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Tracey R. v. Commissioner of Social Security

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

September 25, 2019

TRACEY R., Plaintiff,


          The Honorable Richard A. Jones United States District Judge.

         Plaintiff seeks review of the denial of his application for Supplemental Security Income (SSI). Plaintiff contends the ALJ erred by rejecting his testimony, a lay witness’ testimony, and three medical opinions, and by accepting two other medical opinions. Dkt. 12. As discussed below, the Court AFFIRMS the Commissioner’s final decision and DISMISSES the case with prejudice.

         I. BACKGROUND

         Plaintiff is currently 41 years old, has a high school education, and had no past relevant work before applying for SSI. Dkt. 8, Admin. Record (AR) 1379. After multiple ALJ decisions and district court remands, the ALJ issued a decision in July 2018 finding Plaintiff not disabled. AR 1362-81. The ALJ considered the period from the June 2008 application date through December 2015 because in January 2016 Plaintiff began substantial gainful work, which is inconsistent with disability benefits. AR 1365-66.

         Utilizing the disability evaluation process outlined in 20 C.F.R. § 416.920, the ALJ found that Plaintiff worked from 2011 through 2015, but that his earnings remained just below the level of substantial gainful activity. AR 1365. During the relevant period from June 2008 through December 2015, Plaintiff had the severe impairments of seizure disorder, lumbar spine degenerative disc disease and degenerative joint disease with right radiculopathy, thoracic spine congenital fusion of T9 and T10, attention deficit hyperactivity disorder (ADHD), bipolar disorder, generalized anxiety disorder, and personality disorder. AR 1366. Plaintiff had the residual functional capacity (RFC) to perform light work with additional limits including no commercial driving or exposure to hazards. AR 1368. He could follow short, simple instructions; perform routine, predictable tasks; make simple decisions; handle occasional workplace changes; and have occasional interaction with the general public. Id. He could not work in a fast-paced production environment. Id. Based on this RFC, the ALJ determined that Plaintiff could perform jobs that exist in significant numbers in the national economy and therefore was not disabled. AR 1380-81.


         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

         Where, as here, an ALJ determines a claimant has presented objective medical evidence establishing underlying impairments that could cause the symptoms alleged, and there is no affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as to symptom severity by providing “specific, clear, and convincing” reasons that are supported by substantial evidence. Trevizo, 871 F.3d at 678.

         In 2009 and 2010 Function Reports, Plaintiff stated that his impairments affected his neck and back movement, concentration, and memory. AR 198, 281. He could only lift 10 to 15 pounds. AR 286. He could only walk for about 15 to 20 minutes without pain. AR 200, 286. He needed to change positions often. AR 281. In a 2011 hearing, Plaintiff testified that he can only stand or sit for about 20 minutes. AR 62. He got headaches two to three times a week. AR 73. Once every week or two, he had times when he could not stop crying. AR 74. At the time of the 2011 hearing, Plaintiff was working 12 to 20 hours per week at a pizza restaurant. AR 69. He testified that he was physically unable to work full time. AR 75. At the time of a 2015 hearing, Plaintiff was working 12 to 15 hours for the same employer and had been made a manager. AR 997. He testified that when he tried to work more, his physical and emotional condition deteriorated. AR 1019. By the time of a 2018 hearing, Plaintiff was working 30 to 34 hours per week at a convenience store. AR 1405. He testified that he could not have done that job during the relevant period, because of “stabilizing after seizures, ” being on “heavy medications, ” and “panic attacks.” AR 1412.

         The ALJ discounted Plaintiff’s testimony based on conflict with his activities, inconsistent statements, and lack of corroborating medical evidence. AR 1370-76. An ALJ may discount a claimant’s testimony based on daily activities that either contradict her testimony or that meet the threshold for transferable work skills. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). “An ALJ may consider inconsistent statements by a claimant in assessing her credibility.” Popa v. Berryhill, 872 F.3d 901, 906–07 (9th Cir. 2017) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001)). And, “[a]lthough lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.” Burch, 400 F.3d at 681.

         In significant part, the ALJ discounted Plaintiff’s allegations of disabling limitations because of his “ability to work during the period at issue” part time at a pizzeria, and to work full time beginning in January 2016 without any major medical change. AR 1375. While Plaintiff testified that he could not have worked more hours at the pizzeria, the ALJ found that he could have worked full time at a job consistent with his RFC.

         1. Mental Health

         There is no dispute that Plaintiff’s seizures are controlled effectively with medication. See AR 1370-71; Dkt. 14 at 5. Plaintiff argues, however, that the ALJ failed to properly analyze memory and other cognitive side effects from his seizure medications. Dkt. 12 at 16 (citing AR 71-72, 588). The ALJ found that Plaintiff had “moderate” cognitive and memory limitations and incorporated several mental restrictions in the RFC, but discounted Plaintiff’s testimony of more severe limitations based on his activities, including completing college coursework for an associate degree and working part-time as a manager. AR 1367. These activities contradict Plaintiff’s testimony of extreme cognitive and memory limitations, and Plaintiff offers no argument otherwise. Plaintiff challenges the ALJ’s statement that his marijuana use “raises questions” as to whether cognitive issues are due to medication side effects or marijuana use. Dkt. 12 at 16 (quoting AR 1375). Regardless of whether the ALJ’s speculative statement is unfounded, Plaintiff’s activities were a clear and convincing reason to discount his allegations of severe cognitive and memory deficits. Plaintiff fails to show any error in the ALJ’s handling of cognitive and memory impairments.

         The ALJ also discounted Plaintiff’s allegations of disabling mental health impairments based on lack of support from objective medical evidence. AR 1372. Plaintiff argues that the ALJ “selectively” cited mental health evidence, but fails to identify any contradictory records or ...

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