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Kelly O. v. Commissioner Social Security Administration

United States District Court, D. Oregon

October 24, 2019

Kelly O., [1] Plaintiff,
v.
Commissioner, Social Security Administration, Defendant.

          OPINION AND ORDER

          Michael J. McShane, United States District Judge.

         Plaintiff 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).

         Plaintiff 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 AFFIRMED.

         PROCEDURAL AND FACTUAL BACKGROUND

         Plaintiff applied for DIB on May 13, 2014, alleging disability since February 25, 2011. Tr. 182-83.[2] 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. 1.

         STANDARD OF REVIEW

         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. 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. 1996)).

         DISCUSSION

         The 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.

         I. Plaintiff's Subjective Symptom Testimony

         Plaintiff 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).

         Here, 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 ...


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