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Locastro v. Colvin

United States District Court, W.D. Washington, Seattle

February 6, 2015

GABRIEL S. LOCASTRO, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, Magistrate Judge.

Gabriel Locastro seeks review of the denial of his Supplemental Security Income and Disability Insurance Benefits applications. He contends the ALJ erred by finding him not fully credible, failing to include all of his impairments in his RFC/hypothetical, finding he could perform his past work, and failing to include all of the evidence in the record. Dkt. 13. As discussed below, the Court recommends the Commissioner's decision be AFFIRMED and the case be DISMISSED with prejudice.

BACKGROUND

Mr. Locastro is currently 32 years old, has at least a high school education, and has worked as a check clerk, material handler, and carpenter. Tr. 27, 60. On October 18, 2012, he applied for benefits, alleging disability as of June 12, 2012. Tr. 13. His applications were denied initially and on reconsideration. Id. The ALJ conducted a hearing on January 24, 2014, finding Mr. Locastro not disabled. Tr. 28.

Utilizing the five-step disability evaluation process, [1] the ALJ found Mr. Locastro met the insured status requirements through December 31, 2017; had not engaged in substantial gainful activity since the alleged onset date; had severe impairments of obesity, tinnitus, hearing loss, right shoulder abnormality, thoracic back abnormality, right ankle abnormality, depression, posttraumatic stress disorder ("PTSD"), and status post tramatic brain injury ("TBI"); and that these impairments did not meet or equal the requirements of a listed impairment.[2] Tr. 15-16. The ALJ further found that Mr. Locastro had the residual functional capacity ("RFC") to perform light work that did not require more than occasional overhead reaching or more than frequent reaching in other directions using his right hand; that did not require more than occasional climbing, balancing, stooping, kneeling, crouching, or crawling; that did not require working on scaffolding or climbing more than a single flight of stairs at a time; that did not require exposure to hazards or to more than occasional vibration; that did not require concentrated exposure to pulmonary irritants; that is performed in a quiet or very quiet noise environment or that allows Mr. Locastro to wear hearing protection; that consists of simple, routine tasks; that does not require teamwork; that does not require more than superficial interaction with the general public; and that does not require the exercise of more than routine judgment. Tr. 18. The ALJ found Mr. Locastro could perform his past work as a check clerk, and in the alternative, small parts assembler, mailroom clerk, and marking clerk. Tr. 27. As the Appeals Council denied Mr. Locastro's request for review, the ALJ's decision is the Commissioner's final decision. Tr. 1-6.

DISCUSSION

A. The ALJ Did Not Err in Evaluating Mr. Locastro's Credibility

Mr. Locastro's first assignment of error contends the ALJ "erred in finding claimant capable of performing light work and other work that exists in the national economy by ignoring claimant's psychological limitations." Dkt. 12 at 9. The caption is misleading, as Mr. Locastro's argument is merely a challenge to the ALJ's adverse credibility determination.[3]

The ALJ provided a number of reasons for finding Mr. Locastro's testimony not credible: (1) Mr. Locastro's statements regarding physical limitations were consistent with his RFC; (2) he engaged in activities that were inconsistent with his allegations of disabling limitations; (3) he made inconsistent statements regarding his education history; (4) he received unemployment benefits; (5) the medical evidence was inconsistent with the degree of physical and mental limitation claimed; and (6) evidence suggested Mr. Locastro exaggerated his symptoms and limitations. Tr. 19-24. Mr. Locastro challenges only one of these.

Mr. Locastro's single challenge contends the ALJ erred in relying on his daily activities in finding him not credible. Dkt. 12 at 12-13. The ALJ found Mr. Locastro's ability to attend to his personal care, provide some basic care for his son, prepare meals, perform household chores such as mowing and vacuuming, go outside alone, drive, watch television, and spend time with his wife daily was inconsistent with his testimony regarding back pain, his ability to lift 20 pounds and walk a few miles, difficulties dealing with people, anger problems, irritability, and difficulty maintaining concentration and attention. Tr. 19, 23 ( citing Tr. 224-31, 335); see also Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (a claimant's reported daily activities can form the basis for an adverse credibility determination if they consist of activities that contradict the claimant's "other testimony"; or that are transferable to a work setting."). The Court agrees the ALJ erred because Mr. Locastro's testimony was not inconsistent with the daily activities the ALJ described. Additionally, even if the activities the ALJ discussed were inconsistent with Mr. Locastro's stated impairments, the ALJ overstates the evidence. Compare Tr. 23 with Tr. 224-31 (stating he is unable to sleep more than three hours each day, he is unable to manage his finances, he cooks "top ramen noodles, " he avoids other cooking because he "almost burned the house down, " he goes outside "only when I have to" and gets around as a passenger in the car (rather than as driver)).

Despite this error, the ALJ provided other unchallenged reasons, which are specific, clear and convincing and supported by substantial evidence. See Burrell v. Colvin, No. 12-16673, ___ F.3d ___, 2014 U.S.App. LEXIS 24654 (9th Cir. Dec. 31, 2014) ( citing Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). For example, the ALJ also found that Mr. Locastro received unemployment benefits through the end of 2013, and he testified he told the state he was looking for work while receiving those benefits but that he was not actually looking for work. Tr. 23; see also Tr. 47. On this basis, the ALJ properly concluded Mr. Locastro's "willingness to make inaccurate reports in order to receive benefits" undermined his credibility. Tr. 23. See, e.g., Carmickle v. Commiss'r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (recognizing receipt of unemployment benefits could affect a claimant's credibility); cf. Smolen, 80 F.3d at 1284 (ALJ may use "ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid."). Thus, because the ALJ gave at least one valid reason for rejecting Mr. Locastro's testimony, Mr. Locastro has not established harmful error. Carmickle, 533 F.3d at 1162 (including an erroneous reason, among other reasons, to discount a claimant's credibility is at most harmless error if the other reasons are supported by substantial evidence and the erroneous reason does not negate the validity of the overall credibility determination). Accordingly, the Court recommends affirming the ALJ's credibility finding.

B. The ALJ Did Not Err in Forming Mr. Locastro's RFC/Hypothetical

Mr. Locastro next argues the ALJ "erred in not submitting a hypothetical question to the Vocational Expert ["VE"] that included all of claimant's impairments." Dkt. 12 at 13. Mr. Locastro makes no challenge to the ALJ's step-two findings (including depression, PTSD, and TBI), nor does he contend the ALJ erred in evaluating the medical evidence. Rather, Mr. Locastro first argues the hypothetical posed by the ALJ to the VE "consisted fundamentally only of exertional limitations." Id. As the Court understands the argument, Mr. Locastro suggests the ALJ erred by omitting non-exertional limitations. But Mr. Locastro's argument is contradicted by the record. The ALJ's RFC/hypothetical reflects that the ALJ included non-exertional limitations, finding Mr. Locastro can perform light work that is performed in a

quiet or very quiet noise environment or allows the worker to wear hearing protection that would reduce the noise environment to quiet or very quiet; that consists of simple, routine tasks; that does not require teamwork; that does not require more than superficial interaction with the general ...

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