Little v. Commissioner Social Security Administration

Filing 19

Opinion and Order: The Commissioner's final decision is Reversed and this matter is Remanded for further proceedings. Upon remand, the ALJ shall consider evidence and testimony in the record from October 20, 2007, onward, and must consider the opinions and observations of Dr. Schmechel and the lay witness testimony of Ms. Little. Signed on 2/22/2016 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BILLY L. LITTLE,
Plaintiff,

Civ. No. 6:14-cv-01680-MC
OPINION AND ORDER

V.

CAROLYN W. COLVIN,
Acting Commissioner of the Social Security
Administration,
Defendant.

MCSHANE, Judge:
Plaintiff Billie Lee Little requests judicial review of a final decision of the Commissioner
of Social Security that denied his application for disability insurance benefits (DIB) and
supplemental security income payments (SSI) under Titles II and XVI of the Social Security Act
(the Act).
The issues presented to this Comt are (1) whether the Administrative Law Judge (ALJ)
made a de facto reopening of Plaintiffs prior applications under Titles II and XVI of the Act; (2)
whether the ALJ erred in failing to address Plaintiffs request to reopen his prior application for
benefits due to Plaintiffs alleged physical and mental inability to appeal the denials; (3) whether
the ALJ ened in failing to address the findings of Dr. Morrell or the opinion of Dr. Schmechel
that Plaintiff was markedly impaired in his ability to accept supervision; (4) whether the ALJ
failed to give clear and cqnvincing reasons for rejecting Plaintiffs testimony; (5) whether the
ALJ ened in discrediting the lay witness testimony of Christina Little, Plaintiffs wife; and (6)
1 - OPINION AND ORDER

whether the ALJ erred in finding there are jobs in significant numbers within the national
economy that Plaintiff can perform. Because the ALJ failed to provide clear and convincing
reasons for failing to consider the opinions and observations Dr. Scmechel, and failed to provide
gennane reasons for rejecting Ms. Little's testimony in reaching his determination, the
Commissioner's decision is REVERSED, and this matter is REMANDED for further
proceedings.

PROCEDURAL BACKGROUND
Plaintiff applied for DIB on December 30, 2008, and for SSI on January 2, 2009. Tr. 8485, 166. 1 These claims were denied on June 24, 2009. Tr. 85, 114. Plaintiff did not appeal, but
re-applied for DIB January 6, 2011, alleging disability as of October 19, 2007. Tr. 204. Plaintiff
requested a hearing after being denied initially and upon reconsideration, and appeared before
the Honorable Anthony Johnson, Jr. on March 21, 2014. Tr. 119-22, 129-34. On April 16, 2013,
Plaintiff requested the reopening of the prior applications, pursuant to SSR 91-5p. Tr. 165.
Plaintiffs claim was ultimately denied on May 29, 2013. Tr. 14-31. Review of this decision was
denied by the Appeals Council in August, 2014. Tr. 1-6.

FACTUAL BACKGROUND
Plaintiff was born in October 26, 1971. Tr. 204. He is a high school graduate and has
worked most recently as a dryer supervisor. Tr. 72-73, 235.
Plaintiff was diagnosed with major depression in 2006. Tr. 406-08. In October 2007,
Plaintiff was found to have herniated discs in his back. Tr. 372. He had previously suffered a disc
herniation that was successfully treated with surgery. Id Plaintiff had a microdiscectomy

1

Citations to "Tr." refer to the page(s) indicated in the official transcript of the administrative record filed herein as
ECFNo.8.

