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Franz v. Colvin

United States District Court, D. Oregon

February 11, 2015


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For Plaintiff: TIM WILBORN, Wilborn Law Office, P.C., Las Vegas, NV.

For Defendant: S. AMANDA MARSHALL, United States Attorney, District of Oregon, RONALD K. SILVER, Assistant United States Attorney, Portland, OR; RICHARD A. MORRIS, Social Security Administration, Office of the General Counsel, Seattle, WA.

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Malcolm F. Marsh, United States District Judge.

Plaintiff Gerald Franz seeks judicial review of the final decision of the Commissioner of Social Security denying his application for Disability Insurance Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. § § 401-403. This Court has jurisdiction pursuant to 42 U.S.C. § § 405(g). For the reasons that follow, I reverse and. remand for an immediate calculation and award of benefits.


Plaintiff protectively filed an application for DIB on May 1, 2007, alleging disability beginning June 15, 2006, due to chronic pain in his back as well as anxiety and depression. Plaintiff last met the insured status requirements for a DIB application on December 31, 2007.

After being denied at the initial and reconsideration levels, plaintiff requested and was granted a first hearing before an administrative law judge (ALJ) on August 10, 2009. The ALJ issued an unfavorable decision on November 2, 2009, which plaintiff appealed to this court. Based on the stipulation of both parties, on April 17, 2012, this court reversed and remanded the decision pursuant to Sentence Four of 42 U.S.C. § 406 for further administrative proceedings. See Tr. 657-660.

The same ALJ held a second hearing on March 18, 2013, at which plaintiff appeared with his attorney, but plaintiff did not testify to anything of substance relevant to his claims. A vocational expert (VE), Patricia B. Ayerza, appeared and testified. On April 3, 2013, the ALJ issued an unfavorable decision. The Appeals Council denied

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plaintiff's request for review, and therefore, the ALJ's April 3, 2013 decision became the final decision of the Commissioner for purposes of review.

Born in 1955, plaintiff was 57 years old on the date of the ALJ's adverse decision. Plaintiff has a GED and an associates degree in science. Plaintiff's past relevant work includes motel maintenance, gas station attendant, and retail cashier.


The Commissioner has established a five-step sequential process for determining whether a person is disabled, Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 96 L.Ed.2d 119 (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 his alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairments: mild degenerative disc disease; chronic obstructive pulmonary disease; bipolar disorder, not otherwise specified (NOS); alcohol abuse (claimed partial remission); and history of polysubstance abuse (in remission). 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) with several additional non-exertional work limitations. Plaintiff can frequently balance and kneel but only occasionally stoop or crouch and should avoid concentrated exposure to environmental irritants and hazards in the workplace. Plaintiff can perform simple routine tasks without public contact, and with no more than brief occasional interaction with coworkers and supervisors. Plaintiff would work best alone and not as part of a team in the workplace to complete assigned tasks.

At step four, the ALJ found plaintiff is unable to perform any past relevant work. At step five, the ALJ concluded that considering plaintiff's age, education, work experience, and residual functional capacity, jobs exist in significant numbers in the national economy that plaintiff can perform/ such as housekeeper, garment sorter, and electronics worker. Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from December 31, 2007, 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 plaintiff's testimony; (2) the ALJ failed to properly evaluate the opinions of treating physician Harry Rinehart, M.D. and examining physician Rory Richardson, Ph.D.; and (3) the ALJ failed to properly evaluate the lay testimony of Debra Franz.


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

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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. The ALJ Erred, 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. § 404.1529. 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 August 10, 2009 hearing, plaintiff testified to sleeping as much as 15 hours per day. Tr. 43. Plaintiff attributed this to his depression. Id. Plaintiff also testified that he is able to sit in front of a computer for fifteen to twenty minutes at a time before he becomes uncomfortable. Tr. 48. Plaintiff noted that he is unable to drive due to his back and leg pain. Tr. 51. Plaintiff further testified that he avoids crowds because he cannot handle them; plaintiff acknowledged that he was reprimanded at his previous job for negative interactions with customers. Tr, 54. Plaintiff reported that he was terminated from his most recent job for aggressive verbal behavior with his supervisor. Tr. 40. Plaintiff testified to having chronic back pain on a daily basis and taking methadone to relieve his pain. Tr. 43-44. Plaintiff did not testify about his impairments at the March 18, 2013 hearing.

In a June 22, 2007, Activities of Daily Living (ADLs) report, plaintiff reported bathing two times a month. Tr. 155. ...

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