United States District Court, D. Oregon, Portland Division
GAIL A. N.,  Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.
OPINION & ORDER
MARCO A. HERNÁNDEZ, United States District
brings this action for judicial review of the
Commissioner's final decision denying her application for
Disability Insurance Benefits (“DIB”) under Title
II of the Social Security Act. The Court has jurisdiction
under 42 U.S.C. § 405(g) (incorporated by 42 U.S.C.
§ 1382(c)(3)). Because the Administrative Law Judge
(ALJ) erred by improperly discounting Plaintiff's
subjective symptom testimony, lay witness testimony, and
medical opinion evidence, the Court REVERSES the
Commissioner's decision and REMANDS this case for further
was born on September 9, 1974 and was thirty-nine years old
on June 21, 2014, the alleged disability onset date. Tr.
Plaintiff met the insured status requirements of the Social
Security Act (“SSA” or “Act”) through
December 31, 2019. Tr. 80. Plaintiff has at least a high
school education and is unable to perform any past relevant
work. Tr. 88. Plaintiff claims she is disabled based on
conditions including fibromyalgia, depression, anxiety, and
migraines. Tr. 241.
benefits application was denied initially on December 26,
2014, and upon reconsideration on March 2, 2015. Tr. 79. A
hearing was held before Administrative Law Judge Rebecca
Jones on August 11, 2016. Tr. 96-136. ALJ Jones issued a
written decision on February 28, 2017, finding that Plaintiff
was not disabled and therefore not entitled to benefits. Tr.
79-90. The Appeals Council declined review, rendering ALJ
Jones's decision the Commissioner's final decision.
claimant is disabled if 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). Disability claims are evaluated according to a
five-step procedure. Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685, 689 (9th Cir. 2009). The claimant
bears the ultimate burden of proving disability. Id.
one, 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). At 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 claimant'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, the claimant is not disabled. If the
claimant cannot perform past relevant work, the burden shifts
to the Commissioner. At 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 its 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 found that Plaintiff had not engaged in
substantial gainful activity since the alleged disability
onset date. Tr. 80.
two, the ALJ determined that Plaintiff had “the
following severe impairments: fibromyalgia and migraine
headaches.” Tr. 80. The ALJ determined that
Plaintiff's thyroid disorder, degenerative disc disease
of the thoracic spine, depressive disorder, and anxiety
disorder were not severe. Tr. 80-81.
three, the ALJ determined that Plaintiff did not have any
impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments. Tr. 82.
proceeding to step four, the ALJ found that Plaintiff had the
residual functional capacity (RFC) to perform light work. The
ALJ further specified that “[s]he could perform work
that does not require climbing ladders, ropes or scaffolds.
She [could] perform work that does not require exposure to
unprotected heights or hazardous machinery. She [could]
perform simple routine tasks defined as no greater than
reasoning level 2.” Tr. 82.
four, the ALJ determined that Plaintiff was unable to perform
any past relevant work. Tr. 88.
five, the ALJ relied on the testimony of a vocational expert
to find that there were jobs that existed in significant
numbers in the national economy that Plaintiff could have
performed. Tr. 89. Accordingly, the ALJ concluded that the
Plaintiff was not disabled. Tr. 90.
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). “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). Courts consider 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 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 omitted).
raises four issues on appeal. She argues the ALJ erred by
improperly (1) rejecting her subjective symptom testimony;
(2) categorizing her anxiety and depression as non-severe;
(3) rejecting lay witness testimony; and (4) rejecting
medical opinion evidence.
argues the ALJ improperly discounted her subjective symptom
testimony. The ALJ is responsible for evaluating symptom
testimony. SSR 16-3p, 2017 WL 5180304, at *1 (Oct. 25, 2017).
Once a claimant shows an underlying impairment and a causal
relationship between the impairment and some level of
symptoms, clear and convincing reasons are needed to reject a
claimant's testimony if there is no evidence of
malingering. Carmickle v. Comm'r, 533 F.3d 1155,
1160 (9th Cir. 2008) (absent affirmative evidence that the
plaintiff is malingering, “where the record includes
objective medical evidence establishing that the claimant
suffers from an impairment that could reasonably produce the
symptoms of which he complains, an adverse credibility
finding must be based on clear and convincing reasons”
(quotation marks and citation omitted)); see also
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir.
2012) (the ALJ engages in a two-step analysis for subjective
symptom evaluation: First, the ALJ determines whether there
is “objective medical evidence of an underlying
impairment which could reasonably be expected to produce the
pain or other symptoms alleged”; and second, “if
the claimant has presented such evidence, and there is no
evidence of malingering, then the ALJ must give specific,
clear and convincing reasons in order to reject the
claimant's testimony about the severity of the
symptoms.” (quotation marks and citations omitted)). An
ALJ must include specific findings supported by substantial
evidence and a clear and convincing explanation for
discounting a claimant's subjective symptom testimony.
evaluating subjective symptom testimony, an ALJ may properly
consider several factors, including a plaintiff's
“daily activities, inconsistencies in testimony,
effectiveness or adverse side effects of any pain medication,
and relevant character evidence.” Orteza v.
Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may
also consider a plaintiff's ability to perform household
chores, the lack of any side effects from prescribed
medications, and the unexplained absence of treatment for
excessive pain. Id.
the ALJ summarized Plaintiff's testimony as follows:
[Plaintiff] testified she was unable to work because of pain
and migraines. She testified she could not sit, stand or walk
for long periods. She testified she could not lift much. She
testified her pain was caused by too much activity, not
getting enough sleep, walking too much, and sitting for
periods. She testified she could sit at most an hour. She
testified that exercising and physical therapy did not help
her pain. She testified her fibromyalgia caused her to be
very forgetful and have difficulty focusing. She testified
having migraines two to three times a month that last for two
to four days. She testified her migraines "started back
up" about a year ago. She testified she could walk a
block before needing to rest for five to ten minutes. She
testified she  could not lift anything frequently. She
testified the most she could lift was ten pounds. She
testified her sleep has gotten progressively worse due to her
pain. She testified having about "two bad" days a
week in which she is resting most of the day. She testified
that being around too many people (ten or more people) caused
her anxiety. She testified she could not handle being around
too many people.
concluded that Plaintiff's “medically determinable
impairments could reasonably be expected to cause some of the
alleged symptoms” and did not identify evidence of
malingering. Tr. 83. However, the ALJ found that
Plaintiff's allegations were not consistent with the
record. Tr. 85. Specifically, (1) the alleged symptoms were
not supported by objective medical evidence; (2) Plaintiff
failed to follow the recommended treatment (i.e. exercise);
(3) “medications/treatment” were relatively
effective in controlling Plaintiff's symptoms; (4)
Plaintiff's testimony regarding the frequency of her
migraines was inconsistent with treatment notes; and (5)
Plaintiff's daily activities were “not limited to
the extent one would expect, given the complaints of
disabling symptoms and limitations.” Tr. 86-87. The ALJ
also found that Plaintiff's mental health limitations
were inconsistent with the medical evidence. Tr. 86.