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Kennedy v. Commissioner of Social Security

United States District Court, D. Oregon

June 6, 2018

MARK J. KENNEDY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Richard F. McGinty McGINTY & BELCHER, ATTORNEYS Attorney for Plaintiff.

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon Renata Gowie ASSISTANT UNITED STATES ATTORNEY.

          Sarah L. Martin SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration.

          OPINION & ORDER

          MARCO A. HERNANDEZ, UNITED STATES DISTRICT JUDGE

         Plaintiff Mark Kennedy brings this action seeking judicial review of the Commissioner's final decision to deny disabled child's insurance benefits. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). I reverse the Commissioner's decision and remand this case for an award of benefits.

         PROCEDURAL BACKGROUND

         Plaintiff applied for child's insurance benefits in November 2011, alleging an onset date of February 28, 1994. Tr. 234-37, 242-43. His application was denied initially and on reconsideration. Tr. 74-78, 99, 116-20 (Initial); Tr. 80-86, 125-29 (Recon.). On September 25, 2013, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 46-73. On November 6, 2013, the ALJ found Plaintiff not disabled. Tr. 87-104. On May 8, 2015, the Appeals Council remanded the case back to the ALJ. Tr. 105-09.

         On December 8, 2015, a different ALJ conducted a second hearing. Tr. 32-43. Plaintiff's counsel appeared at the hearing, but Plaintiff himself did not. Tr. 32-34; see also Tr. 16 (Mar. 2016 ALJ decision noting that Plaintiff waived his right to appear and offer new testimony, but that Plaintiff's representative appeared, new exhibits were entered into the record, and the ALJ would rely on Plaintiff's testimony from the earlier hearing). In a March 17, 2016 decision, the ALJ found Plaintiff not disabled. Tr. 13-31. The Appeals Council denied review. Tr. 1-4.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on having Asperger's Syndrome, Tourette's Syndrome, attention deficit disorder, and obsessive compulsive disorder. Tr. 260. At the time of the September 25, 2013 hearing, he was forty-one years old. Tr. 50. He is a college graduate and has no past relevant work experience. Tr. 52, 69.

         SEQUENTIAL DISABILITY EVALUATION

         A claimant is disabled if unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. §§ 423(d)(1)(A), 1382c(3)(a).

         Disability claims are evaluated according to a five-step procedure. See Valentine v. Comm'r, 574 F.3d 685, 689 (9th Cir. 2009) (in social security cases, agency uses five-step procedure to determine disability). The claimant bears the ultimate burden of proving disability. Id.

         In the first step, the Commissioner determines whether a claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520(b), 416.920(b). In step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(c). If not, the claimant is not disabled.

         In step three, the Commissioner determines whether plaintiff's impairments, 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 141; 20 C.F.R. §§ 404.1520(d), 416.920(d). If so, the claimant is conclusively presumed disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         In step four, the Commissioner determines whether the claimant, despite any impairment(s), has the residual functional capacity (RFC) to perform "past relevant work." 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant can perform past relevant work, the claimant is not disabled. If the claimant cannot perform past relevant work, the burden shifts to the Commissioner. In step five, the Commissioner must establish that the claimant can perform other work. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(e) & (f), 416.920(e) & (f). If the Commissioner meets his burden and proves that the claimant is able to perform other work which exists in the national economy, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.966.

         THE ALJ'S DECISION

         At step one, the ALJ determined that Plaintiff had not turned twenty-two years old before his alleged onset date and had not engaged in substantial gainful activity since his alleged onset date. Tr. 18. Next, at step two, the ALJ determined that before age twenty-two, Plaintiff had severe impairments of severe adjustment disorder consistent with Asperger's Syndrome, attention deficit disorder, Tourette's Syndrome, obsessive compulsive disorder, and adjustment disorder with severe anxiety and depression. Tr. 18-19. However, at step three, the ALJ found that Plaintiff's impairments did not meet or equal, either singly or in combination, a listed impairment. Tr. 19-20.

