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Shawney M. v. Berryhill

United States District Court, D. Oregon

October 12, 2018

SHAWNEY M., [1] Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security, Defendant.

          ORDER

          JOLIE A. RUSSO UNITED STATES MAGISTRATE JUDGE

         Plaintiff brings this proceeding to obtain judicial review of the Commissioner's final decision denying plaintiff's application for supplemental security income benefits (SSI).

         Plaintiff asserts disability beginning September 10, 2005 due to bipolar disorder with psychosis. Tr. 157, 171. Plaintiff was 14 years old on her alleged onset date. Tr. 157.

         After a hearing held on October 19, 2015, an administrative law judge (ALJ) determined plaintiff was not disabled. Plaintiff asserts the ALJ erred by: (1) improperly discrediting her testimony; (2) improperly rejecting the opinion consulting psychological examiner Dr. Scott Alvord; and (3) improperly discrediting her great-grandmother's third-party statement.

         A. Plaintiff's Credibility

         In her application for SSI, plaintiff asserted her mental state is such that she is unable to work because she "can't sit still," her "attention span is that of a child," and she "can't remember things." Tr. 180. Plaintiff further asserted she never had a job and does not "even have the concept of being employed." Id.

         Plaintiff has a sparse medical history, but records indicate a suicide attempt in January 2010 following a breakup with her then boyfriend. Tr. 588.[2] Plaintiff suffered a manic episode with psychosis in March 2013. Tr. 339. She had not been taking her prescribed medications for several years prior to the episode. Id. At the hearing plaintiff testified the medication, Depakote, "makes me to where I don't go into psychosis and it stabilizes my moods." Tr. 53. Plaintiff further testified that when she stops taking Depakote her symptoms quickly worsen. Tr. 54.

         Nonetheless, plaintiff stated she is still unable to work when taking Depakote because she gets discouraged and suffers from paranoia. Tr. 55. Plaintiff testified she could "not take on too much work so that it wouldn't become stressful." Tr. 58. Plaintiff stated she unable to handle even slow paced jobs full-time because there are days she doesn't "feel like doing anything at all." Tr. 61. Plaintiff also relates that she has panic attacks once a month that are relieved by smoking marijuana. Tr. 65-66.

         The ALJ found plaintiff not credible concerning the limiting effects of her disorder. Tr. 23. The ALJ first noted there is no basis for plaintiff's alleged onset date of September 2005 because there are no medical records even remotely close to this date. Tr. 23. While the medical records are indeed sparse with little in the way of documented history of significant medical problems, the medical record does document two suicide attempts in November 2005[3] and January 2010. Tr. 588-89.

         The ALJ also noted plaintiff did not seek mental health treatment until March 2013. However, plaintiff was a minor for much of the period of alleged disability and, as noted, it is unclear what medical records may exist and to what extent plaintiff controlled her medical treatment. In addition, plaintiff alluded to an inability to afford treatment until recently. Tr. 54 (times when unable to afford medication); 55 ("On Oregon Health now ... so no reason not to take Depakote"). Because the record is unclear, it cannot be determined if the ALJ appropriately made an adverse credibility determination based on failure to seek medical treatment. See Orn v. Astrue, 495 F.3d 625, 6389th Cir. 2007) (A failure to seek treatment may be the basis for an adverse credibility finding unless there is good reason for the failure such as lack of funds.).

         The ALJ next notes that despite plaintiff's alleged inability to work, plaintiff expressed an interest in working, applied for full-time work, attended interviews, and performed some "under-the-table work." Tr. 23. Plaintiff did express interest in work. E.g., Tr. 309 (expressed interest in starting to work). Plaintiff also applied for work and attended interviews. E.g., Tr. 358 (applications and interviews at Dairy Queen and Subway). Plaintiff also engaged in sporadic under-the-table work activity. Tr. 23, 52, 555. However, this does not discredit plaintiff's alleged inability to maintain work due to stress. The ALJ also indicates that plaintiff may actually lack motivation to work or is unable to obtain a job due to inexperience and a criminal history rather than disability. Tr. 23-24. The ALJ does cite record support for plaintiff's criminal history. Tr. 300 (incarcerated off and on between the ages of 15-17 for assault and drug related offenses); Tr 318 (charges of disorderly conduct at age 22). However, the ALJ does not cite record support for employment rejection due to inexperience or due to a criminal record. Moreover, the record indicates criminal mischief is a concern relating to plaintiff's bipolar condition. Tr. 339.

         The ALJ also noted plaintiff's lack of mental health counseling and the effectiveness of her medication in stabilizing her symptoms. Tr. 24. While the record does indicate medication effectively prevented severe psychotic episodes and stabilized her mood, plaintiff testified that she still suffers from paranoia, is unable to handle the stress of "too much work," and suffers from panic attacks. Tr. 55, 58, 65. The record is unclear as to plaintiff's lack of counseling as plaintiff stated, "I've had counseling all my life so it's basically you start to hear the same things over and over again." Tr. 65. The record is ambiguous as to whether plaintiff's medication controls her bipolar condition sufficiently to enable her to work.[4] There is also ambiguity as to whether plaintiff is unable to work due to her disorder, or her lack of motivation, or other factors not related to her disorder. Therefore, it cannot be determined if the ALJ's findings are supported by substantial evidence.

         The ALJ next notes that despite allegations of disability, plaintiff obtained her GED, attended community college, and had the stamina to play video games. Tr. 25. However, it is unclear how obtaining a GED or playing video games translates to an ability to work or otherwise discredits plaintiff's asserted inability to work full-time. In addition, while the record indicates plaintiff "passed some of her first exams" of cosmetology school, she stopped going because she was "too overwhelmed." Tr. 418, 67.[5] Again, the ALJ's findings are not supported by substantial evidence based on the current record. Accordingly, a remand is necessary to address the ambiguity concerning plaintiff's credibility.

         B.Dr. Scott ...


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