2 - OPINION AND ORDER

perfo1med February 28, 2008, after less invasive treatment options failed. Tr. 389, 395. When his
medication failed to control his pain, Plaintiff was reevaluated by Clyde Keys, M.D. Tr. 412. Dr.
Keys noted that Plaintiff had gained 42 pounds and recommended that Plaintiff lose weight to
decrease pain. Id. Less than one month later, on January 3, 2009, Dr. Keys noted that Plaintiff
had gained an additional 12 pounds. Id.
On May 20, 2009, Plaintiff was examined by Jennifer Micek, D.O., for back pain and
depression. Tr. 432. During the examination, Plaintiff stated that he thought about suicide every
morning and continued to suffer low back pain radiating into his right buttock. Id. Plaintiff also
reported that after 30 minutes of walking he needed to lie down for a couple of hours. Id.
In June 2009, Plaintiff was examined by Linda Schmechel, Ph.D., at the request of the
Oregon Disability Determination Services (ODDS). Tr. 435. Dr. Schmechel noted that Plaintiff
had an angry look during examination. Id. Dr. Schmechel thought that Plaintiffs behavior
throughout his life reflected aspects of a personality disorder, including compulsive computer
gaming; paranoid thinking; and rigid expectations of others. Dr. Schmechel believed that the
combination of a lack of work and pain from physical injuries may have exacerbated this
personality disorder. Tr. 439. Dr. Schmechel noted that Plaintiff retained full ability to carry out
and understand both simple and complex instructions, but he would "not fare well in work that
requires cooperation with others or highly interpersonal work." Tr. 439. She also found that his
ability to accept supervision seemed "markedly impaired at present." Id. Plaintiffs "capacity to
manage funds was questionable" as he was "so preoccupied with proving himself not abusive to
children he might not attend payment deadlines." Tr. 440. Dr. Schmechel noted that, during the
examination, Plaintiffs personal subjective distress was extremely high. Id. Dr. Schmechel
diagnosed depression, adjustment disorder with anxiety, and mixed personality disorder
3 - OPINION AND ORDER

(obsessive-compulsive and paranoid traits). Tr. 440. She assigned Plaintiff a Global Assessment
Functioning (GAF) score 2 of 46. Id
The following day, Plaintiff was examined by Kuti Brewster, M.D., P.C., C.l.M.E., at the
request of the ODDS. Tr. 441. Dr. Brewster noted that Plaintiff was in mild distress, walked with
an antalgic gait, and transfe1Ted on and off of the examination table with difficulty. Tr. 447. Dr.
Brewster also noted that Plaintiff"perfotms all activities of self-care" such as bathing and
washing his hair. Tr. 445. Dr. Brewster further noted that Plaintiff performs one hour of yard
work per day. Tr. 446. Dr. Brewster diagnosed low back pain status post multiple discectomies,
recurrent herniation, and lumbar degenerative disc disease. Tr. 450. He found decreased
sensation at S 1 distribution on the right. Id. Dr. Brewster found Plaintiff generally credible with
clinical documentation supp01iing the recurrence of pain and no d1ug-seeking behavior. Id Dr.
Brewster stated Plaintiff could walk for two hours in an eight-hour day, had no restrictions in
sitting, and could lift a maximum of ten pounds frequently. Tr. 450-51.
On June 2 and July 6, 2009, Eric Morrell, Ph.D., examined Plaintiff at the request of
Child Welfare Social Services. Plaintiff reported some mild symptoms of panic-like anxiety and
some paranoia. Tr. 705. Plaintiff received a 1-2/2-1 profile code, suggesting a tendency to
"exhibit physical symptoms with little demonstrable medical pathology." T.R. 711. According to
Dr. Monell, this profile code also suggests the use of subjective physical complaints "for selfserving gains." Id. The MMPI-2 was deemed "questionably valid," and Dr. Morrell noted that
Plaintiffs "[n]arcissistic indicators approach but fall shy of clinical significance, as do antisocial,

2

A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning used to
reflect the individual's need for treatment." Vargas v. Lambert, 159 F .3d 1161, 1164 n.2 (9th Cir.1998) (citing
Diagnostic and Statistical Manual of Mental Disorders 20 (rev. 3d ed. 1987)). A GAF score includes two
components: symptom severity and functioning. See Diagnostic and Statistical Manual of Mental Disorders 32 (rev.
4th ed. 2000).

