Connors v. Commissioner Social Security Administration
Opinion and Order - The findings of the Commissioner are based upon substantial evidence in the record and the correct legal standards. For these reasons, the Court AFFIRMS the Commissioner's decision. Signed on 7/6/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DANIEL PATRICK CONNORS,
Case No. 6:15-cv-2365-SI
OPINION AND ORDER
NANCY A. BERRYHILL,
Commissioner of Social Security,
Katherine L. Eitenmiller and Robert A. Baron, LAW OFFICE OF HARDER, WELLS, BARON &
MANNING, P.C., 474 Willamette, Suite 200 Eugene, OR 97401. Of Attorneys for Plaintiff.
Billy J. Williams, United States Attorney, and Janice E. Hebert, Assistant United States
Attorney, UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland,
OR 97204; Jordan D. Goddard, Special Assistant United States Attorney, OFFICE OF GENERAL
COUNSEL, Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA
98104. Of Attorneys for Defendant.
Michael H. Simon, District Judge.
Daniel P. Connors (“Plaintiff”) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying his application
for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act. Because the
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Commissioner’s decision was based on the proper legal standards and is supported by substantial
evidence, the decision is AFFIRMED.
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
Where the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
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A. Plaintiff’s application
Plaintiff was born on May 14, 1963, in Portland, Oregon. Administrative Record
(“AR”) 29, 385. Plaintiff enlisted in the U.S. Army at 17 years o1d. AR 297. He served
from 1981 to 1984. After that, he served with the National Guard from 1985 to 1995, and then
returned to the Army from 1995 to 2002. Id. Plaintiff worked various jobs in the Army. After
leaving the Army, Plaintiff worked as a wildlands firefighter in 2003 to 2004 and as a grocery
clerk in 2003. AR 92-98, 208.
In March 2014, Plaintiff filed his application alleging disability as of January 1, 2003.
AR 187-95. Plaintiff requested a hearing after the application was denied initially and again upon
reconsideration. AR 135-45. After the hearing on May 5, 2015, Administrative Law Judge
(“ALJ”) John Michaelsen found Plaintiff not disabled. AR 35-56. Plaintiff appealed ALJ
Michaelsen’s decision to the Appeals Council and his appeal was denied review on October 26,
2015, making the ALJ’s decision final. AR 1-6. This appeal followed.
B. The Sequential Analysis
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). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
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Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
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See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
burden, 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, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s decision
The ALJ denied Plaintiff’s claim for benefits using the sequential analysis. At step one,
the ALJ noted that although Plaintiff might have engaged in substantial gainful activity in 2003
and 2004, the record was ambiguous, and so the ALJ concluded that Plaintiff had not engaged in
substantial gainful activity during the period of January 1, 2003, the alleged disability onset date,
through his date last insured of March 31, 2009. AR 19. At step two, the ALJ found the
following severe impairments: history of alcohol abuse, major depressive disorder, posttraumatic stress disorder, Attention Deficit Hyperactive Disorder (“ADHD”), mild obesity,
degenerative disc disease of the lumbar spine, osteoarthritis of the right shoulder, and history of
left fifth digit abduction/adduction impairment. AR 19-20. At step three, the ALJ found that none
of the severe impairments meets or equals any impairment listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1. AR 20.
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The ALJ next assessed Plaintiff’s RFC, concluding that Plaintiff could perform work as
the full range of light work as defined in 20 CFR 404.1567(b)
subject to the following limitations: The claimant is able to lift
and/or carry ten pounds frequently and twenty pounds
occasionally. He is able to stand and/or walk for two hours in an
eight-hour workday with normal breaks. He is able to sit for six
hours in an eight-hour workday with normal breaks. He is able to
perform work limited to no more than frequent stooping,
crouching, crawling, kneeling, or climbing of stairs and ramps. He
should avoid climbing ropes, ladders or scaffolds. He is able to
perform work limited to no more than occasional reaching with his
right upper extremity, and to no more than frequent grasping,
handling, or fingering with his left hand. He would also need to
avoid concentrated exposure to fumes, dusts, gases, poor
ventilation and other noxious odors. He is able to perform work
limited to simple, repetitive, routine tasks requiring no more than
occasional interaction with co-workers and the general public.
