Jake R. v. Comm'r, Soc. Sec. Admin., Case No. 3:18-cv-00436-JO

• Court: United States District Courts. 9th Circuit. United States District Court (Oregon)
• Writing for the Court: JONES, Judge
• Citation: 421 F.Supp.3d 1006
• Parties: JAKE R. Plaintiff, v. COMMISSIONER, Social Security Administration, Defendant.
• Docket Number: Case No. 3:18-cv-00436-JO
• Decision Date: 10 October 2019

421 F.Supp.3d 1006

JAKE R.¹ Plaintiff,
v.
COMMISSIONER, Social Security Administration, Defendant.

Case No. 3:18-cv-00436-JO

United States District Court, D. Oregon, Portland Division.

Signed October 10, 2019

421 F.Supp.3d 1010

Lisa R. J. Porter, JP Law PC, Lake Oswego, OR, for Plaintiff.

Renata Gowie, U.S. Attorney's Office District of Oregon, Portland, OR, Michael S. Howard, Social Security Administration Office of the General Counsel, Seattle, WA, for Defendant.

OPINION AND ORDER

JONES, Judge

Jake R. (Plaintiff) seeks judicial review of the final decision by the Commissioner of Social Security (Commissioner) denying his application for Supplemental Security Income (SSI) disability payments under Tile XVI of the Social Security Act (the Act). This court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Because the Commissioner's decision is not supported by substantial evidence, I reverse and remand for an immediate calculation and award of benefits.

BACKGROUND

Plaintiff was born in 1989. He suffers from congenital hydrocephalus, a rare condition "in which the primary characteristic is excessive accumulation of fluid in the brain." Groom v. Colvin , 222 F. Supp. 3d 915, 918 n.1 (D. Or. 2016). To prevent the buildup of cerebrospinal fluid in his brain, Plaintiff has had a shunt surgically installed in his skull since he was eight months old. Tr. 432. The shunt tubing drains fluid into Plaintiff's abdominal cavity. Tr. 646.

Plaintiff suffers from chronic headaches associated with hydrocephalus. Plaintiff stated that he has three to four "pressure" headaches per week, varying in severity. Tr. 60, Tr. 976. The headaches last from one hour to five or six hours, often accompanied by nausea, fatigue, and irritability. Tr. 60, 62, 71. Plaintiff has undergone nine surgical revisions to correct problems with the shunt. Tr. 27, 662.

Virginia Silvey, Ed. D., director of the Child Development Clinic Program at Oregon Health & Science University (OHSU), examined Plaintiff when he was about eleven years old. Dr. Silvey reported that Plaintiff, like others with hydrocephalus "[c]haracteristically ... display significant difficulty with executive function." Tr. 901 (executive function defined as "the ability to initiate, shift, inhibit, and sustain, to plan, organize, and develop strategies or plans"). Dr. Silvey reported that Plaintiff had "significant difficulty" with memory, including being confused by directions comprising three steps or more; appearing to be disorganized, confused, or absent minded; and had difficulty completing tasks because of an inability to follow instructions. Tr. 901. Dr. Silvey reported that persons with hydrocephalus "can be viewed by others as being passive aggressive

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or intentionally noncompliant, when in actuality they are having difficulty with generalized organization." Tr. 901. The extensive medical record shows that Plaintiff has continued exhibit these psychological traits throughout the relevant time.

Plaintiff suffers from social anxiety, which is treated with Zoloft. Tr. 62-63. He also suffers from attention deficit hyperactivity disorder (ADHD), which has been treated with either Adderall or a form of Adderall since Plaintiff was in the second grade. Tr. 63, 360

In 2014, Plaintiff applied for SSI, alleging disability beginning in 2001. After the agency denied Plaintiff's claim, Plaintiff received a hearing before an Administrative Law Judge (ALJ) in July 2016 and a supplemental hearing in December 2016. Tr. 22. In March 2017, the ALJ issued her decision, finding Plaintiff not disabled. Tr. 22-32. After the Appeals Council denied Plaintiff's request for review, Plaintiff timely filed this action seeking judicial review of the denial of benefits.

