Crow v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: July 18, 2024
• Docket: 3:24-cv-05000
• Status: Unknown

Opinion

1 2 3 4

5 6 7 UNITED STATES DISTRICT COURT 8 WESTERN DISTRICT OF WASHINGTON AT TACOMA 9 10 DYLLAN C. for ROBERT C., CASE NO. 3:24-cv-05000-GJL 11 Plaintiff, v. ORDER RE: SOCIAL SECURITY 12 DISABILITY APPEAL COMMISSIONER OF SOCIAL 13 SECURITY, 14 Defendant.

15 This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local 16 Magistrate Judge Rule MJR 13. See also Consent to Proceed Before a United States Magistrate 17 Judge, Dkt. 3. This matter has been fully briefed. See Dkts. 7, 9, 10. 18 After considering and reviewing the record, the Court concludes the Administrative Law 19 Judge (ALJ) did not err in finding Plaintiff not disabled. The Court accordingly AFFIRMS the 20 Commissioner's final decision in this matter. 21 I. PROCEDURAL HISTORY 22 Dyllan C., survivor of Robert C. (Plaintiff), filed this action on behalf of Plaintiff 23 pursuant to 42 U.S.C. § 405(g) for judicial review of Defendant’s denial of Plaintiff’s application 24 1 for Disability Insurance Benefits (DIB). Plaintiff’s application for DIB was denied initially and 2 upon reconsideration. See Administrative Record (AR) 131–33, 143. Plaintiff subsequently died, 3 and Dyllan C. was substituted as the party in this action. AR 218. The ALJ held a hearing in this 4 matter on December 20, 2022. AR 48–76. On February 17, 2023, the ALJ issued a written

5 decision finding Plaintiff not disabled prior to his date last insured of June 30, 2021. AR 14–47. 6 Plaintiff also applied for Supplemental Security Income (SSI) benefits. AR 275–81. The 7 ALJ found Plaintiff disabled beginning on his 55th birthday, several months after his date last 8 insured. AR 35. However, as Plaintiff concedes (Dkt. 1 at 2; Dkt. 7 at 2), Dyllan C. was not a 9 qualified survivor for the purposes of Plaintiff’s SSI application, see 20 C.F.R. § 416.542(b), and 10 therefore the denial of Plaintiff’s SSI application is not at issue in this case. 11 The Appeals Council denied Plaintiff’s request for review, making the written decision 12 by the ALJ the final agency action subject to judicial review. AR 1–6. Plaintiff filed a Complaint 13 in this Court seeking judicial review of the ALJ’s decision on January 2, 2024. Dkt. 1. Defendant 14 filed the sealed AR in this matter on March 4, 2024. Dkt. 5.

15 II. BACKGROUND 16 Plaintiff was born in 1966. AR 189. He was 54 years old on December 1, 2020, his 17 amended alleged disability onset date. AR 383. The ALJ found Plaintiff had, at a minimum, the 18 following severe impairments: inflammatory bowel disease; cardiac dysrhythmia; coronary 19 artery disease; hyperlipidemia; affective disorder; attention deficit hyperactivity disorder 20 (ADHD); posttraumatic stress disorder (PTSD); and Heroin abuse. AR 20. However, the ALJ 21 found Plaintiff was not disabled prior to his date last insured because he had the following 22 residual functional capacity (RFC): 23 to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), with the following additional limitations: able to understand, remember and carry out simple 24 1 work; no conveyor belt-paced production requirements; with standard work breaks provided; occasional, superficial interaction with the public, co-workers and supervisors; 2 occasional, routine workplace changes; and ready access to a bathroom.

3 AR 23. 4 III. DISCUSSION 5 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of 6 social security benefits if, and only if, the ALJ's findings are based on legal error or not 7 supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 8 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 9 In his opening brief, Plaintiff raises the following issues: (1) whether the ALJ erred in 10 failing to include absenteeism-related limitations in the RFC; (2) whether the ALJ provided 11 adequate reasons for rejecting certain lay witness statements; and (3) whether the ALJ erred by 12 failing to consider Plaintiff as a person of advanced age prior to his 55th birthday. Dkt. 7. 13 A. Plaintiff’s Absenteeism 14 Plaintiff argues the ALJ erred by failing to fully consider whether to include additional 15 limitations in the RFC to address the Plaintiff’s potential need for absences from work due to the 16 frequency of his medical appointments. Dkt. 7 at 3–7. In support, Plaintiff points to evidence 17 showing the high frequency of his medical appointments before, after, and during the relevant 18 period between his alleged onset date and his date last insured. See id. 19 The “RFC is an assessment of an individual's ability to do sustained work-related 20 physical and mental activities in a work setting on a regular and continuing basis.” SSR 96-8p. 21 The RFC is “the most [a claimant] can still do despite [their] limitations.” 20 C.F.R. § 22 404.1545(a)(1). “The RFC assessment considers only functional limitations and restrictions that 23