4 - OPINION AND ORDER

schizoid, schizotypal, and paranoid tendencies." Id. Dr. Monell diagnosed dysthymic disorder;
history of alcohol and cannabis abuse in sustained full remission, per self-report; histo1y of
adjustment disorder with disturbance of conduct in adolescents; perpetrator of childhood
physical abuse; and personality disorder NOS (obsessive compulsive, aggressive,
schizotypal/paranoid, narcissistic) with a GAF of 49-50. Tr. 713. Plaintiff appeared to have a
low-grade chronic depression. Tr. 714. Plaintiffs therapist thought his mental state was
improving, but Dr. Morrell noted that Plaintiff was not capable of "acknowledging his issues
with [Dr. M01Tell] during the evaluation" and presented as "suspicious, prone to blame others,
and concretely focused on trivial details such as his medication as the culprit." Tr. 716.
In January 2010, Leslie Morey, Ph.D., administered a Personality Assessment Inventory
(PAI) upon Plaintiff, and noted that ce1iain indicators fell out of the normal range, suggesting
that Plaintiff "may not have answered in a completely forthright manner." Tr. 539, 544. The PAI
suggested the following diagnoses: adjustment disorder, unspecified; rule out dysthymic
disorder; and personality disorder NOS (mixed personality disorder, with borderline, antisocial,
paranoid, and schizoid features). Tr. 547. Dr. Morey noted that Plaintiffs self-description
indicated "significant suspiciousness and hostility in his relations with others." Tr. 544.
In April 2011, Plaintiff saw Theresa Lundy, M.D., and repo1ied constant back pain and
left knee pain "occurring constantly with an intensity at [six]" out often. Tr. 670-71. Dr. Lundy
noted that Plaintiff had done well on amitriptyline and did not know why he had quit taking the
medication. Dr. Lundy diagnosed post laminectomy syndrome, and prescribed amitriptyline. Tr.
670.
Later in April 2011, Plaintiff was examined by Anthony Glassman, M.D., a physical
medicine and rehabilitation specialist. Tr. 658. Plaintiffrepmied being depressed but not
5 - OPINION AND ORDER

suicidal, and he refused antidepressants. Id. Plaintiff reported that Naprosyn gave him 50% pain
relief and that his pain was "decreased by lying down and exacerbated by any kind of
loadbearing." Id. Dr. Glassman noted that his gait was antalgic on the right. Tr. 659. Dr.
Glassman diagnosed degenerative disc disease status post laminectomy with residual scar tissue
and recmrnnt hemiation, producing sciatic symptoms and obesity. Id. Objective evidence led to a
showing of decreased sensation in Plaintiffs right lateral foot and an absent Achilles tendon
reflex. Id. Dr. Glassman stated that Plaintiff was capable of lifting 35 pounds occasionally and 20
pounds frequently, and could walk up to one half hour at a time or a total of two hours in an
eight-hour day. Id.
In June 2011, Plaintiff again visited Dr. Lundy and reported Naprosyn and amitriptyline
were no longer helping his symptoms and that he was still very depressed and frustrated with his
"lack of ability to get disability" during a medical visit at the UCHC Roseburg Clinic. Tr. 698.
In March 2012, Plaintiff was examined by Kelli Gaffield, a nurse practitioner in Dr.
Lundy's office who noted he leaned to the right and was not able to sit more than five or ten
minutes, and could walk about fifteen minutes before needing to rest. Tr. 693-94. Plaintiff
reported to Gaffield that he was able to do much more walking and stretching until falling in
April 2012, requiring an injection oflidocaine and kenalog. Tr. 689. In July 2012, Plaintiff
reported worsening right leg and sciatic pain, stating that he was perfo1ming "all the stretching
and feels good relief from that," but that walking was "excrnciating." Tr. 685. Gaffield noted that
sitting was very difficult for Plaintiff and he could only tolerate standing if not bearing weight on
his right leg. Tr. 686. She gave Lyrica samples which, as Plaintiff later reported to Gaffield in
August 2012, "worked wonders" for the sciatic pain." Tr. 682-83. Gaffield noted that the status
of his depression was "[c]ontrolled," and that Plaintiffs obesity and sciatica were improving. Tr.
6 - OPINION AND ORDER

