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Flores v. Berryhill

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

March 14, 2018

JASON NEIL FLORES, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER AFFIRMING AND DISMISSING WITH PREJUDICE

          BRIAN A. TSUCHIDA, UNITED STATES MAGISTRATE JUDGE

         Jason Flores appeals the decision of the Administrative Law Judge (ALJ) finding him not disabled. He contends the ALJ erroneously 1) rejected the opinions of his treating, examining and reviewing providers (Shadrach, Meinz, Lewis, and Rivera); 2) rejected his subjective complaints; and 3) failed to include all limitations in the hypothetical to the vocational expert (VE). Dkt. 10 at 6. The Court finds the ALJ did not err and that his decision is supported by substantial evidence. Accordingly, the Court AFFIRMS the decision and DISMISSES the case with prejudice.

         BACKGROUND

         On March 29, 2013, Mr. Flores filed an application for supplemental security income, alleging disability beginning December 20, 2009. The claim was denied initially on September 23, 2013, and again upon reconsideration on December 26, 2013. Mr. Flores filed a written request for hearing on January 8, 2014 and appeared and testified at a hearing held on August 7, 2014. An Administrative Law Judge (ALJ) issued an unfavorable decision on September 19, 2014. Tr. 15 (Ex. B6A). Mr. Flores sought review by the Appeals Council. The Appeals Council vacated the hearing decision because it failed to evaluate the June 23, 2013 non-treating opinion of DSHS examiner Janis Lewis, Ph.D. (Ex. B6F), who indicated Mr. Flores can perform a reduced range of light work with limitations, which included the need to have a five minute break in addition to customary breaks. Tr. 220 (Ex. B7A). On remand, the ALJ was instructed to give further consideration to Mr. Flores' maximum residual functional capacity (RFC) and to obtain evidence from a VE to clarify the effect of the assessed limitations. Id. Mr. Flores appeared and testified at a second hearing held on November 8, 2016. Tr. 122-152. The relevant period for purposes of this application begins July 28, 2012.[1]

         Utilizing the five-step disability evaluation process, [2] the ALJ found that Mr. Flores had not engaged in substantial activity since March 29, 2013 and that he has the following severe impairments: obesity; hypothalmic benign tumor disorder, status post resection; hypopitui-tarisim; hypothyroidism; adrenal insufficiency; diabetes; major depressive disorder; cervical pain without clear etiology. Tr. 17. The ALJ also found that these impairments did not meet the Listings.[3] Tr. 19-20.

         At step four, the ALJ found that through the DLI, Mr. Flores had the RFC to perform light work as defined in 20 CFR 416.967(b) except, he can frequently climb ramps and stairs, but never ladders, ropes, or scaffolds; he can frequently balance, stoop, kneel, crouch, and crawl; and can have occasional exposure to hazardous conditions such as proximity to unprotected heights and moving machinery; but is limited to tasks that can be learned in 30 days or less involving no more than simple work-related decisions and a few workplace changes; and can have occasional and superficial interaction with the public and co-workers. Tr. 21.

         At step five, the ALJ relied on a VE, who testified that Mr. Flores could work as an assembler, basket filler, and egg sorter. Tr. 26.

         DISCUSSION

         Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).

         A. ALJ's Assessment of Medical Opinions

         To reject an uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.1995). If a treating or examining doctor's opinion is contradicted by another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are supported by substantial evidence. Id.

         1) Dr. Shadrach

         Dr. Shadrach examined Mr. Flores in September 2013 and prepared a psychological assessment. Tr. 704-8. She stated Mr. Flores' concentration was poor and he suffered from depression and anxiety, which impacted his ability to adapt to routine changes in a typical work setting. Tr. 707. Based on Mr. Flores' statement that he was poor at money management, she recommended the agency assign him a representative payee. Tr. 707. Mr. Flores argues that the ALJ erred by not giving full weight to Dr. Shadrach's opinion; in particular, the need for a protective payee, that he has poor sustained concentration and persistence, working memory and concentration deficits, and is unable to adapt to routine changes in a typical work setting. Dkt. 10 at 12-13.

         The ALJ assigned some weight to Dr. Shadrach's opinion and added a limitation to simple work-related decisions and few workplace changes to accommodate the doctor's concerns regarding anxiety and concentration:

Dr. Shadrach examined the claimant in September 2013 and concluded that the claimant was able to get along with others, but that his depressed moods, increased anxiety, and poor concentration would impact his ability to adapt to routine changes in a typical work setting. Ex. B8F/4. I have assigned this opinion some weight. I limited the claimant to tasks that can be learned in 30 days or less and involving no more than simple work-related decisions and a few workplace changes. Such a limitation in the nature of the tasks, as well as the claimant's need to make only simple decisions a few workplace changes would address her concerns regarding anxiety and concentration. I have also limited his interaction with others. Given the claimant's history of obtaining a math degree and working for two years as a landscaper I do not find her conclusion that the claimant cannot adapt to even routine changes in a typical work setting consistent with the longitudinal history. Ex. B8F/2.

Tr. 24. Mr. Flores argues that relying on his ability to obtain a mathematics degree 15 years ago or working a short stint as a landscaper is hardly indicative of his ability to perform full time work or for rejecting his current symptoms. However, according to Mr. Flores, his depression manifested in 1995, at the same time as his cancer diagnosis. See e.g. Tr. 85, 705. Despite this, he was able to complete his mathematics degree in 1998, albeit with lower grades, and work as a landscaper for two years. Tr. 47, 108, 705. An ALJ may reject an opinion identifying limitations, when the record shows that these limitations long predated the alleged disability period and did not prevent the claimant from performing work-like activities. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (“Bayliss has faced these limitations since at least 1995, before her 1998 accident, and they have not prevented her from completing high school, obtaining a college degree, finishing a Certified Nurses' Aide training program, and participating in military training.”).

         Mr. Flores also contends that the ALJ erred in rejecting the impairments assessed by Dr. Shadrach because they are based on Mr. Flores' cognitive disorder, which causes him memory and concentration problems. Dkt. 14 at 2. While the ALJ noted that the state agency psychological consultants found a severe cognitive disorder, he did not find such a disorder established in the record and noted there is no diagnostic criteria to explain such an impairment. Here again, the ALJ noted that the pituitary tumor to which Mr. Flores attributes his impairments was removed in 1995 and three years later, Mr. Flores earned his advanced degree in mathematics. In addition, the ALJ noted that the State agency consultants assigned no more limitations in the “B” criteria or limited Mr. Flores' residual functional mental capacity more significantly than the ALJ had in his decision. Tr. 18. Moreover, in a mental status examination of Mr. Flores in September 2013, his treating physician David Jiminez Celi, M.D. concluded that Mr. Flores “displays ability to recall recent and remote events and fund of knowledge is intact and attention span and ability to concentrate are normal;” memory and orientation intact;” “he has no mental disability as he claims to have.” Tr. 716-717. In a separate mental examination, Ms. Blessings, a nurse, who was specifically testing Mr. Flores' memory because he had requested a transportation accommodation recommendation due to his alleged memory loss, found that Mr. Flores' memory was intact. Tr. 715.

         Thus, it was not unreasonable for the ALJ to conclude that Mr. Flores could perform less mentally arduous work than pursuing a college degree - specifically, work that could be learned in 30 days or less, requiring only simple ...


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