McGill v. Commissioner Social Security Administration
Filing
22
Opinion and Order - The Commissioner's decision that Plaintiff was not disabled is AFFIRMED. Signed on 8/21/2019 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TROY M.1,
Case No. 2:18-cv-00393-SI
Plaintiff,
OPINION AND ORDER
v.
ANDREW M. SAUL, Commissioner of
Social Security,
Defendant.
Lisa R.J. Porter, JP Law PC. 5200 SW Meadows Rd., Suite 150. Lake Oswego, OR 97035. Of
Attorney for Plaintiff.
Billy J. Williams, United States Attorney, and Renata Gowie, Assistant United States Attorney,
UNITED STATES ATTORNEY’S OFFICE, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204;
Martha A. Boden, Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL,
Social Security Administration, 701 Fifth Avenue, Suite 2900 M/S 221A, Seattle, WA 98104. Of
Attorneys for Defendant.
Michael H. Simon, District Judge.
Troy M. (“Plaintiff”) seeks judicial review of the final decision of the Commissioner of
the Social Security Administration (“Commissioner”) denying Plaintiff’s application for
Disability Insurance Benefits under Title II of the Social Security Act. For the following reasons,
the Commissioner’s decision is AFFIRMED.
1
In the interest of privacy, this opinion uses only the first name and the initial of the last
name of the non-governmental party in this case. When applicable, this opinion uses the same
designation for a non-governmental party’s immediate family member.
PAGE 1 – OPINION AND ORDER
STANDARD OF REVIEW
The district court must affirm the Commissioner’s decision if it is based on the proper
legal standards and the findings are supported by substantial evidence. 42 U.S.C. § 405(g); see
also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). “Substantial evidence” means
“more than a mere scintilla but less than a preponderance.” Bray v. Comm’r of Soc. Sec.
Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995)). It means “such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.” Id. (quoting Andrews, 53 F.3d at 1039).
When the evidence is susceptible to more than one rational interpretation, the
Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th
Cir. 2005). Variable interpretations of the evidence are insignificant if the Commissioner’s
interpretation is a rational reading of the record, and this Court may not substitute its judgment
for that of the Commissioner. See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193,
1196 (9th Cir. 2004). “[A] reviewing court must consider the entire record as a whole and may
not affirm simply by isolating a specific quantum of supporting evidence.” Orn v. Astrue, 495
F.3d 625, 630 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th
Cir. 2006) (quotation marks omitted)). A reviewing court, however, may not affirm the
Commissioner on a ground upon which the Commissioner did not rely. Id.; see also Bray, 554
F.3d at 1226.
BACKGROUND
A. Plaintiff’s Application
Plaintiff was born on June 17, 1976, and was 39 years old on the date last insured. AR 30.
Plaintiff has a high school education. AR 30. Plaintiff’s alleged disability onset date was
November 23, 2009. AR 22. Plaintiff filed a Title II application for a period of disability and
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disability insurance benefits on February 7, 2014. AR 20. Plaintiff was initially denied on
June 30, 2014, and again on reconsideration on October 29, 2014. Plaintiff requested a hearing
before an ALJ on November 26, 2014. The ALJ conducted hearings on September 28, 2016. AR
39. The ALJ concluded that Plaintiff was not disabled. AR 31. The Appeals Council declined
review on January 8, 2018, and Plaintiff filed an appeal in this Court.
B. The Sequential Analysis
A claimant is disabled if he or she is 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). “Social Security Regulations set out a five-step sequential process for
determining whether an applicant is disabled within the meaning of the Social Security Act.”
Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011); see also 20 C.F.R.
§§ 404.1520 (DIB), 416.920 (SSI); Bowen v. Yuckert, 482 U.S. 137, 140 (1987). Each step is
potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential
process asks the following series of questions:
1.
Is the claimant performing “substantial gainful activity?” 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). This activity is work involving
significant mental or physical duties done or intended to be done for pay
or profit. 20 C.F.R. §§ 404.1510, 416.910. If the claimant is performing
such work, she is not disabled within the meaning of the Act. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If the claimant is not performing
substantial gainful activity, the analysis proceeds to step two.
2.
