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Henderson v. Commissioner, Social Security Administration

United States District Court, D. Oregon

May 4, 2018

NATHANIAL JAMES HENDERSON, Plaintiff,
v.
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.

          Tim Wilborn WILBORN LAW OFFICE, P.C. Attorney for Plaintiff.

          Renata Gowie Assistant United States Attorney, Ryan Lu Social Security Administration Office of the General Counsel Attorneys for Defendant

          OPINION & ORDER

          MARCO A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE

         Plaintiff Nathanial James Henderson brings this action for judicial review of the Commissioner's final decision denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. This Court has jurisdiction under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1382(c)(3)). The Commissioner's decision is reversed and remanded for further administrative proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff applied for DIB on August 18, 2015, alleging disability as of December 29, 2014. Tr. 85.[1] His application was denied initially and on reconsideration. Tr. 101-05, 109-11. On September 7, 2016, Plaintiff appeared, with counsel, for a video hearing before an Administrative Law Judge (ALJ). Tr. 35. On October 20, 2016, the ALJ found Plaintiff not disabled. Tr. 28. The Appeals Council denied review. Tr. 1.

         FACTUAL BACKGROUND

         Plaintiff initially alleged disability based on PTSD, a hip malformation, and a torn disc in his back. Tr. 187. He was 35 at the time of the administrative hearing. Tr. 27. Plaintiff has a high school education and past relevant work experience as a truck driver, dispatcher, construction laborer, and infantry crewmember. Tr. 26-27, 188-89.

         SEQUENTIAL DISABILITY ANALYSIS

         A 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. § 423(d)(1)(A). Disability claims are evaluated according to a five-step procedure. See, e.g., Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009). The claimant bears the ultimate burden of proving disability. Id.

         In the 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. 137 at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether the impairment meets or equals “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.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity to perform “past relevant work.” 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can, 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. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity after his alleged onset date of December 29, 2014. Tr. 21. Next, at steps two and three, the ALJ determined that Plaintiff has the following severe impairments: “lumbar spine neural foraminal stenosis; bilateral hip labral tear; status post hip arthroscopy; headaches/migraines; posttraumatic stress disorder; and major depressive disorder.” Tr. 21. However, the ALJ determined that Plaintiff's impairments did not meet or medically equal the severity of a listed impairment. Tr. 21. At step four, the ALJ concluded that Plaintiff has the residual functional capacity to perform less than sedentary work as defined in 20 C.F.R. § 404.1567(a) with the following limitations:

The claimant is limited to lifting and/or carrying 10 pounds occasionally and less than 10 pounds frequently. He is limited to standing and/or walking a total of two hours and sitting for a total of six hours in an eight hour day, with normal breaks. The claimant is limited to no more than occasional climbing of ramps or stairs and no climbing of ladders, ropes, or scaffolds. The claimant is limited to no more than occasional balancing, stooping, kneeling, crouching, and crawling. The claimant is limited to understanding and carrying out simple instructions. He is limited to no more than occasional and brief contact with the general public and coworkers.

Tr. 23. Because of these limitations the ALJ concluded that Plaintiff could not perform his past relevant work as a truck driver, dispatcher, construction laborer, and infantry crewmember. Tr. 26. But at step five the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as “eyeglass assembler, ” “jewelry preparer, ” and “retail surveillance monitor.” Tr. 27. Thus, the ALJ concluded that Plaintiff is not disabled. Tr. 28.

         STANDARD OF REVIEW

         The reviewing court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence” means “more than a mere scintilla, but less than preponderance.” Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). It is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id.

         The court must weigh the evidence that supports and detracts from the ALJ's conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)). The reviewing court may not substitute its judgment for that of the Commissioner. Id. (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); see also Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is a rational reading. Id.; see also Batson, 359 F.3d at 1193. However, the court cannot not rely upon reasoning the ALJ did not assert in affirming the ALJ's findings. Bray, 554 F.3d at 1225-26 (citing SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)).

         DISCUSSION

         Plaintiff contends that the ALJ erred by (1) improperly discrediting Plaintiff's symptom testimony; (2) ignoring the opinion of Plaintiff's examining doctor, John Gardin, PhD; (3) improperly discounting the opinion of Plaintiff's treating counselor, Susan Aviotti, MS, LPC; (4) improperly rejecting Plaintiff's 100% VA disability rating; (5) improperly discounting the lay witness testimony of Plaintiff's wife, Amanda Henderson; and (6) improperly conducting her Step 5 analysis. Pl. Br. 9-20, ECF 15. Because the ALJ erred in ignoring the opinion of Plaintiff's examining doctor, the Commissioner's decision is reversed and remanded for further proceedings.

         I. Credibility Determination

         The ALJ is responsible for determining credibility. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). In assessing a claimant's testimony regarding subjective pain or the intensity of symptoms, the ALJ engages in a two-step analysis. 20 C.F.R. §§ 404.1529, 416.929. The first stage is a threshold test in which the claimant must present objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage of this analysis, absent affirmative evidence of malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. Carmickle v. Comm'r Soc. Sec. Admin, 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter, 504 F.3d at 1036.

         The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Factors the ALJ may consider when making such determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, and inconsistencies in the testimony. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039. In addition, conflicts between a claimant's testimony and the objective medical evidence in the record can undermine a claimant's credibility. Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).

         When the ALJ's credibility findings are supported by substantial evidence in the record, the reviewing court “may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). However, a general assertion that plaintiff 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); see also Morgan, 169 F.3d at 599.

         Plaintiff has severe impairments of lumbar spine neural foraminal stenosis, bilateral hip labral tear, status post hip arthroscopy, headaches/migraines, posttraumatic stress disorder (“PTSD”), and major depressive disorder. Tr. 21. Plaintiff previously served in the Marine Corps as an infantry squad leader and as a member of a cleaning crew, a truck driver, and a dispatcher. Tr. 38-40. He testified that in his most recent job as a dispatcher, he was allowed to work at his own pace as long as he got his work done. Tr. 45. He was also able to take breaks if he was getting too stressed or worked up and could do “pretty much whatever [he] wanted.” Tr. 46.

         Plaintiff testified that he stopped working as a dispatcher because his employer was “getting rid of [his] position.” Tr. 41. But he believes that the true reason he lost his job is because he was vocal about his dissatisfaction with his new boss. Tr. 41-42, 46. Plaintiff testified that towards the end of his employment, his employer began to give him more responsibilities, which limited his ability to take breaks to calm down. Tr. 46. He also testified that he was unable to obtain another truck driving job because the industry is small and “a lot of guys learned that [he] was outspoken and vocal about certain things and . . . wouldn't take the regular BS most drivers would.” Tr. 43. He said he was “known . . . for either getting migraines and taking time off or just blowing up and start throwing things around the yard.” Tr. 43. Plaintiff testified that he ultimately applied for disability because going back to work would require him to sacrifice his family. Tr. 46. Specifically, Plaintiff said that when he was working he would prioritize the needs of the men he worked with. Tr. 46. He would “drop everything” for his ...


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