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Paul A. v. Berryhill

United States District Court, D. Oregon, Eugene Division

January 14, 2019

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

          OPINION AND ORDER

          MICHAEL J. MCSHANE UNITED STATES DISTRICT JUDGE.

         Plaintiff Paul A. brings this action for judicial review of the Commissioner of Social Security's decision denying his applications for Supplemental Security Income and Disability Insurance Benefits. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). Plaintiff filed his applications for Supplemental Security Income and Disability Insurance Benefits on August 19, 2013. In both applications, Plaintiff alleged disability beginning on October 1, 2007. After a hearing, an Administrative Law Judge determined that Plaintiff was not disabled under the Social Security Act. Plaintiff now contends that the ALJ erred in (1) rejecting portions of his subjective symptom testimony, (2) discounting portions of the medical opinion testimony of examining psychologist Cheryl Brischetto, and (3) discounting portions of the lay opinion testimony of social worker Heather Germundson and employment support specialist Carolyn Frank. Because the Commissioner of Social Security's decision is based on proper legal standards and supported by substantial evidence, it is AFFIRMED.

         STANDARD OF REVIEW

         A reviewing court shall affirm the decision of the Commissioner of Social Security (“Commissioner”) if her decision is based upon proper legal standards and the legal findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Batson v. Comm'r for Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “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.'” Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 2012) (quoting Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997)). To determine whether substantial evidence exists, the district court must review the administrative record as a whole, weighing both the evidence that supports and detracts from the decision of the Administrative Law Judge (“ALJ”). Davis v. Heckler, 868 F.2d 323, 326 (9th Cir. 1989).

         DISCUSSION

         The Social Security Administration utilizes a five-step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If the claimant satisfies her burden with respect to the first four steps, the burden then shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's Residual Functional Capacity (“RFC”), age, education, and work experience. Id.

         In the present case, the ALJ found that Plaintiff was not disabled. He first determined that Plaintiff remained insured for Disability Insurance Benefits (“DIB”) until December 31, 2009, but summarily denied Plaintiff's DIB application because there was “insufficient evidence to assess the claimant's functioning prior to the date last insured.” Tr. 17.[2] Next, at step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since October 1, 2007, the alleged onset date of disability. Tr. 13. At step two, the ALJ determined that Plaintiff had the following severe impairments: bipolar disorder; unspecified neurodevelopmental disorder; and social anxiety disorder. Tr. 13. At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 14.

         Before moving to step four, the ALJ found that Plaintiff had the RFC to perform a full range of work at all exertional levels, but with certain nonexertional limitations. Tr. 16. Specifically, the ALJ found that Plaintiff was limited to superficial public and coworker contact, unskilled work, and no more than occasional supervisory contact. Tr. 16. At step four, the ALJ determined that Plaintiff had no past relevant work. Tr. 22. Nevertheless, at step five, the ALJ found that Plaintiff could perform several jobs existing in substantial numbers in the national economy. Tr. 23. In so finding, he relied on the testimony of a vocational expert and considered Plaintiff's age, education, work experience, and RFC. Tr. 23. Finally, having identified jobs existing in substantial numbers in the national economy which Plaintiff could perform, the ALJ concluded that Plaintiff was not disabled and therefore did not qualify for benefits. Tr. 23.

         Plaintiff challenges the ALJ's non-disability determination on three grounds. First, he argues that the ALJ failed to provide clear and convincing reasons supported by substantial evidence for rejecting his symptom testimony. Pl.'s Br. 4-8. Second, he argues that the ALJ improperly discounted portions of the medical opinion testimony of examining psychologist Cheryl Brischetto. Pl.'s Br. 8-11. Finally, Plaintiff argues that the ALJ improperly discounted portions of the lay opinion testimony of social worker Heather Germundson and employment support specialist Carolyn Frank. Pl.'s Br. 11-15. The Court addresses each objection in turn.

         I. Subjective Symptom Testimony.

         Plaintiff first argues that the ALJ failed to provide clear and convincing reasons for discounting his symptom testimony. Plaintiff testified that his mental impairments prevent him from interacting with others, tr. 53, 234-40, give rise to manic episodes during which he has “no control” over his emotions, tr. 234-40, and result in periods of depression characterized by lack of concentration, motivation, and recall, tr. 49, 53, 234-40. He further testified that the frequency and intensity of his manic episodes and depressive periods are positively correlated with increased work demands. Tr. 48. The ALJ accepted that Plaintiff's impairments could “reasonably be expected to cause some of the alleged symptoms, ” but concluded that his statements “concerning the intensity, persistence[, ] and limiting effects of these symptoms” were not supported by the record. Tr. 17. In particular, he reasoned that Plaintiff's activities of daily living, medical records, and treatment history were inconsistent with the alleged frequency and intensity of his manic and depressive symptoms, as well as at odds with the alleged intensity of his social anxiety. Tr. 18-19.

         An ALJ may only reject testimony regarding the severity of a claimant's symptoms if she offers “clear and convincing reasons” supported by “substantial evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). The ALJ, however, is not “required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation omitted). In assessing credibility, the ALJ “may consider a range of factors.” Ghanim v. Colvin, 763 F.3d 11554, 1163 (9th Cir. 2014). These factors include “ordinary techniques of credibility evaluation, ” as well as a plaintiff's daily activities, objective medical evidence, treatment history, and inconsistencies in testimony. Id. An ALJ may also consider the effectiveness of a course of treatment and any failure to seek further treatment. Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996); Molina, 674 F.3d at 1113.

         Here, the ALJ offered clear and convincing reasons supported by substantial evidence for rejecting Plaintiff's symptom testimony.

         First, the ALJ rejected Plaintiff's claims of debilitating mania, depression, and anxiety based on his activities of daily living. Tr. 19-21. An ALJ may properly reject symptom testimony if a plaintiff's daily activities contradict that testimony or indicate skills and capabilities which are transferable to a work setting. Ghanim, 763 F.3d at1165 (citations omitted). The ALJ noted that Plaintiff's “ongoing college activity, ” 20-hour-per-week “job as a sales associate” at Office Depot, and ability to juggle school work, counseling appointments, job applications, and job interviews was “inconsistent with a disabling mental condition” and indicative of transferable social skills. Tr. 19. He reasoned that, contrary to Plaintiff's alleged inability to interact with others, Plaintiff's work as a sales associate required “some interaction with customers.” Tr. 19. He also reasoned that Plaintiff's ability to manage work and school commitments totaling 35 hours per week was inconsistent with Plaintiff's claim that full-time work would trigger or exacerbate his manic-depressive episodes. Tr. 19; see also tr. 20-21. The fact that Plaintiff consistently received academic and vocational support, while ...


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