United States District Court, D. Oregon
OPINION AND ORDER
AIKEN United States District Judge
Eva Bickford seeks judicial review of the Commissioner's
decision denying her application for disability insurance
benefits (DIB) under Title II of the Social Security Act.
This Court has jurisdiction under 42 U.S.C. § 405(g).
Because the Commissioner's decision is based on proper
legal standards and supported by substantial evidence, the
Commissioner's decision is AFFIRMED.
protectively filed an application for DIB on August 2, 2011,
alleging disability beginning February 20, 2011. Tr, 15.
Plaintiff was insured under Title II through December 31,
2016. Tr. 17. Following a denial of benefits, plaintiff
requested a hearing before an administrative law judge (ALJ).
On March 10, 2014, an ALJ determined plaintiff was not
disabled. Tr. 16-24. Plaintiff appealed that decision to the
Appeals Council and submitted as new evidence, Linn County
Mental Health records dated March 13, 2014 to March 31, 2014,
a MRI of the lumbar spine dated May 7, 2014 from Good
Samaritan Albany General Hospital, medical records from
Corvallis Medical group dated April 21, 2014 to July 14,
2014, and records from Good Samaritan Regional Medical Center
dated March 6, 2014 to June 2, 2014. Tr. 5-6. After
considering the new evidence and making it part of the
record, the Appeals Council affirmed the ALJ's decision
on July 23, 2016. Tr. 1. This appeal followed.
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
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
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)
(citation and internal quotations omitted). In reviewing the
Commissioner's alleged errors, this 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). Variable
interpretations of the evidence are insignificant if the
Commissioner's interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
the evidence before the ALJ is subject to more than one
rational interpretation, we must defer to the ALJ's
conclusion. Batson, 359 F.3d at 1198 (citing
Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)).
A reviewing court, however, "cannot affirm the
Commissioner's decision on a ground that the
Administration did not invoke in making its decision."
Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050,
1054 (9th Cir. 2006) (citation omitted). Finally, a court may
not reverse an ALJ's decision on account of an error that
is harmless. Id. at 1055-56. "[T]he burden of
showing that an error is harmful normally falls upon the
party attacking the agency's determination, "
Shimeki v. Sanders, 556 U.S. 396, 409 (2009).
argues the ALJ erred by: (1) not presenting clear and
convincing reasons to reject her subjective symptom
statements; (2) rejecting the lay witness's credibility;
and (3) improperly considering the new evidence submitted to
the Appeals Council. Pl's Br. 18-30.
argues that the ALJ failed to articulate a clear and
convincing reason, supported by substantial evidence, for
rejecting her subjective symptom statements concerning the
extent and severity of her impairments. Id. at 18.
Specifically, plaintiff argues that the ALJ engaged in
"extreme selective recounting of the record, "
which cannot take into consideration the pain and symptoms of
her primary impairment of fibromyalgia. Id. at
20-21. Accordingly, plaintiff argues that the ALJ failed to
take into account the entire medical record, id. at
20, and the ALJ's reasoning for rejecting plaintiffs
complaints "fails on multiple levels." Id.
also argues that the ALJ "engaged in sit and squirm
jurisprudence" when the ALJ found her subjective symptom
statements not entirely credible. Id. at 20,
According to plaintiff, the ALJ based her decision after
witnessing plaintiff bend over and lift her bag during the
hearing and observing plaintiffs in court persona.
Id. at 20-22. Plaintiff notes that fibromyalgia is a
disease that "manifests symptoms that wax and
wane." Id. at 22. Plaintiff contends she has
good and bad days, which means her ability to lift heavy
objects varies. Id. at 22. Plaintiff notes that her
testimony during the 2014 hearing regarding her limited
function is an accurate account of the worsening pain and
symptoms, even though it conflicts with previous written
testimony from 2011. Id. at 23. Despite the new
testimony, plaintiff argues the ALJ failed to give specific
reasons for rejecting the testimony in 2014 as opposed to
written testimony from 2011. Id. at 23. Plaintiff
argues the ALJ relied more on the testimony from Dr. Bruce
Matthews and Dr. Vivek Deshmukh regarding her
"embellishments" and "benign objective medial
findings" despite her appearance and pain distributions.
Id. at 23-24.
found plaintiffs statements concerning the intensity,
persistence, and limiting effects of these symptoms "not
entirely credible." Tr. 21. In so finding, the ALJ
considered plaintiffs claims of "debilitating pain and
mental symptoms, " including her testimony that her pain
has had an adverse effect on her strength and stamina.
Id. at 20. The ALJ considered plaintiffs claim of
her inability to work full-time because of various
"physical and mental impairments, including chronic low
back pain, balance problems, hip and leg pain, insomnia, and
problems with anger and depression." Id.
finding plaintiffs subjective symptom statements not
credible, the ALJ first contrasted instances in the record
where plaintiff asserted her chronic pain was a nine out of a
ten on a ten point scale without medication and an eight out
of a ten with medication, with conflicting statements made by
her treating physicians. Id. at 21. The ALJ
specifically noted that once of plaintiffs treating
physicians opined that plaintiff did not appear to be in
distress and "exhibited normal strength in all
extremities." Id. The ALJ considered other
statements made by another one of plaintiff s treating
physicians that despite her account of her antalgia, both her
"sensation and reflexes were both in tact."
Id. Additionally, the ALJ considered the opinion of
Dr, Bruce Matthews, plaintiffs examining doctor, that
plaintiff showed "fairly significant pain behaviors and
embellishment" during her examination in June 2011.
Id. at 22. Furthermore, the ALJ noted the opinion of
Dr. Vivek Deshmukh, another one of plaintiff s examining
doctors, that plaintiffs claims of pain did not match her ...