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Conner v. Commissioner of Social Security Administration

United States District Court, D. Arizona

August 29, 2018

Joshua Conner, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          Bernardo p. Velasco United States Magistrate Judge

         Plaintiff Joshua Conner filed the instant action pursuant to 42 U.S.C. § 405(g) seeking review of the final decision of the Commissioner of Social Security. The Magistrate Judge has jurisdiction over this matter pursuant to the parties consent under 28 U.S.C. § 636(c). (Doc. 8). The matter is now fully briefed before this Court. (Docs. 16-18). For the following reasons, the Court orders that the Commissioner's final decision in this matter is affirmed.

         I. Procedural History

         On July 23, 2013, Plaintiff filed an application for Supplemental Security Income. (Administrative Record (AR) 160). Plaintiff alleged disability as of July 23, 2013 due to severe manic depression, suicidal thoughts, and pain and numbness in his right arm. (AR 194). Plaintiff's application was initially denied on February 14, 2014 (AR 138), and upon reconsideration on August 19, 2014 (AR 146). On January 6, 2016, Plaintiff appeared with counsel and testified at an administrative hearing in front of an Administrative Law Judge (ALJ). (AR 84). The ALJ issued an unfavorable decision on March 3, 2016. (AR 19-30). Following Plaintiff's Request for Review, on June 12, 2017, the Appeals Counsel denied Plaintiff's request (AR 1-3), making the ALJ's decision the Commissioner's final decision for the purposes of judicial review.

         Plaintiff filed the instant action arguing the ALJ erred: (1) by failing to consider Plaintiff's credibility; (2) by finding Plaintiff's arm impairment was not severe; (3) by giving incorrect weight to examining source Dr. Andrew C. Jones, Ph.D.; (4) by using her own medical opinion in lieu of examining physician Dr. Jill Plevell, Ph.D.; and (5) by failing to develop the record. (Doc. 16).

         II. Plaintiff's Background, Statements in the Record, and Vocational Expert's Findings

         Plaintiff was 28 years old on the date of the alleged onset of disability. (AR 29). Plaintiff finished high school where he was enrolled in special education classes, and subsequently took a few courses at community college but did not graduate. (AR 88). Plaintiff testified at the hearing before the ALJ that he had previously worked in fast food, as meat cutter, in construction, and as a janitor. (AR 89, 100-01).

         The ALJ asked the Vocational Expert (VE) if there was work available for an individual with no physical limitations but limited to repetitive, unskilled tasks. (AR 102). The VE stated that such individual could work in fast food, as a kitchen helper, a janitor, or in assembly production. (Id.) Plaintiff's attorney additionally asked whether there was work available if an individual needed sheltered work with constant supervision, had reading and math difficulties, could not perform data entry in a computer because of cognitive disabilities, and had difficulty with repetitive assembly jobs because of his right arm impairment. (AR 104). The VE responded that the aforementioned employment would have to be sheltered work. (Id.).

         III. Summary of ALJ's Findings

         Whether a claimant is disabled is determined pursuant to a five-step sequential process. See 20 C.F.R. §§ 404.1520, 416.920. To establish disability, the claimant must show: (1) he has not performed substantial gainful activity since the alleged disability onset date (step one); (2) he has a severe impairment(s) (step two); and (3) his impairment(s) meets or equals the listed impairment(s) (step three). Id. “If the claimant satisfies these three steps, then the claimant is disabled and entitled to benefits. If the claimant has a severe impairment that does not meet or equal the severity of one of the ailments listed[, ] . . . the ALJ then proceeds to step four, which requires the ALJ to determine the claimant's residual functioning capacity (RFC).” Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir. 2015). At this step, the ALJ considers (1) whether there is an impairment that would reasonably be expected to cause the plaintiff's symptoms, and (2) the severity of plaintiff's ailments, including intensity, persistence, and limiting effects of alleged symptoms. If the claims of intensity, persistence and limiting effects are not supported by medical evidence, the ALJ needs to determine, based on the record, whether plaintiff's claims are credible. Social Security Ruling (SSR) 96-7 (superseded by SSR 16-3 (Mar. 28, 2016)). At step five, “[a]fter developing the RFC, the ALJ must determine whether the claimant can perform past relevant work.” Dominguez, 808 F.3d at 405. At this stage, “the government has the burden of showing that the claimant could perform other work existing in significant numbers in the national economy given the claimant's RFC, age, education, and work experience.” Id.; 20 C.F.R. §§ 404.1520, 416.920.

