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Biklen v. Berryhill

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

July 10, 2018

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



         Nathaniel Biklen appeals the decision of the Administrative Law Judge (ALJ) finding him not disabled. Plaintiff contends the ALJ erred in failing to consider limitations arising from Klinefelter's Syndrome and that this error impacted the weight given to the medical opinion evidence and to Plaintiff's allegations concerning the severity of his impairments. Dkt. 10. Plaintiff seeks remand for further proceedings. Id. As discussed below, the ALJ did not err and her decision is supported by substantial evidence. Accordingly, the Court AFFIRMS the decision and DISMISSES the case with prejudice.


         On November 30, 2012, Plaintiff protectively filed an application for Supplemental Security Income, alleging disability beginning June 2, 1980. Tr. 200-01. The claim was denied initially on May 17, 2013 and upon reconsideration on January 22, 2014. Tr. 140-42, 147-48. Plaintiff testified at an initial hearing on August 26, 2015. The hearing was continued to allow Plaintiff to obtain representation and additional medical documentation. Plaintiff appeared with a non-attorney representative and testified at a supplemental hearing on June 23, 2016. Patricia B. Ayerza, a vocational expert, also testified. Tr. 58-108. On September 28, 2016, the ALJ issued a decision finding that Plaintiff was not disabled. Tr. 17-34. On October 26, 2017, the Appeals Council denied review. Tr. 1-4.

         Utilizing the five-step disability evaluation process (20 C.F.R. §§ 404.1520, 416.920), the ALJ found, at steps one through three, that Plaintiff has not engaged in substantial gainful activity since November 30, 2012 and Plaintiff has the severe impairment of bipolar disorder. Tr. 22. The ALJ acknowledged Plaintiff was born with Klinefelter syndrome, [1] but determined the condition does not constitute a severe medically determinable impairment. Id. The ALJ concluded Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments (20 C.F.R. Part 404, Subpart P. Appendix 1). Id.

         Prior to completing step four, the ALJ found Plaintiff had the residual functional capacity (RFC) to perform a full range of work at all exertional levels with the following non-exertional limitations: he is able to remember, understand and carry out tasks or instructions consistent with a specific vocational preparation (SVP) rating of 1 or 2; he would do best only having occasional interaction with the general public, such as brief meetings, but not in depth conversations such as mediations or negotiation type tasks; and he may interact with coworkers, but he should not perform tasks requiring teamwork. Tr. 24. As Plaintiff has no past relevant work, the ALJ proceeded to step five, where he relied on the testimony of the vocational expert, in concluding Plaintiff would be able to perform the requirements of occupations such as janitor, hand packager, and laundry worker. Tr. 33.


         A. The ALJ Did Not Err At Step Two

         Plaintiff asserts that the ALJ erred in finding that his Klinefelter syndrome was not a severe impairment (Dkt. 10 at 2-4), but concedes that the error was “not, in itself harmful.” Id. at 4. Rather, Plaintiff contends that the harm occurred when the ALJ failed to consider the effect of symptoms attributable to his Klinefelter's syndrome - particularly the psychological or cognitive symptoms - when she evaluated the medical evidence, Plaintiff's testimony, and lay witness testimony. Dkts. 10 and 16. Accordingly, no harmful error occurred at step two.

         B. The ALJ Did Not Err in Weighing the Medical Evidence

         To reject the uncontroverted opinion of a treating or examining physician, an ALJ must articulate “clear and convincing” reasons for so doing. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995)). If a treating or examining physician's opinion is in conflict with substantial medical evidence or with another physician's opinion, however, it may be rejected for merely “specific and legitimate reasons.” Id.

         1) Lawrence Moore, Ph.D., Examining Psychologist

         Plaintiff contends the ALJ erred when she discounted the opinion of Dr. Moore as Dr. Moore was the only medical provider who considered the impact of his Klinefelter's syndrome on his cognitive functioning. In May 2016, Dr. Moore diagnosed Plaintiff with major neurocognitive disorder with features of executive dysfunction and bipolar disorder most recent episode manic. Dr. Moore interviewed Plaintiff and administered psychological testing on which Plaintiff generally scored in the average to low-average range. Tr. 825-826. Dr. Moore acknowledged that this objective testing generally failed to reveal cognitive or psychological functioning deficits, but suggested his observations during the examination along with Plaintiff's history revealed a “clear picture of executive dysfunction that is manifested through cognitive, behavioral, and social deficits” that undermined Plaintiff's employment prospects. Tr. 827, 831. Dr. Moore did not articulate specific limitations or offer an opinion as to what Plaintiff was capable of doing despite any limitations. Tr. 815-31.

         Based on his observations of Plaintiff during his examination, Dr. Moore opined that Plaintiff's primary cognitive difficulties are linked to a significant executive dysfunction. From a cognitive standpoint, he noted Plaintiff was notably disorganized, showed deficits in decision making and demonstrated an extremely slow pace. From a behavioral standpoint, he noted Plaintiff exhibited prominent disinhibition, did not manage well with lack of structure, and demonstrated inappropriate behaviors. From a social standpoint, he noted Plaintiff was socially immature and had a profound lack of insight regarding his deficits. Dr. Moore opined that even with a strong treatment team and regular psychotherapy and taking psychoactive medications, Plaintiff may continue to demonstrate underlying executive dysfunction that interferes with his ability to maintain a fully independent lifestyle and be competitive in the work environment and suggested Plaintiff consider disability compensation and/or vocational rehabilitation services. Tr. 827-831.

         Dr. Moore opined that Plaintiff's significant executive dysfunction is “possibly related to Klinefelter syndrome, ” as some research suggests that executive dysfunction and learning disabilities are potentially linked to this condition. Tr. 827 (emphasis added). However, he also noted that Plaintiff has a history of repeated head injuries and Vitamin D deficiency that could clearly exacerbate, lower the threshold for the expression of cognitive deficits, or contribute to his cognitive difficulties. Id. Another area identified by Dr. Moore as being possibly related to Plaintiff's Klinefelter syndrome is Plaintiff's fluctuating testosterone levels, which have also been correlated with mood difficulties. However, Dr. Moore also notes “psychiatric functioning has also emerged as a significant factor in this individual's overall situation even separate from testosterone fluctuations and substance abuse” and while ...

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