Garifalakis v. Commissioner Social Security Administration

Filing 20

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter pursuant to sentence four of 42 U.S.C. 405(g). Signed on 06/15/2017 by Judge Anna J. Brown. See attached 32 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

SPYROS GARIFALAKIS,
Plaintiff,

3:16-cv-01051-BR
OPINION AND ORDER

v.
NANCY A. BERRYHILL,1
Acting Commissioner, Social
Security Administration,
Defendant.

MERRILL SCHNEIDER
Schneider Kerr Law Offices
P.O. Box 14490
Portland, OR 97293
[phone]
Attorneys for Plaintiff
BILLY J. WILLIAMS
United States Attorney
JANICE E. HEBERT
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
1

On January 23, 2017, Nancy A. Berryhill was appointed the
Acting Commissioner of the Social Security Administration and
pursuant to Federal Rule of Civil Procedure 25(d) is substituted
as Defendant in this action.
1 - OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
THOMAS M. ELSBERRY
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 901
Seattle, WA 98104
[phone]
Attorneys for Defendant

BROWN, Judge.
Plaintiff Spyros Garifalakis seeks judicial review of the
final decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff’s applications
for Disability Insurance Benefits (DIB) under Title II of the
Social Security Act and Supplemental Security Income (SSI) under
Title XVI of the Social Security Act.

This Court has juris-

diction to review the Commissioner's final decision pursuant to
42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
Plaintiff protectively filed his applications for DIB and
SSI on May 29, 2013.

Tr. 28, 219, 221.2

disability onset date of January 1, 2009.

2

Plaintiff alleged a
Tr. 28, 219, 221.

Citations to the official transcript of record filed by
the Commissioner on November 30, 2016, are referred to as “Tr.”
2 - OPINION AND ORDER

Plaintiff’s applications were denied initially and on
reconsideration.

An Administrative Law Judge (ALJ) held a

hearing on August 25, 2015.
expert (VE) testified.

Tr. 48.

Plaintiff and a vocational

Plaintiff was represented by an attorney

at the hearing.
On October 6, 2015, the ALJ issued an opinion in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 28-40.

On April 5, 2016, the Appeals Council

denied Plaintiff’s request to review the ALJ’s decision, and the
ALJ’s decision became the final decision of the Commissioner.
Tr. 1-5.

See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On June 9, 2016, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner’s decision.

BACKGROUND
Plaintiff was born on March 31, 1967.

Tr. 219, 221.

Plaintiff was 48 years old at the time of the hearing.
has at least a sixth-grade education.

Tr. 54, 240.

Plaintiff

The ALJ

found Plaintiff has past relevant work experience as a forklift
operator, warehouse worker, stocking clerk, and “delivery/route
driver.”

Tr. 39, 78-79.

Plaintiff alleges disability due to bipolar disorder,
attention-deficit hyperactivity disorder (ADHD), anxiety,
fibromyalgia, coronary artery disease, chronic obstructive

3 - OPINION AND ORDER

pulmonary disorder (COPD), personality disorder, a brain
aneurysm, headaches, stroke, and temporomandibular joint disorder
(TMJ).

Tr. 239.

Except as noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

See Tr. 30-39.

After carefully

reviewing the medical records, this Court adopts the ALJ’s
summary of the medical evidence.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate his

inability “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.”
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
The district court must affirm the Commissioner’s decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
4 - OPINION AND ORDER

42

U.S.C. § 405(g).

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

It is more than a mere scintilla [of evidence]

but less than a preponderance.

Id. (citing Valentine, 574 F.3d

at 690).
The ALJ is responsible for evaluating a claimant’s
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
Cir. 2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070

(9th Cir. 2006).

5 - OPINION AND ORDER

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the Commis-

sioner determines the claimant is engaged in substantial
gainful activity (SGA).
416.920(a)(4)(I).

20 C.F.R. §§ 404.1520(a)(4)(I),

See also Keyser v. Comm’r of Soc. Sec., 648

F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.
404.1520(a)(4)(ii), 416.920(a)(4)(ii).

20 C.F.R. §§ 404.1509,

See also Keyser, 648 F.3d

at 724.
At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
F.3d at 724.

20 C.F.R.

See also Keyser, 648

The criteria for the listed impairments, known as

Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
If the Commissioner proceeds beyond Step Three, she must
assess the claimant’s residual functional capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
6 - OPINION AND ORDER

regular and continuing basis despite his limitations.
§§ 404.1520(e), 416.920(e).
(SSR) 96-8p.

See also Social Security Ruling

“A ‘regular and continuing basis’ means 8 hours a

day, for 5 days a week, or an equivalent schedule.”
at *1.

20 C.F.R.

SSR 96-8p,

In other words, the Social Security Act does not require

complete incapacity to be disabled.

Taylor v. Comm’r of Soc.

Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair
v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.
416.920(a)(4)(iv).

20 C.F.R. §§ 404.1520(a)(4)(iv),

See also Keyser, 648 F.3d at 724.

