Sims v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: March 13, 2023
• Docket: 3:22-cv-05543
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 GEORGE S., 8 Plaintiff, CASE NO. C22-5543-BAT 9 v. ORDER AFFIRMING THE 10 COMMISSIONER’S DECISION AND COMMISSIONER OF SOCIAL SECURITY, DISMISSING THE CASE WITH 11 PREJUDICE Defendant. 12

13 Plaintiff appeals the denial of his application for Supplemental Security Income. He 14 contends the ALJ erred by (1) failing to determine at step three of the sequential analysis that 15 plaintiff meets or medically equals Listing 12.05 for Intellectual Disorder; (2) improperly 16 assessing residual functional capacity (“RFC”); and (3) determining at steps four and five that 17 plaintiff could return to past relevant work and other work. Dkt. 10. As discussed below, the 18 Court AFFIRMS the Commissioner’s final decision and DISMISSES the case with prejudice. 19 BACKGROUND 20 During the April 2021 ALJ hearing, plaintiff amended his alleged onset date of disability 21 to the protective filing date of October 3, 2017. Tr. 51. The ALJ denied benefits in a June 3, 2021 22 decision. Tr. 15–33. At step two, the ALJ determined plaintiff has the severe impairments of 23 kidney stones, hypertension, benign prostatic hypertrophy, and a learning disorder. Tr. 17–18. At 1 step three, the ALJ determined plaintiff does not have an impairment or combination of 2 impairments that meets or medically equals the severity of a Listed Impairment, including 3 Listing 12.05 (Intellectual Disorder). Tr. 18–20. The ALJ assessed that plaintiff has the RFC to 4 perform medium work with additional physical and mental limitations, including that plaintiff

5 can perform simple, routine tasks. Tr. 21–31. At step four, the ALJ determined plaintiff could 6 perform his past relevant work as a landscape laborer because the work did not require the 7 performance of activities precluded by the assessed RFC. Tr. 31–32. At step five, the ALJ found 8 that plaintiff’s RFC also would allow him to perform a number of occupations that exist in 9 significant numbers nationally: kitchen helper, industrial cleaner, and automotive detailer. Tr. 10 32–33. The ALJ therefore found plaintiff to be not disabled. Tr. 33. As the Appeals Council 11 denied plaintiff’s request for review, the ALJ’s decision is the Commissioner’s final decision. Tr. 12 1–3. 13 DISCUSSION 14 The Court will reverse the ALJ’s decision only if it was not supported by substantial

15 evidence in the record as a whole or if the ALJ applied the wrong legal standard. Molina v. 16 Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). The ALJ’s decision may not be reversed on account 17 of an error that is harmless. Id. at 1111. Where the evidence is susceptible to more than one 18 rational interpretation, the Court must uphold the Commissioner’s interpretation. Thomas v. 19 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 20 Plaintiff has failed to demonstrate that the ALJ unreasonably evaluated the record when 21 (1) determining that plaintiff does not have an impairment that meets or medically equals Listing 22 12.05; (2) assessing RFC; and (3) determining that plaintiff could perform past relevant work 23 1 and occupations that exist in significant numbers nationally. The Court finds that the ALJ’s 2 decision was supported by substantial evidence and was not the result of misapplying the law. 3 1. Listing 12.05 (Intellectual Disorder) 4 Plaintiff contends that because he received a Full Scale IQ (“FSIQ”) score of 70 during a

5 February 2018 consultative psychological examination, the ALJ was obligated to consult a 6 medical expert to determine whether plaintiff also satisfied the other criteria in Listing 12.05 for 7 an Intellectual Disorder. Dkt. 10, at 8–13; see Tr. 668. The contention is unpersuasive because 8 plaintiff sets forth no other evidence that suggests he could carry his burden of persuasion at step 9 three that his intellectual impairment meets or medically equals the criteria set forth in Listing 10 12.05. 20 C.F.R. § 416.925(d); Burch v. Barnhart, 400 F.3 676, 679, 683 (9th Cir. 2005). 11 Plaintiff does not assert his intellectual impairment can satisfy 12.05(A), only that there 12 should have been further investigation into his claim of having an impairment that meets or 13 medically equals Listing 12.05(B). See Dkt. 10, at 8–13. In relevant part, a claimant such as 14 plaintiff must satisfy the following criteria to demonstrate an impairment meeting or medically

