United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane United States District Judge.
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).
April 22, 2014, Plaintiff protectively filed a Title II
application for DIB, alleging disability as of January 15,
2012. Tr. 20. 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.
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
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).
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).
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.
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.
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
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 ...