If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.
416.920(a)(4)(v).

20 C.F.R. §§ 404.1520(a)(4)(v),

See also Keyser, 648 F.3d at 724-25.

Here the

burden shifts to the Commissioner to show a significant number of
jobs exist in the national economy that the claimant can perform.
Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th
Cir. 2010).

The Commissioner may satisfy this burden through the

testimony of a VE or by reference to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part 404,
subpart P, appendix 2.

7 - OPINION AND ORDER

If the Commissioner meets this burden,

the claimant is not disabled.

20 C.F.R. §§ 404.1520(g)(1),

416.920(g)(1).

ALJ’S FINDINGS
At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity since January 1, 2009, the alleged
onset date.

Tr. 30.

At Step Two the ALJ found Plaintiff has the severe
impairments of status-post cerebral vascular accident, late
effects of a cerebrovascular disease, poly-substance abuse and
dependence, and mood disorder.

Tr. 30-32.

At Step Three the ALJ concluded Plaintiff’s medically
determinable impairments do not meet or medically equal one of
the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 33.

The ALJ found Plaintiff has the RFC to

perform medium work except that Plaintiff must avoid concentrated
exposure to fumes, dusts, orders, gases, and pulmonary irritants
and must avoid all exposure to heights and hazards.

The ALJ also

found Plaintiff has the ability to perform simple, routine work
with a specific vocational preparation of 1 or 2, and he can have
“occasional, indirect contact with coworkers” but not any contact
with the public.

Tr. 32-38.

At Step Four the ALJ concluded Plaintiff is incapable of
performing his past relevant work.

8 - OPINION AND ORDER

Tr. 38-39.

At Step Five the ALJ found Plaintiff could perform other
jobs that exist in the national economy, including hand-packager
and laundry laborer.

Tr. 39-40.

In the alternative, even if

Plaintiff was limited to light work, the ALJ found he could still
perform other jobs that exist in the national economy, including
room cleaner and agricultural sorter.
ALJ found Plaintiff is not disabled.

Tr. 40.

Accordingly, the

Tr. 40.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) did not find
various conditions to be “severe” at Step Two; (2) discredited
Plaintiff’s testimony; (3) discredited the global assessment of
functioning (GAF) scores assigned to Plaintiff; (4) discredited
the opinions of nonexamining psychiatrists Joshua J. Boyd,
Psy.D., and Dorothy Anderson, Ph.D.; (5) discredited the opinion
of Daniel Wardin, PLC, one of Plaintiff’s treating mental-health
providers; and (6) discredited the testimony of lay witness
Argyro Apostolou, Plaintiff’s cousin.
I.

Step Two
Plaintiff contends the ALJ erred when he failed to find the

following impairments were severe at Step Two:

(1) history

of gunshot wound, (2) left-shoulder degenerative changes,
(3) carpal-tunnel syndrome, (4) chronic pain syndrome,
(5) chronic head pain and migraines, (6) degenerative changes in
9 - OPINION AND ORDER

spine, (7) psychotic disorder, (8) anxiety disorder, (9) TMJ,
(10) history of coronary artery disease, and (11) fibromyalgia.
At Step Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments.

Stout v. Comm’r Soc.

Sec Admin., 454 F.3d 1050, 1052 (9th Cir. 2006).

See also 20

C.F.R. § 416.920(a)(4)(ii); Keyser v. Comm’r of Soc. Sec. Admin.,
648 F.3d 721, 724 (9th Cir. 2011).

A severe impairment

“significantly limits” a claimant’s “physical or mental ability
to do basic work activities.”

20 C.F.R. §§ 416.921(a), (b).

Such abilities and aptitudes include walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying, handling, seeing,
hearing, and speaking; understanding, carrying out, and
remembering simple instructions; using judgment; responding
appropriately to supervision, co-workers, and usual work
situations; and dealing with changes in a routine work setting.
Id.
The Step Two threshold is low:
[A]n impairment can be considered as not severe only if
it is a slight abnormality which has such a minimal
effect on the individual that it would not be expected
to interfere with the individual’s ability to work
. . . . [T]he severity regulation is to do no more
than allow the Secretary to deny benefits summarily to
those applicants with impairments of a minimal nature
which could never prevent a person from working.
SSR 85-28, at *2 (Nov. 30, 1984)(internal quotations omitted).
The Ninth Circuit has held when the ALJ has resolved Step
10 - OPINION AND ORDER

Two in a claimant’s favor, any error in designating specific
impairments as severe at Step Two is harmless if the ALJ,
nonetheless, accounted for the limitation imposed by that
condition in his assessment of the claimant’s RFC.

See Lewis v.

Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
In his Opening Brief Plaintiff does not provide any
meaningful substantive argument to support his contention that
the ALJ erred when he did not find the eleven listed impairments
were severe at Step Two.

Instead Plaintiff merely lists each of

the conditions together with references to page numbers in the
record that Plaintiff apparently contends support his
unelucidated claim that the ALJ erred when he did not find each
of those impairments to be severe.
at 10-11.