Is the claimant’s impairment “severe” under the Commissioner’s
regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An
impairment or combination of impairments is “severe” if it significantly
limits the claimant’s physical or mental ability to do basic work activities.
20 C.F.R. §§ 404.1521(a), 416.921(a). Unless expected to result in death,
this impairment must have lasted or be expected to last for a continuous
period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909. If the
claimant does not have a severe impairment, the analysis ends. 20 C.F.R.
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§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a severe
impairment, the analysis proceeds to step three.
3.
Does the claimant’s severe impairment “meet or equal” one or more of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so,
then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii),
416.920(a)(4)(iii). If the impairment does not meet or equal one or more of
the listed impairments, the analysis continues. At that point, the ALJ must
evaluate medical and other relevant evidence to assess and determine the
claimant’s “residual functional capacity” (“RFC”). This is an assessment
of work-related activities that the claimant may still perform on a regular
and continuing basis, despite any limitations imposed by his or her
impairments. 20 C.F.R. §§ 404.1520(e), 404.1545(b)-(c), 416.920(e),
416.945(b)-(c). After the ALJ determines the claimant’s RFC, the analysis
proceeds to step four.
4.
Can the claimant perform his or her “past relevant work” with this RFC
assessment? If so, then the claimant is not disabled. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant cannot perform
his or her past relevant work, the analysis proceeds to step five.
5.
Considering the claimant’s RFC and age, education, and work experience,
is the claimant able to make an adjustment to other work that exists in
significant numbers in the national economy? If so, then the claimant is
not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v),
404.1560(c), 416.960(c). If the claimant cannot perform such work, he or
she is disabled. Id.
See also Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id. at 953; see also
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); Yuckert, 482 U.S. at 140-41. The
Commissioner bears the burden of proof at step five. Tackett, 180 F.3d at 1100. At step five, the
Commissioner must show that the claimant can perform other work that exists in significant
numbers in the national economy, “taking into consideration the claimant’s residual functional
capacity, age, education, and work experience.” Id.; see also 20 C.F.R. §§ 404.1566, 416.966
(describing “work which exists in the national economy”). If the Commissioner fails to meet this
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burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). If, however,
the Commissioner proves that the claimant is able to perform other work existing in significant
numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 953-54;
Tackett, 180 F.3d at 1099.
C. The ALJ’s Decision
At step one, the ALJ found that Plaintiff did not engage in substantial gainful activity
during the period from the alleged onset date through the date last insured. At step two, the ALJ
found that Plaintiff had the following severe impairment: cognitive disorder with associated
seizure disorder. At step three, the ALJ found that that the Plaintiff’s severe impairment did not
meet or equal one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ then found that the Plaintiff had the residual functional capacity (“RFC”) to
perform light work as defined in 20 CFR 404.1567(b) through the date last insured. The ALJ
noted that the Plaintiff must work in a workplace free from hazardous machinery, and that
Plaintiff cannot drive, work at heights, or balance. The ALJ found that Plaintiff is capable of
engaging in unskilled, repetitive, routine tasks in two hour increments. The ALJ also found that
Plaintiff would be off task up to 10% of the time at work and must work at his own pace, but
would still meet minimum production requirements of a job. The ALJ found that the Plaintiff
would likely be absent from work six times per year.
At step four, the ALJ found that through the date last insured, Plaintiff was unable to
perform any past relevant work. At step five, the ALJ found that considering Plaintiff’s age,
education, work experience, and RFC, there were jobs that existed in significant numbers in the
national economy that the Plaintiff could have performed. The ALJ therefore concluded that
Plaintiff was not under a disability, as defined in the Social Security Act, at any time from
November 23, 2009, the alleged onset date, through September 30, 2016, the date last insured.
PAGE 5 – OPINION AND ORDER
DISCUSSION
Plaintiff argues that this case should be remanded with instructions to award benefits.
Plaintiff argues that a remand is warranted because the ALJ made four legal errors regarding the
(1) adverse determination about Plaintiff’s statements concerning the intensity, persistence, and
limiting effects of Plaintiff’s symptoms; (2) assessment of lay-witness testimony; (3) rejection or
omission of medical opinion evidence; and (4) incorporation of medical findings into Plaintiff’s
RFC. The Court addresses each argument in turn.
