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John M. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

September 18, 2019

JOHN M., [1] Plaintiff,
Commissioner of the Social Security Administration, Defendant.


          Michael McShane, United States District Judge

         Plaintiff 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).

         Plaintiff alleged disability as of April 15, 2007. Tr. 21.[2] 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.

         Plaintiff 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.


         A 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).


         The 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).

         At step 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.

         Plaintiff 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 limitations.

         1. The ALJ’s Adverse Credibility Determination

         “Where, 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 factors.

         The ALJ 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.[3]

         Additionally, 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.

         At the 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 1040.

         The ALJ 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).

         The ALJ 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 ...

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