See Pl.’s Opening Brief (#14)

This Court, sitting in an appellate capacity, cannot

consider arguments “‘that are not specifically and distinctly
argued in an appellant’s opening brief.’”

Carmickle v. Comm’r

Soc. Sec. Admin., 553 F.3d 1155, 1161 n.2 (9th Cir. 2008)(quoting
Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164
(9th Cir. 2003)).

By failing to provide any substantive argument

in support of his various Step Two claims, Plaintiff leaves
Defendant and the Court to guess as to Plaintiff’s contentions
based on mere citations to pages in the record.

Plaintiff,

therefore, falls well short of “specifically and distinctly”

11 - OPINION AND ORDER

presenting these arguments to this Court.

See Carmickle, 553

F.3d at 1161 n.2.
Accordingly, on this record the Court will not consider
Plaintiff’s Step Two arguments.
II.

Plaintiff’s Testimony
As noted, Plaintiff next contends the ALJ erred when he

discredited Plaintiff’s testimony.
In Cotton v. Bowen the Ninth Circuit established two
requirements for a claimant to present credible symptom
testimony:

The claimant must produce objective medical evidence

of an impairment or impairments, and he must show the impairment
or combination of impairments could reasonably be expected to
produce some degree of symptom.
Cir. 1986).

Cotton, 799 F.2d 1403, 1407 (9th

See also Spelatz v. Astrue, 321 F. App’x 689, 692

(9th Cir. 2009).

The claimant, however, need not produce

objective medical evidence of the actual symptoms or their
severity.

Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996).

See also Delgado v. Commissioner of Social Sec. Admin., 500 F.
App’x 570, 570 (9th Cir. 2012).
If the claimant satisfies the above test and there is not
any affirmative evidence of malingering, the ALJ can reject the
claimant’s pain testimony only if she provides clear and
convincing reasons for doing so.

Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834
12 - OPINION AND ORDER

(9th Cir. 1995)).

General assertions that the claimant’s

testimony is not credible are insufficient.

Id.

The ALJ must

identify “what testimony is not credible and what evidence
undermines the claimant’s complaints.”

Id. (quoting Lester,

81 F.3d at 834).
At the August 25, 2015, hearing Plaintiff testified he only
completed the sixth grade due to the fact that he was “always in
trouble because [he] couldn’t learn.”

Tr. 54.

Plaintiff stated

he was laid off from his previous job as a forklift driver
because of the poor economy and he was laid off from a previous
job as a “merchandiser” when the company he was working for went
bankrupt.

Tr. 56-57.

After Plaintiff was laid off from his job

as a forklift driver, he collected unemployment benefits.

He

remembered certifying that he was able and willing to work, but
he stated he “didn’t realize the problems [he] was having” at the
time.

Tr. 71-72.
Plaintiff stated he attempted to obtain his high-school

equivalency degree, but he was unable to complete the course
work.

Tr. 55.

Plaintiff also stated he cannot perform everyday

mathematical calculations such as the amount of change he would
receive if he paid for a $3.00 meal with a $5.00 bill.

Tr. 55.

Plaintiff testified he can only walk one-half of a block before
he has to stop because his “back starts hurting.”

Tr. 59.

Plaintiff stated he is unable to hold a cup of coffee because his

13 - OPINION AND ORDER

“hands go numb” and because of shoulder pain.

Tr. 60.

Plaintiff

stated he can sit in a chair for 20 minutes “at the most.”
Tr. 62.
Plaintiff testified he “can’t handle being around people,”
and his daily anxiety, which he rates as between seven and nine
on a ten-point scale, causes him to be unable to sit still and
unable to concentrate on a task for more than ten minutes.
Tr. 68, 73-74.

In addition, Plaintiff stated he “can’t remember

certain things” and although he can “remember [his] past,” he
cannot “remember this last few years.”

Tr. 76-77.

Plaintiff stated he does not cook.

Tr. 63.

Although he

tries to do yard work, including mowing the lawn and “cut[ting]
the bushes,” he “does not weed.”

Tr. 63.

Plaintiff stated on a

normal day he “pick[s] up a couple cans” for approximately six to
eight hours per day in order to earn money, and he rides the bus
and his bicycle in order to collect the cans.

Tr. 64-65.

Plaintiff testified he uses methamphetamine “[o]nce a day”
to help manage his ADHD, but he does not use a lot at a time.
Tr. 66, 72.

Plaintiff stated he uses marijuana occasionally and

has used cocaine in the past, but he quit after he had his first
child.

Tr. 67.

Plaintiff testified he has not used heroin.

Tr. 67.
In an Adult Function Report dated July 23, 2013, Plaintiff
reported in a typical day he goes to medical and mental-health

14 - OPINION AND ORDER

appointments; visits his case manager, alcohol and drug manager,
and parole officer; goes to school to obtain his high-school
equivalency; picks up bottles and cans; and takes medications.
Tr. 274.

Plaintiff indicated he did not have a problem with

personal care and preparing simple meals.