682. During this period, Plaintiff was "able to walk one and one half miles per day and do all the
chores and activities he was previously unable to do." Tr. 683.
In February 2013, Plaintiff sought urgent care for an acute lower back flare up. Tr. 718.
He reported that his pain was usually well-maintained with medication, but that he had done
extra walking that day. Id
DISABILITY ANALYSIS FRAMEWORK
A claimant is disabled ifhe or she is unable to "engage in any substantial gainful activity
by reason of any medically dete1minable physical or mental impahment 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)(l)(A). 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. The initial burden of
proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden
with respect to those steps, the burden shifts to the Commissioner for step five. 20 C.F.R. §
404.1520. At step five, the Commissioner bears the burden of demonstrating that the claimant is
capable of making an adjustment to other work after considering the claimant's RFC, age,
education, and work experience. Id. "If the Commissioner fails to meet this burden, then the
claimant is disabled. If, however, the Commissioner proves that the claimant is able to perfmm
work that exists in significant numbers in the national economy, then the claimant is not
disabled." Carrollv. Colvin, No. 6:12-cv-02176-MC, 2014 WL4722218, at *2 (D. Or. Sep. 19,
2014).

7 ~OPINION AND ORDER

SUMMARY OF ALJ FINDINGS
At the first step of the five-step sequential evaluations process, the ALJ found that
Plaintiff did not engage in substantial gainful activity at any time following his alleged onset date
of October 20, 2007. Tr. 18. The ALJ then proceeded to the second step of the analysis.
At the second step, the ALJ found that Plaintiff suffers from the following impairments:
degenerative disc disease status-post laminectomy, failed back syndrome, obesity, depression,
anxiety, and a personality disorder. Id.
At the third step, the ALJ found that none of Plaintiffs impai1ments were the equivalent
of any of the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. Tr. 18. The ALJ therefore
properly conducted an assessment of Plaintiffs residual fi.mctional capacity (RFC).
Specifically, the ALJ found that Plaintiff retains
The residual functional capacity to lift/cany al least 10 pounds,
walk and stand for a total of two hours of an eight-hour workday,
and sit for six hours of an eight-hour workday. These functional
abilities are consistent with sedentary work. The claimant's
subjective complaints of lower back and leg pain and other
subjective symptoms may limit him to only sedentary exertion. He
may also require work allowing alternating sitting/standing due to
his allegations that he is unable to sit for prolonged periods.
Tr. 23. The ALJ further limited Plaintiffs RFC to unskilled jobs.
At the fomih step of the five-step process, the ALJ found that Plaintiff was unable to
perfonn any of his past relevant work. Tr. 23.
At the fifth step, after considering the Plaintiffs RFC, age, education, and work
experience in conjunction with the Medical-Vocational Guidelines, 20 C.F.R. pt. 404 subpt. P,
app. 2m, the ALJ found there were jobs existing in significant numbers in the national and local
economy that Plaintiff was able to perform. Tr. 24. The vocational expert (VE) indicated, given
8 - OPINION AND ORDER

Plaintiffs limitations, that he could perform the occupations of stuffer, polisher, and final
assembler. Tr. 24. On that basis, the ALJ concluded that Plaintiff was not disabled as defined in
the Act at any time between October 20, 2007, and May 29, 2013. Tr. 24-25.

STANDARD OF REVIEW
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.

See 42 U.S.C. § 405(g); Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir.
2004). To determine whether substantial evidence exists, this Court reviews the administrative
record as a whole, weighing both the evidence that supports and that which detracts from the
ALJ's conclusion. lvfartinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "If the evidence can
reasonably support either affinning or reversing, 'the reviewing comt may not substitute its
judgment' for that of the Commissioner."' Gutierrez v. Comm'r a/Soc. Sec. 740 F.3d 519, 523
(9th Cir. 2014) (quoting Reddick v. Chat er, 157 F.3d 715, 720-21 (9th Cir. 1998)).

DISCUSSION
Plaintiff contends that the ALJ' s decision is not supported by substantial evidence and is
based on an application ofinco1Tect legal standards. In pmticular, Plaintiff argues that: (1) the
ALJ made a de facto reopening of Plaintiffs prior applications under Titles II and XVI of the
Act; (2) absent a de facto reopening, the ALJ failed to address Plaintiffs request to reopen his
prior application for benefits due to his physical and mental inability to timely appeal the denials;
(3) the ALJ failed to address the findings of Dr. Morell or the opinion of Dr. Schmechel that
Plaintiff was markedly impaired in his ability to accept supervision; (4) the ALJ e1Ted in failing
to give clear and convincing reasons for rejecting Plaintiffs testimony; (5) the ALJ e1Ted in

9 - OPINION AND ORDER

failing to credit a lay witness's testimony; and (6) the ALJ eiTed in finding that there are jobs in
significant numbers within the national economy that Plaintiff can perform.