1. Evaluation of Plaintiff’s Subjective Complaints
The ALJ found that Plaintiff’s medically determinable impairments could reasonably be
expected to produce the symptoms Plaintiff alleged, but that Plaintiff’s statements concerning the
intensity, persistence, and limiting effects of those symptoms were not entirely consistent with
the medical evidence and other evidence in the record. AR 25. Plaintiff argues that the ALJ
“picked out information that suits only his narrative, noting that while [Plaintiff] was generally
observed as guarded, suspicious, or hypervigilant, on one occasion, he was noted as stating he
was feeling ‘pretty good.’” ECF 15. Plaintiff argues that this single statement is not indicative of
Plaintiff’s ability to work full-time, and that the ALJ “did not demonstrate through clear and
convincing evidence that [Plaintiff] does not experience the symptoms that he alleges.” ECF 15.
The ALJ did not find that Plaintiff does not experience the symptoms that he alleged,
however, but instead found that Plaintiff’s statements concerning the intensity, persistence, and
limiting effects of those symptoms were not entirely consistent with the medical evidence and
other evidence in the record. The ALJ therefore found that Plaintiff’s symptoms would “affect
the claimant’s ability to work only to the extent they can reasonably be accepted as consistent
with the objective medical and other evidence.” AR 25.
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The ALJ did not use Plaintiff’s statement that he was feeling “pretty good” as the basis
for the ALJ’s determination that the record as a whole did not support the severity of
impairments that Plaintiff alleged. Instead, the ALJ found that Plaintiff’s description of the
severity of his symptoms was inconsistent with the daily activities that Plaintiff admitted
engaging in, such as preparing children for school, performing household chores, and preparing
dinners for his wife and children. AR 29. Plaintiff argues that none of these activities indicate
that Plaintiff is capable of working fulltime, but the ALJ was citing these activities as evidence
that did not support the severity of impairments that Plaintiff claimed. An ALJ may reject
testimony inconsistent with the medical and other evidence. Carmickle v. Comm’r Soc. Sec., 533
F.3d 1155, 1161 (9th Cir. 2008).
The ALJ also noted that the Plaintiff “repeatedly indicates” that Plaintiff “could feel his
seizures coming on and take preventative measures, which suggest that such seizures do not limit
the claimant’s function as much as alleged.” AR 29. Plaintiff argues that he does not always
receive adequate notice that he is about to have a seizure, but here, too, the ALJ was referencing
objective evidence (namely other portions of Plaintiff’s testimony) that was inconsistent with the
extent of Plaintiff’s symptom testimony.
The ALJ referenced several other pieces of objective evidence that seemingly conflicted
with the Plaintiff’s subjective symptom testimony regarding the limiting effects of his symptoms,
including Plaintiff’s attendance at school, Plaintiff’s operation of a motor vehicle, and symptom
improvement with medication. AR 29 “If the ALJ’s credibility finding is supported by
substantial evidence in the record, [the Court] may not engage in second guessing.” Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). The Court does not agree with all of the ALJ’s
reasons for discounting Plaintiff’s testimony, notably the ALJ’s finding that Plaintiff’s
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“treatment records detail a generally conservative treatment pattern.” AR 29. As Plaintiff
correctly points out, Plaintiff did not have insurance, and disability benefits may not be denied
because of a claimant’s failure to obtain treatment because of lack of funds. Gamble v. Chater,
68 F.3d 319, 321 (9th Cir. 1995). But not all of an ALJ’s reasons for discounting a claimant’s
testimony must be upheld, so long as substantial evidence supports the ALJ’s determination.
Carmickle, 533 F.3d at 1162.
Here, the substantial evidence supports the ALJ’s determination. The ALJ provided
sufficient reasons for discounting Plaintiff’s subjective complaints about the severity of his
symptoms and, therefore, the Court does not overturn the ALJ’s finding.
2. Assessment of Lay-Witness Testimony
The ALJ gave little weight to the testimony submitted by Plaintiff’s father and by
Plaintiff’s wife. AR 28. Non-acceptable medical sources, such as family members, are defined as
“other” sources under the regulations. 20 C.F.R. § 404.1513(d)(4). Other sources are not entitled
to the same deference as those who are considered acceptable medical sources. Molina v. Astrue,
674 F.3d 1104, 1111 (9th Cir. 2012). In rejecting testimony from other sources, the ALJ need
only give “arguably germane reasons,” and need “not clearly link his determination to those
reasons.” Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001); see also Molina, 674 F.3d at 1114.
