Ratliff v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: July 10, 2020
• Docket: 3:19-cv-05968
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 6 AT SEATTLE

7 DANIEL R.,

8 Plaintiff, CASE NO. C19-5968-MAT

9 v. ORDER RE: SOCIAL SECURITY 10 ANDREW M. SAUL, DISABILITY APPEAL Commissioner of Social Security, 11 Defendant. 12

13 Plaintiff proceeds through counsel in his appeal of a final decision of the Commissioner of 14 the Social Security Administration (Commissioner). The Commissioner denied plaintiff’s 15 application for Disability Insurance Benefits (DIB) after a hearing before an Administrative Law 16 Judge (ALJ). Having considered the ALJ’s decision, the administrative record (AR), and all 17 memoranda of record, this matter is AFFIRMED. 18 FACTS AND PROCEDURAL HISTORY 19 Plaintiff was born on XXXX, 1964.1 He has a high school education and previously 20 worked as an HVAC technician and an electrical apprentice. (AR 812-13.) 21 Plaintiff filed an application for DIB in 2016, alleging disability beginning July 10, 2015. 22 (AR 795.) The application was denied at the initial and reconsideration levels and, after a hearing 23

1 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1). 1 on September 5, 2017, by ALJ John Michaelsen in a decision dated September 26, 2017. Plaintiff 2 timely appealed. The Appeals Council denied plaintiff’s request for review on January 19, 2018 3 (AR 1-6), making the ALJ’s decision the final decision of the Commissioner. Plaintiff appealed

4 this final decision of the Commissioner to this Court, which reversed and remanded for further 5 administrative proceedings. (AR 857-78.) 6 On remand, the ALJ held a hearing on April 23, 2019, taking testimony from plaintiff. (AR 7 821-42.) On June 18, 2019, the ALJ issued a decision finding plaintiff not disabled from July 10, 8 2015, through his birthday in 2019 when he changed age category to an individual of advanced 9 age and thus became disabled by operation of the Medical-Vocational Guidelines. (AR 795-814.) 10 JURISDICTION 11 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 12 DISCUSSION 13 The Commissioner follows a five-step sequential evaluation process for determining

14 whether a claimant is disabled. See 20 C.F.R. § 404.1520 (2000). At step one, it must be 15 determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged 16 in substantial gainful activity since the alleged onset date. At step two, it must be determined 17 whether a claimant suffers from a severe impairment. The ALJ found plaintiff’s depression, 18 anxiety/PTSD, and history of left ankle arthritis with flat feet severe. Step three asks whether a 19 claimant’s impairments meet or equal a listed impairment. The ALJ found that plaintiff’s 20 impairments did not meet or equal the criteria of a listed impairment. 21 If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess 22 residual functional capacity (RFC) and determine at step four whether the claimant has 23 demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform 1 light work with occasional balancing, alternating between sitting and standing as needed, in a low 2 stress environment, performing simple, repetitive, routine tasks. With that assessment, the ALJ 3 found plaintiff unable to perform his past relevant work.

4 If a claimant demonstrates an inability to perform past relevant work, or has no past 5 relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant 6 retains the capacity to make an adjustment to work that exists in significant levels in the national 7 economy. Relying vocational expert testimony from the earlier September 2017 hearing, the ALJ 8 found plaintiff capable of performing other jobs, such as work as an electrode cleaner, wafer 9 cleaner, and electronic welding inspector. 10 This Court’s review of the ALJ’s decision is limited to whether the decision is in 11 accordance with the law and the findings supported by substantial evidence in the record as a 12 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Accord Marsh v. Colvin, 792 F.3d 13 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported

14 by substantial evidence in the administrative record or is based on legal error.”) Substantial 15 evidence means more than a scintilla, but less than a preponderance; it means such relevant 16 evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. 17 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of 18 which supports the ALJ’s decision, the Court must uphold that decision. Thomas v. Barnhart, 278 19 F.3d 947, 954 (9th Cir. 2002). 20 Plaintiff argues the ALJ erred in evaluating the medical evidence, his testimony, and a lay 21 witness statement. Plaintiff further contends his constitutional rights were violated because no 22 vocational expert testified at his 2019 hearing, and the ALJ was not properly appointed at the time 23 of the 2017 hearing and decision. He requests remand for further administrative proceedings. The 1 Commissioner argues the ALJ’s decision has the support of substantial evidence and should be 2 affirmed. 3 Medical Evidence

