United States District Court, D. Oregon
Merrill Schneider Schneider Kerr & Robichaux Attorney for
Williams United States Attorney Janice Hebert, Thomas
Elsberry Special Assistant United States Attorney Attorneys
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE.
Donald Peter Muccigrosso, Jr. brings this action for judicial
review of the Commissioner's final decision denying his
application for Supplemental Security Income
(“SSI”) under Title XVI of the Social Security
Act and for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act. The Court has
jurisdiction under 42 U.S.C. § 405(g) (incorporated by
42 U.S.C. § 1382(c)(3)). The issues before the court are
whether the Administrative Law Judge (“ALJ”)
erred by: (1) discounting Plaintiff's symptom testimony;
(2) discounting the opinions of medical providers; (3)
discounting lay witness testimony; and (4) by relying on the
Vocational Expert's (“VE”) testimony that
Plaintiff could perform certain jobs in the national economy.
Because the ALJ improperly discredited testimony that, when
credited as true, would warrant awarding benefits, the Court
reverses the Commissioner's final decision and remands
this case for an immediate award of benefits.
applied for DIB and SSI on August 3, 2010, alleging a
disability onset date of December 31, 2005. Tr. 607,
Plaintiff's application was denied initially and upon
reconsideration. Tr. 685. Plaintiff's first
administrative hearing was held before ALJ Riley Atkins on
December 12, 2012. Tr. 34. ALJ Atkins denied Plaintiff's
claims in a written decision issued on December 21, 2012. Tr.
13. The Appeals Council denied review, rendering ALJ
Atkins's decision final. Tr. 1-3. United States District
Court Judge Michael McShane reversed the Commissioner's
decision and remanded the case for further administrative
proceedings on June 30, 2015. Tr. 684. Judge McShane ordered
that upon remand:
1. The ALJ shall revise [P]laintiff's
RFC to reflect functional limitations on repetitive lifting,
bending and stooping, and sitting in a stationary position.
2. The ALJ shall make new findings under
step five of the sequential evaluation and obtain
supplemental VE evidence.
Tr. 699. On March 22, 2016, Plaintiff appeared for his second
administrative hearing before ALJ Paul Robeck. ALJ Robeck
issued a partially favorable decision, finding that Plaintiff
was disabled as of his fifty-fifth birthday, November 23,
2014. Tr. 617. ALJ Robeck also determined, however, that
Plaintiff was not disabled from December 31, 2010, through
November 23, 2014. Tr. 618-20. Plaintiff now seeks judicial
review of that decision.
claimant is disabled if she is 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. §
423(d)(1)(A). Disability claims are evaluated according to a
five-step procedure. Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685, 689 (9th Cir. 2009). 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). At 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 claimant'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. At 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 its 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. §§
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since December 31, 2010. Tr.
two, the ALJ determined that Plaintiff had the following
severe impairments: “status post ankle
fusion/arthrodesis; right shoulder AC joint arthrosis; and
degenerative disc disease with a history of laminectomy in
three, the ALJ found that Plaintiff's impairments or
combinations of impairments did not meet or equal the
severity of one of the listed impairments. Tr. 609.
Specifically, the ALJ concluded that Plaintiff's
“physical impairment of degenerative disc disease does
not meet or medically equal the criteria of listing 1.04
(Disorders of the spine), or any listing in the Listing of
Impairments[.]” Id. The ALJ also concluded
that Plaintiff's ankle and shoulder conditions did not
meet or equal listing 1.02. Id.
step four, the ALJ determined that Plaintiff had the RFC to
perform modified light work with the following limitations:
[P]laintiff can lift and carry 20 pounds occasionally and 10
pounds frequently. He can stand and walk with normal breaks
approximately 2 out of 8 workday hours and sit for
approximately 6 out of 8 workday hours. The claimant cannot
climb anything other than stairs and ramps. The claimant can
no more than occasionally stoop and bend. The claimant cannot
engage in work at shoulder level or above. The claimant is
unable to stand or sit in any stationary position for more
than two consecutive hours.
four, the ALJ determined that Plaintiff has been unable to
perform any past relevant work as a registered nurse since
December 31, 2005. Tr. 617.
five, the ALJ determined that on November 23, 2009,
Plaintiff's age category changed to an individual closely
approaching advanced age and on November 23, 2014,
Plaintiff's age category changed again to an individual
of advanced age. Id. Accordingly, the ALJ found that
prior to November 23, 2014, transferability of
Plaintiff's job skills was not material to determining
disability. Id. Beginning on November 23, 2014,
however, the ALJ found that Plaintiff had not been able to
transfer job skills to other occupations. Therefore, the ALJ
concluded prior to November 23, 2014, given Plaintiff's
age, education, work experience, and RFC, there were jobs
that existed in the national economy in significant numbers
that Plaintiff could have performed Those jobs included: mail
sorter; price marker; and packing line worker. Tr. 617-18.
The ALJ found that beginning on November 23, 2014, there were
no jobs that Plaintiff could perform and that he was disabled
within the meaning of the Act. Tr. 619.
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). Courts consider 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 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
contends that the ALJ's decision was not supported by
substantial evidence and contains legal errors. Specifically,
Plaintiff argues that the ALJ made the following four errors.
First, the ALJ improperly rejected Plaintiff's subjective
symptom testimony. Second, the ALJ improperly discredited the
medical opinions treating neurological surgeon Dr. Darrell
Brett, reviewing physician Dr. Mark Shoag, and examining
physician Dr. Paolo Punsalan. Third, the ALJ improperly
discredited the lay testimony of Plaintiff's friend, Lisa
Cheeley. Lastly, the ALJ improperly relied on VE testimony
that did not incorporate all of Plaintiff's limitations.