United States District Court, W.D. Washington, Tacoma
ORDER AFFIRMING THE COMMISSIONER’S DECISION AND
DISMISSING THE CASE WITH PREJUDICE
Honorable Richard A. Jones United States District Judge.
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
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.
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.
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.
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.
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.
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.
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.
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.
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