United States District Court, D. Oregon
Merrill Schneider SCHNEIDER KERR & ROBICHAUX Attorney for
J. Williams UNITED STATES ATTORNEY District of Oregon Janice
E. Hebert ASSISTANT UNITED STATES ATTORNEY.
L. Toma SPECIAL ASSISTANT UNITED STATES ATTORNEY Attorneys
OPINION & ORDER
A. Hernandez United States District Judge
Bernita Fritz brings this action seeking judicial review of
the Commissioner's final decision to deny disability
insurance benefits (DIB) and supplemental security income
(SSI). This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)).
I affirm the Commissioner's decision.
applied for DIB and SSI on December 28, 2010, alleging an
onset date of November 6, 2009. Tr. 188-95 (DIB); Tr. 196-01
(SSI). Her applications were denied initially and on
reconsideration. Tr. 77-86, 97 (DIB, Initial); Tr. 87-96, 98
(SSI, Initial); Tr. 99-110, 123 (DIB, Reconsideration); Tr.
111-22, 124 (SSI, Reconsideration). On November 28, 2012,
Plaintiff appeared, with counsel, for a hearing before an
Administrative Law Judge (ALJ). Tr. 485-526. On January 24,
2013, the ALJ found Plaintiff not disabled. Tr. 13-25. The
Appeals Council denied review. Tr. 1-3 Plaintiff appealed
that decision to this Court. On May 13, 2015, Judge Marsh
found that the ALJ had erred in several respects and remanded
the case for further administrative proceedings. Tr. 559-81.
The Appeals Council remanded the case to an ALJ in October
2015. Tr. 585. On July 12, 2016, a different ALJ held a new
hearing at which Plaintiff appeared with counsel. Tr. 454-84.
On September 28, 2016, that ALJ found Plaintiff not disabled.
Tr. 432-53. Plaintiff then filed a Complaint in this Court.
alleges disability based on having bipolar disorder, high
blood pressure, and high cholesterol. Tr. 217. At the time of
the July 2016 hearing, she was fifty-three years old. Tr.
459. She has a GED and has past relevant work experience as a
nursing assistant and gas station attendant. Tr. 224, 478.
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 perform past relevant work, 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. §§
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date.
Tr. 437. Next, at step two, the ALJ determined that Plaintiff
has severe impairments of obesity, respiratory disorders
described as asthma and COPD, and mental health conditions
described as bipolar disorder and alcohol dependence. Tr.
437-38. However, at step three, the ALJ determined that
Plaintiff's impairments did not meet or equal, either
singly or in combination, a listed impairment. Tr. 438-40.
four, the ALJ concluded that Plaintiff has the RFC to perform
light work as defined in 20 C.F.R. §§ 404.1567(b),
416.927(b), except that she can lift and carry ten pounds
frequently and twenty pounds occasionally, she can stand or
walk up to six hours in an eight-hour workday with normal
breaks, and she has no limit on her ability to sit. Tr. 440.
She is also limited to no climbing of ladders, ropes, or
scaffolds, she should avoid exposure to extremes of cold, she
should avoid exposure to respiratory irritants such as fumes,
odors, dust, and gasses, and she should not work around
hazards such as unprotected heights and dangerous machinery.
Id. Further, the ALJ restricted her to remembering,
understanding, and carrying out tasks or instructions
consistent with occupations which have a significant
vocational preparation (SVP) of 1- 2. Id.
Additionally, she should have no interaction with the general
public, which the ALJ explained meant that while she could
walk by the general public, she should not be performing
tasks involving "real verbal communication[.]"
Id. Finally, the ALJ stated that while Plaintiff
could work in proximity to coworkers, she would do best
performing tasks that do not require teamwork. Id.
this RFC, the ALJ determined that Plaintiff is unable to
perform any of her past relevant work. Tr. 445. However, at
step five, the ALJ determined that Plaintiff is able to
perform jobs that exist in significant numbers in the economy
such as laundry worker and electronics worker. Tr. 446. Thus,
the ALJ determined that Plaintiff is not disabled.
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
Opening Memorandum, Plaintiff contends that the ALJ erred by
(1) improperly finding her subjective testimony not credible;
(2) improperly rejecting lay opinion testimony; and (3)
improperly considering medical opinions. ECF 14. In her Reply
Memorandum, she suggests that the ALJ further erred in
assessing Plaintiff's concentration abilities and in
regard to her physical impairments. ECF 17.
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 ...