I.

De Facto Reopening of2008 and 2009 Applications
When an ALJ reopens a prior adjudication by considering "on the merits" whether a

claimant was disabled during an already-adjudicated period, the Commissioner's decision
regarding the prior period is subject to judicial review. Lester v. Chafer, 81 F.3d 821, 827 n. 3
(9th Cir. 1995). Plaintiff argues that the ALJ made a de facto reopening of Plaintiffs previous
denials because the ALJ failed to note Plaintiffs previous applications, did not address reopening in his decision, and accepted Plaintiffs alleged onset date of October 20, 2007, without
comment. The Commissioner responds that references to October 2007 are insufficient to
constitute a reopening of a previously adjudicated period, and amounts to nothing more than a
harmless e11'0r.
Generally, when the Commissioner does not expressly reopen a decision as to an earlier
period, that decision is not subject to judicial review. Id. at 827. There is an exception to this
general rule, however, where the Commissioner considers the issue of a plaintiffs disability
during the already-adjudicated period "on the merits." Lewis v. Apfel, 236 F.3d 503, 510 (9th Cir.
2011).
The ALJ knew of the previous denial of Plaintiffs applications for the period of October
19, 2007-January 6, 2011, yet he nonetheless considered evidence of disability on June 16, 2009,
which fell within an already-adjudicated period of that date range. Tr. 21, 434. By considering a
period of disability that included an already-adjudicated period, the ALJ de facto reopened the
previous proceedings. See Lewis, 236 F.3d at 510. Moreover, the ALJ's decision explicitly
dete1mines the Plaintiff"has not been under a disability ... from October 20, 2007, through
10- OPINION AND ORDER

[May 29, 2013]." Tr. 24-25. When an ALJ considers evidence of disability that predates a
previous denial of disability, and the ALJ accepts "without comment the alleged onset date," it is
appropriate to treat the ALJ's actions as a de facto reopening. Lewis, 236 F.3d at 510. I find that
the ALJ reopened the two prior claims by considering evidence related to an already-adjudicated
period. On remand, the Commissioner must consider all evidence relevant to Plaintiffs case
from October 20, 2007, onward.

II.

Plaintiff's Mental Capacity and Alleged Inability to Appeal
Plaintiff contends that the ALJ erred in failing to reopen the 2009 denials of his prior

application because he lacked mental capacity to contest the denials. In response, Defendant
argues that Plaintiff failed to present a colorable constitutional claim that he lacked the mental
and physical capacity to appeal the denials of his prior applications. The Comi has already
determined that the ALJ de facto reopened Plaintiff's prior denials. This argument is therefore
largely moot. This issue is nonetheless relevant to the extent Plaintiff may attempt to reasse1i his
allegations. Accordingly, I address them below.
The Act limits judicial review of Commissioner's decisions to those considered final
decisions made after a hearing. 42 U.S.C. § 4059(g). A decision to not reopen a prior final
decision is discretionary and not considered a final decision, and is therefore not subject to
judicial review. Califano v. Sanders, 430 U.S. 99, 107-09, 51 L. Ed. 2d 192, 97 S. Ct. 980
(1977). In Sanders, the Supreme Court recognized an exception to the general rule where a
colorable constitutional claim is made. Id. at 109. The Sanders exception applies to any colorable
constitutional claim that implicates the right to a meaningful oppmiunity to be heard. Evans v.
Chafer, 110 F.3d 1480 (9th Cir. 1997).

