Bax v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: October 14, 2022
• Docket: 3:22-cv-05334
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 BRIAN B., 9 Plaintiff, Case No. C22-5334-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of his applications for Supplemental Security Income 15 and Disability Insurance Benefits. Plaintiff contends the administrative law judge (“ALJ”) erred 16 in assessing his alleged sitting limitations and in finding at step four that he could perform his 17 past work as actually and generally performed. (Dkt. # 10 at 1-2.) As discussed below, the Court 18 AFFIRMS the Commissioner’s final decision and DISMISSES the case with prejudice. 19 II. BACKGROUND 20 Plaintiff was born in 1966, has one year of college education, and has worked as a 21 customer service representative, interpreter services scheduler/dispatcher, and at a hotel front 22 desk. AR at 50, 54, 301. Plaintiff was last gainfully employed in 2017. Id. at 68-69. 23 1 In September 2018, Plaintiff applied for benefits, with an amended alleged onset date of 2 January 1, 2018. AR at 23, 274-86. Plaintiff’s applications were denied initially and on 3 reconsideration, and Plaintiff requested a hearing. Id. at 134-37, 140-47. After the ALJ 4 conducted a hearing in April 2021 (id. at 41-79), the ALJ issued a decision finding Plaintiff not

5 disabled. Id. at 23-34. 6 As the Appeals Council denied Plaintiff’s request for review, the ALJ’s decision is the 7 Commissioner’s final decision. AR at 1-6. Plaintiff appealed the final decision of the 8 Commissioner to this Court. (Dkt. # 4.) 9 III. LEGAL STANDARDS 10 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 11 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 12 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 13 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the 14 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012)

15 (cited sources omitted). The Court looks to “the record as a whole to determine whether the error 16 alters the outcome of the case.” Id. 17 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 18 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 19 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 20 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 21 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 22 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may 23 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 1 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 2 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 3 IV. DISCUSSION 4 A. The ALJ Did Not Err in Assessing Plaintiff’s Alleged Sitting Limitations

5 The ALJ discussed, inter alia, Plaintiff’s alleged physical limitations and found that they 6 were not as severe as he alleged because: (1) Plaintiff was able to work despite his physical 7 conditions and stopped working due to mental limitations; (2) many of Plaintiff’s objective 8 examination findings were normal and/or improved with treatment; (3) Plaintiff did not receive 9 any treatment for his physical conditions for one year of the adjudicated period (but continued to 10 seek out mental health treatment); and (4) Plaintiff was able to engage in many physical 11 activities inconsistent with his alleged limitations, such as preparing meals, completing 12 household chores, driving, shopping, playing bass guitar, taking art classes, lifting weights, and 13 practicing yoga. AR at 29-31. Absent evidence of malingering, an ALJ is required to provide 14 clear and convincing reasons to discount a claimant’s testimony. See Burrell v. Colvin, 775 F.3d

15 1133, 1136-37 (9th Cir. 2014). 16 Plaintiff presents a narrow challenge to the ALJ’s assessment of his testimony, 17 contending that the ALJ failed to explain why she did not fully credit his alleged sitting 18 limitations. (Dkt. # 10 at 12 (“In formulating the [residual functional capacity (“RFC”) 19 assessment], the ALJ essentially disregarded [Plaintiff’s] testimony that described his difficulty 20 with sitting.”).) The ALJ did discuss Plaintiff’s allegation of problems sitting, however. See, e.g., 21 AR at 29. Moreover, the ALJ provided multiple reasons to discount Plaintiff’s allegations that 22 apply directly to his sitting limitations. 23 1 First, as noted above, the ALJ found that Plaintiff was able to work with the same neck 2 and back pain issues that he now claims are disabling, referencing his hearing testimony that he 3 was fired due to his mental (rather than physical) limitations. AR at 29. This reason is a clear and 4 convincing reason to discount Plaintiff’s testimony. Plaintiff provided minimal testimony

5 regarding his alleged sitting limitations, claiming that he could only sit for 30 minutes before he 6 started to squirm (id. at 64-65), but he testified extensively about the mental limitations that 7 caused him to be terminated from his most recent job. See id. at 51-60. When asked directly why 8 he was terminated, he attributed this decision to his mental problems. See id. at 51. In Plaintiff’s 9 function reports, he stated that his “hips cause pain if [he] sit[s] or stand[s] to[o] long” and that 10 he must shift between sitting and standing “often[,]” but he also reported that he spends most of 11 his day sitting and reclining. See id. at 322, 327, 356. Plaintiff did not specifically allege that he 12 could not sit for six hours out of an eight-hour workday (as found by the ALJ), and his work 13 activity suggests that he could, given that two of his past jobs required him to sit longer than that. 14 See id. at 336-37 (Plaintiff’s description of two past jobs requiring 7-8 hours of sitting per day).

