United States District Court, D. Oregon, Eugene Division
THERESA M. K., Plaintiff,
COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
OPINION AND ORDER
MUSTAFA T. KASUBHAI United States Magistrate Judge
Theresa M. K. 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).
Both parties consent to jurisdiction by a U.S. Magistrate
reasons discussed below, the Court remands for the immediate
calculation and award of benefits.
applied for Disability Insurance Benefits on December 23,
2013, alleging disability beginning April 22, 2013. Tr. 53.
Her claims were initially denied, and Plaintiff timely
requested and appeared for a hearing before Administrative
Law Judge (“ALJ”) Steven A. De Mondbreum on May
1, 2017. Id. During the hearing, Plaintiff's
attorney amended the onset date of disability to June 1, 2014
(“AOD”). Tr. 53, 80-81. The ALJ denied
Plaintiff's application in a written decision dated June
22, 2017. See Tr. 53-65. Plaintiff sought review
from the Appeals Council and submitted new evidence.
Pl.'s Br. 18 (ECF No. 21); see Tr. 2, 16-49. The
Appeals Council declined to include the newly submitted
evidence into the record and denied review of the ALJ's
decision, rendering the ALJ's decision the final decision
of the Commissioner. Tr. 1-4. 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 Cir. 2001).
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 amended onset date of
June 1, 2014. Tr. 56. At step two, the ALJ found Plaintiff
had the following severe impairments: degenerative disc
disease (DDD) status post lumbar surgery (October 12, 2015),
depressive disorder, history of posttraumatic stress disorder
(PTSD), history of attention deficit hyperactivity disorder
(ADHD), and peripheral neuropathy. Id. While noting
that the record also references other conditions including
fine tremor, the ALJ found that they do not constitute
“severe” impairments. 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. 56-58.
to step four, the ALJ determined that Plaintiff retained
residual functional capacity
(“RFC”) that allowed her to perform light work.
Tr. 58. Specifically, the ALJ found that Plaintiff can
lift/carry 20 pounds occasionally and 10 pounds frequently,
sit for about 6/8 hours total, and stand/walk for about 6/8
hours total, except the claimant can frequently balance,
occasionally climb ramps and stairs but never ladder, ropes
or scaffolds, occasionally kneel, crouch, and stoop/bend but
never crawl, should have no exposure whatsoever to vibration
and hazards such as dangerous machinery and unprotected
heights, and can understand, remember, and carry out short,
simple, routine job instructions with a DOT GED reasoning
level of 2 or less, consistent with unskilled work.
four, the ALJ found that Plaintiff is unable to perform any
past relevant work. Tr. 63. 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 garment sorter,
bottle line attendant, and routing clerk. Tr. 64.
seeks review by this Court contending that (1) the ALJ
committed harmful error by finding Plaintiff's weak grip
strength and tremors did not meet step two; (2) the Appeals
Council erred in reviewing but not considering the new
evidence Plaintiff submitted to the Appeals Council; (3) the
ALJ failed to provide clear and convincing reasons to reject
Plaintiff's subjective complaints; and (4) the ALJ did
not provide legitimate germane reasons to reject the lay
witness testimony of Plaintiff's husband.
requests this case to be remanded with specific direction for
the ALJ to reconsider (1) Plaintiff's hand tremors, (2)
the diagnosis of Parkinson's disease, (3) Plaintiff's
complaints in light of her retroactive diagnosis, and (4)
given the limitations whether or not Plaintiff could sustain
jobs in the national economy.
argues that the ALJ based his finding of non-severity at step
two of Plaintiff's tremors largely on his discrediting of
Plaintiff's testimony and his finding that her tremors
had not worsened. Pl.'s Br. 15 (ECF No. 21). The Court
therefore first addresses the issue of subjective testimony.
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.
the ALJ discredited Plaintiff's subjective complaints
based on several stated reasons: (1) Plaintiff “was
actually working more even though she [claimed that] she was
in more pain, Tr. 61; (2) Plaintiff had earnings in the third
and fourth quarters of 2014, and she earned more money in
2014 “because she took on extra work, ” Tr. 61;
(3) Plaintiff generally received conservative treatment, Tr.
59, 61; (4) Plaintiff did not receive physical therapy for
her back pain as recommended by doctors, Tr. 59; (5)
Plaintiff's back surgery and procedures “appeared
to be successful, ” Tr. 60; (6) Plaintiff's
“depression was considered under control in spite of
some stress” in 2017, Tr. 60; and (7) Plaintiff's
“daily activities are quite involved, ” including
watching her grandson, home tasks and crocheting, Tr. 60-61.
