United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge.
Kenneth B. brings this action for judicial review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying his application for
disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Title
II of the Social Security Act. This Court has jurisdiction
under 42 U.S.C. §§ 405(g) and 1383(c)(3).
issues before this Court are whether: (1) the Administrative
Law Judge (“ALJ”) gave clear and convincing
reasons for rejecting Plaintiff's testimony; (2) the ALJ
erred in rejecting Dr. Stephen Kerner, M.D.'s, medical
opinion; and (3) the Commissioner met her burden of proving
that Plaintiff can perform “other work” in the
there is substantial evidence in the record to support the
ALJ's findings, the Commissioner's decision is
AND FACTUAL BACKGROUND
applied for DIB and SSI on November 12, 2013, alleging
disability since December 31, 2011. Tr. 155-61, 162-67, 51.
Both claims were denied initially and upon reconsideration.
Tr. 96, 101, 107, 110. Plaintiff timely requested a hearing
before an ALJ and appeared before the Honorable Elizabeth
Watson on August 8, 2016. Tr. 113, 31. ALJ Watson denied
Plaintiff's claim by a written decision dated September
15, 2016. Tr. 10-18. Plaintiff sought review from the Appeals
Council and was denied on December 14, 2017, rendering the
ALJ's decision final. Tr. 1-6. Plaintiff now seeks
judicial review of the ALJ's decision.
was 51 years 11 months old at the time of his alleged
disability onset and 56 at the time of his hearing.
See tr. 50, 31. Plaintiff completed tenth grade and
worked as a dishwasher and prep cook. Tr. 40, 199, 216.
Plaintiff alleges disability due to breathing problems, back
pain, leg pain, and reading, writing, and learning
difficulties. Tr. 37, 38, 50, 197.
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. See 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, the court reviews 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) (citing Martinez v. Heckler, 807 F.2d
771, 772 (9th Cir. 1986)). “‘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)).
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2012). The burden of proof rests on
the claimant for steps one through four, and on the
Commissioner for step five. Bustamante v. Massanari,
262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett v.
Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)). At step
five, the Commissioner's burden is to demonstrate that
the claimant can make an adjustment to other work existing in
significant numbers in the national economy after considering
the claimant's residual functional capacity, age,
education, and work experience. 20 C.F.R. §
404.1520(a)(4)(v). If the Commissioner fails to meet
this burden, then the claimant is considered disabled.
must consider a claimant's symptom testimony, including
statements regarding pain and workplace limitations.
See 20 CFR §§ 404.1529(a),
416.929(a). Where there is objective medical
evidence in the record of an underlying impairment that could
reasonably be expected to produce the pain or symptoms
alleged and there is no affirmative evidence of malingering,
the ALJ must provide clear and convincing reasons for
discrediting the claimant's testimony regarding the
severity of her symptoms. Carmickle v. Comm'r Soc.
Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008);
Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th
Cir. 2007). 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)).
“may consider a range of factors in assessing
credibility.” Ghanim v. Colvin, 763 F.3d 1154,
1163 (9th Cir. 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, 504 F.3d at 1040. “If the
ALJ's credibility finding is supported by substantial
evidence in the record, ” this Court “may not
engage in second-guessing, ” Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation
omitted), and “must uphold the ALJ's decision where
the evidence is susceptible to more than one rational