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Jalexis O. v. Berryhill

United States District Court, D. Oregon

October 10, 2018

JALEXIS O., [1] Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Michael J. McShane United States District Judge

         Plaintiff Jalexis O. brings this action for judicial review of the Commissioner of Social Security's (“Commissioner”) decision denying his application for Disability Insurance Benefits. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         On October 28, 2015, Plaintiff filed an application for Disability Insurance Benefits, alleging disability as of January 14, 2013. Tr. 173-74.[2] Plaintiff was denied initially upon application and upon reconsideration. Tr. 117-26. After Plaintiff requested a hearing, an Administrative Law Judge (“ALJ”) determined that Plaintiff was not disabled and denied his claim. Tr. 29-30. Plaintiff now contends that the ALJ erred: (1) in failing to give clear and convincing reasons for rejecting his testimony; (2) in weighing the opinion of an examining physician and a therapist; and (3) in discounting Plaintiff's Veterans Administration (“VA”) disability rating. Because the Commissioner erred in discounting Plaintiff's testimony, the examining physician's opinion and assessed limitations, and Plaintiff's VA disability rating, the Commissioner's decision is REVERSED and the case REMANDED for an award of benefits.


         A reviewing court shall affirm the decision of the Commissioner 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); Batson v. Comm'r 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, the district court must review the administrative record as a whole, weighing both the evidence that supports and detracts from the decision of the ALJ. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).


         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. If the claimant satisfies his burden with respect to the first four steps, the burden then shifts to the Commissioner with regard to step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate 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.

         In the present case, the ALJ found that Plaintiff was not disabled. She first determined that Plaintiff met the insured status requirements of the Social Security Act through June 30, 2019. Tr. 20. Next, at step one of the sequential evaluation, the ALJ found that Plaintiff had engaged in four months of substantial gainful activity since the alleged onset date of January 14, 2013, but that Plaintiff also had a twelve-month period during which he did not engage in substantial gainful activity. Tr. 20. At step two, the ALJ found that Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, status-post discectomy; bilateral patelloformal syndrome; left ankle tendinitis; obesity; and post-traumatic stress disorder (“PTSD”). Tr. 20. At step three, the ALJ found that Plaintiff's impairments or combination of impairments did not meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 20.

         Prior to step four, the ALJ determined that Plaintiff's RFC allowed him to perform light work with multiple exertional and nonexertional limitations. Tr. 23. Specifically, the ALJ found that Plaintiff was limited to lifting twenty pounds occasionally and ten pounds frequently; sitting and standing for “about six hours” and walking for “about six hours” in an eight-hour workday with normal breaks; only occasional climbing of ramps or stairs; only occasional balancing, stooping, kneeling, crouching, and crawling; no climbing of ladders, ropes, or scaffolds; no contact with the general public; and only occasional contact with coworkers and supervisors. Tr. 23. In addition, the ALJ found that Plaintiff must be allowed to alternate between sitting and standing positions throughout the workday; use a cane for ambulation; and avoid even moderate exposure to workplace hazards, including hazardous machinery and unprotected heights. Tr. 23.

         In determining Plaintiff's RFC, the ALJ assigned various weights to the opinions of five medical sources who treated, examined, or reviewed the medical records of Plaintiff. See Tr. 26- 27. Additionally, the ALJ assigned some weight to a nonmedical opinion from Plaintiff's counselor, as well as very little weight to Plaintiff's VA disability rating. Tr. 26-27. Finally, the ALJ considered supportive statements and observations from Plaintiff's wife. Tr. 27.

         At step four, the ALJ considered whether Plaintiff could perform past relevant work, either as generally performed in the national economy or as it was actually performed previously by Plaintiff. Tr. 28. The ALJ found that Plaintiff's past relevant work included his jobs as a solar panel installer, lube technician, and auto services manager. Tr. 28. Relying on a Vocational Expert (“VE”), the ALJ found that, based on his RFC, Plaintiff could not perform any of his past relevant work, either generally in the national economy or as actually performed. Tr. 28.

         At step five, the ALJ considered Plaintiff's RFC, age, education, and work experience to determine if a work adjustment could be made. Tr. 28-29. In consultation with the VE, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, including mail sorter, electronics worker, and price marker. Tr. 29. As a result, the ALJ concluded that Plaintiff was “not disabled” for purposes of the Social Security Act and therefore did not qualify for benefits. Tr. 29.

         Plaintiff challenges the ALJ's non-disability determination on three grounds. First, he argues that the ALJ failed to provide clear and convincing reasons supported by substantial evidence for discrediting his symptom testimony. Pl.'s Br. 17. Second, Plaintiff argues that the ALJ improperly discounted the opinions of his examining physician and counselor. Pl.'s Br. 4, 10. Finally, Plaintiff argues that the ALJ improperly discounted his permanent 100% VA disability rating. Pl.'s Br. 11. The Court addresses each objection in turn.