4 The ALJ is responsible for assessing the medical evidence and resolving any conflicts or 5 ambiguities in the record. See Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th 6 Cir. 2014); Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). When 7 evidence reasonably supports either confirming or reversing the ALJ’s decision, the court may not 8 substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 9 Plaintiff lists several items of medical evidence, arguing they confirm he “has impairments 10 which can reasonably be expected to cause some symptoms and limitations.” (Dkt. 11 at 3.) This 11 is undisputed, as the ALJ found plaintiff’s “medically determinable impairments could reasonably 12 be expected to cause some symptoms” and included extensive limitations in the RFC. (AR 802; 13 AR 801.)

14 Plaintiff also makes a conclusory assertion that “the ALJ did not state any persuasive 15 reason for rejecting the VA rating decision” of 70% disability. (Dkt. 11 at 9.) The ALJ found the 16 rating decision included no explanation and gave the rating only “some weight” as “unsupported 17 and of minimal probative value.” (AR 812.) Plaintiff offers no argument the ALJ’s findings were 18 unsupported by substantial evidence or his reasons were legally erroneous. 19 Plaintiff has shown no error in the ALJ’s evaluation of the medical evidence. 20 Symptom Testimony 21 Absent evidence of malingering, an ALJ must provide specific, clear, and convincing 22 reasons to reject a claimant’s subjective symptom testimony. Burrell v. Colvin, 775 F.3d 1133, 23 1136-37 (9th Cir. 2014). “General findings are insufficient; rather, the ALJ must identify what 1 testimony is not credible and what evidence undermines the claimant’s complaints.” Lester v. 2 Chater, 81 F.3d 821, 834 (9th Cir. 1996). In considering the intensity, persistence, and limiting 3 effects of a claimant’s symptoms, the ALJ “examine[s] the entire case record, including the

4 objective medical evidence; an individual’s statements about the intensity, persistence, and 5 limiting effects of symptoms; statements and other information provided by medical sources and 6 other persons; and any other relevant evidence in the individual’s case record.” Social Security 7 Ruling (SSR) 16-3p. 2 8 The ALJ here found plaintiff’s statements concerning the intensity, persistence, and 9 limiting effects of his symptoms not entirely consistent with the medical and other evidence in the 10 record. The ALJ accounted for plaintiff’s testimony of foot impairments with a sit/stand option in 11 the RFC but discounted plaintiff’s mental symptom testimony as inconsistent with failure to report 12 such severe limitations to his providers, improvement with treatment, and his activities. (AR 803- 13 10.)

14 At the 2017 hearing plaintiff testified when he woke up in the morning he experienced 15 “about two hours[’] worth of real mental fog, due to the sleep apnea, and, usually, a headache.” 16 (AR 43.) The ALJ discounted plaintiff’s “allegations of daily debilitating headaches and mental 17 fog, which he would likely report to his healthcare providers if truly as severe and debilitating as 18 alleged.” (AR 808.) The ALJ also discounted plaintiff’s testimony he spent three or four days a 19 month in bed because such a “significant degree of debilitation … would likely be reported to 20 medical providers.” (Id.) The issue is not, as plaintiff contends, that he “did not report all of his 21 22 2 Effective March 28, 2016, the Social Security Administration (SSA) eliminated the term “credibility” from its policy and clarified the evaluation of a claimant’s subjective symptoms is not an 23 examination of character. SSR 16-3p. The Court continues to cite to relevant case law utilizing the term credibility. 1 symptoms at every medical appointment,” but that he did not report them at all and thus did not 2 seek treatment for such allegedly disabling symptoms. (Dkt. 11 at 12.) Unexplained failure to 3 seek treatment was a clear and convincing reason to discount plaintiff’s testimony. See Orn v.

