United States District Court, D. Oregon, Portland Division
E. Haapala, Jr. Attorney for Plaintiff
J. Williams UNITED STATES ATTORNEY District of Oregon
Gowie ASSISTANT UNITED STATES ATTORNEY
A. Boden SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of
the General Counsel Social Security Administration Attorneys
OPINION & ORDER
A Hernandez, United States District Judge
Anthony E. brings this action seeking judicial review of the
Commissioner's final decision to deny disability
insurance benefits (DIB) and supplemental security income
(SSI). This Court has jurisdiction pursuant to 42 U.S.C.
§ 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)).
I reverse the Commissioner's decision and remand for
protectively applied for SSI and DIB on April 2, 2015,
alleging an onset date of May 31, 2012. Tr. 23 (noting
protective filing dates); Tr. 208-18 (DIB); Tr. 219-24 (SSI).
His applications were denied initially and on
reconsideration. Tr. 71-85, 101 (DIB Initial); Tr. 86-100,
102 (SSI Initial); Tr. 143-48 (Both Initial); Tr. 103-19, 137
(DIB Recon.); Tr. 120-36, 138 (SSI Recon.). On September 13,
2017, Plaintiff appeared, with counsel, for a hearing before
an Administrative Law Judge (ALJ). Tr. 41-70. On October 4,
2017, the ALJ found Plaintiff not disabled. Tr. 20-40. The
Appeals Council denied review. Tr. 1-7.
alleges disability based on having neuropathy in his feet,
arthropathy of a lumbar facet joint, degeneration of a lumbar
intervertebral disc, lumbar spondylosis, osteoarthritis of
his hips, Raynaud's Syndrome, gout, and Type II diabetes.
Tr. 241. At the time of the hearing, he was forty-four years
old. Tr. 45. He completed his GED and "some
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. §§
one, the ALJ determined, for purposes of Plaintiff's DIB
claim, that Plaintiff met the insured requirements of the
Social Security Act (SSA) through March 31, 2017. Tr. 25. The
ALJ also found that Plaintiff had not engaged in substantial
gainful activity since his alleged onset date. Id.
Next, at step two, the ALJ determined that Plaintiff had the
following severe impairments: Type II diabetes mellitus,
diabetic peripheral neuropathy, degenerative disc disease of
the lumbar spine, and osteoarthritis of the bilateral hips
and knees. Tr. 25-27. At step three, the ALJ found that
Plaintiff's impairments did not meet or equal, either
singly or in combination, a listed impairment. Tr. 28.
four, the ALJ concluded that Plaintiff has the RFC to perform
sedentary work with the following limitations: he can
occasionally climb ramps and stairs; he can never climb
ladders, ropes, or scaffolds; he can frequently balance and
stoop; he can occasionally kneel, crouch, and crawl; he
should avoid concentrated exposure to extreme cold and
extreme heat; and he should avoid even moderate exposure to
hazardous machinery and unprotected heights. Tr. 28. With
this RFC, the ALJ determined that Plaintiff is unable to
perform any of his past relevant work. Tr. 33. However, at
step five, the ALJ determined that Plaintiff is able to
perform jobs that exist in significant numbers in the economy
such as final assembler, optical goods; routing clerk; and
call out operator. Tr. 34-35. Thus, the ALJ determined that
Plaintiff is not disabled. Tr. 35.
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
alleges that the ALJ erred by (1) finding his subjective
limitations testimony not credible; (2) rejecting the opinion
of examining physician Ruth Lowengart, M.D.; and (3)
rejecting the opinion of treating Family Nurse Practitioner
(FNP) Laura Johnson.
summarized the written testimony in Plaintiff's April
2015 Activities of Daily Living Function Report, including
that his impairments affected his ability to lift, squat,
bend, stand, reach, walk, sit, kneel, climb stairs,
concentrate, use his hands, and get along with others. Tr. 29
(citing Tr. 263). The ALJ also noted that in a July 2015
appeals report, Plaintiff alleged worsening symptoms because
he had to stop taking his medications due to side effects.
Id. (citing Tr. 283).
next summarized Plaintiff's hearing testimony.
Id. The ALJ noted that due to a gunshot wound when
he was seventeen years old, in which a bullet became lodged
in his spine, Plaintiff has difficulty navigating stairs and
suffers from lower back pain limiting his movement.
Id. Plaintiff also testified that he suffers from
neuropathy of the saphenous nerve as well as diabetic
neuropathy. Id. The neuropathy began as a tingling
sensation but progressed to a burning pain. Id. He
elevates his legs to alleviate his symptoms and must elevate
his legs with prolonged sitting. Id. The ALJ further
noted Plaintiff's testimony that he can lift about fifty
pounds but can carry only about ten pounds because he uses a
cane. Id. Plaintiff uses a cane to ambulate whenever
he leaves his home. Id. He testified that he can sit
for thirty minutes before needing to change position.
Id. He lies down every hour for ten to fifteen
minutes to relieve his symptoms. Id. He can walk
about a block and stand in place with a cane for ten minutes.
Id. His driving is limited. Id.
also testified that he started taking insulin two years
before the hearing and at the time of the hearing, he
required three to five insulin shots each day. Id.
He takes Lyrica for nerve pain. Id. He takes no
narcotic pain medications. Id. The ALJ also noted
Plaintiff's testimony that he lives in a mobile home by
himself. Tr. 30. He can prepare his own simple meals.
Id. He can wash his dishes. Id. He is able
to water his garden and flowers for about fifteen minutes
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 ...