Both witnesses submitted testimony that Plaintiff had suffered residual effects from
seizures for up to three days, including losing the ability to speak. The ALJ found that the record
did not show that Plaintiff suffered from symptoms three days after his seizures. Plaintiff argues
that this was error because the “record as a whole supports” the statements made by the lay
witnesses. But the specific portions of the record Plaintiff cites as support demonstrate periods of
side effects that are shorter than three days, including losing eyesight for 4-5 hours or “periods”
of grogginess following a seizure. AR 723, 731. Plaintiff has not cited evidence in the record that
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contradicts the ALJ’s “arguably germane reason” to give little weight to this lay-witness
testimony. Further, the ALJ “assigned an additional six days off of work per year based on the
claimant’s alleged potential seizure recovery time.” AR 29. The Court, therefore, does not find
error in the ALJ’s assignment of little weight to the lay-witness testimony.
3. Assessment of Medical Opinion Evidence
Plaintiff argues that the ALJ erred in giving little weight to specific aspects of the opinion
of examining psychologist Stephen Condon, Ph.D. ECF 15. Plaintiff correctly notes that an ALJ
must provide “clear and convincing” reasons for rejecting uncontroverted medical opinions from
treating or examining medical providers. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir.
2001). Plaintiff misstates the exact findings made by the ALJ, however, as the ALJ did not
“state[] that Dr. Condon’s medical opinion was inconsistent with [Plaintiff’s] daily activities.”
ECF 15. Instead, the ALJ found that Dr. Condon’s specific opinion “that the claimant would be
unable to meet social interaction requirements” was contradicted with Plaintiff’s testimony about
such activities. AR 27. The ALJ gave partial weight to other aspects of the opinions of Dr.
Condon, and based on those opinions, the ALJ “assigned the claimant a residual functional
capacity, with unskilled, repetitive routine tasks, without strict pace requirements.” AR 27. The
ALJ therefore did not err in discounting the specific aspects of Dr. Condon’s opinion that the
ALJ gave less weight to. See Batson, 359 F.3d at 1195 (holding that an ALJ may discredit
physicians’ opinions that are unsupported by the record as a whole).
4. Incorporation of Medical Findings into Plaintiff’s RFC
Plaintiff asserts that the ALJ’s RFC assessment did not adequately reflect the effect of
Plaintiff’s impairments on his ability to function because the ALJ failed to accept the extent of
the limitations reflected in the record, and specifically failed to assess whether Plaintiff is
capable of working on a “regular and continuing basis.” ECF 15.
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Social Security regulations define residual functional capacity as the “maximum degree
to which the individual retains the capacity for sustained performance of the physical-mental
requirements of jobs.” 20 C.F.R. 404, Subpt. P, App. 2 § 200.00(c). Plaintiff cites Reddick v.
Chater, 157 F.3d 715, 724 (9th Cir. 1998), in which the Circuit held that the ALJ erred in failing
to address the claimant’s ability to undertake sustained work activity. In that case, however, the
claimant’s disability was based on chronic fatigue syndrome, and the Circuit noted that the
ALJ’s evaluation of RFC “ignored the key symptom of [chronic fatigue syndrome], which is
persistent fatigue.” Id. In this case, in contrast, the ALJ did not ignore the symptoms of
Plaintiff’s impairment, nor the impact of those symptoms on Plaintiff’s ability to undertake
sustained work activity. The ALJ’s RFC finding expressly limited Plaintiff’s ability to work to
two-hour increments. The ALJ did not ignore the key symptoms that Plaintiff alleged, but instead
discounted Plaintiff’s descriptions of their intensity and persistence. The Court therefore
concludes that the ALJ’s RFC finding was supported by the record as a whole.
CONCLUSION
The Commissioner’s decision that Plaintiff was not disabled is AFFIRMED.
IT IS SO ORDERED.
DATED this 21st day of August, 2019.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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