United States District Court, D. Oregon
OPINION AND ORDER
Michael McShane, United States District Judge.
proceeding pro se, brings this action for judicial
review of the Commissioner’s decision denying his
application for social security disability insurance
benefits. This court has jurisdiction under 42 U.S.C.
§§ 405(g) and 1383(c)(3). On June 17, 2009,
Plaintiff filed an application for benefits, ultimately
alleging disability as of May 5, 2008. Tr. 830. After a hearing,
the administrative law judge (“ALJ”) determined
Plaintiff was not disabled under the Social Security Act
through December 31, 2013, Plaintiff’s last date
insured. Tr. 830-45.Plaintiff argues the ALJ erred in finding
him less-than fully credible and in rejecting certain lay
witness testimony. Because the Commissioner’s decision
is based on proper legal standards and supported by
substantial evidence, the Commissioner’s decision is
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).
determined Plaintiff had the following severe impairments: a
personality disorder; marijuana abuse; degenerative disc
disease; and fibromyalgia. Tr. 833. The ALJ concluded
Plaintiff had the RFC to perform light work with the
following relevant limitations: he could lift and carry 20
pounds occasionally and 10 pounds frequently; he could stand
and/or walk for four hours and sit for six hours in an
eight-hour workday; he could no more than occasionally climb
ramps and stairs, balance, kneel, crouch, stoop, and crawl;
he was limited to simple routine tasks and could have no
public contact or teamwork, and only occasional contact with
coworkers. Tr. 835.
first alleges the ALJ erred in finding him less-than fully
credible as to the extent of his limitations. Plaintiff
argues the ALJ “specifically referred to a
‘robust lifestyle’ based on several statements
that are proven otherwise in the court records. They were
taken out of context, embellished and misstated in the final
decision.” Pl.’s Br. 1; ECF No. 20. At the
hearing, the ALJ asked Plaintiff if he took his four children
to the park. Plaintiff answered: “We go to the park,
yeah, the park, swimming and those type of things.” Tr.
92. Plaintiff argues the above example is but one example of
the ALJ taking his statements out of context, and clarifies
in his brief that “I take my children down to the river
in the summer so THEY can go swimming while I sit and
supervise with my wife.” Pl.’s Br. 1.
also testified at the hearing that he was “not
really” looking for work but would take work if the
right job was available: “If something small was to
come available, just very part-time or something, I’d
probably jump on it just to get me through. Other than that,
I honestly haven’t really been looking.” Tr. 87.
Plaintiff testified that he received unemployment benefits
during the time he alleged he was disabled, and that during
the relevant time period, he probably could have worked full
time as a cashier. Tr. 88. Plaintiff also testified he
volunteered at his church one day each week, where he
vacuums, sweeps the floors, and pick up garbage. Tr. 56.
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)). The ALJ
“may consider a wide range of factors in assessing
credibility.” Ghanim v. Colvin, 12-35804, 2014
WL 4056530, at *7 (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
had to balance Plaintiff’s daily activities against his
alleged limitations. These limitations included: that
Plaintiff could walk for ¼ of a mile before getting
winded and having to sit down, Tr. 51; that Plaintiff could
sit for a maximum of 45 minutes at one time and lift only 20
pounds, Tr. 90-91; that Plaintiff has trouble grasping things
with his right hand; Tr. 96; that Plaintiff experiences
debilitating pain in his knees, hips, and shoulders that is
typically a four-to-five on a ten-point scale, Tr. 96; and
that he smokes marijuana for his pain but uses no other
medications, Tr. 88. The ALJ’s interpretation of
Plaintiff’s answers regarding his daily activities is a
reasonable interpretation of the evidence. However, even
assuming the ALJ took Plaintiff’s statements
out-of-context, the ALJ pointed to several other factors that
indicated Plaintiff was not fully credible as to his
pointed to evidence of secondary gain. Evidence of secondary
claim, or that the Plaintiff is malingering, is relevant to
the ALJ’s credibility determination. Merillat v.
Comm’r ofSoc. Sec. Admin., 350 Fed.Appx.
163, 166 (9th Cir. 200) (citing Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 883 (9th Cir. 2006)). This finding
is supported by substantial ...