Tr. 275.

Plaintiff

stated he is able to count change, but is unable to manage bills,
a savings account, or a checking account.

Tr. 277.

Plaintiff

indicated his hobbies include playing computer games, playing
slot machines and gambling, and riding his bicycle.

Tr. 277.

Plaintiff stated his conditions affect his abilities to
lift, squat, bend, stand, reach, walk, sit, kneel, talk, climb
stairs, see, remember, complete tasks, concentrate, understand
and follow instructions, and get along with others.

Tr. 278.

Plaintiff reported he can walk one block before back pain
requires him to rest for five minutes.

Tr. 278.

Plaintiff

stated he cannot pay attention for “very long” because he loses
“concentration right away,” has difficulty understanding written
instructions, and follows spoken instructions only 25 percent of
the time.

Tr. 278.

The ALJ discredited Plaintiff’s testimony because
(1) Plaintiff’s daily activities belie the alleged severity of
his conditions; (2) Plaintiff’s employment immediately preceding
his alleged period of disability ended for nondisability reasons
and Plaintiff sought and obtained unemployment benefits during

15 - OPINION AND ORDER

that alleged period of disability; (3) the medical evidence does
not support Plaintiff’s alleged severity; and (4) Plaintiff
demonstrated a lack of candor regarding his drug use and
secondary-gain motivations, including drug-seeking behavior, for
accessing medical resources.3
A.

Activities of Daily Living

The Social Security Act does not require claimants to be
utterly incapacitated to be eligible for benefits.
F.3d at 1112.

Molina, 674

Nonetheless, to the extent that those daily

activities contradict other testimony or “meet the threshold for
transferable work skills,” the ALJ may rely on the claimant’s
reported activities as a basis to discredit the claimant’s
testimony.

See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007).

Here the ALJ reasonably found Plaintiff’s reported
activities contradicted his testimony in multiple respects.
Tr. 34.

The ALJ noted Plaintiff’s statements in June 2012 that

he was able to work in the kitchen, to lift weights, and to play
softball while in prison were inconsistent with his testimony
in 2013 and 2015 regarding his severe physical limitations.
Tr. 1112, 1119.

The ALJ also found Plaintiff’s testimony that he

3

The ALJ also discredited Plaintiff’s testimony because
Plaintiff’s “extensive, recurring poly-substance abuse and
dependence raises a significant credibility concern.” Tr. 35.
The mere fact that Plaintiff has a longstanding history of drug
abuse, however, is not a clear and convincing reason for the ALJ
to discredit Plaintiff’s testimony.
16 - OPINION AND ORDER

performs yard work, including mowing lawns and trimming bushes,
was inconsistent with his allegations as to his physical
limitations, including that he was unable to hold even a cup of
coffee.

Moreover, contrary to Plaintiff’s testimony in August

2015 that he cannot pull weeds, Plaintiff reported to Daniel
Wardin, LPC, on June 6, 2014, that he had been “[d]oing some yard
work, pulling weeds.”

Tr. 2043.

In addition, the ALJ noted

Plaintiff alleged severe back limitations that substantially
limited his ability to walk and to sit, but the record contains
multiple reports that Plaintiff rode his bicycle and engaged in
other physical activity.

See, e.g., Tr. 1245 (Plaintiff

“manages” his anxiety with “physical activity” in May 2013); 1608
(Plaintiff “riding his bike a lot” in December 2013); Tr. 2013
(Plaintiff “rode his bicycle 40 miles” to visit friends in
September 2014); Tr. 2031 (Plaintiff rode his bicycle up to ten
miles without rest in August 2014); Tr. 2044 (Plaintiff rode his
bicycle 80-100 miles per week in May 2014).

The ALJ, therefore,

reasonably discredited Plaintiff’s testimony on the basis that it
was inconsistent with Plaintiff’s reported activities.
B.

Nondisability Employment Termination and Unemployment
Benefits

As noted, the ALJ also discredited Plaintiff’s allegation of
disability beginning on January 1, 2009, on the bases that
Plaintiff’s employment immediately preceding that date ended for
nondisability reasons and that Plaintiff sought and obtained
17 - OPINION AND ORDER

unemployment benefits after that date.
An ALJ may discredit the claimant’s testimony by citing a
claimant’s nondisability reasons for leaving employment
immediately preceding the alleged onset date of disability.
Bruton v. Massanari, 268 F.3d 824, 828 (9th Cir. 2001).
Page v. Colvin, 620 F. App’x 605, 605 (9th Cir. 2015).

See

See also
In

addition, “receipt of unemployment benefits can undermine a
claimant’s alleged inability to work fulltime” if the record
establishes the claimant “held himself out as available for
full-time or part-time work.”

Carmickle, 533 F.3d at 1161-62.

The ALJ is correct that Plaintiff’s employment before his
alleged onset date ended because Plaintiff was laid off as a
result of the economy rather than due to his physical or mental
inability to work.

Tr. 56-57, 575.