         I. Subjective Symptom Testimony.

         Plaintiff first challenges the ALJ's decision to not credit his physical symptom testimony. Pl.'s Br. 17. The ALJ found Plaintiff's physical symptom testimony to not be credible for three reasons: (1) inconsistencies with the objective medical evidence, including evidence in the medical record that Plaintiff exhibited only a “mildly limited” range of motion, intact strength, reflexes, and sensation, and the ability to walk without a cane; (2) a generally conservative course of treatment; and (3) inconsistencies with reported activities of daily living, namely Plaintiff's ability to perform adequate selfcare, complete household chores, go for daily walks, and ride a motorcycle with his VA support group. Tr. 26.

         Plaintiff argues that the ALJ erred by rejecting his physical symptom testimony without providing clear and convincing reasons supported by substantial evidence in the record.[3] Pl.'s Br. 17-21. In particular, he contends that the ALJ failed to identify the specific symptom testimony which she found non-credible, support her conclusions with sufficiently specific citations to the medical record, or otherwise rely upon substantial evidence in rejecting Plaintiff's alleged symptoms. Pl's Br. 17-21. The Commissioner responds that the ALJ clearly identified several convincing reasons for discounting Plaintiff's testimony, including inconsistencies with the medical and non-medical evidence in the record, Plaintiff's conservative course of treatment, and inconsistencies with Plaintiff's activities of daily living. Def.'s Br. 7-10. These reasons, the Commissioner maintains, were all supported by substantial evidence. Def.'s Br. 7-10

         An ALJ may only reject testimony regarding the severity of a claimant's symptoms if she offers “clear and convincing reasons” supported by “substantial evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1993)). In assessing credibility, the ALJ may consider a wide range of factors, including “ordinary techniques of credibility evaluation, ” as well as the claimant's daily activities, objective medical evidence, treatment history, and inconsistencies in testimony. Molina v. Astrue, 674 F.3d 1104, 1163 (9th Cir. 2012) (citation omitted). When reaching an ultimate conclusion on the credibility of specific testimony, the ALJ must be “sufficiently specific to allow a reviewing court to conclude that the adjudicator rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit a claimant's testimony regarding pain.” Bunnell v. Sullivan, 947 F.3d 586, 592 (9th Cir. 2009) (original emphasis and ellipses omitted).

         A. Inconsistencies with the Medical Record.

         The ALJ first rejected Plaintiff's testimony regarding his physical impairments based on inconsistencies with the objective medical evidence and other portions of the treatment record. Specifically, the ALJ discounted Plaintiff's symptom testimony with respect to his back, knee, and ankle impairments-namely the number of days those ailments would prevent him from attending work each month and whether the ailments would require him to recline during the workday-based on his “range of motion” being only “mildly limited, ” his “strength, sensation, and reflexes” being intact, and his reporting of only “occasional radicular symptoms.” Tr. 26. She also emphasized that, with respect to his knee pain specifically, Plaintiff reported “significant improvement” and “no longer required the use of a cane.” Tr. 26.

         The ALJ's reliance on the medical record did not, under the circumstances, constitute a clear and convincing reason to reject Plaintiff's symptom testimony. First, it is impossible to identify which ailments and symptoms were discounted by the ALJ based on which portions of the medical record. Despite Plaintiff's three distinct ailments affecting his knee, back, and ankle, the ALJ summarily discounted his symptom testimony with a general, non-appendage-specific reference to Plaintiff's “range of motion . . ., strength, sensation, and reflexes.” Tr. 26. It is unclear to which ailment and corresponding symptom each reason applies and, more importantly, none pertain to the frequency or intensity of pain when sitting, standing, or walking. Further, to the extent the record might contain evidence to support the proposition that Plaintiff's knee, back, and ankle all had substantially intact ranges of motion, strength, sensation, and reflexes, the ALJ's supporting citation refers generally to over 150 pages of treatment records. Tr. 26 (citing Ex. 1F (95 pages); Ex. 4F (56 pages), Ex. 6F (7 pages)). As the Ninth Circuit has made clear, an “ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.”[4] Burrell v. Colvin, 775 F.3d 1133, 1138 (9th Cir. 2014). Here, the ALJ's rejection of Plaintiff's multifaceted symptom testimony lacks the requisite specificity required for this Court to evaluate the evidence relied upon and fails to connect specific symptom testimony with specific, relevant inconsistencies in the medical record.

         Second, even where the ALJ did identify specific symptom testimony contradicted by specific portions of the medical record, her reasoning is not supported by substantial evidence. The ALJ reasoned that Plaintiff's claimed limitations from his back and knee ailments were not credible because he “reported only occasional radicular symptoms, . . . reported significant improvement in his knees[, ] and no longer required use of a cane.” Tr. 26. While these statements, unlike those described above, were supported by citations to specific portions of the medical record, see tr. 496, 547, 587, the ALJ both cherry-picked isolated instances of improved physical symptoms which were inconsistent with the record as a whole and relied upon medical evidence with little bearing on the issue of pain and discomfort. “Cycles of improvement and debilitating symptoms are a common occurrence. It is error to reject a claimant's testimony merely because symptoms wax and wane in the course of treatment.” Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th ...

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