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Lombard v. Colvin

United States District Court, District of Oregon

March 31, 2015

RONALD LOMBARD, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

OPINION AND ORDER

MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE

Plaintiff Ronald Lombard brings this action for judicial review of the Commissioner's final administrative decision denying his application for disability benefits and supplemental security income under the Social Security Act. This court has jurisdiction pursuant to 42 U.S.C. § 1383(c) and 405(g). Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the Commissioner's decision is AFFIRMED.

PROCEDURAL BACKGROUND

Plaintiff protectively filed his claims for SSDIB and SSI on March 16, 2010. (Tr 21). Plaintiff alleged he became disabled on September 11, 2009. Id. Plaintiff turned 50 on October 17, 2009 (Tr. 179) and had worked as a nursing assistant for 30 years. [#21 at p.8]. His claims were twice denied administratively and he timely requested a hearing. A hearing was held on November 15, 2011 (Tr. 179) at which time Administrative Law Judge (ALJ) denied the Plaintiffs claims. The Appeals Council denied Plaintiffs request for review on June 25, 2013, making the ALJ's decision the final agency decision. (Tr. 1). Plaintiff timely requested judicial review through this appeal.

Plaintiffs reported impairments include degenerative disc disease of the cervical spine, degenerative joint disease of the right knee, a bilateral flat-foot deformity, and a mental health impairment. Plaintiff argues the ALJ erred by failing to account for the Plaintiff s mental health impairment, improperly rejecting the opinion of the Plaintiff s treating podiatrist, improperly finding plaintiff less-than credible, and failing to identify transferable skills in the RFC.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). "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 v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).

DISCUSSION

The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520 and 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If the claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity ("RFC"), age, education, and work experience. Id. Here, the Commissioner's final decision is based on proper legal standards and supported by substantial evidence. I address each of Plaintiff s arguments in turn.

I. The ALJ's Adverse Credibility Determination

Where, as here, the plaintiff has presented objective medical evidence of an impairment that could reasonably be expected to produce the pain or other symptoms she has testified to, the ALJ can only reject that testimony by giving "specific, clear and convincing reasons" for his rejection. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir.2007). However, the ALJ is not "required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A)." Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).

The ALJ "may consider a wide range of factors in assessing credibility." Ghanim v. Colvin, 12-35804, 2014 WL 4056530, at *7 (9th Cir. Aug. 18, 2014). These factors can include "ordinary techniques of credibility evaluation, " id., as well as:

(1) whether the claimant engages in daily activities inconsistent with the alleged symptoms; (2) whether the claimant takes medication or undergoes other treatment for the symptoms; (3) whether the claimant fails to follow, without adequate explanation, a prescribed course of treatment; and ...

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