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Anthony E. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Portland Division

November 16, 2019

ANTHONY E.[1], Plaintiff,

          John E. Haapala, Jr. Attorney for Plaintiff

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon


          Martha A. Boden SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration Attorneys for Defendant

          OPINION & ORDER

          Marco A Hernandez, United States District Judge

         Plaintiff 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 additional proceedings.


         Plaintiff 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.


         Plaintiff 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 college." Id.


         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.


         At step 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.

         At step 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.


         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 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.

         I. Plaintiff's Credibility

         The ALJ 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).

         The ALJ 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.

         Plaintiff 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 daily. Id.

         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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