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Davies v. Colvin

United States District Court, D. Oregon

July 28, 2015

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


MICHAEL J. McSHANE, District Judge.

Plaintiff Kristopher L. Davies seeks judicial review of the Commissioner's decision denying his applications for disability insurance benefits and supplemental security income payments under Titles II and XVI of the Social Security Act. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the Commissioner's decision is not supported by substantial evidence, the decision is REVERSED and this case is REMANDED for payment of benefits.


Plaintiff filed his applications on May 20, 2010, alleging disability as of October 15, 2009. Tr. 11, 254. After the Commissioner denied his application initially and upon reconsideration, Plaintiff requested a hearing before an administrative law judge (ALJ). Tr. 215-216. On August 23, 2012, an administrative hearing was held. Tr. 78-147. On September 12, 2012, ALJ Ted W. Neiswanger issued a written decision finding Plaintiff not disabled. Tr. 11-23. On February 3, 2014, the Appeals Council denied Plaintiff's subsequent request for review, so the ALJ's decision became the final decision of the Commissioner. Tr. 1-3. This appeal followed.


The reviewing court shall affirm the Commissioner's decision if the decision 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, the court reviews 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).


A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which... has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). The Social Security Administration utilizes a five-step sequential evaluation to determine disability. 20 C.F.R. §§ 404.1520; 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with respect to the first four steps, the burden then shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner must demonstrate 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. If the Commissioner fails to meet this burden, the claimant is considered disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is found not disabled. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).

At step two, the ALJ concluded that Plaintiff had the following severe impairments: Ehlers-Danlos syndrome, IBS, mood disorder due to Ehlers-Danlos syndrome, and generalized anxiety disorder. Id. Between steps three and four, the ALJ assessed Plaintiff's residual functional capacity (RFC). He determined Plaintiff retains the capacity to perform less than a full range of light work; he can lift/carry/push/pull 35 pounds occasionally and 20 pounds frequently; sit, stand, and walk for six hours in an eight-hour workday with the freedom to shift between standing and sitting "on a 50/50 basis"; perform simple routine work tasks; have occasional contact with supervisors and the public; however, he cannot perform work that requires good communication if there is significant background noise; and is unable to perform fast-paced production work tasks. Tr. 15. At step four, the ALJ found Plaintiff had no past relevant work. Tr. 21. At step five, based on the testimony of a vocational expert (VE), the ALJ concluded that Plaintiff could perform jobs that exist in significant numbers in the national economy, including hand bander, box filler, and bench worker. Tr. 22. Accordingly, the ALJ found Plaintiff not disabled. Tr. 22-23.

Plaintiff contends the ALJ: (1) erroneously discredited Plaintiff's credibility; (2) erroneously discredited the opinions of Drs. Kalidinki, Pethick, and Eckstein; (3) failed to incorporate the testimony of lay witness Anthony Davies; and (4) failed to identify jobs consistent with Plaintiff's RFC at step five.

I. Plaintiff's Credibility

Plaintiff argues the ALJ erred by rejecting his subjective symptom testimony. The Ninth Circuit relies on a two-step process for evaluating the credibility of a claimant's testimony about the severity and limiting effect of the claimant's symptoms. See Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 503 F.3d 1028, 1035-36 (9th Cir. 2007). "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Lingenfelter, 503 F.3d at 1036 (citation and quotation marks omitted). Second, absent evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). Further, an ALJ "may consider... ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, ... [or] other testimony that appears less than candid...." Id. at 1284. However, a negative credibility finding made solely because the claimant's symptom testimony "is not substantiated affirmatively by objective medical evidence" is legally insufficient. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Nonetheless, the ALJ's credibility finding may be upheld even if not all of the ALJ's rationales for rejecting claimant testimony are upheld. See Batson, 359 F.3d at 1197.

The ALJ noted that Plaintiff was searching for employment, which was "inconsistent with complete disability." Tr. 19. The ALJ cites two records to support his finding; first, a 2010 psychological evaluation by Steve Pethick, Ph.D., noting Plaintiff was "currently unemployed... [but] would like to find employment and possibly obtain his GED." Tr. 451. Second, a 2009 chart note authored by family nurse practitioner Bill Briggs, making only passing reference to employment, indicating Plaintiff "continues to be frustrated with lack of options for work." Tr. 488. Neither of these citations reasonably evince Plaintiff's belief that he can perform full-time work as defined by the Social Security Act (the Act). At most, the first citation suggests Plaintiff's desire to earn income, particularly in light of his child's recent birth. Tr. 451. The second citation is even less compelling, as it notes only Plaintiff's frustration, and does not identify whether his frustration is due to his disability, the lack of available jobs in general, or simply because he does not have a job. Tr. 488. Moreover, Social Security case law typically discounts plaintiff credibility for failing to show adequate motivation to seek or attempt gainful employment. See, e.g., Thomas, 278 F.3d at 959 ("[E]xtremely poor work history" showing "little propensity to work" was a clear and convincing rationale to discount subjective testimony.). It is nonsensical to require a Plaintiff to exhibit a desire to return to work while simultaneously not exhibiting the same desire in order to avoid diminishing his credibility. Defendant's case law, Macri v. Chater, 93 F.3d 540 (9th Cir. 1996), is distinguishable because it implied the plaintiff could not find work in his field due to a "slowdown" in the industry rather than due to his alleged pain symptoms. Id. at 544. The ALJ's reasoning fails.

The ALJ further found Plaintiff's activities of daily living (ADLs) belied the veracity of his testimony. See tr. 19. Testimony regarding ADLs may impugn Plaintiff's credibility in two ways: first, because the ADLs contradict other testimony; or second, by showing Plaintiff is not disabled because the ADLs meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Although Defendant argues the ALJ invoked the "first permissible use" of ADLs, the ALJ explicitly stated that Plaintiff's ADLs were inconsistent with "complete disability, " not previous testimony. Def.'s Br. 7, ECF No. 20; tr. 18. Accordingly, none of the reasons cited by the ALJ-caring for his daughter with assistance from his parents, performing some daily exercise, occasionally blowing glass, fixing computers for others, playing disc golf (which is sometimes interrupted by pain), or performing horticulture-persuasively meet a threshold of ability to maintain full-time employment. As the Ninth Circuit has repeatedly held, a ...

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