United States District Court, D. Oregon
R. J. PORTER Attorney for Plaintiff.
J. WILLIAMS United States Attorney JANICE E. HEBERT Assistant
United States Attorney GERALD J. HILL Special Assistant
United States Attorney Attorneys for Defendant.
OPINION AND ORDER
MALCOLM F. MARSH, UNITED STATES DISTRICT JUDGE
Lea Ann Lynch seeks judicial review of the final decision of
the Commissioner of Social Security denying her application
for a period of disability and 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 Commissioner's
AND FACTUAL BACKGROUND
protectively filed applications for DIB and SSI on January
30, 2012, alleging disability beginning June 6, 2008, due to
depression, anxiety, migraines, gluten intolerance,
postsurgical foot tumor, regional complex pain syndrome,
fibromyalgia, dyslexia, and shingles. Tr. Soc. Sec. Admin. R.
("Tr.") at 89, ECF Nos. 12-13. Plaintiffs claims
were denied initially and upon reconsideration. Plaintiff
filed a request for a hearing before an administrative law
judge ("ALJ"). The ALJ held a hearing on June 2,
2014, at which Plaintiff appeared with her attorney and
testified. A vocational expert, Steve Duchesne, also appeared
at the hearing and testified. On August 1, 2014, the ALJ
issued an unfavorable decision. The Appeals Council denied
Plaintiffs request for review, and therefore, the ALJ's
decision became the final decision of the Commissioner for
purposes of review.
was born in 1963, and was 45 years old on the alleged onset
of disability date. Plaintiff has a high school education,
has some training as a massage therapist, and at the time of
the hearing was enrolled part-time in community college.
Plaintiff has past relevant work as a location manager, and
also has worked as a foo d demonstrator, intake
worker/eligibility worker, and massage therapist, THE
ALJ'S DISABILITY ANALYSIS
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. 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
found that Plaintiff meets the insured status requirements
through June 30, 2014. At step one, the ALJ found that
Plaintiff has not engaged in substantial gainful activity
since her alleged onset of disability. At step two, the ALJ
found that Plaintiff had the following severe impairments:
fibromyalgia, depressive disorder, pain disorder with both
psychological and general medical factors, personality
disorder, and attention-deficit hyperactivity disorder
("ADHD"). At step three, the ALJ found that
Plaintiffs impairments, or combination of impairments, did
not meet or medically equal a listed impairment.
assessed Plaintiff with a residual functional capacity
("RFC") to perform light work with additional
limitations: Plaintiff can occasionally balance, stoop,
kneel, crouch, and crawl; must avoid concentrated exposure to
fumes, odors, dusts, gases, and poor ventilation; can
understand, remember, and cany out simple, repetitive,
routine tasks; and can tolerate occasional contact with the
four, the ALJ found that Plaintiff is unable to perform her
past relevant work. At step five, the ALJ found that
considering Plaintiffs age, education, work experience, and
residual functional capacity, jobs exist in significant
numbers in the national economy that Plaintiff can perform,
including such representative occupations as: electronics
assembler, mail clerk, and housekeeper. Accordingly, the ALJ
concluded that Plaintiff has not been under a disability
under the Social Security Act from June 6, 2008 through the
date of the decision.
appeal to this court, Plaintiff contends the following errors
were committed: (1) the ALJ improperly evaluated her
testimony; (2) the ALJ improperly evaluated some of the
medical evidence; (3) the ALJ improperly determined she does
not meet Listing 12.04; and (4) the RFC and hypothetical to
the vocational expert ("VE") fail to incorporate
all of her mental health functional limitations. The
Commissioner argues that the ALJ's decision is supported
by substantial evidence and is free of legal error.
Alternatively, the Commissioner contends that even if the ALJ
erred, Plaintiff has not demonstrated harmful error.
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. Astrue, 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. Garrison v. Colvin, 759
F.3d 995, 1009 (9th Cir. 2014); 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 a 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); Garrison, 759 F.3d at
The ALJ Did Not Err in Discounting Plaintiffs
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
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 seventy of the symptoms.
Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d
1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue,
504 F.3d 1028, 1036 (9th Cir. 2007).
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.3dat 1039.
hearing, Plaintiff testified that she is taking two classes
in college (seven credit hours), has a 3.00 grade point
average ("GPA"), and is trying to obtain a degree
in Communications. Tr. 61-62. Plaintiff testified that she
receives accommodations at school with dictation due to her
dyslexia. Tr. 62. Plaintiff testified that she has tutoring
two hours per week, attends classes for two hours a day, four
days a week, and works in the library eight hours a week. Tr.
52, 62-63. Plaintiff testified that she worked full-time in
2011 for three months, and also has performed some part-time
work doing wine demonstrations. Tr. 53. Plaintiff described
her past work with movie production as scouting locations for
filming. Tr. 55. Plaintiff testified that she can no longer
perform any kind of prior work because she cannot physically
work the long hours, sometimes lasting 14 hours, and needs to
rest after taking a two hour class. Tr. 56.
described being out of breath after walking short distances
and that she is in pain due to her foot issues and
fibromyalgia. Tr. 58-59. Plaintiff stated that she has pain
in her shoulders, but that she can reach overhead and reach
in front of her. Tr. 65-66. Plaintiff described difficulty
with vomiting and that she has IBS. Tr. 60. Plaintiff
testified that she takes zoloft and lorazepam for her mental
health issues and that they help a little bit, but that she
does not take any pain medication. Tr. 59, 66.
testified that she is able to drive, does her own shopping,
is able to clean house in small increments, and does her own
laundry. Tr. 64. Plaintiff stated that she spends time
reading and watching TV, and that she uses the computer to do
homework and look for jobs. Tr. 68. Plaintiff testified that
her biggest hurdle to employment is that she "can't
stand being around people right now." Tr. 75. Plaintiff
also stated that she cannot handle criticism. Tr. 75.
February 8, 2012 Function Report, Plaintiff reported that she
gets sick from her gluten intolerance, that she cannot stand
on her feet, and that her muscles hurt from fibromyalgia. Tr.
266. Plaintiff described a typical day as taking a shower,
washing clothes, feeding the animals, making lunch, looking
for work, eating dinner, then going to bed. Tr, 227.
Plaintiff stated that the pain in her stomach from her gluten
intolerance wakes her at night. Tr. 227. Plaintiff indicated
no difficulty with personal care and needs no reminders to
take medication. Tr. 227-28, Plaintiff stated that she
performs all cleaning, laundry and yard care. Tr. 228.
Plaintiff drives, can shop independently for groceries once a
month for two hours. Tr. 229. Plaintiff stated she leaves the
house daily to run errands. Tr. 229. Plaintiff described that
she no longer plays sports due to pain, and that she spends
time with friends occasionally. Tr. 230. Plaintiff indicated
she has trouble lifting and standing due to the pain in her
foot, can walk half a mile before needing to rest for 15
minutes, and can concentrate for 30 minutes. Tr. 231.
Plaintiff stated she has no trouble with authority figures,
gets physically sick from stress, and has vertigo and
tinnitus. Tr. 232. Plaintiff indicated she takes trazodone
and flexeril. Tr. 233.
decision, the ALJ offered specific, clear and convincing
reasons for the adverse credibility determination, including:
(1) inconsistency with objective medical records; (2)
inconsistency with reported daily activities; (3) active