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Clemens v. Berryhill

United States District Court, D. Oregon

April 10, 2018

JEFFEREY CLEMENS, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER

          Michael McShane United States District Judge.

         Plaintiff 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).

         On 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.[1] 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 proceedings.

         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 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. 1996)).

         DISCUSSION

         The 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).

         Clemens, 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.

         I. Severe Impairments

         Clemens 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.”).[2] 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.

         II. Weight of the Claimant's Testimony

         Next, I 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 ...


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