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Anne B. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Portland Division

December 16, 2019

DARALYN ANNE B.[1], Plaintiff,

          Brent Wells HARDER, WELLS, BARON & MANNING, P.C. Attorney for Plaintiff


          OPINION & ORDER


         Plaintiff Daralyn B., brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB) and disabled widow's benefits (DWB). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) . I reverse the Commissioner's decision and remand for additional proceedings.


         Plaintiff applied for DIB and DWB on August 31, 2015, alleging an onset date of March 1, 2013. Tr. 209-23. Her applications were denied initially and on reconsideration. Tr. 59-82, 112-21; Tr. 83-110, 130-35. On November 27, 2017, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 29-58. On March 6, 2018, the ALJ found Plaintiff not disabled. Tr. 10-28. The Appeals Council denied review. Tr. 1-5.


         Plaintiff alleges disability based on having chronic obstructive pulmonary disease (COPD), congestive heart failure, back pain, "Afib," type 2 diabetes, and memory lapse. Tr. 237. At the time of the hearing, she was fifty-nine years old. Tr. 35. She is a high school graduate and has past relevant work experience as a reports analyst and a user support analyst. Tr. 22, 35, 245-58.


         A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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), 1382c(a)(3)(A).

         Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In 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). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether plaintiff's impairments, singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.


         At step one, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act (SSA) through March 31, 2017, that she met the non-disability requirements for DWB, and that she had not engaged in substantial gainful activity since her alleged onset date of March 1, 2013. Tr. 15-16 Next, at step two, the ALJ determined that Plaintiff has severe impairments of COPD, atrial fibrillation, degenerative disc disease of the spine, and obesity. Tr. 16-18. At step three, however, the ALJ determined that her impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 18.

         At step four, the ALJ concluded that Plaintiff has the RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), with the following limitations: (1) she can occasionally climb ramps and stairs but never ladders, ropes, or scaffolds; (2) she can frequently balance; (3) she can occasionally stoop, kneel, crouch, and crawl; (4) she should avoid concentrated exposure to extreme cold, fumes, odors, dusts, gases, and poorly ventilated areas; and (5) she should avoid even moderate exposure to hazardous machinery and unprotected heights. Tr. 18-19. With this RFC, the ALJ determined that Plaintiff is able to perform her past relevant work as a report analyst and as a user support analyst. Tr. 22-23. The ALJ then determined that Plaintiff is not disabled. Tr. 23.


         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings "are based on legal error or are not supported by substantial evidence in the record as a whole." Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (internal quotation marks omitted). "Substantial evidence means 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." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("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") (internal quotation marks omitted).


         Plaintiff argues that the ALJ erred by (1) finding her subjective limitations testimony not fully credible; (2) rejecting the opinion of examining psychologist Michael O'Connell, Ph.D; (3) failing to find her somatic symptom disorder a severe impairment at step two; (4) improperly rejecting the testimony of a lay witness; and (5) as a result of those errors, failing to properly assess her RFC.

         I. Credibility

         The ALJ is responsible for determining credibility. See Vasquez, 572 F.3d at 591. Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains, an adverse credibility finding must be based on 'clear and convincing reasons'"); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages in two-step analysis to determine credibility: First, the ALJ determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged"; and second, if the claimant has ...

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