United States District Court, D. Oregon
Katherine L. Eitenmiller Brent Wells HARDER, WELLS, BARON
& MANNING, P.C. Attorneys for Plaintiff
Gowie Assistant United States Attorney District of Oregon, L.
Jamala Edwards Social Security Administration Office of the
General Counsel Attorneys for Defendant
OPINION & ORDER
A. HERNÁNDEZ United States District Judge
Marti Jean K. 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)).
The Court reverses and remands the Commissioner's
decision for further proceedings.
applied for DIB and SSI on February 10, 2014, and November 3,
2015, alleging onset dates of January 9, 2014, and August 23,
2013, respectively. Tr. 79, 182. Her application was denied
initially and on reconsideration. Tr. 110-14, 120-24
October 17, 2016, Plaintiff appeared, with counsel, for a
hearing before an Administrative Law Judge (ALJ). Tr. 38. At
the hearing, Plaintiff amended her alleged onset date to
September 1, 2014. Tr. 45. On December 8, 2016, the ALJ found
Plaintiff not disabled. Tr. 32. The Appeals Council denied
review. Tr. 1.
alleges disability based on multiple sclerosis; visual
disturbances, including loss of vision, double vision, and
blurred vision; neuropathy; chronic pain and weakness;
fibromyalgia; cognitive problems; depression; anxiety;
migraines; and “abnormal brain mri's.” Tr.
241. At the time of the hearing, she was 46 years old. Tr.
30. She has a high school education and some additional
coursework, tr. 49, and she has past relevant work experience
as a home attendant and insurance clerk/receptionist, tr. 30.
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). Disability 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 after her amended alleged onset
date of September 1, 2014. Tr. 23. Next, at steps two and
three, the ALJ determined that Plaintiff has the following
severe impairments: “multiple sclerosis (MS),
fibromyalgia, and depressive disorder.” Tr. 24.
However, the ALJ determined that Plaintiff's impairments
did not meet or medically equal the severity of a listed
impairment. Tr. 25. At step four, the ALJ concluded that
Plaintiff has the residual functional capacity to perform
light work as defined in 20 CFR §§ 404.1567(b) and
416.967(b) with the following limitations:
[T]he claimant can lift and carry 20 pounds occasionally, and
10 pounds frequently. She can stand and walk 4 hours in an 8
hour day, and sit for 6 hours in an 8 hour day. The claimant
can occasionally climb ramps and stairs, and never climb
ladders, ropes, or scaffolds. She is able to perform simple,
Because of these limitations, the ALJ concluded that
Plaintiff could not perform her past relevant work as a home
attendant and insurance clerk/receptionist. Tr. 30. But at
step five the ALJ found that there are jobs that exist in
significant numbers in the national economy that Plaintiff
can perform, such as “office helper, ”
“parking lot attendant, ” and
“router.” Tr. 31. Thus, the ALJ concluded that
Plaintiff is not disabled. Tr. 31.
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 that the ALJ erred by: (1) improperly rejecting
Plaintiff's subjective symptom testimony; (2) improperly
discounting the opinions of Plaintiff's treating
physicians Dr. Boggs, Dr. Yates, and Dr. Cole; and (3)
improperly discounting the lay witness testimony of Karen A.,
Plaintiff's mother. Pl. Br. 12-13, ECF 14. This Court
Subjective Symptom Testimony
argues that the ALJ erred in discounting her subjective
symptom testimony. The ALJ is responsible for determining
credibility. Vasquez, 572 F.3d at 591. In assessing
a claimant's testimony regarding subjective pain or the
intensity of symptoms, the ALJ engages in a two-step
analysis. 20 C.F.R. §§ 404.1529, 416.929. The first
stage is a threshold test in which the claimant must present
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 of this analysis, absent
affirmative evidence of malingering, the ALJ must provide
clear and convincing reasons for discrediting the
claimant's testimony regarding the severity of the
symptoms. Carmickle v. Comm'r Soc. Sec. Admin,
533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter,
504 F.3d at 1036.
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.
Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir.
2014); Brown-Hunter v. Colvin, 806 F.3d 487, 493
(9th Cir. 2015). Factors the ALJ may consider when making
such determinations include the objective medical evidence,
the claimant's treatment history, the claimant's
daily activities, and inconsistencies in the testimony.
Ghanim, 763 F.3d at 1163; Tommasetti, 533
F.3d at 1039. In addition, conflicts between a claimant's
testimony and the objective medical evidence in the record
can undermine a claimant's credibility. Morgan v.
Comm'r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir.
the ALJ's credibility findings are supported by
substantial evidence in the record, the reviewing court
“may not engage in second-guessing.” Thomas
v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). However,
a general assertion that plaintiff is not credible is
insufficient; the ALJ must “state which . . . testimony
is not credible and what evidence suggests the complaints are