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Scott C. v. Saul

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

January 2, 2020

SCOTT C., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, 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 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.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff was born on XXXX, 1970.[1] He has a limited education and previously worked as a cook helper, storage laborer, and cosmetologist. (AR 977.)

         Plaintiff 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 965.)

         On 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.)

         Plaintiff 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.)

         On 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.

         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 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.

         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 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.

         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 assistance of a vocational expert, the ALJ found plaintiff capable of performing other jobs, such as work as a laundry worker, janitor, or packager.

         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 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).

         Plaintiff 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.

         Symptom Testimony

         Plaintiff 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.

         An ALJ 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, ” ...


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