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Castro v. Berryhill

United States District Court, D. Oregon, Portland Division

July 10, 2017

NANCY BERRYHILL, Commissioner of Social Security, Defendant,


          JOHN V. ACOSTA United States Magistrate Judge

         Raimundo Castro ("plaintiff') seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying his applications for Title H Disability Insurance Benefits ("DIB") and Title XVI Supplemental Security Income ("SSI") under the Social Security Act ("Act").[1] All parties have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed, R. Civ. P. 73 and 28 U.S.C. § 636(c). Based on a careful review of the record, the Commissioner's decision is affirmed in part, reversed in part, and remanded for further administrative proceedings.

         Procedural Background

         On October 18, 2012, plaintiff applied for DIB, and on November 16, 2012, plaintiff applied for SSI. (Tr. 200-15.) In both applications plaintiff alleges disability as of August 1, 2012. (Tr. 200, 207.) The Commissioner denied his applications initially and upon reconsideration. (Tr. 74-87, 92-127.) On October 4, 2013, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and an administrative hearing was held on June 24, 2014. (Tr.39-65, 154-55.) After the hearing, the ALJ issued an unfavorable decision on September 15, 2014, finding plaintiff not disabled. (Tr. 19-32.) The Appeals Council denied plaintiffs subsequent request for review, making the ALJ's decision final. (Tr. 1-4.) This appeal followed. Plaintiff argues that the ALJ erred at step two by; (1) failing to provide a clear and convincing reason to reject his subjective symptom testimony; and (2) improperly evaluating the medical opinions of Dr. Drake Duane, Dr. Shannon Tromp, Dr. Aaron Bowen, non-examining state agency psychologists, and Mr. Thomas Kruzel.

         Factual Background

         Born on January 23, 1964, plaintiff was 48 years old on the alleged onset date of disability and 50 years old at the time of the hearing. (Tr. 44.) He completed his GED and has past work as a route delivery driver, a motor coach driver, an alarm installer and troubleshooter, and a mechanical repairer/worker. (Tr. 61-62, 254.) Plaintiff alleges disability due to depression, attention deficit disorder ("ADD"), and osteoarthritis. (Tr. 74, 81, 92, 110.)

         Standard of Review

         The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir, 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 3 89, 401 (1971) (citation and internal quotations omitted). The court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (citation omitted).

         The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected... to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five-step sequential process for determining whether a person is disabled, Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20C.F.R. §§404.1520, 416.920. First, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S, at 140; 20 C.F.R, §§ 404.1520(b), 416.920(b). If so, the claimant is not disabled.

         At step two, the Commissioner evaluates whether the claimant has a “medically severe impairment or combination of impairments." 7wcfc?rt, 140-41; 20 C.F.R. §§404.1520(c), 416.920(c). If the claimant does not have a medically determinable, severe impairment, he is not disabled.

         At step three, the Commissioner determines whether the claimant's impairments, either singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 140-41; 20 CF.R. §§ 404.1520(d), 416.920(d). If so, the claimant is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 CF.R. §§404.1520(g), 416.920(g). If the Commissioner meets this burden, the claimant is not disabled. 20 CF.R. §§ 404.1566, 416.966.

         The ALJ's Findings

         At step one of the five-step process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. (Tr. 21.) At step two, the ALJ determined that plaintiff had the following medical determinable impairments: "hypertension, hypercholesterolemia, diabetes, right shoulder tendinitis, obesity, speech fluency disorder-stutter, mood disorder and attention deficit disorder." (Id.) At the same step the ALJ found that plaintiff "does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a severe impairment or combination of impairments." (Id.) Based on this finding, the ALJ determined that plaintiff was not disabled within the meaning of the Act. (Tr. 29.) The ALJ did not proceed to step three.


         Plaintiff argues that the ALJ erred at step two by: (1) failing to provide a clear and convincing reason to reject his subjective symptom testimony, and (2) failing to reasonably evaluate the medical opinions in the record. (Pl's Opening Br. 12-26.)[2]

         I. Plaintiffs Symptom Testimony

         Plaintiff argues the ALJ failed to provide a clear and convincing reason to reject his symptom testimony. (Pl's Opening Br. 22-26, Pl's Reply Br. 2-3.)

