Dutton v. Berryhill

Filing 17

ORDER AFFIRMING THE COMMISSIONER AND DISMISSING THE CASE by Hon. Brian A Tsuchida. (AE)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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JESSE RAY D.,
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Plaintiff,
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v.
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COMMISSIONER OF SOCIAL SECURITY,

CASE NO. C18-5467 BAT
ORDER AFFIRMING THE
COMMISSIONER AND DISMISSING
THE CASE

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Defendant.
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Plaintiff appeals the ALJ’s 2017 non-disability decision. The ALJ found testicular cancer,

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borderline intellectual functioning and depression are severe impairments; plaintiff retains the

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RFC to perform light work with additional limitations; plaintiff has no past relevant work but can

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perform other jobs in the national economy. Tr. 20-28.Plaintiff contends the ALJ misevaluated

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the opinion of Richard Bolton, Ph.D., and plaintiff’s testimony. Dkt. 11. For the reasons below,

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the Court AFFIRMS the Commissioner’s final decision and DISMISSES the case with

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prejudice.

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A.

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Dr. Bolton
Dr. Bolton opined plaintiff can understand and remember 1-3 step routine instructions,

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can complete simple, repeated, familiar tasks and will occasionally require additional support to

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understand job requirements but can complete tasks independently after a short period of

ORDER AFFIRMING THE COMMISSIONER AND DISMISSING THE CASE - 1

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instruction. Tr. 764-65. Plaintiff contends the ALJ harmfully failed to account for these

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limitations.

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The ALJ found plaintiff was not limited to 1-3 step tasks based upon his work history. Tr.

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26. Plaintiff contends this is a “conclusion not an explanation.” Dkt. 11 at 3. However, the ALJ

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may discount a doctor’s opinion that is inconsistent with a claimant’s work history, which is

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what the ALJ did here. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001).

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Additionally, Dr. Bolton’s opinion plaintiff can perform 1-3 step instructions is consistent

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with the ALJ’s RFC determination that plaintiff can perform simple routine tasks, and work that

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is limited to simple work-related decisions. See e.g. Koch v. Astrue, 2009 WL 1743680 at * 15

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(D.Or. June 15, 2009) (“Doctor Bates–Smith further explained that Koch’s work history and

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activities of daily living showed that Koch could understand and remember simple, three-step

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instructions. . . Thus, I conclude that the ALJ's decision to limit Koch to simple, routine tasks

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adequately captured his limitation.”);

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Further at step five, the VE identified jobs reasoning level 2 jobs that plaintiff can

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perform such as product assembler DOT 706.684-022, or laundry folder DOT 369.687-018. Tr.

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27. This reasoning level is consistent with an RFC limiting a claimant to simple, routine or

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repetitive work. See Zavalin v. colvin, 778 F.3d 842, 846 (9th Cir. 2015); Bannister v. Colvin,

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2016 WL 5141722 at *5 (W.D.Wa. Sept. 21, 2016) (“The ability to carry out instructions of

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three steps or less is not inconsistent with Reasoning Level 2 jobs. See DOT, App. C, 1991 WL

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688702; Ashley v. Astrue, No. C11-1986, 2012 WL 3599275 (W.D. Wa. July 20, 2012); Hamlett

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v. Astrue, No. C11-3818, 2012 WL 469722 (C.D. Ca. Feb. 14, 2012) (correlating Reasoning

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Level 1 with one and two step instructions and Reasoning Level 2 with three and four-step

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instructions).” Hence the ALJ identified jobs that are consistent with Dr. Bolton’s opinion that

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plaintiff is limited to performing 1-3 step routine instructions.

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The jobs the VE identified jobs also have a Specific Vocational Preparation (SVP) level

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of 2. Plaintiff has not explained how or why the support he needs to understand job requirements

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is inconsistent with the requirements of a SVP 2 level job. Plaintiff bears the burden of

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establishing the ALJ harmfully erred and has failed to do so. See Molina v. Astrue, 674 F.3d

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1104, 1111 (9th Cir. 2012) (Court may not reverse unless error is harmful, and claimant has

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burden of showing harm). For the reasons above, the Court rejects plaintiff’s argument that the

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ALJ harmfully failed to account for all limitations assessed by Dr. Bolton.

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B.

Plaintiff’s Testimony
The ALJ gave at least one valid reason to discount plaintiff’s testimony. The ALJ found

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plaintiff’s testimony was not supported by the medical evidence. Tr. 24. The ALJ gave great

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weight to Guillermo Rubio’s M.D. opinion that plaintiff can perform light work. Tr. 26. This is a

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valid reason because the ALJ may consider the opinion of physician to discount a claimant’s

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testimony. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). The ALJ also gave weight

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to Dr. Bolton’s opinion. Dr. Bolton did not find plaintiff’s mental limitations precluded

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employment and as discussed above the ALJ’s RFC determination accounts for the limitations

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Dr. Bolton assessed.

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The ALJ also found plaintiff’s work history undercut his testimony about his physical

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and mental limitations. Tr. 25. The ALJ found plaintiff’s work as a property manager, Swanson’s

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employee, cannery worker, and wood-stove warehouse worker, and his ability to perform work

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digging ditches, replacing sprinkler heads, mowing and performing grounds maintenance,

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undercut his testimony about his physical and mental limitations. Tr. 25. The ability to work

ORDER AFFIRMING THE COMMISSIONER AND DISMISSING THE CASE - 3

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while allegedly disabled is a clear and convincing reason to discount a claimant’s testimony. See

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Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009) (a claimant’s employment and seeking of

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work while allegedly disabled are proper grounds for discounting his testimony). Even if

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plaintiff’s past work did not constitute substantial gainful activity, it illustrates an ability to work

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that cannot be squared with his testimony about his limitations. Further as the ALJ noted,

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plaintiff stopped working some of his past jobs for reasons other than physical or mental

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limitations, or for reasons that the plaintiff was not sure of. Tr. 25 Hence there is little to show

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plaintiff stopped past jobs due to disability.

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The Court notes plaintiff’s contention the ALJ erred in failing to develop the record. Dkt.

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11 at 5. The ALJ’s duty to develop the record is triggered only if there is ambiguous evidence or

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if the record is inadequate to allow for proper evaluation of the evidence. Mayes v. Massanari,

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276 F.3d 453, 459-60 (9th Cir. 2001). However, plaintiff presents nothing showing an ambiguity

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existed or that the record is inadequate; plaintiff accordingly fails to show harmful error. Plaintiff

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also argues in his reply brief the case should be reversed because the ALJ did not fully develop

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the medical record “beginning with the preceding 12 months of filing his applications.” Dkt. 16

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at 4. But plaintiff fails to articulate how this harmed him, i.e., are there medical records from this

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period that would undermine the ALJ’s determination. As plaintiff bears the burden of proving

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harm and has failed to do so, the Court declines to find reversible error.

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The ALJ gave other reasons to discount plaintiff’s testimony but even if the other reasons

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are erroneous, the error is harmless. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155,

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1162 (9th Cir. 2008) (including an erroneous reason among other reasons to discount a

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claimant’s credibility does not negate the validity of the overall credibility determination and is

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ORDER AFFIRMING THE COMMISSIONER AND DISMISSING THE CASE - 4

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at most harmless error where an ALJ provides other reasons that are supported by substantial

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evidence). The Court accordingly affirms the ALJ’s assessment of plaintiff’s testimony.

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For all of the reasons set forth above, the Court AFFIRMS the Commissioner’s final
decision and DISMISSES the case with prejudice.
DATED this 2nd day of January, 2019.

A
BRIAN A. TSUCHIDA
Chief United States Magistrate Judge

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