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Shelton v. Berryhill

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

April 17, 2018

NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.


          Mary Alice Theiler United States Magistrate Judge

         Plaintiff Stephen Shelton proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, the Court recommends this matter be REMANDED for further administrative proceedings.


         Plaintiff was born on XXXX, 1979.[1] Plaintiff has a bachelor's degree in neurobiology and physiology. (AR 66.) He previously worked as a car electronics installer. (AR 54.)

         Plaintiff filed DIB and SSI applications in August 2013, alleging disability beginning March 1, 2008. (See AR 16.) His applications were denied initially and on reconsideration. On September 17, 2015, ALJ Laura Valente held a hearing, taking testimony from plaintiff and a vocational expert (VE). (AR 46-100.) At hearing, plaintiff amended his onset date to August 3, 2010. (AR 51.)

         On December 22, 2015, the ALJ issued a decision finding plaintiff not disabled from March 1, 2008 through the date of the decision. (AR 16-37.) Although the ALJ pointed to the March 2008 date in her conclusion, she earlier noted that the period under consideration began on April 26, 2012, the date prior, never appealed denials of disability applications became administratively final. (AR 16.)

         Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on July 7, 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.


         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 alleged onset date.

         At step two, it must be determined whether a claimant has a severe impairment. The ALJ found plaintiff's anxiety disorder, major depressive disorder, and substance abuse disorder severe.

         She considered other conditions and found them either not severe or not medically determinable. 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 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 able to perform work at all exertional levels, but with the following non-exertional limitations: can maintain concentration and pace in two-hour increments for complex and detailed tasks; can work superficially and occasionally with the general public; can work in the same room with co-workers, but should not work in coordination with them; can respond appropriately to occasional supervisor criticism, meaning he should only interact with a supervisor on an occasional basis; and can adapt to simple workplace changes. With that assessment, the ALJ found plaintiff able to perform his past relevant work as an auto accessories installer.

         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. With the assistance of the VE, the ALJ also found plaintiff capable of performing other jobs, such as work as a production assembler and hand packager.

         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). Accord Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported by substantial evidence in the administrative record or is based on legal error.”) 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 failing to adequately address opinions and other evidence showing he would have difficulties with absences, tardiness, and fatigue, in finding no severe sleep impairment at step two, and in attributing his problems to “avoidance, ” rather than a mental impairment. He contends the ALJ's errors implicated the RFC assessment. Plaintiff requests remand for an award of benefits with an onset of August 3, 2010. The Commissioner argues the ALJ's decision has the support of substantial evidence and should be affirmed.

         Absences, Tardiness, and Fatigue

         The VE testified that one absence a month, tardiness two-thirds of the week, and/or the need for a forty-five minute nap would preclude work. (See AR 94, 98-99.) Plaintiff observes that, while the ALJ acknowledged his severe anxiety and major depressive disorders, she attributed his complaints of fatigue to his anxiety disorder, rather than any sleep disorder. (AR 22.) Plaintiff maintains the record is replete with evidence he had difficulty leaving the house or performing activities due to anxiety and fatigue, and that the ALJ substantially failed to address whether he would have absences from work in assessing the RFC, and failed to give sufficient reasons for rejecting evidence supporting the conclusion he would have such absences. Plaintiff identifies the specific assignments of error discussed below.

         A. Janessa Daugherty, LMHC

         Janessa Daugherty served as plaintiff's mental health counselor. As an “other source, ” the ALJ could assign the opinions of Daugherty less weight than the opinions of an “acceptable medical source, ” such as a physician, but was required to provide germane reasons for their rejection. 20 C.F.R. §§ 404.1502, 404.1513, 416.902, 416.913; Gomez v. Chater, 74 F.3d 967, 970 (9th Cir. 1996); and Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

         Daugherty began treating plaintiff in August 2010, diagnosed anxiety disorder, and assigned a Global Assessment of Functioning (GAF) score of 48, describing “serious symptoms” or “any serious impairment in social, occupational, or school functioning.” Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000) (DSM-IV-TR).[2] As of July 15, 2011, Daugherty added a diagnosis of major depressive disorder. (AR 982.)

