United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE.
Freddy Velasquez Soto brings this action for judicial review
of the Commissioner's decision denying his application
for supplemental security income (“SSI”). This
court has jurisdiction under 42 U.S.C. §§ 405(g)
January 7, 2013, Soto filed an application for SSI, alleging
disability as of August 23, 2001. After a hearing, the
administrative law judge (“ALJ”) determined Soto
was not disabled under the Social Security Act. Tr.
26-41. Soto argues the ALJ erred in weighing the
opinions of several “other medical sources” and
in find Soto's Intellectual Disability was not a
medically determinable impairment. Soto also argues new
evidence mandates a “sentence six” remand.
Because the Commissioner's decision is based on proper
legal standards and supported by substantial evidence, and
because Soto fails to establish any new evidence justifies
remanding this matter, the Commissioner's decision is
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.” 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.
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 the claimant satisfies his
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 must show 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).
45 years when he filed his application for benefits, spent
the vast majority of his life in prison. While he does not
have any physical limitations, he alleges severe mental
limitations. There is little question that Soto has some
issues interacting with others or being around large groups
of people. There was evidence in the record, pointed to by
the ALJ, that Soto was malingering. Ultimately, the ALJ
determined Soto had no physical limitations but was limited
to simple tasks and work related decisions, and was limited
to occasional interactions with coworkers and the general
public. Tr. 31. As noted, Soto argues new evidence, in the
form of a successful subsequent application for benefits,
requires remanding this matter. Soto also argues the ALJ
erred in finding his intellectual disability was not a
medically determinable impairment, and in giving certain
“other” opinions little weight. I address each
argument in turn.
Soto's Subsequent Award of Benefits
the Appeals Council denied Soto's request for review of
the ALJ's adverse decision, Soto filed another
application for benefits with a protective filing date of
September 1, 2016. The Commissioner granted that application.
Soto argues that remand is appropriate under 42 U.S.C. §
405(g) because the onset date of his successful application
“closely follows a denial of benefits[.]” Soto
Br. 8. Soto points to Luna v. Astrue, 623 F.3d 1032,
1035 (9th Cir. 2010) in support of his argument.
Luna is not analogous to the facts here. In
Luna, the claimant was found disabled one day after
the denial of her original application. Here, the ALJ
determined Soto was not disabled through March 26, 2015. Tr.
40-41. The Commissioner later found Soto disabled
as of September 1, 2016, nearly 18 months after the ALJ's
decision at issue here. While Soto's granted application
is new evidence, it is not material as it does not relate to
a time before, or even within one year of, the ALJ's
decision. “If new and material evidence is submitted,
the Appeals Council shall consider the additional evidence
only where it relates to the period on or before the date of
the administrative law judge hearing decision.” 20
C.F.R. § 416.1470(b). Because the new evidence is not
material, Soto's request for a remand under sentence six
of § 405(g) fails.
Soto's Intellectual Disability
argues the ALJ erred in finding at step 2 that his
intellectual disability was not a medically determinable
impairment. In support of this argument, Soto points to his
IQ tests and scores. The ALJ rejected those IQ tests because
the results did not indicate whether the results were deemed
valid. Tr. 29. The ALJ pointed to ample evidence in the
record of Soto malingering and determined the IQ results were
not an accurate reflection of Soto's intellectual
functioning. Tr. 29. Even assuming the ALJ erred at step 2,
any error is harmless as the ALJ included Soto's
limitations from his intellectual disability when forming
Soto's RFC, where he limited Soto to simple tasks.
Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
noted Soto's claimed mental limitations were not
supported by the record. The ALJ pointed to numerous
instances of malingering and benefits-seeking behavior. Tr.
32-33. Although not the only example in the record, the ALJ
pointed to one examining psychologist who opined Soto
“was either feigning symptoms to obtain medications or
using his auditory hallucinations to minimize responsibility
for his assaultive behaviors.” Tr. 33. That same
psychologist “noted that the claimant's malingering
also appeared to be for the secondary gain of SSI
benefits.” Tr. 33.
also referenced the report of a disability investigator who
interviewed Soto in 2013. Tr. 34. The report clashed with
Soto's alleged mental impairments. Despite alleging
mental impairments that would prevent him from performing
even simple tasks, Soto “appeared to enjoy describing
the various crimes he had been convicted of committing and
those that he had beaten. He did not have any difficulties in
hearing or tracking the conversation and he provided [the
investigator] with appropriate responses to all questions
directed to him and maintained proper eye contact.” Tr.
647. In fact, Soto's “recall was exceptional in
regards to the various crimes and dates that he had
perpetrated them. [SOTO] was also quite accurate about the
dates he had been incarcerated and the institutions he served
time in.” Tr. 647. The ALJ noted the report