Pre-AOD Work History and Post-AOD Earning
the claimant's lengthy history of impairment did not
prevent her from working, the ALJ may discredit the
claimant's subjective complaints. Gregory v.
Bowen, 844 F.2d 664, 667 (9th Cir. 1988) (finding that
the claimant's back problems had remained constant for a
number of years and had not prevented her from working, which
are substantial evidence to support the decision that the
claimant's back problems did not render her disabled). An
ALJ may also find the claimant's subjective complaints
not credible if the claimant left a job for reasons unrelated
to the impairments. See Bruton v. Massanari, 268
F.3d 824, 828 (9th Cir. 2001) (affirming the ALJ's
finding that the claimant's subjective complaints not
credible because, among other factors, the claimant left his
job because he was laid off, rather than because he was
Plaintiff first reported low back pain of an 8/10 pain scale
on December 9, 2013. Tr. 415. Unlike the claimant in
Gregory who was able to work despite constant back
pain for “a number of years, ” Plaintiff left her
school bus driver job about six months later. Tr. 80. She did
not have a lengthy history of low back pain when she left her
job. Plaintiff “attributes the worsening [of the low
back pain] to starting to drive the bus in September which
she does during the school year. She states that every school
year the pain becomes worse as the school year goes
on.” Tr. 487. Plaintiff put her name on the list to be
on call as an education assistant. Tr. 90. She testified at
the hearing that as an education assistant she would work on
the playground or go from desk to desk to help students. Tr.
88-89. The duty of an education assistant does not require
Plaintiff to sit at all times like a school bus driver.
the ALJ's discrediting of Plaintiff's subjective
complaints because she was working more while she was in more
pain, the ALJ failed to consider or develop the pertinent
records for possible explanations why Plaintiff worked more.
Since Plaintiff attributes the worsening of her low back pain
to driving the school bus, she may have taken on the
education assistant duty in order to alleviate her low back
pain from driving the bus. As such, the ALJ did not provide
specific, clear and convincing reasons to discredit
Plaintiff's subjective complaints based on her extra
Plaintiff's earnings in the third and fourth quarters of
2014, Plaintiff testified that she tried to perform three
insurance jobs after leaving the school bus driver job but
was unable to meet the jobs' demands. Tr. 102-04. She
couldn't move her hands or function on the same level as
what was expected of her. Tr. 102. She “was let go each
time.” Id. Plaintiff's earnings after the
school district job totaled $4, 486 in 2014. See Tr.
255 (Plaintiff earned $675, $2, 733, and $1, 078 respectively
from three employers). The record does not include specific
job descriptions for these three jobs from which any
reasonable conclusions could be drawn of what the work
Plaintiff was actually doing. For example, the records do not
specify Plaintiff's hourly wage, weekly hours, how long
she was employed with each employer, and what the job duties
were. Therefore, the ALJ's rejection of Plaintiff's
subjective statements based on her earnings after the AOD
lacks specific, clear and convincing reasons.
received by a claimant is a relevant factor in determining
the severity of a claimant's symptoms. 20 C.F.R.
§§ 404.1529(c)(3), 416.929(c)(3).
may discredit a claimant's pain testimony based on a
history of conservative treatment. Johnson v.
Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995) (finding
that the ALJ provided clear and convincing reasons to
properly decline to rely on the claimant's testimony and
noting that the doctor prescribed only “conservative
treatment” which suggested a lower level of both pain
and functional limitation).
noted “conservative treatment” three times in his
decision. He first found that “[c]onservative treatment
was recommended” while referring to Plaintiff's low
back pain symptoms in February 2014. Tr. 59. The ALJ then
found that “the record reveals [that Plaintiff] has
received general conservative and routine treatment”
because “a neurosurgeon did not think [Plaintiff] was a
good candidate for surgery.” Tr. 61. Dr. Matthew
Miller, the neurosurgeon who did not think Plaintiff was a
good candidate for surgery, examined Plaintiff and rendered
his opinion on April 30, 2014. Tr. 491-92. These conservative
treatments pre-date Plaintiff's amended onset date and do
not conflict with Plaintiff's symptoms after the amended
onset date. Plaintiff received conservative treatment a few
months after ...