Moreover, the ALJ correctly

noted Plaintiff applied for and received unemployment benefits
from 2009 through at least July 2011 (Tr. 71-72, 553, 1044), and
Plaintiff admitted at the hearing that if he had been offered his
job as a forklift driver during that period, he would have
accepted the position.

Tr. 72.

Plaintiff attempted to explain

that he “didn’t realize the problems [he] was having.
having major migraine headaches after my aneurism.”

I was

Tr. 72.

This explanation, however, strains credulity because there is
nothing in the nature of migraine headaches that would render an
individual latently disabled.

18 - OPINION AND ORDER

Accordingly, Plaintiff’s

explanation at the hearing does not undermine the ALJ’s finding
that Plaintiff held himself out as available for work during the
alleged period of disability because it is supported by
substantial evidence in the record.
The Court, therefore, concludes the ALJ appropriately
discredited Plaintiff’s allegations of disability on the basis of
Plaintiff’s nondisability reasons for leaving his job as a
forklift driver and his receipt of unemployment benefits during
the alleged period of disability.
C.

Inconsistency with Medical Evidence

As noted, the ALJ also discredited Plaintiff’s testimony on
the basis that the alleged severity of his conditions is not
supported by the medical record.
On May 30, 2009, Plaintiff suffered an aneurysm that
required surgery and a ten-day hospitalization.

Tr. 835.

Nonetheless, by June 17, 2009, Plaintiff was “doing very well”
and requested and received a note clearing him to return to work.
Tr. 833.

Thereafter, Plaintiff went to the emergency room on

numerous occasions complaining of headaches.

Imaging of

Plaintiff’s brain, however, was consistently stable and did not
show a return of the aneurysm.
762, 815, 839, 1556.

See, e.g., Tr. 718, 737, 754,

Moreover, during some of those emergency-

room presentations Plaintiff appeared to be attempting to obtain
narcotic pain medication, exaggerating symptoms, or leaving

19 - OPINION AND ORDER

abruptly against medical advice.

See, e.g., Tr. 582-83

(Plaintiff presented to emergency room with a headache, but
demanded discharge against medical advice after being denied
narcotics); Tr. 586 (Plaintiff’s “severe headaches” entirely
dissipated during interview in emergency department); Tr. 1438
(Despite stating his headache severity was an eight on a tenpoint scale, Plaintiff observed to be “watching TV and smiling
appropriately and really appears very comfortable and very
engaged in the movie he is watching”); Tr. 1454-64 (Plaintiff
presented to the emergency room with headaches, but Plaintiff
abruptly left stating “he needed to leave the hospital to attend
to his cat” even though he stated he was homeless.

Provider

noted Plaintiff’s actions “raised a diagnostic question about
malingering.”).
Moreover, there were multiple other instances in which
Plaintiff’s allegations were contradicted by the medical record.
For example, despite telling a treatment provider on February 11,
2014, that he was “[n]ot able to grip or close hands,” he
demonstrated “good” grip strength in both hands on examination.
Tr. 2074.

In addition, Plaintiff’s report in his July 2013 Adult

Function Report and testimony in August 2015 that he suffered
from severe back pain that prevented him from walking more than
one-half or one block or from sitting for extended periods of
time is contradicted by his report to a treatment provider on

20 - OPINION AND ORDER

June 25, 2014, that his back pain “resolved” after he lost
weight.

Tr. 2036.

Moreover, an x-ray on July 8, 2009, revealed

only “[m]ild-moderate thoracic disc degeneration.”

Tr. 1445.

On November 17, 2009, Plaintiff told Peter Hatcher, M.D., that
other physicians had told him that he has “damaged discs,” but
Dr. Hatcher noted there was nothing in his chart to substantiate
that claim.

Moreover, on that day Plaintiff “[f]reely state[d]”

that if Dr. Hatcher did not provide Plaintiff with narcotic pain
medication, he would get them from somewhere else.

Tr. 1335.

Accordingly, the Court concludes the ALJ reasonably cited
the inconsistency of Plaintiff’s testimony and reports with the
medical evidence as a reason to discredit Plaintiff’s testimony.
D.

Lack of Candor Regarding Drug Use and Secondary-Gain
Motivations for Accessing Medical Resources

Finally, the ALJ also discredited Plaintiff’s testimony on
the basis that Plaintiff demonstrated a lack of candor regarding
his use of drugs and demonstrated secondary-gain motives such as
drug-seeking behavior with treatment providers.
As the ALJ noted, on numerous occasions Plaintiff made
statements regarding his drug use that were inconsistent with
other reports and drug tests or otherwise were not candid.

For

example, on March 3, 2009, Plaintiff reported “consistent use of
methamphetamine” and a history of use of cocaine, heroin,
marijuana, and alcohol.

Tr. 553.

On June 1, 2009, Plaintiff

stated he “has been using methamphetamine fairly regularly since
21 - OPINION AND ORDER

January when he lost his job.”

Tr. 1651.

