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Ninette O. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

November 28, 2018

Ninette O., [1]Plaintiff,
Commissioner of the Social Security Administration, Defendant.


          Michael McShane United States District Judge.

         Plaintiff brings this action for judicial review of the Commissioner's decision denying her application for disability insurance benefits and supplemental security income. This 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.


         The 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, we 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. 1996)).


         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 (2012). 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 for 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.

         The ALJ found plaintiff suffered from the following severe impairments: mild traumatic brain injury/post-concussion syndrome; chronic post-traumatic headaches; anxiety disorder; depression; cervical spondylosis. Tr. 21.[2] After a hearing, the Administrative law judge (ALJ) concluded plaintiff could perform light work and was not disabled under the act. Tr. 25-30. Plaintiff argues the ALJ erred in finding her less-than fully credible, in rejecting the lay witness testimony, and in failing to account for limitations from cervical spondylosis when formulating plaintiff's Residual Functional Capacity (RFC).

         1. The ALJ's Adverse Credibility Determination

         Plaintiff alleges disability mainly due to fatigue and memory issues following a grand mal seizure and two other head injuries. As stated by plaintiff, her “biggest issue is . . . I just don't have the stamina or energy to put forth energy or even something structured for more than four or five hours a day. I need to lay down and take a snooze. Falling asleep unaware during the day. I have to really be careful to pace myself each day.” Tr. 46-47. Plaintiff testified she falls asleep without realizing it approximately three times each week. In a letter after the hearing, plaintiff confirmed that “My energy level was and is one of my most major concerns for the last 3 years.” Tr. 252. The ALJ found plaintiff's statements regarding the extent of her limitations was not consistent with the record:

I recognize that the claimant is not as capable as she may have been in the past, but I also find the record supports that she is able to maintain a simple routine job for a normal workday and workweek. Although the claimant stated she was not able to complete a full workday, there is little mention of fatigue in the medical evidence of record, and her testimony is not entirely consistent with the medical evidence of record. For example: Physically, she still grows and picks up hay for the maintenance of the family horses (testimony). She acknowledged that she still drives, sometimes all the way out to Bush Prairie for hay, as well as driving to do grocery shopping and to attend most medical appointments.

Tr. 26.

         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 1028, 1040 (9th Cir.2007). The ALJ in this case supported the adverse credibility determination with references to several ...

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