11 - OPINION AND ORDER

In this case, Plaintiff asse1ts that he missed deadlines due to his alleged lack of mental
capacity to understand the procedures for requesting review. In making a determination as to
whether Plaintiff lacked mental capacity to understand the procedures for requesting review, four
factors must be considered: (1) inability to read or write; (2) lack of facility with the English
language; (3) limited education; and (4) any mental or physical condition which limits the
claimant's ability to do things for him/herself. SSR 91-Sp, available at 1991WL208067. The
adjudicator will "resolve any reasonable doubt in favor of the claimant." Id.
Understanding appointment times and dates are not dissimilar to complying with filing
deadlines. On June 6, 2009, Plaintiff was able to drive himself to a psychological evaluation. Tr.
435. The record reflects Plaintiff is capable of understanding appointment times and dates and
has, on occasion, "arrived a half hour early" for appointments. Tr. 436. Plaintiff asse1ts that he
was severely limited at the time his disability claim was denied due to being "preoccupied with
proving he was not abusive to children." Tr. 440. The Court does not find emotional
preoccupation sufficient to rise to the level of incapacity.
Plaintiff also argues that Dr. Schmechel's observations that Plaintiff had an angry look
and constantly wrung his hands throughout the session are indicative of Plaintiffs mental
incapacity. Tr. 436. The coutt does not find that anger or nervous ticks such as wringing one's
hands rise to the level of incapacity. Plaintiffs alleged inability to manage funds cannot
reasonably be equated to a complete incapacity or inability to make a filing for extension of time.
Moreover, Plaintiffs extreme drive to prove himself a worthy parent points to capability more so
than incapacity. If Plaintiff can, as he contends, care for his children, his claim that he cannot
take care of himself is contradictory.

12 - OPINION AND ORDER

On this record, the Court concludes Plaintiff does not allege a colorable constitutional
claim that he lacked the mental capacity to understand the procedures for requesting review.

III.

The Testimony of Doctors Schmechel and Morell
Plaintiff next claims the ALJ etTed in failing to address the opinions ofDrs. M01Tell and

Schmechel. The Commissioner responds that the opinions and findings of the two doctors are
outside the relevant time period, and thus the probative value of the two opinions is insignificant.
The Court rejects Commissioners response, as the opinions of the doctors fall well within the
alleged disability stait date beginning October 20, 2007. Tr. 17. However, while the Comt finds
that the ALJ eITed in failing to address the opinion and findings of Dr. Schmechel, he did not err
in failing to address the opinion and findings of Dr. Morrell as it is consistent with the ALJ's
opinion.
Where there is conflicting medical evidence in the record, "the ALJ is charged with
determining credibility and resolving any conflicts." ChaudhlJ' v. Astrue, 688 F .3d 661, 671 (9th
Cir. 2012). "An ALJ may reject a treating physician's opinion ifit is based 'to a large extent' on
a claimant's self-reports that have been prope1ty discounted as incredible." Tommasetti v. Astrue,
533 F.3d 1035, 1041 (9th Cir. 2008). An ALJ may only reject an uncontradicted examining
doctor's opinion for clear and convincing reasons. Lester, 81 F.3d at 830.
Plaintiff contends that Dr. Morrell' s psychological assessment was not accounted for in
the ALJ's opinion. After careful review of the record, I find that the ALJ appropriately
considered Dr. MotTell's opinion. As Dr. Morell noted, Plaintiffs narcissistic indicators
"approach but fall shy of clinical significance, as do [his] antisocial, schizoid, schizotypal, and
paranoid tendencies." Tr. 711. Dr. Morrell's opinion is consistent with the ALJ's findings as both
conclude that Plaintiffs indicators fell short of clinical significance. If a doctor's repo1ts are not
13 - OPINION AND ORDER

probative, the ALJ is not duty-bound to discuss them. See Vincent ex rel. Vincent v. Heckler, 739
F.2d 1393, 1394-95 (9th Cir. 1984). I find no error in the ALJ's treatment of Dr. Monell's
opinion.
Plaintiff fmiher contends that Dr. Schmechel 's opinion was not accounted for in the
ALJ's determination. This contention is well taken. In order to properly reject Dr. Schmechel's
opinion, the ALJ needed to provide clear and convincing reasons for doing so. Lester, 81 F.3d at
830.
During the ALJ's discussion with the VE, the ALJ asks ifthere are jobs available to a
hypothetical individual who is "limited to working with things rather than people or data." This
minor allusion to Dr Schmeckel' s opinion that Plaintiff would not fare well in a setting requiring
cooperation with others or highly interpersonal work does not serve as a rejection of her opinion.
The ALJ failed to provide specific and legitimate reasons for rejecting the opinion and findings
of Dr. Schmechel supported by substantial evidence. On remand, the ALJ must consider the
opinions and findings of Dr. Schmechel.

IV.

