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Roberts v. Berryhill

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

May 4, 2018

DAVID R. ROBERTS, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER RE: SOCIAL SECURITY DISABILITY APPEAL

          Mary Alice Theiler, United States Magistrate Judge

         Plaintiff David R. Roberts 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 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.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff was born on XXXX, 1966.[1] He has a ninth-grade education, and has worked as an auto mechanic, tile installer, and arborist. (AR 54-56, 200.)

         Plaintiff protectively applied for SSI and DIB in March 2014. (AR 76-77, 169-85.) Those applications were denied initially and upon reconsideration, and Plaintiff timely requested a hearing. (AR 112-14, 117-26.)

         On November 18, 2015, ALJ Robert P. Kingsley held a hearing, taking testimony from Plaintiff and a vocational expert (VE). (AR 38-75.) On February 3, 2016, the ALJ issued a decision finding Plaintiff not disabled. (AR 15-26.) Plaintiff timely appealed. The Appeals Council denied Plaintiff's request for review on May 11, 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 June 19, 2014, the amended alleged onset date. (AR 17.) At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe Plantiff's disorders of the spine, including L4-L5 annular tear; and left knee chondromalacia. (AR 17-19.) 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 19-20.)

         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 light work, with additional limitations: he cannot climb ladders, ropes, or scaffolds. He can occasionally stoop and crouch. He can occasionally push and pull with the lower extremities. (AR 20.) With that assessment, the ALJ found Plaintiff unable to perform any past relevant work. (AR 24.)

         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 a VE, the ALJ found Plaintiff capable of performing other representative occupations, such as production assembler; assembler, electrical accessories; and bottle packer. (AR 35-36.)

         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 symptom testimony; and (2) assessing certain medical evidence and opinions.[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 testimony due to inconsistencies between his allegations and the medical record, specifically the evidence of sparse treatment, Plaintiff's delay in pursuing treatments that could improve his functioning, and conservative treatment. (AR 20-22.) The ALJ also cited many normal examination findings, reasoning that these findings were inconsistent with Plaintiff's allegations of physical limitations, and noted that Plaintiff reported an ability to carry 40 pounds with difficulty. (AR 20-21.) 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 that the ALJ could not discount his testimony solely because his allegations were not fully corroborated by the medical evidence. Dkt. 12 at 9. But the ALJ did not solely rely on this reasoning, and ...


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