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Fisher v. Berryhill

United States District Court, W.D. Washington, Seattle

April 19, 2018

JENIFER MARIE FISHER, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER RE: SOCIAL SECURITY DISABILITY APPEAL

          Mary Alice Theiler United States Magistrate Judge.

         Plaintiff Jenifer Marie Fisher proceeds through counsel in her appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied Plaintiffs application for Disability Insurance Benefits (DIB) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, this matter is REVERSED and REMANDED for further administrative proceedings.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff was born on XXXX, 1983.[1] She has an associate's degree and at the time of the administrative hearings was enrolled in college to obtain a bachelor's degree, and she previously worked as a customer service representative, medical office assistant, and retail sales clerk. (AR 40, 43, 196, 804-05.)

         Plaintiff applied for DIB in July 2011. (AR 167-68.) That application was denied initially and upon reconsideration, and Plaintiff timely requested a hearing. (AR 92-98, 100-06.)

         On April 11, 2013, ALJ Ruperta Alexis held a hearing, taking testimony from Plaintiff and a vocational expert (VE). (AR 34-71.) On May 4, 2016, the ALJ issued a decision finding Plaintiff disabled from December 1, 2010, through April 25, 2012, and not disabled thereafter. (AR 16-29.) Plaintiff timely appealed. The Appeals Council denied Plaintiffs request for review on December 8, 2014 (AR 1-4), making the ALJ's decision the final decision of the Commissioner.

         Plaintiff appealed this final decision of the Commissioner to this Court, which reversed the ALJ's decision and remanded for further proceedings, to allow for reconsideration of a treating pulmonologist's opinion. (AR 848-57.) On remand, ALJ Stephanie Martz held a hearings on May 16, 2016, and September 27, 2016, taking testimony from Plaintiff, a VE, and a medical expert (ME). (AR 774-817.) On February 17, 2017, the ALJ issued a decision finding Plaintiff disabled from December 1, 2010, through April 25, 2012, and not disabled thereafter. (AR 747-66.) Plaintiff seeks judicial review of the ALJ's decision.

         JURISDICTION

         The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         DISCUSSION

         The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had not engaged in substantial gainful activity since December 1, 2010, the date she became disabled. (AR 751.) At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found that during Plaintiffs period of disability (December 1, 2010-April 25, 2012), her asthma, chronic sinusitis, and obesity were severe. (AR 751.) Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that during Plaintiffs period of disability, her impairments did not meet or equal the criteria of a listed impairment. (AR 751-52.)

         If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found that during her period of disability, Plaintiff was capable of performing sedentary work, with additional limitations: she could lift/carry 10 pounds occasionally, and less than 10 pounds frequently. She could sit more than six hours and could stand/walk for two hours in an eight-hour workday with normal breaks. She could push/pull on an unlimited basis within these limitations. She could occasionally climb ramps and stairs, but could never climb ladders, ropes, or scaffolds. She could occasionally balance, stoop, kneel, crouch, and crawl. She had to avoid even moderate exposure to odors, fumes, gases, and poor ventilation. She had to avoid concentrated exposure to extremes of temperature (hot and cold) and excessive humidity. She would have missed at least three days of work per month. (AR 752.) With that assessment, the ALJ found Plaintiff unable to perform any past relevant work. (AR 754.)

         If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. With the assistance of a VE, the ALJ found that during Plaintiffs period of disability, there were no jobs existing in significant numbers in the national economy that Plaintiff could have performed. (AR 754-55.)

         For the period following April 25, 2012, the ALJ found that Plaintiffs severe impairments included asthma, chronic sinusitis, obesity, and degenerative disc disease in the cervical and lumbar spine. (AR 755-60.) The ALJ found that in the period following April 25, 2012, none of Plaintiff s impairments met or equaled a listed impairment. (AR 760.) The ALJ found that medical improvement occurred as of April 26, 2012, because Plaintiff would no longer be absent from work three days per month. (Compare AR 752 with AR 760.) As of April 26, 2012, the ALJ found Plaintiff capable of performing her past relevant work as a reservation agent and billing clerk. (AR 765-66.)

         This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         Plaintiff argues the ALJ erred in (1) failing to follow the court's remand order; (2) assessing opinions provided by Plaintiffs treating pulmonologist and the ME; and (3) finding that medical improvement occurred as of April 26, 2012. The Commissioner argues that the ...


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