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Meadows v. Berryhill

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

January 10, 2018

ALAN L. MEADOWS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER RE: SOCIAL SECURITY DISABILITY APPEAL

          Mary Alice Theiler United States Magistrate Judge

         Plaintiff Alan L. Meadows 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 of record, this matter is AFFIRMED.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff was born on XXXX, 1963.[1] He has a high school diploma and two years of college education, and additional training as a network manager. (AR 296.) He previously worked as a network manager and security guard in the United States Army, a retail salesperson at a sporting goods store, and a shift supervisor for security with the Department of Defense. (AR 296, 312.)

         Plaintiff applied for DIB in April 2014, alleging that he was disabled as of August 26, 2013. (AR 257-60.) That application was denied initially and upon reconsideration and Plaintiff timely requested a hearing. (AR 179-81, 183-86.)

         On August 25, 2015, ALJ Michael Gilbert held a hearing, taking testimony from Plaintiff, Plaintiff's wife, and a vocational expert (VE). (AR 61-135.) On November 21, 2016, the ALJ issued a decision finding Plaintiff not disabled. (AR 15-54.) Plaintiff timely appealed. The Appeals Council denied Plaintiff's request for review on February 6, 2017 (AR 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.

         JURISDICTION

         The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         DISCUSSION

         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 August 26, 2013, the alleged onset date. (AR 17.) At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe Plaintiff's personality disorder not otherwise specified, with anti-social traits; post-traumatic stress disorder (PTSD); obstructive sleep apnea; asthma; degenerative disc disease; status-post left foot arthrodesis of the first metatarsophalangeal joint; and obesity. (AR 17-21.) Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Plaintiff's impairments did not meet or equal the criteria of a listed impairment. (AR 21-23.)

         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 capable of performing light work, with the following additional limitations: he can lift/carry 20 pounds occasionally and 10 pounds frequently. He can stand/walk for up to six hours in an eight-hour workday. He cannot climb ladders, ropes, or scaffolds, and can perform all other postural activities at most frequently. He can tolerate no greater than occasional exposure to extreme cold, extreme heat, humidity, excess noise (meaning level 4 or greater (with constant exposure to noise up to level 3)), atmospherics, and workplace hazards. He can perform simple, routine, repetitive tasks (as defined by a reasoning level no greater than level 2), with no interaction with the public as part of his job duties. Incidental public contact “as defined by way of example at the hearing” is permitted. (AR 23.) He can tolerate no greater than occasional interaction with co-workers, with no “tandem tasks.” (Id.) With that assessment, the ALJ found Plaintiff unable to perform any past relevant work. (AR 51-52.)

         If a claimant demonstrates an inability to perform 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. With the assistance of the VE, the ALJ found Plaintiff capable of transitioning to other representative occupations, including routing clerk, motel/hotel housekeeper, electronics worker, and small products assembler. (AR 52-54.)

         This Court's review of the ALJ's 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 ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         Plaintiff argues the ALJ erred in (1) discounting his subjective testimony; (2) assessing the medical evidence; and (3) discounting the statements and testimony of his wife, Kathy Meadows.[2]Plaintiff argues that this case should be remanded for a finding of disability, or, in the alternative, further proceedings. The Commissioner argues that the ALJ's decision is supported by substantial evidence and should be affirmed, and that if it is remanded, it should be remanded for further proceedings because there is serious doubt as to whether Plaintiff is disabled.

         Plaintiff's subjective testimony

         The ALJ discounted Plaintiff's credibility for a number of reasons: (1) Plaintiff's most recent job as a security guard in Afghanistan ended because the contract expired, not because he could no longer perform the job; (2) Plaintiff applied for benefits twice before working in Afghanistan for a year, and reapplied upon his return, and the absence of evidence showing that his conditions worsened after he returned from Afghanistan suggests that he was not disabled after Afghanistan just as he was not disabled before Afghanistan; (3) Plaintiff engaged in activities inconsistent with his alleged limitations; (4) Plaintiff made inconsistent reports regarding his activities, success with treatment, use of a cane, effects of a 2003 car accident, and alcohol intake; (5) Plaintiff emphasized his prior traumatic brain injury (TBI) at many mental health appointments, but this injury is not documented in his military paperwork; and (6) Plaintiff's use of threats appears to be based on his desire to get his way, rather than uncontrollable psychiatric symptoms. (AR 25-46.) Plaintiff argues that these reasons are not clear and convincing, as required in the Ninth Circuit. Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). The Court will address the ALJ's reasons in turn.

