United States District Court, D. Oregon, Portland Division
FINDINGS AND RECOMMENDATIONS
Yim You United States Magistrate Judge
L. (“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”)
and Title XVI Supplemental Security Income
(“SSI”) 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 should be REVERSED and REMANDED for further
1983, plaintiff was 30 years old on his alleged disability
onset date, and 33 years old at the time of his
administrative hearing. Tr. 34, 78, 89. He completed two
years of college towards a bachelor's degree in
accounting. Tr. 29, 32. Plaintiff has past relevant work as a
fast food restaurant manager and retail cashier. Tr. 32. He
alleges disability due to vasovagal syncope, bipolar
disorder, chronic migraines, depression, anxiety, social
anxiety, and obsessive-compulsive disorder. Tr. 78, 89.
filed applications for DIB and SSI on February 18, 2014,
alleging disability beginning February 28, 2013. Tr. 22.
Plaintiff's claim was denied initially and upon
reconsideration. Id. On April 20, 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. 40-75. On June 3, 2016, the ALJ
issued a decision finding plaintiff not disabled within the
meaning of the Act. Tr. 22-34. After the Appeals Council
denied his request for review, plaintiff filed a complaint in
this court. Tr. 1-7. 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 and
met the insured status requirements of the Act through the
relevant time frame. Tr. 24.
two, the ALJ found that plaintiff has the following severe
impairments: affective disorder with bipolar features;
generalized anxiety disorder; borderline personality
disorder; and marijuana abuse. Id.
three, the ALJ found plaintiff did not have an impairment or
combination of impairments that met or medically equaled a
listed impairment. Tr. 25. The ALJ next assessed
plaintiff's residual functional capacity
(“RFC”) and determined that he could perform a
full range of work at all exertional levels with the
following limitations: plaintiff was “capable of
performing work involving simple, routine tasks; and may have
occasional, superficial contact with the public.” Tr.
27 At step four, the ALJ found plaintiff could not perform
his past relevant work as a fast food services manager or
retail cashier/store keeper. Tr. 32.
five, the ALJ found that considering plaintiff's age,
education, and RFC, a significant number of jobs existed in
the national and local economy such that plaintiff could
sustain employment despite his impairments. Tr. 33.
Specifically, the ALJ found plaintiff could perform
representative occupations of laundry sorter, hand packager,
and office helper. Tr. 33-34. Accordingly, the ALJ determined
that plaintiff was not disabled at any time through the date
of his decision. Tr. 34.
argues that the ALJ: (1) improperly discounted his subjective
symptom testimony; (2) erroneously assessed the medical
opinion of treating physician, Joel Julian, M.D.; (3)
improperly discounted the lay testimony of plaintiff's
father Mark L. and his partner David K.; (4) failed to
properly evaluate whether he met a listing at step three; and
(5) failed to include all of plaintiff's limitations into
his RFC at step five.
Subjective Symptom Testimony
alleges that the ALJ wrongfully discounted his subjective
symptom testimony. 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) (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
March 28, 2016, the Commissioner superseded Social Security
Ruling (“SSR”) 96-7p, governing the assessment of
a claimant's “credibility, ” and replaced it
with SSR 16-3p. See SSR 16-3p, available
at2016 WL 1119029. SSR 16-3p eliminates the reference to
“credibility, ” clarifies that “subjective
symptom evaluation is not an examination of an
individual's character, ” and requires the ALJ to
consider all of the evidence in an individual's record
when evaluating the intensity and persistence of symptoms.
Id. at *1-2. The ALJ must examine “the entire
case record, including the objective medical evidence; an
individual's statements about the intensity, persistence,
and limiting effects of symptoms; statements and other
information provided by medical sources and other persons;
and any other relevant evidence in the individual's case
record.” Id. at *4.
hearing, plaintiff testified he was first diagnosed with
bipolar disorder in 2007. Tr. 49. He explained that, during
2008, his anxiety and bipolar disorder made things
“tough, ” but that it “was a pretty up
year.” Tr. 50. By 2009, however, “things started
to fall apart, ” at which point plaintiff focused on
his medication management. Id. It was “very
hard for him to show up on time” for his job at a fast
food restaurant, he “missed several days a week,
” and his supervisor “covered for [him] a
lot.” Id. In 2009, plaintiff received a
medical marijuana card for migraines. Tr. 51. At various
points throughout the relevant time period, plaintiff used
marijuana between “five to seven” days per week,
sometimes daily, to calm himself down when in a “manic
state.” Tr. 51.
testified that he last worked as a cashier at Bed Bath and
Beyond in 2014. Tr. 46. He explained that he had difficulty
maintaining attendance due to “stress around dealing
with coworkers and dealing with customers.” Tr. 46-47.
