United States District Court, W.D. Washington, Seattle
August 8, 2014
WILLIAM EMILIO VALENCIA, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION RE: SOCIAL SECURITY DISABILITY APPEAL
MARY ALICE THEILER, Chief Magistrate Judge.
Plaintiff William Emilio Valencia proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's application for Disability Insurance Benefits (DIB) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda, the Court recommends this matter be AFFIRMED.
FACTS AND PROCEDURAL HISTORY
Plaintiff was born on XXXX, 1979. He completed high school and previously worked as a sales clerk, shipping and receiving clerk, industrial truck operator, and construction worker. (AR 30-31, 40.)
Plaintiff filed his DIB application in October 2012, alleging disability beginning November 1, 2008. (AR 164-65.) Plaintiff remained insured for DIB through December 3, 2010 and, therefore, was required to establish disability on or prior to that "date last insured" (DLI). See 20 C.F.R. §§ 404.131, 404.321. His application was denied initially and on reconsideration, and he timely requested a hearing.
On February 14, 2012, ALJ M.J. Adams held a hearing, taking testimony from plaintiff and a vocational expert (VE). (AR 35-81.) On March 22, 2012, the ALJ issued a decision finding plaintiff not disabled. (AR 22-31.)
Plaintiff timely appealed. The Appeals Council denied review on December 11, 2013 (AR 1-4), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.
The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).
The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since the November 1, 2008 onset date through the DLI. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's obesity and a seizure disorder severe. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found plaintiff's impairments did not meet or equal the criteria of a listed impairment.
If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found plaintiff had the RFC to lift and carry fifty pounds occasionally and twenty-five pounds frequently, stand and/or walk at least six hours in an eight-hour workday, and sit for at least six hours in an eight-hour workday. He further found plaintiff can never climb ladders, ropes, or scaffolding, and should avoid even moderate exposure to heights or hazardous machinery. With that RFC, and with the assistance of the VE, the ALJ concluded that, through the DLI, plaintiff was capable of performing past relevant work as a sales clerk or as a shipping and receiving clerk.
If a claimant demonstrates an inability to perform past relevant work or has no past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. Finding plaintiff not disabled at step four, the ALJ did not proceed to step five. The ALJ concluded plaintiff was not disabled at any time from the onset date through the date of the decision.
This Court's review of the final decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the final decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Plaintiff argues the ALJ erred in failing to include any limitations related to his severe seizure disorder in the RFC or in the hypothetical proffered to the VE, resulting in error in the decision at step four. He requests remand for further administrative proceedings. The Commissioner maintains the ALJ's decision has the support of substantial evidence and should be affirmed. For the reasons discussed below, the undersigned agrees with the Commissioner.
Limitations Associated with Seizure Disorder
Plaintiff avers error in the ALJ's failure to include any functional limitations or sequelae resulting from his severe seizure disorder in the RFC. He notes the VE's testimony that an individual would not be able to sustain competitive employment with additional RFC restrictions of "episodes periodically or sporadically, unpredictable through the work day, that would cause [him] to have down time as much as [15 to] 20 percent of the work day[, ]" or missing at least two days of work each month. (AR 77-79.) Plaintiff argues the ALJ improperly ignored the VE's testimony, and that an ALJ "must include some recognition of the functional limitations presented by the severe seizure disorder, " and that the "inclusion of two minor environmental limitations is insufficient." (Dkt. 17 at 6.) The Court, however, finds no error established.
The mere fact a medical condition is deemed severe at step two does not necessitate the identification of corresponding limitations at step four. See Bray v. Comm'r of SSA, 554 F.3d 1219, 1228-29 (9th Cir. 2009) ("Bray offers no authority to support the proposition that a severe mental impairment must correspond to limitations on a claimant's ability to perform basic work activities.") Moreover, the ALJ did include RFC limitations associated with plaintiff's seizure disorder - including a prohibition on climbing ladders, ropes, or scaffolding, and a limitation to avoiding even moderate exposure to heights or hazardous machinery. See id. (finding ALJ nonetheless adequately accounted for adjustment disorder in finding plaintiff could perform all but the most detailed and complex tasks).
Nor does plaintiff otherwise demonstrate error in the RFC assessed, the corresponding hypothetical proffered to the VE at hearing, or the conclusion at step four. Plaintiff points generally to the medical record, his testimony, and the testimony of a lay witness as supporting greater limitations in his functioning. He fails, however, to either identify or demonstrate any error in the ALJ's assessment of any of the medical evidence or testimony.
The rejection of a claimant's credibility requires the provision of clear and convincing reasons. Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). "General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). "In weighing a claimant's credibility, the ALJ may consider his 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. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).
The ALJ found plaintiff to have "limited credibility" and, therefore, credited plaintiff's testimony as to the degree of his symptoms and limitations only to the extent reflected in the RFC. The ALJ provided several clear and convincing reasons to support this determination.
