United States District Court, D. Oregon
B. Mapes Attorney at Law Attorney for Plaintiff.
J. Williams UNITED STATES ATTORNEY District of Oregon Janice
E. Hebert ASSISTANT UNITED STATES ATTORNEY Sarah Moum SPECIAL
ASSISTANT UNITED STATES ATTORNEY Office of the General
Counsel Attorneys for Defendant.
OPINION & ORDER
A. HERNANDEZ, UNITED STATES DISTRICT JUDGE
Marcell Cochrane brings this action seeking judicial review
of the Commissioner's final decision to deny disability
insurance benefits (DIB), supplemental security income (SSI),
and disabled widow's benefits (DWB). This Court has
jurisdiction pursuant to 42 U.S.C. § 405(g)
(incorporated by 42 U.S.C. § 1383(c)(3)). I reverse the
Commissioner's decision and remand for an award of
applied for DIB on November 1, 2011, and for SSI and DWB on
September 26, 2013, alleging an onset date in August 2011.
Tr. 160-61, 168-73, 175-77. At the hearing, Plaintiff amended her
alleged onset date to September 1, 2011. Tr. 69.
Plaintiff's DIB application was denied initially and on
reconsideration. Tr. 85-110, 114-17. The other applications
were escalated to the hearing level. Tr. 11. On July 17,
2014, Plaintiff appeared, with counsel, for a hearing before
an Administrative Law Judge (ALJ). Tr. 26-84. On August 15,
2014, the ALJ found Plaintiff not disabled. Tr. 8-25. The
Appeals Council denied review. Tr. 1-5.
alleges disability based on having hepatitis C, bilateral
brachial plexopathy, hernia, and pain. Tr. 198. At the time
of the hearing, she was fifty-three years old. Tr. 29.
Plaintiff completed seventh grade and has past relevant
experience as a housekeeper. Tr. 199.
claimant is disabled if 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. §§
claims are evaluated according to a five-step procedure.
See Valentine v. Comm'r, 574 F.3d 685, 689 (9th
Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the
ultimate burden of proving disability. Id.
first step, the Commissioner determines whether a claimant is
engaged in "substantial gainful activity." If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In step two, the Commissioner determines whether
the claimant has a "medically severe impairment or
combination of impairments." Yuckert, 482 U.S.
at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If
not, the claimant is not disabled.
three, the Commissioner determines whether plaintiff's
impairments, singly or in combination, meet or equal
"one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Yuckert, 482
U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d).
If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four.
Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity (RFC) to perform "past relevant work." 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can, the claimant is not disabled. If the claimant cannot
perform past relevant work, the burden shifts to the
Commissioner. In step five, the Commissioner must establish
that the claimant can perform other work. Yuckert,
482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) &
(f), 416.920(e) & (f). If the Commissioner meets his
burden and proves that the claimant is able to perform other
work which exists in the national economy, the claimant is
not disabled. 20 C.F.R. §§ 404.1566, 416.966.
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date.
Tr. 13. Next, at steps two and three, the ALJ determined that
Plaintiff has severe impairments of brachial plexus disorder
and hepatitis, but that her impairments did not meet or
equal, either singly or in combination, a listed impairment.
four, the ALJ concluded that Plaintiff has the RFC to perform
light work as defined in 20 C.F.R. § 404.1567(b), except
she can only occasionally handle, finger, and feel. Tr. 16.
She can reach to shoulder level, but not higher. Id.
She is limited to unskilled, repetitive, routine work.
Id. She will be off task five-percent of the time,
but would still meet minimum production requirements.
Id. She would be absent from work one time each
month. Id. With this RFC, the ALJ determined that
Plaintiff is unable to perform any of her past relevant work.
Tr. 20. However, at step five, the ALJ determined that
Plaintiff is able to perform jobs that exist in significant
numbers in the economy such as counter clerk and furniture
rental clerk. Id. Thus, the ALJ determined that
Plaintiff is not disabled. Tr. 21.
may set aside the Commissioner's denial of benefits only
when the Commissioner's findings are based on legal error
or are not supported by substantial evidence in the record as
a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th
Cir. 2009). "Substantial evidence means 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." Id. (internal quotation
marks omitted). The court considers the record as a whole,
including both the evidence that supports and detracts from
the Commissioner's decision. Id.;
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). "Where the evidence is susceptible to more
than one rational interpretation, the ALJ's decision must
be affirmed." Vasquez, 572 F.3d at 591
(internal quotation marks and brackets omitted); see also
Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
("Where the evidence as a whole can support either a
grant or a denial, [the court] may not substitute [its]
judgment for the ALJ's") (internal quotation marks
argues that the ALJ erred by (1) finding her subjective
testimony not credible; (2) improperly rejecting her treating
physician's opinions; (3) failing to include all credited
limitations in the hypothetical presented to the vocational
expert (VE); and (4) failing to verify that the VE's
testimony was consistent with the Dictionary of Occupational
Titles (DOT). Based on these errors, she seeks a reversal and
remand for the payment of benefits.
