United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane, United States District Judge.
Gerald Drain brings this action for judicial review of a
final decision of the Commissioner of Social Security denying
his application for disability insurance benefits (DIB) under
of the Social Security Act. Tr. 22. The 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
Commissioner's decision is AFFIRMED.
AND FACTUAL BACKGROUND
filed an application for DIB on September 25, 2012, alleging
disability as of January 1, 2011. Tr. 22. The claim was
denied initially and upon reconsideration. Id.
Following a hearing, the administrative law judge (ALJ)
issued an unfavorable decision denying Plaintiff's claim.
Id. The Appeals Council denied the request for
review, making the ALJ's decision the final decision of
the Commissioner. Tr. 1-4. 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 for
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, this Court reviews the
administrative record as a whole, weighing both supporting
and deterring evidence from the ALJ's conclusion.
Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir.
1986). The ALJ may “reject the claimant's testimony
about the severity of her symptoms only by offering specific,
clear and convincing reasons for doing so.”
Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir.
2015) (quoting Lingenfelter v. Astrue, 504 F.3d
1029, 1036 (9th Cir. 2007)).
Commissioner's findings are upheld if supported by
inferences reasonably drawn from the record; if evidence
exists to support more than one rational interpretation, the
court must defer to the Commissioner's decision.
Batson, 359 F.3d at 1193; Aukland v.
Massanari, 257 F.3d 1033, 1034-35 (9th Cir. 2000). A
reviewing court, however, “cannot affirm the
Commissioner's decision on a ground that the
Administration did not invoke in making its decision.”
Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050,
1054 (9th Cir. 2006) (citation omitted). A court may not
reverse an ALJ's decision on account of a harmless error.
Id. at 1055- 56. “[T]he burden of showing that
an error is harmful normally falls upon the party attacking
the agency's determination.” Shinseki v.
Sanders, 556 U.S. 396, 409 (2009). The ALJ is the final
arbiter with respect to resolving ambiguities in the medical
evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1041
(9th. Cir. 2008). Finally, the ALJ need not discuss all
evidence presented, but must explain why significant
probative evidence has been rejected. Stark v.
Shalala, 886 F.Supp. 733, 735 (D. Or. 1995). See
also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006,
1012 (9th Cir. 2003) (in interpreting the evidence and
developing the record, the ALJ need not discuss every piece
claimant is disabled if he 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) uses a
five step sequential evaluation to determine whether a
claimant is disabled. 20 C.F.R. § 416.920, 20 C.F.R.
404.1520. The initial burden of proof rests upon the claimant
to meet the first four steps. If claimant satisfies his or
her burden with respect to the first four steps, the burden
shifts to the Commissioner at step five. Id. At step
five, the Commissioner's burden is to 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 reviewing agency determines that the
claimant is or is not disabled at any step of the evaluation
process, the evaluation will not go onto the next step.
one of the sequential analysis, the ALJ found that Plaintiff
had not engaged in substantial gainful activity during the
period from his alleged onset date of January 1, 2011 through
June 30, 2012. Tr. 24. At step two, the ALJ found Plaintiff
suffered from the following severe impairments: diabetes
mellitus with peripheral neuropathy and diabetic retinopathy,
gastroparesis, and obesity. Tr. 25. The ALJ found
Plaintiff's mental impairments caused no more than mild
limitations, and no episodes of decompensation, making his
paragraph B criteria from 20 C.F.R. Part 404, Subpart P,
Appendix 1 “non-severe.” Tr. 26. At step three,
the ALJ found that none of Plaintiff's impairments, alone
or in combination, met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
found Plaintiff's RFC allowed him to perform less than
the full range of light work (SVP-2). Tr. 26-7. At step four,
the ALJ concluded Plaintiff was not capable of performing his
past relevant work as a computer software engineer or cabinet
maker. Tr. 34. The Vocational Expert (VE) determined, based
on the hypothetical provided by the ALJ, that Plaintiff could
perform occupations such as photocopy machine operator,
laundry folder, or produce sorter. Tr. 35. Therefore, the ALJ
concluded that Plaintiff was not disabled at any time from
January 1, 2011 through June 30, 2012. Id.
The ALJ Did Not Err in Evaluating Plaintiff's Subjective
argues the ALJ discredited his subjective symptom testimony
without providing a clear and convincing rationale. Plaintiff
alleges the ALJ erred by finding his testimony inconsistent
with the medical record; by relying on medical testimony that
stated Plaintiff's visual acuity was “surprisingly
good” despite Plaintiff's testimony that his vision
fluctuated and by failing to include Plaintiff's
Charcot's foot diagnosis into her analysis.
affirmative evidence of malingering, the ALJ must provide
clear and convincing reasons for discrediting the
claimant's testimony regarding the severity of the
symptoms. Carmickle v. Comm'r Soc. Sec. Admin.,
533 F.3d 1155, 1166 (9h Cir. 2008); Lingenfelter,
504 F.3d at 1036 (9th Cir. 2007).The 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 wide range of factors in assessing