Jonna S. v. Comm'r, Soc. Sec. Admin.
| Decision Date | 29 September 2020 |
| Docket Number | No. 3:18-cv-02236-HZ,3:18-cv-02236-HZ |
| Parties | JONNA S., Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant. |
| Court | U.S. District Court — District of Oregon |
Kevin Kerr
Schneider Kerr & Robichaux
Portland, Oregon 97293
Attorney for Plaintiff
Renata Gowie
Assistant United States Attorney
District of Oregon
1000 SW Third Avenue, Suite 600
Portland, OR 97204
Sarah L. Martin
Social Security Administration
Office of the General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant
Plaintiff Jonna S. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits ("DIB"). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). The Court affirms the Commissioner's decision.
Plaintiff applied for DIB on April 28, 2015, alleging an onset date of April 1, 2015. Tr. 74.2 Plaintiff's date last insured is December 31, 2019. Tr. 36. Her application was denied initially and on reconsideration. Tr. 80-88.
On July 21, 2017, Plaintiff appeared with counsel for a telephonic hearing before an Administrative Law Judge ("ALJ"). Tr. 31. On November 17, 2017, the ALJ found Plaintiff not disabled. Tr. 25. The Appeals Council denied review. Tr. 1.
Plaintiff alleges disability based on severe panic attacks, agoraphobia, severe anxiety, and difficulty driving and being in crowds. Tr. 159. At the time of her alleged onset date, she was 38years old. Tr. 24. She has a high school education and past relevant work experience as a legal assistant, a sales attendant, and a caregiver. Tr. 24.
A claimant is disabled if they are 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) (). 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. Id.
In step three, the Commissioner determines whether the claimant'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 their "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/her] burden and proves that the claimant can perform other work that exists in the national economy, then the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.
At step one, the ALJ determined that Plaintiff has not engaged in substantial gainful activity since April 1, 2015. Tr. 18. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: "A panic disorder with agoraphobia, anxiety, and depression." Tr. 18. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 19. At step four, the ALJ concluded that:
[Plaintiff] has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: She is limited to jobs with a reasoning level of 2 or less. She is limited to performing simple and routine tasks. She is limited to simple work-related decisions. She is limited to occasional contact with the public.
Tr. 20. Because of these limitations, the ALJ concluded that Plaintiff could not perform her past relevant work. Tr. 24. But at step five, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as "industrial cleaner," "motel cleaner," and "electronics worker." Tr. 25. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 25-26.
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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) () (internal quotation marks omitted).
Plaintiff argues that the ALJ erred by: (1) rejecting Plaintiff's subjective symptom testimony; (2) rejecting the opinion of Leslie Cody, NP, and Tracey Columb, MD; (3) finding that Plaintiff's impairments did not meet or equal a listed impairment at Step 3; and (4) failing to conduct an adequate Step 5 analysis. Plaintiff also argues that—when considering a second letter from Leslie Cody, NP, submitted to the Appeals Council—substantial evidence demonstrates that Plaintiff is disabled. The Court disagrees.
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Plaintiff argues that the ALJ erred in discounting her subjective symptom testimony. Pl. Br. 11, ECF 13. The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591. In assessing a claimant's testimony about subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929. The first stage is a threshold test in which the claimant must present objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage of this analysis, absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. Carmickle v. Comm'r Soc. Sec. Admin, 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter, 504 F.3d at 1036.
The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Factors the ALJ may consider when making such determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, and inconsistencies in the testimony. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039. In addition, conflicts between a claimant's testimony and the objective medical evidence in the record can undermine a claimant's credibility. Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).
When the ALJ's credibility findings are supported by substantial evidence in the record, the reviewing court "may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947,959 (9th Cir. 2002). But a general assertion that the plaintiff 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); see also Morgan, 169 F.3d at 599.
Plaintiff last worked in April 2015 at a law firm "organizing files and working on billing" for ten to twelve hours a week. Tr. 40. In order travel to and spend time at the office, Plaintiff had to take medication. Tr. 39-40. Plaintiff's job ended because Plaintiff's employer "didn't want [her] to work because [she] couldn't drive anywhere." Tr. 40. For a few days in 2016, Plaintiff also did some accounting for a neighbor, but she quit after the FBI raided her employer's home. Tr. 42-43.
Plaintiff testified that she has otherwise been unable to work due to panic attacks, fear of travelling, severe depression, and side effects from her medication. Tr. 43. Plaintiff also struggles to travel over bridges and on the freeway. Tr. 39. Her routes have to be planned. Tr. 39. If she does not leave the house, she can avoid having panic attacks. Tr....
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