Abrego v. Commissioner, Social Security Administration, No. 6:2013cv01007 - Document 27 (D. Or. 2014)
Court Description: Opinion and Order. The Commissioner's decision is REVERSED and this case is REMANDED pursuant to sentence four of 42 USC 405(g) for an immediate calculation of benefits. Signed on 8/27/2014 by Judge Malcolm F. Marsh. (sm)
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Abrego v. Commissioner, Social Security Administration Doc. 27 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON LUDIBINA ABREGO, Plaintiff, 6:13-cv-01007-MA OPINrON AND ORDER v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. MAX RAE P.O. Box 7790 Salem, Oregon 97303 ALAN STUART GRAF 208 Pine Street Floyd, Virginia 24091 Attorneys for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 Ill Ill Ill 1 - OPINION AND ORDER Dockets.Justia.com LISA GOLDOFTAS MATHEW W. PILE Social Security Administration Office of the General Counsel 701 Fifth Avenue, Suite 2900 M/S 221A Seattle, Washington 98104-7075 Attorneys for Defendant MARSH, Judge Plaintiff, Ludibina Abrego, brings this action for judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act) and supplemental security income disability See 42 U.S.C. benefits under Title XVI of the Act. 1381-1383f. (SSI) §§ 401-434, This Court has jurisdiction pursuant to 42 U.S.C. 405(g). For the decision of the reasons set forth below, Commissioner and remand I § reverse the final for an immediate calculation of benefits. PROCEDURAL BACKGROUND Plaintiff protectively filed the instant applications for DIB and SSI on April 17, 2009, alleging disability due to chronic pain, depression, loss. fibromyalgia, Tr. 190. reconsideration. sleep apnea, narcolepsy, and hearing Her applications were denied initially and upon An Administrative Law Judge (ALJ) held a hearing on April 1, 2011, at which Plaintiff was represented by counsel and testified. 2 - OPINION AND ORDER On April 12, 2011, the ALJ issued a decision finding Plaintiff not disabled within the meaning of the Act and on April 30, 2013, the Appeals Council declined review of the ALJ's decision. 4, 19-32. DIB. On May 24, 2013, Plaintiff filed another application for On June 14, 2013, Plaintiff timely filed a Complaint in this Court seeking review of the ALJ' s prior Tr. 1- application. On September determination concerning 17, 2013, the the Commissioner approved Plaintiff's second application for DIE and found Plaintiff disabled beginning April 13, 2011 the day after the ALJ' s decision concerning the prior application. FACTUAL BACKGROUND Born on September 4, 1961, Plaintiff was 46 years old on the alleged onset date of disability and 49 years old on the date of the hearing. Tr. 221. Plaintiff has a high-school degree with some post-high school education and past relevant work as Licensing Clerk and Home Attendant. Tr. 68, 196. Plaintiff initially alleged her conditions became disabling on March 1, 2005, but September 24, 2007. later amended Tr. 159, 190. her alleged onset date to Plaintiff testified about her conditions and functional limitations at the hearing and submitted an Adult Function Report. Plaintiff's sister, Function Report. Veronica Tr. 210-17. 3 - OPINION AND ORDER Tr. 42-68, Abrego, 198-207. submitted In a addition, Third Party Plaintiff's son, Joshua Hart, also submitted a letter in support of Plaintiff's application. Tr. 431-32. The record contains multiple medical evaluations and opinions. On September 30, 2003, Leslie Pitchford, psychological evaluation to assess Tr. functioning. 518-22. On Ph.D., Plaintiff's November 15, completed a level of memory 2010, Plaintiff's treating physician Cynthia Nocek, M. D.·, completed a Medical Source Statement as to Plaintiff's physical and mental limitations. 836-40. On Plaintiff's October medical 2, 2009, records Neal and Functional Capacity Assessment. Megan D. Nicoloff, Psy.D., E. Berner, submitted reviewed M. D., reviewed Physical a Tr. 727-34. Residual On October 5, 2009, Plaintiff's records submitted a Mental Residual Functional Capacity Assessment. 749-51. Tr. and Tr. In addition, the record contains several statements from Anne Wild, M.D., Howard Gandler, M.D., and Scott E. Wagnon, PA-C, concerning Plaintiff's employment before the alleged onset date of disability. Tr. 708-09, 885-96. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step process for determining whether a person is disabled. Yuckert, 482 U.S. 404.1520(a) (4) (i)-(v), potentially dispositive. Steps One through Four. Cir. 1999). 137, 140-42 (1987); 416.920(a) (4) (i)-(v). 