United States District Court, D. Oregon
FINDINGS & RECOMMENDATION
A. RUSSO UNITED STATES MAGISTRATE JUDGE
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.
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.
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.
asserts the ALJ failed to provide clear and convincing
reasons to reject plaintiff's subjective symptom
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.
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.
hearing held on May 4, 2017,  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.
had back surgeries in 2001 and 2003,  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.
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.
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.
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.
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. ...