United States District Court, D. Oregon
Scott Wayson, Attorney for Plaintiff
J. Williams UNITED STATES ATTORNEY District of Oregon
Gowie ASSISTANT UNITED STATES ATTORNEY
M. Elsberry, SPECIAL ASSISTANT UNITED STATES ATTORNEY Office
of the General Counsel Social Security Administration
Attorneys for Defendant.
OPINION & ORDER
A. Hernandez, United States District Judge
Todd C. brings this action seeking judicial review of the
Commissioner's final decision to deny disability
insurance benefits (DIB) and supplemental security income
(SSI). This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)).
I reverse the Commissioner's decision and remand for
applied for SSI and DIB on June 13, 2013, alleging an onset
date of June 1, 2002. Tr. 179-80 (DIB); 181-87 (SSI). His
applications were denied initially and on reconsideration.
Tr. 29-53, 112-19 (Initial); 54-80, 122-27 (Recon.). On
October 13, 2015, Plaintiff appeared, with counsel, for a
hearing before an Administrative Law Judge (ALJ). Tr. 2-28.
On November 10, 2015, the ALJ found Plaintiff not disabled.
Tr. 81-101. The Appeals Council denied review. Tr. 102-08.
alleges disability based on having bipolar disorder,
depression, severe anxiety, long-term memory loss, high blood
pressure, high cholesterol, and lethargy. Tr. 223. At the
time of the hearing, he was forty-two years old. Tr. 179
(showing date of birth). He is a high school graduate and has
past relevant work experience as a truck driver. Tr. 24, 224.
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 met the insured
requirements for his DIB claim through March 31, 2006, and
had not engaged in substantial gainful activity since his
alleged onset date. Tr. 86. Next, at step two, the ALJ
determined that Plaintiff has severe impairments of anxiety
disorder, bipolar disorder, depression, and substance abuse.
Tr. 86-87. 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. 87-89.
four, the ALJ concluded that Plaintiff has the RFC to perform
a full range of work at all exertional levels but has several
nonexertional limitations. Tr. 89. He can hear and understand
simple oral instructions and communicate simple information.
Id. He must avoid all exposure to unprotected
heights and moving mechanical parts. Id. He can
perform simple, routine, and repetitive tasks. Id.
He can have occasional interaction with supervisors and only
brief and superficial contact with coworkers. Id. He
can have no contact with the public. Id.
this RFC, the ALJ determined that Plaintiff is unable to
perform his past relevant work. Tr. 94. However, at step
five, the ALJ determined that Plaintiff is able to perform
jobs that exist in significant numbers in the economy such as
janitor, cleaner 2, and laundry worker. Tr. 95. Thus, the ALJ
determined that Plaintiff is not disabled. Tr. 95-96.
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
argues that the ALJ made the following errors: (1) finding
his subjective testimony not credible; (2) rejecting the
opinion of a treating practitioner; (3) failing to find him
disabled at step three; and (4) rejecting lay witness
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).
applied the correct two-step analysis. Tr. 89. The ALJ
summarized Plaintiff's subjective symptom statements
including that he has to be careful not to trigger manic
episodes, he has high anxiety which makes it difficult for
him to articulate things, he has high anxiety around
authority figures, and his anxiety is triggered by new
environments, new experiences, new people, and crowds.
Id. The ALJ also noted Plaintiff's statements
that he is introverted and has few friends and that his
medications cause memory problems and weight gain.
Id. The ALJ described features of his manic episodes
including alcohol abuse, inability to sleep, and an inability
to remember what has happened. Id.
acknowledging that Plaintiff's impairments could
reasonably be expected to cause the alleged symptoms, the ALJ
found that Plaintiff's statements concerning the
intensity, persistence, and limiting effects of those
symptoms were not credible. Tr. 89-90. First, the ALJ recited
medical evidence showing that when Plaintiff abstains from
alcohol and maintains his medication regimen, he is
"quite functional" and that after his "last
hospitalization" in March 2013, the record showed that
his symptoms had generally been stable and had continued to
be controlled with treatment. Tr. 90. Second, the ALJ found
that Plaintiff inconsistently reported the extent of his
marijuana and alcohol use which lessened the credibility of
his allegations. Tr. 92. Third, the ALJ noted that he had a
poor work history since 2000, implying that he does not
desire to work, not that he is disabled from doing so.
Id. Finally, the ALJ found that Plaintiff's
daily activities were inconsistent with his complaints of
disabling symptoms and limitations, including his alleged
limitations in social functioning. Id.
conclude that the ALJ did not fairly interpret the record
regarding Plaintiff's prior inconsistent statements as to
his past substance abuse and further, that the alleged daily
activities are not inconsistent with this testimony.
Additionally, the ALJ did not acknowledge that Plaintiff
actually stopped working in 2001, not 2000, and with an
alleged onset date of June 2002, there is no basis for
inferring that a lack of desire prevented him from working.
Finally, while the medical record generally supports the
ALJ's findings regarding Plaintiff's improvement
since March/April 2013, inconsistency with the objective
medical record alone is not a basis for rejecting a
claimant's subjective testimony.
Statements Regarding Substance Abuse
cited to Plaintiff's May 2012 report that he had had no
alcohol for three years, other than a few six-packs of beer.
Tr. 92 (citing Tr. 324). Then, in April 2013, Plaintiff
reported that he had consumed no alcohol since October 2008
but had relapsed six months ago. Id. (citing Tr.
341). The ALJ found these records to be inconsistent. But, by
referring to a relapse which had occurred six months before
April 2013, Plaintiff was indicating that the relapse
occurred in October 2012 which is after the May 2012
report. Thus, there is no inconsistency between the April
2013 record and May 2012 report of having no alcohol for
three years other than a few six packs. And, while Plaintiff
said in May 2012 that he had not had alcohol for three years,
meaning sometime in 2009, his report in April 2013 that he
had not had alcohol since late in 2008 is not so remarkably
inconsistent as to find him not ...