STANDARD OF REVIEW

The reviewing court must affirm the Commissioner's decision if it is based on proper legal standards and 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, 1009-10 (9th Cir. 2014) (quoting Lingenfelter v. Astrue , 504 F.3d 1028, 1035 (9th Cir. 2007) ). When the evidence is susceptible to more than one rational interpretation, the court must uphold the Commissioner's decision if it is "supported by inferences reasonably drawn from the record." Tommasetti v. Astrue , 533 F.3d 1035, 1038 (9th Cir. 2008) (citation omitted). The reviewing court may not affirm the Commissioner's decision based on a ground that the agency did not invoke in making its decision. Stout v. Comm'r , 454 F.3d 1050, 1054 (9th Cir. 2006).

THE ALJ'S FINDINGS ON THE FIVE-STEP SEQUENTIAL INQUIRY

The Act defines "disability" as 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). To determine whether a claimant is disabled, the ALJ uses a five-step sequential inquiry. See 20 C.F.R. §§ 404.1520, 416.920 ; Lounsburry v. Barnhart , 468 F.3d 1111, 1114 (9th Cir. 2006).

Here, at step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since 2014, the application date. Tr. 24.

At step two, the ALJ found Plaintiff had the following severe impairments: "headaches, hydrocephalus, and mental health conditions described as ADHD and anxiety disorder." Tr. 24.

At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Tr. 24. The ALJ then assessed Plaintiff's residual functional capacity (RFC), finding that Plaintiff could perform medium work as defined by 20 C.F.R. § 404.967(c), "except frequent climbing of ramps and stairs, climbing of ladders, ropes and scaffolds, kneeling, and crouching; no exposure to hazards such as moving mechanical parts, unprotected heights; noise level would be at most moderate; he is limited to performing simple and routine tasks; limited to simple work

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related decisions; limited to occasional interaction with coworkers, and no interaction with the public." Tr. 26.

At step four, the ALJ found Plaintiff had no past relevant work. Tr. 31.

At step five, the burden of proof shifts to the Commissioner to show that the claimant can perform other work that exists in significant numbers in the national economy, considering the claimant's RFC, age, education, and work experience. Bustamante v. Massanari , 262 F.3d 949, 953-54 (9th Cir. 2001) ; Tackett v. Apfel , 180 F.3d 1094, 1100 (9th Cir. 1999). Here, based on the testimony of a vocational expert, the ALJ found Plaintiff could perform jobs that exist in significant numbers in the national economy, including the representative occupations of office cleaner, electronics worker, and hand packager/inspector. Tr. 32. The ALJ therefore found Plaintiff had not been disabled since April 2014, when he applied for SSL

DISCUSSION

Plaintiff argues that the ALJ erred in (1) finding that Plaintiff's testimony was not fully credible; (2) not giving proper weight to the medical opinion evidence; (3) improperly assessing lay witness evidence; and (4) failing to incorporate all of the medical findings in Plaintiff's RFC.

I. The ALJ's Assessment of Plaintiff's Testimony

The ALJ found that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record." Tr. 27. Because the record here contains no 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). " ‘The clear and convincing standard is the most demanding required in Social Security cases,’ " Garrison , 759 F.3d at 1015 (quoting Moore v. Comm'r , 278 F.3d 920, 924 (9th Cir. 2002) ).

When assessing a claimant's credibility, the ALJ must consider all the evidence in the record, including objective medical evidence, medical opinions, treatment history, daily activities, work history, third-party observations of the claimant's functional limitations, and any other evidence that bears on the consistency and veracity of the claimant's statements. Tommasetti , 533 F.3d at 1039 ; Smolen , 80 F.3d at 1284 ; SSR 96-97p, 1996 WL 374186, at *5. Additionally, the ALJ may use ordinary techniques of credibility evaluation, such as inconsistent statements, testimony that appears less than candid, and an unexplained failure to...