United States District Court, D. Oregon, Portland Division
E. Haapala Attorney for Plaintiff
J. Williams UNITED STATES ATTORNEY District of Oregon
Gowie ASSISTANT UNITED STATES ATTORNEY
F. Highland SPECIAL ASSISTANT UNITED STATES ATTORNEY Office
of the General Counsel Social Security Administration
Attorney for Defendant
OPINION & ORDER
A Hernandez, United States District Judge.
Gregory C. brings this action seeking judicial review of the
Commissioner's final decision to deny disability
insurance benefits (DIB). This Court has jurisdiction
pursuant to 42 U.S.C. § 405(g). I reverse the
Commissioner's decision and remand for benefits beginning
November 1, 2010.
applied for DIB on December 20, 2010, alleging an onset date
of November 28, 2006. Tr. 145-46. His application was denied
initially and on reconsideration. Tr. 62-73, 86-69 (Initial);
Tr. 74-83, 943-95 (Recon.). On March 15, 2013, Plaintiff
appeared, with counsel, for a hearing before an
Administrative Law Judge (ALJ). Tr. 30-61. On May 1, 2013,
the ALJ found Plaintiff not disabled. Tr. 13-29. After the
Appeals Council denied review, Tr. 1-6, Plaintiff appealed to
this Court. In an April 20, 2015 Opinion & Order, Judge
Marsh reversed the ALJ's decision and remanded the case
back to the agency. Tr. 397-429.
remand, Plaintiff appeared for a second hearing before the
same ALJ on August 3, 2016. Tr. 240-69. On March 29, 2017,
the ALJ again found Plaintiff not disabled. Tr. 320-39.
Plaintiff filed an untimely complaint in this Court, and the
case was dismissed without prejudice. Gregory C. v.
Comm'r, No. 3:17-cv-00729-BR, Judgment of Dismissal
Without Prejudice (D. Or. Apr. 19, 2018). Plaintiff
represents, and Defendant does not dispute, that on August
24, 2018, the Appeals Council granted Plaintiff additional
time to commence a civil action. Pl.'s Brief 2, ECF
alleges disability based on chronic pain caused by
fibromyalgia. Tr. 169. At the time of the August 2016
hearing, he was fifty-seven years old. Tr. 145 (showing date
of birth). He completed eleventh grade and has past relevant
work experience as an auto mechanic. Tr. 170, 331, 360-61.
claimant is disabled if he or she is unable to "engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which .
. . has lasted or can be expected to last for a continuous
period of not less than 12 months[.]" 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A).
claims are evaluated according to a five-step procedure.
See Valentine v. Comm'r, 574 F.3d 685, 689 (9th
Cir. 2009) (in social security cases, agency uses five-step
procedure to determine disability). The claimant bears the
ultimate burden of proving disability. Id.
first step, the Commissioner determines whether a claimant is
engaged in "substantial gainful activity." If so,
the claimant is not disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b),
416.920(b). In step two, the Commissioner determines whether
the claimant has a "medically severe impairment or
combination of impairments." Yuckert, 482 U.S.
at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If
not, the claimant is not disabled.
three, the Commissioner determines whether plaintiff's
impairments, singly or in combination, meet or equal
"one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude
substantial gainful activity." Yuckert, 482
U.S. at 141; 20 C.F.R. §§ 404.1520(d), 416.920(d).
If so, the claimant is conclusively presumed disabled; if
not, the Commissioner proceeds to step four.
Yuckert, 482 U.S. at 141.
four, the Commissioner determines whether the claimant,
despite any impairment(s), has the residual functional
capacity (RFC) to perform "past relevant work." 20
C.F.R. §§ 404.1520(e), 416.920(e). If the claimant
can perform past relevant work, the claimant is not disabled.
If the claimant cannot perform past relevant work, the burden
shifts to the Commissioner. In step five, the Commissioner
must establish that the claimant can perform other work.
Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§
404.1520(e) & (f), 416.920(e) & (f). If the
Commissioner meets his burden and proves that the claimant is
able to perform other work which exists in the national
economy, the claimant is not disabled. 20 C.F.R. §§
March 29, 2017 Decision, the ALJ determined that Plaintiff
had not engaged in substantial gainful activity since his
alleged onset date of November 28, 2006, through his date of
last insured of December 31, 2011. Tr. 325-26. Next, at steps
two and three, the ALJ determined that Plaintiff has severe
impairments of fibromyalgia, degenerative disc disease, and
osteoarthritis, but that these impairments did not meet or
equal, either singly or in combination, a listed impairment.
