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Richard W. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

October 25, 2019

RICHARD W., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.

          OPINION AND ORDER

          Jolie A. Russo United States Magistrate Judge

         Plaintiff Richard W. brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his 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 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.

         BACKGROUND

         Born in 1964, plaintiff alleges disability beginning December 9, 2013, due to chronic fatigue syndrome, chronic pain, severe sleep apnea, fatty liver disease, asthma, depression, fibromyalgia, and headaches. Tr. 72, 104. On June 28, 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. 43-71. On September 19, 2017, the ALJ issued a decision finding plaintiff not disabled. Tr. 12-26. After the Appeals Council denied his timely request for review, plaintiff filed a complaint in this Court. Tr. 1-5.

         THE ALJ'S FINDINGS

         At step one of the five step sequential evaluation process, the ALJ found that plaintiff had not engaged in substantial gainful activity between December 9, 2013, alleged onset date, and December 31, 2018, the date last insured. Tr. 17. At step two, the ALJ determined the following impairments were medically determinable and severe: “bilateral shoulder degenerative joint disease; obesity; obstructive sleep apnea; somatic symptom disorder; major depressive disorder; borderline personality disorder; and fibromyalgia.” Id. At step three, the ALJ found plaintiff's impairments, whether considered alone or in combination, did not meet or equal the requirements of a listed impairment. Tr. 18.

         Because plaintiff did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected his 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:

he can occasionally reach overhead bilaterally; he can occasionally climb ramps and stairs, but never climb ladders, ropes, or scaffolds; he can never operate a motor vehicle for commercial purposes; he is limited to simple, routine tasks; he is limited to simple work-related decisions; he can occasionally respond appropriately to supervisors, coworkers, and the public; the claimant's time off task can be accommodated by normal breaks.

Tr. 19.

         At step four, the ALJ determined plaintiff was unable to perform any past relevant work. Tr. 25. 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 his impairments, such as photocopy machine operator, collator operator, and marker. Tr. 25-26. Accordingly, the ALJ concluded plaintiff was not disabled. Tr. 26.

         DISCUSSION

         Plaintiff argues that the ALJ erred by discounting the following evidence: (1) his testimony; (2) the lay testimony; and (3) the opinions of primary care physician Hsiang-Sen Yeh, M.D., and mental health counselor Nicholas La Barre.

         I. Plaintiff's Testimony

         Plaintiff argues the ALJ erred by failing to give legally sufficient reasons to reject his testimony concerning the extent of his 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 suggest 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).

         Thus, in formulating the RFC, the ALJ is not tasked with “examining an individual's character” or propensity for truthfulness, and instead assesses whether 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 citation omitted).

         At the hearing, plaintiff testified he was unable to work due to severe migraines, impaired memory, failing joints, and “chronic fatigue, fibromyalgia, chronic pain.” Tr. 52-54. Plaintiff testified further that his daily activities are limited; if he does not wake up with excess fatigue, migraines, and flu-like symptoms, “he tr[ies] to do whatever I can.” Tr. 54-55. On good days this includes walking his dog around the block with stops for rest, putting dishes in the dishwasher and clothes in the washing machine, and occasionally vacuuming the lower level. Tr. 55-57. Plaintiff noted he calls himself the “half an hour man” because he can engage in activities or sit for less than 30 minutes prior to the onset of spasms which require him to lay down. Tr. 57, 60-61.

         During the day, plaintiff stated he is “always laying down” and the pain is constant. Tr. 59. For example, if he goes on a walk, he must stretch out on the couch for a couple of hours afterwards to ameliorate his elevated pain levels. Tr. 56. He also discussed the need to lay on his left side on the couch during the day to alleviate pain from his right side that develops overnight. Tr. 58-59. Every two weeks, plaintiff goes grocery shopping with his mother in law so she can assist with bagging items, loading them into the car, and taking them into his home. Id. Plaintiff testified this activity causes him to be “down for the count” the following day. Tr. 60.

         After summarizing his hearing testimony, the ALJ determined that plaintiff's medically determinable impairments could reasonably be expected to produce some degree of symptoms, but his “statements concerning the intensity, persistence and limiting effect of these symptoms are not entirely consistent with the medical record and other evidence in the record for reasons explained in this decision.” Tr. 18-20. Specifically, the ALJ cited to plaintiff's daily activities and the objective medical evidence. Tr. 20-21.

         Notably, the ALJ found that plaintiff's “allegations of disabling symptoms are inconsistent with his daily activities.” Tr. 21. An ALJ may discredit a claimant's testimony when he or she reports activities that “are transferable to a work setting” or “contradict claims of a totally debilitating impairment, ” even if “those activities suggest some difficulty functioning.” Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (citations omitted).

         Substantial evidence supports the ALJ's findings in the case at bar. As the ALJ denoted, plaintiff reported activities to his providers that are in excess of his testimony at the hearing. For instance, the record reflects that plaintiff completed yard work (including working with tree limbs and a leaf blower), traveled intermittently to Grants Pass, walked daily in 2015 and on a weekly basis thereafter, attended a music event, and participated in tai chi and water aerobics. Tr. 290, 297, 309, 332, 334, 457, 496, 535, 545, 566. Plaintiff also indicated that he felt better with increased physical activities. Tr. 435. Finally, plaintiff reported going out of ...


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