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Ranelle W. v. Berryhill

United States District Court, D. Oregon

August 20, 2018

RANELLE W., [1] Plaintiff
v.
NANCY A. BERRYHILL, Acting Commissioner Social Security Administration Defendant

          OPINION AND ORDER

          Michael J. McShane United States District Judge.

         Plaintiff brings this action for judicial review of a final decision of the Commissioner of Social Security denying her application for disability insurance benefits (DIB) under the Social Security Act. Tr. 19-31.[2] The Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the Commissioner's decision is AFFIRMED.

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff filed an application for DIB on April 25, 2013, alleging disability an onset date of March 28, 2013. Following a hearing, an administrative law judge (ALJ) issued an unfavorable decision denying Plaintiff's claim. The Appeals Council denied the request for review, making the ALJ's decision the final decision of the Commissioner. This appeal followed.

         STANDARD OF REVIEW

         The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “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 v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, this Court reviews the administrative record as a whole, weighing both supporting and deterring evidence from the ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). The ALJ may “reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (quoting Lingenfelter v. Astrue, 504 F.3d 1029, 1036 (9th Cir. 2007)).

         The Commissioner's findings are upheld if supported by inferences reasonably drawn from the record; if evidence exists to support more than one rational interpretation, the court must defer to the Commissioner's decision. Batson, 359 F.3d at 1193; Aukland v. Massanari, 257 F.3d 1033, 1034-35 (9th Cir. 2000). A reviewing court, however, “cannot affirm the Commissioner's decision on a ground that the Administration did not invoke in making its decision.” Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006) (citation omitted). A court may not reverse an ALJ's decision on account of a harmless error. Id. at 1055- 56. “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Shinseki v. Sanders, 556 U.S. 396, 409 (2009). The ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th. Cir. 2008). Finally, the ALJ need not discuss all evidence presented, but must explain why significant probative evidence has been rejected. Stark v. Shalala, 886 F.Supp. 733, 735 (D. Or. 1995). See also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (in interpreting the evidence and developing the record, the ALJ need not discuss every piece of evidence).

         DISCUSSION

         A claimant is disabled if he is 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. § 423(d)(1)(A). The Social Security Administration (SSA) uses a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. § 416.920, 20 C.F.R. 404.1520. The initial burden of proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner at step five. Id. At step five, the Commissioner's burden is to demonstrate the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (RFC), age, education, and work experience. Id. If the reviewing agency determines that the claimant is or is not disabled at any step of the evaluation process, the evaluation will not go onto the next step. Id.

         The ALJ found Plaintiff suffered from the following severe impairments: degenerative disk disease, minor motor seizures, depression and anxiety. Tr. 21. The ALJ found Plaintiff's RFC allowed her to perform less than the full range of light work. Tr. 23. Specifically, that Plaintiff could: frequently lift and/or carry ten pounds; occasionally lift and/or carry twenty pounds; sit, stand and/or walk six hours per eight hour workday; occasionally climb stairs; and is limited to simple routine work. Tr. 23. The Vocational Expert (VE) determined, based on the hypothetical provided by the ALJ, that Plaintiff could perform occupations that exist in significant numbers in the national economy. Tr. 30. Therefore, the ALJ concluded that Plaintiff was not disabled at any time from March 28, 2013 through January 12, 2016. Tr. 31.

         I. The ALJ Did Not Err in Evaluating Plaintiff's Subjective Symptom Testimony.

         Plaintiff argues the ALJ discredited her subjective symptom testimony without providing a clear and convincing rationale. 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. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1166 (9h Cir. 2008); Lingenfelter, 504 F.3d at 1036. The ALJ is not “required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989)). The ALJ “may consider a wide range of factors in assessing credibility.” Ghanim v. Colvin, 12-35804, 2014 WL 4056530, at *7 (9th Cir. Aug. 18, 2014). These factors can include “ordinary techniques of credibility evaluation, ” id., as well as:

(1) whether the claimant engages in daily activities inconsistent with the alleged symptoms; (2) whether the claimant takes medication or undergoes other treatment for the symptoms; (3) whether the claimant fails to follow, without adequate explanation, a prescribed course of treatment; and (4) whether the alleged symptoms are consistent with the medical evidence.

Lingenfelter v. Astrue, 504 F.3d at 1040. “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).

         It is important to note that rather than reject outright all of Plaintiff's testimony about her limitations, the ALJ instead found Plaintiff was not reliable as to the full extent of her limitations. Plaintiff alleged debilitating limitations. Plaintiff testified that although she shops for groceries without help from others, “I am paying for it the next day. I'm very, very sore.” Tr. 55. Plaintiff testified she has trouble walking up steps and essentially spends her day “in a lot of pain all the time” while sitting, laying, or walking around in her bedroom. Tr. 44-45. Plaintiff estimated spending 70% of her day lying down. Tr. 45. Plaintiff analogized her pain to someone twisting a knife in her back and twisting it around. Tr. 45-46. Plaintiff testified that “I have weakness in my leg, like I can't - I can't lift my leg. If I'm carrying ...


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