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Darlene H. v. Commissioner Social Security Administration

United States District Court, D. Oregon

March 25, 2019

DARLENE H., [1] Plaintiff,
Commissioner of the Social Security Administration, Defendant.


          Michael McShane United States District Judge.

         Plaintiff brings this action for judicial review of the Commissioner's decision denying her application for disability insurance benefits (“DIB”). This court has jurisdiction under 42 U.S.C. §§ 405(g).

         On April 22, 2014, Plaintiff protectively filed a Title II application for DIB, alleging disability as of January 15, 2012. Tr. 20.[2] On June 6, 2016, Plaintiff appeared at a hearing before an Administrative Law Judge (ALJ) and presented testimony under oath. Tr. 36-62. On August 11, 2016, the ALJ determined Plaintiff was not disabled from January 15, 2012 through the date of that written decision. Tr. 32.

         Plaintiff argues the ALJ erred in rejecting her subjective complaints of symptoms and limitations. Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the Commissioner's decision is AFFIRMED.


         A reviewing court shall affirm the decision of the Commissioner of Social Security if her decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r 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 district court must review the administrative record as a whole, weighing both the evidence that supports and detracts from the ALJ's decision. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).


         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of proof rests upon the claimant to meet the first four steps. If the claimant satisfies his burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner must show that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (“RFC”), age, education, and work experience. Id. If the Commissioner fails to meet this burden, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).

         At step two, the ALJ found that Plaintiff had the following severe impairments: left shoulder bursitis, right shoulder rotator cuff tera, costochondritis, cataracts, and loss of visual acuity. Tr. 22. In formulating Plaintiff's RFC, the ALJ concluded that Plaintiff could perform less-than a full range of medium work. Tr. 24. Specifically, as relevant here, the ALJ determined Plaintiff could: lift, carry, push and pull 50 pounds occasionally and 25 pounds frequently; sit eight hours; stand or walk eight hours total; and reach overhead with both upper extremities frequently. Tr. 24. Based on the vocational expert's (“VE”) testimony, the ALJ concluded a person with Plaintiff's RFC could perform past relevant work of nurse aid and light housekeeper. Tr. 31-32.

         Plaintiff argues the ALJ erred in finding her testimony as to the extent of her symptoms and limitations less-than fully credible. Plaintiff argues the ALJ erred in not specifying which parts of her testimony were not credible, and in relying on Plaintiff's general character for truthfulness to reject her testimony. As discussed below, I disagree.

         “Where, as here, Claimant has presented evidence of an underlying impairment and the government does not argue that there is evidence of malingering, we review the ALJ's rejection of her testimony for ‘specific, clear and convincing reasons.'” Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (quoting Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). 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, 674 F.3d at 1112 (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989)). The ALJ “may consider a wide range of factors in assessing credibility.” Ghanim, 763 F.3d at 1163. 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 v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007). The ALJ in this case supported her credibility determination with references to several of the above factors.

         The ALJ noted Plaintiff reported she stopped working not because of her symptoms, but because her employer was downsizing and did not have enough hours for her. Tr. 24. Plaintiff acknowledged this fact at her hearing before the ALJ. Tr. 43. That the Plaintiff alleged disability as of the day after her last day of employment, but admits her employment ended for reasons unrelated to her limitations and symptoms, is a legitimate reason for the ALJ to conclude Plaintiff's limitations were not as severe as alleged. See Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (concluding ALJ did not err in ...

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