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Garren C. v. Commissioner of Social Security

United States District Court, D. Oregon

December 23, 2019

Garren C., [1] Plaintiff,



         On September 20, 2012, Plaintiff filed an application for benefits, alleging disability as of April 1, 2010. Tr. 139.[2] 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.


         The 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. 1996)).


         The 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).

         In a 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.

         The ALJ 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 work-related decisionmaking.

Tr. 30-31.

         As 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.

         1. The ALJ's Adverse Credibility Determination

         The ALJ 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 Cir.2007).

         The ALJ 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 ...

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