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Austin v. Berryhill

United States District Court, W.D. Washington

April 14, 2017

BONNY JEAN AUSTIN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          ORDER REVERSING AND REMANDING CASE FOR FURTHER ADMINISTRATIVE PROCEEDINGS

          The Honorable Richard A. Jones United States District Judge

         Bonny Jean Austin filed a pro se complaint and a subsequent amended complaint requesting the Court reverse the Administrative Law Judge's (ALJ) decision finding her not disabled. Dkt. 6, 9. On July 18, 2014, the ALJ issued a decision finding fibromyalgia, status post ruptured ovarian cyst, gastritis and duodenitis, somatization disorder[2], and adjustment disorder[3] to be severe impairments. Tr. 20-36. The ALJ determined Ms. Austin retained the Residual Functional Capacity (RFC) to perform medium work, with additional limitations including that she could perform simple, routine, tasks, could tolerate few, if any changes in work routine or environment, and could have no contact with the public. Tr. 26. The ALJ found that with this RFC Ms. Austin was not disabled because she could perform other jobs in the national economy including hand packager, kitchen helper, marker, and garment sorter. Tr. 35-36. The Appeals Council denied Ms. Austin's request for review making the ALJ's decision the Commissioner's final decision. Tr. 8-14.

         In her amended complaint and opening brief, Ms. Austin lists claimed impairments of: severe anxiety; manic rage; bi-polar; dysplasia; asthma; chronic respiratory issues; and migraines due to head trauma. Dkts. 9, 15. As the ALJ's decision does not discuss these claimed impairments the Court understands Ms. Austin to argue that the ALJ erred in failing to consider these impairments severe. Id.; Dkt. 14. Ms. Austin also lists claimed impairments of: depression; PTSD; loss of short term memory and some long term memory loss due to head trauma; neck, shoulder and back pain; severe nausea daily; fibromyalgia; endometriosis; ovarian cyst; thyroid disorder; IBS; spastic colon; arthritis and acid reflux. Id. These claimed impairments are noted by the ALJ in the decision and the Court understands Ms. Austin's amended complaint and opening brief to challenge the ALJ's evaluation of the medical opinion evidence and lay opinion evidence with respect thereto. Id. The Court also understands Ms. Austin's amended complaint and opening brief to challenge the ALJ's decision to find her not entirely credible with respect to her symptoms. Id. Ms. Austin also argues that the ALJ erred in considering the testimony of the vocational expert at the hearing. Dkt. 15 at 6.

         As discussed below, the Court concludes the ALJ erred in evaluating some of the medical and lay opinion evidence. The Court accordingly REVERSES and REMANDS this case for further administrative proceedings.

         DISCUSSION

         A. Standard of Review

         Ms. Austin asks the Court to review and reverse the ALJ's decision, which is the Commissioner's final decision in this case. After the Commissioner's final decision, a person seeking social security disability benefits “may obtain a review of such decision by a civil action” in district court. 42 U.S.C § 405(g). As with other agency decisions, this Court's review of social security determinations is limited. The Court may reverse the ALJ's decision finding a person not disabled “only if it is not supported by substantial evidence or is based on legal error.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). Importantly, when the evidence is susceptible to more than one rational interpretation-the claimant's and the ALJ's- the Court must uphold the ALJ's interpretation if it is supported by inferences reasonably drawn from the record. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

         Because an individual's entitlement to disability benefits is a highly fact-intensive individualized determination, Congress has placed “a premium upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the opportunity for reviewing courts to substitute their discretion for that of the agency.” Consolo v. Fed. Mar. Comm'n., 383 U.S. 607, 621 (1966). Consequently, the ALJ, not the Court, determines credibility and resolves conflicts in the testimony or ambiguities in the record. See 42 U.S.C. § 405(g) (directing that the Commissioner's “findings . . . as to any fact, if supported by substantial evidence, shall be conclusive.”). The person seeking review of the ALJ's determination (the claimant) has the burden of showing that the ALJ committed harmful error. Molina v. Astrue, 674 F.3d 1104, 111 (9th Cir. 2012). As such, it is Ms. Austin, not the Commissioner, who must prove the ALJ harmfully erred in finding her not disabled. While the Court may not try Social Security claim cases de novo, it has a “duty ‘to scrutinize the record as a whole to determine whether the conclusions reached have a reasonable basis in law.'” Ainsworth v. Finch, 437 F.2d 446, 446 (9th Cir. 1971) (quoting Hicks v. Gardner, 393 F.3d 299, 302 (4th Cir. 1968). Additionally, where a party proceeds pro se, the Court must construe the allegations of the pleading liberally and afford her the benefit of any doubt. See Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc) (citation omitted).

