United States District Court, D. Oregon
TERESA M. Plaintiff,
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.
OPINION AND ORDER
Malcolm F. Marsh United States District Judge.
Teresa M. seeks judicial review of the final
decision of the Commissioner of Social Security denying her
applications for a period of disability and disability
insurance benefits ("DIB") and supplemental
security income ("SSI") under Titles II and XVI of
the Social Security Act, 42 U.S.C. §§ 401-403, and
1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). For the reasons that
follow, the court affirms Commissioner's decision.
AND FACTUAL BACKGROUND
protectively filed her application for SSI on June 21, 2013.
Plaintiff protectively filed her application for a period of
disability and DIB benefits on July 16, 2013. In both
applications, Plaintiff alleges disability beginning March 1,
2002, due to PTSD, agoraphobia, fear of driving, suicidal
thoughts, obesity, type II diabetes, kidney failure, severe
muscle cramping, scoliosis, bad arms and legs, severe sleep
apnea, right leg shorter than left leg, fibromyalgia, MRS A,
five hernias, asthma, high blood pressure, memory loss,
severe irritable bowel syndrome, status post gallbladder
removal, knee injury, full hysterectomy, bad shoulders, left
eye cataract, hip problems, severe insomnia, depression,
chronic nausea, chronic diarrhea, chronic heart burn, and
persistent headaches. Tr. Soc. Sec. Admin. R.
("Tr.") 29, 87, ECF No. 7. Plaintiffs claims were
denied initially and upon reconsideration. Plaintiff filed a
request for a hearing before an administrative law judge
("ALJ"). The ALJ held a hearing on May 14, 2015, at
which Plaintiff appeared with her attorney and testified. A
vocational expert, Nancy E. Bloom, also appeared at the
hearing and testified. At the hearing, Plaintiff amended her
alleged onset date to June 21, 2013, and dismissed her claim
for Title II benefits. Tr. 49. On July 27, 2015, the ALJ
issued an unfavorable decision. The Appeals Council denied
Plaintiff s request for review, and therefore, the ALJ's
decision became the final decision of the Commissioner for
purposes of review.
was 35 years old on the alleged onset of disability date and
was 50 years old on the date of the hearing. Tr. 38, 104,
143. Plaintiff obtained a GED and has past relevant work as a
certified nursing assistant. Tr. 37.
ALJ'S DISABILITY ANALYSIS
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, 416.920. Each step is potentially
dispositive. The claimant bears the burden of proof at steps
one through four. Garrison v. Colvin, 759 F.3d 995,
1010 (9th Cir. 2014). At step five, the burden shifts to the
Commissioner to show that the claimant can do other work
which exists in the national economy. Hill v.
Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012).
one, the ALJ found that Plaintiff has not engaged in
substantial gainful activity since her alleged onset of
disability. At step two, the ALJ found that Plaintiff has the
following severe impairments: degenerative joint disease of
the bilateral shoulders, degenerative joint disease of the
left hip and left knee, morbid obesity, diabetes mellitus
with peripheral neuropathy, chronic obstructive pulmonary
disorder ("COPD"), asthma, affective disorder,
anxiety disorder, attention deficit hyperactivity disorder,
obsessive-compulsive disorder, borderline personality
disorder, and post-traumatic stress disorder. At step three,
the ALJ found that Plaintiffs impairments, or combination of
impairments, did not meet or medically equal a listed
assessed Plaintiff with a residual functional capacity
("RFC") to perform sedentary work with additional
[Plaintiff] requires the option to alternate between sitting
and standing, at will, while remaining on-task. She may not
climb, kneel, crouch, or crawl. She occasionally may bend and
stoop. [Plaintiff] is limited to occasional overhead reaching
bilaterally. She should avoid all exposure to pulmonary
irritants, such as fumes, odors, dusts, gases, or poor
ventilation. She also should avoid all exposure to workplace
hazards, such as unprotected heights or moving mechanical
parts. [Plaintiff] is limited to performing simple routine
tasks, which can be learned within 30 days and which do not
require more than superficial (defined as casual or
perfunctory) interaction with coworkers and the public.
four, the ALJ found that Plaintiff is unable to perform her
past relevant work. At step five, the ALJ found that
considering Plaintiffs age, education, work experience, and
residual functional capacity, jobs exist in significant
numbers in the national economy that Plaintiff can perform,
including such representative occupations as: addresser,
semiconductor wafer breaker, and document preparer.
