United States District Court, D. Arizona
Bernardo p. Velasco United States Magistrate Judge
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.
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.
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).
Plaintiff's Background, Statements in the Record, and
Vocational Expert's Findings
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).
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.).
Summary of ALJ's Findings
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.
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since July 23, 2013. (AR 21).
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).
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).
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.).
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).
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).
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).
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).
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.).
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).
Standard of Review
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.
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.
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).
ALJ's Credibility Determination
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
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)).
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).
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).
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).
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).
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 ...