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Prohaska v. Colvin

United States District Court, D. Oregon

December 10, 2014


TIM WILBORN, Wilborn Law Office, PC, Las Vegas, NV, Attorney for Plaintiff.

S. AMANDA MARSHALL, United States Attorney, District of Oregon, RONALD K. SILVER, Assistant United States Attorney, Portland, OR, BRETT E. ECKELBERG, Social Security Administration Office of the General Counsel, Seattle, WA, Attorneys for Defendant.


MALCOLOM F. MARSH, District Judge.

Plaintiff Teresa Prohaska seeks judicial review of the final decision of the Conunissioner of Social Security denying her application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C §§ 401-403, and application for Supplemental Security Income (SSI) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383 (c) (3). For the reasons that follow, this court reverses the decision of the Conunissioner and remands this matter pursuant to sentence four of 42 U.S.C. §405 (g) for further administrative proceedings.


Plaintiff protectively filed an application for DIB and SSI on November 10, 2009, alleging disability beginning January 1, 2003, due to multiple sclerosis and peripheral neuropathy. Plaintiff's claims were denied initially and upon reconsideration. Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on February 13, 2012, at which plaintiff appeared with her attorney and testified. Also appearing and testifying were medical expert William Rack, M.D., plaintiff's mother Trudy Cherry, and vocational expert Hanoch Livneh. After the hearing, plaintiff amended her alleged onset date of disability to June 1, 2008. Tr. 125. On May 3, 2012, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review.

Born in 1961, plaintiff was 50 years old on the date of the ALJ's adverse decision. Plaintiff completed high school, three years of college, and obtained a license as a massage therapist. Plaintiff's past relevant work includes: flagger, convenience store cashier, massage therapist, and house cleaner.


The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. Valentine v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At step five, the burden shifts to the Commissioner to show that the claimant can do other work which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).

At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since her alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairments: multiple sclerosis and peripheral neuropathy. At step three, the ALJ found that plaintiff's impairments, or combination of impairments, did not meet or medically equal a listed impairment.

The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform light work as defined in 20 C.F.R. § 404.1567(b) except she needs to change positions hourly between sitting and standing, and is limited to occasionally climbing, stooping, kneeling, and crawling, and frequently handling and fingering. Plaintiff cannot crouch, balance, or work at unprotected heights or around moving machinery.

At step four, the ALJ found plaintiff is able to perform past relevant work as a cashier, and thus did not reach step five. Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from June 1, 2008, through the date of the decision.


On appeal to this court, plaintiff contends the following errors were committed: (1) the ALJ failed to properly evaluate her credibility; (2) the ALJ failed to properly evaluate the lay testimony of her mother Trudy Cherry; (3) the ALJ's step four findings are not supported by substantial evidence; and (4) because of these errors, the hypothetical posed to the vocational expert was invalid.


The district court must affirm the Commissioner's decision if the Commissioner applied the proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "Substantial evidence is more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hill, 698 F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Batson v. Commissioner Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

I. ALJ Did not Err in Evaluating Plaintiff's Credibility

A. Standards

To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. 20 C.F.R. §§ 404.12629, 416.929. The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).

The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not· arbitrarily discredit the claimant's testimony. Ghanim, 763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the ALJ may consider when making such credibility determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.

B. Analysis

At the hearing, plaintiff testified that she closed her massage therapy business in 2007 because she was unable to stand for long periods of the day and using her hands all day caused pain. Tr. 30. She testified that she cannot stand for more than a few hours at a time before feeling pain in her feet. Tr. 38. Plaintiff stated that she has trouble lifting five pound weights, climbing stairs and ladders, and difficulty keeping her balance while walking. Tr. 42. She also testified that she cannot bend over at the waist because it causes her to lose her balance. Tr. 44.

In a Function Report, dated December 18, 2009, plaintiff indicated that she can walk 100 feet before requiring a five to 10 minute rest. Tr. 170. Plaintiff also noted that before becoming ill, she was able to cut down trees, cut firewood with a chainsaw, ski, lift weights, and run. Tr. 166. In describing a regular day, plaintiff stated that she watches television in the morning, prepares lunch, does dishes and laundry, vacuums if needed, and goes to the store, if needed. Tr. 165. Plaintiff indicated that the pain and burning in her hands and feet wake her from sleep. Tr. 166. Plaintiff stated that she takes care of her cat and gives it pet massages. Id. Plaintiff noted that she performs some raking and weeding outside once a week as well as using a riding lawnmower to cut the grass once a month. Tr. 167.

In a Pain and Fatigue Questionaire, plaintiff noted a constant burning, swelling sensation and pain in her hands and feet. Tr. 181. Plaintiff stated that she cannot garden or play catch for lengthy periods. Id. In responding to how fatigue affects her daily activities, plaintiff indicated ...

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