AR 22. At step five, the ALJ, with the testimony of a vocational expert (“VE”), determined that
Plaintiff could not perform any past relevant work, but is able to perform the representative job
of security guard. AR 29-30.
Plaintiff argues that the ALJ erred by: (1) failing to provide legally sufficient reasons to
disregard the Veteran’s Administration (“VA”) disability rating decisions, particularly the 2009
VA rating decision; (2) failing to provide clear and convincing reasons supported by substantial
evidence to discredit Plaintiff’s symptom testimony; and (3) failing to meet the Commissioner’s
burden of proving that Plaintiff retains the ability to perform the requirements of “other work.”
A. VA Disability Ratings
Plaintiff argues that the ALJ improperly discredited the VA disability ratings. A
determination by another governmental agency about whether a claimant is disabled is based on
that agency’s rules and accordingly such determinations are not binding on the Commissioner.
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20 C.F.R. § 404.1504. Nevertheless, an ALJ must “ordinarily give great weight to a VA
determination of disability.” McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002)
(reversing a denial of benefits because the ALJ “failed to consider the VA finding and did not
mention it in his opinion”). Because the VA’s and the Social Security Administration’s (“SSA”)
criteria for determining disability are not identical, however, an ALJ may “give less weight to a
VA disability rating if he gives persuasive, specific, valid reasons for doing so that are supported
by the record.” Id. Unlike the ALJ in McCartey, the ALJ here considered, but rejected, the VA’s
disability finding. Thus, the Court must decide whether the ALJ provided persuasive, specific,
and valid reasons for rejecting the VA’s disability finding.
The Court finds that the ALJ provided persuasive, specific, and valid reasons for
crediting the VA rating decisions with minimal weight, rather than great weight. The ALJ found
that the VA rating decisions should be discounted because of Plaintiff’s work history and
because the VA’s decisions fail to describe any specific limitations attributed to Plaintiff’s
1. Work History
An ALJ may consider a claimant’s work activity during the alleged period of disability,
especially if the work ended for reasons unrelated to the alleged disability. Bruton v.
Massanari, 268 F3d 824, 828 (9th Cir. 2001); Daley v. Commissioner of the Soc. Sec.
Admin., 2015 WL 1524485, at *8 (D. Or. 2015). In Daley, the court found the ALJ did not err
when discrediting the claimant’s VA rating decision, in part because the claimant worked during
the VA disability period and was not fired for his disability. Id. at *8-9.
The ALJ also discussed Plaintiff’s daily living activities as a reason to discount the VA
ratings, but the Court does not find this to be a specific and persuasive reason.
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In this case, Plaintiff worked during the VA disability rating period. In 2004, the VA
found Plaintiff was 80 percent disabled, effective retroactively to January 2003, due to a
combination of mental impairments (70 percent) and physical impairments (10 percent back
pain, among other non-severe pains). AR 62, 734, 736-45. The VA’s diagnosis of Plaintiff’s
attention deficit disorder with depression and obsessive-compulsive behavior were the primary
bases for the VA disability rating. AR 714, 726, 736). During the time that the VA rated him 80
percent disabled, however, Plaintiff worked two different jobs. In 2003, Plaintiff worked
seasonally as a woodlands firefighter. AR 19, 205, 208. Also in 2003, Plaintiff worked for
approximately four months as a grocery store clerk, but was fired for sexual harassment. AR 19,
67, 91-92, 205. In 2004, Plaintiff returned to work as a seasonal woodlands firefighter, but
stopped working due to a previous back injury that worsened while performing the job. AR 67,
205. For neither job did Plaintiff have to stop working due to the impairments that were the
primary underlying bases for the VA disability ratings.
