Aubert v. Colvin

Filing 24

ORDER ADOPTING 20 FINDINGS AND RECOMMENDATIONS, denying 13 Motion for Summary Judgment. Signed by Judge Donald W. Molloy on 12/3/2014. (NOS, )

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

DEC 03 2014
Clerk, u.s. District Court
District Of Montana
Missoula

CV 13-120-M-DWM-JCL

BILLY W. AUBERT,
Plaintiff,

ORDER

vs.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

INTRODUCTION

Magistrate Judge Jeremiah C. Lynch issued Findings and Recommendations
on October 14, 2014, in which he recommended the Court deny summary
judgment for Plaintiff Billy W. Aubert ("Aubert") and grant summary judgment
for Defendant Carolyn W. Colvin, Commissioner of Social Security (the
"Commissioner"). (Doc. 20.) The Court adopts Judge Lynch's Findings and
Recommendations in fulL
STATEMENT OF FACTS

Aubert applied for disability insurance benefits and supplemental security
income under Titles II and XIV of the Social Security Act ("the Act") on June 30,

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2011, alleging disability since March 15, 2010, due to stroke, epilepsy,
schizophrenia, bipolar disorder, manic depression, and anxiety. (Tr. at 17,34.)
The claims were denied initially and on reconsideration. (Tr. at 17.) Aubert was
granted an administrative hearing, which took place on May 15, 2014. (Id.) After
the hearing, the administrative law judge ("ALJ") issued a decision that Aubert
was not disabled within the meaning of the Act. (Tr. at 33.)
The Appeals Council denied Aubert's request for review, making the ALJ's
decision final for purposes ofjudicial review. (Tr. at 6.) Aubert filed a complaint
with this Court, appealing the ALJ's decision, and the case was referred to Judge
Lynch. (Doc. 1.) Aubert moved for summary judgment on June 4, 2014, claiming
that the ALJ's decision should be reversed and remanded because the ALJ erred in
five points of his decision. (Docs. 13, 15.) The Commissioner filed a cross
motion for summary judgment on August 6, 2014, to affirm the ALJ's decision.
(Doc. 18.) Judge Lynch issued his Findings and Recommendations on October 14,
2014, recommending the Court deny Aubert's motion for summary judgment and
grant the Commissioner's motion because the ALJ's decision applied the correct
legal standard and was supported by substantial evidence. (Doc. 20.)
Aubert objected to the Findings and Recommendations on October 28,
2014, asserting two points of error. (Doc. 21.) The Commissioner responded on
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November 11,2014, in support of Judge Lynch's Findings and Recommendations.
(Doc. 23.)
STANDARD

On dispositive motions, the parties are entitled to de novo review of the
specified findings or recommendations to which they object. 28 U.S.C. §
636(b)(I); McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981). Under a de novo review, a district court will uphold
the Social Security Administration's disability determination unless it is based on
legal error, or is not supported by substantial evidence. Ryan v. Comm'r ofSoc.
Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). "This is a highly deferential standard

of review." Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir.
2009). Substantial evidence means "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Ryan, 528 F.3d at 1198. It is
"more than a mere scintilla but less than a preponderance." Id.
Where there are no objections to findings or recommendations, the court is
to give the level of consideration it deems appropriate. Thomas v. Arn, 474 U.S.
140, 150 (1985) ("It does not appear that Congress intended to require district
court review of a magistrate's factual or legal conclusions under a de novo or any
other standard, when neither party objects to those findings"). This Court reviews
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findings and recommendations under a clear error standard when neither party
objects. A finding or recommendation will be upheld under this standard unless
the Court is left with "a definite and firm conviction that a mistake has been
committed." Concrete Pipe & Prods. ofCal., Inc. v. Constr. Laborers Pens. Trust