1. Unemployment benefits and work history:
The ALJ considered plaintiff's work history, his use of unemployment benefits through the second quarter of 2010, and his continued pursuit of work during that time period as inconsistent with his application for disability benefits and detracting from his credibility as to the severity of his symptoms. (AR 26-27 (noting, inter alia, plaintiff's testimony he was laid off from his long-term employer due to downsizing and economic difficulties, that he applied for customer service jobs and apartment management work while unemployed, and that his application for unemployment benefits required he attest he was ready, able, and willing to immediately accept any suitable employment offered to him).) The ALJ concluded:
... I recognize the policy of not basing a decision of disability solely on receiving [unemployment benefits]. However, when the following facts are examined, the claimant appears to have little incentive to work. Social Security records show that the claimant earned $22, 646 in unemployment benefits in 2010. A comparison of this amount against the claimant's earnings record shows a single year (2007) when the claimant earned more. The reality is that the claimant has earned more while unemployed than during his other productive years of gainful activity, a circumstance that cannot be ignored. His lengthy receipt of unemployment benefits, until January 2010 (when these benefits expired), while he reportedly spent his free time playing video games, watching television, and visiting with friends, severely detracts from his credibility, especially when the claimant has [been] able to work in the past despite his seizure impairment, and without the benefit of medication.
(AR 29.) Plaintiff sets forth no error in the consideration of this evidence or the ALJ's reasoning. See Carmickle v. Comm'r, SSA, 533 F.3d 1155, 1161-62 (9th Cir. 2008) ("receipt of unemployment benefits can undermine a claimant's alleged inability to work full-time"); Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (claimant's work history properly considered). ( See also AR 58 (plaintiff testified he applied for both full and part time jobs).)
2. Minimal treatment:
The ALJ next found the medical record did not support plaintiff's testimony as to the severity or frequency of his seizures, and indicated he could return to gainful activity. The ALJ's discussion reasonably included consideration of the minimal medical treatment plaintiff received, describing an initial visit to a neurologist in July 2004, followed by two medical visits in November 2009, a return to a neurologist in December 2010, and a resumption of medical treatment in February 2011. (AR 28.) See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ appropriately considers an unexplained or inadequately explained failure to seek treatment or follow a prescribed course of treatment; ALJ permissibly inferred claimant's pain was not as disabling as alleged "in light of the fact that he did not seek an aggressive treatment program and did not seek an alternative or more-tailored treatment program after he stopped taking an effective medication due to mild side effects.") ( See also AR 242-315 (comprising entirety of medical record in this case).)
3. Noncompliance with treatment:
The ALJ likewise reasonably considered plaintiff's noncompliance with repeated recommendations to cease or decrease his alcohol consumption, and his failure to take prescribed medication. (AR 27-28.) See Tommasetti, 553 F.3d at 1039. The ALJ considered plaintiff's report that he was financially limited in his ability to pursue treatment and medication, but reasonably found the excuse unpersuasive, noting plaintiff earned $22, 646.00 in unemployment benefits in 2010, and that he was able to financially sustain an alcohol and tobacco habit during that time period. See Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012) ("[A] claimant's failure to assert a good reason for not seeking treatment, or a finding by the ALJ that the proffered reason is not believable, can cast doubt on the sincerity of the claimant's pain testimony.'") (quoted source omitted).
4. Contradictory medical evidence:
The ALJ also pointed to the medical evidence as including, for example, EEG's showing generalized spike-and-wave activity consistent with epilepsy, but normal EKGs, unremarkable neurological examinations, and consistent observations of clear speech, alert and oriented behavior, and intact attention and memory. (AR 27-28.) The ALJ, as such, properly considered contradiction of plaintiff's testimony by the medical record. Carmickle, 533 F.3d at 1161 ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.").
The ALJ additionally considered inconsistency between plaintiff's testimony and his reporting to medical providers as to the frequency and severity of his seizures. (AR 27-29.) The ALJ described the evidence and concluded:
Further detracting from his credibility is that his most severe periods of his seizure activity, as reported to medical treatment providers, were not as severe as testified by the claimant [at] his hearing. At the hearing, he testified that he has three to ten seizures per day, and that he requires between fifteen to sixty minutes to fully recover from each seizure. In December 2010, he stated that he was having two to three seizures per day, each lasting about three seconds, and that he had cloudy thinking for thirty to sixty minutes following a seizure. He denied any fatigue. At different points in 2011, following his use of anticonvulsants, the claimant [stated] that he was having between one to five seizures per week, and sometimes had weeks where none occurred. In October 2011, he stated that his seizures were happening three to five times per day, lasting up to two minutes. In November 2011, to a neurologist, he again stated that he had up to five seizures per day, with minimal motor activity, and with a few minutes of sluggish behavior subsequently. These reports differ significantly from his testimony.
