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Soto v. Berryhill

United States District Court, D. Oregon

October 27, 2017

FREDDY VELASQUEZ SOTO, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER

          MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE.

         Plaintiff 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) and 1383(c)(3).

         On 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.[1] 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 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.” 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 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).

         Soto, 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.

         I. Soto's Subsequent Award of Benefits

         After 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.[2] 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.

         II. Soto's Intellectual Disability

         Soto 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).

         The ALJ 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.

         The ALJ 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 ...


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