for S. Cal., 508 U.S. 602, 622 (1993).
ANALYSIS

The ALJ uses a five-step sequential evaluation process to determine whether
a claimant is disabled within the meaning of the Act. 20 C.F.R. § 404.1520. At
step one, the ALJ considers whether the claimant is engaged in "substantial
gainful activity." 20 C.F.R. § 404.1520(a)(4)(I). If the ALJ finds that the claimant
is not engaged in substantial gainful activity, the ALJ determines at step two
whether the claimant has an impairment, or combination of impairments that
qualify as severe under the regUlations. 20 C.F.R. § 404. 1520(a)(4)(ii). If the
claimant has one or more severe impairments, the ALJ moves on to step three,
where the ALJ considers if those impairments meet or equal one of the specific
impairments listed in the regulation. 20 C.F.R. § 1520(a)(4)(iii). If the claimant
meets or equals one of the specific listed impairments, then the claimant is
considered disabled. Id. If the claimant does not meet or equal one of these
impairments, the ALJ determines at step four whether the claimant has the residual
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functional capacity to do his past relevant work. 20 C.F.R. § 1520(a)(4)(iv).
Finally, if the claimant has shown he cannot engage in past relevant work, the ALJ
will consider whether the claimant can perform other work in the national
economy. 20 C.F.R. § 1520(a)(v). The claimant bears the burden of proving
disability during the first four steps of the process. Molina v. Astrue, 674 F.3d
1104, 1110 (9th Cir. 2012).
The ALJ found that Aubert was not engaged in substantial gainful activity,
and that he had five severe impairments: seizures, transient ischemic attack,
borderline intellectual functioning, bipolar I disorder and cannabis abuse. (Tr. at
19.) However, the ALJ found that none of Aubert's impairments, alone or in
.combination with each other, met or equaled any of the specific listed
impairments. (Tr. at 22.) Finally, the ALJ determined that Aubert could perform
his past relevant work as a courtesy clerk, (Tr. at 31), and, alternatively, Aubert
could perform other work as a bench assembler, motel cleaner, dishwasher, hand
bander, or food and beverage clerk, (Tr. at 32-33).

I.

Severe impairments, medical opinions, and Aubert's credibility
Judge Lynch found that substantial evidence supports the ALJ's findings at

step two of the sequential evaluation process that schizophrenia, anxiety, paranoia,
and depression are not included among Aubert's list of severe impairments. (Doc.
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20 at 6.) Judge Lynch also found that the ALJ provided sufficiently specific and
legitimate reasons for discounting the controverted opinions of Dr. John Tremper,
a treating physician, Dr. David Mahoney, an examining psychologist, and Dr.
Greg Vanichkachom, an examining physician, and that the reasons provided were
supported by substantial evidence in the record. (ld. at 10.) Finally, Judge Lynch
found that the ALJ provided clear and convincing reasons for discrediting
Aubert's testimony. (ld. at 18.) Aubert did not object to these findings. After
reviewing the record and Judge Lynch's analysis, this Court finds no clear error in
Judge Lynch's Findings and Recommendations on these points.

II.

Listing 12.05(C)
At step three of the sequential evaluation process, the ALJ considers

whether the claimant meets or equals any of the impairments listed in 20 C.F .R.
Part 404, Subpart. P, Appendix 1. 20 C.F.R. § 404.1520(a)(4)(iii). To meet the
requirements of a listing, the claimant must have a "medically determinable
impairment(s) that satisfies all of the criteria in the listing." 20 C.F.R. §
404.1525(d). To equal the requirements of a listing, the claimant must have
impairments, considered alone or in combination, that are "at least equal in
severity and duration to the criteria of any listed impairments." 20 C.F .R. §
404. 1526(a). The claimant bears the burden of proving disability at this step. See

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Molina, 674 F.3d at 1110.