15 equaling Listing 12.05(B): (1) a FSIQ of 70 or below; (2) significant deficits in adaptive 16 functioning currently manifested by extreme limitation of one, or marked limitation of two, of 17 the following areas of mental functioning: (a) understanding, remembering, or applying 18 information; (b) interacting with others; (c) concentrating, persisting, or maintaining pace; and 19 (d) adapting or managing oneself; and (3) the evidence about current intellectual and adaptive 20 functioning and about the history of the disorder demonstrates or supports the conclusion that the 21 disorder began prior to age 22. See 20 C.F.R. Pt. 404, Subpt. P, App 1, § 12.05(B). The ALJ 22 found plaintiff could not satisfy the paragraph (B) criteria of Listing 12.05 (and other listings) 23 because plaintiff’s mental impairments do not cause at least two “marked” limitations or one 1 “extreme” limitation in the domains set forth in the listing. Tr. 19–21. That is, the ALJ 2 determined plaintiff (a) has no more than a moderate limitation in understanding, remembering, 3 or applying information; (b) has no limitation in interacting with others; (c) has no more than a 4 moderate limitation in concentrating, persisting, or maintaining pace; and (d) has no more than a

5 mild limitation in adapting or managing himself. Tr. 19–21. In finding plaintiff could not 6 demonstrate the paragraph (B) criteria with respect to several listings, the ALJ did not explicitly 7 reference the 12.05(B) criterion demonstrating that the disorder began before the age of 22. 8 Plaintiff neither refers to the Listing 12.05(B) criteria nor demonstrates how the evidence 9 shows that his impairment satisfies the paragraph (B) criteria other than by broadly stating “a 10 reasonable person could equally find that this plaintiff, with his test results and history in school, 11 in the military, and in the workplace, show[s] a lifelong pattern of cognitive impairment so 12 significant that he meets or equals Listing 12.05.” Dkt. 10, at 12 (emphasis added). These 13 omissions are fatal deficiencies. First, if a reasonable person could “equally” find for or against 14 plaintiff on this issue, the Court must affirm the Commissioner’s decision. See Thomas, 278 F.3d

15 at 954. Second, although plaintiff states that he “will not trouble the Court with a full recitation 16 of the Listing [12.05],” Dkt. 10, at 9, he therefore declines to plausibly connect evidence to the 17 criteria in a manner that would satisfy his burden of persuasion that he has an impairment that 18 meets or equals Listing 12.05(B). Third, plaintiff fails to meaningfully challenge the ALJ’s 19 conclusion that plaintiff suffers from no more than moderate limitations in mental functioning 20 with respect to (a) understanding, remembering, or applying information; (b) interacting with 21 others; (c) concentrating, persisting, or maintaining pace; (d) adapting or managing himself. See 22 20 C.F.R. Pt. 404, Subpt. P, App 1, § 12.05(B). Instead, plaintiff argues generally the ALJ erred 23 by interpreting the medical evidence and plaintiff’s daily activities. Dkt. 10, at 9–12. For 1 example, plaintiff argues the ALJ could not show that plaintiff’s daily activities would translate 2 to a workplace environment and should not have concluded that plaintiff’s playing pool, riding 3 transit, and taking care of himself suggested that plaintiff had an RFC less severe than asserted. 4 Dkt. 10, at 11–12. The step 3 analysis, however, precedes the question of RFC and, if met,

5 precludes considering RFC at all. Plaintiff’s conclusory argumentation about the ALJ’s RFC 6 evaluation without reference to Listing 12.05(B) and the step three analysis is therefore largely 7 irrelevant. Fourth, neither in the hearing nor in the briefing does plaintiff set forth supportive 8 evidence that, in accordance with Listing 12.05(B), his intellectual disorder began before the age 9 of 22 years. Acceptable evidence that the intellectual impairment began before the age of 22 10 includes: tests of intelligence or adaptive functioning; school records indicating a history of 11 special education services based on intellectual functioning; an Individualized Education 12 Program (IEP), including a transition plan; reports of academic performance and functioning at 13 school; medical treatment records; and interviews or reports from employers. 20 C.F.R. Pt. 404, 14 Subpt. P, App 1, § 12.00H(3)(b). Aside from the February 2018 FSIQ score—taken when

15 plaintiff was in his 50s—plaintiff refers to no other evidence that might suggest his intellectual 16 impairment began before the age of 22. Instead, plaintiff proposes that although plaintiff 17 graduated from high school, he presumptively showed a listing-level intellectual disorder before 18 the age of 22 by the very fact that he was enrolled in special education. At the hearing, plaintiff’s 19 attorney did not refer to Listing 12.05 by name; rather, counsel’s full presentation of the issue 20 was that because of the February 2018 FSIQ score, “I think we may have a listing-level case 21 here.” Tr. 61. The argumentation at the hearing and in the current briefing is insufficient to 22 demonstrate a listing-level case. 23 1 In sum, plaintiff has failed to address or refute the ALJ’s conclusion that plaintiff had no 2 more than moderate limitations in any mental domain set forth in the paragraph (B) criteria of 3 Listing 12.05(B); and plaintiff has failed to provide any evidence that the intellectual impairment 4 that could be suggested by a February 2018 FSIQ score of 70 began before the age of 22 aside

