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Carolyn P. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Eugene Division

December 18, 2019

CAROLYN P., [1] Plaintiff,
v.
COMMISSIONER, Social Security Administration, Defendant.

          OPINION AND ORDER

          PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Carolyn P. 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 this case in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). See (Docket No. 4). For the reasons that follow, the Commissioner's final decision is REVERSED and this case is REMANDED.

         PROCEDURAL BACKGROUND

         Plaintiff filed an application for DIB in October 2014 and an application for SSI in March 2015. Tr. 13, 217-18, 221-26.[2] She alleged an amended onset date for both applications of October 17, 2014. Tr. 13, 35-36. Her applications were denied initially and upon reconsideration. Tr. 113- 20, 133-43. Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), and a hearing was held on August 4, 2017. Tr. 29-112, 161-62. On November 15, 2017, an ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 13-23. The Appeals Council denied plaintiff's request for review on September 21, 2018, making the ALJ's decision the final decision of the Commissioner. Tr. 1-6. This appeal followed.

         FACTUAL BACKGROUND

         Born in 1964, plaintiff was 50 years old on her amended alleged onset date and 53 years old on the date of her hearing. Tr. 37, 113. She obtained a GED, as well as some vocational business college training, and has past relevant work as a bank teller, administrative clerk, general clerk, and home attendant. Tr. 21-22, 37-38, 241-42. She alleged disability based upon arthritis, asthma, acid reflux, high blood pressure, hypertension, neuropathy, osteoporosis, and plantar fasciitis. Tr. 240.

         LEGAL STANDARD

         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 upon 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.

         THE ALJ'S DECISION

         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 amended alleged onset date. Tr. 15. At step two, the ALJ found that plaintiff had had the following severe impairments: asthma, right shoulder degenerative joint disease with tendon tear, and status post right knee surgery. 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. 19. The ALJ found that plaintiff had the RFC to perform light work[3], with the following limitations:

[She] can occasionally climb ladders, ropes or scaffolds. [She] can occasionally crawl. [She] can occasionally reach overhead with her dominant right arm. [She] can have occasional exposure to vibration, and temperature and humidity extremes. [She] can have frequent, but not continuous, handling and fingering bilaterally. [She] can have only occasional exposure to concentrated levels of dust, fumes, gases, poor ventilation, and the like.

Id. Because the ALJ found that plaintiff could perform her past relevant work as a bank teller, administrative clerk, and general clerk, the ALJ did not proceed to the fifth step of the sequential analysis. Tr. 21-22. The ALJ thus found plaintiff was not disabled within the meaning of the Act. Tr. 23.

         ANALYSIS

         Plaintiff asserts the ALJ erred by: (1) failing to provide clear and convincing reasons for rejecting her subjective symptom testimony; (2) failing to assign any weight to the lay witness testimony; and (3) omitting supported functional limitations from plaintiff's 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). 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).

         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 (Oct. 25, 2017). If the ALJ's subjective symptom analysis “is supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas, 278 F.3d at 959 (citation omitted).

         The ALJ found that, although plaintiff's impairments could reasonably be expected to cause some of her alleged symptoms, her statements 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 [the] decision.” Tr. 20. The ALJ then rejected ...


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