United States District Court, D. Oregon, Portland Division
JAMES TREE Attorney for Plaintiff
J. WILLIAMS United States Attorney RENATA GOWIE Assistant
United States Attorney
BENJAMIN GROEBNER Special Assistant United States Attorney
Office of the General Counsel Social Security Administration
Attorneys for Defendant
OPINION AND ORDER
V. ACOSTA, UNITED STATES MAGISTRATE JUDGE.
McNair ("Plaintiff) seeks judicial review of a final
decision by the Commissioner of Social Security
("Commissioner") denying her application for Title
XVI Supplemental Security Income ("SSI") under the
Social Security Act ("Act"). All parties have
consented to allow a Magistrate Judge to enter final orders
and judgment in this case in accordance with Fed.R.Civ.P. 73
and 28 U.S.C. § 636(c). For the reasons that follow, the
Commissioner's decision is REVERSED and REMANDED for
protectively filed for SSI on July 19, 2011, alleging
disability beginning August 28, 2010. (Tr. 94.) After the
Commissioner denied her application initially and upon
reconsideration, Plaintiff requested a hearing before an
Administrative Law Judge ("ALJ"). (Tr. 104, 116-17,
149.) A hearing was held via video teleconference on January
24, 2013. Plaintiff, represented by counsel, testified. (Tr.
149.) Paul Prachyl, a vocational expert ("VE") and
Stephanie Boyce ("Ms. Boyce"), Plaintiffs daughter,
also testified. (Tr. 35-93.) On March 19, 2013, the ALJ
issued an unfavorable decision, finding Plaintiff not
disabled. (Tr. 17-30.) The Appeals Council denied Plaintiff s
request for review, making the ALJ's decision final. (Tr.
1.) Plaintiff filed a complaint for review of the
Commissioner's final decision in the United States
District Court for the Eastern District of Washington,
resulting in a remand for additional proceedings pursuant to
sentence four of 42 U.S.C. § 405(g). (Tr. 584-99.) On
May 3, 2016, a second hearing before the ALJ was convened,
but not completed, due to the late receipt of additional
medical records. (Tr. 538-48.) On August 16, 2016, the ALJ
held a full hearing via video teleconference. (Tr. 482.)
Plaintiff, Ms. Boyce, and VE, Ann Jones, testified. (Tr.
506-35.) On November 22, 2016, the ALJ issued another
unfavorable opinion finding Plaintiff not disabled, making it
the final decision of the Commissioner. (Tr. 479-96); 20
C.F.R. §§ 416.1483-416.1484. Plaintiff filed this
complaint for review of the Commissioner's final decision
on February 17, 2017.
February 15, 1964, Plaintiff was 47 years old when she filed
her SSI application and 52 years old at the second
administrative hearing. (Tr. 94, 48 8.) Plaintiff completed
her GED and has past work as an in-home health care provider
and convenience store cashier. (Tr. 214-15, 218.) She alleges
disability due to low back pain, depression, anxiety,
irritable bowel disease, memory loss, extreme fatigue, joint
pain, muscle weakness, and loss of concentration. (Tr. 95.)
court must affirm the Commissioner's decision if it is
based on proper legal standards and the findings are
supported by substantial evidence in the record. Hammock
v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial
evidence is "more than a mere scintilla. It 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) (citation and internal
quotations omitted). The court must weigh "both the
evidence that supports and detracts from the
[Commissioner's] conclusions." Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where
the evidence as a whole can support either a grant or a
denial, [the court] may not substitute [its] judgment for the
ALJ's." Massachi v. Astrue, 486 F.3d 1149,
1152 (9th Cir. 2007) (citation omitted).
initial burden of proof rests upon the claimant to establish
disability. Howard v. Heckler, 782 F.2d 1484, 1486
(9th Cir. 1986). To meet this burden, the claimant must
demonstrate an "inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected... to
last for a continuous period of not less than 12
months." 42 U.S.C. § 423(d)(1)(A).
Commissioner has established a five-step sequential process
for determining whether a person is disabled. Bowen v.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §
416.920. First, the Commissioner determines whether a
claimant is engaged in "substantial gainful
activity." Yuckert, 482 U.S. at 140; 20 C.F.R.