         A. Contract job in Afghanistan & prior applications

         Plaintiff argues that the ALJ overlooked the fact that he decided not to renew his contract job because of his impairments. Dkt. 11 at 9-10. This argument misses the ALJ's point, which is that Plaintiff was able to perform “high technical and highly demanding work” for a year, after he had claimed to have been disabled and reasserted his disability on the same grounds after returning from Afghanistan. (AR 25, 42-43.) It is the ability to perform the work that the ALJ finds inconsistent with an allegation of disability, and this a reasonable interpretation of the evidence.

         Plaintiff also argues that the ALJ erred in considering his prior applications and evidence related to that time period, because the adjudicated application asserted an alleged onset date of August 26, 2013. Dkt. 11 at 10. But the ALJ explained why he looked to the earlier evidence: because it was relevant to determining whether Plaintiff's condition worsened over the years, as he alleged. (AR 15.) The earlier evidence may not be probative as to Plaintiff's functioning since August 2013, as argued by Plaintiff (Dkt. 11 at 10), but it is probative as to whether Plaintiff's condition worsened and therefore whether Plaintiff's ability to work prior to his alleged onset date suggests that he retained the ability to work after the alleged onset date. Under the circumstances of this case, the ALJ did not err in considering evidence and applications that pre-date the alleged onset date. See, e.g., Yanes v. Berryhill, 2017 WL 4181086, at *2-3 (E.D. Cal. Sep. 20, 2017) (finding that an ALJ did not err when considering evidence that predates the alleged onset date, because that evidence is relevant where disability is not based on a discrete event and where the evidence does not show a worsening in the claimant's condition around the time of the alleged onset date (citing Carmickle v. Comm'r of Social Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008))).

         Plaintiff goes on to argue that the ALJ mischaracterized the evidence when stating that he “asserted virtually the same impairments as he alleges in the current claim” as he did in the prior applications, without acknowledging that he alleged worsening symptoms. Dkt. 13 at 6. Plaintiff is mistaken: the ALJ did acknowledge that Plaintiff asserted that his functioning had worsened: “After denying any trauma or injuries while deployed in Afghanistan in 2012/2013 and without any evidence of intervening worsening of his preexisting impairments, the claimant asserted virtually the same claims in May of 2014, although in some areas even worse functioning than claimed before.” (AR 43.) The ALJ goes on to explain why he found those reports of worsening functional limitations to be inconsistent with Plaintiff's activities, reports, and medical evidence. (AR 43-44.) Thus, Plaintiff has not shown that the ALJ misapprehended the content of Plaintiff's allegations.

         B. Activities

         The ALJ explained how a number of Plaintiff's activities contradict his alleged limitations. For example, the ALJ noted that Plaintiff alleged in his function report that he did not prepare meals or perform household chores, and that he could not remember to change his underclothes daily, bathe, brush his teeth, eat, or use toilet paper without reminders from his wife. (AR 43 (citing AR 305-06).) The ALJ contrasted those reports with his self-reported ability to work in the yard, play Bingo, take trips, visit the shooting range, help with household chores, and attend to his self-care, and noted that Plaintiff's primary care provider found that he was fully independent with basic activities of daily living. (AR 43 (referencing AR 2058).) The ALJ did not err in finding that Plaintiff's self-reported limitations were inconsistent with other evidence in the record, and in discounting Plaintiff's subjective testimony on that basis. The fact that Plaintiff's activities are not transferable to a work setting does not show error in the ALJ's decision (Dkt. ...


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