4 Astrue, 495 F.3d 625, 638 (9th Cir. 2007) (“if a claimant complains about disabling pain but fails 5 to seek treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such failure 6 as a basis for finding the complaint unjustified or exaggerated”). 7 As the ALJ noted, after working with a psychologist, plaintiff in June 2016 was able to 8 recognize “that he does not seem to have panic attacks…, that most episodes are closer to anxiety 9 s[ymptoms] and stressful moments.” (AR 392; AR 804.) Yet at the September 2017 and April 10 2019 hearings plaintiff testified panic attacks prevented him from working. (AR 41, 840.) These 11 inconsistent statements further support the ALJ’s discounting of plaintiff’s mental symptom 12 testimony. 13 The Court concludes the ALJ did not err by discounting plaintiff’s testimony. Inclusion of

14 other, erroneous reasons was harmless. Carmickle, 533 F.3d at 1163. 15 Lay Witness Statement 16 The ALJ can reject the testimony of lay witnesses only upon giving germane reasons. 17 Smolen v. Chater, 80 F.3d 1273, 1288-89 (9th Cir. 1996). The ALJ gave plaintiff’s wife’s 18 statement “limited weight” as inconsistent with the medical record and plaintiff’s activities. (AR 19 811.) The ALJ rejected her reports of severe medication side effects because plaintiff took the 20 same medication for long periods without complaining of side effects. The ALJ reasonably 21 inferred a claimant suffering such severe side effects would report them to his doctors. The 22 absence of such reports was a germane reason to discount plaintiff’s wife’s statement. The ALJ 23 also discounted her statement that plaintiff had difficulty sitting, reaching, and kneeling, because 1 the record showed no impairment that could cause such difficulty. This was also a germane reason. 2 The Court concludes the ALJ did not err by discounting plaintiff’s wife’s lay witness statement. 3 Vocational Expert

4 Plaintiff asserts his procedural due process rights were violated because he received a 5 hearing notice stating a vocational expert would testify at his April 2019 hearing but none did. 6 Plaintiff offers no authority for the proposition that any constitutional right was violated. See 7 Carmickle, 533 F.3d at 1161 n. 2 (declining to address issues not argued with any specificity); 8 Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (declining to 9 “manufacture arguments for an appellant”). Moreover, plaintiff’s attorney made no objection to 10 the absence of a vocational expert, and plaintiff has shown no harm. At the April 2019 hearing 11 the ALJ stated he decided it was “not necessary” to call a vocational expert again and plaintiff’s 12 attorney replied, “All right, thank you.” (AR 841.) The attorney and the ALJ agreed that previous 13 vocational expert testimony established, if plaintiff missed work “at least two days per month, …

14 that would preclude gainful employment.” (AR 842.) Plaintiff fails to show his constitutional 15 rights were violated. 16 Appointments Clause 17 There is no dispute the ALJ was properly appointed during the April 2019 hearing and 18 when the June 2019 decision was issued. However, relying on Lucia v. S.E.C., 138 S. Ct. 2044 19 (2018), Plaintiff contends the ALJ was not properly appointed at the time of the September 2017 20 hearing and decision. The Court notes that, although Lucia was decided in 2018, plaintiff failed 21 to raise the issue before, during, or after the 2019 hearing, the 2019 decision, or before the Appeals 22 Council. Plaintiff asks the Court to find a violation of Lucia only “[i]f the Court does not reverse 23 the ALJ’s decision based upon [his] other arguments.” (Dkt. 11 at 18.) 1 In Lucia the remedy was a rehearing by a new ALJ. 138 S. Ct. at 2055. Plaintiff argues 2 that because his 2019 hearing and decision were before the same ALJ, the decision must be vacated 3 and his case must be remanded for rehearing before a different ALJ.

4 The Supreme Court, however, “d[id] not hold that a new officer is required for every 5 Appointments Clause violation.” Lucia, 138 S. Ct. at 2055 n. 5. The ALJ in Lucia “ha[d] already 6 both heard Lucia’s case and issued an initial decision on the merits. He c[ould] not be expected to 7 consider the matter as though he had not adjudicated it before.” Id. at 2055. On remand, the ALJ 8 would have been facing the same case in the same procedural posture, and would have had little 9 reason to approach it differently. The situation here differs. While the ALJ had adjudicated the 10 case before, specific portions of his decision were reversed by this court. The ALJ in 2019 was not 11 facing the same case in the same circumstances. Any ALJ who heard the case would be required 12 to adjudicate it in light of the court’s order. The situation here differs from Lucia because the ALJ 13 was not simply repeating the same decision-making process he had already performed. The Court

14 concludes Lucia does not invalidate the ALJ’s 2019 decision. 15 CONCLUSION 16 For the reasons set forth above, this matter is AFFIRMED. 17 DATED this 10th day of July, 2020.

18 A 19 20 Mary Alice Theiler United States Magistrate Judge

22 23