United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken United States District Judge
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
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
is 32 years old. He completed eleventh grade, but has not
earned a diploma or a GED. Plaintiff alleges disability
beginning May 9, 2013.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.
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).
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).
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. §§
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.
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.
Plaintiffs Symptom Statements
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)).
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 ...