United States District Court, D. Oregon, Eugene Division
FINDINGS AND RECOMMENDATION
MUSTAFA T. KASUBHAI UNITED STATES MAGISTRATE JUDGE.
Joyce S. brings this action for judicial review of the
Commissioner of Social Security's
(“Commissioner's”) decision denying her
application for Disability Insurance Benefits under the
Social Security Act (the “Act”). This court has
jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c).
For reasons discussed below, the Court should reverse the
Commissioner's decision and remand this case for the
immediate calculation and award of benefits.
applied for Disability Insurance Benefits on July 25, 2013,
alleging disability beginning July 24, 2013. Tr. 210-16. Her
claims were denied initially, and Plaintiff timely requested
and appeared for a hearing before Administrative Law Judge
(“ALJ”) John Michaelsen on December 3, 2015. Tr.
160-64, 169-74, 99-135. The ALJ denied Plaintiff's
application in a written decision dated February 16, 2016.
Tr. 70-92. Plaintiff sought review from the Appeals Council,
which was denied, rendering the ALJ's decision the final
decision of the Commissioner. Plaintiff now seeks judicial
review of the decision.
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. 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, a court reviews the
administrative record as a whole, “weighing both the
evidence that supports and detracts from the ALJ's
conclusion.” 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. See 20 C.F.R. §§ 404.1520,
416.920. The initial burden of proof rests upon the claimant
to meet the first four steps. Id. If the claimant
satisfies her burden with respect to the first four steps,
the burden shifts to the commissioner at step five.
Id.; see also Johnson v. Shalala,
60 F.3d 1428, 1432 (9th Cir. 1995). 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. 20
C.F.R. §§ 404.1520(a)(4)(v) & 416.920(a)(4)(v).
If the Commissioner fails to meet this burden, then the
claimant is disabled. Id. 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. Id.; see
also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th
present case, the ALJ found that Plaintiff was not disabled.
At step one, the ALJ found that Plaintiff has not engaged in
substantial gainful activity since the onset date of July 24,
2013. Tr. 75. At step two, the ALJ found Plaintiff had the
following severe impairments: aortic stenosis with a history
of atrial fibrillation, obesity, affective disorder, and
anxiety-related disorder. Id. At step three, the ALJ
found Plaintiff did not have an impairment or combination of
impairments that met or equaled the requirements of a listed
impairment in 20 CFR Part 404, Subpart P, Appendix 1. Tr. 18.
to step four, the ALJ determined that Plaintiff retained
residual functional capacity (“RFC”) that allowed
her to perform light work except with the following
The claimant could not frequently balance and occasionally
stoop, crouch, crawl, kneel, or climb ramps or stairs. She
could not climb ladders, ropes, or scaffolds. The claimant
would need to avoid concentrated exposure to temperature
extremes as well as any exposure to unprotected heights,
moving machinery, or similar hazards. The claimant could
perform simple, repetitive, routine tasks.
four, the ALJ found that Plaintiff is unable to perform any
past relevant work. Tr. 86. At step five, the ALJ found that
there are jobs that exist in significant numbers in the
national economy that Plaintiff can perform based on her age,
education, work experience, and RFC, such as Electronics
Worker, Small-Products Assembler, and Information Router. Tr.
contends that the ALJ erred by failing to identify legally
sufficient bases supported by substantial evidence in the
record to: (1) discredit Plaintiff's subjective
statement; (2) reject the examining medical source opinion of
psychologist Judith Eckstein, Ph.D., and the treating medical
source opinion of Elaine Callahan, M.D.; and (3) reject the
competent lay witness statement of Plaintiff's sister,
Subjective Symptom Testimony
claimant has medically documented impairments that could
reasonably be expected to produce some degree of the symptoms
complained of, and the record contains no affirmative
evidence of malingering, “the ALJ can reject the
claimant's testimony about the severity of . . . symptoms
only by offering specific, clear and convincing reasons for
doing so.” Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996) (internal citation omitted). A general
assertion the claimant is not credible is insufficient;
instead, the ALJ must “state which . . . testimony is
not credible and what evidence suggests the complaints are
not credible.” Dodrill v. Shalala, 12 F.3d
915, 918 (9th Cir. 1993). The reasons proffered must be
“sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the
claimant's testimony.” Orteza v. Shalala,
50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).
If the ALJ's finding regarding the claimant's
subjective symptom testimony is “supported by
substantial evidence in the record, [the court] may not
engage in second-guessing.” Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal
Security Ruling (“SSR”) 16-3p provides that
“subjective symptom evaluation is not an examination of
an individual's character, ” and requires the ALJ
to consider all of the evidence in an individual's record
when evaluating the intensity and persistence of symptoms.
SSR 16-3p, available at 2016 WL 1119029 at *1-2. The
ALJ must examine “the entire case record, including the
objective medical evidence; an individual's statements
about the intensity, persistence, and limiting effects of
symptoms; statements and other information provided by
medical sources and other persons; and any other relevant
evidence in the individual's case record.”
Id. at *4.
Non-Compliance of Treatment
the medical reports or records show that the [claimant] is
not following the treatment as prescribed and there are no
good reasons for this failure, ” the [claimant]'s
statements may be less credible. Molina v. Astrue,
674 F.3d 1104, 1113 (9th Cir. 2012) (citing SSR 96-7p).
“Moreover, a claimant's failure to assert a good
reason for not seeking treatment, ‘or a finding by the
ALJ that the proffered reason is not believable, can cast
doubt on the sincerity of the claimant's pain
testimony.'” Id. (citing Fair v.
Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). Where reasons
for non-compliance are provided but no medical evidence
supports that the claimant's non-compliance was
“attributable to her mental impairment rather than her
own personal preference, ” it is reasonable for the ALJ
to conclude that the level or frequency of treatment was
inconsistent with the level of complaints. Id. at
found that Plaintiff's “history of
non-compliance” among other factors undermined the
credibility of her statements. Tr. 83. In November 2013 and
January 2014, Plaintiff reported that she was not taking
medication for her heart condition as prescribed because
“she wakes up late.” Tr. 462, 464. In July 2014,
Plaintiff had not presented for an International Normalized
Ratio (“INR”) in three months, even though Plaintiff
was supposed to check her INR on a monthly basis. Tr. 684,
687. Plaintiff repeatedly failed to follow dietary
recommendations to manage her weight and diabetes. Tr. 462
(“She has gained 30 pounds of weight since her last
visit due to dietary noncompliance. She has a history of
diet-controlled diabetes but has not been following her
sugars.” (January 2, 2014)); Tr. 544 (“Diabetes.
Not controlled, but patient not following any diet. …
When she has kept to a strict diet, she has not needed
medication for glycemic control.” (January 6, 2014));
Tr. 681 (“She does not check her sugars.”
(October 22, 2014)); Tr. 684 (“She reports rarely
checking her blood glucose, she reports trying to keep to a
restricted caloric and carbohydrate diet, [sic] but likes her
dessert at nighttime and usually takes 2 ...