"The structure of the listing for intellectual disability (12.05) is different
from that of the other mental disorders listings." 20 C.F.R. Pt. 404, Subpt. P, App.
1. This is because listing 12.05 has two parts. The first part is an introductory
paragraph, also known as the diagnostic description for intellectual disability,
which states, "Intellectual disability refers to significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifested
during the developmental period; i.e., the evidence demonstrates or supports onset
of the impairment before age 22." Id. If a claimant satisfies this part, the
commissioner determines whether the claimant's impairments meet or equal the
severity for the disorder under section A, B, C, or D of listing 12.05. Id. Most
importantly, 12.05(C) states that when a claimant has "[a] valid verbal,
performance, or full scale IQ of 60 through 70 and a physical or other mental
impairment imposing an additional and significant work-related limitation of
function," then he is disabled.
"The ALJ must evaluate the relevant evidence before concluding that a
claimant's impairments do not meet or equal a listed impairment." Lewis v. Apfel,
236 F.3d 505,512 (9th Cir. 2001). However, the claimant must satisfy the
diagnostic description in the initial paragraph before the ALJ considers whether
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the impairment is severe under section 12.05 A, B, C or D. 20 C.F.R. Pt. 404,
Subpt. P, App. 1.

An ALJ also has a "special duty to fully and fairly develop the record and to
assure that the claimant's interests are considered." Garcia v. Comm'r ofSoc.

Sec., 768 F.3d 925, 930 (9th Cir. 2014). This means that, where the record is
ambiguous or "inadequate to allow for proper evaluation of the evidence," the ALJ
must inquire further. McLeod v. Astrue, 640 F.3d 881,885 (9th Cir. 2011).
In McLeod, the claimant, represented by a lay representative at his
administrative hearing, argued that the ALJ had a duty to request more information
from the claimant's doctors. Id. at 884. The court looked at the record and
determined that substantially all of the claimant's medical records were before the
ALJ, and there was nothing unclear or unambiguous about the records. Id.
Therefore, the ALJ had no duty to request more information from the doctors. Id.
On the other hand, the court found that the ALJ erred when he failed to obtain the

claimant' s VA disability rating. Id. at 886. At the hearing, the claimant testified
that he was receiving benefits from the VA because he was unemployable, but that
he had no idea whether he had a disability rating. Id. at 885. The court concluded
that, if the claimant had a disability rating, that rating was relevant to the ALJ's
disability determination. Id. at 886. The ALJ knew that the record was likely

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missing relevant evidence, and it was therefore inadequate. Id. This triggered the
ALJ's duty to develop the record. Id. "The ALl must be especially diligent when
the claimant is unrepresented or has only a lay representative." Id. at 885.
Here, the ALl did not err by failing to consider listing 12.05. Aubert failed
to submit any evidence that he had deficits in adaptive functioning manifesting
before the age of22. If this Court adopted Aubert's argument that an ALl should
specifically consider listings, even when there is no evidentiary support that the
claimant qualifies under the listing, this would create an unworkable system.
ALls would be forced to specifically list and consider up to 284 pages worth of
possible listed impairments. Furthermore, the ALl did not err when he did not
inquire further to develop the record. This duty is triggered only when the record
is ambiguous or inadequate to allow for proper evaluation ofthe evidence. It is
undisputed that Aubert's impairment would fit the severity requirement of listing
12.05(C) because Aubert had a full scale IQ of70 and he suffered from a "physical
or other mental impairment imposing an additional and significant work-related
limitation of function." However, the evidence is unambiguous that Aubert does
not fit the diagnostic description of listing 12.05. The record is replete with
evidence concerning Aubert's ability to function normally before his illness began.
(Tr. at 115, 118,374,375,381.) The first sign of Aubert's illness started in 2007,
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when Aubert was 43. (Tr. at 115, 118). Furthermore, Aubert stated that he "was a
nerd growing up," (Tr. at 252), and he graduated from high school with a "B-, B+
average," (Tr. at 253). Finally, on Aubert's application for supplemental security
income, Aubert states that he was not disabled prior to age 22. (Tr. at 340).
Aubert argues that his work history provides sufficient evidence on this
point. He states that his "entire work history, going back more than 20 years,
includes work as a dishwasher, night stocking clerk, and a grocery store worker.
Such work history surely shows deficits in adaptive functioning prior to age 22."
(Doc. 21 at 8). Such a statement does not create an ambiguity in the record that
would trigger the ALl's duty to develop further. Even if this Court accepted
Aubert's work history as evidence of a mental disability, the record only contains
evidence of Aubert's work history dating back to 1998, well after Aubert turned
22. Finally, Aubert was represented by counsel at the administrative hearing. It
was Aubert's duty to include evidence of significantly subaverage general
intellectual functioning with deficits in adaptive functioning initially manifesting
before the age of 22, if such evidence existed. The ALJ cannot be held at fault for
failing to consider a listed impairment for which there was no evidentiary support;
therefore, the Commissioner's decision on this point is affirmed.