four, the ALJ concluded that Plaintiff has the RFC to perform
light work as defined in 20 C.F.R. § 404.1567(b) but
with the following additional limitations: (1) he can sit up
to eight hours in an eight-hour workday and he can stand
and/or walk up to two hours in an eight-hour workday; (2)
when seated, he can stand for five minutes every hour without
the need to leave the workstation; (3) he can occasionally
climb ramps and stairs; (4) he cannot climb ladders, ropes,
or scaffolds; (6) he can occasionally stoop, kneel, crouch,
and crawl; (7) he can occasionally reach overhead
bilaterally; and (8) he must avoid exposure to hazards such
as unprotected heights and dangerous machinery. Id.
this RFC, the ALJ determined that Plaintiff is unable to
perform any of his past relevant work. Tr. 331. However, at
step five, the ALJ determined that Plaintiff is able to
perform jobs that exist in significant numbers in the economy
such as small products assembler, laundry folder, and price
marker. Tr. 332. Thus, the ALJ determined that Plaintiff is
not disabled. Tr. 332-33.
may set aside the Commissioner's denial of benefits only
when the Commissioner's findings "are based on legal
error or are not supported by substantial evidence in the
record as a whole." Vasquez v. Astrue, 572 F.3d
586, 591 (9th Cir. 2009) (internal quotation marks omitted).
"Substantial evidence means 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." Id. (internal quotation marks
omitted). The court considers the record as a whole,
including both the evidence that supports and detracts from
the Commissioner's decision. Id.;
Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th
Cir. 2007). "Where the evidence is susceptible to more
than one rational interpretation, the ALJ's decision must
be affirmed." Vasquez, 572 F.3d at 591
(internal quotation marks and brackets omitted); see also
Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)
("Where the evidence as a whole can support either a
grant or a denial, [the court] may not substitute [its]
judgment for the ALJ's") (internal quotation marks
argues that the ALJ erred by (1) improperly finding his
subjective symptom testimony not credible; (2) improperly
rejecting the opinion of his treating physician Howard
Gandler, M.D.; and (3) improperly relying on vocational
expert (VE) testimony when proper application of the
Medical-Vocational Guidelines ("the Grids") directs
a finding of disabled.
is responsible for determining credibility. See
Vasquez, 572 F.3d at 591. Once a claimant shows an
underlying impairment and a causal relationship between the
impairment and some level of symptoms, clear and convincing
reasons are needed to reject a claimant's testimony if
there is no evidence of malingering. Carmickle v.
Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent
affirmative evidence that the plaintiff is malingering,
"where the record includes objective medical evidence
establishing that the claimant suffers from an impairment
that could reasonably produce the symptoms of which he
complains, an adverse credibility finding must be based on
'clear and convincing reasons'"); see also
Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)
(ALJ engages in two-step analysis to determine credibility:
First, the ALJ determines whether there is "objective
medical evidence of an underlying impairment which could
reasonably be expected to produce the pain or other symptoms
alleged"; and second, if the claimant has presented such
evidence, and there is no evidence of malingering, then the
ALJ must give "specific, clear and convincing reasons in
order to reject the claimant's testimony about the
severity of the symptoms.") (internal quotation marks
determining the credibility of a plaintiff's complaints
of pain or other limitations, the ALJ may properly consider
several factors, including the plaintiff's daily
activities, inconsistencies in testimony, effectiveness or
adverse side effects of any pain medication, and relevant
character evidence. Orteza v. Shalala, 50 F.3d 748,
750 (9th Cir. 1995). The ALJ may also consider the ability to
perform household chores, the lack of any side effects from
prescribed medications, and the unexplained absence of
treatment for excessive pain. Id.; see also
Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir.
2008) ("The ALJ may consider many factors in weighing a
claimant's credibility, including (1) ordinary techniques
of credibility evaluation, such as the claimant's
reputation for lying, prior inconsistent statements
concerning the symptoms, and other testimony by the claimant
that appears less than candid; (2) unexplained or
inadequately explained failure to seek treatment or to follow
a prescribed course of treatment; and (3) the claimant's
daily activities.") (internal quotation marks omitted).
Ninth Circuit explained in Molina:
In evaluating the claimant's testimony, the ALJ may use
ordinary techniques of credibility evaluation. For instance,
the ALJ may consider inconsistencies either in the
claimant's testimony or between the testimony and the
claimant's conduct, unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of
treatment, and whether the claimant engages in daily
activities inconsistent with the alleged symptoms[.] While a
claimant need not vegetate in a dark room in order to be
eligible for benefits, the ALJ may discredit a claimant's
testimony when the claimant reports participation in everyday
activities indicating capacities that are transferable to a
work setting[.] Even where those ...