20 Each sequential Bowen v. C.F.R. step §§ is The claimant bears the burden of proof at Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to 4 - OPINION AND ORDER show that a significant number of jobs exist economy that the claimant can perform. in the See Yuckert, national 482 U.S. at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined that Plaintiff has not engaged in substantial gainful September 24, 2007. activity since See 20 C.F.R. the alleged onset date, 404.1571 et seq., 416.971 et §§ seq.; Tr. 21. At Step 'fwo, the ALJ found depression are severe impairments. Claimant's fibromyalgia See 20 C.F.R. §§ and 404.1520(c), 416.920(c); Tr. 21-22. At Step Three, the ALJ determined that Claimant does not have an impairment or combination of impairments that meet or medically equal any listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 22-23. The ALJ found Claimant had the residual functional capacity (RFC) to perform limitations to less lifting than 20 a full pounds range of light occasionally and work 10 with pounds frequently; standing, walking, and sitting six out of eight hours in each workday, respectively; avoiding concentrated exposure to noise and hazards, such as machinery and heights; understanding and remembering simple, routine instructions and procedures, but not more complex instructions; sustaining attention sufficiently to complete only simple instructions and procedures, complex tasks; and having no public contact. 5 - OPINION AND ORDER but not more Tr. 23-31. At Step Four, the ALJ found Claimant unable to perform any past relevant work. See 20 C.F.R. 404.1565, 416.965; Tr. 31. §§ At Step Five, the ALJ found that Claimant could perform jobs that exist in significant numbers in the national economy including Office Helper, See 20 C.F.R. §§ Postage Machine Operator, and Electronic Worker. 404.1569, 404.1569a, 416.969, 416.969a; Tr. 31-32. Accordingly, the ALJ found Claimant not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff Plaintiff Second, raises argues four the primary ALJ improperly Plaintiff maintains issues on appeal. rejected her First, testimony. the ALJ improperly weighed medical testimony from Dr. Nocek, Dr. Wild, Dr. Gandler, Mr. Wagnon, and a Global Assessment of Functioning score of 4 7 from Joel Suckow, M. D. Third, Plaintiff submits disability benefit the confirmation Employees Retirement System. ALJ erred letter Tr. 166. the ALJ erroneously rejected the in from not the discussing Oregon a Public Finally, Plaintiff asserts lay testimony of Plaintiff's sister, Veronica Abrego, and Plaintiff's son, Joshua Hart. STANDARD OF REVIEW The Court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in 405(g); Andrews v. Shalala, 6 - OPINION AND ORDER the 53 F.3d 1035, record. 1039 42 U.S. C. (9th Cir. § 1995). "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." Court must weigh all of the evidence, whether detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). to more than one rational decision must be upheld. it Id. supports Martinez v. The or Heckler, If the evidence is susceptible interpretation, Andrews, the Commissioner's 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; ''the court may not substitute its judgment for that of the Commissioner. " Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION I. Plaintiff's Testimony Plaintiff first argues the ALJ cited legally insufficient reasons to reject her testimony. subjective symptom testimony, analysis. 20 C.F.R. § In deciding whether to accept an ALJ must perform two stages of 404.1529. First, the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996). Smolen v. Second, absent a finding of malingering, the ALJ can reject the claimant's testimony about clear, the severity of her symptoms only by offering specific, and convincing reasons for doing so. 7 - OPINION AND ORDER Id. at 1281. The ALJ's reasons for rejecting a claimant's testimony supported by substantial evidence in the record. must be See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). If an ALJ finds the claimant's subjective symptoms unreliable, testimony regarding the "ALJ must make a credibility determination citing unpersuasive." Morgan v. Comm'r Soc. Sec. Admin., 599 (9th Cir. reasons the In doing so, 1999). her why the testimony is 169 F.3d 595, the ALJ must identify which testimony is credible and which testimony undermines the claimant's complaints, and make "findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] claimant's testimony.'' Cir. 2002). The credibility Thomas v. Barnhart, 278 F.3d 947, 958 (9th ALJ evaluation may in rely upon weighing the ordinary techniques claimant's of credibility. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the impediment difficult to to hearing, Plaintiff employment start work was a early testified sleep in the that condition day and her that primary makes causes her it to experience fatigue that limits her to fifteen-to-twenty minutes of activity at a time and to rest for four hours per day. 60. job. Tr. 49, 59- Plaintiff reported frequently falling asleep at her previous Tr. 58. As to her productivity at work, Plaintiff reported it was worse in the afternoons because her pain and body aches would worsen. Tr. 58. 