United States District Court, W.D. Washington, Seattle
ORDER RE: SOCIAL SECURITY DISABILITY APPEAL
ALICE THEILER UNITED STATES MAGISTRATE JUDGE
proceeds through counsel in his appeal of a final decision of
the Commissioner of the Social Security Administration
(Commissioner). The Commissioner denied plaintiff's
applications for Disability Insurance Benefits (DIB) and
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 of record, this matter is AFFIRMED.
AND PROCEDURAL HISTORY
was born on XXXX, 1970. He has a limited education and
previously worked as a cook helper, storage laborer, and
cosmetologist. (AR 977.)
filed applications for DIB and SSI in 2013, alleging
disability beginning May 1, 2009. (AR 78.) The applications
were denied at the initial level and on reconsideration. (AR
76, 77, 92, 93.) Plaintiff's subsequent application for
SSI in 2015 was consolidated with his 2013 applications. (AR
August 17, 2015, ALJ Wayne N. Araki held a hearing, taking
testimony from plaintiff and a vocational expert. (AR 38-75.)
On January 21, 2016, the ALJ issued a decision finding
plaintiff not disabled from May 1, 2009, through the date of
the decision. (AR 16-31.)
timely appealed. The Appeals Council denied plaintiff's
request for review on March 29, 2017 (AR 1-4), making the
ALJ's decision the final decision of the Commissioner.
Plaintiff appealed this final decision of the Commissioner to
the district court of the Eastern District of Washington,
which reversed the decision and remanded the matter for
further administrative proceedings. (AR 1057-72.)
remand, the ALJ held a hearing on February 5, 2019, taking
testimony from a vocational expert. (AR 991-99.) Plaintiff
did not appear, and his attorney was unable to locate him.
(AR 993.) On February 27, 2019, the ALJ issued a decision
finding plaintiff not disabled from May 1, 2009, through the
date of the decision. (AR 965-79.) Plaintiff timely appealed
to this Court.
Court has jurisdiction to review the ALJ's decision
pursuant to 42 U.S.C. § 405(g).
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 alleged onset date.
At step two, it must be determined whether a claimant suffers
from a severe impairment. The ALJ found plaintiff's
affective disorder, anxiety disorder, posttraumatic stress
disorder (PTSD), personality disorder, and substance use
disorder severe. Step three asks whether a claimant's
impairments meet or equal a listed impairment. The ALJ found
that plaintiff's impairments did not meet or equal the
criteria of a listed impairment.
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 has
demonstrated an inability to perform past relevant work. The
ALJ found plaintiff able to work at all exertional levels in
occupations with a specific vocational preparation (SVP)
level of 1 or 2, performing tasks he can complete without
assistance. He can have occasional interaction with the
public and coworkers. With that assessment, the ALJ found
plaintiff able to perform his past relevant work as a cook
helper. The ALJ also made alternative findings at step five.
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 assistance of a vocational expert, the ALJ found
plaintiff capable of performing other jobs, such as work as a
laundry worker, janitor, or packager.
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 of the evidence, 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).
argues the ALJ erred by rejecting the opinions of seven
medical sources and his own testimony in the 2015 hearing. He
requests remand for an award of benefits or, in the
alternative, for further administrative proceedings. The
Commissioner argues the ALJ's decision has the support of
substantial evidence and should be affirmed.
testified at the 2015 hearing that his depression makes him
want to stay in bed, makes it difficult to remember
appointments, and makes him get overwhelmed at work and with
daily life. AR 64. He responds to being overwhelmed by using
drugs. AR 65. In a 2013 function report, plaintiff wrote that
his depression and anxiety make it hard to get out of bed and
he is always exhausted. AR 272. Drug use makes him
“spun out and or depressed.” AR 272.
may “reject [a claimant's] testimony only upon (1)
finding evidence of malingering, or (2) expressing clear and
convincing reasons for doing so.” Benton ex rel.
Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003).
Here, the ALJ found evidence of malingering based on two
records. AR 971-72. A March 2013 Personality Assessment
Inventory indicated that plaintiff “may not have
answered in a completely forthright manner.” AR 495.
Plaintiff argues that no test can determine motivation, and
malingering requires a deliberate attempt to deceive
according to Social Security internal rules. Dkt. 10 at 19
(citing POMS DI 22510.006(D)). The test showed that plaintiff
“consistently endorsed items that portray himself in an
especially negative or pathological manner.” AR 495.
Possible explanations were “confusion or careless
responding, ” a “cry for help, ” ...