Because of Plaintiff’s worsened injuries, the VA increased the portion of Plaintiff’s
disability due to back pain from 10 percent to 20 percent. AR 726-35. This increase, made
in 2006 but effective retroactively to 2005, resulted in the VA finding that Plaintiff was 100
percent unemployable. Id. The VA issued identical ratings (80 percent disabled and 100 percent
unemployable) in 2007 and 2009. AR 706-25. 2
Plaintiff’s argument that the ALJ committed plain error by only considering the
VA’s 2009 rating decision and not considering all the VA rating decisions is rejected. The ALJ
held the record open in order to receive additional VA documents. After receiving some
documents, the ALJ issued an opinion on July 13, 2015. Later that same day, the hearing office
received even more VA documents from Plaintiff’s counsel, well outside the time frame in
which the record was left open. Despite the late submission of those records, the ALJ withdrew
his original opinion and issued the amended opinion that Plaintiff challenges here, expressly
noting that“[a]lthough these documents do not warrant a different outcome in this case, the
undersigned has concluded that it would be remiss not to address those records in this decision.”
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While rated 80 percent disabled by the VA, Plaintiff worked two jobs and was not fired
because of his disability. Despite being determined to be 80 percent disabled effective
January 2003, Plaintiff appears to have worked the entire woodlands firefighting season in 2003
without issue and worked four months as a grocery clerk without problems with his alleged
disability. Moreover, Plaintiff only stopped working as a woodlands firefighter in 2004 because
of increased back pain, not for reasons related to his purported compulsive behaviors. Plaintiff
testified that he was able to control his mental health issues, the issues on which he was granted
seven-eighths of his 80 percent disability rating, while working as a firefighter because he
enjoyed being around the people he worked with. AR 23, 72. Additionally, the ALJ found that “it
does not appear that the claimant was forced to stop working due to a medical impairment at his
store clerk job.” AR 24.
Plaintiff argues that his termination from his clerk job for sexual harassment is
“consistent with a finding that compulsive and inappropriate behaviors—as reported to VA
physicians—support a finding of disability.” To support this argument, Plaintiff cites to instances
in the record of his marijuana use, nicotine addiction, and two references to his masturbation
activity. AR 298, 356, 358 (when asked what Plaintiff does for fun by himself, he answered
“[m]asturbate”). The Court is not persuaded by Plaintiff’s argument because there is no evidence
that Plaintiff’s mental impairments compelled him to sexually harass women and no medical
professional has opined that sexual harassment was the result of Plaintiff’s impairments or an
expected result from at-home masturbation, marijuana use, or nicotine addiction. Thus, the Court
concludes that Plaintiff stopped working both jobs for reasons unrelated to his mental
AR 16. Although the amended opinion specifically references the VA’s 2009 decision in one
sentence, from the text and context of the entire opinion it is clear that the ALJ considered all of
the VA documents. For example, the ALJ discusses “[t]he VA rating documents.” AR 24
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impairments. The inconsistency of working while being 80 percent disabled ( according to the
VA) is a persuasive, specific, and valid reason for discounting the VA’s ratings decisions.
Plaintiff also alleges that the ALJ erred when considering Plaintiff’s work history while
receiving disability because the “VA rules regarding work activity while receiving benefits
differs from those of the SSA.” Plaintiff is correct about the difference between the two
agencies’ definitions, but it is not “merely an example of the ways in which these federal
programs differ.” Compare 38 C.F.R. § 4.17(a) (VA definition of total disability based on
unemployability) with 20 C.F.R. § 416.905 (SSA definition of disability is “the inability to do
any substantial gainful activity”). As the ALJ noted, “[b]ecause the VA and SSA criteria for
determining disability are not identical, however, the ALJ may give less weight to a VA
disability rating if he gives persuasive, specific, valid reasons for doing so that are supported by
the record.” McCartey, 298 F3d at 1076; AR 24. Here, the ALJ identified how the two programs
were not identical because the VA rating documents do not address the inconsistency in
collecting benefits while working, and how that inconsistency is explained by looking at the
different definitions from each agency. The ALJ then gave a persuasive, specific, and valid
reason for giving the VA’s rating decisions less weight, namely Plaintiff’s work history, which
demonstrated Plaintiff did not lose his jobs because of his mental impairments. The ALJ did not
The ALJ’s second reason to give limited weight to the VA decisions, because they have
“no specific limitations [that] are attributed to the claimant’s impairments (just a disability
percentage),” is also a persuasive, specific, and valid reason. AR 24. Under the SSA regulations,
a claimant’s functional limitations must be compared to the claimant’s past relevant work and to
work existing in the national economy. 42 U.S.C. § 423(d)(2)(A) (2017). To award disability
PAGE 10 – OPINION AND ORDER
benefits, the ALJ must evaluate “the most [the claimant] can still do despite [his] limitations.” 20
C.F.R § 404.1545. Under the VA regulations, “accurate and fully descriptive medical
examinations are required, with emphasis upon the limitation of activity imposed by the
disabling condition.” 38 C.F.R § 4.1 (2017).