         At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 23, 2013. (AR 21).

         Then, at step two, the ALJ determined that several of Plaintiff's ailments were severe, including: “mental impairments variously diagnosed to include bipolar disorder, depressive disorder, anxiety disorder, polysubstance dependence, and post-traumatic stress disorder.” (AR 21).

         However, the ALJ determined that Plaintiff's reported right arm numbness was not severe. (AR 21-22). She stated that while Plaintiff had an initial record of treatment with medication, there were no further records of treatment and only one subsequent consult for the problem. (AR 21). During this consult, Plaintiff claimed that he was still able to perform all of his daily activities. (AR 21-22, 476). The ALJ noted Plaintiff had minimal decreased sensation, full range of motion, and the minimal limitation precluded a finding of severity. (AR 21-22). The observations of Dr. John Kurtin, Dr. Charles Combs, and Dr. Joseph Ring, D.O. further supported her determination that Plaintiff's impairments were not severe. (AR 22, 112, 476-478).

         The ALJ decided, at step three, that Plaintiff's impairments did not meet or equal the listed impairments. (AR 22). The ALJ noted that she considered both the severe and non-severe impairments when coming to her decision. (Id.).

         The ALJ found that Plaintiff's RFC included a full range of work at every exertional level, but limited him to unskilled tasks that were repetitive and did not require a great deal of skill. (AR 25). Although the ALJ conceded that Plaintiff's medical impairments could cause the purported symptoms, the ALJ stated that the medical evidence did not support the contention that Plaintiff could not perform daily activities and remember simple tasks. (AR 25, 117, 514).

         The ALJ then determined that Plaintiff's conflicting assertions as to the intensity, persistence, and limiting effects of his symptoms were not credible. (AR 26). The ALJ explained that she was incredulous about Plaintiff's claim he could not work due to his symptoms because his prior job history indicated: (1) he was capable of working an eight-hour-day; (2) he left his last job because he was no longer required to work as a condition of probation, not because of any impairment; and (3) his explicit statements about his decision to leave showed he had ulterior motives for not working. (AR 27). Since there was also no evidence of worsening after 2010, the ALJ concluded that Plaintiff's self-disclosed symptoms were unreliable and he was capable of working under the stated RFC. (AR 27, 370).

         Furthermore, the ALJ determined that Plaintiff's self-disclosed history of drug abuse was questionable. The ALJ noted that Plaintiff had a significant history of marijuana use. (AR 27). Subsequent to the state's refusal to designate Plaintiff as mentally ill because of the drug abuse (AR 451-52), Plaintiff's disclosure became inconsistent with prior statements and minimized his prior and present use. (AR 27, 91, 437, 449, 477, 484, 492, 499). This suggested Plaintiff was motivated to minimize his drug use because he was aware that his disclosure may affect his ability to obtain both state and federal benefits. (AR 27).

         Third, the ALJ found that despite his claim that he was unable to live independently, Plaintiff had revealed he was functioning well socially, had a girlfriend, and was able to fulfill daily activities. (AR 23, 441, 476). In addition, Plaintiff admitted that he was physically able to accomplish his activities of daily living, but was “too lazy to do so.” (AR 23, 465, 514).

         Finally, insofar as the physicians' records were inconsistent with the ALJ's RFC, the ALJ noted that, the medical opinions suggesting Plaintiff's symptoms were more serious relied heavily upon the Plaintiff's subjective assertions, and since the Plaintiff's credibility was in question, so too were the determinations by physician Dr. Andrew Jones (AR 487) and vocational evaluator Philip Shapiro (AR 541). (AR 28). Furthermore, the ALJ gave little weight to the inconsistent opinions of Mr. Shapiro and John Ekman, NP-C because they were not acceptable sources. (Id.).