15 Plaintiff did tell an agency employee that he stopped working at his interpreter services job 16 because he could no longer sit all day (id. at 320), but this statement is contradicted by his 17 hearing testimony indicating that he stopped working due to mental limitations. See id. at 51-60. 18 Because the ALJ’s reasoning is supported by Plaintiff’s hearing testimony, which constitutes 19 substantial evidence, Plaintiff has not shown that the ALJ erred in finding that his ability to 20 physically perform his past work suggests that his physical limitations are not disabling. 21 Moreover, two of the ALJ’s other reasons to discount Plaintiff’s allegations also apply to 22 his sitting limitations, and Plaintiff does not challenge these lines of reasoning. The ALJ found 23 that although Plaintiff reported disabling neck and back pain, his physical examinations revealed 1 many normal objective findings and his symptoms improved with treatment (physical therapy, 2 topical ointment, elbow strap). AR at 30. The ALJ also found that Plaintiff’s yearlong gap in 3 treatment for his physical conditions also suggests that his physical limitations were less severe 4 than alleged. Id. Plaintiff failed to challenge these lines of reasoning in his opening brief, and

5 they provide further support for the ALJ’s assessment of Plaintiff’s sitting limitations. See 6 Molina, 674 F.3d at 1113-14 (holding that a failure to seek treatment can undermine a claimant’s 7 allegation of disabling pain); Tommasetti v. Astrue, 533 F.3d 1035, 1039-40 (9th Cir. 2008) 8 (“The record reflects that Tommasetti responded favorably to conservative treatment including 9 physical therapy and the use of anti-inflammatory medication, a transcutaneous electrical nerve 10 stimulation unit, and a lumbosacral corset. Such a response to conservative treatment undermines 11 Tommasetti’s reports regarding the disabling nature of his pain.”). 12 Because the ALJ provided multiple clear and convincing reasons, some unchallenged, to 13 discount Plaintiff’s allegation of disabling physical limitations, Plaintiff has not shown that the 14 ALJ erred in assessing his ability to sit.

15 B. The ALJ’s Step-Four Error is Harmless 16 Plaintiff bears the burden at step four of demonstrating that he or she can no longer 17 perform past relevant work. 20 C.F.R. §§ 404.1512(a), 404.1520(f); Barnhart v. Thomas, 540 18 U.S. 20, 25 (2003). A claimant may be found not disabled at step four based on a determination 19 that he or she can perform past relevant work as it was actually performed or as it is generally 20 performed in the national economy. Social Security Ruling (“SSR”) 82-61, 1982 WL 31387 (Jan. 21 1, 1982). The Dictionary of Occupational Titles (“DOT”) is considered the best source for 22 determining how past relevant work is generally performed. See Pinto v. Massanari, 249 F.3d 23 840, 845-46 (9th Cir. 2001). 1 In this case, the ALJ found Plaintiff not disabled at step four because he could perform 2 two of his past jobs, customer service representative and interpreter services operator, as actually 3 and generally performed. See AR at 33. The ALJ’s RFC assessment described Plaintiff as 4 capable of standing/walking for about six hours and sitting for about six hours, in an eight-hour

5 workday with normal breaks. See id. at 28. Plaintiff argues that the ALJ erred in finding that he 6 could perform his past jobs, in which he was required to sit longer than six hours per day. (Dkt. 7 # 10 at 3.) 8 The Commissioner concedes that the ALJ erred in finding that Plaintiff could perform his 9 past jobs as actually performed, given his statements that he sat for 7-8 hours when he performed 10 those jobs. (Dkt. # 11 at 4.) The Commissioner nonetheless contends that this error is harmless 11 because the ALJ properly relied on the testimony of the vocational expert (“VE”) that Plaintiff 12 could perform his past work as generally performed. Indeed, the VE testified that a person with 13 Plaintiff’s RFC could perform the jobs of customer service representative and interpreter services 14 operator, which are defined in the DOT to be sedentary. AR at 70-71 (referencing DOT 239.362-

15 014, available at 1991 WL 672224; DOT 235.662-026, available at 1991 WL 672176). 16 Sedentary jobs generally require six hours of sitting per day. See SSR 96-9p, 1996 WL 374185, 17 at *3 (Jul. 2, 1996). Thus, the VE’s testimony is consistent with the DOT and the ALJ’s RFC 18 assessment, and supports the ALJ’s step-four finding that Plaintiff could perform his past jobs as 19 generally performed. 20 Although Plaintiff correctly notes that the VE did not explicitly distinguish between 21 whether Plaintiff could perform his past jobs as actually performed or as generally performed 22 (dkt. # 10 at 6), he has not shown that such specificity is required. The Ninth Circuit does not 23 require that an ALJ obtain VE testimony that delineates between whether a claimant can perform 1 a past job as generally performed and as actually performed. See Pinto, 249 F.3d at 845 (“We 2 have never required explicit findings at step four regarding a claimant’s past relevant work both 3 as generally performed and as actually performed. The [VE] merely has to find that a claimant 4 can or cannot continue his or her past relevant work as defined by the regulations above.”). Here,

5 the VE identified the DOT definitions corresponding with Plaintiff’s past jobs, correctly stated 6 that the jobs were defined to be sedentary, and testified that a person with Plaintiff’s RFC could 7 perform those jobs. AR at 70-71. 8 The VE’s testimony identifying the DOT definitions for Plaintiff’s past jobs and opining 9 that a person with Plaintiff’s RFC could perform those jobs is substantial evidence that supports 10 the ALJ’s step-four finding that Plaintiff is not disabled because he could perform past jobs as 11 generally performed. See SSR 82-61, at *2 (“[I]f the claimant cannot perform the excessive 12 functional demands and/or job duties actually required in the former job but can perform the 13 functional demands and job duties as generally required by employers throughout the economy, 14 the claimant should be found to be ‘not disabled.’”). The ALJ’s error in finding that Plaintiff

15 could perform his past jobs as actually performed is therefore harmless. 16 V. CONCLUSION 17 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this 18 case is DISMISSED with prejudice. 19 Dated this 14th day of October, 2022. 20 A 21 MICHELLE L. PETERSON United States Magistrate Judge 22