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Magee v. Berryhill

United States District Court, D. Oregon

January 19, 2017

Sean Magee, Plaintiff,
v.
Nancy Berryhill, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER

          Michael McShane United States District Judge

         Plaintiff Sean Magee brings this action for judicial review of the Commissioner's decision denying his application for disability insurance benefits (SSDI). This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3).

         Magee alleges disability due to a number of conditions including: affective spectrum disorder, dysthymic disorder, anxiety disorder, personality disorder, social phobia, ADHD, obesity, irritable bowel syndrome (IBS), somatoform disorder, and sleep apnea. After a hearing, the administrative law judge (ALJ) concluded Magee could perform the jobs of inventory clerk, forklift driver, and hand packager. TR 28.[1] Magee argues the ALJ erred in: 1) failing to explain his adverse credibility finding; 2) rejecting or ignoring medical opinions regarding absenteeism or tardiness; 3) distinguishing between telephonic and in-person interaction with the public; and 4) violating Mr. Magee's due process right to a full and fair hearing. Because the Commissioner's decision is based on proper legal standards and supported by substantial evidence, the Commissioner's decision is AFFIRMED.

         STANDARD OF REVIEW

         The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, we review the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989). “If the evidence can reasonably support either affirming or reversing, ‘the reviewing court may not substitute its judgment' for that of the Commissioner, ” and therefore must affirm. Gutierrez v. Comm'r of Soc. Sec. Admin., 740 F.3d 519, 523 (9th Cir. 2014) (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)).

         DISCUSSION

         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520 & 416.920 (2012). The initial burden of proof rests upon the claimant to meet the first four steps. If claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (RFC), age, education, and work experience. Id. If the Commissioner fails to meet this burden, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).

         Claimant alleges disability as of March 31, 2010, the date on which his last steady work ended. Claimant alleges that his symptoms, particularly anxiety, date back to his childhood. TR 205. The ALJ found that claimant suffers from the following severe impairments: affective disorder, anxiety disorder, personality disorder, irritable bowel syndrome (IBS), obesity, and somatoform disorder. TR 18. However, the ALJ determined that claimant has the RFC to perform a significant number of jobs existing in the national economy, including claimant's past relevant work. TR 20. Accordingly, the ALJ found plaintiff did not qualify as disabled under the Social Security Act. TR 20.

         1. The ALJ's Adverse Credibility Determination

         Plaintiff argues that ALJ erred in failing to explain his adverse credibility findings. The ALJ in this case concluded that “claimant's medically determinable impairments could reasonably be expected to cause alleged symptoms, ” but found claimant's “statements concerning the intensity, persistence, and limiting effects of these symptoms” to be not entirely credible. TR 21.

         In evaluating the intensity and persistence of symptoms, the ALJ must take into consideration all available evidence, both medical evidence and other evidence, about how symptoms affect a claimant. 20 C.F.R. §404.1529(c). The Cotton test places a burden on the claimant to show: 1) objective medical evidence of impairment and; 2) that the impairment, or combination of impairments, could reasonably produce some degree of the reported symptoms. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Once a claimant meets the Cotton test, and there is not affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of their symptoms only by providing clear and convincing reasons supported by specific evidence in the record. Id. at 1283-84; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Examples of clear and convincing reasons include conflicting medical evidence, effective medical treatment, medical noncompliance, inconsistencies either in the claimant's testimony or between his testimony and his conduct, daily activities inconsistent with the alleged symptoms, a sparse work history, testimony that is vague or less than candid, and testimony from physicians and third parties about the nature, severity, and effect of the symptoms complained of. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

         The ALJ gave specific, clear and convincing reasons for discounting claimant's testimony regarding the intensity and persistence of claimant's symptoms. Claimant has undergone treatment for symptoms of anxiety, sleep apnea, depression, and IBS, among other ailments. Despite claimant's subjective complaints, medical reports show that he has stated various levels of improvement for most or all of these ailments throughout his years of treatment. The ALJ devotes a substantial portion of his decision explaining how specific medical records conflict with claimant's testimony regarding the intensity and persistence of his symptoms.

         While counseling notes primarily report claimant's subjective complaints, the ALJ also considered claimant's medical management and treatment notes showing claimant benefits from medication, objectively appears well-groomed, and does not exhibit behavior that would prevent him from full-time work. TR 24. The ALJ discusses medical records describing the use of a CPAP to successfully treat claimant's sleep apnea. TR 21. The ALJ also discusses the positive results that claimant experienced from therapy sessions regarding symptoms of anxiety and depression. TR 23-24.

         The claimant's psychological examinations also contradict his testimony at the hearing and suggest claimant is preoccupied with his medical conditions. A neuropsychological examination by Dr. Walker indicates that claimant has a “significant preoccupation about his health and somatic functioning.” Standing in stark contrast to claimant's subjective reports of cognitive impairments, Dr. Walker's report concluded that claimant's verbal intellect, overall working memory, executive functioning, and immediate recall were all found to be in the High-Average range. TR 22-23. TR 23. Similarly, Dr. Pollack's June 2010 evaluation states that claimant “interprets” his academic and health concerns as being “evidence of psychiatric conditions, such as mood or anxiety disorder, attention deficit disorder, and dyslexia.” TR 21. Dr. Pollack, however, opined that claimant's primary issue was “a personality disorder with both Schizoid and avoidant features.” TR 21.

         There is abundant evidence in the record that therapy and medication were improving claimant's symptoms of anxiety and depression. TR 661 (on 3/28/13 claimant indicates to Onishi that depression is improving on Scopalamine); TR 598 (on 1/9/14 claimant indicates that he started with a new therapist and was having positive results including better mood and accomplishment of daily activities, though anxiety was still a problem); TR 524-25 (“Throughout the sessions the client reported that he had a decrease in his anxiety symptoms as well as a decrease in depression symptoms, ” though he “continues to struggle” with those symptoms). This Court recognizes that, as noted by Dr. Pollack, there is no “magic bullet” that will cure a medical condition like anxiety disorder or depression, but claimant received medical treatment that provided moderate relief from his symptoms. Taken as a whole, the medical records provide strong evidence that claimant is not completely credible regarding his representations as to the intensity, persistence, and limiting effects of his medical conditions.

         Finally, the claimant's daily living activities as described in the ALJ's opinion demonstrate that claimant can manage functions not consistent with his complaints of intensity. Specifically, claimant participates in social events such as a book club, going out to dinner, going out to movies, shopping, and using public transportation in addition to household chores such as vacuuming, doing laundry and dishes, and cleaning. TR 19.

         There is substantial evidence on the record to support the ALJ's adverse credibility determination.

         2. Rejecting or Ignoring Medical Opinions Regarding Absenteeism or Tardiness

         Claimant argues that the ALJ erred in rejecting the opinions of various medical service providers stating that Mr. Magee would frequently be absent or tardy due to his medical conditions. The Court will address these issues separately.

         A. Dr. Onishi's Opinion and Absenteeism

         Where there exists conflicting medical evidence, the ALJ is charged with determining credibility and resolving any conflicts. Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012). When a treating physician's opinion is contradicted by another medical opinion, the ALJ may reject the opinion of a treating physician only by providing “specific and legitimate reasons supported by substantial evidence in the record.” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Specific and legitimate reasons for rejecting an opinion include its reliance on a ...


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