Moreover, on July 2,

2009, Plaintiff initially stated he quit using methamphetamine
“some time ago” before later admitting to using methamphetamine
as recently as one week before that emergency-room visit and
stated he had smoked heroin in the past.

Tr. 585.

On July 9,

2009, however, Plaintiff “denied illicit drug use since treatment
for his brain aneurysm in 05/2009.”

Tr. 1472.

Notably, at the

hearing Plaintiff also stated he had never used heroin.

Tr. 67.

On July 2, 2011, an emergency-room provider noted Plaintiff
appeared to be under the influence of stimulants even though
Plaintiff denied using stimulants.

Tr. 870.

Plaintiff tested positive for amphetamines.

That day, however,
Tr. 870.

On

January 7, 2011, Plaintiff stated he had not used cocaine,
fentanyl, or heroin for 9-12 months, but he tested positive for
cocaine that day.

Tr. 910, 918.

During an evaluation on

March 1, 2012, Plaintiff “hint[ed] at some substance abuse,” but
the evaluator found Plaintiff “may not be entirely forthcoming in
that arena.”

Tr. 1126.

On July 11, 2013, Plaintiff also gave

“conflicting reports about recent [drug] use.”

Tr. 1590.

On

February 8, 2013, Plaintiff stated he had not used drugs or
alcohol since 2004, that he frequently used cocaine in the 1990s,
methamphetamine “a few times” in his life, heroin “on and off”
since 1994, and marijuana “on and off” since the age of 12.
Tr. 1601.

On September 19, 2014, Plaintiff was “unwilling to

22 - OPINION AND ORDER

specify which substances he has been most recently using.”
Tr. 2009.
In addition, the ALJ correctly noted the record is replete
with instances of Plaintiff demonstrating secondary-gain motives
with treatment providers, including drug-seeking behavior.

On

July 3, 2009, Plaintiff “demanded to be discharged against
medical advice” after emergency-room personnel explained to him
that they would not prescribe narcotics for him.

Tr. 582-83.

As

the ALJ noted, on multiple occasions Plaintiff overdosed on
various prescription medications in order to avoid arrest.

See,

e.g., Tr. 1061, 1120.
On July 26, 2009, Plaintiff presented to the emergency room
with the chief complaint of “I’m not doing good” and with
“thoughts of overdose."

Tr. 1447.

After examining Plaintiff,

however, the emergency-room physician stated “[i]t is likely that
the patient is using the hospital for housing.”

Tr. 1448.

On August 12, 2011, Plaintiff “reported an overdose of
Doxepin,” but his toxicology screen was negative for the drug.
Tr. 1003.

His treatment provider noted at the time that

Plaintiff “had a history of similar false reports in the past”
and that Plaintiff ultimately “admitted to using [the]
circumstance to get resources.”

Tr. 1003.

At that time

Plaintiff was given a final diagnosis of malingering.

Tr. 1007.

During a hospitalization on August 22, 2014, Plaintiff’s

23 - OPINION AND ORDER

treatment providers observed as follows:

“While walking to the

bathroom, patient abruptly fell on the ground twice, very
possibly intentionally in an attempt to stay in hospital (ED MD
had informed patient that patient will likely discharge today
from ED).”

Tr. 1831.

On August 25, 2014, Plaintiff again presented to the
emergency room with depression and suicidal ideation.

Tr. 1818.

After Plaintiff was told he would not be prescribed
benzodiazepine antidepressants, however, he stated he was “safe
to go because he is not going to get any benzodiazepines here.”
Tr. 1818.

Plaintiff’s treatment provider diagnosed him with

“[r]ule out malingering” and stated there “is clearly a secondary
gain of him wanting benzodiazepines, which is why he is wanting
to be hospitalized.”

Tr. 1818.

Accordingly, the Court concludes the ALJ reasonably
discredited Plaintiff’s testimony on the basis of his lack of
candor regarding drug use as well as the secondary-gain motives
that he repeatedly demonstrated while accessing health-care
services.

Each of these reasons considered together readily

amount to clear and convincing reasons for the ALJ to discredit
Plaintiff’s testimony.
On this record, therefore, the Court concludes the ALJ did
not err when he discredited Plaintiff’s testimony because he
provided legally sufficient reasons supported by substantial

24 - OPINION AND ORDER

evidence in the record for doing so.
III. Plaintiff’s GAF Scores
Plaintiff next contends the ALJ erred when he did not find
Plaintiff disabled on the basis of Plaintiff’s GAF scores.

In

particular, Plaintiff contends the ALJ erred when he did not find
Plaintiff disabled on the basis of GAF scores issued on
August 12, 2011 (Tr. 1020); July 9, 2009 (Tr. 1481); June 1, 2009
(Tr. 1653); and August 23, 2014 (Tr. 1826).
The Ninth Circuit, however, “has recognized that ‘the
Commissioner has determined the GAF scale does not have a direct
correlation to the severity requirements in [the Social Security
Administration’s] mental disorders listings.’”

