United States District Court, D. Oregon
MARK B. DEMERS, Plaintiff,
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.
KATHERINE EITENMILLER Attorney for Plaintiff BILLY J.
WILLIAMS United States Attorney District of Oregon JANICE E.
HEBERT Assistant United States Attorney
A. BODEN Social Security Administration Office of the General
Counsel Attorneys for Defendant
OPINION AND ORDER
Malcolm F. Marsh United States District Judge
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
AND FACTUAL BACKGROUND
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.
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.
ALJ'S DISABILITY ANALYSIS
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
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
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.
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
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.
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
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
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. Ghanim, 763 F.3d at 1163;
Tommasetti, 533 F.3d at 1039.
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.