United States District Court, D. Oregon
VANESSA D. HALE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
J. Wall Attorney for Plaintiff.
J. Williams UNITED STATES ATTORNEY District of Oregon Renata
Gowie ASSISTANT UNITED STATES ATTORNEY Kathryn A. Miller
SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the
General Counsel Attorneys for Defendant.
OPINION & ORDER
A. Hernandez United States District Judge.
Vanessa Hale brings this action seeking judicial review of
the Commissioner's final decision to deny disability
insurance benefits (DIB) and supplemental security income
(SSI). This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)).
I reverse the Commissioner's decision and remand for
applied for DIB and SSI in August 2013, alleging an onset
date of May 15, 2010. Tr. 229-29, 230-33. Her applications
were denied initially and on reconsideration. Tr. 167-71
(Initial); 124-63, 173-78 (Recon.). On August 13, 2015,
Plaintiff appeared, with counsel, for a hearing before an
Administrative Law Judge (ALJ). Tr. 44-71. On November 4,
2015, the ALJ found Plaintiff not disabled. Tr. 17-43. The
Appeals Council denied review. Tr. 1-6.
alleges disability based on right leg pain, left leg pain,
anxiety, depression, and back pain. Tr. 254. At the time of
the hearing, she was forty-nine years old. Tr. 50 (testifying
to date of birth). She is a high school graduate and has past
relevant work experience as a ticket taker, gate
attendant/bouncer, service station attendant, fast food
worker, game attendant, cook, and food service supervisor.
Tr. 51, 64-65.
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.
Tr. 22. Next, at step two, the ALJ determined that Plaintiff
has severe impairments of lumbar radiculopathy, arthritis,
status/post back surgery, status/post right leg fracture,
adjustment disorder with mixed anxiety and depressed mood,
borderline intellectual functioning, and cocaine abuse. Tr.
23. However, at step three, the ALJ determined that
Plaintiff's impairments did not meet or equal, either
singly or in combination, a listed impairment. Tr. 25-28.
four, the ALJ concluded that Plaintiff has the RFC to perform
light work as defined in 20 C.F.R. §§ 404.1567(b)
and 416.967(b), meaning she can lift and/or carry 20 pounds
occasionally and 10 pounds frequently. Tr. 29. The ALJ's
RFC includes several additional limitations as follows: (1)
she can stand and/or walk for two hours in an eight-hour
workday with normal breaks and she can sit for up to eight
hours in an eight-hour workday with normal breaks, but she
must be allowed to alternate sitting and standing such that
she can sit for an hour and then be permitted to stand for
five to ten minutes before returning to a seated position,
which can occur throughout the eight-hour workday without a
need to leave the workstation; (2) she should not perform
work that requires the operation of foot controls; (3) she
can occasionally climb ramps or stairs but can never climb
ladders, ropes, or scaffolds; (4) she can occasionally
balance, stoop, kneel, crouch, or crawl; (5) she must avoid
exposure to excessive vibration such as jackhammers; (6) she
must avoid all exposure to hazards, such as unprotected
heights or dangerous machinery; (7) she can remember,
understand, and carry-out tasks or instructions consistent
with occupations that are rated with specific vocational
preparation (SVP) level of 1 or 2; (8) she would do best in a
job that did not require the use of math skills that exceed a
third-grade level; (9) she can have superficial, incidental
interaction with the general public; and (10) she can work in
proximity with co-workers but she will do best in a job that
does not require teamwork. Id.
this RFC, the ALJ determined that Plaintiff is unable to
perform any of her past relevant work. Tr. 36. However, at
step five, the ALJ determined that Plaintiff is able to
perform jobs that exist in significant numbers in the economy
such as assembler and small products assembler. Tr. 37-38.
Thus, the ALJ determined that Plaintiff is not disabled. Tr.
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
alleges that the ALJ made two errors: (1) she improperly
found Plaintiff's subjective limitations testimony not
credible, and (2) she improperly rejected the opinion of an
examining physician. She also contends that the Appeals
Council erred by declining to review the ALJ's decision
in light of new and material evidence.
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). The ALJ may also consider the ability to
perform household chores, the lack of any side effects from
prescribed medications, and the unexplained absence of
treatment for excessive pain. Id.; see also
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008) ("The ALJ may consider many factors in weighing a
claimant's credibility, including (1) ordinary techniques
of credibility evaluation, such as the claimant's
reputation for lying, prior inconsistent statements
concerning the symptoms, and other testimony by the claimant
that appears less than candid; (2) unexplained or
inadequately explained failure to seek treatment or to follow
a prescribed course of treatment; and (3) the claimant's
daily activities.") (internal quotation marks omitted).
Ninth Circuit explained in Molina;
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).
recited the correct two-step credibility analysis. Tr. 29.
She then summarized Plaintiff's testimony, noting
statements Plaintiff had made either to medical practitioners
or in her Adult Function Report. Tr. 29-30. The ALJ stated
that in March 2012, Plaintiff told examining psychologist
Roderick Calkins, Ph.D., that she was unable to work because
of back and leg pain. Tr. 30 (citing (Tr. 533-34, 540). She
expressed an inability to stand because of her leg.
Id. In her August 2013 Adult Function Report,
Plaintiff stated that back pain made it difficult to stand,
bend, or sit, and leg pain limited standing, kneeling, and
walking. Tr. 30 (citing Tr. 263). She complained that stomach
issues caused her to frequently run to the bathroom and that
depression made it difficult to ...