United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge.
Jefferey Clemens brings this action for judicial review of
the Commissioner's decision denying his application 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).
January 7, 2013, Clemens filed an application for DIB,
alleging disability as of March 15, 2007. After a hearing,
the administrative law judge (“ALJ”) determined
Clemens was not disabled under the Act from March 15, 2007,
through December 31, 2012, his date last insured. Tr.
14-28. Clemens argues the ALJ erred by not
finding “failed back surgery syndrome” among his
severe impairments, improperly discounting his symptom
testimony, and failing to account for a discrepancy between
the vocational expert's (“VE”) testimony and
the Dictionary of Occupational Titles
(“DOT”). Because the Commissioner's
decision is not based on proper legal standards and not
supported by substantial evidence the Commissioner's
decision is REVERSED and this case is REMANDED for further
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.
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 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 the claimant satisfies his
burden with respect to the first four steps, the burden
shifts to the Commissioner for step five. 20 C.F.R.
§§ 404.1520 & 416.920. At step five, the
Commissioner must show that 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,
then the claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(v) & 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform
other work existing in significant numbers in the national
economy, the claimant is not disabled. Bustamante v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
nearly 44 years old on his alleged onset date and nearly 50
years old on his date last insured, spent the vast majority
of his life working as a baker. He alleged disability based
on a back injury, which required multiple surgeries. The ALJ
found Clemens's testimony not entirely credible. The ALJ
determined Clemens had the severe impairments of:
degenerative disc disease of the lumbar spine, rheumatoid
arthritis, and gouty arthritis. Ultimately, the ALJ resolved
that Clemens retained the RFC to perform light work, except
he should be limited to two hours standing or walking rather
than the standard six hours for light work, and a number of
other limitations Clemens does not contest. The VE opined
someone with Clemens's RFC as constructed by the ALJ
could perform the jobs of small products assembler and
storage facility rental clerk. Therefore, the ALJ concluded
Clemens was not disabled under the Act. I address each of
Clemens's argument in turn.
asserts the ALJ erred in finding “failed back surgery
syndrome” neither medically determinable nor severe at
step two in three conclusory sentences in his opening brief.
Pl.'s Br. at 5 (ECF No. 24). Because the issue was not
argued with specificity I may affirm the ALJ on that basis
alone. See Carmickle v. Comm'r Soc. Sec. Admin.,
533 F.3d 1155, 1162 n.2 (9th Cir. 2003) (“[I]ssues not
argued with specificity in briefing will not be
addressed.”). However, if I were to consider it, the
argument fails. Even assuming arguendo the ALJ erred
in neglecting to list “failed back surgery
syndrome” as a severe impairment at step two, the error
is harmless because the ALJ considered the effect of
Clemens's back impairments and functional limitations at
subsequent steps. Brookins v. Colvin, No.
6:15-cv-01119-MC, 2016 WL 6122457, at *6 (D. Or. Oct. 19,
2016) (“Omissions at step two are harmless if the
ALJ's subsequent evaluation considered the effect of the
impairment omitted at step two.”) (citing Lewis v.
Astrue, 498 F.3d 909, 911 (9th Cir. 2007)); see also
Burch v. Barnhart, 400 F.3d 676, 682-83 (9th Cir. 2005)
(explaining that any error in omitting an impairment from the
severe impairments at step two is harmless where step two is
resolved in claimant's favor). Here, the ALJ resolved
step two in Clemens's favor and considered the effects of
his failed back surgeries in the context of degenerative disc
disease of the lumbar spine, which the ALJ found severe at
step two. Accordingly, the ALJ's step two finding is
affirmed. Lewis, 498 F.3d 911.
Weight of the Claimant's Testimony
turn to Clemens's argument that the ALJ erred in finding
him less-than-credible. “Where, as here, Claimant has
presented evidence of an underlying impairment and the
government does not argue that there is evidence of
malingering, we review the ALJ's rejection of her
testimony for ‘specific, clear and convincing
reasons.'” Burrell v. Colvin, 775 F.3d
1133, 1136 (9th Cir. 2014) (quoting Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). 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, 674 F.3d at 1112
(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 ...