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
social security disability insurance benefits and
supplemental security income. This Court has jurisdiction
under 42 U.S.C. §§ 405(g) and 1383(c)(3).
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. 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.
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)).
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).
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.
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
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.
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.
The ALJ’s Adverse Credibility Determination
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
in this case supported her credibility determination with