Leighton N. v. Comm'r, Soc. Sec. Admin.

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LEIGHTON N.,^[1] Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.

No. 6:21-cv-01425-YY

United States District Court, D. Oregon, Eugene Division

March 15, 2023

OPINION AND ORDER

Youlee Yim You, United States Magistrate Judge

Plaintiff Leighton N. seeks judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying his application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”), 42 U.S.C §§ 401-33, and Supplemental Security Income (“SSI”) disability benefits under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f. This court has jurisdiction to review the Commissioner's final decision pursuant to 42 U.S.C. §§ 405(g). For the reasons set forth below, that decision is AFFIRMED.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. 42 U.S.C § 405(g); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). This court must weigh the evidence that supports and detracts from the ALJ's conclusion and “‘may not affirm simply by isolating a specific quantum of supporting evidence.'” Garrison v Colvin, 759 F.3d 995, 100910 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). This court may not substitute its judgment for that of the Commissioner when the evidence can reasonably support either affirming or reversing the decision. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Instead where the evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld if it is “supported by inferences reasonably drawn from the record.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted); see also Lingenfelter, 504 F.3d at 1035.

SEQUENTIAL ANALYSIS AND ALJ FINDINGS

Disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ engages in a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 20 C.F.R. § 416.920; Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (discussing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)).

At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since June 19, 2009, the alleged onset date. At step two, the ALJ determined plaintiff suffered from the following severe impairments: obesity, diabetes, degenerative disc disease, degenerative joint disease of left shoulder, and depression (20 CFR 404.1520(c) and 416.920(c)).

At step three, the ALJ found plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. The ALJ next assessed plaintiff's residual functional capacity (“RFC”) and determined he has the “capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant could occasionally climb ladders and scaffolds; the claimant could occasionally stoop, kneel, crouch, and crawl; the claimant could frequently overhead reach with left upper extremity; the claimant could frequently handle with left upper extremity; and the claimant would be limited to simple, routine tasks.”

At step four, the ALJ found plaintiff was unable to perform any past relevant work. However, considering plaintiff's age, education, work experience, and RFC, the ALJ concluded there were jobs that existed in significant numbers in the national economy that plaintiff could perform, including bench assembler, hand packager, and office helper. Thus, the ALJ concluded plaintiff was not disabled.

DISCUSSION

I. Subjective Symptom Testimony

When a claimant has medically documented impairments that could reasonably be affirmative evidence of malingering, “the ALJ can reject the claimant's testimony about the severity of . . . symptoms only by offering specific, clear and convincing reasons for doing so.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996) (citation omitted). A general assertion that the claimant is not credible is insufficient; the ALJ must “state which . . . testimony is not credible and what evidence suggests the complaints are not credible.” Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be “sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony.” Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). The ALJ need not “perform a line-by-line exegesis of the claimant's testimony” or “draft dissertations when denying benefits.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). But Ninth Circuit law “plainly requires” that an ALJ do more than “offer[ ] non-specific conclusions that [the claimant's] testimony [is] inconsistent with [certain evidence].” Id. (citations omitted). If the “ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (citation omitted).

In evaluating a claimant's subjective symptom testimony, an ALJ may consider whether it is consistent with objective medical evidence. 20 C.F.R. §§ 404.1529(c)(1)-(3), 416.929(c)(1)-(3); SSR 16-3p, available at 2017 WL 5180304, at *7-8. The lack of objective medical evidence may not form the sole basis for discounting a claimant's testimony. Tammy S. v. Comm'r Soc.Sec. Admin., No. 6:17-cv-01562-HZ, 2018 WL 5924505, at *4 (D. Or. Nov. 10, 2018) (citing Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998) (“[T]he Commissioner may not discredit [a] claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence.”)). However, when coupled with another permissible reason, inconsistencies between a claimant's allegations and objective medical evidence may be used to discount a claimant's testimony. Tatyana K. v. Berryhill, No. 3:17-cv-01816-AC, 2019 WL 464965, at *4 (D. Or. Feb. 6, 2019) (citing Batson v. Comm'r Soc. Sec. Admin., 359 F.3d 1190, 1197-98 (9th Cir. 2004)).

Effective March 28, 2016, the Commissioner superseded Social Security Ruling (“SSR”) 96-7p, governing the assessment of a claimant's “credibility,” and replaced it with SSR 16-3p. See SSR 16-3p, available at 2016 WL 1119029. SSR 16-3p eliminates the reference to “credibility,” clarifies that “subjective symptom evaluation is not an examination of an individual's character,” and requires the ALJ to consider all the evidence in an individual's record when evaluating the intensity and persistence of symptoms. Id. at *1-2. The ALJ must examine “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id. at *4.

The ALJ recognized that plaintiff was diagnosed with depression but concluded that the medical record revealed “very little evidence of consistent care and treatment,” which suggested plaintiff had “adequate control” of his mental health symptoms. Tr. 27. The ALJ noted that, although he had a history of depression, plaintiff would not consider mental health medication and, although he had suicidal ideation, he failed to follow up with mental health treatment. Tr. 24 (citing 643 (chart notes indicating plaintiff has history of depression “but won't consider medication” and that therapists “can't fix me”). In support of the ALJ's decision, the Commissioner also points to portions of the record where plaintiff stated he was “wasting the therapist's time indicating a lack of progress being made” and “I don't really want to see someone.” Resp. 6 (citing Tr. 529, 662).

Plaintiff contends there is an explanation for why he failed to follow through with mental health treatment, and points to treatment notes indicating that his noncompliance with treatment was “due to profound depression” that was “significantly impacting his ability to care for himself.” Reply 2 (citing Tr. 796, 811). Indeed, an ALJ may not reject a claimant's failure to engage in mental health treatment without considering the reasons why the claimant did not do so. See, e.g., Shirley v. Comm'r of Soc. Sec., 354 F.Supp.3d 1192, 1200 (D. Or. 2018) (finding the ALJ erred in rejecting the plaintiff's testimony regarding his mental limitations without considering other reasons for why he had not engaged in consistent mental health therapy, including his anxiety and because he could not afford therapy co-pays).

But here, the ALJ also relied on other factors including “objective evidence,” specifically psychiatric examinations that “suggest[] a level of functioning greater than one alleged by” plaintiff. Tr. 27. Objective medical evidence may be considered in evaluating a claimant's testimony regarding mental health symptoms. See Shultes v. Berryhill, 758 Fed.Appx. 589, 593 (9th Cir. 2018) (recognizing lack of supporting objective medical evidence as one factor in discrediting the plaintiff's testimony regarding his mental health symptoms). The ALJ observed that while “recent psychiatric examinations revealed depressed mood and blunt affect,” plaintiff otherwise exhibited “normal behavior, judgment, thought content, cognition, and memory.” Id. (citing Exs. B9F/5-6; B17F/5, 8, 14-15, 23). Mild or moderate...