United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane, United States District Judge
brings this action for judicial review of the
Commissioner’s decision denying his application for
disability insurance benefits (“DIB”). This court
has jurisdiction under 42 U.S.C. §§ 405(g).
alleged disability as of April 15, 2007. Tr.
On October 27, 2016, Plaintiff appeared at a hearing before
an Administrative Law Judge (ALJ) and presented testimony
under oath. Tr. 49-97. On November 28, 2016, the ALJ
determined Plaintiff was not disabled through December 31,
2012 (the date last insured), and was not disabled through
July 4, 2016, but that Plaintiff was disabled as of July 5,
2016 (when he turned 55 years old). Tr. 43-44.
argues the ALJ erred in rejecting his subjective complaints
of symptoms and limitations and in rejecting certain opinions
of treating and examining physicians. Because the
Commissioner’s decision is based on proper legal
standards and supported by substantial evidence, the
Commissioner’s decision is AFFIRMED.
reviewing court shall affirm the decision of the Commissioner
of Social Security if her 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 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, the
district court must review the administrative record as a
whole, weighing both the evidence that supports and detracts
from the ALJ’s decision. 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. 20 C.F.R. §§ 404.1520 & 416.920
(2012). The initial burden of proof rests upon the claimant
to meet the first four steps. If the claimant satisfies his
burden with respect to the first four steps, the burden
shifts to the Commissioner for step five. 20 C.F.R. §
404.1520. 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. Id. If the Commissioner fails to meet
this burden, then the claimant is disabled. 20 C.F.R.
§§ 404.1520(a)(4)(v); 416.920(a)(4)(v). 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.
Bustamante v. Massanari, 262 F.3d 949,
953-54 (9th Cir. 2001).
two, the ALJ found that Plaintiff had the following severe
impairments: right shoulder impingement and acromioclavicular
joint arthrosis status post arthroscopic repair; a long
history of classic and common migraines; anxiety disorder not
otherwise specified with traits of OCD; PTSD; panic disorder;
agoraphobia; moderate single-episode major depressive
disorder; and mild degenerative disc disease. Tr. 24-25. In
formulating Plaintiff’s RFC, the ALJ concluded that
Plaintiff could perform light work with the following
relevant limitations: he could stand/and or walk six hours;
he could sit for six hours; he could occasionally reach
overhead with his right hand; he must have access to bathroom
facilities within five minutes of his work station; he could
perform work limited to simple, routine tasks; and he could
perform tasks requiring simple workplace judgment. Tr. 30.
Based on the vocational expert’s (“VE”)
testimony, the ALJ concluded Plaintiff could not perform past
relevant work, but could perform the jobs of cleaner
housekeeping, garment folder, and agriculture produce sorter.
Tr. 41-42. As the Plaintiff could perform the above jobs, the
ALJ determined Plaintiff was not disabled until reaching the
“advanced age” of 55 years old, at which point
Plaintiff was disabled because he could not perform past
relevant work. Tr. 42-43.
argues the ALJ erred in finding his testimony as to the
extent of his symptoms and limitations less-than fully
credible. Plaintiff also argues the ALJ erred in rejecting
certain opinions of treating and examining physicians. I
disagree and turn first to the ALJ’s determination that
Plaintiff was not fully credible as to the extent of his
The ALJ’s Adverse Credibility
as here, Claimant has presented evidence of an underlying
impairment and the government does not argue that there is
evidence of malingering, we review the ALJ’s rejection
of her testimony for ‘specific, clear and convincing
reasons.’” Burrell v. Colvin, 775 F.3d
1133, 1136 (9th Cir. 2014) (quoting Molina v.
Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). The ALJ is
not “required to believe every allegation of disabling
pain, or else disability benefits would be available for the
asking, a result plainly contrary to 42 U.S.C. §
423(d)(5)(A).” Molina, 674 F.3d at 1112
(quoting Fair v. Bowen, 885 F.2d 597, 603 (9th
Cir.1989)). The ALJ “may consider a wide range of
factors in assessing credibility.” Ghanim v.
Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014). These
factors can include “ordinary techniques of credibility
evaluation, ” id., as well as:
(1) whether the claimant engages in daily activities
inconsistent with the alleged symptoms; (2) whether the
claimant takes medication or undergoes other treatment for
the symptoms; (3) whether the claimant fails to follow,
without adequate explanation, a prescribed course of
treatment; and (4) whether the alleged symptoms are
consistent with the medical evidence.
Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th
Cir. 2007). The ALJ in this case supported his credibility
determination with references to several of the above
noted Plaintiff testified that he stopped working not because
of his symptoms, but because his employer laid him off. Tr.
