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Diahn T. v. Berryhill

United States District Court, D. Oregon

February 5, 2019

DIAHN T., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security, Defendant.

          FINDINGS & RECOMMENDATION

          JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision denying plaintiff's application for disability insurance benefits (DIB) and supplemental security income (SSI). Plaintiff asserts disability beginning August 31, 2009, due to back pain. Tr. 215, 99.

         After hearings held on January 24, 2013 and May14, 2013, an Administrative Law Judge (ALJ) determined plaintiff was not disabled. Plaintiff appealed the decision to the District Court resulting in a remand to the Social Security Administration to reassess a variety of issues.

         After a hearing held on May 4, 2017, another ALJ determined plaintiff was not disabled. Plaintiff argues the ALJ erred by: (1) improperly rejecting her symptom testimony; (2) improperly rejecting the opinion of a treating physician; and (3) improperly rejecting the opinion of an examining psychologist. For the reasons stated below, the Commissioner's decision should be affirmed and this case should be dismissed.

         A. Plaintiff's Credibility

         Plaintiff asserts the ALJ failed to provide clear and convincing reasons to reject plaintiff's subjective symptom testimony.

         The ALJ found plaintiff has the following severe impairments: degenerative disc disease status post-fusion and laminectomy at ¶ 4-L5 and L5-S1; and a history of kidney disease with one kidney. Tr. 471.

         On February 16, 2011, plaintiff reported she could not sit or stand for prolonged periods and her ability to lift was limited due to degenerative back issues. Tr. 258. She further reported that her pain worsens throughout the day so that she is unable to work full-time. Id. Plaintiff reported the following daily activities: upon awakening she takes pain medications and waits for them to work “so she can move;” showers and dresses; eats breakfast; feeds the animals; cleans the house; does laundry; lies down around 12:00 p.m.; goes for a walk or stretches; watches television or naps if needed; prepares dinner for her fiancé; watches television; does a few more chores around the house; and goes to bed. Tr. 259.

         At the hearing held on May 4, 2017, [2] plaintiff testified she limits herself to about 30 minutes when doing activities such as cleaning the house. Tr. 504. She further testified she no longer attends church due to the 30 minute-drive which is “too far for her to go.” Id.

         Plaintiff had back surgeries in 2001 and 2003, [3] and continued to work until 2009 as a school secretary in Washington. Tr. 507-08. At the hearing held on May 14, 2013, plaintiff testified that while her pain progressively worsened after her surgeries, she left her job in 2009 because her boyfriend got a job in Oregon and she moved as well with the intention of getting a job there. Tr. 42-43. Morever, plaintiff testified she cashed out her retirement and therefore was not financially required to work the year following her move. Tr. 43.

         At the time of the May 2013 hearing, plaintiff asserted the inability to concentrate due to pain. She stated her pain had worsened because she is on less pain medication due to her preference to take lower levels of medication. Tr. 48. Plaintiff further testified she was unable to stand or shop by herself, has difficulty driving, and after 2:00 or 3:00 p.m., she has to lie down. Id. Plaintiff acknowledged she is not taking enough pain medication by her own choice. Tr. 49. However, she did also state her preferred medication is too expensive, but was effective in controlling her pain. Id.

         Plaintiff testified she is able to stand for 10 or 15 minutes; walk very slowly and only on an even surface for about an eighth of a mile; sit for about ten minutes; and lift no more than 25 pounds. Tr. 50-51.

         The ALJ found plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms inconsistent with the medical evidence and other evidence in the record. Tr. 479. Specifically, the ALJ found plaintiff's cessation of work at her alleged onset date in 2009 was unconnected to her allegations of disability. Tr. 479-80. The ALJ also noted plaintiff has been using pain medication such as MS-Contin at least since 2004, five years before her alleged onset with no medical changes to explain her decision to stop work. Tr. 480. Discontinuing employment at the alleged onset date for reasons other than a disabling impairment provides a clear and convincing reason for discounting disabling symptom testimony. Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (leaving job due to layoff rather than injury is a clear and convincing reason to reject disabling pain testimony). Here, not only did plaintiff testify she left her job to relocate to Oregon, with the intention of resuming work, she told her medical providers in February 2011 she “was working in an elementary school [and] since moving to Roseburg has been unable to find employment.” Tr. 329.

         The ALJ noted the record lacks evidence of deterioration in the claimant's condition since she last worked and that her daily activities strongly suggest a continued ability to perform her last relevant work. Tr. 476. On February 13, 2013, plaintiff told Dr. Andrea Marshall she is independent with her activities of daily living, and she can shop, drive, build birdhouses, and garden. Tr. 443. On May 8, 2012, plaintiff told Dr. Darryl George she was gardening and working on her property. Tr. 367. On August 29, 2012, she told Dr. George she was feeling good and had a busy month helping her mother in Washington, fishing on the family boat including catching the “biggest salmon, ” and camping in a tent. ...


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