United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA United States Magistrate Judge
Castro ("plaintiff') seeks judicial review of a
final decision by the Commissioner of Social Security
("Commissioner") denying his applications for Title
H Disability Insurance Benefits ("DIB") and Title
XVI Supplemental Security Income ("SSI") under the
Social Security Act ("Act"). All parties have
consented to allow a Magistrate Judge enter final orders and
judgment in this case in accordance with Fed, R. Civ. P. 73
and 28 U.S.C. § 636(c). Based on a careful review of the
record, the Commissioner's decision is affirmed in part,
reversed in part, and remanded for further administrative
October 18, 2012, plaintiff applied for DIB, and on November
16, 2012, plaintiff applied for SSI. (Tr. 200-15.) In both
applications plaintiff alleges disability as of August 1,
2012. (Tr. 200, 207.) The Commissioner denied his
applications initially and upon reconsideration. (Tr. 74-87,
92-127.) On October 4, 2013, plaintiff requested a hearing
before an Administrative Law Judge ("ALJ"), and an
administrative hearing was held on June 24, 2014. (Tr.39-65,
154-55.) After the hearing, the ALJ issued an unfavorable
decision on September 15, 2014, finding plaintiff not
disabled. (Tr. 19-32.) The Appeals Council denied plaintiffs
subsequent request for review, making the ALJ's decision
final. (Tr. 1-4.) This appeal followed. Plaintiff argues that
the ALJ erred at step two by; (1) failing to provide a clear
and convincing reason to reject his subjective symptom
testimony; and (2) improperly evaluating the medical opinions
of Dr. Drake Duane, Dr. Shannon Tromp, Dr. Aaron Bowen,
non-examining state agency psychologists, and Mr. Thomas
January 23, 1964, plaintiff was 48 years old on the alleged
onset date of disability and 50 years old at the time of the
hearing. (Tr. 44.) He completed his GED and has past work as
a route delivery driver, a motor coach driver, an alarm
installer and troubleshooter, and a mechanical
repairer/worker. (Tr. 61-62, 254.) Plaintiff alleges
disability due to depression, attention deficit disorder
("ADD"), and osteoarthritis. (Tr. 74, 81, 92, 110.)
court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are
supported by substantial evidence in the record. Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir, 1989). 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. 3 89, 401 (1971) (citation and
internal quotations omitted). The 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). "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." Massachi v. Astrue, 486 F.3d 1149,
1152 (9th Cir. 2007) (citation omitted).
initial burden of proof rests upon the claimant to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the claimant must
demonstrate an "inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected... to
last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A).
Commissioner has established a five-step sequential process
for determining whether a person is disabled, Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20C.F.R.
§§404.1520, 416.920. First, the Commissioner
determines whether a claimant is engaged in "substantial
gainful activity." Yuckert, 482 U.S, at 140; 20
C.F.R, §§ 404.1520(b), 416.920(b). If so, the
claimant is not disabled.
two, the Commissioner evaluates whether the claimant has a
“medically severe impairment or combination of
impairments." 7wcfc?rt, 482U.S.at 140-41; 20 C.F.R.
§§404.1520(c), 416.920(c). If the claimant does not
have a medically determinable, severe impairment, he is not
three, the Commissioner determines whether the claimant's
impairments, either 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 140-41; 20 CF.R. §§ 404.1520(d),
416.920(d). If so, the claimant is presumptively disabled; if
not, the Commissioner proceeds to step four.
Yuckert, 482 U.S. at 141.
four, the Commissioner resolves whether the claimant can
still perform "past relevant work." 20 C.F.R.
§§ 404.1520(f), 416.920(f). If the claimant can
work, he is not disabled; if he cannot perform past relevant
work, the burden shifts to the Commissioner. At step five,
the Commissioner must establish that the claimant can perform
other work existing in significant numbers in the national or
local economy. Yuckert, 482 U.S. at 141-42; 20 CF.R.
§§404.1520(g), 416.920(g). If the Commissioner
meets this burden, the claimant is not disabled. 20 CF.R.
§§ 404.1566, 416.966.
one of the five-step process outlined above, the ALJ found
that plaintiff had not engaged in substantial gainful
activity since the alleged onset date. (Tr. 21.) At step two,
the ALJ determined that plaintiff had the following medical
determinable impairments: "hypertension,
hypercholesterolemia, diabetes, right shoulder tendinitis,
obesity, speech fluency disorder-stutter, mood disorder and
attention deficit disorder." (Id.) At the same
step the ALJ found that plaintiff "does not have an
impairment or combination of impairments that has
significantly limited (or is expected to significantly limit)
the ability to perform basic work-related activities for 12
consecutive months; therefore, the claimant does not have a
severe impairment or combination of impairments."
(Id.) Based on this finding, the ALJ determined that
plaintiff was not disabled within the meaning of the Act.
(Tr. 29.) The ALJ did not proceed to step three.
argues that the ALJ erred at step two by: (1) failing to
provide a clear and convincing reason to reject his
subjective symptom testimony, and (2) failing to reasonably
evaluate the medical opinions in the record. (Pl's
Opening Br. 12-26.)
