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Joshua W. v. Saul

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

September 16, 2019

JOSHUA W., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant.

          ORDER RE: SOCIAL SECURITY DISABILITY APPEAL

          MARY ALICE THEILER, UNITED STATES MAGISTRATE JUDGE

         Plaintiff proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's application for 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, this matter is AFFIRMED.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff was born on XXXX, 1989.[2] He completed high school in five years, taking special education classes. (AR 40-41.) He has never worked. (AR 179.)

         Plaintiff protectively filed for SSI in January 2013, alleging disability beginning September 1, 1999. (AR 150.) The applications were denied initially and on reconsideration. ALJ Robert Kingsley held a hearing on June 12, 2014, taking testimony from plaintiff and a vocational expert (VE). (AR 33-62.) On July 25, 2015, the ALJ found plaintiff not disabled. (AR 19-28.)

         Plaintiff timely appealed. The Appeals Council denied the request for review on September 9, 2015 (AR 1-4), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed to this Court. On September 14, 2016, the Court issued an Order Reversing and Remanding Defendant's Decision to Deny Benefits. (AR 394-408.) The Court found error in addressing opinion evidence, plaintiff's testimony, and lay testimony, and resulting error in the remainder of the decision. The Appeals Council vacated the ALJ's decision and remanded for a new decision consistent with the Court's order. (AR 415.) The Appeals Council also directed that plaintiff's claim be consolidated with a duplicate SSI application filed on December 16, 2015.

         ALJ Virginia Robinson held a hearing on August 2, 2017, taking testimony from plaintiff and a VE. (AR 340-72.) On June 20, 2019, ALJ Robinson issued a decision finding plaintiff not disabled since January 10, 2013, the date of the SSI application. (AR 315-34.) The ALJ noted an SSI application plaintiff protectively filed on October 21, 2011, but found no basis to reopen. (AR 316.) Plaintiff appealed to this Court. See 20 C.F.R. § 416.1484.

         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 the application date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's autistic disorder and/or other developmental disorder, obsessive-compulsive disorder, and affective disorder severe. 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 listing.

         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 demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform a full range of work at all exertional levels, but with limitations to performing simple routine tasks, in a routine work environment with few and infrequent changes in the work setting and only simple work-related decisions; superficial interaction with co-workers; and no interaction with the public required as part of his work duties. Plaintiff had no past relevant work to consider at step four.

         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 VE's assistance, the ALJ found plaintiff capable of performing other jobs, such as work as a toy stuffer, labeler, and car washer.

         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 asserts error in the consideration of medical opinions and other evidence, his testimony and lay testimony, the RFC, and at step five. He requests remand for an award of benefits based on the 2011 and 2013 applications and an October 21, 2011 disability onset date or, alternatively, further administrative proceedings. The Commissioner argues the ALJ's decision has the support of substantial evidence and should be affirmed.

         Symptom Testimony

         The rejection of a claimant's subjective symptom testimony[3] requires the provision of specific, clear, and convincing reasons. Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014) (citing Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). See also Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996).

         The ALJ found plaintiff's statements concerning the intensity, persistence, and limiting effects of his symptoms not entirely consistent with the medical and other evidence in the record. She contrasted early testing results and problems associated with cognitive and behavioral issues with evidence of significant improvement, including improved IQ scores, indicating low to average academic skills, but with specific deficits in written expression. (AR 323-24.) In a July 2011 evaluation (see AR 262-69), plaintiff reported difficulty making friends, that he got along with teachers well, his behavior improved in adolescence, and he was pretty good at following directions. He did not endorse current problems with depression, anxiety, inattention or anger, displayed cooperative and polite behavior, normal eye contact, psychomotor activity, and speech, and had flat affect and adequate perseverance.

         The ALJ found the evidence since the 2013 application showed adequate concentration, cognition, and social skills to persist with at least unskilled employment. (AR 324.) Plaintiff reported his psychological state improved with productive activity and the minimal mental health care he received since leaving school was inconsistent with his allegations. In a May 2013 evaluation (see AR 283-86), he reported impaired intelligence and trouble socializing, that working and keeping busy resolved these issues, and that keeping a schedule and doing work had been helpful in school. His mood was calm and a little nervous and he had cooperative and pleasant behavior, unimpaired psychomotor activity, and robotic, but linear stream of mental activity. He recalled items after a delay, performed “serial 7” subtractions without error, correctly spelled “world” backwards, and followed a three-step command without difficulty.

         After leaving school in 2009, plaintiff had no documented or reported attempts at mental health care until May 2014, two months prior to his first ALJ hearing. (AR 324.) Visiting a mental health clinic at that time (see AR 290-98), plaintiff reported his interest in his qualification for disability benefits and whether he might improve, and no mental health care in the prior ten years. He displayed cooperative but distractible behavior, normal activity level, blunt affect, and impaired long-term memory. He had no further documented mental health care until July 2015 (see AR 589-631). In a June 2015 evaluation (see AR 546-59), he stated “‘truthfully, I don't know why I can't work'” and described a fear of doing something wrong and not being able to understand certain jobs and tasks. (AR 324.) He denied recent symptoms, depression, or difficulties with concentration, reflected minimal levels of depression or anxiety on symptom inventories, said his only real diagnosis was autism, and displayed awkward but appropriate behavior, motor tics, blunt affect, linear but rigid thought process, and normal memory. He correctly performed serial 7s and his mental status examination (MSE) indicated a likely lack of cognitive impairment.