8 - OPINION AND ORDER Plaintiff reported that her mental health conditions problems. cause her to experience concentration and memory Tr. 57. On a typical day, Plaintiff testified she wakes up between 9:30 and 10:00 a.m., takes two hours to get ready for the day, and works on paperwork and pays bills before eating lunch around 1:00 or 2: 00 in the afternoon. reported that afternoon. p.m. she rests Tr. 53-55. before doing After lunch, household Plaintiff chores in the Plaintiff reported eating dinner between 6:00 and 7:00 before going to bed around 10:00. Tr. 56. Plaintiff testified that she watches her grandchildren every other weekend Tr. and occasionally goes to their school conferences. Plaintiff reported that she cooks simple meals, can herself, puts dishes in the dishwasher, and does laundry. 51-52. shop for Tr. 52- 53. In her Adult Function Report, Plaintiff reported symptoms and daily activities in greater detail. similar Tr. 198-203, 205. Plaintiff checked that her conditions affect her abilities to lift, squat, stairs, bend, see, stand, reach, remember, walk, sit, complete tasks, kneel, talk, concentrate, follow instructions, and use her hands. Tr. 203. Plaintiff five reported she can only lift hear, climb understand, As to lifting, pounds. Tr. 203. Plaintiff reported she can walk for five minutes before needing between one and three minutes of rest. Tr. 203. Plaintiff noted that she could only pay attention for five-to-ten minutes and does 9 - OPINION AND ORDER not follow written or spoken instructions well as a confusion and poor memory. pain increases "barely talk.• Plaintiff reported that her Tr. 203. while under stress result of to the point where she can Tr. 204. In a Pain and Fatigue Questionnaire, Plaintiff reported pain throughout her body that aches all day and wakes her up at night. Tr. 208. Plaintiff noted that this pain in somewhat alleviated by stretching, pain relievers, and massage. Plaintiff noted that Tr. 208. As to fatigue, she must rest between tasks approximately four-to-five times per day, and that she can only be active for between 30 minutes and one hour before requiring rest. Tr. 208. The ALJ rejected Plaintiff's testimony because Plaintiff's "daily activities are quite involved,• Plaintiff worked after the alleged onset date of disability, made statements to treating providers that call into question her motivation to work, has a criminal history, made inconsistent statements throughout the record, and has not been fully compliant with medical treatment. Tr. 27-28. reasons, I conclude these reasons are not clear and convincing supported by substantial record evidence, to reject Plaintiff's testimony. I find activities no of significant daily limitations and pain. living inconsistency and her between testimony Plaintiff's of disabling While the ALJ noted that Plaintiff engages in a variety of basic activities around her home, such testimony 10 - OPINION AND ORDER was accompanied by the qualification that Plaintiff takes frequent rest breaks and is limited in the amount she can do in a day. J;;_,_g_,_, Tr. 59-60, 205, 208. Similarly, Plaintiff's reports that she watches her grandchildren on some weekends and maintains a romantic relationship with her boyfriend are not inconsistent with her testimony that pain and fatigue preclude her from performing fulltime work. Accordingly, I conclude the ALJ improperly cited activities of daily living inconsistent with disabling limitations to reject Plaintiff's testimony. The ALJ' s performed rejection some unconvincing. work of after Plaintiff's the testimony alleged onset because date is she also While the record does indicate Plaintiff received $6,414.90 in compensation for serving as a caretaker for her father in 2008, Plaintiff testified that the activity level involved in that work was very limited and that she performed only 20 to 30 hours of work per month. Tr. 65-67, 154. Such work is not inconsistent with Plaintiff's allegations of disabling limitations on account of fatigue and her inability to sustain activity. The ALJ next rejected Plaintiff's testimony because she made statements to treatment providers that "bring into question the claimant's motivation to work." Tr. 27. The only statement the ALJ referenced in support of this reason is a statement to Dr. Suckow that unemployment, Plaintiff's "[c]urrent not sure if [she] 11 - OPINION AND ORDER source of will resume working." income Tr. is 777. This statement lends little support to the ALJ's rationale, however, and a review of the record reveals little other evidence demonstrating that Plaintiff lacked motivation to return to work. The ALJ also cited Plaintiff's criminal history as a reason to reject her testimony. The only reference to a criminal history in the record is a 2008 citation for driving under the influence of intoxicants in which Plaintiff denied that she had consumed sufficient alcohol to become intoxicated, but that more moderate alcohol use in combination with her prescription medication caused the citation. Tr. 777. Although the ALJ found this inconsistent with Plaintiff's testimony that she only