Plaintiffs Symptom Testimony
argues the ALJ failed to provide a clear and convincing
reason to reject his symptom testimony. (Pl's Opening Br.
22-26, Pl's Reply Br. 2-3.)
"there is no evidence of malingering, 'the ALJ can
reject the claimant's testimony about the severity of her
symptoms only by offering specific, clear and convincing
reasons for doing so.'" Tommasetti v.
Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting
Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th
Cir. 1996)). A general assertion that the claimant is not
credible is insufficient; the ALJ must "state which..,
testimony is not credible and what evidence suggests the
complaints are not credible." Dodrill v.
Shalala, 12F.3d915, 918(9thCir. 1993). The reasons
proffered must be "sufficiently specific to permit the
reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant's testimony.'' Orteza
v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal
of clear and convincing reasons include conflicting medical
evidence, effective medical treatment, medical noncompliance,
inconsistencies either in the claimant's testimony or
between his testimony and his conduct, daily activities
inconsistent with the alleged symptoms, a sparse work
history, testimony that is vague or less than candid, and
testimony from physicians and third parties about the nature,
severity and effect of the symptoms complained of,
Tommasetti, 533 F.3d at 1040; Lingenfelter
v. Astrue, 504 F.3d 1028, 1040 (9thCir. 2007);
Light v. Social Sec. Admin., 119 F.3d 789, 792
found Dr. Bowen's "diagnosis of malingering to be
persuasive evidence of the claimant's lack of credibility
rega rding his allegations." (Tr. 30.) Evidence of
malingering is sufficient to support a negative credibility
finding. See Benton ex rel. Benton v. Barnhart, 331
F.3d 1030, 1040-41 (9th Cir. 2003) (an ALJ can reject
plaintiff s testimony either through evidence of malingering
or expressing clear and convincing reasons for doing so).
Plaintiff argues the ALJ "did not accept this rinding of
malingering, " and was still required to give a clear
and convincing reason for discrediting his symptom testimony.
(Pl's Reply Br. 2.) The court disagrees, finding the ALJ
did accept Dr. Bowen's finding of malingering. However,
even if the ALJ failed to accept Dr. Bowen's finding,
this court finds no error because the ALJ provided numerous
clear and convincing reasons for discrediting plaintiff s
subjective symptom testimony.
the ALJ found plaintiff s statements concerning the'
'intensity, persistence and limiting effects of'
plaintiff s symptoms "not entirely credible"
because: (1) plaintiff gave inconsistent statements
concerning his alleged impairments; (2) plaintiffs
impairments were stable on medication; (3) there was a lack
of medical evidence to support plaintiff s allegations; (4)
plaintiffs activities of daily living were inconsistent with
his alleged physical and mental symptoms; (5) plaintiff owed
back taxes and had a lien placed on his checking account; (6)
plaintiff left his job for reasons unrelated to his
disability, and (7) plaintiff had an "unpersuasive
appearance and demeanor" at the ALJ hearing. (Tr.
Inconsistent Statements Concerning Alleged Impairments
the ALJ discredited plaintiff s symptom testimony because she
found he gave "inconsistent statements regarding his
stutter, " noting that despite plaintiff s claims the
stutter "does not limit him." (Tr. 23.) Plaintiffs
inconsistent statements are a clear and convincing reason for
rejecting his subjective symptom testimony. See Connett
v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)
(inconsistencies between a plaintiff s symptom testimony and
the medical record can serve as a clear- and
convincing reason to discredit a plaintiff s symptom
testimony). The record supports the ALJ's findings,
because some medical providers noted plaintiff s stutter
caused difficulties with work, while others noted no stutter
at all. (See Tr. 408, 445, 479, 486, 493-94, 514,
581, 599-600, 610-11, 637, 639, 646, 665, 672, 678, 684.)
This inconsistency is a clear and convincing reason for
discrediting plaintiffs symptom testimony.
Impairments Stable on Medication
the ALJ discredited plaintiff's subjective symptom
testimony because she found plaintiffs mental impairments
were "stable on medications, " (Tr. 23.) The ALJ
referenced progress notes from September 19, 2012 where Dr.
Drake Duane wrote plaintiff s oral verbal fluency was
improved. (Tr. 25.) "Impairments that can be controlled
effectively with medication are not disabling."
Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d
1001, 1006 (9th Cir. 2006) (citations omitted). Indeed, the
medical record reflects plaintiff showed improvement in his
speech dsyfluency while taking medication. (Tr. 474.)
Although Dr, Duane did note on September 19, 2012, that
plaintiff s ADD was only "partially repaired, " and
medication was "not effective enough to improve fluency
or his behavioral management, " he later found, on April
7, 2014, that plaintiff s verbal fluency had improved again
with medication. (Tr. 474, 665.) Additionally, plaintiff
testified at the June 24, 2014 hearing that he would not be
able to function without his medication. (Tr. 50.) The court
finds this evidence supports the ALJ's finding that
plaintiff s mental impairments were controlled by medication,
and that this is a second clear and convincing reason for
rejecting plaintiffs subjective symptom testimony.
Lack of ...