         If "there is no evidence of malingering, 'the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.'" Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen v. Chater, 80 F.3d 1273, 1281, 1283-84 (9th Cir. 1996)). A general assertion that the claimant is not credible is insufficient; the ALJ must "state which.., testimony is not credible and what evidence suggests the complaints are not credible." Dodrill v. Shalala, 12F.3d915, 918(9thCir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.'' Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).

         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, 533 F.3d at 1040; Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9thCir. 2007); Light v. Social Sec. Admin., 119 F.3d 789, 792 (9thCir. 1997).

         The ALJ found Dr. Bowen's "diagnosis of malingering to be persuasive evidence of the claimant's lack of credibility rega rding his allegations." (Tr. 30.) Evidence of malingering is sufficient to support a negative credibility finding. See Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1040-41 (9th Cir. 2003) (an ALJ can reject plaintiff s testimony either through evidence of malingering or expressing clear and convincing reasons for doing so). Plaintiff argues the ALJ "did not accept this rinding of malingering, " and was still required to give a clear and convincing reason for discrediting his symptom testimony. (Pl's Reply Br. 2.) The court disagrees, finding the ALJ did accept Dr. Bowen's finding of malingering. However, even if the ALJ failed to accept Dr. Bowen's finding, this court finds no error because the ALJ provided numerous clear and convincing reasons for discrediting plaintiff s subjective symptom testimony.

         Here, the ALJ found plaintiff s statements concerning the' 'intensity, persistence and limiting effects of' plaintiff s symptoms "not entirely credible" because: (1) plaintiff gave inconsistent statements concerning his alleged impairments; (2) plaintiffs impairments were stable on medication; (3) there was a lack of medical evidence to support plaintiff s allegations; (4) plaintiffs activities of daily living were inconsistent with his alleged physical and mental symptoms; (5) plaintiff owed back taxes and had a lien placed on his checking account; (6) plaintiff left his job for reasons unrelated to his disability, and (7) plaintiff had an "unpersuasive appearance and demeanor" at the ALJ hearing. (Tr. 23-32.)

         A. Inconsistent Statements Concerning Alleged Impairments

         First, the ALJ discredited plaintiff s symptom testimony because she found he gave "inconsistent statements regarding his stutter, " noting that despite plaintiff s claims the stutter "does not limit him." (Tr. 23.) Plaintiffs inconsistent statements are a clear and convincing reason for rejecting his subjective symptom testimony. See Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (inconsistencies between a plaintiff s symptom testimony and the medical record can serve as a clear- and convincing reason to discredit a plaintiff s symptom testimony). The record supports the ALJ's findings, because some medical providers noted plaintiff s stutter caused difficulties with work, while others noted no stutter at all. (See Tr. 408, 445, 479, 486, 493-94, 514, 581, 599-600, 610-11, 637, 639, 646, 665, 672, 678, 684.) This inconsistency is a clear and convincing reason for discrediting plaintiffs symptom testimony.

         B. Impairments Stable on Medication

         Next, the ALJ discredited plaintiff's subjective symptom testimony because she found plaintiffs mental impairments were "stable on medications, " (Tr. 23.) The ALJ referenced progress notes from September 19, 2012 where Dr. Drake Duane wrote plaintiff s oral verbal fluency was improved. (Tr. 25.) "Impairments that can be controlled effectively with medication are not disabling." Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (citations omitted). Indeed, the medical record reflects plaintiff showed improvement in his speech dsyfluency while taking medication. (Tr. 474.) Although Dr, Duane did note on September 19, 2012, that plaintiff s ADD was only "partially repaired, " and medication was "not effective enough to improve fluency or his behavioral management, " he later found, on April 7, 2014, that plaintiff s verbal fluency had improved again with medication. (Tr. 474, 665.) Additionally, plaintiff testified at the June 24, 2014 hearing that he would not be able to function without his medication. (Tr. 50.) The court finds this evidence supports the ALJ's finding that plaintiff s mental impairments were controlled by medication, and that this is a second clear and convincing reason for rejecting plaintiffs subjective symptom testimony.

         C. Lack of ...

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