United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge
Laura Ann Smith (“Smith”) seeks judicial review
of the Commissioner's decision denying her applications
for Disability Insurance Benefits (“DIB”) under
Title II of the Social Security Act (“the Act”).
This court has jurisdiction under 42 U.S.C. §§
405(g) and 1383(c)(3). Because the Commissioner's
decision is based on proper legal standards and supported by
substantial evidence, the decision is AFFIRMED.
filed her application on May 15, 2012, alleging disability as
of May 1, 2011. Tr. 106, 226. After the Commissioner denied the
application initially and upon reconsideration, Smith
requested a hearing before an administrative law judge
(“ALJ”), which was held on June 24, 2014. Tr.
57-93. At the hearing, the ALJ determined that a consultative
psychiatric examination was needed before a decision could be
made, and following the examination, a supplemental hearing
was convened on May 6, 2015. Tr. 38-52. On May 12, 2015, ALJ
Riley J. Atkins issued a written decision finding Smith not
disabled. Tr. 12-29. On August 12, 2016, the Appeals Council
denied Smith's subsequent request for review, so the
ALJ's decision became the final decision of the
Commissioner. Tr. 1-3. This appeal followed.
reviewing court shall affirm the Commissioner's decision
if the decision is based on proper legal standards and the
legal findings are supported by substantial evidence in the
record. 42 U.S.C. § 405(g); Batson v. Comm'r of
Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).
“Substantial evidence is ‘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.'” Hill v. Astrue,
698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine
whether substantial evidence exists, I review the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th
Cir. 1989). “If the evidence can reasonably support
either affirming or reversing, ‘the reviewing court may
not substitute its judgment' for that of the
Commissioner.” Gutierrez v. Comm'r of Soc. Sec.
Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.
claimant is disabled if he or 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). The Social Security Administration
(“SSA”) utilizes a five-step sequential
evaluation to determine disability. 20 C.F.R. §§
404.1520; 416.920 (2012). The initial burden of proof rests
upon the claimant to meet the first four steps. If a claimant
satisfies his or her burden with respect to the first four
steps, the burden then shifts to the Commissioner for step
five. 20 C.F.R. § 404.1520. At step five, the
Commissioner must demonstrate the claimant is capable of
making an adjustment to other work after considering the
claimant's residual functional capacity
(“RFC”), age, education, and work experience.
Id. If the Commissioner fails to meet this burden,
the claimant is considered disabled. 20 C.F.R. §§
404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
Commissioner proves the claimant is able to perform other
work existing in significant numbers in the national economy,
the claimant is found not disabled. Bustamante v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
two, the ALJ concluded that Smith had the following severe
impairments: fibromyalgia; status post bilateral knee
replacement; “a condition described [as] bipolar
disorder”; and anxiety. Tr. 14. Between steps three and
four, the ALJ assessed Smith's RFC. He determined Smith
retains the capacity to perform light work, with the
following caveats: she should avoid concentrated exposure to
severe workplace hazards (i.e. working around
heights or around machinery with moving parts); she could
sustain concentration, persistence, and pace for simple
routine repetitive tasks of 1-3 steps, she might be able to
engage in more complex tasks on an occasional basis, but
could not sustain more complex work; she should not be
required to work with the public on more than an occasional
or infrequent basis; and she can engage in brief, routine
interactions with coworkers and supervisors. Tr. 17. At step
four, the ALJ found Smith could not perform any past relevant
work. Tr. 27. At step five, based on the testimony of a
vocational expert (“VE”), the ALJ concluded that
Smith could perform jobs that exist in significant numbers in
the national economy, including small products assembler and
price marker. Tr. 28. Accordingly, the ALJ found Smith not
disabled. Tr. 28-29.
contends the ALJ: (1) erroneously discredited her symptom
testimony; (2) erroneously discredited the opinions of
treating and examining physicians; (3) failed to incorporate
the testimony of lay witnesses; and (4) failed to identify
jobs consistent with Smith's RFC at step five.
argues the ALJ erred by rejecting her subjective symptom
testimony. An ALJ is not “required to believe every
allegation of disabling pain, or else disability benefits
would be available for the asking, a result plainly contrary
to 42 U.S.C. § 423(d)(5)(A).” Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting
Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989)).
The ALJ “may consider a range of factors in assessing
credibility.” Ghanim v. Colvin, 763 F.3d 1154,
1163 (9th Cir. 2014). These factors can include
“ordinary techniques of credibility evaluation, ”
id., as well as:
(1) whether the claimant engages in daily activities
inconsistent with the alleged symptoms; (2) whether the
claimant takes medication or undergoes other treatment for
the symptoms; (3) whether the claimant fails to follow,
without adequate explanation, a prescribed course of
treatment; and (4) whether the alleged symptoms are
consistent with the medical evidence.
Lingenfelter v. Astrue,
504 F.3d 1028, 1040 (9th
Cir.2007). However, a negative credibility finding made
solely because the claimant's symptom testimony “is
not substantiated affirmatively by objective medical
evidence” is legally insufficient. Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
Nonetheless, the ALJ's credibility finding may be upheld
even if not all of the ...