As the ALJ pointed out, the VA decisions do not include any of the required limitations
of activity imposed by Plaintiff’s disabling condition. AR 24. The VA concluded Plaintiff was
unemployable based on his 80 percent disability rating, but failed to include the “limitation of
activity imposed by the disabling condition.” AR 726-35. An absence of specific limitations is a
persuasive reason to discredit a VA rating decision because the ALJ must determine “the most
[the claimant] can still do despite [his] limitations.” Merely noting the disability percentage is
not sufficient. Daley, 2015 WL 1524485, at *8 (finding that it is unclear how diabetes, which
was rated 20 percent disabling, limited the plaintiff’s ability to work when both the doctor and
plaintiff reported his diabetes was controlled by exercise and diet alone).
Plaintiff argues that “it is notable that the VA has granted 100 percent unemployability
and found Mr. Connors totally and totally [sic] and permanently disabled.” The VA decisions,
however, do not include any of the vocational information or functional limitations necessary to
conclude that there is no work in the national economy that Plaintiff is capable of performing.
Additionally, for the impairments that the VA did specifically identify, the ALJ has incorporated
those impairments into the Plaintiff’s RFC. AR 24 (“The [RFC] accounts for all the various
impairments listed in the VA decision, and has apportioned specific functional limitations.”).
Those impairments include attention deficit disorder with major depression and obsessive
compulsive disorder; discogenic disease of L4-5 and S1 with bilateral functional dermatone
distribution to lower extremities; right shoulder rotator cuff weakness with degenerative arthritis
PAGE 11 – OPINION AND ORDER
of the acromioclavicular and glenohumeral joints; left ankle mortise instability and crepitus; and
tinnitus. AR 703-04.
An ALJ does not fail to give the VA’s determination of disability proper weight when he
includes the VA’s determination into plaintiff’s RFC. Turner v. Comm’r of Soc. Sec., 613 F.3d
1217, 1225 (9th Cir. 2010) (finding that the ALJ did not fail to give the VA’s determination
proper weight but instead incorporated it into plaintiff’s RFC); Axelson v. Berryhill, 2017 WL
1788657, at *2 (D. Or. 2017). Thus, the ALJ did not fail to give the VA rating decisions proper
weight. The ALJ incorporated the identified impairments into Plaintiff’s RFC, and the VA rating
decisions did not include any functional limitations that the ALJ could use for determining SSA
B. Plaintiff’s Symptom Testimony
Plaintiff next argues that the ALJ improperly rejected Plaintiff’s symptom testimony.
There is a two-step process for evaluating the credibility of a claimant’s testimony about the
severity and limiting effect of the claimant’s symptoms. Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir. 2009). First, the ALJ “must determine whether the claimant has presented objective
medical evidence of an underlying impairment ‘which could reasonably be expected to produce
the pain or other symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1029, 1036 (9th Cir.
2007) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc)). When doing so,
the claimant “need not show that her impairment could reasonably be expected to cause the
severity of the symptom she has alleged; she need only show that it could reasonably have
caused some degree of the symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).
Second, “if the claimant meets this first test, and there is no evidence of malingering, ‘the
ALJ can reject the claimant’s testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so.’” Lingenfelter, 503 F.3d at 1036 (quoting
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Smolen, 80 F.3d at 1281). It is “not sufficient for the ALJ to make only general findings; he must
state which pain testimony is not credible and what evidence suggests the complaints are not
credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Those reasons must be
“sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily
discredit the claimant’s testimony.” Ortez v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (citing
Bunnell, 947 F.2d at 345-46).
