United States District Court, D. Oregon
OPINION AND ORDER
A. Russo United States Magistrate Judge
Lisa L. brings this action for judicial review of the final
decision of the Commissioner of Social Security
(“Commissioner”) denying her applications for
Title II Disability Insurance Benefits and Title XVI Social
Security Income. All parties have consented to allow a
Magistrate Judge enter final orders and judgment in this case
in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. §
636(c). For the reasons set forth below, the
Commissioner's decision is reversed and this case is
remanded for further proceedings.
1962, plaintiff alleges disability beginning February 7,
2010, due to anxiety, depression, fibromyalgia, migraines,
and irritable bowel syndrome. Tr. 187, 199, 219. On May 16,
2014, the Administrative Law Judge (“ALJ”) issued
a decision finding plaintiff not disabled. Plaintiff timely
appealed that decision to this Court on December 10, 2015.
Tr. 881. On January 19, 2017, this Court affirmed the
ALJ's decision as to all issues except for the medical
opinion of Neal Musselman, D.O. Tr. 884-910. Based on this
error, the Court reversed the ALJ's 2014 decision and
remanded for further proceedings. Tr. 883.
September 22, 2017, the ALJ held a second hearing, wherein
plaintiff was represented by counsel and testified, as did a
vocational expert. Tr. 805-36. On November 7, 2017, the ALJ
issued a partially favorable decision, finding plaintiff
disabled as of August 17, 2017, her 55th birthday. Tr.
776-94. After the Appeals Council denied her request for
review, plaintiff filed a complaint in this Court. Tr.
one of the five step sequential evaluation process, the ALJ
found that plaintiff had not engaged in substantial gainful
activity since the alleged onset date. Tr. 779. At step two,
the ALJ determined plaintiff's fibromyalgia, migraines,
aneurysm, anxiety disorder, and personality disorder were
medically determinable and severe as of the alleged onset
date. Id. After the date last insured (i.e., March
31, 2015), the ALJ found the following additional impairments
medically determinable and severe: cervical spine
degenerative disc disease and ankylosing spondylitis.
Id. At step three, the ALJ found plaintiff's
impairments, either singly or in combination, did not meet or
equal the requirements of a listed impairment. Tr. 780.
she did not establish presumptive disability at step three,
the ALJ continued to evaluate how plaintiff's impairments
affected her ability to work. The ALJ resolved that, as of
the alleged onset date, plaintiff had the residual functional
capacity (“RFC”) to perform light work as defined
in 20 C.F.R. § 404.1567(b) and 20 C.F.R. §
she can never climb ladders, ropes or scaffolds. She can
occasionally climb ramps and stairs. She can occasionally
balance, stoop, kneel, crouch or crawl. She must avoid
concentrated exposure to hazards. She is limited to the
performance of simple, routine, repetitive tasks, consistent
with unskilled work. She can have no contact with the public.
She can have superficial contact with coworkers. She is
limited to low stress work, which is defined as requiring few
decisions and few changes. She can work at a standard or
ordinary pace, but she cannot work at a strict production
Tr. 782. Beginning on the date last insured, the ALJ also
found that plaintiff can “frequently reach overhead
four, the ALJ determined plaintiff could not perform any past
relevant work. Tr. 792. At step five, the ALJ concluded that,
prior to her 55th birthday, plaintiff was capable of
performing other work existing in significant numbers in the
national economy despite her impairments, such as office
helper, mail room sorter, and silver wrapper. Tr. 793.
However, beginning on August 17, 2017, the date
plaintiff's age category changed, the ALJ found her
disabled. Tr. 793-94.
case hinges on whether there is sufficient evidence in the
record to establish an earlier disability onset date.
