United States District Court, D. Oregon
CHRISTOPHER S. WESMAN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION
A. RUSSO, UNITED STATES MAGISTRATE JUDGE.
S. Wesman (“plaintiff”) seeks judicial review of
the final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying
Supplemental Security Income (“SSI”) and
disability insurance benefits (“DIB”) under
Titles II and XVI of the Social Security Act (“the
Act”). For the reasons set forth below, the decision of
the Commissioner should be REVERSED and REMANDED for an
immediate payment of benefits.
was born in Coos Bay, Oregon, in May 1988. Tr.
He applied for SSI and DIB in July 2012, alleging disability
with an amended onset date of October 1, 2011. Tr. 15, 43,
75, 90. Plaintiff has a Bachelor of Arts degree in English
literature and film and no past relevant work as defined by
the regulations, although he did work briefly as a barista
and part-time as a custodian. Tr. 49-50, 58, 87, 106. At the
time of his hearing, he was living with his grandparents. Tr.
alleged disability based upon: fibromyalgia,
depression/anxiety, recurrent syncope, asthma, irritable
bowel syndrome (“IBS”), and chronic insomnia. Tr.
76, 91. His application was denied initially and upon
reconsideration. Tr. 75-108. On September 22, 2014, an
Administrative Law Judge (“ALJ”) held a hearing,
and on November 13, 2014, issued a decision finding plaintiff
not disabled. Tr. 15-30; 35-72. On April 22, 2016, the
Appeals Council denied review, making the ALJ's decision
the final decision of the Commissioner. Tr. 1-6. This appeal
performed the five step sequential analysis, for determining
whether a person is disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,
416.920. At step one, the ALJ found plaintiff had not engaged
in substantial gainful activity since his amended alleged
onset date. Tr. 17. At step two, the ALJ determined the
following impairments were medically determinable and severe:
“fibromyalgia, asthma, anxiety/post-traumatic stress
disorder (“PTSD”), and depression.” Tr. 18.
At step three, the ALJ determined plaintiff's
impairments, neither individually nor in combination, met or
equaled the requirements of a listed impairment. Tr. 19.
he did not establish presumptive disability at step three,
the ALJ continued to evaluate how plaintiff's impairments
affected his ability to work. The ALJ resolved plaintiff had
the residual functional capacity (“RFC”) to
perform light work with the following limitations:
[He should] avoid exposure to fumes, dust, gases, poor
ventilation and other noxious odors, as well as unprotected
heights, moving machinery and similar hazards. The
[plaintiff] is also limited to simple, repetitive, routine
four, the ALJ determined plaintiff had no past relevant work
as defined by the regulations. Tr. 28. At step five, the ALJ
found, based on the RFC and the vocational expert
(“VE”) testimony, a significant number of jobs
existed in the national and local economy such that plaintiff
could sustain employment despite his impairments. Tr. 28-29.
Specifically, the ALJ found plaintiff could perform the jobs
of library helper, clerical checker, and address clerk. Tr.
district court must 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, 359
F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence
“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)
(internal citation omitted). In reviewing the
Commissioner's alleged errors, a court must weigh
“both the evidence that supports and detracts from the
[Commissioner's] conclusion.” Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable
interpretations of the evidence are insignificant if the
Commissioner's interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
the evidence before the ALJ is subject to more than one
rational interpretation, a court must defer to the ALJ's
conclusion. Batson, 359 F.3d at 1198 (internal
citation omitted). The reviewing court, however, cannot
affirm the Commissioner's decision on grounds the agency
did not invoke in making its decision. Stout v.
Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006).
Finally, the court may not reverse an ALJ's decision on
account of an error that is harmless. 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).
argues the ALJ erred by: (1) erroneously discounting his
subjective symptom testimony; (2) failing to give adequate
weight to the opinions of his treating physicians; and (3)
failing to meet the Commissioner's burden at step five of
the sequential evaluation.
Subjective Symptom Testimony
assigns error to the ALJ's evaluation of his subjective
symptom testimony. Pl.'s Br. at 12-14. When a claimant
has medically documented impairments that could reasonably be
expected to produce some degree of the symptoms complained
of, and the record contains no affirmative evidence of
malingering, “the ALJ can reject the claimant's
testimony about the severity of . . . symptoms only by
offering specific, clear and convincing reasons for doing
so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th
Cir. 1996) (internal citation omitted). A general assertion
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).