(AR 28-29, internal citations to record omitted.) The ALJ, as such, reasonably considered inconsistency between plaintiff's testimony and the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (ALJ appropriately considers inconsistency with the evidence and a tendency to exaggerate in rejecting a claimant's testimony), and Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (ALJ may consider a claimant's inconsistent or non-existent reporting of symptoms). See also Social Security Ruling (SSR) 96-7p ("One strong indication of the credibility of an individual's statements is their consistency, both internally and with other information in the case record.")
Finally, the ALJ found plaintiff had described activities not limited to the extent one would expect given his complaints of disabling symptoms and limitations. (AR 29.) The ALJ noted plaintiff's reports of frequent, near daily running in April and May 2011, with seizures tending to occur on days when he did not exercise, and, in June 2011, his report of "being very busy with traveling [and] family weddings.'" ( Id., citation to record omitted.) Function reports completed in October 2010 and March 2011 included reports of daily cleaning and meal preparation, playing with his children, occasional hunting and fishing, and daily video game playing. At hearing, plaintiff described an active social life and "playing video games for extended periods." ( Id. ) The ALJ reasonably found these activities to suggest minimal limitations due to plaintiff's seizures and an indication he could return to gainful work, as well as inconsistency with plaintiff's testimony of disabling symptoms and limitations. See Molina, 674 F.3d at 1112-13 ("Even where... activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.") (citations omitted), and Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (describing "two grounds for using daily activities to form the basis of an adverse credibility determination[, ]" including (1) whether the activities contradict the claimant's testimony and (2) whether the activities "meet the threshold for transferable work skills").
Plaintiff, in sum, unsuccessfully relies on his testimony as demonstrating error in the RFC, VE hypothetical, and step four conclusion.
B. Lay Testimony
Lay witness testimony as to a claimant's symptoms or how an impairment affects ability to work is competent evidence and cannot be disregarded without comment. Van Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). But see Molina, 674 F.3d at 1115-22 (describing how the failure to address lay testimony may be harmless). The ALJ can reject the testimony of lay witnesses only upon giving germane reasons. Smolen, 80 F.3d at 1288-89 (finding rejection of testimony of family members because, inter alia, they were "understandably advocates, and biased'" amounted to "wholesale dismissal of the testimony of all the witnesses as a group and therefore [did] not qualify as a reason germane to each individual who testified.") (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993)).
In this case, the ALJ gave minimal weight to the testimony of plaintiff's significant other, Reann Ruiz, "for essentially the same reason I give minimal weight to the claimant's testimony." (AR 30.) He found plaintiff's statements to medical providers to indicate that his seizures, even at their most severe, are not as limited as Ms. Ruiz testified, describing various reports and finding they "differ significantly from Ms. Ruiz's testimony that the claimant's seizures are so frequent that he never fully recovers." ( Id. ) The ALJ also found medical findings and observations inconsistent with the testimony from both plaintiff and Ms. Ruiz that he has difficulty communicating as a result of his seizures. Finally, the ALJ pointed to plaintiff's reported activities to indicate his seizures have a minimal impact on his daily functioning. The ALJ, as such, properly provided germane reasons for according little weight to the lay testimony. See, e.g., Carmickle, 533 F.3d at 1164 (inconsistency between lay statement and evidence of activities germane), and Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (inconsistency between lay statement and medical evidence germane). See also Molina, 674 F.3d at 1114 (where an ALJ provides germane reasons for rejecting the testimony of one witness, the ALJ need only point to those reasons upon rejecting similar testimony offered by a different witness) (citing Valentine v. Comm'r SSA, 574 F.3d 685, 694 (9th Cir. 2009) (because "the ALJ provided clear and convincing reasons for rejecting [the claimant's] own subjective complaints, and because [the lay witness's] testimony was similar to such complaints, it follows that the ALJ also gave germane reasons for rejecting [the lay witness's] testimony")).
C. Medical Opinion Evidence
Plaintiff points to medical findings by treating physician Dr. Dinah Thyerlei, and other medical evidence associated with his seizure disorder. ( See Dkt. 17 at 3.) Yet, plaintiff fails to identify any specific error in the ALJ's consideration of that or other medical evidence. The ALJ, in fact, gave significant weight to Dr. Thyerlei's opinion that plaintiff should avoid swimming, unprotected heights, and driving due to his seizures, finding the opinion consistent with both the medical record and with the opinions of state agency medical consultant Dr. Guillermo Rubio. (AR 30 (citing AR 307).) The ALJ adopted the opinions of Dr. Rubio - the only other medical opinion of record - and incorporated those opinions into the RFC. ( Id. (citing AR 92-101).) Plaintiff, as such, demonstrates no error in relation to any medical evidence of record. See Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1223 (9th Cir 2010) (ALJ need not provide reason for rejecting physician's opinions where ALJ incorporated opinions into RFC; ALJ incorporated opinions by assessing RFC limitations "entirely consistent" with limitations assessed by physician). For this reason, and for the reasons stated above, plaintiff fails to demonstrate any error in the RFC assessment, the corresponding hypothetical proffered to the VE, or the conclusion at step four.
This matter should be AFFIRMED.