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Patrick D. v. Commissioner of Social Security

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

June 18, 2019

PATRICK D., Plaintiff,



         Plaintiff seeks review of the denial of his application for Disability Insurance Benefits. Plaintiff contends the ALJ erred by rejecting his testimony, his mother's testimony, and several medical opinions. Dkt. 9. As discussed below, the Court AFFIRMS the Commissioner's final decision and DISMISSES the case with prejudice.


         Plaintiff is currently 47 years old, has at least a high school education, and has worked as a truck driver and hostler. Dkt. 7, Admin. Record (AR) 28. Plaintiff applied for benefits in September 2015, alleging disability as of December 2, 2014. AR 92. Plaintiff's application was denied initially and on reconsideration. AR 91, 103. After the ALJ conducted a hearing in April 2017, the ALJ issued a decision finding Plaintiff not disabled. AR 39, 17-30.


         Utilizing the five-step disability evaluation process, [1] the ALJ found:

Step one: Plaintiff has not engaged in substantial gainful activity since the December 2014 alleged onset date.
Step two: Plaintiff has the following severe impairments: major depressive disorder, attention deficit disorder (ADD), diabetic neuropathy, obesity, and lumbar spine degenerative disc disease.
Step three: Plaintiff's impairments do not meet or equal the requirements of a listed impairment.[2]
Residual Functional Capacity: Plaintiff can perform sedentary work. He can never climb ladders, ropes, or scaffolds. He can occasionally stoop, kneel, crouch, crawl, balance, and climb ramps and stairs. He can occasionally operate foot controls, bilaterally. He can have occasional exposure to vibration and extreme cold. He can understand, remember, and apply detailed, but not complex, instructions.
Step four: Plaintiff cannot perform past relevant work.
Step five: As there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, he is not disabled.

AR 19-30. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. AR 1.


         This Court may set aside the Commissioner's denial of Social Security benefits only if the ALJ's decision is based on legal error or not supported by substantial evidence in the record as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Each of an ALJ's findings must be supported by substantial evidence. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998). “Substantial evidence” is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for evaluating evidence, resolving conflicts in medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may neither reweigh the evidence nor substitute its judgment for that of the ALJ. Thomas v. Barnhart, 278 F.3d 947, 954, 957 (9th Cir. 2002). When the evidence is susceptible to more than one interpretation, the ALJ's interpretation must be upheld if rational. Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). This Court “may not reverse an ALJ's decision on account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

         A. Plaintiff's Testimony

         Plaintiff testified he could stand or walk for three hours per day total. AR 67-68. He can sit for up to an hour and a half before needing to stretch for ten minutes, then could sit for less than an hour before stretching, and the amount he could sit at one time would continue to decrease. AR 73-74. He needs to lie down for an hour during the day. AR 76. He does not feel he could show up to a job 40 hours a week long-term. AR 89. Plaintiff said that medication improves his ADD and mood swings, but he still has mood swings. AR 63. When he gets depressed, he becomes lethargic. AR 63-64. He does not feel like doing anything “daily, ” but he forces himself. AR 64.

         The ALJ discounted Plaintiff's testimony because of inconsistent statements, inconsistency with his activities, and effective treatment or conservative treatment.[3] AR 25-26.

         1. Inconsistent Statements

         Inconsistent statements can be a clear and convincing reason to discount a claimant's testimony. Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007). At the hearing, Plaintiff testified that he successfully completed two quarters of classroom instruction on sterile processing, from September 2015 through March 2016. AR 56. He sat through classes four hours per day, with ten to fifteen-minute breaks every hour and a half, three or four days per week. AR 77. Plaintiff's attorney asked him if he would have been able to handle this activity “five days a week, eight hours a day where you had to sit in class.” AR 77. Plaintiff responded, “Yeah. With the breaks we got, I'd say yeah.” Id. Plaintiff's counsel reminded Plaintiff of his prior testimony that he could “only sit for an hour and a half the first time, but then it would decrease as the day goes on….” AR 78. Counsel then repeated the question, asking if Plaintiff “had to go in five days a week, eight hours a day, would that, in fact, be enough break time, if you were only allowed to take a break every hour and a half?” AR 78. This time Plaintiff responded, “For my own comfort level, no, it wouldn't.” AR 78.

         After the hearing, Plaintiff submitted a letter stating that he “misunderstood, or misinterpreted, ” the question. AR 278. He said that his response (“Yes, with discomfort”) was incorrect, because he thought the question referred to his actual time in the classroom for four hours per day. Id. Plaintiff stated that the correct answer would have been “No, I would not be able to sit in [a] classroom for 40 hours per week….” Id.

         The ALJ found that the letter was “an attempt to change what was honest testimony” because the question asked at the hearing was “very clear.” AR 26. The ALJ's interpretation of the evidence is rational and supported by substantial evidence. The question during the hearing was clearly worded as a hypothetical. AR 77 (“Let's say that it had been five days a week, eight hours a day”). Plaintiff's response, that he “[woul]d say yeah, ” indicates he understood it was a hypothetical. AR 77. Plaintiff then changed his testimony in response to his attorney's pointed reminder. AR 78.

         Plaintiff's statement at the hearing that he could handle 40 hours a week of sitting was inconsistent with his letter that he could not. The ALJ reasonably found that the inconsistency was not based on a misunderstanding. Inconsistent statements were a clear and ...

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