If the ALJ's finding regarding the claimant's
subjective symptom testimony is “supported by
substantial evidence in the record, [the court] may not
engage in second-guessing.” Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal
hearing, plaintiff testified his fibromyalgia was centered in
his “lower back and it spreads from there when it is
active.” Tr. 58-59. He testified on “bad days,
” which he rated as seven or above on the pain scale,
“even just breathing will hurt.” Tr. 59. He
testified his “bad days far outnumber” his good
days. Tr. 59. Finally, he testified on his “worst
days” he would “end up lying in bed unable to
even pay attention to the people around [him], ” and he
could not “carry on a conversation when the pain is
going on at its worst.” Id.
Commissioner responds that plaintiff “simply disagrees
with the ALJ's rational assessment of” his
subjective symptom testimony. Def.'s Br. at 5. According
to the Commissioner, the ALJ provided three permissible
rationales which undermined plaintiff's subjective
complaints: (A) work activities; (B) activities of daily
living; and (C) the objective medical evidence. The Court
addresses each in turn.
Commissioner argues plaintiff's ability to work part-time
undermined his subjective symptom testimony relating to his
fibromyalgia. Def.'s Br. at 6-7. Indeed, the regulations
contemplate that “work done during any period in which
[a claimant alleges disability may demonstrate the ability]
to work at the substantial gainful activity level.” 20
C.F.R. §§ 404.1571, 416.971. The Commissioner also
cites Bray v. Comm'r of Soc. Sec. Admin., 554
F.3d 1219, 1228 (9th Cir. 2009), for the proposition that
part-time work can undermine subjective complaints.
however, is distinguishable from this case. In reversing and
remanding the ALJ's decision on an unrelated error,
Bray upheld the ALJ's credibility determination
based on “four . . . independent bases for
discounting” the claimant's testimony, one being
the claimant's prior work history. Bray, 554
F.3d at 27. That work history included part-time work as a
“caregiver” for an ill friend, as well as
“seeking out other employment” after the
caregiver work concluded. Id. at 1221-27. Here, by
contrast, the work activities relied on by the Commissioner
are distinguishable in two important ways. First, unlike the
claimant in Bray, after plaintiff was fired he did
not seek other work. Compare Bray, 554 F.3d
at 1227 (claimant “sought out other employment”
after her part-time work concluded) with Tr. 48 (ALJ
asking plaintiff if he had “looked for any other
jobs” since being fired from his part-time work and
plaintiff answering he had not).
unlike the claimant in Bray, plaintiff struggled
with and was ultimately unable to maintain his part-time
employment. See Tr. 45 (“Originally, it was a
five-day a week job . . . And I was able to do it in five
days . . . Then as the  fibromyalgia progressed, it became
a six-day [a week] job, then a seven day [a week job] and
then eventually I told them I could not do the entirety
anymore, and I asked them to cut the job in half for me,
which they agreed to.”); Tr. 45-46 (explaining that
plaintiff necessitated working additional days because
“it was taking longer” to complete the same
amount of work); Tr. 48 (explaining that plaintiff was
“let go” when his work reached an unsatisfactory
level). In Bray, there was no indication
the claimant struggled with or was terminated from her
“recent work as a personal caregiver[.]”
Bray, 554 F.3d at 1227. In other words,
Bray is inapposite because there the claimant was
successful in her recent part-time work; and that fact
coupled with seeking out other employment after that work
concluded provided a permissible rationale to discount her
testimony. Here, by contrast, plaintiff was unable to
maintain part-time work; nor did plaintiff seek out other
work after his employer fired him. Bray, therefore,
does not control here.
Commissioner's citation to Greger v. Barnhart,464 F.3d 968, 972 (9th Cir. 2006), is similarly unpersuasive.
There, the ALJ properly rejected the claimant's
subjective symptom testimony because the claimant failed to
report his alleged symptoms to his doctors, failed to
participate in treatment, continued to work “under the
table . . . well after his date of last insured, ” and
continued to engage in “his past work activities as a
contractor.” Id. Here, by contrast, plaintiff
consistently reported his symptoms to medical providers,
diligently complied with treatment, and although plaintiff
worked part-time during a portion of the relevant time
period, the volume of work he performed progressively