United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge
R. (“Plaintiff”) brings this action for judicial
review of the Commissioner's decision denying her
applications for disability insurance benefits
(“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social
Security Act (“the Act”). This court has
jurisdiction under 42 U.S.C. § 405(g).
10, 2013, Plaintiff filed an application for DIB and SSI,
alleging disability as of May 30, 2011. After a hearing, the
administrative law judge (“ALJ”) determined
Plaintiff was not disabled under the Act from May 30, 2011,
through the date of the decision. Tr. 75-85.Plaintiff argues
the ALJ erred by improperly discounting Plaintiff's
subjective symptom testimony, erroneously rejecting the
medical opinions of Dr. Gomes, Dr. Dobles, and Licensed
Marriage and Family Therapist (“LMFT”) Kammerer,
improperly rejecting the lay witness testimony of
Plaintiff's friend, and incorrectly finding that
Plaintiff could perform other work. Because the
Commissioner's decision is not based on proper legal
standards and not supported by substantial evidence the
Commissioner's decision is REVERSED and this case is
REMANDED for further proceedings.
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 of
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, I review the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th
Cir. 1989). “If the evidence can reasonably support
either affirming or reversing, ‘the reviewing court may
not substitute its judgment' for that of the
Commissioner.” Gutierrez v. Comm'r of Soc. Sec.
Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting
Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir.
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520 & 416.920. The
initial burden of proof rests upon the claimant to meet the
first four steps. If the claimant satisfies his burden with
respect to the first four steps, the burden shifts to the
Commissioner at step five. 20 C.F.R. §§ 404.1520
& 416.920. At step five, the Commissioner must show that
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 Commissioner fails to meet
this burden, then the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v) & 416.920(a)(4)(v). If,
however, the Commissioner proves that the claimant is able to
perform other work existing in significant numbers in the
national economy, the claimant is not disabled.
Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th
was 27 years old on her alleged onset date. Tr. 139. She has
past relevant work as a gas station attendant and mold maker.
Tr. 84. She alleged disability based on posttraumatic stress
disorder (“PTSD”), social anxiety, borderline
bipolar disorder, and depression. Tr. 139. The ALJ found
Plaintiff's testimony not entirely credible. Tr. 80-81.
The ALJ determined Plaintiff had the severe impairments of:
depression, PTSD, anxiety, panic disorder, and alcohol abuse.
Tr. 78. Ultimately, the ALJ resolved that Plaintiff retained
the RFC to perform a full range of work at all exertional
levels, except she was limited to simple, repetitive, routine
tasks requiring no more than occasional interaction with
supervisors and no more than brief, infrequent, superficial
contact with co-workers and the general public. Tr. 80. The
VE opined someone with Plaintiff's RFC as constructed by
the ALJ could perform the jobs of janitor,
housekeeper/cleaner, and printed product assembler. Tr. 84.
Therefore, the ALJ concluded Plaintiff was not disabled under
the Act. I address each of Plaintiff's argument in turn.
preliminary matter, I note that the living situation
Plaintiff described was somewhat unusual. Plaintiff and her
son live with a man (“Bob”) and she apparently
performs a number of live-in housekeeping and farming chores
in lieu of rent. Tr. 80-81, 306, 394. Bob is referred to
throughout the record interchangeably as her friend, boss,
landlord, roommate, employer, and co-parent. Tr. 17, 394,
411, 439, 447, 463, 466, 745, 771.
Weight of the Claimant's Testimony
argues that the ALJ erred in finding Plaintiff not fully
credible. “Where, as here, Claimant has presented
evidence of an underlying impairment and the government does
not argue that there is evidence of malingering, we review
the ALJ's rejection of her testimony for ‘specific,
clear and convincing reasons.'” Burrell v.
Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (quoting
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.
2012)). An 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, 674
F.3d at 1112 (quoting Fair v. Bowen, 885 F.2d 597,
603 (9th Cir. 1989)). The ALJ “may consider a range of
factors in assessing credibility.” Ghanim v.
Colvin, 763 F.3d 1154, 1163 (9th Cir. 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 1028, 1040 (9th
Cir. 2007). However, a negative credibility finding made
solely because the claimant's symptom testimony “is
not substantiated affirmatively by objective medical
evidence” is legally insufficient. Robbins v. Soc.
Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006).
Nonetheless, the ALJ's credibility finding may be upheld
even if not all of the ALJ's rationales for rejecting
claimant testimony are upheld. See Batson, 359 F.3d
relied on Plaintiff's activities of daily living in
discounting her subjective symptom testimony. An ALJ may
consider a claimant's activities of daily living in
assessing whether those activities contradict her testimony
about symptoms or functional limitations, or in assessing
whether those activities represent functional capacities that
are transferable to the workplace. Orn v. Astrue,
495 F.3d 625, 639 (9th Cir. 2007). Here, the ALJ discounted
Plaintiff's testimony based on the latter. The ALJ cited
Plaintiff's ability to go shopping, play with her son,
help her son with homework, perform various household chores
including meal preparation and housekeeping, as well as her
ability to attend occasional family events “such as
school concerts, summer camps, weddings, and funerals.”
Tr. 80. The ALJ also cited the fact that Plaintiff served as
a “live-in housekeeper in lieu of rent, ” and she
took care of her son and two nephews. Tr. 80-81. The ALJ
found that “[s]uch activities reasonably suggest she
retains significant work-related functioning.” Tr. 80.
were some indications in the record that Plaintiff struggled
at times to complete her chores and Plaintiff cites a few
isolated instances in which Bob performed some of the
housework instead of Plaintiff; however, the overwhelming
weight of the evidence supports the ALJ's finding that
Plaintiff's activities represented functional capacities
transferable to the workplace. Tr. 488, 492, 554, 558, 591,
735, 791. In addition to cleaning, laundry, and cooking,
Plaintiff cared for four cats, one dog, 15 laying hens, two
roosters, five butchering chickens, two pigs, and one cow.
Tr. 308, 394. Plaintiff tended a large garden, harvested the
vegetables, and canned or froze the excess crops. Tr. 35, 37,
308, 401. Plaintiff described her farm work as
“intense” and “ongoing.” Tr. 591.
Between cleaning and farming duties, she reported ...