United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE.
Thomas 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”) 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 the Administrative Law
Judge (“ALJ”): (1) gave clear and convincing
reasons for rejecting the testimony of the Plaintiff; (2)
erred in posing hypotheticals to the vocational expert; and
(3) erred in rejecting medical opinions of two treating
physicians. Because the ALJ erred in discounting both
Plaintiff's testimony and that of his treating
physicians, the Commissioner's decision is REVERSED and
this matter is REMANDED for an award of benefits.
AND FACTUAL BACKGROUND
applied for DIB February 5, 2014 and alleges disability since
June 14, 2013. Tr. 100, 228. His claim was denied initially
and upon reconsideration. Tr. 156-61; 163-65. Plaintiff
timely requested a hearing before an ALJ and appeared before
the Honorable B. Hobbs on October 4, 2016. Tr. 166, 79. ALJ
Hobbs denied Plaintiff's claim by a written decision
dated December 2, 2016. Tr. 60-73. Plaintiff sought review
from the Appeals Council and was denied on December 11, 2017,
rendering the ALJ's decision final. Tr. 212, 1-6.
Plaintiff now seeks judicial review of the ALJ's
was 47 years old at the time of his alleged disability onset
and 50 at the time of his hearing. Tr. 125-26. Plaintiff
completed 10th grade and worked for the Army Air Force
Exchange Service in retail, in sales, doing labor in a
warehouse, cleaning, and cashiering. Pl.'s Br. 2, ECF No.
11; tr. 85-90. Plaintiff alleges disability due to rheumatoid
arthritis, COPD, and back, knees, neck, and shoulders issues.
Tr. 125, 234.
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.
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.
Dr. Greene and Dr. Walker's Medical
reject an uncontradicted opinion of a treating or examining
doctor, an ALJ must state clear and convincing reasons that
are supported by substantial evidence.” Bayliss v.
Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing
Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.
1995)). “If a treating or examining doctor's
opinion is contradicted by another doctor's opinion, an
ALJ may only reject it by providing specific and legitimate
reasons that are supported by substantial evidence.”
Id. When evaluating conflicting medical opinions, an
ALJ need not accept a brief, conclusory, or inadequately
supported opinion. Bayliss, 427 F.3d at 1216 (citing
Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.
Plaintiff concedes that the examining physicians'
findings are in conflict but argues that the ALJ failed to
give specific and legitimate reasons for rejecting Dr. Greene
and Dr. Walker's medical opinions. Pl.'s Br. 9-10.
The ALJ did not expressly reject Dr. Greene's November
12, 2014 medical opinion. Rather, the ALJ said that Dr.
Greene “assessed” Plaintiff with fibromyalgia but
could not definitively diagnosis him. Tr. 64; see
also tr. 1141. Dr. Greene found 18 out of 18 tender
points, consistent with fibromyalgia. Tr. 1141. His
assessment included “probable seropositive
rheumatoid arthritis, ” “probable right
knee [degenerative joint disease], ” and
“fibromyalgia, ” which he said
“certainly complicates matters.”
Id. (emphasis added). Dr. Greene also recommended
that Plaintiff wean off narcotics use because they
“make fibromyalgia worse.” Id. This is a
the ALJ did not expressly reject Dr. Walker's medical
opinion, but rather undermined it with little explanation.
Finding Plaintiff's spinal condition to be a non-severe
impairment, the ALJ found that Dr. Walker identified a degree
of spinal cord compression at C5-6 but only discussed
“protective/preventative” surgery with Plaintiff.
Tr. 63-64; see also tr. 1241. On January 21, 2016,
Dr. Walker diagnosed Plaintiff with “quite
severe” adjacent level spondylosis-age-related
degeneration of the spinal disks in the neck-at C5-C6. Tr.
1220. The ALJ wholly overlooked this report. On
May 2, 2016, Dr. Walker noted robust fusion of
Plaintiff's cervical spine at C6-C7, a broken anterior
cervical plate, and spinal cord compression at C5-C6. Tr.
1241. He diagnosed Plaintiff with cervical spondylosis with
myelopathy- compression of the cervical spinal cord-and
spinal stenosis (i.e. narrowing) of the cervical region.
Id. He also discussed a protective/preventative
surgery with Plaintiff. Id. This indicates more than
“a degree of spinal cord compression, ” and the
protective/preventative nature of the surgery does not
necessarily render it conservative treatment.
failed to give specific and legitimate reasons supported by
substantial evidence for disregarding Dr. Greene's and
Dr. Walker's medical opinions.
Plaintiff's Credibility and Fibromyalgia
Plaintiff next argues that the ALJ improperly rejected both
Plaintiff's symptom testimony and the medical opinion of
Dr. Greene with respect to fibromyalgia. Pl.'s Br. 5-6.
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 ...