United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING THE COMMISSIONER'S FINAL DECISION
AND DISMISSING THE CASE WITH PREJUDICE
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE.
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
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.
the five-step disability evaluation process,  the ALJ found:
Step one: Plaintiff has not engaged in
substantial gainful activity since the December 2014 alleged
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
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
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.
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).
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.
discounted Plaintiff's testimony because of inconsistent
statements, inconsistency with his activities, and effective
treatment or conservative treatment. AR 25-26.
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.”
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….”
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.
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 ...