Paxton v. Commissioner Social Security Administration

Filing 27

ORDER: The decision of the Commissioner is affirmed. Signed on 6/9/2015 by Magistrate Judge Thomas M. Coffin. (plb) Corrected date filed on 6/10/2015 (plb).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
3: 14-cv-576-TC

TIMOTHY PAXTON,
Plaintiff,

ORDER
v.
Commissioner of Social Security,
Defendants.
COFFIN, Magistrate Judge:
Plaintiffbrings this proceeding to obtain judicial review ofthe Commissioner's final decision
denying plaintiffs application for disability insurance benefits and supplemental security income
benefits.
Plaintiff asserts disability beginning September 30, 2007, 1 due to IBS, Asperger's, depression,
osteoarthritis (hip, feet, hands, back), OCD, and a need for a back and knee brace. Tr. 219. After
a hearing, an administrative law judge (ALJ) determined that plaintiff is not disabled. Plaintiff
contends that the ALJ erred in: (1) rejecting the opinion Dr. Kay Stradinger; (2) rejecting plaintiffs

1

In his initial applications for benefits, plaintiff asserted disability beginning October 16,
2008, but amended the onset date on May 16,2011. Tr. 174.
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testimony about his limitations; (3) rejecting the opinion of Dr. Noah Roost; and in (4) failing to find
plaintiffs depressive condition severe.

A.

Plaintiffs Credibility
Although plaintiff alleged several physical impairments in addition to his autism spectrum

disorder, he essentially argues that his limitations in social functioning and interacting with others
are disabling and does not contest the ALJ's findings that his physical impairments are non-severe.
Plaintiff describes his Asperger's symptoms as being present since childhood. E.g., Tr. 322.
Plaintiff testified that he is unable to hold a full-time job because he "is not the most social creature
on the planet [and has] a hard time dealing with people in [a] social atmosphere." Tr. 31.
Accordingly, plaintiff maintains that he cannot get along with his bosses and got fired from most of
the jobs he held. The ALJ found plaintiffs statements concerning the limiting effects of his
symptoms not entirely credible. Tr. 15. The ALJ noted that plaintiffs Asperger's is treatable and
he has been urged to emoll in psychological counseling support groups, but that plaintiff has
declined to participate in such treatment. Tr. 15,290 (although unlikely plaintiffwill recover from
Asperger's, his problems are treatable, but he has chosen not to go to adult Asperger's group) . The

ALI also noted that plaintiff failed to get tested for Asperger's until he was 55 years old. Tr. 18.
The ALJ may consider unexplained or inadequately explained failure to seek treatment or to follow
a prescribed course oftreatment in assessing credibility. Tommasetti v. Astrue, 53 3 F .3d 103 5, 103 9
(9th Cir. 2008). The ALJ's finding is supported by substantial evidence and is sufficiently clear and
convincing reason to discount plaintiffs disabling symptom testimony. See Parra v. Astrue, 481
F.3d 742, 750-51 (9th Cir. 2007).

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The ALJ also noted that plaintiffs testimony that he cannot work is inconsistent with his own
reports. Tr. 15-16, 18. See Tr. 285-86 (plaintiff notes that he worked successfully in occupations
where he works by himself such as a library aid position he held for two years in which he quit
because ofthe heat of the locale, not interpersonal problems). Again, this is a sufficiently clear and
convincing reason supported by the record justifying the ALJ's credibility determination. See
Valentine v. Commissioner Social Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009) (Even activities
that suggest some difficulty functioning are grounds for discrediting the claimant's testimony to the
extent that they contradict claims of a totally debilitating impairment); Turner v. Commissioner of
Social Sec., 613 F.3d 1217, 1225 (9th Cir. 2010) (ALJ properly rejected implication of disability
because of inability to put up with people where claimant made exaggerated statements).
Accordingly, the ALJ did not err in rejecting plaintiffs claims oftotally disabling symptoms of social
functioning.

