United States District Court, D. Oregon
OPINION AND ORDER
Michael J. McShane United States District Judge.
Sandra M. brings this action for judicial review of a final
decision of the Commissioner of Social Security
(“Commissioner”) denying her application for
disability insurance benefits (“DIB”) under Title
II of the Social Security Act. This Court has jurisdiction
under 42 U.S.C. §§ 405(g) and 1383(c)(3). Plaintiff
alleges that the Administrative Law Judge (“ALJ”)
erred in rejecting both Plaintiff's subjective symptom
testimony and Dr. Frank Sievert's, M.D., medical opinion.
Because the ALJ erred in discounting both Plaintiff's
testimony and Dr. Sievert's medical opinion, the
Commissioner's decision is REVERSED and this matter is
REMANDED for an award of benefits.
AND FACTUAL BACKGROUND
applied for DIB on June 17, 2015, alleging disability since
August 31, 2012. Tr. 17, 161-62. Her claim was denied
initially and upon reconsideration. Tr. 29-30, 59-60.
Plaintiff timely requested a hearing before an ALJ and
appeared before the Honorable Mark Triplett on September 11,
2017. Tr. 105-06, 17. ALJ Triplett denied Plaintiff's
claims by a written decision dated February 22, 2018. Tr.
17-31. Plaintiff sought review from the Appeals Council and
was denied on November 15, 2018, rendering the ALJ's
decision final. Tr. 1-3. Plaintiff now seeks judicial review
of the ALJ's decision.
was 54 years old at the time of her alleged disability onset
and 59 at the time of her hearing. See tr. 17, 71.
Plaintiff completed medical transcription training and 1 year
of college. Tr. 179-80 She worked as a care aide, clerical
specialist, and special education assistant. Tr. 45-46.
Plaintiff alleges disability due to intractable migraine,
fibromyalgia, permanent neck injury, Hashimoto thyroid
disease, insomnia, gastroesophageal reflux disease,
exhaustion, chronic pain, asthma, and sleep apnea. Tr. 71-72.
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 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 uses 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 for steps one through
four, and on the Commissioner for 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, the Commissioner's burden is
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.
must consider a claimant's symptom testimony, including
statements regarding pain and workplace limitations.
See 20 CFR §§ 404.1529(a), 416.929(a).
When there exists 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. 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 at 1112 (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. It is proper for the
ALJ to consider the objective medical evidence in making a
credibility determination. 20 C.F.R. §§
404.1529(c)(2); 416.929(c)(2). However, an ALJ may not make a
negative credibility finding “solely because” the
claimant's symptom testimony “is not substantiated
affirmatively by objective medical evidence.”
Robbins v. Soc. Sec. Admin., 466 F.3d 880,
883 (9th Cir. 2006). The Ninth Circuit has upheld negative
credibility findings, however, when the claimant's
statements at the hearing “do not comport with
objective evidence in her medical record.” Bray v.
Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th
Cir. 2009). “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
the ALJ found that Plaintiff's “medically
determinable impairments could reasonably be expected to
cause the alleged symptoms” but that 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.” Tr. 30.
testified her migraines began when she was 19. Tr. 49. This
condition got progressively worse until Plaintiff's
medical provider prescribed her methadone in 2000. This
reduced her migraines to five or so per month, lasting three
days per week. Id. She worked as a caregiver (four
12-hour days per week) and a recess monitor (five three-hour
days per week). Tr. 47-48, 43, 51. She missed more than eight
days per year because of her migraines. Tr. 61. In April
2012, Plaintiff's migraines and neck-related headaches
“exploded” when a basketball hit her head and
neck. Tr. 51-52. This incident resulted in the loss of her
employment due to excessive absences. Tr. 44, 52, 61.
2014 to the date of her hearing, Plaintiff had five migraines
every month lasting three days. Tr. 56-57. In January 2017,
her migraines decreased to two to three times per month after
she began taking a number of supplements (Butterbur,
Feverfew, and Riboflavin). These ultimately failed, resulting
in 10 severe migraines in August 2017. Tr. 56-57. Since then,
she has had migraines five days per month lasting three days.
Tr. 62. The week before her testimony, she had a
“pretty severe” headache on Friday that lasted
through her hearing on Monday. Tr. 56, 51, 54. She called her
attorney to say she could not attend the hearing, but after
taking nausea medicine she felt well enough for her husband
to take her to the hearing. Still, her migraine impacted her
memory. Tr. 57, 51.
is only able to drive once or twice per week due to her
migraines. Tr. 45. She takes Percocet every day and Vistaril
and Omeprazole during a migraine episode. Tr. 50. She has
tried multiple preventative drugs, which have resulted in bad
side effects. Tr. 50-51. She mostly stays home when she has