Jacoby v. Colvin

72 F. Supp. 3d 1154, 2014 U.S. Dist. LEXIS 168494, 2014 WL 6893690
CourtDistrict Court, D. Oregon
DecidedDecember 5, 2014
DocketNo. 3:13-cv-01526-RE
StatusPublished

This text of 72 F. Supp. 3d 1154 (Jacoby v. Colvin) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jacoby v. Colvin, 72 F. Supp. 3d 1154, 2014 U.S. Dist. LEXIS 168494, 2014 WL 6893690 (D. Or. 2014).

Opinion

OPINION AND ORDER

JAMES A. REDDEN, District Judge:

Plaintiff Yvette Ursula Jacoby brings this action to obtain judicial review of a final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her claim for Disability Insurance Benefits. For the reasons set forth below, the decision of the Commissioner is reversed and this matter is remanded for the calculation and payment of benefits.

BACKGROUND

Jacoby filed her application in December 2009, alleging disability since June 15, 2004, due to “diabetes, colitis, depression, migraines, blind left eye, right rotator cuff [1156]*1156injury, right tennis elbow, neuropathy both hands, thyroid.” Tr. 171. Born in 1966, Jacoby was 43 years old on her date last insured. Her application was denied initially and upon reconsideration. A hearing was held on November 23, 2011. Tr. 31-85, The Administrative Law Judge (“ALJ”) found her not disabled. Jacoby’s request for review was denied, making the ALJ’s decision the final decision of the Commissioner.

ALJ’s DECISION

The ALJ found Jacoby had the medically determinable severe impairments of diabetes type I, blind in the left eye, right shoulder rotator cuff syndrome with adhesive capsulitis. Tr. 14. The ALJ determined Plaintiff met the insured status requirements of the Social Security Act through December 31, 2009. Id.

The ALJ found that Jacoby’s impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. Tr. 17.

The ALJ determined that Jacoby retained the residual functional capacity (“RFC”) to perform a limited range of light work and is able to lift and /or carry 20 pounds occasionally and 10 pounds frequently, sit for six hours and stand and/or walk for two hours in an eight hour day. Tr. 18. The ALJ found Jacoby is limited to no pulling and occasional overhead reaching with her right upper extremity. Tr. 18. The ALJ found Jacoby could climb no ladders, and was limited to occasional crouching, stooping, kneeling, crawling and climbing ramps and stairs. She could do no work requiring binocular vision or depth perception. She must avoid hazardous machinery and extreme vibration. Id.

At step five, the ALJ found Jacoby was unable to perform her past relevant work as a sales clerk or teachers aide, but was capable of performing other work that exists in significant numbers in the national economy, including information clerk. Tr. 24.

Jacoby argues that the ALJ erred by failing to find her mental impairments severe at step two and by providing legally insufficient reasons to discount opinions.

MEDICAL EVIDENCE AND TESTIMONY

On December 20, 2010, Patrick Tester, M.D., Plaintiffs treating physician since October 2008, completed a form in which he opined Plaintiffs Type 1 Diabetes was complicated and the prognosis was progressive. Tr. 800. Dr. Tester stated Plaintiff had symptoms including fatigue, general malaise, extremity pain and numbness, difficulty walking, muscle weakness, diminished manual dexterity, episodic blurred vision, retinopathy, diarrhea, difficulty thinking and concentrating, psychological problems, excessive thirst, abdominal pain, dizziness and loss of balance, swelling, kidney problems, frequent urination and episodes of high and low blood sugars. Tr. 800-01. Dr. Tester stated Plaintiff was not a malingerer, and her symptoms would frequently interfere with her attention and concentration. Dr. Tester stated Plaintiff could stand for 20 minutes before needing to change position, and would miss more than three days a month of work due to symptoms. Tr. 804.

In November, 2011, Dr. Tester completed a form in which he opined Plaintiff was extremely impaired in the ability to understand and remember detailed instructions, the ability to maintain attention and concentration, and the ability to complete a normal workday. Tr. 807. Dr. Tester found Plaintiff markedly impaired in the ability to ask simple questions or request assistance, and the ability to remember locations and work-like procedures. Id.

In November 2011, Colette R. DeLeon, L.C.S.W., Plaintiffs mental health clinician [1157]*1157since October 2011, completed a form in which she opined Plaintiff had generalized anxiety with difficulty concentrating and recurrent panic attacks. Tr. 809. Ms. DeLeon indicated Plaintiff was markedly impaired in the ability to remember locations and work-like procedures, extremely impaired in thé ability to remember detailed instructions, the ability to maintain attention and concentration, the ability to complete a normal workday or work week, and the ability to ask simple questions or request assistance. Tr. 811.

DISCUSSION

I. Step Two

At step two, the ALJ determines whether the claimant has a medically severe impairment or combination of impairments. Bowen v. Yuckert, 482 U.S. 137, 140-41, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). The Social Security Regulations and Rulings, as well as case law applying them, discuss the step two severity determination in terms of what is “not severe.” According to the regulations, “an impairment is not severe if it does not significantly limit [the claimant’s] physical ability to do basic work activities.” 20 C.F.R. § 404.1521(a). Basic work activities are “abilities and aptitudes necessary to do most jobs, including, for example, walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling.” 20 C.F.R. § 404.1521(b).

The step two inquiry is a de minimis screening device to dispose of groundless claims. Yuckert, 482 U.S. at 153-54, 107 S.Ct. 2287. An impairment or combination of impairments can be found “not severe” only if the evidence establishes a slight abnormality that has “no more than a minimal effect on an individual’s ability to work.” See SSR 85-28; Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir.1988) (adopting SSR 85-28). A physical or mental impairment must be established by medical. evidence consisting of signs, symptoms, and laboratory findings, and cannot be established on the basis of a claimant’s symptoms alone. 20 C.F.R. § 404.1508.

The ALJ found the medical record did not establish a severe mental impairment. Tr. 22. The ALJ stated Plaintiff had never been in out or in patient care, her condition waxed and waned over the years with no evidence of worsening, her symptoms were controlled with treatment and medication, and her GAF scores suggested only moderate symptoms. Id.

The ALJ properly determined that Jacoby had severe impairments at step two and continued the analysis. Any error in failing to identify other limitations as “severe” at step two is therefore harmless.

II. The Medical Evidence

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72 F. Supp. 3d 1154, 2014 U.S. Dist. LEXIS 168494, 2014 WL 6893690, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacoby-v-colvin-ord-2014.