Thompson v. Commissioner Social Security Administration, No. 6:2009cv06124 - Document 21 (D. Or. 2010)

Court Description: Opinion and Order: The decision of the Commissioner is reversed and remanded for further administrative proceedings consistent with this opinion. Signed on 8/11/10 by Chief Judge Ann L. Aiken. (lae)

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FILED'iO AUG 16 O?:57usre IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON BARBARA J. THOMPSON, Civil No. 09-6l24-AA Plaintiff, OPINION AND ORDER v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. AlKEN, Chief Judge: Plaintiff brings this action pursuant to the Social Security Act, 42 U.S.C. of the §§ 405(g) and l383(c) (3), to obtain judicial review Commissioner's decision denying her application supplemental security income bene fits under the Act. for Upon review of the record and the parties' submissions, the decision of the Commissioner is revers ed and remanded for further proceedings. DISCUSSION Plaintiff argues that the ALJ erred in the following respects: 1) failing to provide clear and convincing reasons to reject the 1 - OPINION AND ORDER physical limitation assessment of Dr. Micek, a treating physician; 2) failing to give clear and convincing reasons to reject plaintiff's subjective complaints; 3) failing to consider or assess plaintiff' s mental impairments ; and 4) relying solelyon the Medical-Vocational Guidelines in finding plaintiff not disabled. Plaintiff contends that the Commissioner failed to meet his burden of proving that she can perform other work. I find no error in the ALJ's finding that many of plaintiff's subjective complaints - including dizziness, numbness, loss of balance, and various aches and pains - are not supported by or are inconsistent with medical findings, and that the frequency and changing nature of her complaints detract from her credibility. Tr. 20, 130, 132, 148, 153, 169-72, 183, 189, 191, 287, 303-05, 313-15, 328-29, 350-51; see Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599-600 (9th Cir. 1999) (an ALJ may look to medical record for inconsistencies in evaluating a claimant's testimony). Similarly, I find no error with the ALJ's consideration of Dr. Micek's physical limitation assessment, given that it apparent ly was based on plaintiff's responses to questions pos ed by Dr. Micek and does not reference clinica 1 findings or observations. Tr. 323, 391-92; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ("The ALJ need not accept the opinion of any physician, treating physician, if that opinion is brief, including a conclusory, and inadequately supported by clinica 1 findings."); Morgan, 169 F. 3d at 2 - OPINION AND ORDER 602 ("A physician' s opinion of disabili ty premised to a large extent upon the claimant' s own accounts of his symptoms and limitations may be disregarded where those complaints have been properly discounted. ") (internal omitted) . plaintiff Although quotation marks disagrees with and ei tation the ALJ' s interpretation of the medical record, "[wJhen the evidence before the ALJ is subject to more than one rational interpretation, we must defer to the ALJ's conclusion." Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). That said, I agree that the ALJ's assessment of plaintiff's abili ty to perform other work is not supported by substantial evidence in the record. work, In finding plaintiff able to perform other the ALJ re lied on the Medical-Vocational Guidelines (the grids), which correlate a claimant's age, education, previous work experience, and residual functional capacity to direct a finding of either disabled or not disabled. Subpt. P, App. 2. Tr. 21; ~ 20 C.F.R. Part 404, Although an ALJ may rely on the grids if a claimant suffers from exertional impairments, if a claimant has both exertional and nonexertional impairments, serve as required. a framework Id. §§ and further evidence the grids merely and testimony is 200.00 (a), (e) (2); see also Thomas, 278 F.3d at 960; Cooper v. Sullivan, 880 F.2d 1152, 1155-56 (9th Cir. 1989). Importantly, "where application of the grids directs a finding of disability, that finding must be accept ed by the [Commissioner]. 3 - OPINION AND ORDER That is so whether the impairment is exertional or results from a combination of exertional and nonexertional limitations." Cooper, 880 F.2d at 1157. Relying on the "record as a whole, " the ALJ found that plaintiff retained the ability to perform medium work and could sit and/or stand for six hours in an eight-our work day. Tr. 19. Medium work requires the ability to lift and carry fifty pounds occasionally and twenty-fi ve pounds 416.967©. frequent ly . 20 C. F. R. § Given p1aintiff's advanced age, high school education, and lack of transferrabIe skilIs, the ALJ's finding that plaintiff can perform medium work renders plaintiff "not disabIed" under the grids. 20 C.F.R. Part 404, Subpt. P, App. 2, § 203.14. The ALJ ended the inquiry there, finding that p1aintiff does not suffer from non-exertional impairments which limit the range of work she can perform. Tr. 21. The ALJ's finding that plaintiff retains the residual functional capacity to perform medium work is critical to his disability decision; if plaintiff's impairments limit her to light work, she likely is presumptively disab1ed under the grids. 20 C. F.R. Part 404, Subpt. P, App. 2, §§ 202.00 (c), 202.04. Therefore, the ALJ must cite to substantial evidence in the record to support his exertional capacity finding and meet the Cornrnissioner's burden of proving that plaintiff can perform other work in the economy. However, as noted by the ALJ, agency non-examining physicians 4 - OPINION AND ORDER recommended denial of plaintiff's application assessment that no medically determinable based on their impairment had been diagnosed; they rendered no opinion or conclusion as to plaintiff's exertional capabilities. Tr. 20, 254-56. Further, the ALJ cited no medical evidence of record or examples of plaintiff' s daily acti vi ties to support the finding that she can perform medium work. Tr. 20. While plaintiff's assessment, the record may complaints or not Dr. support Micek's the physical severity of limitations the record reflects that plaintiff has a medically determinable impairment of cervical degenerative disc disease that could affect her ability to lift, carry, sit, and stand. 196, 298, 352, 384. record supporting Tr. 180, Absent citation to specific evidence in the the ability to perform medium, the ALJ's disability determination cannot be upheld. Accordingly, I find that outstanding issues must be resolved before a determination of disability can be made. 211 F.3d 1172, further 1178 proceedings (9th Cir. 2000). to determine Harman v. Agfel, The case is remanded for plaintiff's exertional limitations, as weil as non-exertional limitations n light of Dr. Eckstein's post-hearing report, and to further develop the record as necessary. Tr. 354-64, 386-87. CONCLUSION The ALJ's conclusion that plaintiff is not disabied under the Act is not supported by substantial evidence in the record. 5 - OPINION AND ORDER Accordingly , the decision of the COl1U1\issioner is REVERSED and REMANDED for further administrati ve proceedings consistent with this opinion. IT IS SO ORDERED. DATED this ~~y of August, 2010. Ann Aiken United States District Judge 6 - OPINION AND ORDER

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