United States District Court, D. Oregon, Portland Division
W. Moller, Attorney for Plaintiff Billy J. Williams
Gowie Assistant United States Attorney, Catherine Escobar,
Special Assistant United States Attorney, Office of the
General Counsel Social Security Administration, Attorneys or
OPINION & ORDER
A. Hernandez, United States District Judge
Claire G. brings this action seeking judicial review of the
Commissioner's final decision to deny disability
insurance benefits (DIB) and supplemental security income
(SSI). This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)).
I reverse the Commissioner's decision and remand for
protectively filed applications for DIB and SSI on August 22,
2014, alleging an onset date of July 22, 2013. Tr. 179-80,
181-86. Her applications were denied initially and on
reconsideration. Tr. 54, 58-68 (DIB Initial); Tr. 55, 69-81
(SSI Initial); Tr. 112-16 (DIB & SSI Initial); Tr. 82-95,
110, 122-24 (DIB Recon.); Tr. 96-109, 111, 125-47 (SSI
Recon.). On December 21, 2016, Plaintiff appeared, with
counsel, for a hearing before an Administrative Law Judge
(ALJ). Tr. 33-53. On February 23, 2017, the ALJ found
Plaintiff not disabled. Tr. 13-32. The Appeals Council denied
review. Tr. 1-5.
alleges disability based on having depression, post-traumatic
stress disorder (PTSD), gender dysphoria, anxiety, obsessive
compulsive disorder (OCD), and attention deficit disorder
(ADD). Tr. 218. At the time of the hearing, she was thirty
years old. Tr. 37. She is a high school graduate and has past
work experience in a variety of part-time jobs but no
relevant full-time work experience. Tr. 37-39.
claimant is disabled if he or she is unable to "engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which .
. . has lasted or can be expected to last for a continuous
period of not less than 12 months[.]" 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A).
claims are evaluated according to a five-step procedure.
See Valentine v. Comm'r, 574 F.3d 685, 689 (9th
Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the
ultimate burden of proving disability. Id.
first step, the Commissioner determines whether a claimant is
engaged in "substantial gainful activity." If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In step two, the Commissioner determines whether
the claimant has a "medically severe impairment or
combination of impairments." Yuckert, 482 U.S.
at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If
not, the claimant is not disabled.
three, the Commissioner determines whether plaintiff's
impairments, singly or in combination, meet or equal
"one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Yuckert, 482
U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d).
If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four.
Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity (RFC) to perform "past relevant work." 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can perform past relevant work, the claimant is not disabled.
If the claimant cannot perform past relevant work, the burden
shifts to the Commissioner. In step five, the Commissioner
must establish that the claimant can perform other work.
Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets his burden and proves that the claimant is
able to perform other work which exists in the national
economy, the claimant is not disabled. 20 C.F.R. §§
one, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since her July 22, 2013 alleged
onset date. Tr. 18. Next, at steps two and three, the ALJ
determined that Plaintiff has severe impairments of gender
dysphoria, a depressive disorder, and an anxiety disorder,
but that the impairments did not meet or equal, either singly
or in combination, a listed impairment. Tr. 18-20.
four, the ALJ concluded that Plaintiff has the RFC to perform
a full range of work at all exertional levels. Tr. 20.
However, the ALJ concluded that Plaintiff has the following
nonexertional limitations: she should have ready access to a
restroom facility; she can perform entry-level work with a
reasoning level not to exceed 2; she should have no
interaction with the public; and she can have occasional
interaction with coworkers and supervisors. Tr. 20-25. With
this RFC, the ALJ determined at step five that Plaintiff is
able to perform jobs that exist in significant numbers in the
economy such as janitor, hand packager, and small products
assembler. Tr. 25-26. Thus, the ALJ determined that Plaintiff
is not disabled. Tr. 27.
may set aside the Commissioner's denial of benefits only
when the Commissioner's findings "are based on legal
error or are not supported by substantial evidence in the
record as a whole." Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009) (internal quotation marks omitted).
"Substantial evidence means 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." Id. (internal quotation marks
omitted). The court considers the record as a whole,
including both the evidence that supports and detracts from
the Commissioner's decision. Id.;
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). "Where the evidence is susceptible to more
than one rational interpretation, the ALJ's decision must
be affirmed." Vasquez, 572 F.3d at 591
(internal quotation marks and brackets omitted); see also
Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
("Where the evidence as a whole can support either a
grant or a denial, [the court] may not substitute [its]
judgment for the ALJ's") (internal quotation marks
contends the ALJ erred by (1) finding her subjective
limitations testimony not credible; (2) rejecting the opinion
of her treating therapist; and (3) finding the testimony of
the lay witness not credible.
is responsible for determining credibility. See
Vasquez, 572 F.3d at 591. Once a claimant shows an
underlying impairment and a causal relationship between the
impairment and some level of symptoms, clear and convincing
reasons are needed to reject a claimant's testimony if
there is no evidence of malingering. Carmickle v.
Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent
affirmative evidence that the plaintiff is malingering,
"where the record includes objective medical evidence
establishing that the claimant suffers from an impairment
that could reasonably produce the symptoms of which he
complains, an adverse credibility finding must be based on
'clear and convincing reasons'"); see also
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)
(ALJ engages in two-step analysis to determine credibility:
First, the ALJ determines whether there is "objective
medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms
alleged"; and second, if the claimant has presented such
evidence, and there is no evidence of malingering, then the
ALJ must give "specific, clear and convincing reasons in
order to reject the claimant's testimony about the
severity of the symptoms.") (internal quotation marks
determining the credibility of a plaintiff's complaints
of pain or other limitations, the ALJ may properly consider
several factors, including the plaintiff's daily
activities, inconsistencies in testimony, effectiveness or
adverse side effects of any pain medication, and relevant
character evidence. Orteza v. Shalala, 50 F.3d 748,
750 (9th Cir. 1995). The ALJ may also consider the ability to
perform household chores, the lack of any side effects from
prescribed medications, and the unexplained absence of
treatment for excessive pain. Id.; see also
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008) ("The ALJ may consider many factors in weighing a
claimant's credibility, including (1) ordinary techniques
of credibility evaluation, such as the claimant's
reputation for lying, prior inconsistent statements
concerning the symptoms, and other testimony by the claimant
that appears less than candid; (2) unexplained or
inadequately explained failure to seek treatment or to follow
a prescribed course of treatment; and (3) the claimant's
daily activities.") (internal quotation marks omitted).
Ninth Circuit explained in Molina:
In evaluating the claimant's testimony, the ALJ may use
ordinary techniques of credibility evaluation. For instance,
the ALJ may consider inconsistencies either in the
claimant's testimony or between the testimony and the
claimant's conduct, unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of
treatment, and whether the claimant engages in daily
activities inconsistent with the alleged symptoms[.] While a
claimant need not vegetate in a dark room in order to be
eligible for benefits, the ALJ may discredit a claimant's
testimony when the claimant reports participation in everyday
activities indicating capacities that are transferable to a
work setting[.] Even where those activities suggest some
difficulty functioning, they may be grounds for discrediting
the claimant's testimony to the extent that they
contradict claims of a totally debilitating impairment.
Molina, 674 F.3d at 1112-13 (citations and internal
quotation marks omitted).
cited the proper two-step inquiry. Tr. 21. He noted
Plaintiff's allegations that her ability to work is
limited by clinical depression, PTSD, gender dysphoria,
anxiety, OCD, and ADD. Tr. 21 (citing Tr. 218). He further
noted her hearing testimony that she experiences stomach
problems when stressed, she has difficulty interacting with
the public, and she experiences nightmares that keep her
awake. Id. But, the ALJ explained, while
Plaintiff's medically determinable impairments could
reasonably be expected to produce such symptoms,
Plaintiff's statements concerning the intensity,
persistence, and limiting effects of these symptoms were not
"entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this
decision." Id. Thus, the ALJ found
Plaintiff's statements "to affect [her] ability to
work only to the extent they can reasonably be accepted as
consistent with the objective medical and other
then addressed Plaintiff's gender dysphoria and noted
that while she had been diagnosed with this impairment, she
had taken steps to transition from male to female. Tr. 22. He
observed that she had taken hormones and had surgery to
change her appearance. Id. She had further surgery
the ALJ found that the record showed little mental health
treatment during the period at issue. Id. He noted
records showing that in June 2014, she had not been seen for
more than one year, and that she had additional appointments
in December 2014, at which she reported she was not in
counseling. Id. In July 2015, she had another
appointment and was advised to seek therapy. Id. She
began treatment with Charlotte Redway, LCSW in November 2015,
seeing Redway eight times in thirteen months. Id.
rejected Plaintiff's testimony about experiencing manic
episodes for several reasons. Tr. 23. The diagnosis, by
Redway, was not from an acceptable medical source and thus,
under controlling regulations, could not be considered a
valid medically determinable impairment. Id.
Further, the record showed that the diagnosis was based on
Plaintiff's self-reported history. Id. And, at
that time, Plaintiff denied manic episodes. Id. At
one point in July 2015 when Plaintiff reported that she
cleans repeatedly and does not sleep ...