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Drain v. Berryhill

United States District Court, D. Oregon

January 17, 2018

GERALD ALLEN DRAIN, Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner Social Security Administration Defendant

          OPINION AND ORDER

          Michael J. McShane, United States District Judge.

         Plaintiff 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.[1] 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.

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff 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.

         STANDARD OF REVIEW

         The 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)).

         The 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 of evidence).

         DISCUSSION

         A 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. Id.

         At 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.

         The ALJ 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.

         I. The ALJ Did Not Err in Evaluating Plaintiff's Subjective Symptom Testimony.

         Plaintiff 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.

         Absent 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 credibility.” ...


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