United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE
September 20, 2012, Plaintiff filed an application for
benefits, alleging disability as of April 1, 2010. Tr.
An Administrative Law Judge (“ALJ”) denied the
application in April 2015, finding the claimant not disabled
under the Social Security Act. Tr. 139. In March 2017, after
the Appeals Council remanded the ALJ's decision, a second
ALJ found claimant was not disabled under the Act. Tr. 25.
Plaintiff argues the ALJ erred in rejecting his subjective
symptom testimony, in rejecting the examining medical source
opinion of Dr. Shields and the treating medical source
opinion of Dr. Tiffany, and in relying on Vocational Expert
(“VE”) testimony that differed from the
Dictionary of Occupational Titles (“DOT”). This
Court has jurisdiction under 42 U.S.C. §§ 405(g)
and 1383(c)(3). Because the Commissioner's decision is
based on proper legal standards and supported by substantial
evidence, the Commissioner's decision is AFFIRMED.
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. 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, we review the
administrative record as a whole, weighing both the evidence
that supports and that which detracts from the ALJ's
conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th
Cir. 1989). “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 utilizes a five-step
sequential evaluation to determine whether a claimant is
disabled. 20 C.F.R. §§ 404.1520 & 416.920
(2012). The initial burden of proof rests upon the claimant
to meet the first four steps. If the claimant satisfies his
burden with respect to the first four steps, the burden
shifts to the Commissioner for step five. 20 C.F.R. §
404.1520. At step five, the Commissioner must show that the
claimant is capable of making an adjustment to other work
after considering the claimant's residual functional
capacity (RFC), age, education, and work experience.
Id. If the Commissioner fails to meet this burden,
then the claimant is disabled. 20 C.F.R. §§
404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the
Commissioner proves that the claimant is able to perform
other work existing in significant numbers in the national
economy, the claimant is not disabled. Bustamante v.
Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).
disability function report, Plaintiff alleged he stopped
working due to his impairments. Tr. 346. During hearings,
Plaintiff testified that he has always used his cane for the
past five or six years. Tr. 54, 80. Plaintiff testified that
aside from dropping off and picking up his children from
school, he typically spends the rest of the day
“[e]ither sitting down in my chair or laying back in my
chair watching TV or on my phone, whatever, that's about
it.” Tr. 58-59. In October 2012, Plaintiff stated he
was “a stay at home dad pretty much all the time, since
2008, since my injuries are affecting walking, caring, and
communicating with people.” Tr. 352. Plaintiff also
testified as to the severity of his back, hip, knees, and
left ankle pain, saying that his left side is “all
messed up.” Tr. 54-55. Plaintiff testified that poor
communication hindered his ability to get jobs. Tr. 57.
determined that Plaintiff had the following severe
impairments: lumbar degenerative disc disease; left hip
degenerative joint disease; left knee degenerative joint
disease with meniscal tear; mild degenerative joint disease
of the right knee; left ankle degenerative joint disease;
affective disorder; traumatic brain injury resulting in
expressive dysphasia; mild cognitive disorder; posttraumatic
stress disorder; and insomnia. Tr. 27. At step 4, the ALJ
determined that Plaintiff:
can lift, carry, push, and pull 20 pounds occasionally and 10
pounds frequently. He can stand an/or [sic] walk for 2 hours
and sit for up to 6 hours in an 8-hour workday, with normal
breaks. He needs to use a cane to ambulate away from the work
station and he should not push and pull with the left lower
extremity. The claimant should not climb ladders, ropes, or
scaffolds, but can occasionally climb ramps and stairs,
balance, stoop, and crouch. He should not kneel or crawl and
should not be exposed to moving mechanical parts or
unprotected height hazards. The claimant should avoid noise
above SCODOT level 3 (moderate noise) and is limited to
simple, routine tasks that can be learned in 30 days or less.
He is limited to isolated work, with no public contact,
occasional direct co-worker contact with no group tasks,
occasional supervisor contact, and no telephone work. He is
further limited to low stress work, with only occasional
changes in the work setting, occasional changes in work
duties, no conveyor-belt-pace work, and only simple
noted, Plaintiff argues the ALJ erred in rejecting his
subjective symptom testimony, in rejecting the opinion of
treating physician Dr. Shields and the opinion of examining
physician Dr. Tiffany, and in relying on VE testimony that
differed from the DOT. I address each argument in turn.
The ALJ's Adverse Credibility Determination
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 v. Astrue,
674 F.3d 1104, 1112 (9th Cir. 2012) (quoting Fair v.
Bowen, 885 F.2d 597, 603 (9th Cir.1989)). Still, the ALJ
must provide “specific, clear and convincing
reasons” to discredit subjective symptoms testimony.
Vasquez v. Astrue, 572, F.3d 586, 591
(9th Cir. 2009) (quoting Smolen v.
Charter, 80 F.3d 1273, 1282 (9th Cir. 1996)). In
formulating these reasons, the ALJ “may consider a
range of factors in assessing credibility.” Ghanim
v. Colvin, 763 F.3d 1154, 1163 (9th Cir. Aug. 18, 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 v. Astrue, 504 F.3d 1028, 1040 (9th
in this case supported her credibility determination with
references to several of the above factors:
Specifically, although the claimant alleged that he stopped
working due to his conditions in his adult disability report,
he testified that he stopped working at his last full-time
job because he was passed over for promotions, not because he
was physically unable to perform the work. The claimant
testified that after he left his job with Adroit, he
continued performing similar work as a self-employed
contractor until 2012 when his VA disability benefits
increased. Moreover, although the claimant testified that he
has difficulty with his memory and concentration, he was able
to continue performing this skilled work after his alleged
onset date, when his impairments allegedly became disabling.
This testimony that he continued working in the same type of
skilled work and stopped working, not due to his condition,
but because of a change in his financial situation, is not
consistent with his allegation that he was unable to work due
to his impairments.
Furthermore, although the medical evidence indicates that the
claimant has neurocognitive impairment that limits his
ability to communicate, the medical evidence indicated that
these impairments were largely unchanged since 1988 and did
not preclude him from performing skilled work as a carpenter
on a regular, sustained basis after the injury. This evidence
is not consistent with the claimant's ...