United States District Court, D. Oregon
OPINION AND ORDER
A. Russo, United States Magistrate Judge.
Heather G. brings this action for judicial review of the
final decision of the Commissioner of Social Security
(“Commissioner”) denying her application for
Title II Disability Insurance Benefits. All parties have
consented to allow a Magistrate Judge enter final orders and
judgment in this case in accordance with Fed.R.Civ.P. 73 and
28 U.S.C. § 636(c). For the reasons set forth below, the
Commissioner's decision is reversed and this case is
remanded for further proceedings.
1972, plaintiff alleges disability beginning May 26, 2011,
due to fibromyalgia, post-traumatic stress disorder, and pain
in her shoulders, back, hips, arms, and hands. Tr. 158, 184.
On November 29, 2017, a hearing was held before an
Administrative Law Judge (“ALJ”), wherein
plaintiff was represented by counsel and testified, as did a
vocational expert (“VE”). Tr. 28-60. On March 7,
2018, the ALJ issued a decision finding plaintiff not
disabled. Tr. 15-23. After the Appeals Council denied her
request for review, plaintiff filed a complaint in this
Court. Tr. 1-5.
one of the five step sequential evaluation process, the ALJ
found that plaintiff had not engaged in substantial gainful
activity from alleged onset date “through her date last
insured of June 30, 2016.” Tr. 17. At step two, the ALJ
determined plaintiff's fibromyalgia, degenerative disc
disease, and “right shoulder impairment status post two
surgeries” were medically determinable and severe.
Id. At step three, the ALJ found plaintiff's
impairments, either singly or in combination, did not meet or
equal the requirements of a listed impairment. Tr. 17.
plaintiff did not establish presumptive disability at step
three, the ALJ continued to evaluate how plaintiff's
impairments affected her ability to work. The ALJ resolved
that plaintiff had the residual functional capacity
(“RFC”) to perform light work as defined by 20
C.F.R. § 404.1567(b) except:
she could stand and walk for 4 hours and can sit for to 6
hours, could occasionally climb ramps and stairs, could never
climb ladders, ropes or scaffolds, could occasionally
balance, stoop, kneel and crouch, could never crawl, could
occasionally reach overhead, could frequently reach in all
other directions, could frequently handle and finger, and
should not have concentrated exposure to extreme
temperatures, vibration, pulmonary irritants and hazards.
four, the ALJ determined plaintiff was unable to perform any
past relevant work. Tr. 21. At step five, the ALJ concluded,
based on the VE's testimony, that plaintiff could perform
a significant number of jobs in the national economy despite
her impairments, such as laundry sorter and electronics
worker. Tr. 22-23.
argues the ALJ erred by: (1) discrediting her subjective
symptom testimony; (2) rejecting the medical opinions of
Thomas Gwynn Carver, M.D., Patrick Denard, M.D., Jonathan
Hoppert, M.D., and Scott Kitchel, M.D.; (3) neglecting to
address the lay opinion of Colleen Cormack, vocational
rehabilitation consultant; and (4) failing to account for all
of her limitations in the RFC and at step five. Pl.'s
Opening Br. 4-19 (doc. 12).
asserts the ALJ erred by discrediting her subjective symptom
testimony concerning the severity of her impairments. When a
claimant has medically documented impairments that could
reasonably be expected to produce some degree of the symptoms
complained of, and the record contains no affirmative
evidence of malingering, “the ALJ can reject the
claimant's testimony about the severity of . . . symptoms
only by offering specific, clear and convincing reasons for
doing so.” Smolen v. Chater, 80 F.3d 1273,
1281 (9th Cir. 1996) (internal citation omitted). A general
assertion the claimant is not credible is insufficient; the
ALJ must “state which . . . testimony is not credible
and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915,
918 (9th Cir. 1993). The reasons proffered must be
“sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the
claimant's testimony.” Orteza v. Shalala,
50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).
in formulating the RFC, the ALJ is not tasked with
“examining an individual's character” or
propensity for truthfulness, and instead assesses whether the
claimant's subjective symptom statements are consistent
with the record as a whole. SSR 16-3p, available at
2016 WL 1119029. If the ALJ's finding regarding the
claimant's subjective symptom testimony is
“supported by substantial evidence in the record, [the
court] may not engage in second-guessing.” Thomas
v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal
hearing, plaintiff testified she was unable to work since her
May 2011 on-the-job injury due to right shoulder, hip, and
back pain (especially following her April 2014 motor vehicle
accident). Tr. 33-40. Plaintiff also endorsed numbness in her
right hand and arm, which made grasping objects and
repetitive motions difficult. Tr. 41, 43. Because of her
impairments, plaintiff testified that she cannot: unload the
dishwasher “without dropping stuff, ” type or
write because her “hand and arm usually will [cramp up
or] go numb after a very short period, ” or “walk
a normal gait” due to “stabbing” hip pain.
Tr. 34, 36, 43. In addition, plaintiff stated she can only
stand for 15 minutes before needing to change position and
reclines for 60-70% of the day to take the pressure off her
back. Tr. 40, 42. Since her second shoulder surgery in April
2013, plaintiff explained that she naps during the day for
approximately two hours. Tr. 47-48.
terms of daily activities, plaintiff stated: “I
don't do a whole lot. I'm at the house by
myself.” Tr. 35. Namely, plaintiff indicated that she
might drive once or twice per week to grocery shop, do one
load of laundry per day with breaks, and/or pick up the house
but not “all in one shot.” Tr. 33-36. Plaintiff
denied any medication side-effects; however, she noticed
“quite a bit of difference in [her] pain level”
due to the recent taper of her narcotic medications. Tr. 45.
summarizing her hearing testimony, the ALJ determined that
plaintiff's medically determinable impairments could
reasonably be expected to produce some degree of symptoms,
but her “statements concerning the intensity,
persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this
decision.” Tr. 18-21. Specifically, the ALJ cited to
plaintiff's daily activities and treatment record.
the latter, the ALJ determined the medical record reflected
that plaintiff's “pain was well-controlled”
with medication. Tr. 21. “[W]hether the alleged
symptoms are consistent with the medical evidence” is a
relevant consideration. Lingenfelter v. Astrue, 504
F.3d 1028, 1040 (9th Cir. 2007) (citations omitted).
Similarly, failure to report allegedly disabling symptoms to
treatment providers ...