He testified that he “would arrive at work and sit [in
his] car for quite a while—to the tune of, like, a
half-hour to an hour and just kind of go through [his] head,
you know what happens if [he went] in? What happens if [he
didn't] go in? What [was he] going to have to deal
with?” Tr. 46 (punctuation supplied). Although
plaintiff's employer “worked with [plaintiff's]
doctor” and allowed him to “go out on leave,
” he was ultimately terminated. Tr. 47.
manic episodes, plaintiff was able to perform numerous
household projects, such as painting and refinishing
furniture; however, he had problems with his behavior, and
became “extremely irritable” and had difficulty
interacting with his son and partner. Tr. 59. He testified
that during one two-month depressive period, he slept
“a minimum” of 15 hours per day and had
difficulty completing basic household chores. Tr. 60.
Commissioner argues the ALJ provided three clear and
convincing rationales for rejecting plaintiff's
subjective symptom testimony: (1) objective findings; (2) the
treatment record; and (3) inconsistencies in the record.
Commissioner argues that the ALJ properly relied on objective
evidence in rejecting plaintiff's subjective symptom
testimony. While an ALJ may consider the lack of objective
evidence in some circumstances, as the Commissioner correctly
concedes, it may not be the sole basis for rejecting a
claimant's subjective symptom testimony. See
Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.
Commissioner directs the court to treating physician Dr.
Julian's chart notes that document improved insight and
judgment, good eye contact, normal speech, a pleasant and
cooperative affect, and normal thought processes. Other than
parroting the ALJ's summary of the medical evidence,
however, the Commissioner fails to articulate what testimony
the ALJ found not credible and what objective evidence led
the ALJ to such a conclusion. See Ghanim v.
Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014) (rejecting
an ALJ's reliance of the claimant's “good eye
contact, organized and logical thought content, and focused
attention” because “[t]hese observations of
cognitive functioning during therapy sessions [did] not
contradict [the claimant's] reported symptoms of
depression and social anxiety”); see also
Smolen, 80 F.3d at 1284 (“The ALJ must state
specifically which symptom testimony is not credible and what
facts in the record lead to that conclusion.”)
viewed in context, Dr. Julian's findings are not in fact
inconsistent with plaintiff's testimony that he had
difficulties with attendance during depressive periods, and
fail to account for the cyclical nature of his manic and
depressive episodes. See Ghanim, 763 F.3d
at 1162 (the “fact that a person suffering from
depression makes some improvement does not mean that
person's impairment no longer seriously affects his
ability to function in the workplace”) (quotation marks
and bracketing omitted); see also Garrison,
759 F.3d at 1017 (“Cycles of improvement and
debilitating symptoms are a common occurrence.”).
Indeed, a review of the treatment record reveals that
plaintiff repeatedly presented with objective findings of
depression and a low mood consistently between three and five
out of a ten-point scale. See Tr. 454, 458, 460,
472, 564, 567-68, 571, 574, 579, 583, 586, 590, 594, 598.
such, the objective medical record was not a proper basis to
reject plaintiff's subjective symptom testimony.
Commissioner next argues that the ALJ properly considered
plaintiff's response to treatment in discounting his
subjective symptom testimony. The effectiveness of treatment
is a factor an ALJ may consider, and a favorable response to
conservative treatment can undermine reports of disabling
limitations. 20 C.F.R. §§ 404.1529(c)(3),
416.929(c)(3); Tommasetti, 353 F.3d at 1035. The
Commissioner advances four rationales in support of this
the Commissioner asserts that plaintiff responded positively
to his psychotropic medications, specifically Abilify, with
“additional medications added to the treatment regimen
at various times.” Def.'s Br. 5. The Commissioner,
however, mischaracterizes the record, which shows that
various medications, including Abilify, did not effectively
control plaintiff's symptoms. In fact, plaintiff's
cocktail of medications were in a near-constant state of flux
as his providers sought to provide him with some relief. For
example, the Commissioner relies on a November 2013
appointment where plaintiff “show[ed] some improvement
with [a] recent increase in Abilify.” Tr. 408. At ...