         At step four, the ALJ concluded that before age twenty-two, Plaintiff had the RFC to perform a full range of work at all exertional levels. Tr. 20. However, Plaintiff had the following non-exertional limitations: (1) he was limited to simple, routine tasks consistent with unskilled work and a reasoning level of two as defined by the Dictionary of Occupational Titles (DOT); (2) he was limited to occasional interaction with supervisors and coworkers but no interaction with the public, to include, especially, children; (3) he cannot be exposed to cleaning fluid solvents, dust, smoke, fumes, odors, and loud noises; (4) he would be off task nine percent of an eight-hour day in addition to normal breaks; (5) he would be absent one day per month; and (6) he was limited to goal-oriented work and was unable to perform at a production rate pace. Tr. 20-24. Because Plaintiff has no past relevant work, the ALJ moved to step five. With this RFC, the ALJ determined that Plaintiff was able to perform jobs that exist in significant numbers in the economy such as assembler and garment sorter. Tr. 24-25. Thus, the ALJ determined that Plaintiff is not disabled. Tr. 26.

         STANDARD OF REVIEW

         A court may set aside the Commissioner's denial of benefits only when the Commissioner's findings are based on legal error or are not supported by substantial evidence in the record as a whole. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). "Substantial evidence means 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." Id. (internal quotation marks omitted). The court considers the record as a whole, including both the evidence that supports and detracts from the Commissioner's decision. Id.; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). "Where the evidence is susceptible to more than one rational interpretation, the ALJ's decision must be affirmed." Vasquez, 572 F.3d at 591 (internal quotation marks and brackets omitted); see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) ("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") (internal quotation marks omitted).

         DISCUSSION

         Plaintiff asserts that the ALJ made the following errors: (1) rejecting Plaintiff's subjective testimony as not credible; (2) creating ambiguity about which of Plaintiff's impairments are severe at step two; (3) improperly rejecting the opinions of treating practitioners; (4) failing to find that Plaintiff had a listed impairment at step three; (5) improperly rejecting lay witness testimony; and (6) failing to address a conflict between the DOT and the jobs identified by the vocational expert.

         I. Plaintiff's Credibility

         The ALJ is responsible for determining credibility. Vasquez, 572 F.3d at 591. Once a claimant shows an underlying impairment and a causal relationship between the impairment and some level of symptoms, clear and convincing reasons are needed to reject a claimant's testimony if there is no evidence of malingering. Carmickle v. Comm'r, 533 F.3d 1155, 1160 (9th Cir. 2008) (absent affirmative evidence that the plaintiff is malingering, "where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which he complains, an adverse credibility finding must be based on 'clear and convincing reasons'"); see also Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (ALJ engages in two-step analysis to determine credibility: First, the ALJ determines whether there is "objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged"; and second, if the claimant has presented such evidence, and there is no evidence of malingering, then the ALJ must give "specific, clear and convincing reasons in order to reject the claimant's testimony about the severity of the symptoms.") (internal quotation marks omitted).

         When determining the credibility of a plaintiff's complaints of pain or other limitations, the ALJ may properly consider several factors, including the plaintiff's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). The ALJ may also consider the ability to perform household chores, the lack of any side effects from prescribed medications, and the unexplained absence of treatment for excessive pain. Id.; see also Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) ("The ALJ may consider many factors in weighing a claimant's credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities.") (internal quotation marks omitted).

         As the Ninth Circuit explained in Molina;

In evaluating the claimant's testimony, the ALJ may use ordinary techniques of credibility evaluation. For instance, the ALJ may consider inconsistencies either in the claimant's testimony or between the testimony and the claimant's conduct, unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, and whether the claimant engages in daily activities inconsistent with the alleged symptoms[.] While a claimant need not vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant's testimony when the claimant reports participation in everyday activities indicating capacities that are transferable to a work setting[.] Even where those activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.

Molina, 674 F.3d at 1112-13 (citations and internal quotation marks omitted).

         The ALJ cited the appropriate credibility analysis. Tr. 23-24. The ALJ then determined that although Plaintiff has mental health impairments affecting his level of functioning, there was no objective evidence from the relevant time period consistent with his allegations. Tr. 23; see also Tr. 24 (finding that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms" but that Plaintiff's "statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision").