Plaintifrs Testimony
Plaintiff contends that the ALJ erred in evaluating his credibility. In response, the

Commissioner argues that Plaintiffs testimony regarding the limiting effects of his impairments
were not fully credible and was contradicted by the evidence in the record. The Commissioner
highlights Plaintiffs generally normal examination resnlts as well as evidence in the record that
Plaintiff was able to care for his own needs.
An ALJ must consider a claimant's symptom testimony, including statements regarding
pain. See 20 C.F.R. §§ 404.1529, 416.929. The extent to which such testimony is probative and

14- OPINION AND ORDER

can be relied upon "depends on the credibility of the statements." SSR 96-7p available at l 996
WL374186.
In making a dete1mination regarding Plaintiffs testimony, the ALJ was required to
provide "specific, clear and convincing reasons" for rejecting Plaintiffs testimony. Vasquez v.
Astrue, 572 F.3d 586, 591 (9th Cir. 2009). An ALJ may consider the claimant's tendency to
exaggerate symptoms, Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001), and may
discount a claimant's complaints of pain when the ALJ reasonably infened from the medical
record that claimant's pain symptoms are well-controlled by medical treatment. Celaya v. Halter,
332 F.3d 1177, 1181 (9th Cir. 2003). An ALJ may also consider a claimant's "reputation for
truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his
daily activities, his work record, and testimony from physicians and third parties concerning the
nature, severity, and effect of the symptoms of which he complains." Light v. SSA, 119 F.3d 789,
792 (9th Cir. 1997).
The ALJ's credibility findings must be "sufficiently specific to permit the reviewing
court to conclude the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v.
Shala/a, 50 F.3d 748, 750 (9th Cir. 1995) (citing Brunell v. Sullivan, 947 F.2d 341, 345-56 (9th
Cir. 1991) (en bane)). In deciding whether to credit Plaintiffs testimony, the ALJ "must perform
two stages of analysis: the Cotton analysis and an analysis of the credibility of the claimant's
testimony regarding the severity of her symptoms." Smolen v. Chafer, 80 F.3d 1273, 1281 (9th
Cir. 1996). Barring evidence of malingering, ifa claimant meets the Cotton analysis,3 "the ALJ
can reject the claimant's testimony about the severity of [his] symptoms by offering clear and
3

The Collon analysis "imposes only two requirements on the claimant: (1) [he] must produce objective medical
evidence of an impairment or impaitments; and (2) she must show that the impairment or combination of
impairments could reasonably be expected to (not that it did in fact) produce some degree of symptom." Smolen, 80
F.3d at 1282 (citing Cotton v. Bowen, 799 F.2d 1403, 1407-08 (9th Cir. 1986)).

15 - OPINION AND ORDER

convincing reasons for doing so." Id. (citing Dodrill v. Shala/a, 12 F.3d 915, 918. (9th Cir.
1993). This Court "must uphold the ALJ's decision where the evidence is susceptible to more
than one rationable interpretation," Andrews v. Shala/a, 53 F.3d 1035, 1039-40 (9th Cir. 1995),
and "may not engage in second-guessing," Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.
2002).
Here, the ALJ noted that the evidence could reasonably "be expected to cause some of
the alleged symptoms; however the claimant's statements and witness testimony concerning the
intensity, persistence and limiting effects of these symptoms [were] not entirely credible." Tr. 22.
In coming to this conclusion, the ALJ noted that Plaintiffs pain was greatly improved with
medication, and he was able to walk a mile and a half per day and do "all the chores ... he was
previously unable to do.'' Tr. 22, 682-83. Plaintiff testified his medications continue to help with
pain. Testimony that Plaintiffs medication continues to help with pain directly contradicts
Plaintiffs testimony that his pain, on a one to ten scale, was an eight out often "all the time." Tr.
50. The ALJ noted that a consultative medical exam in April 2011 "was generally within normal
limits except for right leg neurological findings" and that Plaintiff was able to heel walk and toe
walk without difficulty. Tr. 22, 669. Plaintiff was able to take care of his basic needs, as well as
use a computer and drive a car. Tr. 22, 317-19. When his pain is properly medicated, Plaintiff is
able to walk a mile and a half. Tr. 682-83. Plaintiff has not recently required any hospitalizations
or surgeries. Tr. 22.
Based on this record, the Court finds that the ALJ did not en in discrediting Plaintiffs
statements related to the intensity, persistence, and limiting effects of his symptoms. The ALJ
did not arbitrarily discredit Plaintiff, and provided clear and convincing reasons for disregarding
Plaintiffs testimony.
16- OPINION AND ORDER

IV.

