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Sims v. Commissioner of Social Security Administration

United States District Court, D. Oregon

April 1, 2015

ELIJAH SIMS, JR. Plaintiff,

GEORGE J. WALL, Portland, Attorney for Plaintiff.

S. AMANDA MARSHALL, United States Attorney District of Oregon, RONALD K. SILVER, Assistant United States Attorney, Portland, OR.

CHRISTOPHER J. BRACKETT, Social Security Administration Office of the General Counsel, Seattle, WA, Attorneys for Defendant.


MALCOLM F. MARSH, District Judge.

Plaintiff Elijah Sims, Jr. 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, 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, I affirm the final decision of the Commissioner.


Plaintiff protectively filed an application for DIB and SSI on March 30, 2007, alleging disability beginning March 15, 2003, due to chronic nerve pain in the neck and back.[1] Plaintiff meets the insured status requirements for a DIB application through December 31, 2008.

After being denied at the initial and reconsideration levels, plaintiff requested and was granted a first hearing before an administrative law judge (ALJ) on January 7, 2010. Plaintiff appeared with his attorney and testified. A vocational expert (VE), Paul K. Morrison, and plaintiff's wife, Tricia R. Sims, also testified. The ALJ issued an unfavorable decision on March 16, 2010, which plaintiff appealed to this court. Tr. 438. Based on an unopposed motion by the Commissioner, on April 20, 2012, this court reversed and remanded the decision pursuant to Sentence Six of 42 U.S.C. § 405(g) for further administrative proceedings. See Tr. 461.

The same ALJ held a second hearing on June 17, 2013, at which plaintiff appeared with his attorney, but plaintiff did not provide any testimony relevant to his claims. On June 27, 2013, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiff's request for review, and therefore, the ALJ's June 27, 2013 decision became the final decision of the Commissioner for purposes of review.

Born in 1957, plaintiff was 56 years old on the date of the ALJ's 2013 adverse decision. Plaintiff completed high school. Plaintiff has past relevant work as a credit collections clerk.


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 his alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairment: degenerative disc disease of the cervical and lumbar spine. At step three, the ALJ found that plaintiff's impairment, 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 less than a full range of medium work as defined in 20 C.F.R. § 404.1567(c) except he cannot lift or carry more than 25 pounds occasionally and cannot perform repetitive bending, lifting or stooping. Plaintiff cannot sit or stand in a stationary position for more than two consecutive hours at a time.

At step four, the ALJ found plaintiff is able to perform past relevant work as a credit collections clerk, 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 March 15, 2003, 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 credibility; (2) the ALJ failed to properly consider the medical evidence including the medical opinions of treating physicians John Denker, M. D., and Harold Lee, M. D.; (3) the ALJ failed to find chronic pain syndrome a severe impairment at step two; (4) the ALJ failed to properly evaluate the lay testimony of plaintiff's wife, Tricia R. Sims; and (5) the ALJ erred at step four.

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 v. Colvin, 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 January 7, 2010 hearing, plaintiff testified that he experiences chronic pain in his back down to his right hamstring and groin area. Tr. 38. Plaintiff testified that he tried physical therapy and acupuncture and currently takes pain medication to relieve his pain. Tr. 38, 45. Plaintiff also testified that he cannot type on a keyboard without experiencing pain in the back of his neck; specifically, he states that the pain occurs while looking down and typing on a keyboard. Tr. 40, 44. Plaintiff testified that he does not spend a lot of time on his computer, only to briefly check email. Tr. 44. Plaintiff further testified that he helps his four children get ready for school in the morning. Tr. 46.

In a May 4, 2007 Function Report, plaintiff noted that he tries to help with small household chores such as laundry and light cleaning. Tr. 161. In describing a regular day, plaintiff stated that he spends most of his day relaxing in a special recliner with extra high back support. Id. Plaintiff indicated that when traveling outside his home, he prefers to drive; he noted that he goes grocery shopping one to two times a month. Tr. 163; Plaintiff noted that he prepares quick meals such as sandwiches, salads, and frozen meals, two times a week. Tr. 164. Plaintiff also stated that he completes light yard work such as cutting the lawn with a self-propelled mower. Tr. 164. In terms of physical activities, plaintiff indicated that he can lift light weights and walk a quarter of a mile before needing to rest.

In a May 4, 2007 Pain and Fatigue Questionnaire, plaintiff noted a chronic aching, burning, and stinging pain in his lower lumbar area and right rotor arm. Tr. 169. Plaintiff stated that his pain is made worse with lifting, arm motions, sitting for a prolonged period, and bending and stooping. Id. Plaintiff noted that he takes Mobic and Darvocet for pain relief, which makes him drowsy after three or four hours.

In the decision, the ALJ concluded that plaintiff has medically determinable impairments that could reasonably be expected to produce some symptoms, but that plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms are not entirely credible.

Contrary to plaintiff's assertion, the ALJ provided three clear and convincing reasons, citing specific record evidence, which undermine his subjective complaints.[2]

1. inconsistent with objective medical evidence

The ALJ specifically found plaintiff's subjective allegations of debilitating pain inconsistent with the medical record. Tr. 419. When the claimant's own medical record undercuts his assertions, the ALJ may rely on that contradiction to discredit the claimant. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007); Morgan v. Commissioner Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999); Carmickle, 533 F.3d at 1161. The ALJ's findings are supported by substantial evidence in the record.

In the decision, the ALJ noted that plaintiff's laboratory imaging is inconsistent with his allegations of pain. Tr. 420. In fact, plaintiff's 2004 magnetic resonance imaging (MRI) revealed a small central disc protrusion at L5-S1 without nerve root compression. Tr. 339. Following plaintiff's cervical fusion surgery in January 2004, a March 29, 2004 x-ray of plaintiff's cervical spine was unremarkable. Tr. 352. After reviewing plaintiff's most recent MRI in April 20, 2010, treating physician, John Denker, M.D. noted on the MRI report that the scan reflects minimal changes from plaintiff's ...

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