Effective March 16, 2016, the Commissioner superseded Social Security Ruling
(“SSR”) 96-7p, governing the assessment of a claimant’s “credibility,” and replaced it with
SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference
to “credibility,” clarifies that “subjective symptom evaluation is not an examination of an
individual’s character,” and requires the ALJ to consider all of the evidence in an individual’s
record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The
Commissioner recommends that the ALJ examine “the entire case record, including the objective
medical evidence and individual’s statements about the intensity, persistence, and limiting
effects of symptoms statements and other information provided by medical sources and other
persons; and any other relevant evidence in the individual’s case record.” Id. at *4. The
Commissioner recommends assessing: (1) the claimant’s statements made to the Commissioner,
medical providers, and others regarding the claimant’s location, frequency and duration of
symptoms, the impact of the symptoms on daily living activities, and other methods used to
alleviate symptoms; (2) medical source opinions, statements, and medical reports regarding the
claimant’s history, treatment, responses to treatment, prior work record, efforts to work, daily
activities, and other information concerning the intensity, persistence, and limiting effects of an
individual’s symptoms; and (3) non-medical source statements, considering how consistent those
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statements are with the claimant’s statements about his or her symptoms and other evidence in
the file. See id. at *6-7.
The ALJ’s credibility decision may be upheld overall even if not all of the ALJ’s reasons
for rejecting the claimant’s testimony are upheld. See Batson, 359 F.3d at 1197. The ALJ may
not, however, make a negative credibility finding “solely because” the claimant’s symptom
testimony “is not substantiated affirmatively by objective medical evidence.” Robbins, 466 F.3d
At the administrative hearing, Plaintiff testified that he was significantly limited by his
obsessive-compulsive disorder, specifically the compulsion to choke himself. AR 71, 78, 82. He
testified that when working as a grocery clerk in 2003, he would go into the freezer to choke
himself hundreds of times a day and that he had spent most of his time between 2006 and 2014 at
home, in the dark, choking himself. AR 72-73, 82. He also testified that at his grocery job, he
would seek solitude where he could choke himself, but when firefighting, he did not because he
enjoyed the people he was around. AR 72. Additionally, when Plaintiff had to leave the house
during the period at issue, he testified that if he “ma[de] up [his] mind to get out and do
something in the day or make a plan like today, [he]’ll self-medicate and won’t have to [choke
himself] for a little while.” AR 80.
In his written decision, the ALJ considered Plaintiff’s testimony following the two-step
process articulated by the Ninth Circuit. AR 22-29; Vasquez, 572 F.3d at 591. The ALJ found
Plaintiff’s impairments could be expected to cause some of the alleged symptoms, but that
Plaintiff’s statements regarding his symptoms are not fully consistent with, or corroborated by,
the evidence in the record.
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1. Onset Date
As a first reason for discounting Plaintiff’s symptom testimony, the ALJ noted that “there
is nothing of significance around the claimant’s alleged disability onset date that would indicate
a worsening of symptoms, illness, or injury.” AR 23. An onset date must be supported by
substantial evidence, and an ALJ should not question whether another date could have
reasonably been chosen. Dunn v. Sullivan, 1992 WL 92728, at *3 (9th Cir.); see also Swanson v.
Sec’y of Health & Human Servs., 763 F.2d 1061, 1065 (9th Cir. 1985). The court in Dunn found
that “an onset date is, of necessity, somewhat arbitrary; that will always be the case where the
statute requires line-drawing but where a claimant’s condition was gradually worsening.” 1992
WL 92728 at *3 (quotations omitted). At the hearing, Plaintiff explained he picked his
January 2003 onset date, because that was the day the VA rated him 80 percent disabled. AR 66.
There is substantial evidence to support Plaintiff’s onset date and that Plaintiff struggled with a
gradually worsening condition. AR 84 (Plaintiff explained he has been choking himself
since 1984), 292 (Plaintiff has been diagnosed with ADHD since second grade), 301 (when
describing his self-choking, “it’s getting worse and worse all the time”). Plaintiff’s choice of
onset date is not a clear and convincing reason for rejecting Plaintiff’s symptom testimony.