24 1 result from an individual's medically determinable impairment or combination of impairments, 2 including the impact of any related symptoms.” SSR 96-8p. 3 Because the RFC is based on a claimant’s potential to work on “a regular and continuing 4 basis,” a need to be absent from work due to medical appointments related to a claimant’s

5 impairments might present a potential limitation to be considered in formulating the RFC. See 6 SSR 96-8p (“A ‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an 7 equivalent work schedule.”). However, because the RFC reflects “the most [a claimant] can still 8 do,” 20 C.F.R. § 404.1545(a)(1) (emphasis added), frequent medical appointments will not 9 justify absenteeism limitations unless the appointments are necessary; and unavoidably result in 10 work absences. See Curtis v. Kijakazi, 2023 WL 3918687 at *2 (9th Cir. 2023) (unpublished) 11 (“Fatal to her challenge here, Curtis did not present evidence that her monthly appointments 12 would preclude her from working on a regular and continuing basis.”); Goodman v. Berryhill, 13 2017 WL 4265685 at *2–*3 (W.D. Wa. Sept. 25, 2017) (“[T]o be disabling, the frequency of 14 medical treatment must be necessitated by the medical condition and be substantiated by the

15 evidence.”); see also id. at *3 (“Accepting [that any medical appointment can result in a 16 limitation in the RFC] would presume disability for anyone who frequently visited a doctor 17 regardless of the necessity of the treatment or the medical prognosis.”). 18 The ALJ is only required to discuss evidence that would reasonably demonstrate that 19 such necessary, unavoidable work absences would occur. Although the ALJ must consider 20 evidence of the frequency of treatment and disruption to routine caused by treatment, see SSR 21 96-8p, “an ALJ ‘need not discuss all evidence presented to her. Rather, she must explain why 22 significant probative evidence has been rejected.’” Kilpatrick v. Kijakazi, 35 F.4th 1187, 1193 23

24 1 (9th Cir. 2022) (quoting Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394–95 (9th Cir. 2 1984)). 3 Most of the evidence of medical appointments Plaintiff identifies is neither significant 4 nor probative. Plaintiff points to evidence he attended scheduled medical appointments with

5 providers at home, by telephone, and at medical offices. See Dkt. 7 at 3–5 (citing AR 1225–26, 6 1236, 1243–44, 2097, 2327, 2610). This is not significant and probative evidence, as such 7 predictable, scheduled appointments, often of short duration, do not necessarily require 8 unavoidable work absences. See Goodman, 2017 WL 4265685 at *3 (“Nothing suggests that Mr. 9 Goodman could not have scheduled his medical appointments outside of working hours . . . .”). 10 Plaintiff also points to evidence he was hospitalized for several days twice during the 11 relevant period—once for a colostomy in response to his inflammatory bowel disease symptoms 12 (AR 1284) and once for a permanent pacemaker insertion (see AR 2114–16). Dkt. 7 at 3–5. This 13 evidence is also not significant and probative, as it involves only one-time medical procedures 14 unlikely to be repeated. A limitation unlikely to recur over a 12-month period is not included in

15 the RFC. See SSR 23-1p (“Because of the duration requirement, we will not include limitations 16 in the RFC assessment that completely resolve, or that we expect to completely resolve, within 17 12 months.”). For the same reason, evidence of Plaintiff’s medical appointments and emergency 18 care for side effects of his colostomy (e.g., rectal bleeding, AR 1227, 2044 and ostomy care, AR 19 1225–26) is not significant and probative, as Plaintiff’s colostomy was subsequently reversed 20 (see AR 2959). 21 Finally, Plaintiff points to medical appointments where he received emergency treatment 22 for conditions related to his impairments during the relevant period. Dkt. 7 at 3–5 (citing AR 23 2029, 2112, 2154, 2277). This evidence may be significant and probative, but the ALJ