Doney v. Astrue,

485 F. App’x 163, 165 (9th Cir. 2012)(quoting McFarland v.
Astrue, 288 F. App’x 357, 359 (9th Cir. 2008)).

See also Cote v.

Colvin, No. 3:15-cv-00103-SI, 2015 WL 7871169, at *6 (D. Or.
Dec. 4, 2015).

The Ninth Circuit, therefore, has not required

ALJs to provide any rationale for disregarding or discrediting a
GAF score when evaluating a claimant’s mental-health limitations.
See Doney, 485 F. App’x at 165 (“We therefore hold that it was
not error for the ALJ to disregard [the claimant’s] GAF score.”).
The ALJ in this case, nonetheless, explained:
I find all such scores to be unpersuasive as many, if
not all, occurred in the context of substance abuse
and/or dependence. Moreover, these scores are likely
rested, at least in part, on the claimant’s subjective
complaints, which are not deemed entirely credible.
25 - OPINION AND ORDER

Tr. 38.

As noted, the ALJ provided legally sufficient reasons

for discrediting Plaintiff’s testimony and correctly observed
Plaintiff’s GAF scores were, at the least, based partly on his
subjective reporting.

Moreover, the ALJ was correct that many of

Plaintiff’s GAF scores were issued during the lengthy periods
throughout the record in which Plaintiff was abusing and/or
dependent upon drugs.
Accordingly, on this record the Court concludes the ALJ did
not err when he discredited Plaintiff’s GAF scores.
IV.

Opinions of Nonexamining Psychiatrists Drs. Boyd and
Anderson
Plaintiff next contends the ALJ erred when he partially

discredited the opinions of nonexamining psychiatrists Joshua J.
Boyd, Psy.D., and Dorothy Anderson, Ph.D.

In particular,

Plaintiff contends the ALJ erred when he did not include in his
assessment of Plaintiff’s RFC the statements of Drs. Boyd and
Anderson that Plaintiff should have an “understanding
supervisor.”
The ALJ “may reject the opinion of a non-examining physician
by reference to specific evidence in the medical record.”
v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998).

Sousa

See also

Baxala v. Colvin, 671 F. App’x 477, 479 (9th Cir. 2016).
The ALJ declined to include in his assessment of Plaintiff’s
RFC the limitation regarding the “understanding supervisor”
because the ALJ did “not find this to be tantamount to a
26 - OPINION AND ORDER

functional limitation” insofar as “[u]nlike the other opined
social limits, that comment does not address the nature and
frequency of contact or interaction.”

Tr. 38.

In addition, the

ALJ noted none of Plaintiff’s treatment providers identified the
necessity of Plaintiff to have an understanding supervisor.

The

ALJ otherwise gave the opinions of Drs. Boyd and Anderson
“substantial weight.”

Tr. 38.

The ALJ was correct that the “understanding supervisor”
comment in the opinions of Drs. Boyd and Anderson is unlike the
social functional limitations contained in an assessment of a
claimant’s RFC because it does not address the extent or nature
of interaction with a supervisor, but instead applies only to the
personal attributes of a potential supervisor.

The ALJ found

this to be ill-suited to the inherently quantitative analysis in
the assessment of a claimant’s RFC as well as to the analysis at
Step Five of the sequential evaluation.

Moreover, the ALJ was

correct that none of Plaintiff’s treatment providers identified
his need for an understanding supervisor as a requirement for
Plaintiff to be able to function in a workplace or any other
similar environment.
Accordingly, on this record the Court concludes the ALJ did
not err when he partially discredited the nonexamining opinions
of Drs. Boyd and Anderson.

27 - OPINION AND ORDER

V.

Opinion of Daniel Wardin, LPC
Plaintiff next contends the Comissioner erred when she

discredited the opinion of Daniel Wardin, LPC, dated August 21,
2015, that was first submitted to the Appeals Council after the
ALJ rendered his decision.

The Appeals Council reviewed LPC

Wardin’s opinion, but the Appeals Council found it “does not
provide a basis for changing the [ALJ’s] decision.”

Tr. 2.

Accordingly, the Appeals Council declined to review the ALJ’s
decision.

Tr. 1.

When a claimant “submits evidence for the first time to the
Appeals Council, which considers that evidence in denying review
of the ALJ’s decision, the new evidence is part of the
administrative record, which the district court must consider in
determining whether the Commissioner’s decision is supported by
substantial evidence.”

Brewes, 682 F.3d at 1159-60, 1162-63.

The Court, therefore, considers LPC Wardin’s opinion when
determining whether the ALJ’s evaluation of the medical record is
based on substantial evidence.

Id.

LPC Wardin was Plaintiff’s therapist and case manager at
Cascadia Behavioral Health from May 14, 2014, to February 24,
2015.

Tr. 22.

LPC Wardin diagnosed Plaintiff with PTSD and

major depressive disorder and stated Plaintiff’s symptoms were
suicidal ideation; social anxiety; “severe trauma responses”; and
severe, chronic depression.
28 - OPINION AND ORDER

Tr. 22.

