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Demers v. Commissioner Social Security Administration

United States District Court, D. Oregon

May 16, 2017

MARK B. DEMERS, Plaintiff,

          KATHERINE EITENMILLER Attorney for Plaintiff BILLY J. WILLIAMS United States Attorney District of Oregon JANICE E. HEBERT Assistant United States Attorney

          MARTHA A. BODEN Social Security Administration Office of the General Counsel Attorneys for Defendant


          Malcolm F. Marsh United States District Judge

         Plaintiff Mark B. DeMers 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, §§ 401-403, and his 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, the decision of the Commissioner is affirmed.


         Plaintiff protectively filed his application for a period of disability and DIB benefits on February 10, 2012. On March 14, 2014, Plaintiff protectively filed his application for SSI. In both applications, Plaintiff alleges disability beginning June 10, 2011, due to depression, short-term memoiy loss, muscle weakness, cognitive difficulties, and tremors. Tr. Soc. Sec. Admin. R. ("Tr.") at 18 & 95, ECF No, 9. 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 July 29, 2014, at which Plaintiff appeared with his attorney and testified. A vocational expert, Jeffrey F. Tittelfitz, also appeared at the hearing and testified. On September 5, 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.

         Plaintiff was bom in 1957, and was 53 years old on the alleged onset of disability date and 56 on the date of the hearing. Plaintiff has earned a GED, and has past relevant work as a bus driver, a delivery driver, and inventory stock clerk. Tr. 31, 86.


         The Commissioner has established a five-step sequential process for determining whether a person is disabled, Bowenv. Yuckert, 4&2XJ.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 Cir. 2012).

         The ALJ found that Plaintiff meets the insured status requirements through December 31, 2016. 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: depression, anxiety, alcohol abuse, and cannabis abuse. At step three, the ALJ found that Plaintiffs 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 perform a full range of work at all exertional levels with additional limitations: Plaintiff is able to "understand, remember and cany out only simple, routine, repetitive tasks and he can tolerate no more than occasional interaction with supervisors, coworkers and the public." Tr. 23.

         At step four, the ALJ found that Plaintiff is able to perform his past relevant work as a delivery driver. Tr. 31. The ALJ made alternative findings at step five, determining that considering Plaintiffs age, education, work experience, and residual functional capacity, other jobs exist in significant numbers in the national economy that Plaintiff can perform, including such representative occupations as: janitor, hand packager, and floor attendant. Accordingly, the ALJ concluded that Plaintiff has not been under a disability under the Social Security Act from June 10, 2011, through the date of the decision.


         On appeal to this court, Plaintiff contends the following errors were committed: (1) the ALJ improperly evaluated his testimony; (2) the ALJ improperly evaluated the opinions of examining psychologist Charlotte Higgins-Lee, Ph.D, treating psychiatrist Scott Mendelson, M.D., and counselor Tonya Hall, LCSW; (3) the ALJ improperly evaluated the lay testimony of his wife Barbara DeMers; and (4) the RFC fails to incorporate all his 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.


         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. 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., 359F.3d 1190, 1193 (9th Cir. 2004). Ifthe evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlundv. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001); Garrison, 759 F.3d at 1010.


         I. Plaintiffs Credibility

         To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. 20 CF.R. § 404.1529. 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. As true, 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, 1166 (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); Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). 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, and inconsistencies in testimony.[1] Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039.

         At the hearing, Plaintiff testified that he became unable to work in June 2011 due to tremors, weakness on his left side, confusion and emotional lability. Tr. 47-48. Plaintiff stated that he was placed on short term disability until March 2012. Tr. 49, 51. Plaintiff testified that he attempted to return to work on a part-time basis, but was unable to do so, then his job was eliminated by his employer. Tr. 53-54. Plaintiff testified that alcohol did not become an issue until June 2012 when his brother committed suicide. Tr. 55-56. ...

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