         The ALJ found generally benign psychological findings during recent treatment established plaintiff's sufficient mental functioning for some form of gainful activity. (Id.) Treatment records showed adequate control of various psychological issues with medication. When starting care with a psychiatrist in July 2015 (see AR 609-11), he reported autism, wanted medication for sleep and repetitive hand washing, and denied other OCD symptoms or symptoms of depression or anxiety. He had a euthymic mood, appropriate affect, good eye contact, normal psychomotor activity and speech, logical thought process, appropriate thought content, and intact cognition. He started Fluoxetine and, in August and November 2015, reported improvement, with okay sleep, no symptoms of depression or anxiety, and had unremarkable examinations. In March 2016, after an increased dosage, he reported doing okay, with decreased hand washing, requested a mild anxiety medication, and had normal psychological findings. (AR 324-25.) In a May 2016 evaluation (see AR 563-71), plaintiff reported okay sleep and OCD behavior decreased fifty percent with medication. (AR 325.) He exhibited anxious affect, abrupt but polite behavior, loud speech, normal thought process, memory, and concentration, and good judgment. While reporting continued OCD in August and November 2016, he demonstrated cooperative behavior, normal speech and psychomotor activity, good eye contact, logical thought process, appropriate thought content, normal judgment, and intact cognition. In January 2017, his new medication was working well, with improved anxiety and hand washing, and his examination was unremarkable. In March 2017, he reported normal sleep and again had a normal MSE, including a euthymic mood.

         The ALJ found plaintiff's work with the Division of Vocational Rehabilitation (DVR) to show his capacity to perform at least unskilled work without the need for excessive reminders or corrections, to independently manage unexpected circumstances, and to maintain appropriate behavior in a variety of settings. (AR 325.) In a community-based assessment (CBA) with DVR in late 2011 (see AR 270-74), plaintiff completed an assignment that included taking three buses, for a total travel time over two hours. He compensated for an unexpected complication by calling the employment consultant and quickly got back on track. “The only area of concern in this assignment was that the closest bus stop to the claimant was forty-five minutes away from his house.” (AR 325.) During the CBA, plaintiff worked at three different volunteer sites for a month, had exposure to many new supervisors and coworkers, always had appropriate social interactions, “‘impeccable manners'” and was “‘friendly and conversational[.]'” (Id.) He did reasonably well remembering at a food bank and while he once encountered problems with initial instructions in learning how to paint, he improved over time. At all sites, he was attentive receiving verbal instructions and performed tasks correctly. He performed all tasks to a competitive standard and performed multi-step procedures well, including assembling materials for a major cable company and completing over one hundred packets in an hour with no mistakes.

         The ALJ found plaintiff's own statements to indicate minimal overall functional deficits even without recent beneficial treatment and that “[h]is ongoing unemployment appears to be due to his remote location.” (Id.) In a February 2012 function report (see AR 167-74), plaintiff stated unspecific impairments prevented employment, but essentially asserted no functional limitations. He denied problems interacting with others, could pay attention “‘indefinitely'” and follow instructions “‘perfectly'” whether written or spoken. (AR 325-26.) He handled stress “‘decently'” and could tolerate changes in routine “‘very well.'” (AR 326.) He had no interference in his personal care and had daily activities including house chores, meal preparation, and pet care. He left the house daily, sometimes using public transportation, and read, used a computer “‘very well'”, and regularly visited a library and aquatic center. (Id.) He did this without using medication. In May 2013 (see AR 283-86), plaintiff reported he preferred being around people, occasionally visited a library and attended church, had decent concentration and fairly good persistence, and had been trying to find a job for the past five years, “adding ‘honestly, I am not really sure why I can't find a job[.]'” (Id.)

         In the June 2014 hearing, plaintiff said he spent his days doing household chores, watching television, and writing short stories on his computer. He did a pretty good job volunteering at the food bank and denied any problems because the job was “‘simple.'” (Id.) In August 2016, he reported doing housework and the occasional farm job. In November 2016, his typical day included chores and going to the library. During the August 2017 hearing, plaintiff described his food bank work as “‘pretty decent'” and, contrary to the DVR records, said “it had been ‘discontinued' after a few days because he had needed frequent corrections in his performance.” (Id.) He testified his daily activities since then included housecleaning, yardwork, and a lot of reading. Plaintiff “lived in ‘farmland'” with the nearest bus stop forty-five minutes away. (Id.)

         Plaintiff suggests the ALJ improperly rejected his testimony based solely on an absence of objective evidentiary support and depicts the ALJ's reasoning as unconvincing, conclusory, and/or mischaracterizations of the record. He deems the ALJ's reliance on an absence of treatment improper given that he suffers from mental impairments and contends his reporting merely shows his limited insight. He denies his activities show he could perform full-time competitive work and argues the ALJ's later stated conclusion his “various psychological impairments are either dormant or well-controlled with medication, without much [discernible] effect on his functioning[]” (AR 328) shows she does not understand autism.

         “While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Social Security Ruling (SSR) 16-3p. An ALJ therefore properly considers whether the medical evidence supports or is consistent with a claimant's allegations. Id.; 20 C.F.R. § 416.1529(c)(4). An ALJ may reject subjective testimony upon finding it contradicted by or inconsistent with the medical record. Carmickle v. Comm'r of SSA, 533 F.3d 1155, 1161 (9th Cir. 2008); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). An ALJ also properly considers inconsistencies in reporting, Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006), inconsistency with activities, Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007), and evidence associated with treatment, ยง ...


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