United States District Court, D. Oregon, Eugene Division
E. HAAPALA, JR. Of Attorney for Plaintiff,
J. WILLIAMS United States Attorney RENATA GOWIE Assistant
United States Attorney
MARTIN Special Assistant United States Attorney Office of the
General Counsel Social Security Administration Of Attorney
OPINION AND ORDER
V. ACOSTA, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.)
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
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).
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.
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.
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.
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.
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.
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.)
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.
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.)
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.
Plaintiffs Subjective Symptom Testimony
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).
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. Ghanim v. Colvin, 763 F.3d 1154,
1163 (9th Cir. 2013); Tommasetti, 533 F.3d at 1039.
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.)
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.)
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 ...