United States District Court, D. Oregon
MARK J. KENNEDY, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
Richard F. McGinty McGINTY & BELCHER, ATTORNEYS Attorney
J. Williams UNITED STATES ATTORNEY District of Oregon Renata
Gowie ASSISTANT UNITED STATES ATTORNEY.
L. Martin SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of
the General Counsel Social Security Administration.
OPINION & ORDER
A. HERNANDEZ, UNITED STATES DISTRICT JUDGE
Mark Kennedy brings this action seeking judicial review of
the Commissioner's final decision to deny disabled
child's insurance benefits. This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). I reverse the
Commissioner's decision and remand this case for an award
applied for child's insurance benefits in November 2011,
alleging an onset date of February 28, 1994. Tr. 234-37,
242-43. His application was denied initially and on
reconsideration. Tr. 74-78, 99, 116-20 (Initial); Tr. 80-86,
125-29 (Recon.). On September 25, 2013, Plaintiff appeared,
with counsel, for a hearing before an Administrative Law
Judge (ALJ). Tr. 46-73. On November 6, 2013, the ALJ found
Plaintiff not disabled. Tr. 87-104. On May 8, 2015, the
Appeals Council remanded the case back to the ALJ. Tr.
December 8, 2015, a different ALJ conducted a second hearing.
Tr. 32-43. Plaintiff's counsel appeared at the hearing,
but Plaintiff himself did not. Tr. 32-34; see also
Tr. 16 (Mar. 2016 ALJ decision noting that Plaintiff waived
his right to appear and offer new testimony, but that
Plaintiff's representative appeared, new exhibits were
entered into the record, and the ALJ would rely on
Plaintiff's testimony from the earlier hearing). In a
March 17, 2016 decision, the ALJ found Plaintiff not
disabled. Tr. 13-31. The Appeals Council denied review. Tr.
alleges disability based on having Asperger's Syndrome,
Tourette's Syndrome, attention deficit disorder, and
obsessive compulsive disorder. Tr. 260. At the time of the
September 25, 2013 hearing, he was forty-one years old. Tr.
50. He is a college graduate and has no past relevant work
experience. Tr. 52, 69.
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 turned
twenty-two years old before his alleged onset date and had
not engaged in substantial gainful activity since his alleged
onset date. Tr. 18. Next, at step two, the ALJ determined
that before age twenty-two, Plaintiff had severe impairments
of severe adjustment disorder consistent with Asperger's
Syndrome, attention deficit disorder, Tourette's
Syndrome, obsessive compulsive disorder, and adjustment
disorder with severe anxiety and depression. Tr. 18-19.
However, at step three, the ALJ found that Plaintiff's
impairments did not meet or equal, either singly or in
combination, a listed impairment. Tr. 19-20.
four, the ALJ concluded that before age twenty-two, Plaintiff
had the RFC to perform a full range of work at all exertional
levels. Tr. 20. However, Plaintiff had the following
non-exertional limitations: (1) he was limited to simple,
routine tasks consistent with unskilled work and a reasoning
level of two as defined by the Dictionary of Occupational
Titles (DOT); (2) he was limited to occasional interaction
with supervisors and coworkers but no interaction with the
public, to include, especially, children; (3) he cannot be
exposed to cleaning fluid solvents, dust, smoke, fumes,
odors, and loud noises; (4) he would be off task nine percent
of an eight-hour day in addition to normal breaks; (5) he
would be absent one day per month; and (6) he was limited to
goal-oriented work and was unable to perform at a production
rate pace. Tr. 20-24. Because Plaintiff has no past relevant
work, the ALJ moved to step five. With this RFC, the ALJ
determined that Plaintiff was able to perform jobs that exist
in significant numbers in the economy such as assembler and
garment sorter. Tr. 24-25. Thus, the ALJ determined that
Plaintiff is not disabled. Tr. 26.
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
asserts that the ALJ made the following errors: (1) rejecting
Plaintiff's subjective testimony as not credible; (2)
creating ambiguity about which of Plaintiff's impairments
are severe at step two; (3) improperly rejecting the opinions
of treating practitioners; (4) failing to find that Plaintiff
had a listed impairment at step three; (5) improperly
rejecting lay witness testimony; and (6) failing to address a
conflict between the DOT and the jobs identified by the
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).
cited the appropriate credibility analysis. Tr. 23-24. The
ALJ then determined that although Plaintiff has mental health
impairments affecting his level of functioning, there was no
objective evidence from the relevant time period consistent
with his allegations. Tr. 23; see also Tr. 24
(finding that Plaintiff's "medically determinable
impairments could reasonably be expected to cause the alleged
symptoms" but that Plaintiff's "statements
concerning the intensity, persistence and limiting effects of
these symptoms are not entirely credible for the reasons
explained in this decision").