5 from disagreement with the ALJ’s conclusion. Plaintiff also cannot support his assertion that the 6 ALJ was required to call a medical evidence to demonstrate whether his mental impairment 7 meets or medically equals Listing 12.05(B). Contrary to plaintiff’s assertions, it is the ALJ’s 8 duty, not a medical expert’s duty, to reconcile the medical evidence and to determine whether a 9 claimant is disabled. 20 C.F.R. § 416.927(d); cf. Farlow v. Kijakazi, 53 F.4th 485, 488 (9th Cir. 10 2022) (holding that nothing in the regulations, case law, or substantial evidence standard 11 required the ALJ to defer to the expertise of a non-treating, non-examining medical sources 12 when evaluating the consistency of medical evidence). “An ALJ's duty to develop the record 13 further is triggered only when there is ambiguous evidence or when the record is inadequate to 14 allow for proper evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459–60 (9th

15 Cir. 2001). Here the evidence was not ambiguous and the record was not inadequate. The ALJ 16 was not required to call a medical expert based on plaintiff’s behalf based on a speculative and 17 conclusory proposition that plaintiff may meet or equal a listing because the record otherwise 18 contains no such evidence. 19 Plaintiff has failed to demonstrate the ALJ’s decision at step three regarding plaintiff’s 20 inability to show his impairment meets or medically equals Listing 12.05(B) was unsupported by 21 substantial evidence or was the result of the misapplication of the law. 22 23 1 2. RFC Assessment 2 Plaintiff challenges the ALJ’s RFC assessment via attacking the ALJ’s evaluation of his 3 mental impairments in the step three analysis and the ALJ’s evaluation of his mental and 4 physical impairments in steps four and five. Dkt. 10, at 8–16. As support, plaintiff challenges the

5 ALJ’s evaluation of the 2018 opinion of examining psychologist Dr. Burton Zung, Ph.D., the 6 2020 opinion of examining physician Dr. Philip Gibson, Ph.D., and plaintiff’s daily activities. Id. 7 Plaintiff is unable to demonstrate the ALJ misevaluated the evidence as a matter of fact or law. 8 The ALJ determined that plaintiff has the RFC to perform a range of simple medium 9 work based upon mostly benign objective clinical findings, the findings of reviewing physicians 10 and psychologists, and the analysis of plaintiff’s discounted self-reporting. Tr. 21–31. Plaintiff 11 neither challenges the ALJ’s choice to discount plaintiff’s subjective testimony nor undermines 12 the reasonableness of the ALJ’s RFC assessment. 13 First, plaintiff contends his history of kidney stones and prostatic hypertrophy would 14 impact both productivity and attendance, but in the same paragraph concedes “there is no

15 evidence sufficient to challenge the physical exertion classification of medium exertion” and 16 “[t]hese limitations would only arguably impact his residual functional capacity in regard to 17 productivity and attendance.” Dkt. 10, at 13 (emphases added). Plaintiff’s own brief thus 18 concedes that the ALJ’s assessment of physical RFC was reasonable and supported. 19 Second, plaintiff argues the RFC assessment should have given more weight to the 20 opinions of examining psychologists Drs. Gibson (Tr. 763–766) and Zung (Tr. 665–71) and 21 should have accounted for the opined limitations beyond restricting plaintiff to simple and 22 repetitive tasks. Dkt. 10, at 13–16. The ALJ found unpersuasive Dr. Gibson’s opinion that 23 plaintiff is unable to manage funds in his own best interest because it was inconsistent with and 1 unsupported by plaintiff’s ability to purchase items in stores and use public transportation; 2 plaintiff’s lack of a guardian or conservator; and plaintiff’s ability to enter legally binding 3 agreements on his own behalf. Tr. 30; see, e.g., Tr. 101–02, 200). The ALJ found unpersuasive 4 Dr. Gibson’s opinion that plaintiff would have difficulty performing work activities on a

