United States District Court, D. Oregon
Merrill Schneider SCHNEIDER KERR & ROBICHAUX Attorney for
J. Williams UNITED STATES ATTORNEY District of Oregon Renata
Gowie ASSISTANT UNITED STATES ATTORNEY Michael Howard SPECIAL
ASSISTANT UNITED STATES ATTORNEY Attorneys for Defendant
OPINION & ORDER
A. Hernandez, United States District Judge.
Debra Choat brings this action seeking judicial review of the
Commissioner's final decision to deny disability
insurance benefits (DIB). This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). I affirm the
Commissioner's decision at step two in part, and
otherwise reverse the Commissioner's decision and remand
for additional proceedings.
applied for DIB on September 3, 2013, alleging an onset date
of March 6, 2010. Tr. 151-52. Her application was denied
initially and on reconsideration. Tr. 67-67, 76, 90-94
(Initial); Tr. 77-87, 97-101 (Recon.). On May 27, 2015,
Plaintiff appeared, with counsel, for a hearing before an
Administrative Law Judge (ALJ). Tr. 33-66. On August 7, 2015,
the ALJ found Plaintiff not disabled. Tr. 14-32. The Appeals
Council denied review. Tr. 1-5.
alleges disability based on having deteriorating bones and
depression. Tr. 164. At the time of the hearing, she was
fifty-seven years old. Tr. 37. She has a GED and has past
relevant work experience as a teacher's aide, a grocery
checker, a deli worker, and a sales clerk. Tr. 39, 62.
claimant is disabled if 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. §§
claims are evaluated according to a five-step procedure.
See Valentine v. Comm'r, 574 F.3d 685, 689 (9th
Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the
ultimate burden of proving disability. Id.
first step, the Commissioner determines whether a claimant is
engaged in "substantial gainful activity." If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In step two, the Commissioner determines whether
the claimant has a "medically severe impairment or
combination of impairments." Yuckert, 482 U.S.
at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If
not, the claimant is not disabled.
three, the Commissioner determines whether plaintiff's
impairments, 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 141; 20 C.F.R. §§ 404.1520(d), 416.920(d).
If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four.
Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity (RFC) to perform "past relevant work." 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can perform past relevant work, the claimant is not disabled.
If the claimant cannot perform past relevant work, the burden
shifts to the Commissioner. In step five, the Commissioner
must establish that the claimant can perform other work.
Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets his burden and proves that the claimant is
able to perform other work which exists in the national
economy, the claimant is not disabled. 20 C.F.R. §§
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since her alleged onset date
through March 31, 2012, her date of last insured. Tr. 19.
Next, at steps two and three, the ALJ determined that
Plaintiff has the severe impairment of depressive disorder,
but that she did not have an impairment or combination of
impairments that met or medically equaled a listed
impairment. Tr. 20.
four, the ALJ concluded that Plaintiff has the RFC to perform
a full range of work at all exertional levels but that she
was limited to understanding, remembering, and carrying out
simple routine repetitive tasks and to only occasional
contact with the general public and coworkers. Tr. 22. With
this RFC, the ALJ determined that Plaintiff is unable to
perform any of her past relevant work. Tr. 25-26. However, at
step five, the ALJ determined that Plaintiff is able to
perform jobs that exist in significant numbers in the economy
such as garment bagger, labeler, and collator. Tr. 27. Thus,
the ALJ determined that Plaintiff is not disabled.
may set aside the Commissioner's denial of benefits only
when the Commissioner's findings are based on legal error
or are not supported by substantial evidence in the record as
a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th
Cir. 2009). "Substantial evidence means 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." Id. (internal quotation
marks omitted). The court considers the record as a whole,
including both the evidence that supports and detracts from
the Commissioner's decision. Id.;
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). "Where the evidence is susceptible to more
than one rational interpretation, the ALJ's decision must
be affirmed." Vasquez, 572 F.3d at 591
(internal quotation marks and brackets omitted); see also
Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
("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") (internal quotation marks
argues that the ALJ made three errors: (1) failing to find
any of her physical impairments to be severe at step two; (2)
improperly rejecting the opinion of her treating physician;
and (3) failing to give any reasons for disregarding her
is responsible for determining credibility. Vasquez,
572 F.3d at 591. Once a claimant shows an underlying
impairment and a causal relationship between the impairment
and some level of symptoms, clear and convincing reasons are
needed to reject a claimant's testimony if there is no
evidence of malingering. Carmickle v. Comm'r,
533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative
evidence that the plaintiff is malingering, "where the
record includes objective medical evidence establishing that
the claimant suffers from an impairment that could reasonably
produce the symptoms of which he complains, an adverse
credibility finding must be based on 'clear and
convincing reasons'"); see also Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages
in two-step analysis to determine credibility: First, the ALJ
determines whether there is "objective medical evidence
of an underlying impairment which could reasonably be
expected to produce the pain or other symptoms alleged";
and second, if the claimant has presented such evidence, and
there is no evidence of malingering, then the ALJ must give
"specific, clear and convincing reasons in order to
reject the claimant's testimony about the severity of the
symptoms.") (internal quotation marks omitted).
determining the credibility of a plaintiff's complaints
of pain or other limitations, the ALJ may properly consider
several factors, including the plaintiff's daily
activities, inconsistencies in testimony, effectiveness or
adverse side effects of any pain medication, and relevant
character evidence. Orteza v. Shalala, 50 F.3d 748,
750 (9th Cir. 1995). As the Ninth Circuit explained in
In evaluating the claimant's testimony, the ALJ may use
ordinary techniques of credibility evaluation. For instance,
the ALJ may consider inconsistencies either in the
claimant's testimony or between the testimony and the
claimant's conduct, unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of
treatment, and whether the claimant engages in daily
activities inconsistent with the alleged symptoms[.] While a
claimant need not vegetate in a dark room in order to be
eligible for benefits, the ALJ may discredit a claimant's
testimony when the claimant reports participation in everyday
activities indicating capacities that are transferable to a
work setting[.] Even where those activities suggest some
difficulty functioning, they may be grounds for discrediting
the claimant's testimony to the extent that they
contradict claims of a totally debilitating impairment.
Molina, 674 F.3d at 1112-13 (citations and internal
quotation marks omitted).
determining Plaintiff's RFC between steps three and four,
the ALJ recited the appropriate two-part credibility
analysis. Tr. 22. She identified Plaintiff's statements
in Plaintiff's disability application regarding
difficulty standing and walking, unspecified episodes of
nervousness, and being "jumpy." Tr. 22-23. The ALJ
also cited to Plaintiff's September 13, 2013 Adult
Function Report where Plaintiff alleged that her impairments
limited her ability to lift more than five pounds, stand for
more than five minutes, walk for more than one-half of a
block, and sit for more than ten minutes. Tr. 23 (citing Tr.
176). The ALJ then noted Plaintiff's limited ...