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Pattee v. Colvin

United States District Court, D. Oregon

February 17, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


THOMAS M. COFFIN, Magistrate Judge.

Plaintiff, Melissa Pattee, brings this action pursuant to the Social Security Act (the Act), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner. The Commissioner denied plaintiff's application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits. For the reasons set forth below, I recommend that the Commissioner's motion for remand be granted, and the decision reversed and remanded for further proceedings.


Plaintiff filed her applications for DIB and SSI benefits on April 12, 2010, alleging disability since February 10, 2010, due to breast cancer followed by a mastectomy and subsequent neuropathy, of her hands and left foot; a mild disc bulge of the lumbar spine; and post-traumatic stress disorder, depression, and anxiety. Tr. 13-14, 40, 179-84. Her applications were denied initially and on reconsideration. Tr. 72, 77, 88, 98. After timely requesting a hearing, plaintiff and a vocational expert (VE) appeared and testified before an administrative law judge (ALJ) on December 13, 2012. Tr. 34-64, 124-25. On December 21, 2012, the ALJ issued a decision that plaintiff was not disabled within the meaning of the Act. Tr. 8-25. The Appeals Council denied plaintiff's request for review, making the ALJ's decision the final agency decision. Tr. 1. Plaintiff now seeks judicial review. 42 U.S.C. § 405(g).

Plaintiff was 36 years old at the time of the ALJ's decision. Plaintiff was educated through eleventh grade and has past relevant work as a flagger and pizza restaurant manager. Tr 23, 49-50.


This court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record.. Hammock v. Boweri, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports and detracts from the [Commissioner]'s conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).


Plaintiff argues that the ALJ erred in the following respects: 1) failing to give sufficient reasons to reject the opinion of examining physician, Dr. Jerome S. Gordon, Ph.D; 2) failing to give sufficient reasons to reject plaintiff's complaints; and 3) failing to find that the vocational expert's testimony was inconsistent with the Dictionary of Occupational Titles (DOT). Pl.'s Br. at 1. The Commissioner concedes that the ALJ erred in accepting the vocational expert's testimony without receiving an explanation for any conflicts with the DOT.

However, the Commissioner does not concede that the ALJ failed to provide sufficient reasons to reject the Dr. Gordon's opinion and her subjective complaints. Rather, the Commissioner moves for remand of the case for further proceedings to properly evaluate the vocational expert's testimony as it relates to the DOT and to further evaluate the medical record and plaintiff's residual functional capacity. Plaintiff, on the other hand, argues that her testimony and the opinion of Dr. Gordon must be credited as true. If such evidence is credited, plaintiff argues that the record establishes disability within the meaning of the Act and a remand for benefits would be appropriate. Thus, the issue in this case is whether to reverse and remand for further administrative proceedings or to find plaintiff disabled and remand for benefits.

I agree that the ALJ erred by failing to allow an opportunity for the vocational expert to explain her inconsistency with the DOT. However, I find that outstanding issues do not warrant crediting Dr. Gordon's opinion and plaintiff's testimony as true. Therefore, I recommend that this matter be remanded for further administrative proceedings.

A. Plaintiff's Credibility

Plaintiff contends that the ALJ failed to articulate sufficient reasons for rejecting her subjective complaints concerning the severity of her impairments and therefore, her allegations should be credited as true. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms that claimant complains of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of... symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996)(internal citations omitted).

An ALJ's general assertion that a claimant is not credible is insufficient; the ALJ must "state which... testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). If the "ALJ's credibility finding is supported by substantial evidence ...

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