32. An ALJ may legitimately conclude a Plaintiff’s
limitations are not as severe as alleged when the Plaintiff
admits his employment ended for reasons unrelated to his
limitations and symptoms. See Bruton v. Massanari,
268 F.3d 824, 828 (9th Cir. 2001) (concluding ALJ did not err
in disregarding symptom testimony when evidence supported the
determination that claimant “left his job because he
was laid off, rather than because he was injured[.]”).
Here, Plaintiff alleged disability as of April 2007, the date
he testified his employer laid him off.
the ALJ noted that “the evidence of record shows that
his level of functioning was not as fully limiting as
alleged[.]” Tr. 32. The ALJ pointed out that although
Plaintiff alleged his vision presented difficulties in
filling out forms, he failed to follow up with a referral to
an ophthalmologist to rule out vision-caused headaches. Tr.
26. And although Plaintiff alleged hearing loss in his
disability forms, a neurologist found Plaintiff’s
hearing “intact to soft whisper” and an examining
physician found normal hearing bilaterally. Tr. 26. Although
Plaintiff claimed to suffer from debilitating migraine
headaches, he failed to follow through with medication for
migraines and failed to follow up with his neurologist. These
findings are supported by substantial evidence in the record.
October 2016 hearing, Plaintiff testified he suffers up to 15
migraines per month. Tr. 68. “Sometimes they last for 5
minutes; sometimes they last for three days, and I’ll
lose vision too. I’ll lose a big chunk of my vision,
where I can’t see.” Tr. 68. Although Plaintiff
told his neurologist in January of 2010 that he suffered
migraines for 20 years, Tr. 619, he waited nearly a year to
present for a follow up appointment, Tr. 727.
Plaintiff’s neurologist noted “He was to have
returned after a number of months, but failed to do
so.” Tr. 727. At that follow up, the neurologist stated
Plaintiff’s complaints of continuous headaches were
inconsistent with the fact that he used headache medications
“only several times per month.” Tr. 628. When
Plaintiff’s neurologist retired in June 2011, she
informed Plaintiff that one of her practice partners would
treat Plaintiff if the prescribed medication proved
ineffective. Tr. 638. Plaintiff next saw a neurologist nearly
four years later, when he complained of frequent headaches
with aura and a constant left frontal headache. Tr. 649. Four
months later, Plaintiff’s neurologist noted medication
was effective and instructed Plaintiff to return in one month
if need be. Tr. 653. Plaintiff never returned. The ALJ
reasonably concluded that although Plaintiff alleges severe
limitations from migraines, “the record reveals that he
has not been fully compliant with treatment recommendations
and that he has intermittent treatment with a
neurologist.” Tr. 32. An unexplained failure to follow
a prescribed course of treatment is a valid reason supporting
a finding that a Plaintiff is not fully credible as to the
extent of his limitations. Lingenfelter, 504 F.3d at
also noted inconsistencies between Plaintiff’s
statements about his limitations and the record. For example,
at the hearing, Plaintiff stated he suffered a shoulder
injury at work. Tr. 63. Plaintiff testified that after being
laid off, he did not search for other work because “My
shoulder was wrecked. I was trying to get surgery. . . . I
couldn’t move my arm. If I sneezed or coughed or
anything, it would just fall dead . . . and it was always
pins and needles in my [hand].” Tr. 64. Plaintiff
testified he was “in bad shape” at his last job,
and after being laid off, “I was laying in bed crying
most of the time.” Tr. 65. The ALJ noted that despite
alleging debilitating shoulder pain since at least April
2007, “he did not seek orthopedic treatment until
December 2009.” Tr. 32. And although Plaintiff claimed
never being released back to work following his August 2010
rotator cuff surgery, “the record reveals that he was
released to work in early November 2010, three months after
his surgery.” Tr. 32. These inconsistencies support the
ALJ’s finding that Plaintiff was not fully credible as
to his alleged limitations. Bruton, 268 F.3d at 828
(holding that leaving a job for reasons unrelated to
one’s alleged symptoms, waiting to seek treatment for
nine months after employment ended, and failure to seek
treatment despite allegations of severe pain constitute
specific and legitimate reasons for finding subjective
complaints not entirely credible).
did not err in utilizing “ordinary techniques of
credibility evaluation” in weighing the validity of
Plaintiff’s self-reported limitations. Ghanim,
763 F.3d at 1163; Lingenfelter, 504 F.3d at 1040.
Although Plaintiff argues another interpretation of the
record is reasonable, that is not a legitimate reason for
overturning the ALJ’s conclusions. See Gutierrez v.
Comm’r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th
Cir. 2014) (“If the evidence can reasonably support
either affirming or reversing, ‘the reviewing court may
not substitute its judgment’ for that of the
Commissioner.”) (quoting Reddick v. Chater,
157 F.3d 715, 720-21 (9th Cir. 1996))). Because the ALJ
provided “specific, clear and convincing reasons”
for finding Plaintiff less-than credible regarding the extent
of his ...