United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Yim You United States Magistrate Judge.
Mark Peterson (“Peterson”), seeks judicial review
of the final decision by the Commissioner of Social Security
(“Commissioner”) denying his application for
Title II Disability Insurance Benefits (“DIB”)
and Title XVI Social Security Income (“SSI”)
under the Social Security Act (“Act”). This court
has jurisdiction to review the Commissioner's decision
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). All
parties have consented to allow a Magistrate Judge to enter
final orders and judgment in this case in accordance with
FRCP 73 and 28 USC § 636(c). ECF #4. For the reasons set
forth below, the Commissioner's decision is REVERSED and
this case is REMANDED for further proceedings.
February, 1962, Peterson was 47 years old on the alleged
onset date. Tr. 105, 282. Peterson graduated high school and has
not completed any post-secondary coursework. Tr. 369. He has
past work experience as a truck driver, cannery worker, and
fish filleter. Tr. 23.
initially filed applications for SSI and DIB on October 25,
2010. Tr. 87. He alleged disability beginning July 3, 2009.
Id. His applications were denied initially and upon
reconsideration. Id. On May 16, 2012, a hearing was
held before an Administrative Law Judge (“ALJ”),
wherein Peterson was represented by counsel and testified, as
did a vocational expert (“VE”). Tr. 31-50. On May
22, 2012, the ALJ issued a decision finding Peterson not
disabled within the meaning of the Act. Tr. 87-100. Peterson
did not appeal this decision.
August 1, 2012, Peterson filed new applications for SSI and
DIB. Tr. 259, 265. Peterson again alleged disability
beginning July 3, 2009, due to scoliosis, angina, anxiety,
and depression. Tr. 105. His applications were denied
initially and on reconsideration. Tr. 13, 181-88, 190-94. On
March 5, 2015, a second hearing was held, and on March 27,
2015, a second ALJ issued a decision finding Peterson not
disabled. Tr. 13-25, 53-83. After the Appeals Council denied
his request for review, Peterson filed a complaint in this
court. Tr. 1-6. The ALJ's March 27, 2015 decision is
therefore the Commissioner's final decision subject to
review by this court. 20 C.F.R. § 422.210.
reviewing 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. 42 U.S.C.
§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911
(9th Cir. 2007). This court must weigh the evidence that
supports and detracts from the ALJ's conclusion and
“‘may not affirm simply by isolating a specific
quantum of supporting evidence.'” Garrison v.
Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007)). The reviewing court may not substitute its
judgment for that of the Commissioner when the evidence can
reasonably support either affirming or reversing the
decision. Parra v. Astrue, 481 F.3d 742, 746 (9th
Cir. 2007). Instead, where the evidence is susceptible to
more than one rational interpretation, the Commissioner's
decision must be upheld if it is “supported by
inferences reasonably drawn from the record.”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
2008) (citation omitted); see also Lingenfelter, 504
F.3d at 1035.
ANALYSIS AND ALJ FINDINGS
is the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
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). The ALJ engages in a five-step sequential
inquiry to determine whether a claimant is disabled within
the meaning of the Act. This sequential analysis is set forth
in the Social Security regulations, 20 C.F.R. §§
404.1520, 416.920, in Ninth Circuit case law, Lounsburry
v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006)
(discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99
(9th Cir. 1999)), and in the ALJ's decision in this case,
one, the ALJ found that Peterson had not engaged in
substantial gainful activity after the alleged onset date.
two, the ALJ found that Peterson has the following severe
impairments: coronary artery disease, scoliosis, mild
degenerative disc disease, and anxiety disorder. Id.
three, the ALJ found Peterson did not have an impairment or
combination of impairments that met or medically equaled a
listed impairment. Id. The ALJ next assessed
Peterson's residual functional capacity
(“RFC”) and determined that he could perform
light work with the following exceptions: he is limited to
four hours standing and walking in an eight-hour workday; he
can occasionally climb ladders, ropes, scaffolds, ramps, and
stairs; he can occasionally stoop, kneel, crouch, and crawl;
he should avoid concentrated exposure to vibrations and
hazards; he is limited to occasional superficial contact with
the public and coworkers; and he is limited to simple,
routine, and repetitive tasks consistent with unskilled work.
four, the ALJ found Peterson could not perform any of his
past relevant work. Tr. 23. At step five, the ALJ determined
Peterson could perform jobs that exist in significant numbers
in the national economy, including small parts assembler and
production assembler. Tr. 24.
argues that the ALJ erred by: (1) improperly discounting his
subjective symptom testimony; (2) improperly rejecting the
medical opinion of the consultative examining psychologist,
Daniel Scharf, Ph.D. (“Dr. Scharf”); and (3)
erroneously concluding that he was capable of light work
rather than sedentary work.
Preclusive Effect of Prior Administrative Decision
preliminary matter, this court addresses the issue of res
judicata. Peterson applied for disability in 2010, and after
an administrative hearing, the ALJ found he was not disabled
for the period of July 3, 2009, through May 22, 2012. Tr.
87-100. Peterson did not appeal the previous ALJ decision,
and it became administratively final. Tr. 13. In the current
case, Peterson again alleges disability beginning July 3,
2009. Tr. 105. The principles of res judicata apply to
administrative decisions. Chavez v. Bowen, 844 F.2d
691, 693 (9th Cir. 1988). Although procedural mechanisms
exist for reopening final ALJ decisions, Peterson has not
argued that the 2012 decision should be reopened. 20 C.F.R.
§§ 404.988, 416.1488. Accordingly, the 2012
the previous ALJ decision creates a presumption of continuing
non-disability and in order to overcome that presumption, the
claimant “must prove ‘changed circumstances'
indicating a greater disability.” Chavez, 844
F.2d at 693 (citing Taylor v. Heckler, 765 F.2d 872,
875 (9th Cir. 1985)). Here, the ALJ found that Peterson's
impairments have increased in severity since that time.
Defendant's Brief, ECF #21, 2 (citing Tr. 13). Therefore,
the court evaluates whether Peterson was disabled beginning
May 23, 2012.
Subjective Symptom Testimony
alleges that the ALJ wrongfully discounted his subjective
symptom testimony. When a claimant has medically documented
impairments that could reasonably be expected to produce some
degree of the symptoms complained of, and the record contains
no affirmative evidence of malingering, “the ALJ can
reject the claimant's testimony about the severity of . .
. symptoms only by offering specific, clear and convincing
reasons for doing so.” Smolen v. Chater, 80
F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). 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, 12 F.3d 915,
918 (9th Cir. 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).
If the “ALJ's credibility finding is supported by
substantial evidence in the record, [the court] may not
engage in second-guessing.” Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation