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ABE L.-S. v. Commissioner of Social Security

United States District Court, D. Oregon, Portland Division

June 21, 2018

ABE L.-S., [1] Plaintiff,
Commissioner of Social Security, [2] Defendant.



         Plaintiff Abe. L. S. brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C. § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiffs applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Act. For the reasons set forth below, the Commissioner's decision is reversed and remanded for further proceedings.


         On June 7, 2013, plaintiff filed an application for DIB that alleged disability since December 31, 2007. Tr. 19, 87, 223-24. On June 10, 2013, plaintiff filed an application for SSI that also alleged disability since December 31, 2007. Tr. 19, 87, 225-26. Plaintiff based his request for benefits on autism spectrum disorder and depression. Tr. 87. The application was denied initially and again upon reconsideration. Tr. 147-54, 159-64. Following a hearing, an Administrative Law Judge ("ALJ") found plaintiff not disabled in a written decision dated January 4, 2016. Tr. 19-41. The Appeals Council denied review, and plaintiff subsequently filed a complaint in this Court. Tr. 1-4.


         The district court must affirm the Commissioner's decision so long as 1) it is based on proper legal standards and 2) its findings are supported by substantial evidence. 42 U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). The district court reviews the record as a whole, and must weigh both evidence that supports and evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). If evidence presents the possibility for multiple interpretations and the Commissioner's decision is rational, the decision must be affirmed because "the court may not substitute its judgment for that of the Commissioner." Edhind v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).


         The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520(a)(4); id. § 416.920(a)(4). At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged onset date of December 31, 2007. Tr. 21; 20 C.F.R. §§ 404.1520(a)(4)(i), (b); id §§ 416.920(a)(4)(i), (b). At step two, the ALJ found that plaintiff had the following severe impairments: personality disorder, attention deficit hyperactivity disorder (ADHD), and fibromyalgia. Tr. 21; 20 C.F.R. §§ 404.1520(a)(4)(h), (c); id §§ 416.920(a)(4)(h), (c). At step three, the ALJ found that plaintiffs impairments, whether considered singly or combination, did not meet or equal one of the listed impairments that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. Tr. 21-22; 20 C.F.R. §§ 404.1520(a)(4)(iii), (d); id §§ 416.920(a)(4)(iii), (d).

         The ALJ found plaintiff had the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b) except that plaintiff could only occasionally climb ladders, ropes, or scaffolds; could only understand and remember simple instructions; only has sufficient concentration, persistence, and pace to complete simple, routine tasks for a normal workday and workweek with normal breaks; and could only have occasional brief, superficial interactions with the public and with co-workers. Tr. 23. At step four, the ALJ found that, through the date last insured, plaintiff was unable to perform any of his past relevant work. Tr. 39; 20 C.F.R. §§ 404.1520(a)(4)(iv), (f); id §§ 416.920(a)(4)(iv), (f).

         At step five, the ALJ found plaintiff could perform several jobs existing in significant numbers in the national economy. Tr. 39-40; 20 C.F.R. §§ 404.1520(a)(4)(v), (g); id. §§ 416.920(a)(4)(v), (g). The ALJ based this decision on plaintiffs age, education, work experience, and RFC, and determined that plaintiff could have performed the requirements of occupations like the following; motel cleaner, mail sorter, and price marker. Tr. 39-40. Accordingly, the ALJ found plaintiff not disabled and denied his application for benefits.


         Plaintiff alleges that the ALJ erred by (1) rejecting plaintiffs testimony about the severity of his symptoms and (2) rejecting the medical opinions of Dr. Loudin, Dr. Williams, and Nurse Practitioner Paul. I address each argument in turn.

         I. Plaintiff's Symptom Testimony

         Plaintiff argues the ALJ failed to provide adequate reasons under the "clear and convincing" standard to discredit plaintiffs testimony. Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014). Defendant argues the ALJ's disregard for the testimony is supported by substantial evidence and should be affirmed.

         The Ninth Circuit applies a two-step approach when reviewing the ALJ's treatment of a plaintiffs symptom testimony, First, the ALJ evaluates "whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." Id. at 1014 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)) (internal quotation marks omitted). Second, "[i]f the claimant satisfies the first step of this analysis, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of [the] symptoms only by offering specific, clear and convincing reasons for doing so." Id. at 1014-15 (internal quotation marks omitted).

         In the present case, plaintiff alleged that he was unable to work due to the combination of his physical and mental impairments. Tr. 57, In particular, plaintiff testified that his physical pain makes it difficult to walk and on his worst days he needs to use a wheelchair. Tr. 58. According to plaintiff, he suffers from invasive thoughts that make it difficult for him to concentrate. Tr. 58, He explained the invasive thoughts consist of voices in his head shouting "very bad things." Tr. 58. Plaintiff also reported that he struggles with depression and that he is constantly contemplating suicide. Tr. 58. Additionally, plaintiff testified that he has difficulty with authority, and that he has on multiple occasions lost control of his anger and yelled at his supervisors. Tr. 59.

         Ultimately, the ALJ found that plaintiffs "statement concerning the intensity, persistence and limiting effects of these symptoms are not credible." Tr. 24, The ALJ did not find, nor does defendant argue, that plaintiff malingered. Given these facts, the ALJ was required to support the rejection of plaintiff s symptom testimony with specific, clear and convincing reasons.

         The ALJ rejected plaintiffs symptom testimony for several reasons, including plaintiffs attempt to apply for two jobs after the alleged onset date, plaintiffs GAF score of 70, the Cooperative Disability Investigations Unit ...

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