2. Daily Living Activities
As a second reason for discounting Plaintiff’s symptom testimony, the ALJ found that
Plaintiff’s “statements regarding his activities of daily living and his statements during the period
at issue showing relatively good functioning lessen the credibility of his limitation allegations.”
AR 28. An ALJ may discount a claimant’s testimony if it is inconsistent with the claimant’s
daily activities. Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th Cir. 2012). The ALJ noted that
in 2015, at the time of the hearing, Plaintiff reported “very limited activities, including
performing his own laundry tasks, driving, and grocery shopping, and denied providing care for
PAGE 15 – OPINION AND ORDER
his daughter.” AR 27, 75, 78, 80. The ALJ also noted that in 2006, however, Plaintiff reported to
an examiner his ability to
wake up every day at six a.m., perform personal care and his
‘morning routine’ independently, care for his daughter and get her
off to school, watch television until noon and smoke marijuana
with friends, pick up his child from school, prepare dinner, eat with
his family, watch television and smoke more marijuana,
AR 24. The fact that in 2006 Plaintiff could groom himself, take his daughter to and from school,
and watch television is not inconsistent with the limitations Plaintiff alleges are caused by his
self-choking. Additionally, Plaintiff’s statements regarding his daily living activities in 2006,
versus his hearing testimony in 2015, are not inconsistent, particularly in light of the fact that
Plaintiff suffers from a combination of conditions that have been worsening, and the purported
inconsistencies is not a clear and convincing reason to reject his symptom testimony. 3
3. Inconsistencies and Lack of Record Evidence
Although the reasons discussed above are not clear and convincing, the ALJ did provide
reasons that meet the required standard. The ALJ found that Plaintiff’s subjective testimony
regarding his self-choking behavior is not supported by the record. AR 26. Plaintiff alleges that
he cannot work because he chokes himself “hundreds” of times a day. AR 72. The ALJ noted,
however, several exceptions to that behavior. AR 23, 27. While it is not sufficient for the ALJ to
“make only general findings,” he did state what symptom testimony was not credible and “what
evidence suggests the complaints are not credible.” Dodrill, 12 F.3d at 918; cf. Brown-Hunter v.
The ALJ discussed additional reasons for discrediting Plaintiff’s symptom testimony,
including his marijuana consumption (AR 23, 26-27), his back pain and gait (AR 25), the care of
his daughter (AR 23, 27), the fact that an examiner noted Plaintiff’s “attention and concentration
were in the normal range” despite his reported ADHD since second grade (AR 26), his evasive
answers to job history (AR 27), and the psychological results on the Minnesota Multiphasic
Personality Inventory suggesting his “over-endorsement” of distressing items (AR 27). The
Court finds none of these reasons rise to the level of clear and convincing.
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Colvin, 806 F.3d 487, 494 (9th Cir. 2015) (finding legal error because the ALJ failed to identify
the testimony she found not credible and did not link that testimony to the particular parts of the
record). For example, the ALJ noted that Plaintiff testified he never engaged in self-choking
when he was working full-time as a firefighter in 2003 and 2004 because “there were always
people around” and he “enjoyed the people being around.” AR 23, 72. In 2005, he took a threeweek vacation to Jamaica and reported he did not choke himself for the entirety of the trip, with
only one exception. AR 27, 302, 304; see also Tommasetti v. Astrue, 533 F.3d 1035, 1040
(finding Plaintiff’s extended trip to Venezuela allowed the ALJ to “properly infer from this fact
that [Plaintiff] was not as physically limited as he purported to be.). Additionally, when doing
volunteer work in 2005, Plaintiff’s self-choking behavior also decreased. AR 305. Plaintiff also
admitted to an examining psychologist that boredom is “the major factor in his OCD like [selfchoking] behavior.” AR 304; see also AR 27, 302, 304. The ALJ did not err in finding that
Plaintiff’s subjective testimony regarding the severity and limiting effects of his self-choking
behavior is not supported by the record. Thus, the ALJ gave a clear and convincing reason for
discounting Plaintiff’s symptom testimony.