Lay Witness Testimony
Plaintiff contends that the ALJ erred in failing to address the lay witness testimony of

Christina Little, Plaintiffs wife. In response, the Commissioner argues that the lay witness
testimony of Plaintiffs wife was neither probative nor material. The Commissioner also argues
that the lay witness testimony does not fall within the relevant time period. As a preliminary
matter, I reject the latter argument, as the lay witness testimony occured after October 20, 2007,
Plaintiffs alleged disability onset date. I analyze the former argument below.
The ALJ need not "discuss every witness's testimony on an individualized, witness-bywitness basis ... ifthe ALJ gives ge1mane reasons for rejecting testimony by one witness, the
ALJ need only point to those reasons when rejecting similar testimony by a different witness."
lvlolina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (citations omitted).
During the administrative hearing, Christina Little testified that Plaintiff, during certain
periods, was "constantly in pain" and was unable to "keep up with the housework." Tr. 62-63.
Ms. Little testified that her husband is only able to sit in a straight back chair for "15 minutes
tops." Tr. 64. Ms. Little has to remind Plaintiff to dress, bathe, and groom himself. Tr. 66.
The Comt finds Ms. Little's testimony probative and material. The ALJ failed to provide
germane reasons for rejecting the Ms. Little's testimony, which was contradictory to the ALJ's
finding. On remand, the ALJ must consider Ms. Little's testimony and factor it into his disability
analysis or, alternatively, provide germane reasons for rejecting Ms. Little's testimony.

V.

Plaintiffs Ability to Work in the National Economy
In order to meet the burden placed on Commissioner in step five of the of the five-step

sequential evaluations process, Commissioner must prove that claimant can perform a significant
number of other jobs in the national economy either through: 1) the testimony of a VE; or 2) by
17 - OPINION AND ORDER

reference to the Medical Vocational Guidelines in 20 C.F.R. pt. 404, subpt. P, app. 2. See Tacket

v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). Work that exists in the national economy is
defined as "work which exists in significant numbers either in the region where such individual
lives or in several regions of the country." 42 U.S.C. §1382(a)(3)(B). The VE is asked to identify
other work a hypothetical individual could perform that has the same age, education,
background, and work history as the claimant. In order for the testimony of a VE to be
determined to be reliable, the hypothetical posed must include "all of the claimant's functional
limitations, both physical and mental" that are supported by the record. Flores v. Shala/a, 49
F.3d 562, 570-71 (9th Cir. 1995).
I need not address this argument because it is rendered moot by my above findings.
However, Ninth Circuit precedent defers to an ALJ's suppo1ted finding that a particular number
of jobs in the claimant's region was "significant." See Valentine v. Comm'r Soc. Sec. Admin., 574
F.3d 685, 690 (9th Cir. 2009) (holding a reviewing court must uphold the ALJ's decision ifit is
suppo1ted by "substantial evidence ... a highly deferential standard ofreview"); Martinez, 807
F.2d 775 (Whether a significant number of jobs exist that claimant is able to perform "is a
question of fact to be determined by ajudicial officer." (emphasis added)). In Thomas, the Ninth
Circuit upheld an ALJ decision that a claimant was not disabled because claimant could perform
"one of 622,000 jobs in the national economy and 1,300 jobs in Oregon." 278 F.3d at 960.

I II
I II
Ill
II I

18 - OPINION AND ORDER

CONCLUSION
For these reasons, the Commissioner's final decision is REVERSED and this matter is
REMANDED for fmiher proceedings. Upon remand, the ALJ shall consider evidence and
testimony in the record from October 20, 2007, onward, and must consider the opinions and
observations of Dr. Schmechel and the lay witness testimony of Ms. Little.
IT IS SO ORDERED.
Dated this _ _ day of February, 2016.

Michael J. McShane
United States District Judge

19 - OPINION AND ORDER