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III.

Aubert's wife's lay witness testimony
"[A]n ALJ must consider lay witness testimony concerning a claimant's

ability to work." Stout v. Comm'r, Soc. Sec. Admin., 454 F 3d 1050, 1053 (9th
Cir.2006). Such testimony is competent evidence that "cannot be disregarded
without comment." Id. at 1054. The ALJ can only disregard lay witness
testimony ifhe provides "reasons that are germane to each witness." Id. at 1053.
However, the ALJ is not required "to discuss every witness's testimony on a[n]
individualized, witness-by-witness basis. Rather, if the ALJ gives germane
reasons for rejecting testimony by one witness, the ALJ need only point to those
reasons when rejecting similar testimony by a different witness." Molina, 674
F3d at 1114. Likewise, this rule applies where the ALJ discredits the claimant's
testimony and similar lay witness testimony for the same reasons. Valentine, 574
F3d at 694.
The ALJ found that both Aubert and his wife gave testimony that was
"generally credible except to the extent that the claimant and his wife alleged
severe disabling depression/bipolar symptoms and uncontrolled seizures and a
complete inability to work due to his health and seizure problems." (Tr. at 28.)
The ALJ discredited the testimony for several reasons. First, the testimony was
inconsistent with objective medical evidence. (Id.) Second, there are several
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discrepancies between the testimony of Aubert and his wife and Aubert's medical
history. (Jd.) Also, the testimony is inconsistent with Aubert's own statements
concerning his daily activity. (Jd.) The ALJ supported these conclusions with
references to the record. (Jd.)
Aubert argues that his wife's testimony cannot be disregarded because she
"described limitations beyond those described by Mr. Aubert." (Doc. 21 at 11.)
While it is true that Aubert's wife provided additional information in her
testimony above and beyond information Aubert provided, (Tr. at 434-35), this
testimony still concerned Aubert's "severe disabling depressionlbipolar symptoms
and uncontrolled seizures and a complete inability to work due to his health and
seizure problems." The ALl's reasons for rejecting this testimony, as listed above,
are equally applicable to all of Aubert's testimony as well as his wife's testimony.
These reasons are sufficiently clear and convincing to discredit Aubert's testimony
and are germane to discredit the testimony provided by Aubert's wife.
Finally, Aubert argues that the ALJ erred by relying on portions of his
wife's testimony to make his decision but discrediting other portions. (Doc. 21 at
12.) As the ALJ stated in his decision, he found the testimony to be generally
credible, except to the extent the testimony concerned Aubert's disabling mental
conditions and complete inability to work due to health and seizure problems.
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Aubert does not cite to any authority that stands for the proposition that an ALJ
must accept all of a lay witness's testimony or none of it. The ALJ found Aubert's
wife's testimony generally credible and, to the extent that he rejected the
testimony, he provided germane reasons for doing so.
Accordingly, IT IS ORDERED that the Findings and Recommendations
(Doc. 20) are ADOPTED IN FULL.
IT IS FURTHER ORDERED that Aubert's motion for summary judgment
(Doc. 13) is DENIED,Jd the Commissioner's decision is AFFIRMED.
Dated this

i

day of December, 2014.

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