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Todd C. v. Berryhill

United States District Court, D. Oregon

September 14, 2018

TODD C.[1], Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Brian Scott Wayson, Attorney for Plaintiff

          Billy J. Williams UNITED STATES ATTORNEY District of Oregon

          Renata Gowie ASSISTANT UNITED STATES ATTORNEY

          Thomas M. Elsberry, SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration Attorneys for Defendant.

          OPINION & ORDER

          Marco A. Hernandez, United States District Judge

         Plaintiff Todd C. brings this action seeking judicial review of the Commissioner's final decision to deny disability insurance benefits (DIB) and supplemental security income (SSI). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) (incorporated by 42 U.S.C. § 1383(c)(3)). I reverse the Commissioner's decision and remand for additional proceedings.

         PROCEDURAL BACKGROUND

         Plaintiff applied for SSI and DIB on June 13, 2013, alleging an onset date of June 1, 2002. Tr. 179-80 (DIB); 181-87 (SSI). His applications were denied initially and on reconsideration. Tr. 29-53, 112-19 (Initial); 54-80, 122-27 (Recon.). On October 13, 2015, Plaintiff appeared, with counsel, for a hearing before an Administrative Law Judge (ALJ). Tr. 2-28. On November 10, 2015, the ALJ found Plaintiff not disabled. Tr. 81-101. The Appeals Council denied review. Tr. 102-08.

         FACTUAL BACKGROUND

         Plaintiff alleges disability based on having bipolar disorder, depression, severe anxiety, long-term memory loss, high blood pressure, high cholesterol, and lethargy. Tr. 223. At the time of the hearing, he was forty-two years old. Tr. 179 (showing date of birth). He is a high school graduate and has past relevant work experience as a truck driver. Tr. 24, 224.

         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 met the insured requirements for his DIB claim through March 31, 2006, and had not engaged in substantial gainful activity since his alleged onset date. Tr. 86. Next, at step two, the ALJ determined that Plaintiff has severe impairments of anxiety disorder, bipolar disorder, depression, and substance abuse. Tr. 86-87. 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. 87-89.

         At step four, the ALJ concluded that Plaintiff has the RFC to perform a full range of work at all exertional levels but has several nonexertional limitations. Tr. 89. He can hear and understand simple oral instructions and communicate simple information. Id. He must avoid all exposure to unprotected heights and moving mechanical parts. Id. He can perform simple, routine, and repetitive tasks. Id. He can have occasional interaction with supervisors and only brief and superficial contact with coworkers. Id. He can have no contact with the public. Id.

         With this RFC, the ALJ determined that Plaintiff is unable to perform his past relevant work. Tr. 94. However, at step five, the ALJ determined that Plaintiff is able to perform jobs that exist in significant numbers in the economy such as janitor, cleaner 2, and laundry worker. Tr. 95. Thus, the ALJ determined that Plaintiff is not disabled. Tr. 95-96.

         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 argues that the ALJ made the following errors: (1) finding his subjective testimony not credible; (2) rejecting the opinion of a treating practitioner; (3) failing to find him disabled at step three; and (4) rejecting lay witness testimony.

         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 applied the correct two-step analysis. Tr. 89. The ALJ summarized Plaintiff's subjective symptom statements including that he has to be careful not to trigger manic episodes, he has high anxiety which makes it difficult for him to articulate things, he has high anxiety around authority figures, and his anxiety is triggered by new environments, new experiences, new people, and crowds. Id. The ALJ also noted Plaintiff's statements that he is introverted and has few friends and that his medications cause memory problems and weight gain. Id. The ALJ described features of his manic episodes including alcohol abuse, inability to sleep, and an inability to remember what has happened. Id.

         While acknowledging that Plaintiff's impairments could reasonably be expected to cause the alleged symptoms, the ALJ found that Plaintiff's statements concerning the intensity, persistence, and limiting effects of those symptoms were not credible. Tr. 89-90. First, the ALJ recited medical evidence showing that when Plaintiff abstains from alcohol and maintains his medication regimen, he is "quite functional" and that after his "last hospitalization" in March 2013, the record showed that his symptoms had generally been stable and had continued to be controlled with treatment. Tr. 90. Second, the ALJ found that Plaintiff inconsistently reported the extent of his marijuana and alcohol use which lessened the credibility of his allegations. Tr. 92. Third, the ALJ noted that he had a poor work history since 2000, implying that he does not desire to work, not that he is disabled from doing so. Id. Finally, the ALJ found that Plaintiff's daily activities were inconsistent with his complaints of disabling symptoms and limitations, including his alleged limitations in social functioning. Id.

         I conclude that the ALJ did not fairly interpret the record regarding Plaintiff's prior inconsistent statements as to his past substance abuse and further, that the alleged daily activities are not inconsistent with this testimony. Additionally, the ALJ did not acknowledge that Plaintiff actually stopped working in 2001, not 2000, and with an alleged onset date of June 2002, there is no basis for inferring that a lack of desire prevented him from working. Finally, while the medical record generally supports the ALJ's findings regarding Plaintiff's improvement since March/April 2013, inconsistency with the objective medical record alone is not a basis for rejecting a claimant's subjective testimony.

         A. Statements Regarding Substance Abuse

         1. Alcohol

         The ALJ cited to Plaintiff's May 2012 report that he had had no alcohol for three years, other than a few six-packs of beer. Tr. 92 (citing Tr. 324). Then, in April 2013, Plaintiff reported that he had consumed no alcohol since October 2008 but had relapsed six months ago. Id. (citing Tr. 341). The ALJ found these records to be inconsistent. But, by referring to a relapse which had occurred six months before April 2013, Plaintiff was indicating that the relapse occurred in October 2012 which is after the May 2012 report. Thus, there is no inconsistency between the April 2013 record and May 2012 report of having no alcohol for three years other than a few six packs. And, while Plaintiff said in May 2012 that he had not had alcohol for three years, meaning sometime in 2009, his report in April 2013 that he had not had alcohol since late in 2008 is not so remarkably inconsistent as to find him not ...


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