         At step five, the ALJ concluded that Plaintiff was not disabled; and given Plaintiff's RFC, age, education, and work experience he would work as a kitchen helper, a janitor, or in assembly production. (AR 30).

         IV. Standard of Review

         The Court has the “power to enter, upon the pleadings and the transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The factual findings of the Commissioner shall be conclusive so long as the findings are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

         Substantial evidence is “‘more than a mere scintilla[, ] but not necessarily a preponderance, '” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)). Further, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). Moreover, the Commissioner, not the Court, is charged with the duty to weigh the evidence, resolve material conflicts in the evidence, and determine the case accordingly. Matney, 981 F.2d at 1019.

         However, the Commissioner's decision “cannot be affirmed simply by isolating a specific quantum of supporting evidence. . . . Rather, the Court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.” Tackett, 180 F.3d at 1098 (internal citations and quotations omitted).

         V. Discussion

         a. ALJ's Credibility Determination

         Plaintiff contends that the ALJ failed to name clear and convincing reasons for questioning Plaintiff's credibility. Plaintiff claims that the ALJ should have stated which symptoms were (in)consistent with the available evidence and how the symptoms led to the ALJ's conclusions. (Doc. 16 at 18). The Court finds that the ALJ did provide specific and legitimate reasons for discrediting Plaintiff's subjective symptoms.

         The ALJ stated that Plaintiff claimed he could not conduct routine daily activities, but the record demonstrated otherwise. First, the ALJ pointed out that Plaintiff told various providers specifically that he was able to take care of his daily activities. (AR 441, 476). “‘Engaging in daily activities that are incompatible with the severity of the symptoms alleged can support an adverse credibility determination.'” Treviso v. Berryhill, 871 F.3d 664, 682 (9th Cir. 2017) (quoting Ghanim v. Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014)).

         Like the activities of daily living, the ALJ found Plaintiff's claims of suicidal thoughts unavailing because he directly contradicted himself when he told Dr. Jones he no longer had thoughts of suicide. (AR 26, 484).

         In addition, the ALJ determined that Plaintiff's claim he cannot function socially was contradicted by his report that he had friends, a girlfriend, and reported he got along with others. (AR 127, 203, 465, 476).

         Moreover, the ALJ found that Plaintiff's claim that he was unable to work was not credible because his prior work demonstrated: (1) he could work a full workday, (2) he did not quit work because of his alleged disability, but rather he was no longer motivated to work because his probation was over, and (3) he was capable of performing repetitive tasks with little direction. (AR 26-27). The ALJ stated that the reason Plaintiff left his previous job was not due to his ailments, but rather because his period of court-ordered probation had expired. (AR 26, 88-89, 484). In addition, there was no indication that Plaintiff's impairments had worsened since 2010. (AR 27, 370-408).

         As to Plaintiff's claims of drug dependency, the ALJ found that there was a change in Plaintiff's disclosed drug use which coincided with the revelation that his benefits may be affected. (See AR 91 (January 2016: 11/2 years since last smoked pot); AR 502 (October 2014: smoked daily since high school with last use ten months ago); AR 492, 499 (April 2014: never smoked on regular basis, never had a problem, and last smoked approximately six months ago); AR 492 (February 2014: denies smoking on regular basis and marijuana use has never been a problem); AR 484 (February 2014: states “will smoke marijuana when its available”); AR 477 (December 2013: only occasional marijuana use); AR 113, 437 (August 2013: used cannabis within last few days, uses daily and “as often as I can”; AR 449 (August 2013: chronic cannabis use is the only thing that makes him feel better)). Lack of motivation and “little propensity to work” in conjunction with conflicting information about drug use may support a finding the claimant is not credible. See Thomas v. Barnhart, 278 F.3d 948, 959 (9th Cir. 2002).

         “In reaching a credibility determination, an ALJ may weigh inconsistencies between the claimant's testimony and his or her conduct, daily activities, and work record, among other factors.” Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). The ALJ considered Plaintiff's activities, work, and self-disclosed statements in order to reach her determination that Plaintiff's allegations were not credible. The Court finds that the ALJ's credibility ...


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