4. Work History
The ALJ also relied on Plaintiff’s work history to discount Plaintiff’s testimony about his
limitations. AR 22-23. An ALJ can consider work history for weighing a plaintiff’s symptom
testimony when an alleged impairment is not the reason the plaintiff stopped working.
Bruton, 268 F.3d at 828 (9th Cir. 2001) (finding a plaintiff’s pain complaints not credible
because he stopped working because he was laid off, not because he was injured); see also
Tommasetti, 533 F.3d at 1040 (noting a plaintiff’s severe diabetes was not the reason he stopped
working). Plaintiff alleges that he could not work prior to his date last insured due to mental
health issues, but as the ALJ pointed out, Plaintiff was fired from his grocery job for sexual
PAGE 17 – OPINION AND ORDER
harassment. AR 22-23. As discussed above, the Court rejects Plaintiff’s argument that his sexual
harassment was caused by his mental impairments.
Plaintiff also testified that he has never worked at a job more than six months because of
his self-choking, but as the ALJ noted, Plaintiff testified that he never engaged in that behavior
while at his firefighting job because he enjoyed his co-workers. AR 23. Additionally, Plaintiff’s
employment was not terminated at his grocery clerk job because of Plaintiff’s self-choking
behavior. Thus, Plaintiff’s work history was a second clear and convincing reason to discount
Although some of the reasons given by the ALJ to discount Plaintiff’s testimony are
legally insufficient, an ALJ’s decision to discount the limitations testified to by a claimant may
be sustained even if not all of the ALJ’s reasons for rejecting the testimony are upheld. See
Batson, 359 F.3d at 1197. Accordingly, the ALJ’s assessment of Plaintiff’s subjective symptom
testimony is upheld.
C. Plaintiff’s Ability to Perform “other work”
Plaintiff alleges that the Commissioner failed to meet her burden of proving that Plaintiff
retains the ability to perform the requirements of “other work,” specifically, the security guard
job. Plaintiff argues that when his subjective symptom testimony is fully credited, then the record
indicates he would be unable to perform a security guard job because his self-choking behavior
would require him to leave the workstation frequently. To meet the Commissioner’s burden, the
hypothetical posed to the VE must consider all of the claimant’s limitations supported by the
record. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2005). The hypothetical posed
to the VE was stated as follows:
So, Mr. McGowan, if you would, please assume an
individual with the same age, education, work experience as
the claimant who is limited to light work, but who is
PAGE 18 – OPINION AND ORDER
further limited to no more than frequent stooping,
crouching, crawling, kneeling or climbing of stairs and
ramps. This individual would need to avoid climbing ropes,
ladders and scaffolds. He is limited to no more than
occasional reaching with his right upper extremity, and to
no more than frequent grasping, handling or fingering with his left
Please assume that this individual would also need
to avoid concentrated exposure to fumes, dusts, gases, poor
ventilation and other obnoxious odors. And, please also
assume that he would be limited to simple, repetitive,
routine tasks requiring no more than occasional interaction
with co-workers and the general public.
AR 98-99. The ALJ included all of the identified impairments from the VA documents,
specifically Plaintiff’s attention deficit disorder with major depression and obsessive compulsive
disorder, lower back impairment, right shoulder rotator cuff weakness, tinnitus, moderate limited
motion in left ankle, and left fifth finger impairment. AR 714-45. Additionally, “no treating
physician opined that the claimant has greater limitations during the period at issue than those
accounted for in [the hypothetical].” AR 28. Moreover, the Court has found that the ALJ
provided clear and convincing reasons for discounting Plaintiff’s symptom testimony.
Accordingly, the Commissioner did not fail to meet her burden and the hypothetical posed to the
VE took into account all of Plaintiff’s impairments that were supported by the record.
The findings of the Commissioner are based upon substantial evidence in the record and
the correct legal standards. For these reasons, the Court AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED.
DATED this 6th day of July, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 19 – OPINION AND ORDER
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