24 1 adequately addressed much of Plaintiff’s emergency treatment as well as the underlying 2 symptoms which caused Plaintiff to receive such treatment. See AR 26–28. In particular, the ALJ 3 found Plaintiff’s conditions were managed effectively through treatment and that Plaintiff had 4 been non-compliant with that treatment for much of the assessed period. See id. This is a valid

5 basis on which to reject further limitations. See Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 6 2006) (symptoms that can be controlled “are not disabling”); 20 C.F.R. § 404.1530(a) (“In order 7 to get benefits, you must follow treatment prescribed by your medical source(s) if this treatment 8 is expected to restore your ability to work.”). 9 This finding was supported by substantial evidence and, contrary to Plaintiff’s assertion 10 (Dkt. 10 at 5), did pertain to the relevant time period. Some of Plaintiff’s emergency treatment in 11 April and May 2021 was due to symptoms of abdominal pain resulting from his inflammatory 12 bowel disease and ulcerative colitis. See AR 2029, 2277. The ALJ noted, with respect to 13 Plaintiff’s gastrointestinal symptoms, that Plaintiff had “stopped his medication without 14 consulting a doctor” and that between May 2021 and October 2021 “the record otherwise

15 suggest[ed] stability with his gastrointestinal condition.” AR 28 (citing AR 3016 (“He elected to 16 stop Humira on his own without consultation with any physician…[and]…[h]e decided to stop 17 the Humira himself approximately 6-8 weeks ago.”)). Some of Plaintiff’s emergency treatment 18 was due to chest pain and sick sinus syndrome resulting from his cardiac impairments. See AR 19 2112–14, 2154. But the ALJ noted Plaintiff’s permanent pacemaker insertion in May 2021 20 appeared to have resolved his cardiac symptoms, as he reported his symptoms of 21 lightheadedness, chest pain, shortness of breath, and nausea resolved in June 2021 and did not 22 23

24 1 have increased cardiac symptoms until September 2021 when he stopped taking medications. See 2 AR 27 (citing AR 1206, 2377).1 3 The ALJ therefore adequately addressed Plaintiff’s emergency treatment by addressing 4 the related symptomatic complaints, finding those complaints were resolved through treatment

5 and that Plaintiff had not complied with treatment at some points during the relevant period. 6 Plaintiff contends this is “an improper post hoc rationalization” for the ALJ’s decision to not 7 include an absenteeism limitation. Dkt. 10 at 5. But “[e]ven when an agency ‘explains its 8 decision with less than ideal clarity,’ [the Court] must uphold it ‘if the agency’s path may 9 reasonably be discerned.’” Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (quoting 10 Alaska Dep’t of Envtl. Conservation v. EPA, 540 U.S. 461, 497 (2004)). As discussed, an 11 absenteeism limitation is appropriate only if absences would be necessary because of a 12 claimant’s impairments. The ALJ explained why he did not include further limitations based on 13 the impairments which resulted in Plaintiff’s emergency treatment. He did not need to explicitly 14 reject an absenteeism limitation for the Court to infer and review why such limitations were not

15 included. See Honcoop v. Barnhart, 87 Fed. App’x 627, 629 (9th Cir. 2004) (unpublished) 16 (“‘Magic words’ are not required of an ALJ.”). 17 18 19 1 Plaintiff contends the ALJ’s treatment noncompliance finding was curious because “if non-compliance was truly 20 an issue, the ALJ would not have found [Plaintiff] disabled at all.” Dkt. 10 at 5. But when an ALJ finds a claimant was noncompliant with prescribed treatment, that does not necessarily mean the claimant must be found not disabled. See SSR 18-3p (“We will find the individual is disabled if we determine that the individual would remain 21 unable to engage in SGA, even if the individual had followed the prescribed treatment.”). Instead, the ALJ assesses the RFC based on what a claimant would be capable of had they followed prescribed treatment. See id. (“We will 22 determine what the individual’s residual functional capacity (RFC) would be had he or she followed the prescribed treatment. We will then use that RFC to reevaluate steps 4 and 5 of the sequential evaluation process . . . .”). Given 23 that the assessed RFC compelled different disability findings under the two age categories Plaintiff possessed during the time period assessed by the ALJ, it is plausible that the ALJ would find Plaintiff not disabled for only some of 24 that period despite Plaintiff’s treatment noncompliance. 1 B. Lay Witness Testimony 2 Plaintiff contends the ALJ failed to provide “germane reasons” for rejecting the 3 statements of his mother and son (Dkt. 7 at 7), as the ALJ is required to do when rejecting lay 4 witness testimony. See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Jerald H. v. Comm’r of

