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Bromann v. Colvin

United States District Court, D. Oregon, Portland Division

December 5, 2014

WAYNE A. BROMANN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

OPINION AND ORDER

JAMES A. REDDEN, District Judge.

Plaintiff Wayne Bromann brings this action to obtain judicial review of a final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his claims for Disability Insurance Benefits and Social Security Income benefits under Titles II and XVI of the Social Security Act. For the reasons set forth below, the decision of the Commissioner is reversed and this matter is remanded for further administrative proceedings.

BACKGROUND

Bromann filed his applications in March 2011, alleging disability since November 2007, due to "bulging disc, back injury/Retrolisthesis of L4 on L5, back injury/anterior wedging at T12 & L1, right shoulder arthritis with bone spur, high cholesterol, high blood pressure, and colitis inflammation." Tr. 177. Born in 1964, Bromann was 43 years old on his alleged onset date. His application was denied initially and upon reconsideration. A hearing was held on April 5, 2012. Tr. 23-59. The Administrative Law Judge ("ALJ") found him not disabled. Bromann's request for review was denied, making the ALJ's decision the final decision of the Commissioner.

ALJ's DECISION

The ALJ found Bromann had the medically determinable severe impairments of degenerative disc disease of the lumbar and cervical spine, degenerative joint disease of the right shoulder, and obesity. Tr. 12. The ALJ determined Plaintiff met the insured status requirements of the Social Security Act through December 31, 2011. Id.

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

The ALJ determined that Bromann retained the residual functional capacity ("RFC") to perform a limited range of light work and is able to lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently, sit for six hours and stand and/or walk for six hours in an eight hour day, with the ability to change position between sitting and standing every fifteen minutes. Tr. 14. The ALJ found Bromann is limited to no more than occasional pulling and overhead reaching with his right upper extremity, and is unable to perform forward reaching with his right upper extremity, involving more than a 45 degree angle from the resting position adjacent to his body, and should perform no more than occasional forward reaching within this limitation. Tr. 14-15. He found Plaintiff has no limitation with his left upper extremity, and is not limited in his ability to handle, finger, or feel. Tr. 15. The ALJ found Plaintiff I limited to occasional stooping, kneeling, crouching, and climbing stairs, ramps, ladders, ropes or scaffolds. The ALJ found Plaintiff should avoid concentrated exposure to vibration, and, because of pain, he will be distracted and off task up to 5 percent of the time. Id.

At step five, the ALJ found Bromann was unable to perform his past relevant work as a care giver, hand packer, and construction worker, but was capable of performing other work that exists in significant numbers in the national economy, including storage facility rental clerk, electronics worker, and routing clerk. Tr. 17.

Bromann argues that the ALJ erred by: (1) finding him not fully credible; (2) failing to properly consider the medical evidence; (3) failing to prove he retains the ability to perform other work in the national economy.

MEDICAL EVIDENCE AND TESTIMONY

DISCUSSION

I. Credibility

The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ's findings must be supported by specific, cogent reasons. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner's reason for rejecting the claimant's testimony must be "clear and convincing." Id. The ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints. Id. The evidence upon which the ALJ relies must be substantial. Reddick, 157 F.3d at 724. See also Holohan v. Massinari, 246 F.3d 1195, 1208 (9th Cir. 2001). General findings (e.g., "record in general" indicates improvement) are an insufficient basis to support an adverse credibility determination. Reddick at 722. See also Holohan, 246 F.3d at ...


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