United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane, United States District Judge.
Kelly O. brings this action for judicial review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying Plaintiff's
application for disability insurance benefits
(“DIB”). This Court has jurisdiction under 42
U.S.C. §§ 405(g).
alleges the Administrative Law Judge (“ALJ”)
erred by: (1) rejecting Plaintiff's subjective symptom
testimony; (2) rejecting lay witness testimony; and (3)
inappropriately relying upon the vocational expert
(“VE”). Because the Commissioner's decision
is based on proper legal standards and supported by
substantial evidence, the Commissioner's decision is
AND FACTUAL BACKGROUND
applied for DIB on May 13, 2014, alleging disability since
February 25, 2011. Tr. 182-83. Plaintiff's claim was denied
initially and upon reconsideration. Tr. 117, 128. Plaintiff
requested a hearing, which took place on December 1, 2016, in
Portland, Oregon. Tr. 53, 131. At the hearing, Plaintiff
amended his onset date to May 22, 2014. Tr. 40, 61. The ALJ
denied Plaintiff's claim on February 7, 2017, and the
Appeals Council declined to alter the ALJ's decision. Tr.
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. See 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, the
court reviews 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) (citing Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986)).
“‘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.
Social Security Administration utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4) (2012). The burden of proof rests on the
claimant as to steps one through four, and on the
Commissioner as to step five. Bustamante v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.
1999)). At step five, it is the Commissioner's burden to
demonstrate that the claimant can make an adjustment to other
work existing in significant numbers in the national economy
after considering the claimant's residual functional
capacity (“RFC”), age, education, and work
experience. 20 C.F.R. § 404.1520(a)(4)(v). If
the Commissioner fails to meet this burden, then the claimant
is considered disabled. Id.
Plaintiff's Subjective Symptom Testimony
argues that the ALJ improperly discounted his subjective
testimony. Pl.'s Br. 5, ECF No. 18. An ALJ must consider
a claimant's symptom testimony, including statements
regarding pain and workplace limitations. See 20 CFR
§§ 404.1529(a), 416.929(a). Where there is
objective medical evidence in the record of an underlying
impairment that could reasonably be expected to produce the
pain or symptoms alleged and there is no affirmative evidence
of malingering, the ALJ must provide clear and convincing
reasons for discrediting the claimant's testimony
regarding the severity of his symptoms. Carmickle v.
Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th
Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028,
1036 (9th Cir. 2007). 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, 674 F.3d 1104, 1112
(9th Cir. 2012) (quoting Fair, 885 F.2d at 603). The
ALJ “may consider a range of factors in assessing
credibility.” Ghanim v. Colvin, 763 F.3d 1154,
1163 (9th Cir. 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, 504 F.3d at 1040. “If the
ALJ's credibility finding is supported by substantial
evidence in the record, ” this Court “may not
engage in second-guessing, ” Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation
omitted), and “must uphold the ALJ's decision where
the evidence is susceptible to more than one rational
interpretation, ” Andrews v. Shalala, 53 F.3d
1035, 1039-40 (9th Cir. 1995) (citation omitted).
the ALJ found that Plaintiff's “statements
concerning the intensity, persistence and limiting effects of
[Plaintiff's] symptoms are not entirely consistent with
the medical evidence and other evidence in the record.”
Tr. 44. Plaintiff testified that his back pain forced him to
spend at least half his day lying down. Tr. 75. Plaintiff
also testified that his shoulder pain made it difficult to
move. Id. A Magnetic Resonance Imaging
(“MRI”) exam of Plaintiff's back on his
alleged onset date revealed degenerative disk disease and
“mild/moderate hypertrophic joint arthrosis” in