Specifically, plaintiff argues the ALJ erred by: (1)
discrediting her subjective symptom statements; (2) failing
to address the lay testimony of her son, Robert F.; and (3)
rejecting the medical opinions of physician assistant Daniela
Schlechter-Keenan, social worker Leslie Ann Gellert,
counselor Sharon Cabana, and Dr. Musselman.
asserts the ALJ erred by discrediting her subjective pain
testimony regarding the extent of her impairments. Pl.'s
Opening Br. 12-14 (doc. 16). When a 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) (internal
citation omitted). A general assertion 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
in formulating the RFC, the ALJ is not tasked with
“examining an individual's character” or
propensity for truthfulness, and instead should assess
whether the claimant's subjective symptom statements are
consistent with the record as a whole. SSR 16-3p,
available at 2016 WL 1119029. If the ALJ's
finding regarding the claimant's subjective symptom
testimony 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) (internal citation omitted).
Court previously considered and affirmed the ALJ's
rejection of plaintiff's testimony. Tr. 28-34, 906-08. On
remand, the ALJ relied on many of the same legally valid
reasons: both the 2014 and 2017 ALJ decisions cited to
plaintiff's activities of daily living, failure to seek
treatment or follow her providers' recommendations, and
ability to work for many years with the same allegedly
disabling impairments, as well as the lack of corroborating
medical evidence. Compare Tr. 782-92, with
Tr. 28-34. Plaintiff now attacks those reasons on the same
bases she did in her prior appeal, such that plaintiff
presented no justification for this Court to diverge from its
prior ruling. See Khal v. Colvin, 2015 WL 5092586,
*3-5 (D. Or. Aug. 27, 2015), aff'd, 690
Fed.Appx. 499 (9th Cir. 2017) (affirming the ALJ's
decision in regard to the claimant's subjective symptom
testimony under virtually identical circumstances) (citations
omitted); see also Moisa v. Barnhart, 367 F.3d 882,
887 (9th Cir. 2004) (“[t]he Commissioner, having lost
this appeal, should not have another opportunity to show that
[the claimant] is not credible any more than [the claimant],
had he lost, should have an opportunity for remand and
further proceedings to establish his credibility”)
plaintiff does not refer to any new evidence concerning
“worsening in symptoms” or of “disabling
impairment outside the home.” Pl.'s Opening Br.
12-14 (doc. 16). Rather, her citations largely pertain to
prior statements that were considered pursuant to the
ALJ's 2014 decision and affirmed by this Court in January
2017. Id. (citing Tr. 3-56, 60-61, 229-31, 234, 272,
278, 786, 790-91). The remaining citations - i.e., Tr. 699,
821, 1015, 1681 - do not evince any significant disruption in
functioning. Id. Indeed, the record generally
indicates plaintiff engaged in activities outside the home
when she wanted to or believed she needed to. For instance,
plaintiff took cabs to medical appointments, independently
attended weekly or bi-weekly physical therapy/massage and
counseling sessions, completed a group sailing class,
engaged in various activities through her synagogue,
travelled alone to New Mexico for more than two months to
spend time with family, travelled to Seattle for her
son's graduation, walked her dog, went camping, and
talked to friends. See, e.g., Tr. 687, 689, 700,
703, 737, 815-23, 1152, 1161, 1164, 1184, 1211, 1219, 1225,
1241, 1285, 1357, 1546, 1567, 1574; see also Molina v.
Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (ALJ may
discredit a claimant's testimony where his or her daily
activities “contradict claims of a totally debilitating
impairment”) (citations omitted). In other words,
plaintiff's 2014 hearing testimony did not materially
differ from her 2017 hearing testimony, except to the extent
it revealed new activities (e.g., driving, sailing,
conducting online research regarding cat breeding, property,
and boats). Compare Tr. 51-80, with Tr.
contrary to plaintiff's assertion, the enactment of SSR
16-3p does not constitute a change in controlling law.
Pl.'s Reply Br. 2-3 (doc. 19). Indeed, the Ninth Circuit
expressly held that SSR 16-3p is a rule clarification as
opposed to rule change. See Trevizo v. Berryhill,
871 F.3d 664, 678 n.5 (9th Cir. 2017) (SSR 16-3p “makes
clear what our precedent already required”). Under
these circumstances, the Court is precluded from upsetting
the ALJ's 2014 assessment of plaintiff's testimony.
See Stacy v. Colvin, 825 F.3d 563, 567-69 (9th Cir.
2016) (rule of mandate and law of the case doctrine apply in
the Social Security context, meaning that the district court
cannot reconsider “an ...