         In letters dated February 6 and May 17, 2012, Daugherty described plaintiff's significant ongoing anxiety, including pervasive bad thoughts, difficulty leaving his apartment, being easily overwhelmed by excursions outside the home and interactions with people, strong somatic reactions, severe anxiety, and quickly flaring to anger. (AR 573, 1061.) Plaintiff's anxiety and depression hindered his capacity for self-care and he displayed a low frustration tolerance and rigidity in thinking and action. While presenting as highly intelligent and intellectual, plaintiff's emotional difficulties made it difficult to even contemplate applying for a job or to begin or complete tasks, and his fear of greater destabilization prevented him from moving forward.

         After a break in October 2012, plaintiff resumed therapy with Daugherty in June 2013. In a letter dated September 11, 2013, Daugherty stated plaintiff remained severely hindered, with incapacitating anxiety leading to agoraphobic avoidance and periods of significant decompensation. (AR 925.) Even with the support of the Division of Vocational Rehabilitation (DVR) and his own major efforts to manage his illness, plaintiff struggled daily activating even for simple tasks and his symptomology did not allow “him to gain any traction.” (Id.) In a July 9, 2014 letter, Daugherty described plaintiff's inability to control his excessive worrying, excessive sleep disturbances, frequent fatigue, anger and irritability, and paralyzing anxiety. (AR 1135.) Plaintiff's incapacitating anxiety could lead to agoraphobic avoidance “wherein he struggles to leave his house for basic necessities like food or medical appointments.” (Id.) He had experienced significant periods of decompensation, with disordered thought processes and unstable moods, making it difficult to keep track of time and take care of himself. Plaintiff's depression resulted in low frustration tolerance, rigid thinking, and a struggle to take care of basic physical needs, lose weight, or show interest in the outside world. He had strong feelings of judgment towards self and others, illogical ideas of responsibility, and past suicidal ideation. Plaintiff continued to have difficulty being timely, initiating and completing tasks, did not adapt well to unexpected changes or unknown situations, and had shown only slow, partial improvement. (AR 1135-36.)

         In February 2015, Daugherty completed a Medical Source Statement, opining plaintiff had moderate limitations in relation to short, simple instructions, making judgments on simple work-related decisions, and interacting with supervisors, and was markedly limited in all other respects. (AR 970-71.) Daugherty based these limitations on plaintiff's incapacitating anxiety, agoraphobic avoidance, periods of significant decompensation, distracting ruminations, low frustration tolerance, rigid thinking, feelings of judgment, hindered relational capacity, and anger and irritability. She also assessed a limitation in arriving punctually to scheduled appointments due to plaintiff's anxiety, dissociative process, and shame surrounding his limitations, and stated he consistently struggled to leave his house or keep track of time. (AR 971.)

         The ALJ did not find Daugherty's opinions persuasive and deemed them inconsistent with Daugherty's own clinical notes. (AR 32.) While limited, the notes did show plaintiff had a clear capacity to activate, with clear routine and expectations, while visiting with his parents for an extended time. (AR 977.) The notes did not describe any periods of significant decompensation or dissociative process, and the record did not contain a referral for inpatient psychiatric services, which would be expected in such circumstances. Daugherty did not mention in her letter that their sessions had become “more erratic”, which was consistent with some decline, but not the extent implied in her letters. (AR 981.)

         The ALJ also found Daugherty's opinion as to plaintiff's hindered ability to relate to others contrary to the opinion of his DVR counselor and numerous social interactions. (AR 32.) The DVR counselor described plaintiff as “a clear, eloquent, and intelligent communicator who seemed to enjoy socializing with others despite his reported anxiety when dealing with new people in new situations.” (AR 23-24.) Plaintiff's variety of social interactions included meeting with a friend monthly; acquaintances at a bar he frequented; his ability to use public transportation and go to the gym regularly; playing pinball at a local bar; looking around a retail store while looking for a job; engaging with WorkSource for resume help; taking several extensive trips to visit his family in Indiana; weekly social outings with a friend; volunteering at a car mechanic's and doing cash work at a marijuana dispensary, resulting in “increased ‘social' marijuana use.”; continuing to work as a handyman through the time of the hearing; sharing his home with his aunt for a time and his mother when she came to visit; going out on a date; getting along with most of his DVR supervisors and co-workers; and daily gym workouts, following by breakfast and socializing. (Id. (citations to record omitted).)

         The ALJ additionally found Daugherty's opinions contrary to those of plaintiff's most recent medication manager, Dr. Catherine Shim. (AR 32 (mistakenly referred to as Dr. Romm in the decision).) Dr. Shim, in March 2015, agreed to complete paperwork for plaintiff's pursuit of disability benefits, ...

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