is responsible for determining credibility. Vasquez,
572 F.3d at 591. Once a claimant shows an underlying
impairment and a causal relationship between the impairment
and some level of symptoms, clear and convincing reasons are
needed to reject a claimant's testimony if there is no
evidence of malingering. Carmickle v. Comm'r,
533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative
evidence that the plaintiff is malingering, "where the
record includes objective medical evidence establishing that
the claimant suffers from an impairment that could reasonably
produce the symptoms of which he complains, an adverse
credibility finding must be based on 'clear and
convincing reasons'"); see also Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages
in two-step analysis to determine credibility: First, the ALJ
determines whether there is "objective medical evidence
of an underlying impairment which could reasonably be
expected to produce the pain or other symptoms alleged";
and second, if the claimant has presented such evidence, and
there is no evidence of malingering, then the ALJ must give
"specific, clear and convincing reasons in order to
reject the claimant's testimony about the severity of the
symptoms.") (internal quotation marks omitted).
determining the credibility of a plaintiff's complaints
of pain or other limitations, the ALJ may properly consider
several factors, including the plaintiff's daily
activities, inconsistencies in testimony, effectiveness or
adverse side effects of any pain medication, and relevant
character evidence. Orteza v. Shalala, 50 F.3d 748,
750 (9th Cir. 1995). The ALJ may also consider the ability to
perform household chores, the lack of any side effects from
prescribed medications, and the unexplained absence of
treatment for excessive pain. Id.; see also
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008) ("The ALJ may consider many factors in weighing a
claimant's credibility, including (1) ordinary techniques
of credibility evaluation, such as the claimant's
reputation for lying, prior inconsistent statements
concerning the symptoms, and other testimony by the claimant
that appears less than candid; (2) unexplained or
inadequately explained failure to seek treatment or to follow
a prescribed course of treatment; and (3) the claimant's
daily activities.") (internal quotation marks omitted).
Ninth Circuit explained in Molina;
In evaluating the claimant's testimony, the ALJ may use
ordinary techniques of credibility evaluation. For instance,
the ALJ may consider inconsistencies either in the
claimant's testimony or between the testimony and the
claimant's conduct, unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of
treatment, and whether the claimant engages in daily
activities inconsistent with the alleged symptoms[.] While a
claimant need not vegetate in a dark room in order to be
eligible for benefits, the ALJ may discredit a claimant's
testimony when the claimant reports participation in everyday
activities indicating capacities that are transferable to a
work setting[.] Even where those activities suggest some
difficulty functioning, they may be grounds for discrediting
the claimant's testimony to the extent that they
contradict claims of a totally debilitating impairment.
Molina, 674 F.3d at 1112-13 (citations and internal
quotation marks omitted).
initially set forth the appropriate two-step credibility
inquiry. Tr. 17. Because he made no express finding of
malingering and the record does not support one, his
rejection of the severity of Plaintiff's symptoms must be
by specific, clear and convincing reasons, supported by
substantial evidence in the record. The ALJ gave several
reasons in support of his credibility determination which are
discussed in more detail below. Plaintiff argues that the
ALJ's reasons for discrediting her symptom severity
testimony are based on a mischaracterization of the record
and the failure to address substantial evidence supporting
Objective Medical Evidence
the ALJ found that several alleged symptoms were not
supported by the objective medical evidence. Tr. 18-19. He
noted the lack of imaging studies or clinical findings
consistent with debilitating musculoskeletal pain. Tr. 18. He
found that the record contained no reports or findings that
Plaintiff fell a lot and remarked that no medical provider
had prescribed a cane or other assistive device. Id.
the cane or assistive device, the record includes statements
by Plaintiff's primary care treating physician that
Plaintiff's use of a cane, walker, or other assistive
device was "medically appropriate." Tr. 392, 560.
Given that one can purchase a cane without a prescription,
the ALJ erred by relying on the lack of one to discredit
the lack of objective medical evidence to substantiate her
pain complaints, the law is clear that once there is
objective medical evidence on an underlying impairment,
"the ALJ may not reject a claimant's subjective
complaints based solely on a lack of objective medical
evidence to fully corroborate the alleged severity of
pain." Rollins v. Massanari, 261 F.3d 853, 856,
857 (9th Cir. 2001); see also 20 C.F.R. §§
404.1529(c), 416.929(c). The primary source of
Plaintiff's musculoskeletal pain is her brachial plexus
disorder. The ALJ expressed his doubts about the existence of
this impairment at step two, but nonetheless found it to be a
severe impairment. Tr. 14. As such, he cannot solely rely on
the lack of objective medical evidence to find that
Plaintiff's symptoms about musculoskeletal pain are not
credible. Once he accepted, even for the purposes of his own
opinion, that the brachial plexus disorder was a severe
impairment, he was obligated to carry that determination
throughout his opinion.
as Plaintiff points out, the Commissioner previously found
her disabled for a ten-year period based on this disorder.
See Tr. 195 (noting prior DIB claim allowed in
January 1994). During the hearing, Plaintiff testified that
her injury occurred as a result of laparoscopic surgery she
had in 1992. Tr. 40. During that procedure, she was
positioned in a way that harmed her brachial plexus, a
"network of the anterior branches of the last four
cervical and the first thoracic spinal nerves supplying the
arm, forearm, and hand." Taber's Cyclopedic
Medical Dictionary 1807 (21st ed 2005); see