found that Plaintiff's subjective symptom allegations
were inconsistent with "the intensity, persistence and
functionally limiting effects of the symptoms demonstrated in
the medical record of evidence" and with Plaintiff's
activities of daily living. Tr. 24. Defendant characterizes
the ALJ's first reason as an inconsistency with the
"objective medical evidence." Def.'s Brief 13,
ECF 16. Lack of support in the objective medical record is
one reason an ALJ may put forth to support a negative
credibility determination. 20 C.F.R. § 404.1529(c). It
may not be the sole reason, however. Rollins v.
Massanari, 261 F.3d 853, 857 (9th Cir. 2001)
("While subjective pain testimony cannot be rejected on
the sole ground that it is not fully corroborated by
objective medical evidence, the medical evidence is still a
relevant factor in determining the severity of the
claimant's pain and its disabling effects."). Here,
however, as indicated below, the record lacks objective
evidence in the form of diagnostic testing or mental status
evaluations. And, the ALJ's statement does not refer to
objective medical evidence but rather to the symptoms
described in the medical record of evidence. This suggests
that the ALJ referred not to objective medical testing but to
subjective symptoms reported by Plaintiff, or perhaps a
family member, to a practitioner who recorded that report in
a medical record.
however, of whether the intended reference is to an
inconsistency with the objective medical evidence or with a
reported subjective symptom in a medical record, the ALJ
failed to provide sufficient specificity to meet the required
standard. "[G]eneral findings are insufficient."
Treichler v. Comm'r, 775 F.3d 1090, 1103 (9th
Cir. 2014) (internal quotation marks omitted). The ALJ is
required to "explain what evidence undermines the
testimony." Id. (internal quotation marks
omitted); see also Scott v. Colvin, No.
3:13-cv-00502-HZ, 2014 WL 1096200, at *7 (D. Or. Mar. 18,
2014) (in regard to lay witness testimony, while the ALJ
"may reject such testimony based on lack of support by
the objective medical record, there still must be sufficient
discussion of that issue"; noting that the ALJ's
finding that lay testimony was inconsistent with "the
bulk of the medical evidence of record" was insufficient
to allow meaningful review). Here, the ALJ failed to identify
what particular "symptoms demonstrated in the medical
record of evidence" he refers to. Thus, I do not
consider this reason as a valid basis upon which to reject
Plaintiff's activities of daily living, Plaintiff
testified that during the relevant time period he was a
student at Oregon State University (OSU). Tr. 51-58. He lived
with his parents who drove him to and from school. Tr. 51. He
took four classes his first quarter but determined that was
too many. Tr. 51-52. He then took no more than two classes at
a time. Id. He attended for five or six years,
obtaining a bachelor's degree in mathematical science in
approximately 1995 or 1996. Tr. 52-53. He graduated with a
3.0 to 3.3 grade point average. Tr. 54. He attended classes
each day and believed he took all required tests. Tr. 53. He
had obsessive compulsive disorder (OCD) at the time.
Id. When asked if the OCD interfered with his
ability to go to college, Plaintiff answered by stating that
he was worried about gum under the desks. Id. That
concern made him look under the classroom seats before
sitting in one of them to make sure there was no gum. Tr.
53-54. If he found gum, he tried to avoid sitting in that
seat. Id. Once a seat was checked, however, he would
sit down. Id. He always found a seat that was okay.
Id. He never missed any classes because he could not
sit down in the seat. Id. Plaintiff also needed a
note taker as a result of his attention deficit disorder
which interfered with his ability to pay attention. Tr. 54.
He also had accommodations of being allowed to take open-book
examinations and extra time to take them. Tr. 55. On
follow-up questioning by counsel during the hearing,
Plaintiff reiterated that the main problem from his OCD
during the relevant time period was mostly being worried
about gum under the desk and flies. Tr. 56. He was also
allergic to cigarette smoke. Id. He is afraid of
birds. Tr. 56-57.
described Plaintiff's allegations as "his OCD
prevented him from being around people and touching objects
where people have been[.]" Tr. 24. He then rejected
Plaintiff's testimony as "not fully credible based
on his ability to attend college." Id. The ALJ
explained that while Plaintiff's college experience was
more limited than his peers, there "is no objective
evidence showing that he would have been unable to perform a
simple, repetitive, and routine job with few demands.