United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge.
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. 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.
AND FACTUAL BACKGROUND
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.
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)).
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
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.
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.
The ALJ Did Not Err in Evaluating Plaintiff's Subjective
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).
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 ...