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Colin T. v. Commissioner of Social Security

United States District Court, D. Oregon

September 25, 2019

COLIN T., [1] Plaintiff,


          Michael McShane, United States District Judge.

         Plaintiff, 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.[2] 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.[3]Plaintiff argues the ALJ erred in finding him less-than fully credible and in rejecting certain lay witness testimony.[4] Because the Commissioner’s decision is based on proper legal standards and supported by substantial evidence, the Commissioner’s decision is AFFIRMED.


         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)).


         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).

         The ALJ 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.

         Plaintiff 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.

         Plaintiff 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.

         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)). 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 Cir.2007).

         The ALJ 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 limitations.

         The ALJ 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 ...

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