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Peter B. v. Commissioner of Social Security

United States District Court, D. Oregon

September 19, 2019

PETER B., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION AND ORDER

          Michael McShane United States District Judge.

         Plaintiff brings this action for judicial review of the Commissioner’s decision denying his application for social security disability insurance benefits and supplemental security income. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         On December 15, 2014, Plaintiff filed an application for benefits, alleging disability as of September 5, 2013. After a hearing, the administrative law judge (“ALJ”) determined Plaintiff was not disabled under the Social Security Act. Tr. 26.[2] Plaintiff argues the ALJ erred in rejecting his subjective symptom testimony, in rejecting the treating medical source opinion of Dr. Kaiser, and in declining to admit certain evidence submitted after the hearing. Because the Commissioner’s decision is based on proper legal standards and supported by substantial evidence, the Commissioner’s decision is AFFIRMED.

         STANDARD OF REVIEW

         The 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, we review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ’s conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can reasonably support either affirming or reversing, ‘the reviewing court may not substitute its judgment’ for that of the Commissioner.” Gutierrez v. Comm’r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

         DISCUSSION

         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).

         Plaintiff alleged an onset date of September 5, 2013, and quit his work as a valet parking attendant at that time due to back problems, motion sickness, and “getting sick all the time.” Tr. 90-91; Tr. 122 (noting Plaintiff last worked as a parking attendant on August 31, 2013). Plaintiff stated, “I was having problems with vision, standing, even just moving, I was getting motion sickness all the time.” Tr. 90. Plaintiff testified that after standing for an hour, his pain is an eight or nine (on a ten-point scale). Tr. 93. Plaintiff’s back pain requires him to lie down for two or three hours each day. Tr. 94. Plaintiff alleges he can walk for two blocks before needing to sit down. Tr. 97.

         The ALJ determined that Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine patellofemoral syndrome, chronic obstructive pulmonary disease, and asthma. Tr. 17. At step 4, the ALJ determined that Plaintiff:

has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant can perform frequent stooping, crouching, and climbing of ramps and stairs and occasional balancing, kneeling, and crawling. The claimant cannot climb ladders, ropes, or scaffolds. He can tolerate no more than occasional exposure to concentrated airborne irritants.

Tr. 19.

         As noted, Plaintiff argues the ALJ erred in rejecting his subjective symptom testimony as to his limitations, in rejecting the treating opinion of Dr. Kaiser, and in declining to admit certain evidence submitted after the hearing into the record. I address each argument in turn.

         1. The ALJ’s Adverse Credibility Determination

         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 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.1989)). Still, the ALJ must provide “specific, clear and convincing reasons” to discredit subjective symptoms testimony. Vasquez v. Astrue, 572, F.3d 586, 591 (9th Cir. 2009) (quoting Smolen v. Charter, 80 F.3d 1273, 1282 (9th Cir. 1996)). In formulating these reasons, the ALJ “may consider a range of factors in assessing credibility.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. Aug. 18, 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 her credibility determination with references ...


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