         The ALJ found that Plaintiff's subjective symptom allegations were inconsistent with "the intensity, persistence and functionally limiting effects of the symptoms demonstrated in the medical record of evidence" and with Plaintiff's activities of daily living. Tr. 24. Defendant characterizes the ALJ's first reason as an inconsistency with the "objective medical evidence." Def.'s Brief 13, ECF 16. Lack of support in the objective medical record is one reason an ALJ may put forth to support a negative credibility determination. 20 C.F.R. § 404.1529(c). It may not be the sole reason, however. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) ("While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects."). Here, however, as indicated below, the record lacks objective evidence in the form of diagnostic testing or mental status evaluations. And, the ALJ's statement does not refer to objective medical evidence but rather to the symptoms described in the medical record of evidence. This suggests that the ALJ referred not to objective medical testing but to subjective symptoms reported by Plaintiff, or perhaps a family member, to a practitioner who recorded that report in a medical record.

         Regardless, however, of whether the intended reference is to an inconsistency with the objective medical evidence or with a reported subjective symptom in a medical record, the ALJ failed to provide sufficient specificity to meet the required standard. "[G]eneral findings are insufficient." Treichler v. Comm'r, 775 F.3d 1090, 1103 (9th Cir. 2014) (internal quotation marks omitted). The ALJ is required to "explain what evidence undermines the testimony." Id. (internal quotation marks omitted); see also Scott v. Colvin, No. 3:13-cv-00502-HZ, 2014 WL 1096200, at *7 (D. Or. Mar. 18, 2014) (in regard to lay witness testimony, while the ALJ "may reject such testimony based on lack of support by the objective medical record, there still must be sufficient discussion of that issue"; noting that the ALJ's finding that lay testimony was inconsistent with "the bulk of the medical evidence of record" was insufficient to allow meaningful review). Here, the ALJ failed to identify what particular "symptoms demonstrated in the medical record of evidence" he refers to. Thus, I do not consider this reason as a valid basis upon which to reject Plaintiff's testimony.

         As to Plaintiff's activities of daily living, Plaintiff testified that during the relevant time period he was a student at Oregon State University (OSU). Tr. 51-58. He lived with his parents who drove him to and from school. Tr. 51. He took four classes his first quarter but determined that was too many. Tr. 51-52. He then took no more than two classes at a time. Id. He attended for five or six years, obtaining a bachelor's degree in mathematical science in approximately 1995 or 1996. Tr. 52-53. He graduated with a 3.0 to 3.3 grade point average. Tr. 54. He attended classes each day and believed he took all required tests. Tr. 53. He had obsessive compulsive disorder (OCD) at the time. Id. When asked if the OCD interfered with his ability to go to college, Plaintiff answered by stating that he was worried about gum under the desks. Id. That concern made him look under the classroom seats before sitting in one of them to make sure there was no gum. Tr. 53-54. If he found gum, he tried to avoid sitting in that seat. Id. Once a seat was checked, however, he would sit down. Id. He always found a seat that was okay. Id. He never missed any classes because he could not sit down in the seat. Id. Plaintiff also needed a note taker as a result of his attention deficit disorder which interfered with his ability to pay attention. Tr. 54. He also had accommodations of being allowed to take open-book examinations and extra time to take them. Tr. 55. On follow-up questioning by counsel during the hearing, Plaintiff reiterated that the main problem from his OCD during the relevant time period was mostly being worried about gum under the desk and flies. Tr. 56. He was also allergic to cigarette smoke. Id. He is afraid of birds. Tr. 56-57.

         The ALJ described Plaintiff's allegations as "his OCD prevented him from being around people and touching objects where people have been[.]" Tr. 24. He then rejected Plaintiff's testimony as "not fully credible based on his ability to attend college." Id. The ALJ explained that while Plaintiff's college experience was more limited than his peers, there "is no objective evidence showing that he would have been unable to perform a simple, repetitive, and routine job with few demands. ...


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