B.

Dr. Kay Stradinger
Dr. Stradinger examined plaintiff and opined that plaintiff would have a very difficult time

interacting appropriately, effectively, independently, and on a sustained basis with supervisors, coworkers, and the public. Tr. 291. The ALJ did not reject this opinion, but incorporated it into
plaintiffs residual functional capacity assessment. Although plaintiff argues that such an opinion
establishes disability as a matter of law, 2 the ALJ appropriately accounted for the impairment and

2

Plaintiff cites SSR 85-15 in which the Administration provides an example of a justified
finding of disability where a mental impairment causes a substantial loss of ability to respond
appropriately to supervisors, coworkers, and usual work situations. However, Stradinger did not
opine as to "usual work situations." Moreover, the ALJ sought the opinion of a vocational expert
as to the availability of work where an individual has impaired ability to interact with others.
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a vocational expert provided substantial evidence that such limitation did not preclude all work.
The ALJ determined that plaintiff is limited to a simple routine work environment without
public contact. That he works best alone and not as a part of team to complete work duty
assignments with only brief minimal contact with co-workers and supervisors. Tr. 14. While
plaintiff interprets Dr. Stradinger's opinion as precluding even brief minimal contacts, the ALI's
interpretation is reasonable given that plaintiff has a past employment history and still regularly
works (at a non-SGA level) tuning pianos for customers and performing music gigs. Indeed, Dr.
Stradinger did state that plaintiff would be able to cognitively complete simple and repetitive work
type tasks in the workplace. Tr. 291. Accordingly, the ALJ did not err with respect to this opinion.
Dr. Stradinger also opined that plaintiff might have a difficult time completing a full workday
or workweek on a sustained basis due to difficulties with concentration and attention related to
Asperger's. Tr. 291. The ALJ rejected this opinion as inconsistent with plaintiffs work activities,
performance ofhousehold chores, his help with his son's homework, and driving his wife and child
in the car. Tr. 16. Plaintiff worked for two years as a library aid four days a week, worked for over
twenty years giving private lessons as a music teacher one day a week, worked for nearly 30 years
one day per week tuning pianos and worked three months full time unloading trucks. Tr. 220. In
addition, plaintiffs wife does not drive so he shuttles his wife and son and is always there ifhis 19
year old autistic son needs help on life matters or school work. Tr. 233. The ALJ appropriately
found such activities inconsistent with Dr. Stradinger's opinion and rejected it. See, e.g., Rollins v.
Massanari, 261 F.3d 853, 856 (9th Cir. 2001).

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C.

Dr. Noah Roost
Dr. Roost assessed plaintiff with a GAF score of 48. Plaintiff argues that this is a score that

indicates inability to work. The GAF score by itself is not dispositive of disability. Indeed, Dr.
Roost failed to list any specific functional limitations and the ALJ rejected therefore rejected it. The
ALJ also rejected it because of its reliance on plaintiffs subjective testimony which, as noted above,
lacks credibility, and its inconsistency with plaintiffs work activity. Tr. 17. This is sufficient
· reasoning to reject the opinion. See, e.g., Morgan v. Commissioner of Social Sec. Admin. 169 F.3d
595, 601 (9th Cir. 1999).

D.

Depression
The ALJ determined that plaintiffs alleged depression was not a severe impairment.

Although the step two determination is a de minimus screening, the alleged impairment must still
significantly limit physical or mental ability to do basic work activities. The record does not
demonstrate that plaintiffs depression is severe and he does not articulate its limitations. Plaintiff
did not seek treatment for depression and to the extent he alleges that it is disabling, the ALJ
appropriately found him to lack credibility. Moreover, the ALJ did limit plaintiff to simple routine
work which accounts for any supported mental limitations.
CONCLUSION

For the reasons stated above, the decision of the Commissioner is affirmed.
DATED this___::;._ day of June 2015.

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