         The Social Security Act regulations provide a five-step sequential evaluation process for determining whether a claimant is disabled. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999); 20 C.F.R. §§ 404.1520, 416.920. The claimant has the burden of proof at steps one through four and the Commissioner has the burden of proof for step five. Id. The five steps of inquiry include:

1. Is the claimant engaged in substantial gainful activity? If so, the claimant is not disabled within the meaning of the SSA. If not, the inquiry proceeds to step two.
2. Does the claimant have a severe impairment or impairments? If so, the inquiry proceeds to step three. If not, the claimant is not disabled.
3. Does the impairment or impairments meet or equal one of a list of specific impairments described in 20 C.F.R. Part 404, Subpart P, App. 1? If so, the claimant is disabled. If not, the inquiry proceeds to step four.
4. Is the claimant able to perform past work? If so, the claimant is not disabled. If not, the inquiry proceeds to step five.
5. Is the claimant able to do any other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

See 20 C.F.R. §§ 404.1520, 416.920.

         B. Evaluation of Severe Impairmentsat Step Two

         Ms. Austin contends the ALJ erred in failing to properly consider her anxiety, manic rage, bi-polar disorder, dysplasia, asthma, chronic respiratory issues and migraines due to head trauma. Dkts. 9, 15. The ALJ did not discuss these claimed impairments in his decision. Ms. Austin, as the claimant, has the burden at step two of the sequential evaluation to show that (1) she has a medically determinable physical or mental impairment, and (2) the medically determinable impairment is severe. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). A “‘physical or mental impairment' is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D). “‘Regardless of how many symptoms an individual alleges, or how genuine the individual's complaints may appear to be, the existence of a medically determinable physical or mental impairment cannot be established in the absence of objective medical abnormalities; i.e., medical signs and laboratory findings[.]'” Ukolov v. Barnhart, 420 F.3d 1002, 1005 (9th Cir. 2005) (quoting SSR 96-4p). In addition to producing evidence of a medically determinable physical or mental impairment, the claimant bears the burden of establishing that the impairment or impairments is “severe.” See Bowen, 482 U.S. at 146. An impairment or combination of impairments is severe if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c), 404.1521(a).

         Here, while “manic rage” is a symptom Ms. Austin claims to experience, it is not diagnosed separately as a medically determinable impairment or supported by medical signs and laboratory findings. Dkts. 9, 15 at 1. Moreover, migraines, dysplasia, asthma and respiratory issues are mentioned very infrequently in the medical record and typically in the medical history section of the records, not as current or ongoing impairments or complaints. Furthermore, Ms. Austin fails to point to any evidence indicating that these claimed impairments affect her ability to perform basic work activities. Accordingly, the Court cannot conclude the ALJ erred in failing to find these claimed impairments to be severe. Ms. Austin also contends she has anxiety and bipolar disorder. Dkts. 9, 15. However, these impairments do not appear to be established as separate impairments by objective medical evidence from an acceptable medical source in the record.[4] See 20 C.F.R. §§ 404.1521, 20 C.F.R. § 416.921 (a physical or mental impairment must be established by objective medical evidence from an acceptable medical source); 20 C.F.R. §404.1502 (listing acceptable medical sources as licensed physicians, licensed psychologists, licensed optometrist, licensed podiatrist, qualified speech-language pathologist, licensed audiologist, and for claims filed on or after March 27, 2017, licensed advanced practice registered nurses and licensed physician assistants); see SSR 06-03p (licensed clinical social workers and therapists are not considered “acceptable medical sources”). Accordingly, the Court also does not find the ALJ erred in failing to consider these claimed impairments severe.

         C. The ALJ's Evaluation of the Medical Evidence

         Ms. Austin also challenges the ALJ's evaluation of the medical opinion evidence with respect to her mental and physical impairments. Dkts. 9, 15. The Court agrees the ALJ erred in evaluating some of the medical opinion evidence.

         1. ...


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