§ 416.920(b). If so, the claimant is not disabled.
two, the Commissioner evaluates whether the claimant has a
"medically severe impairment or combination of
impairments." Yuckert, 482 U.S. at 140-41; 20
C.F.R. § 416.920(c). If the claimant does not have a
medically determinable, severe impairment, he is not
three, the Commissioner determines whether the claimant's
impairments, either singly or in combination, meet or equal
"one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Yuckert, 482
U.S. at 140-41; 20 C.F.R. § 416.920(d). If so, the
claimant is presumptively disabled; if not, the Commissioner
proceeds to step four. Yuckert, 482 U.S. at 141.
four, the Commissioner resolves whether the claimant can
still perform "past relevant work." 20 C.F.R.
§ 416.920(f). If the claimant can work, she is not
disabled; if she cannot perform past relevant work, the
burden shifts to the Commissioner. At step five, the
Commissioner must establish that the claimant can perform
other work existing in significant numbers in the national or
local economy. Yuckert, 482 U.S. at 141 - 42; 20
C.F.R. § 416.920(g). If the Commissioner meets this
burden, the claimant is not disabled. 20 C.F.R. §
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since her application date. (Tr.
two, the ALJ found that Plaintiff had the following severe
impairments: disorder of the gastrointestinal systems;
disorders of muscle, ligament, and fascia; osteoarthritis and
allied disorders; degenerative disc disease; other
unspecified arthropathies; chronic obstructive pulmonary
disorder (COPD); affective disorders; and obesity. (Tr. 485.)
found anxiety to be non-severe, noting "evidence fails
to establish the claimant's anxiety would have more than
minimal limitations on her ability to perform basic work
activities." (Id.) Further, the ALJ determined
that fibromyalgia was not a medically-determinable
impairment. (Id.) Noting that Plaintiffs primaiy
symptom allegations with regards to fibromyalgia are fatigue
and body pain, the ALJ found that even if the condition was
medically determinable, it would not cause any additional
limitations beyond those already accounted for in the
residual functional capacity ("RFC") determination.
three, the ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met or
medically equaled a listed impairment. (Tr. 486-87.)
the ALJ assessed Plaintiffs RFC and found that she could
perform unskilled, light work as defined in 20 C.F.R §
416.967(b), except that she "is not able to perform at a
production rate pace (e.g., assembly line work, i.e., where
pace is mechanically controlled) but can perform
goal-oriented work (e.g., office cleaner or those tasks where
pace is more controlled by the worker)." (Tr. 487.)
Plaintiff is expected to be "off-task" about ten
percent of the time in an eight-hour work day and her
"work tasks should not carry her more than five minutes
from a restroom, such as having to travel from one job site
to another." (Tr. 487-88.)
four, the ALJ found that Plaintiff is unable to perform past
relevant work as a home attendant. At step five, based on the
testimony of the VE, the ALJ determined that Plaintiff could
perform work as a cashier II, fast food worker, and
cleaner/housekeeper, all of which exist in significant
numbers in the national economy. (Tr. 495.) The ALJ therefore
concluded that Plaintiff was not disabled. (Id.)
alleges the ALJ erred by: (1) improperly discrediting
Plaintiff s subjective symptom allegations; (2) improperly
assessing medical opinion evidence; (3) improperly
discrediting lay witness testimony; (4) failing to recognize
fibromyalgia as a medically determinable impairment at step
two; and (5) failing to appoint a medical expert.
Plaintiffs Subjective Symptom Testimony
"there is no affirmative evidence of malingering,
'the ALJ can reject the claimant's testimony about
the severity of her symptoms only by offering specific, clear
and convincing reasons for doing so.'"
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281,
1283-84 (9th Cir. 1996)). A general assertion that 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, l2F.3d9l5, 9l8(9thCir. 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).
of clear and convincing reasons include conflicting medical
evidence, effective medical treatment, medical noncompliance,
inconsistencies either in the claimant's testimony or
between her testimony and her conduct, daily activities
inconsistent with the alleged symptoms, a sparse work
history, testimony that is vague or less than candid, and
testimony about the nature, severity and effect of the
symptoms complained of from physicians and third parties.
Tommasetti, 533 F.3d at 1040; Lingenfelter v.
Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light
v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir.
argues the ALJ erred by discrediting her subjective pain
allegations based solely on a lack of objective medical
evidence. An ALJ may not discredit a claimant's
subjective symptom allegations based solely on a lack of
medical evidence; however, it may be considered ...