United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
Yim You United States Magistrate Judge
(“plaintiff”), seeks judicial review of the final
decision by the Commissioner of Social Security
(“Commissioner”) denying his application for
Title II Disability Insurance Benefits (“DIB”)
under the Social Security Act (“Act”). This court
has jurisdiction to review the Commissioner's decision
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Because the Commissioner's decision is not supported by
substantial evidence, it is REVERSED and REMANDED for further
August 1979, plaintiff was 29 years old on the alleged onset
date. Tr. 30, 97. He has a high school education and has
completed some college. Tr. 30, 45. Plaintiff has past work
experience as a wafer polisher, computer mechanic, inventory
clerk, and computer parts salesperson. Tr. 29.
October 2009, plaintiff began experiencing paresthesia and
optic neuritis. Tr. 359, 373. The next month, plaintiff
continued experiencing numbness and clumsiness with his
hands. Tr. 384. Imaging revealed white matter lesions on his
spinal cord. Id. At that point, plaintiff was
diagnosed with multiple sclerosis. Tr. 405. His multiple
sclerosis was causing “significant sensory
abnormalities.” Tr. 418. In the following months,
plaintiff experienced increasing weakness and numbness. Tr.
went long stretches without seeing a neurologist because he
could not afford the co-pays. Tr. 55-56, 473. He was
eventually terminated from his treating neurologist's
care for non-payment. Tr. 454. In 2012 and 2013, plaintiff
continued to suffer from weakness, numbness, and loss
coordination in his arms and hands. Tr. 400, 425, 427, 442,
444. During severe flare-ups, plaintiff had almost no
sensation in his hands and his dexterity was limited. Tr.
239. He explained that he had trouble with buttons and
zippers, was no longer shaving, and had difficulty cleaning
himself after going to the bathroom. Tr. 241. Plaintiff was
also experiencing urinary incontinence, fatigue, and
difficulty walking due to dizziness. Tr. 378, 400, 427.
end of 2013, plaintiff was no longer able to perform yard
work, mow the lawn, garden, shave, or play video games. Tr.
61, 289-90. Activities that used to take him a few minutes,
like washing the dishes, would take him over an hour. Tr.
319. He constantly felt weak and tired, had trouble getting
around, and experienced vertigo and dizzy spells. Tr. 293,
314, 318, 322, 336, 442. Additionally, plaintiff's
productivity at work declined to a significant degree. Tr.
72-75, 310. Indeed, his employer explained that the only
reason he did not fire plaintiff was because they were
friends, noting that “it was costing [his] company
money to keep [plaintiff] around.” Tr. 73, 75-76.
During that period, due to his impairments, plaintiff
regularly came in to work late, left early, took rests on the
couch during work hours, and missed work for months at a
time. Tr. 73-74. In January 2014, plaintiff stepped down,
because even under such accommodating circumstances, he was
no longer able to do the work. Tr. 448.
filed applications for DIB and SSI on December 1, 2009,
alleging disability beginning August 1, 2009. Tr. 18.
Plaintiff's claims were initially denied on March 16,
2010, and those denials were not appealed. Id.
Plaintiff filed a new application for DIB on May 30, 2013.
Id. He alleged disability beginning on August 1,
2009, based on multiple sclerosis. Tr. 97. His application
was denied initially and upon reconsideration. Tr. 152-56,
158-60. On May 16, 2016, a hearing was held before an
Administrative Law Judge (“ALJ”), wherein
plaintiff was represented by counsel and testified, as did a
vocational expert (“VE”). Tr. 39-95. On July 6,
2016, the ALJ issued a decision finding plaintiff not
disabled within the meaning of the Act. Tr. 18-31. After the
Appeals Council denied his request for review, plaintiff
filed a complaint in this court. Tr. 1-6. The ALJ's
decision is therefore the Commissioner's final decision
subject to review by this court. 20 C.F.R. § 422.210.
reviewing court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record. 42 U.S.C.