5 Soc. Sec., 2023 WL 6533477, at *3–*4 (W.D. Wa. Oct. 6, 2023) (concluding “germane reasons” 6 standard applies under new regulations for assessing medical opinion evidence). Plaintiff’s 7 mother submitted a statement in December 2022 (AR 379–80) and Plaintiff’s son testified at the 8 hearing before the ALJ (AR 58–67). Both explained that Plaintiff’s activity and energy worsened 9 in 2018 and that he often complained of stomach issues, fatigue, and chest pain. See id. 10 The ALJ rejected these statements because they were inconsistent with medical evidence 11 showing Plaintiff’s physical conditions “were largely medically manageable but [Plaintiff] was 12 noncompliant.” AR 34–35. This was a valid basis for rejecting these statements. See Lewis, 236 13 F.3d at 511 (“One reason for which an ALJ may discount lay testimony is that it conflicts with 14 medical evidence.”); Warre, 439 F.3d at 1006; 20 C.F.R. § 404.1530(a).

15 Plaintiff does not dispute that his physical conditions were “largely manageable” or that 16 he had periods of treatment noncompliance. See Dkt. 7 at 10. Rather, Plaintiff contends that this 17 finding was not supported by substantial evidence because most of the evidence of Plaintiff’s 18 treatment noncompliance occurred outside the relevant period. Id. 19 However, as discussed in the previous section, the ALJ made adequate findings related to 20 the effectiveness of treatment and Plaintiff’s noncompliance which were supported by substantial 21 evidence, and which did pertain to the relevant period. See AR 26–28. For instance, the ALJ 22 found Plaintiff had stopped taking medication for his gastrointestinal issues even though this 23 medication was effective in managing his symptoms. The ALJ also determined that Plaintiff’s

24 1 permanent pacemaker insertion, along with his medications, were effective in managing his 2 cardiac impairments. See id. 3 Because the ALJ rejected the lay witness testimony on a valid basis on which to disregard 4 the lay witness statements, the Court need not consider the remaining reasons proffered by the

5 ALJ because any such error would necessarily be harmless. See Molina, 674 F.3d at 1111–14. 6 C. Age Categories 7 Several months after his date last insured, Plaintiff turned 55. See AR 37, 189. In turn, 8 Plaintiff’s age category—for the purposes of applying the medical-vocational guidelines— 9 changed from being a “person closely approaching advanced age” to a “person of advanced age.” 10 20 C.F.R. § 404.1563(d)–(e). When a claimant is “within a few days to a few months of reaching 11 an older age category,” the ALJ must “consider whether to use the older age category.” 20 12 C.F.R. § 404.1563(b). The decision to use an older age category, however, is discretionary. See 13 Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). 14 Relying on this provision, Plaintiff contends the ALJ failed to consider whether he was

15 an individual of “advanced age” prior to his date last insured, given that he would reach that age 16 category within several months. Dkt. 7 at 12–15. 17 The Ninth Circuit considered a similar situation in Lockwood, 616 F.3d at 1071–72. The 18 Court found an ALJ “satisfied the requirement that she consider whether to use the older age 19 category” by making it clear she was “aware that [the claimant] was just shy of her 55th 20 birthday” and citing to the provision “which prohibited her from applying the age categories 21 mechanically,” showing she “knew she had discretion” to use the older age category. Id. at 22 1071–72 (emphasis in original). 23

24 1 Similarly, here, the ALJ was aware Plaintiff’s date last insured was within several months 2 of his 55th birthday, as he correctly identified the date Plaintiff turned 55. See AR 35. He also 3 cited the provision prohibiting mechanical application of the age categories. See id. (citing 20 4 C.F.R. § 404.1463). Thus, the Court is satisfied that the ALJ considered whether to exercise his

5 discretion in applying a higher age category. 6 IV. CONCLUSION 7 Based on these reasons and the relevant record, the Court ORDERS that this matter be 8 AFFIRMED pursuant to sentence four of 42 U.S.C. § 405(g). 9 Dated this 18th day of July, 2024. 10 A 11 12 Grady J. Leupold United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24