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Norbert S. v. Berryhill

United States District Court, D. Oregon, Eugene Division

June 11, 2019

NORBERT S., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          JOHN E. HAAPALA, JR. Of Attorney for Plaintiff,

          BILLY J. WILLIAMS United States Attorney RENATA GOWIE Assistant United States Attorney

          SARAH MARTIN Special Assistant United States Attorney Office of the General Counsel Social Security Administration Of Attorney for Defendant

          OPINION AND ORDER

          JOHN V. ACOSTA, UNITED STATES MAGISTRATE JUDGE.

         Norbert S. ("Plaintiff) seeks judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II the Social Security Act ("Act"). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with Federal Rule of Civil Procedure 73 and 28 U.S.C. § 636(c). See (doc. 4.) Based on a careful review of the record, the Commissioner's decision is AFFIRMED and this case is DISMISSED.

         Procedural Background

         Plaintiff applied for DIB on June 28, 2013, alleging a disability onset date as of April 15, 2011, due to chronic pain, right hip replacement, right shoulder replacement, gall bladder removal, partial intestine removal, left ankle injury, and depression. (Tr. 28, 232, 259.) His application was denied initially and upon reconsideration. (Tr. 105, 118.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and an administrative hearing was held on May 31, 2016. (Tr. 55-103.) ALJ Steven A. De Monbreum issued a decision finding Plaintiff not disabled on December 21, 2016. (Tr. 28-38.) The Appeals Council denied Plaintiffs request for review on December 14, 2017, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-6.) This appeal followed.

         Factual Background

         Born in 1958, Plaintiff was 52 years old on the alleged onset date. (Tr. 105, 118.) He completed high school and obtained an associate's degree in auto-mechanics. (Tr. 71, 115, 128, 260.) Plaintiff previously worked as supervisor and owner of an automobile repair shop. (Tr. 37-38, 260-61.)

         Standard of Review

         The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [a court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected ... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowenv. Yuckert, 482 U.S. 137, 140(1987); 20C.F.R. §§404.1520, 416.920.

         At step one, the Commissioner determines whether the claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, she is not disabled. At step two, the Commissioner evaluates 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 the claimant does not have a severe impairment, she is not disabled.

         At step three, the Commissioner determines whether the claimant's impairments, either individually 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, she is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         At step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant can perform past relevant work, she is not disabled; if she cannot, the burden shifts to the Commissioner.

         At step five, the Commissioner must establish the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(g), 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         ALJ's Decision

         The ALJ performed the sequential analysis, as noted above. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date. (Tr. 30.) At step two, the ALJ determined Plaintiff had the following severe impairments: history of a right hip replacement and shoulder replacement, chronic liver disease, avascular necrosis of the left shoulder, osteoarthritis, and chronic obstructive pulmonary disease. (Id.) At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (Tr. 32.)

         The ALJ next determined Plaintiff had the residual functional capacity ("RFC") to perform "light work" with the following non-exertional limitations:

[L]ifting 20 pounds occasionally and 10 pounds frequently; standing and/or walking about 6 hours total in an 8-hour day; sitting for about 6 hours total in an 8-hour day; and using the lower extremities occasionally. Reaching in the right upper extremity is restricted to occasional. Postural limitations included occasional climbing ramps or stairs; never climbing ladders, ropes, and scaffolds; frequently kneeling, balancing, and crouching; occasionally stooping or bending; and never crawling. He is to avoid exposure to more than occasionally dust, fumes, odors, chemicals, and gases.

(Tr. 33.)

         At step four, the ALJ determined that Plaintiff was able to perform his past relevant work as a "supervisor garage" as "actually and generally performed." (Tr. 37-38.) Because the ALJ found Plaintiff could return to his past relevant work at step four, the ALJ did not reach step five. Accordingly, the ALJ concluded Plaintiff was not disabled under the Act. (Tr. 38.)

         Discussion

         Plaintiff argues the ALJ erred by: (1) failing to provide clear and convincing reasons for rejecting his subjective symptom testimony; and (2) improperly rejecting the medical opinions of physicians Rudolf Hoellrich and Robert Yeh.

         I. Plaintiffs Subjective Symptom Testimony

         Plaintiff contends the ALJ failed to provide clear and convincing reasons for rejecting his subjective symptom testimony. To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two stages of analysis. Trevizo v. Berryhill, 871 F.3d 664, 678 (9th Cir. 2017); 20 C.F.R. §§ 404.1529, 416.929. The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce the symptoms alleged. Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). At the second stage, absent affirmative evidence that the claimant is malingering, the ALJ must provide clear and convincing reasons for discrediting the claimant's testimony regarding the severity of the symptoms. Carmickle v. Commissioner Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007).

         The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony. Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015). Factors the ALJ may consider when making such credibility determinations include the objective medical evidence, the claimant's treatment history, the claimant's daily activities, and inconsistencies in testimony.[2] Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2013); Tommasetti, 533 F.3d at 1039.

         At the hearing, Plaintiff testified he had a moderate activity level and exercised two to three times per week, taking "short walks, bending, [and] stretching" and using a three pound "free weight." (Tr. 69-70.) He explained that he can do household chores, such as washing his clothes and preparing meals, but requires "a lot of breaks" and must rest afterward. (Tr. 69, 78.) He testified he does not lift "over 20 pounds at a time." (Tr. 69.) Finally, he stated he loses his balance easily in the shower, making bathing difficult. (Tr. 78.)

         In his function report, Plaintiff wrote that his pain interfered with his ability to dress, bathe, and wash his hair. (Tr. 283.) He noted that he cooks "T.V. dinners [and] sandwiches," but that they take him approximately one hour to prepare. (Id.) Plaintiff indicated that his pain limits his ability to: lift, squat, bend, stand, walk, kneel, climb stairs, and remember. (Tr. 286.) He wrote he can, with a cane, walk no more than 50 feet before needing to stop and rest. (Id.)

         The ALJ found Plaintiffs statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely consistent with the medical and other evidence in the record. (Tr. 33.) Notably, Plaintiff failed to allege with specificity the subjective symptom testimony he believes the ALJ erroneously rejected. See Lori S. v. Berryhill, No. 6:17-cv-1267-SI, 2018 WL 4742511, at *5 (D. Or. Oct. 2, 2018). The court nevertheless examines the ALJ's reasoning below. Specifically, the ALJ offered three rationales for discounting Plaintiffs testimony: (1) his pain was controlled with medication; (2) his ...


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