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Brown v. Berryhill

United States District Court, D. Oregon, Eugene Division

February 21, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Ann Aiken United States District Judge

         Plaintiff Micah Jeffery Brown brings this action pursuant to the Social Security Act ("Act"), 42 U.S.C, § 405(g), to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiffs application for Supplemental Security Income ("SSI"). For the reasons set forth below, the Commissioner's decision is affirmed.


         Plaintiff initially applied for Disability Insurance Benefits ("DIB"), but he was found not disabled. In May 2013, plaintiff applied for SSI, alleging disability due to anxiety, depression, insomnia, ADHD, and bipolar disorder. His SSI application was denied initially and upon reconsideration. On April 15, 2015, plaintiff appeared at a hearing before an ALJ. At the hearing, plaintiff testified and was represented by an attorney. A vocational expert ("VE") also testified. The ALJ found plaintiff not disabled in a written decision issued May 28, 2015. After the Appeals Council denied review, plaintiff filed a complaint in this Court.

         Plaintiff is 32 years old. He completed eleventh grade, but has not earned a diploma or a GED. Plaintiff alleges disability beginning May 9, 2013.[1]Plaintiff has sporadically performed a series of short-term and/or part-time jobs in the food service and labor industry. For example, he helped with his father's cleaning business, cleaned floors at a grocery store, and was a dishwasher and cook at a restaurant. None of those jobs lasted long enough to produce income at the substantial gainful employment level. At the time of the hearing, plaintiff lived at his parents' house with his infant son. He cared for the baby and for his three- year-old stepson during the day.


         The district court must affirm the Commissioner's decision if it is based upon proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 (9th Cir. 2010). "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." Gutierrez v. Comm'r Soc. Sec, 740 F.3d 519, 522 (9th Cir. 2014) (internal quotation marks omitted). The court must weigh "both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). If the evidence is subject to more than one interpretation but the Commissioner's decision is rational, the Commissioner must be affirmed, because "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).


         The initial burden of proof rests upon plaintiff to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, plaintiff 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). At step one, the ALJ found plaintiff had not engaged in "substantial gainful activity" since the alleged disability onset date. 20 C.F.R. §§ 416.920(a)(4)(i), (b). At step two, the ALJ found plaintiff had the following severe impairments: ADHD, major depressive disorder, generalized anxiety disorder versus bipolar disorder, and polysubstance use in reported remission. 20 C.F.R. §§ 416.920(a)(4)(ii), (c). At step three, the ALJ determined plaintiffs impairments, whether considered singly or in combination, did not meet or equal "one of the listed impairments" that the Commissioner acknowledges are so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 416.920(a)(4)(iii), (d).

         The ALJ found plaintiff exhibited the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, but with the following non-exertional limitations: plaintiff could "understand, remember, and carry out simple, routine, repetitive tasks that involve no contact with the general public and no more than occasional contact with coworkers." Tr. 22; see also 20 C.F.R. § 416.920(e). At step four, the ALJ determined that, although plaintiff had past work experience, his record did not reflect earnings at the level of substantial gainful activity in the last 15 years. 20 C.F.R. §§ 416.920(a)(4)(iv), (f). Therefore, plaintiff had no past relevant work as defined by the regulations. At step five, relying on the opinion of the VE, the ALJ found plaintiff could perform the jobs of photocopy operator, vehicle cleaner, and labeler, and that such jobs exist in significant numbers in the national economy. 20 C.F.R. §§ 416.920(a)(4)(v), (g)(1). Accordingly, the ALJ found plaintiff not disabled and denied his application.


         Plaintiff contends that the ALJ improperly discredited (1) plaintiffs subjective symptom testimony, (2) the opinion of plaintiff s treating physician, Jon Sobotka, M.D., and (3) competent third-party statements of plaintiffs mother, Debra Brown. Plaintiff also argues that the ALJ erred in posing a hypothetical to the VE and assessed an RFC that failed to adequately account for plaintiffs limitations in concentration, persistence, and pace, resulting in an improper non-disability determination at step five.

         I. Plaintiffs Symptom Statements

         Plaintiff argues that the ALJ improperly rejected his statements regarding his disabling levels of anxiety and depression. When a claimant's medically documented impairments reasonably could be expected to produce some degree of the symptoms complained of, and the record contains no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so." Smolen v. Chafer, 80 F.3d 1273, 1281 (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, 12 F.3d 915, 918 (9th Cir. 1993). If the "ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). "An ALJ may consider a range of factors in assessing credibility, including . . . prior inconsistent statements concerning the symptoms . . . and other testimony by the claimant that appears less than candid." Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citing Smoten, 80 F.3d at 1284 and Orn v. Astrue, 495 F.3d 625, 636 (9th Cir. 2007)).

         Plaintiff testified that he has disabling levels of anxiety and depression. Specifically, plaintiff stated that when he is depressed, he has a hard time functioning and motivating himself. When he is not depressed, his anxiety tends to hold him back. He reported his anxiety in social and work settings hinders his ability to maintain long-term employment. He also described concentration problems that stop him from staying on task. Plaintiff testified that he suffered from a lot panic attacks in 2014. Although plaintiff reported more difficulties with panic and feeling overwhelmed in 2014, he described improvement in more recent years. At the time of the hearing, plaintiff also stated that side effects from his medications-such as lack of sleep, increased depression, and weight loss-are sometimes so severe that he has considered stopping use of all of his medications. As the ALJ summarized, plaintiff further described his symptoms as:

"[F]eeling terrified, 'possibly manic, ' exhausted, unable to cope emotionally, having nearly paralyzing depression, being suspicious of others/distrustful, and having low motivation and low energy. Due to these symptoms, he stated he has severe difficulty and exhaustion even making a telephone call, brushing his teeth, eating a balanced diet, exercising, grooming himself, and leaving the house."

Tr. 22-23. The ALJ provided three reasons for rejecting plaintiffs symptom statements: (1) plaintiffs allegations about symptom severity were inconsistent with the medical evidence; (2) plaintiffs desire to care for his children, rather than his impairments, prevented him from completing vocational training and sustaining ...

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