Accordingly, the ALJ concluded that Plaintiff has not been
under a disability under the Social Security Act through July
appeal to this court, Plaintiff contends the following errors
were committed: (1) the ALJ improperly evaluated her
testimony; (2) the ALJ improperly evaluated the opinion of
Dr. Santana; (3) the ALJ erred by failing to find her
fibromyalgia a medically determinable impairment at step two;
and (4) the ALJ erred at step five. The Commissioner argues
that the ALJ's decision is supported by substantial
evidence and is free of legal error. Alternatively, the
Commissioner contends that even if the ALJ erred, Plaintiff
has not demonstrated harmful error.
district 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); Trevizo v. Berryhill, 871
F.3d 664, 674 (9th Cir. 2017). "Substantial evidence is
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." Hill, 698
F.3d at 1159; (internal quotations omitted);
Garrison, 759 F.3d at 1009. The court must weigh all
the evidence, whether it supports or detracts from the
Commissioner's decision. Trevizo, 871 F.3d at
675; Garrison, 759 F.3d at 1009. The
Commissioner's decision must be upheld, even if the
evidence is susceptible to more than one rational
interpretation. Batson v. Commissioner Soc. Sec.
Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). If the
evidence supports the Commissioner's conclusion, the
Commissioner must be affirmed; "the court may not
substitute its judgment for that of the Commissioner."
Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001); Garrison, 759 F.3d at 1010.
The ALJ Did Not Err in Discounting Plaintiffs
determine whether a claimant's testimony regarding
subjective pain or symptoms is credible, an ALJ must perform
two stages of analysis. Trevizo, 871 F.3d at 678; 20
C.F.R. § 416.929. The first stage is a threshold test in
which the claimant must produce 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 the credibility 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. Commissioner Soc. Sec. Admin., 533 F.3d
1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue,
504 F.3d 1028, 1036 (9th Cir. 2007).
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); Tommasetti, 533 F.3d at 1039. Factors the ALJ
may consider when making such credibility determinations
include the objective medical evidence, the claimant's
treatment history, the claimant's daily activities,
inconsistencies in testimony, effectiveness or adverse side
effects of any pain medication, and relevant character
evidence. Ghanim, 763 F.3d at 1163;
Tommasetti, 533 F.3d at 1039.
hearing, Plaintiff testified that in the previous two years,
she has not received any ongoing mental health counseling,
but instead discussed her mental health conditions with her
primary care physician Castel Santana, M.D. Tr. 55-56.
Plaintiff indicated that Dr. Santana treated her for a number
of issues, including depression, anxiety, and COPD. Tr.
56-57. Plaintiff indicated that in a typical day, she stays
in her apartment and keeps to herself and reads or watches
television. Tr. 58. Plaintiff testified that her left hip is
rubbing "bone on bone" and that six months earlier,
she had an injection in her hip. Tr. 60. Plaintiff stated
that prior to the injection, she was trying to ride her
stationary bike and trying to lift a few weights for
exercise. Tr. 60.
testified that in July 2014, she and her son unloaded bags of
pellets from a pickup truck for her father's pellet
stove. Tr. 58. Plaintiff stated that she dragged the bags of
pellets in the bed of the pickup, then let it fall from the
bed of the pickup to the ground, and then her son picked up
the bag and put it in the garage for her parents. Tr. 59.
Plaintiff stated that she wanted to help her parents because
her father has Parkinson's disease. Tr. 59. Plaintiff
testified that she has fibromyalgia and tears in her
shoulders, and that she should not have been lifting and
dragging 40 pound bags of pellets. Tr. 60.
testified that she is right hand dominant and she can pick up
a gallon of milk with her left arm. Tr. 60-61. Plaintiff
testified that once a week she shops at the grocery store
with her daughter for 25 minutes, but that she is panicked
the whole time, and she does not like to be around people.
Tr. 61-62. Plaintiff described that she lives by herself, and
her adult daughter comes over to assist with washing dishes,
and occasionally brings her meals. Tr. 62. Plaintiff
testified that she smokes half a pack of cigarettes per day
and has asthma and COPD. Tr. 63.
stated that she cannot work due to her unpredictable
diarrhea, pain in her arms and legs, and her inability to be
around people. Tr. 66. Plaintiff described that she feels
overwhelmed by people in public. Tr. 74. Plaintiff testified
that she worked as a certified medication assistant
("CMA") passing out medications at a nursing home
and hospital. ...