United States District Court, D. Oregon
OPINION AND ORDER
A. Russo United States Magistrate Judge
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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.
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
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