic disorder. Tr. 18.

         At step three, the ALJ found plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 19. The ALJ next assessed plaintiff's residual functional capacity (“RFC”) and determined that she could perform sedentary work as defined in 20 C.F.R. 404.1567(a), with the following limitations:

She was unable to climb ladders, ropes, or scaffolds. She was able to climb ramps and stairs occasionally. She was able to balance, stoop, kneel, crouch, and crawl occasionally. She was able to tolerate occasional exposure to hazards, vibration, and extreme temperatures and humidity. She was able to understand, remember, and apply short and simple instructions while performing routine tasks in an environment not involving fast-paced production. She was able to make simple decisions. She was able to have occasional interaction with the general public.

Tr. 20.

         At step four, the ALJ found plaintiff was unable to perform her past relevant work as a middle school teacher. Tr. 34.

         At step five, the ALJ found that considering plaintiff's age, education, work experience, and RFC, she could perform jobs that existed in significant numbers in the national economy, including addresser, cutter-and-paster, and surveillance system monitor. Tr. 35. Thus, the ALJ concluded that plaintiff was not disabled at any time from March 28, 2013, the alleged onset date, through December 31, 2015, the date last insured. Id.


         Plaintiff contends that the ALJ erroneously rejected her subjective symptom testimony, the opinion of her treating psychiatrist, and her mother's testimony. Plaintiff also contends that the Commissioner failed to meet his burden at step five.

         I. Subjective Symptom Testimony

         A. Relevant Law

         A two-step process is employed for evaluating a claimant's testimony regarding the severity and limiting effect of the claimant's symptoms. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment ‘which could reasonably be expected to produce the pain or other symptoms alleged.'” Lingenfelter v. Astrue, 504 F.3d at 1036 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so, “the claimant need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

         “Second, if the claimant meets this first test, and there is no evidence of malingering, ‘the ALJ can reject the claimant's testimony about the severity of [the claimant's] symptoms only by offering specific, clear and convincing reasons for doing so.'” Lingenfelter, 504 F.3d at 1036 (quoting Smolen, 80 F.3d at 1281). 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). If the “ALJ's credibility finding 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).

         Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”) 96-7p, governing the assessment of a claimant's “credibility, ” and replaced it with SSR 16-3p. See SSR 16-3p, available at2016 WL 1119029. SSR 16-3p eliminates the reference to “credibility, ” clarifies that “subjective symptom evaluation is not an examination of an individual's character, ” and requires the ALJ to consider all of the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must examine “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. at *4.

         B. Analysis

         The ALJ found that plaintiff's “severe medically determinable impairments could reasonably be expected to cause the alleged symptoms, ” and did not find that she was malingering. Tr. 22. However, the ALJ ultimately concluded that plaintiff's “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[.]” Id.

         Plaintiff argues that the ALJ's “twelve-page list of evidence . . . extracted from the record, without any analysis, . . . followed . . . [by] a single paragraph of vague, conclusory and unexplained reasons for rejecting an unidentified selection of Plaintiff's reported limitations, ” is insufficient for the court to determine “which of [her] reported symptoms the ALJ rejected and why.” Pl. Br. 9, 11, ECF #12. Plaintiff contends that “the ALJ never identified which symptoms were reasonably related to the medically determinable impairments he had identified, or which testimony he found not to be credible.” Id. at 12. Plaintiff cites Brown-Hunter v. Colvin, 806 F.3d 487, 494 (9th Cir. 2015), and Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014), in support.

         In Brown-Hunter, the ALJ “did not specifically identify any . . . inconsistencies” between the claimant's testimony and the record, but instead “simply stated her non-credibility conclusion and then summarized the medical evidence supporting her RFC determination.” 806 F.3d at 494. The Ninth Circuit held that, “[a]lthough the ALJ summarized a significant portion of the administrative record in support of her RFC determination, providing a summary of medical evidence in support of a residual functional capacity finding is not the same as providing clear and convincing reasons for finding the claimant's symptom testimony not credible.” Id. (emphasis in original). “Although the ALJ's analysis need not be extensive, the ALJ must provide some reasoning in order for [the court] to meaningfully determine whether the ALJ's conclusions were supported by substantial evidence.” Id. “To support a lack of credibility finding, the ALJ [is] required to ‘point to specific facts in the record which demonstrate that [the claimant] is in less pain than she claims.'” Vasquez, 572 F.3d at 592 (quoting Dodrill, 12 F.3d at 918).

         In Treichler, the Ninth Circuit explained that “to ensure [judicial] review is meaningful, . . . we require the ALJ to ‘specifically identify the testimony [from a claimant] she or he finds not to be credible and . . . explain what evidence undermines the testimony.'” 775 F.3d at 1102 (quoting Holohan v. Massanari, 246 F.3d 1195, 1208 (9th Cir. 2001)). “That means ‘[g]eneral findings are insufficient.'” Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). However, any error by the ALJ is harmless “if the agency's path may reasonably be discerned, ” even if the agency “explains its decision with less than ideal clarity.” Id. at 1099 (quoting Alaska Dep't of Envtl. Conserv. v. EPA, 540 U.S. 461, 497 (2004)) (internal quotation marks omitted).

         Here, in crafting the RFC, the ALJ first recited a lengthy and detailed summary of plaintiff's claimed symptoms:

The claimant alleged in her initial disability reports that she was limited in her ability to work due to bipolar, mania, depression, suicidal thoughts, rapid cycling, anxiety, cognitive issues, headache, delayed sleep phase disorder, MTHER gene mutation, and cervical radicular pain (lE; 3E2). She alleged symptoms of sleep disturbance; problems with concentration, memory, thinking, guilt, worthlessness, fatigue, loss of interest, paranoid thinking, hyperactivity, flight of ideas, pressured speech, and distractibility; eye pain, optic neuritis, paresthesia, muscle weakness, bladder issues, nerve pain, muscle spasms involuntary movements, and upper and lower extremity pain (1E).
In her Function Report-Adult, she alleged limitations in all exertional and 11011-exertional activities (6E6). She stated that she lived in a duplex with her family (6El). She stated that when she was feeling well, she was able to care for her children, ages 3 and 8, with help from her mother during the day (6E2). She stated that her mother prepared lunch and dinner and sometimes drove her to appointments. She alleged problems with blow-drying her hair due to an inability to hold up her arms and sensitivity to heat; sometimes needing help from her husband to lift her out of the tub; and frequent urination and urinary accidents (6E3). Otherwise, she reported no problems with dressing, feeding herself, and other personal care activities. She stated that she needed reminders to pay bills and attend doctor's appointments but needed no reminders to take medication. She reported that she was able to prepare simple meals, do cleaning and laundry sometimes, go out alone, and drive a car (6E3-4). She stated that she was sometimes able to manage her personal finances, except when fatigued or otherwise symptomatic (6E5). She described her hobbies to include scrapbooking, reading, television, camping, piano playing, fishing, hiking, yardwork/gardening, and baking (6E5). She stated that she did not engage in her hobbies often due to fatigue and pain. She reported that once a week she spent time with others by watching sports, playing board games or bingo, or talking. She alleged that she was unable to lift more than 25 pounds or walk more than 5 to 30 minutes before needing to rest (6E6). She stated that had an average ability to follow written instructions but needed repeating of spoken instructions. She ...

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