5 consistent basis without special or additional instructions because it was inconsistent with and 6 unsupported by the claimant’s ability to cook, bake, play pool, watch movies, paint the interior 7 of a dwelling, and perform a number of other activities, including taking public transportation, 8 without need of special or additional instructions. Tr. 30; see, e.g., Tr. 50, 199–201, 227–30, 9 248–51, 666, 670, 734, 764; see also Tr. 764 (Dr. Gibson noting: “The claimant’s concentration, 10 persistence, and pace were within normal limits. No redirection was required.”). The ALJ found 11 unpersuasive Dr. Zung’s opinion that plaintiff has limited understanding, difficulty reconciling 12 acknowledged limitations on reading and writing, prominent functional limitation, and an 13 inability to manage benefit payments. Tr. 29. The ALJ did so because Dr. Zung based his 14 opinion in large part on the FSIQ score of 70, which was not consistent with plaintiff’s ability to

15 perform tasks such as cooking, baking, playing pool, watching movies, using a stove, using an 16 oven, painting the interior of a dwelling, performing a wide variety of cleaning tasks, 17 understanding and managing his own medical treatment, and entering into legally binding 18 agreements on his own behalf. Id. Moreover, the ALJ discounted Dr. Zung’s opinion as 19 inconsistent with the medical evidence and the record as a whole, including opinions of 20 reviewing physicians and psychologists, plaintiff’s minimal mental health treatment, plaintiff’s 21 typically alert and oriented mental state, and unremarkable/intact mental health findings in other 22 exams. Id.; see Tr. 666 (Dr. Zung noting: “He sustained participation in a session of about 2.5 23 hours duration. Observation of visual orientation, activity level, task orientation and task 1 perseverance was unremarkable. He demonstrated no episodes of distractibility or impulsive 2 behavior.”); see, e.g., Tr. 64–75, 77–92, 674–75, 695, 873. Plaintiff addresses none of this 3 evidence, instead repeating that the restrictions opined by Drs. Gibson and Zung should have 4 been accepted without modification. See Dkt. 10, at 13–16. Such conclusory argumentation does

5 not demonstrate that the ALJ misevaluated the evidence or the applicable law. 6 Third, plaintiff challenges the ALJ’s evaluation of plaintiff’s activities of daily living in 7 the step three discussion, arguing that they do not undermine Dr. Gibson’s and Dr. Zung’s 8 opined limitations. Tr. 10–13. Plaintiff takes particular issue with the ALJ’s reasoning that 9 plaintiff’s ability to use public transportation and hobby of shooting pool with friends twice a 10 week suggest that plaintiff may have greater mental abilities than asserted, including the abilities 11 to keep track of transit schedules and locations, to concentrate, to engage in some degree of 12 complex reasoning, and to engage socially with others. Dkt. 10, at 10–13 (citing Tr. 25–26). 13 Although plaintiff argues there is no indication that plaintiff engaged in complex transit planning 14 or ever played in competitive games of pool that might implicate high levels of concentration

15 and reasoning, he has failed to indicate how the ALJ unreasonably interpreted plaintiff’s daily 16 activities to be indications of why his intellectual impairments might not be as severe as asserted 17 or opined by Drs. Gibson and Zung. See, e.g., Tr. 666 (Dr. Zung noting that plaintiff “arrived on 18 time for the evaluation, having traveled to my office using the city bus system”), Tr. 670 (Dr. 19 Zung noting, “He can travel in the community using the city bus system.”). 20 Plaintiff has failed to demonstrate that the ALJ’s RFC assessment was unsupported by 21 substantial evidence or was the result of a misapplication of the law. 22 23 1 3. Past Relevant Work and Occupations that Exist in Significant Numbers Nationally 2 The ALJ found plaintiff was not disabled at step four because he retained the RFC to 3 perform his past relevant work as a landscape laborer and found that plaintiff was not disabled at 4 step five because there was other work in the national economy that plaintiff could perform 5 given his background and RFC. Tr. 31–33. In making these non-disability findings at steps four 6 and five, the ALJ relied upon the vocational expert’s testimony that an individual with plaintiff’s 7 functional limitations could perform his past relevant work and other work in significant 8 numbers in the national economy. See Tr. 58–59. 9 Plaintiff has failed to show the ALJ erroneously assessed plaintiff’s RFC. The ALJ thus 10 posed hypothetical questions to the vocational expert that captured all of plaintiff’s established 11 functional limitations and the vocational expert’s responsive testimony was substantial evidence 12 for the ALJ’s non-disability finding. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 13 2005). Plaintiff has failed to show that the ALJ’s evaluation of steps four and five was 14 unsupported by substantial evidence or the result of the misapplication of the law. 15 CONCLUSION 16 For the foregoing reasons, the Commissioner’s decision is AFFIRMED and this case is 17 DISMISSED with prejudice. 18 DATED this 13th day of March, 2023. 19 A 20 BRIAN A. TSUCHIDA 21 United States Magistrate Judge 22 23