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Gregory C. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Portland Division

November 15, 2019

GREGORY C.[1], Plaintiff,

          John E. Haapala Attorney for Plaintiff

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon


          Erin F. Highland SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration Attorney for Defendant

          OPINION & ORDER

          Marco A Hernandez, United States District Judge.

         Plaintiff 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.


         Plaintiff 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.

         On 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 19.[2]


         Plaintiff 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.


         A 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).

         Disability 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.

         In the 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.

         In step 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.

         In step 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. §§ 404.1566, 416.966.


         In the 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. Tr. 326.

         At step 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.

         With 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.


         A court 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 omitted).


         Plaintiff 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.

         I. Plaintiff's Credibility

         The ALJ 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 omitted).

         When 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).

         As the 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 ...

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