LPC Wardin opined Plaintiff

demonstrated “extreme” limitations in concentration, persistence,
and pace; social functioning; and activities of daily living.
Tr. 23.

LPC Wardin also indicated Plaintiff is moderately

limited in his abilities to sustain an ordinary routine without
special supervision and to respond appropriately to changes in
the work setting as well as markedly limited in his abilities to
work in coordination with or proximity to others, to interact
appropriately with the public, to accept instructions and to
respond appropriately to criticism from supervisors, and to get
along with coworkers or peers.

Tr. 23.

At the outset the Court notes the ALJ rendered his decision
based on a comprehensive review of a medical record that was over
1,700 pages long at the time of the ALJ’s decision.

LPC Wardin’s

treatment notes consist of an approximately 60-page portion of an
otherwise extremely voluminous medical record.
2045.

See Tr. 1983-

Moreover, after a review of LPC Wardin’s records, it is

clear he relied extensively on Plaintiff’s subjective reporting.
In light of the significant issues with Plaintiff’s credibility
identified by the ALJ, LPC Wardin’s reliance on Plaintiff’s
subjective reporting casts doubt on LPC Wardin’s opinion.

In

addition, despite repeatedly noting Plaintiff’s drug abuse in his
treatment records (Tr. 1985, 1991, 1994, 1998, 2003-04, 2009,
2025, 2043-44), LPC Wardin did not mention Plaintiff’s substance
abuse in his opinion nor explain how it affects Plaintiff’s

29 - OPINION AND ORDER

mental limitations.

In light of the prevalence of Plaintiff’s

drug use in the record as a whole as well as in LPC Wardin’s own
records, LPC Wardin’s failure to account for Plaintiff’s drug
abuse is a serious problem with LPC Wardin’s opinion.
Accordingly, the Court concludes the ALJ’s decision is supported
by substantial evidence notwithstanding the submission of LPC
Wardin’s opinion to the Appeals Council.
On this record, therefore, the Court concludes the
Commissioner did not err when the Appeals Council determined
LPC Wardin’s opinion did not provide a basis to change the ALJ’s
decision.
VI.

Lay-Witness Testimony of Argyro Apostolou
Finally, Plaintiff contends the ALJ erred when he

discredited the lay-witness testimony of Argyro Apostolou,
Plaintiff’s cousin.
Lay-witness testimony regarding a claimant's symptoms is
competent evidence that the ALJ must consider unless he
“expressly determines to disregard such testimony and gives
reasons germane to each witness for doing so.”
236 F.3d 503, 511 (9th Cir. 2001).

Lewis v. Apfel,

The ALJ’s reasons for

rejecting lay-witness testimony must also be “specific.”

Stout

v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1054 (9th
Cir. 2006).

Nevertheless, an ALJ is not required to address each

lay-witness statement or testimony on an “individualized,

30 - OPINION AND ORDER

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 v. Astrue, 674 F.3d 1104, 1114 (9th

Cir. 2012)(quotation omitted).

Germane reasons for discrediting

a witness’s testimony include inconsistency with the medical
evidence and the fact that the testimony “generally repeat[s]”
the properly discredited testimony of a claimant.
Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).

Bayliss v.

See also Williams

v. Astrue, 493 F. App’x 866 (9th Cir. 2012).
Apostolou submitted a Third Party Adult Function Report
dated July 20, 2013.

Tr. 281-88.

Apostolou stated Plaintiff

“can’t focus on a task and complete projects” and can only pay
attention for “a few minutes.”

Tr. 281, 285.

Apostolou reported

he “must repeat and give very short instructions” in order for
Plaintiff to follow those instructions and that Plaintiff does
not get along with authority figures.

Tr. 285.

Apostolou

described Plaintiff as “emotionally volatile,” stated Plaintiff
is “terrible” at handling stress, and reported Plaintiff “doesn’t
get along with family members” and “always seems to have
conflicts with friends.”

Tr. 285-87.

The ALJ gave Apostolou’s opinion “limited weight” because
Apostolou “indicated he was ‘not sure’ for many of his responses
to questions regarding functioning.”

31 - OPINION AND ORDER

Tr. 38.

In his Third Party

Function Report Apostolou answered he was “not sure” to more than
a dozen questions, including relatively basic questions like
whether Plaintiff had side-effects from his medications, the
degree to which Plaintiff spends time with others, how far
Plaintiff can walk before needing rest, and what Plaintiff does
on a daily basis.

The ALJ, therefore, reasonably doubted the

reliability of Apostolou’s opinion based on the degree to which
Apostolou was unsure as to basic facts about Plaintiff’s
functioning.
On this record, therefore, the Court concludes the ALJ did
not err when he discredited Apostolou’s opinion because the ALJ
provided legally sufficient reasons supported by substantial
evidence in the record for doing so.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the
Commissioner and DISMISSES this matter pursuant to sentence four
of 42 U.S.C. § 405(g).
IT IS SO ORDERED.
DATED this 15th day of June, 2017.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
32 - OPINION AND ORDER