§ 405(g); Lewis v. Astrue, 498 F.3d 909, 911
(9th Cir. 2007). This court must weigh the evidence that
supports and detracts from the ALJ's conclusion and
“‘may not affirm simply by isolating a specific
quantum of supporting evidence.'” Garrison v.
Colvin, 759 F.3d 995, 1009-10 (9th Cir. 2014) (quoting
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007)). The reviewing court may not substitute its
judgment for that of the Commissioner when the evidence can
reasonably support either affirming or reversing the
decision. Parra v. Astrue, 481 F.3d 742, 746 (9th
Cir. 2007). Instead, where the evidence is susceptible to
more than one rational interpretation, the Commissioner's
decision must be upheld if it is “supported by
inferences reasonably drawn from the record.”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.
2008) (citation omitted); see also
Lingenfelter, 504 F.3d at 1035.
ANALYSIS AND ALJ FINDINGS
is the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
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 ALJ engages in a five-step sequential
inquiry to determine whether a claimant is disabled within
the meaning of the Act. This sequential analysis is set forth
in the Social Security regulations, 20 C.F.R. §§
404.1520, 416.920, in Ninth Circuit case law, Lounsburry
v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006)
(discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99
(9th Cir. 1999)), and in the ALJ's decision in this case,
one, the ALJ found that plaintiff had not engaged in
substantial gainful activity after the alleged onset date.
two, the ALJ found that plaintiff has the following severe
impairments: multiple sclerosis, neurocognitive disorder,
organic mental disorder, and affective disorder. Tr. 21.
three, the ALJ found plaintiff did not have an impairment or
combination of impairments that met or medically equaled a
listed impairment. Tr. 22. The ALJ next assessed
plaintiff's residual functional capacity
(“RFC”) and determined that he could perform
light work with the following limitations: he could
frequently climb ramps and stairs, balance, stoop, kneel,
crouch, and crawl; he could occasionally climb ladders,
ropes, and scaffolds; he could engage in frequent bilateral
fingering, he was unable to have any exposure to extreme
heat, he could have occasional exposure to hazards such as
unprotected heights and moving mechanical parts; he was
limited to the performance of simple, routine tasks; he was
limited to simple work-related decisions; and he was limited
to occasional interaction with the public. Tr. 23.
four, the ALJ found plaintiff could not perform his past
relevant work as a wafer polisher, computer mechanic,
inventory clerk, or computer parts salesperson. Tr. 29.
five the ALJ determined that plaintiff could perform jobs
that exist in significant numbers in the national economy,
including office helper, router, and electronics worker. Tr.
argues that the ALJ (1) improperly discounted his subjective
symptom testimony; (2) erroneously assessed the medical
opinions of Dr. Hills, Dr. Smoot, Dr. Lewy, and Dr. Hennings;
(3) improperly rejected the lay witness testimony of his wife
and employer; and (4) and improperly crafted the hypothetical
to the VE.
Subjective Symptom Testimony
claimant has medically documented impairments that could
reasonably be expected to produce some degree of the symptoms
complained of, and the record contains no affirmative
evidence of malingering, “the ALJ can reject the
claimant's testimony about the severity of . . . symptoms
only by offering specific, clear and convincing reasons for
doing so.” Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996) (citation omitted). A general assertion
that the claimant is not credible is insufficient; the ALJ
must “state which . . . testimony is not credible and
what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915,
918 (9th Cir. 1993). The reasons proffered must be
“sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the
claimant's testimony.” Orteza v. Shalala,
50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).
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) (citation
hearing, plaintiff testified that his multiple sclerosis was
marked by flare-ups of diminished sensation in his hands,
which caused him to drop things. Tr. 47. He described the
reduced sensation as feeling “like I was holding two
spatulas and trying to do stuff with spatulas. I couldn't
button my pants. I couldn't really do much of
anything.” Tr. 63. He explained that he needed
assistance with eating, dressing, bathing, and going to the