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McCloud v. Berryhill

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

February 23, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Mary Alice Theiler United States Magistrate Judge

         Plaintiff Cynthia Marie McCloud proceeds through counsel in her appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied Plaintiff's applications for Supplemental Security Income (SSI) and 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.


         Plaintiff was born on XXXX, 1968.[1] She has a tenth-grade education and a GED, and has worked as a cleaner, in-home caregiver, and temporary laborer. (AR 43-45, 246.)

         Plaintiff protectively applied for SSI and DIB in May 2013. (AR 193-208, 241.) Those applications were denied and Plaintiff timely requested a hearing. (AR 135-41, 144-48.)

         On August 3, 2015, ALJ Kelly Wilson held a hearing, taking testimony from Plaintiff and a vocational expert. (AR 38-77.) On December 30, 2015, the ALJ issued a decision finding Plaintiff not disabled. (AR 13-31.) Plaintiff timely appealed. The Appeals Council denied Plaintiff's request for review on February 17, 2017 (AR 1-7), 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 June 1, 2008, the alleged onset date. (AR 15.) At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe Plaintiff's affective disorder, anxiety disorder, personality disorder, and attention deficit hyperactivity disorder. (AR 15-18.) 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 18-20.)

         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 work at all exertional levels, with the following additional limitations: she can perform simple tasks of reasoning level 1-3, but cannot perform more complex tasks consistently. She can have superficial contact with the public (i.e. she can be around the public and interact with them briefly, but should not work in customer service, sales, or counter-type work). She can work in proximity to coworkers and supervisors, with brief interaction, but would do better in more solitary work tasks. (AR 20.) With that assessment, the ALJ found Plaintiff able to perform past relevant work as cleaner - housekeeper, auto detailer, and cleaner - institutional. (AR 30-31.)

         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. Because the ALJ found Plaintiff capable of performing past relevant work, the ALJ did not proceed to step five. (AR 31.)

         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 her subjective symptom testimony, (2)assessing certain medical opinions, and (3) assessing lay evidence.[2] The Commissioner argues that the ALJ's decision is supported by substantial evidence and should be affirmed.

         Subjective symptom testimony

         The ALJ discounted Plaintiff's subjective testimony for a number of reasons, including (1) Plaintiff claims to be disabled since 2008, but did not receive any mental health treatment prior to 2013, yet she sought treatment for physical issues during that time period; (2) clinical observations and Plaintiff's reported activities are inconsistent with her allegations of severe social difficulties and panic attacks; (3) the record contradicts Plaintiff's allegations of severe deficits as to concentration, persistence, and pace; (4) Plaintiff's mental symptoms improved once she started receiving treatment; and (5) Plaintiff made many inconsistent statements, regarding her work attempts, substance abuse, whether she lived with her husband, and whether she can leave her house alone. (AR 20-25.) 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).

         Plaintiff argues first that the ALJ erred in finding that her lack of mental health treatment undermined her allegations of disabling mental symptoms without asking her why she did not receive treatment. Dkt. 15 at 8. The Social Security Ruling (SSR) in effect at the time of the ALJ's decision, which Plaintiff cites for the proposition that the ALJ was required to ask her why she did not receive treatment for so many years, does not impose such a requirement. See SSR 96-7p, 1996 WL 374186, at *7-8 (Jul. 2, 1996). SSR 96-7p instructs ALJs to consider reasons provided by the claimant or evident from the record that could explain the lack of treatment. Id.

         Plaintiff offered no explanation for her lack of treatment, and did not offer any explanation to clinicians. (See AR 547 (DSHS reviewer: “[Plaintiff] has also never bothered to get [mental health] treatment in the past which is also a complicating factor since she has been on welfare in the past and that is the reason she gives for not being able to work.”)). There is no evidence that Plaintiff's lack of treatment for mental health issues was the result of any factor other than her personal preference, and therefore the ALJ reasonably construed Plaintiff's lack of treatment as undermining her allegations of disabling mental limitations. See Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012).

         Plaintiff also objects to the ALJ's identification of clinical findings that undermine her allegations of severe social limitations, contending that an ALJ is not entitled to reject testimony solely because objective evidence does not support the allegation. Dkt. 15 at 9. But the ALJ identified evidence that contradicted Plaintiff's allegations, rather than merely failed to corroborate it. For example, the ALJ cited clinical findings describing Plaintiff as friendly, cooperative, pleasant, with good eye contact. (AR 21.) The ALJ also noted that even when providers noted that Plaintiff was fidgety or agitated, she could nonetheless interact. (Id.) The ALJ did not err in considering whether Plaintiff's alleged extreme social limitations were contradicted by the medical record. See Carmickle v. Comm'r of Social Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.”). Although Plaintiff conclusorily states that her clinical ...

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