United States District Court, D. Oregon
Wilborn WILBORN LAW OFFICE, P.C. Attorney for Plaintiff.
Gowie Assistant United States Attorney, Ryan Lu Social
Security Administration Office of the General Counsel
Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ, UNITED STATES DISTRICT JUDGE
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.
applied for DIB on August 18, 2015, alleging disability as of
December 29, 2014. Tr. 85. 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.
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.
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.
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.
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.
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.
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
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.
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.
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)).
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.
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.
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.
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
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.
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 ...