United States District Court, D. Oregon
GREGORY M. CORREIA, Plaintiff,
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.
JOHN E. HAAPALA, JR., Eugene, OR. Attorney for Plaintiff
RONALD K. SILVER, Assistant United States Attorney, District of Oregon, Portland, OR.
ERIN F. HIGHLAND, Social Security Administration Office of the General Counsel, Seattle, WA, Attorneys for Defendant.
OPINION AND ORDER
MALCOLM F. MARSH, District Judge.
Plaintiff Gregory M. Correia seeks judicial review of the final decision of the Commissioner of Social Security denying his application for a period of disability and disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C §§ 401-434. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons that follow, I reverse the decision of the Commissioner and remand this case for further proceedings.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff protectively filed an application for DIB on December 20, 2010, alleging disability beginning November 28, 2006 due to fibromyalgia and chronic pain caused by fibromyalgia.
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 March 15, 2013, at which plaintiff appeared with his attorney and testified. A vocational expert, Hanock Livneh, Ph.D., also appeared at the hearing and testified. On May 1, 2013, 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 1959, plaintiff was 47 years old on his alleged onset date. Plaintiff was 52 years old on the date last insured. Plaintiff has a tenth grade education and has past relevant work as as an auto mechanic. Plaintiff also has been self-employed as a locksmith.
THE ALJ'S DISABILITY ANALYSIS
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. §§ 404.1520; 416.920. Each step is potentially dispositive. The claimant bears the burden of proof at steps one through four. See Valentine v. Comm.issioner 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).
The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2011. A claimant seeking DIB benefits under Title II must establish disability on or prior to the last date insured. 42 U.S.C. § 416 (I) (3); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
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: fibromyalgia, degenerative disc disease, and osteoarthritis. 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 lift and carry 10 pounds frequently and 20 pounds occasionally; alternate sitting/standing in one hour increments for eight hours in an eight-hour work day without leaving the work station; occasional climbing of ramps/stairs; no climbing of ladders, ropes or scaffolds; occasional stooping, kneeling, crouching and crawling; only occasional overhead reaching bilaterally; and should avoid exposure to hazards such as unprotected heights and dangerous machinery.
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 a parking lot attendant, photocopy machine operator, and ticket taker. Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from November 28, 2006 through December 31, 2011.
ISSUES ON REVIEW
On appeal to this court, plaintiff contends the following errors were committed: (1) the ALJ failed to properly evaluate his testimony; (2) the ALJ failed to properly evaluate the opinion of treating physician Howard Gandler, M.D.; (3) the ALJ erred in rejecting the lay testimony of his friend Debra Jean Flowers; and (4) improperly relied upon VE testimony that plaintiff could alternate between sitting and standing.
STANDARD OF REVIEW
The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405 (g); Berry v. As true, 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. Plaintiff's Credibility
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, 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 E'. 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 ...