United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA, UNITED STATES MAGISTRATE JUDGE
Sue Chism ("plaintiff") seeks judicial review of
the final decision of the Commissioner of the Social Security
Administration ("Commissioner") denying her
application for Disability Insurance Benefits
("DIB"). Because the Commissioner's decision is
not supported by substantial evidence, her decision is
REVERSED and REMANDED for further proceedings.
filed her application for DIB on May 16, 2012, alleging
disability beginning December 22, 2011. (Tr. 86-87.) The
Commissioner denied her application initially and upon
reconsideration. (Tr. 112-14, 121-25.) Plaintiff requested a
hearing before an Administrative Law Judge ("ALJ"),
and an administrative healing was held on September 17, 2014.
(Tr. 38-85, 126-27.) After the hearing, the ALJ issued a
decision finding plaintiff not disabled dated October 31,
2014. (Tr. 20-37.) The Appeals Council denied plaintiffs
subsequent request for review on April 20, 2016, making the
ALJ's decision the final decision of the Commissioner.
(Tr. 1-7.) This appeal followed.
January, 1977, plaintiff was 37 years old at the time of the
administrative hearing. (Tr. 38, 100, 203.) She graduated
high school and has past relevant work experience as a laser
technician, central supply worker, and health club manager.
(Tr. 31, 65, 99, 239, 243-45.) Plaintiff alleges disability
due to multiple chemical sensitivity, mixed connective tissue
disease, and a head injury resulting in traumatic brain
injury. (Tr. 87, 100.)
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. 389, 401 (1971) (quoting Consol.
Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). 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, [a court] may not substitute [its]
judgment for the ALJ's, " Massachi v.
Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation
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); 20 C.F.R. § 404,
1520. First, the Commissioner determines whether the claimant
is engaged in "substantial gainful activity."
Yuckert, 482 U.S. at 140; 20 C.F.R. §
404.1520(b). If so, she is not disabled.
two, the Commissioner evaluates 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). If the claimant does not have a
severe impairment, she is not disabled.
three, the Commissioner determines whether the claimant's
impairments, either individually 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). If so, she is
presumptively disabled; if not, the Commissioner proceeds to
step four. Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant can
still perform "past relevant work." 20 C.F.R.
§ 404.1520(f). If the claimant can perform past relevant
work, she is not disabled; if she cannot, the burden shifts
to the Commissioner.
five, the Commissioner must establish the claimant can
perform other work existing in significant numbers in the
national or local economy. Yuckert, 482 U.S. at
141-42; 20 C.F.R. § 404.1520(g). If the Commissioner
meets this burden, the claimant is not disabled. 20 C.F.R.
performed the sequential analysis, as noted above. At step
one, the ALJ found plaintiff had not engaged in substantial
gainful activity since her alleged onset date. (Tr. 25.) At
step two, the ALJ concluded plaintiff had the severe
impairment of a respiratory disorder. (Id.) At step
three, the ALJ determined plaintiff did not have an
impairment or combination of impairments that met or
medically equaled a listed impairment. (Tr. 26.) The ALJ
determined plaintiff had the residual functional capacity
("RFC") to perform "a full range of work at
all exertional levels, " but with the following
She should not climb ladders, ropes or scaffolds. She should
avoid concentrated exposure to extreme heat, humidity, and
hazards. She should avoid even moderate exposure to
(Id.) At step four, the ALJ found plaintiff was able
to perform her past relevant work as a laser technician,
central supply worker, and health club manager. (Tr, 31.) By
finding plaintiff was able to do past relevant work, the ALJ
determined plaintiff was not disabled; therefore, the ALJ did
not proceed to step five. 20 C.F.R. §§
alleges the ALJ erred by: (1) failing to provide a clear and
convincing reason to reject her subjective symptom testimony;
(2) improperly rejecting the medical opinions in the record;
(3) improperly rejecting the lay testimony of Thomas Chism;
(4) failing to find plaintiffs obesity and multiple chemical
sensitivity to be medically determinable impairments; and (5)
failing to find plaintiffs mixed connective tissue disease
and traumatic brain injury to be severe impairments.
Plaintiffs Subjective Symptom Testimony.
argues that this case must be remanded because the ALJ
discredited plaintiff without providing a specific, clear and
convincing reason for doing so, Plaintiffs Motion for Summary
Judgment 16-20 (ECF No. 16) ("Pl's Br.").
"there is no affirmative 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, 12 F.3d 915, 918 (9th Cir.
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 citation omitted).
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 (9th Cir. 2007); Light
v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir.
found plaintiffs subjective symptom testimony "not fully
credible" because: (1) plaintiff had a history of
conservative treatment; (2) there was a lack of medical
evidence to support plaintiffs allegations; (3) plaintiff
exaggerated her symptoms and limitations; (4) plaintiffs
activities of daily living were inconsistent with her alleged
symptoms; and (5) plaintiff used a non-prescribed respiratory
the ALJ discredited plaintiffs symptom testimony because he
found that plaintiff had a history of conservative treatment.
(Tr. 29.) Evidence of conservative treatment "is
sufficient to discount a claimant's testimony regarding
the severity of an impairment." Parra v.
Astrue,481 F.3d 742, 751 (9th Cir. 2007). The ALJ noted
that "despite her alleged impairments, plaintiff
testified that "[n]ot one doctor has prescribed [her]
with anything for anything." (Tr. 29, 56.) The ALJ also
found that despite claiming multiple chemical sensitivity,
plaintiff "has not seen an immunologist or allergy
specialist to do an allergy test." (Tr. 29.) Plaintiff
argues that she could not take medications because of her
multiple chemical sensitivity. However, other than plaintiffs
claim that she avoids medications because she has "some
allergic reactions" to "high doses" and her
claim that she has had allergic reactions to dyes, there is
no evidence in the record that she cannot take medications.
(Tr. 438, 443.) Indeed, the record ...