leaves her home to shop for food or go to appointments, I note Plaintiff also testified she "occasionallyn goes out with others. Tr. 60. There is no evidence in the record that Plaintiff's description of her citation was inaccurate. a Plaintiff's relatively minor criminal history is not convincing reason to reject physical and mental limitations. Plaintiff's testimony as to her 1 The ALJ's most convincing reasons for rejecting Plaintiff's testimony were his citations to some inconsistencies noted by Dr. Suckow and a few instances of noncompliance or failure to pursue medical treatment. Indeed, on December 9, 2009, Dr. Suckow noted 1 The ALJ also noted some record references to marijuana use. At most, the record contains a few passing references to occasional marijuana use in Plaintiff's past. See Tr. 786. This is not a convincing reason to reject Plaintiff's testimony. 12 - OPINION AND ORDER that Plaintiff's statements about memory problems appeared inconsistent with her ability to recall facts about her disability application and medications and that Plaintiff's full-body pain allegations were not accompanied by any difficulty with movements or gait. Tr. 828. Dr. Suckow also noted that Plaintiff turned down some mental health treatment options in favor of medication management and opined that Plaintiff was not "fully vested" in addressing her mental health issues. Tr. 828, 881. In addition, the ALJ noted that Plaintiff failed to appear at a re la ti vely small number of mental health appointments and failed to timely fill out a form for financial assistance with medical costs. See Tr. 771, 776, 788, 829. Nonetheless, reasons, while I find the ALJ reasonably cited these the instances of noncompliance and inconsistencies are relatively few in the context of an extensive medical record. Notably, a sizeable majority of Plaintiff's treatment providers did not note such instances. Accordingly, while I find the ALJ did not err in citing these reasons, they do not rise to the level of clear and convincing reasons to reject Plaintiff's testimony. the majority of the ALJ's reasons for rejecting In sum, Plaintiff's testimony were either unsupported by the record or unconvincing. While the ALJ cited Plaintiff's testimony, some proper reasons for discrediting in light of the record as a whole those reasons do not amount to clear and convincing reasons to reject 13 - OPINION AND ORDER Plaintiff's testimony. Therefore, I conclude the ALJ improperly rejected Plaintiff's testimony. II. Credit-as-True When the ALJ erroneously rejects testimony, the court must remand for a calculation of benefits if: ( 1) the record has been fully developed and further administrative proceedings would serve no useful purpose; (2) the ALJ has failed to provide legally sufficient reasons for rejecting evidence, whether claimant testimony or medical opinion; and (3) if the .improperly discredited evidence were credited as true, the ALJ would be required to find the claimant disabled on remand. Garrison v. Colvin, Jul. 14, 2014). only remand creates for F. 3d , 2014 WL 3397218, at *20 (9th Cir. If those three criteria are met, further proceedings serious doubt as to whether the court may if "the record as the claimant a is, whole in fact, disabled within the meaning of the Social Security Act." Id. at *21. Here, above, the record has been fully developed and, as discussed the ALJ failed to provide legally sufficient reasons for rejecting Plaintiff's testimony. In addition, it is clear from the record that the ALJ would be required to find Plaintiff disabled if her testimony was credited-as-true. For example, Plaintiff testified that she can only sustain continuous activity for 15 to 20 minutes before requiring rest. Tr. 59-60. The VE testified that a person would have to work a standard work schedule, with two hours between breaks, to maintain a job. 14 - OPINION AND ORDER Tr. 72. Thus, crediting Plaintiff's testimony as true, the VE' s testimony demonstrates that Plaintiff is unable to maintain employment. Therefore, the three credit-as-true criteria are met. On this record, I have no reason to have serious doubts that Plaintiff is disabled within the meaning of the Act, especially in light of the fact that the Commissioner has since found Plaintiff disabled. Accordingly, this case must be remanded to the Commissioner for an immediate calculation of benefits pursuant to sentence four of 42 U.S.C. § 405(g) . 2 CONCLUSION Based on the foregoing, the Commissioner's decision is REVERSED and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for an immediate calculation of benefits. IT IS SO ORDERED. DATED this :<?'day of August, 2014. Malcolm F. Marsh United States District Judge 2 Because the ALJ's erroneous rejection of Plaintiff's testimony necessitates remand for an immediate payment of benefits, I need not reach Plaintiff's other assignments of error. 15 - OPINION AND ORDER
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