Cannon v. Commissioner of Social Security

          ORDER

          H. Russel Holland, United States District Judge

         This is an action for judicial review of the denial of disability benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f. Plaintiff Eric Maurice Cannon has timely filed his opening brief, ^[1] to which defendant, the Commissioner of the Social Security, has timely responded.^[2] Oral argument was not requested and is not deemed necessary.

         Procedural Background

         On July 24, 2014, plaintiff filed applications for disability benefits under Title II and Title XVI of the Social Security Act. Plaintiff alleged that he became disabled due to a learning disability, head trauma, and migraine headaches. Plaintiff alleged that he became disabled on November 28, 2013. Plaintiff's applications were denied. Plaintiff requested a hearing. After an administrative hearing on August 4, 2016, an administrative law judge (ALJ) denied plaintiff's claims. Plaintiff sought review of the ALJ's unfavorable decision. On March 29, 2018, the Appeals Council denied plaintiff's request for review of the ALJ's decision, thereby making the ALJ's December 12, 2016 decision the final decision of the Commissioner.

         On May 30, 2018, plaintiff commenced this action in which he asks the court to review the final decision of the Commissioner.

         General Factual Background

         Plaintiff was born on February 11, 1991. Plaintiff was 25 years old at the time of the administrative hearing. Plaintiff has a high school education. Plaintiff had an IEP throughout his schooling and “qualifie[d] for special education services as learning disabled in the areas of Math, Reading, and Written Expression.”^[3] Plaintiff's past relevant work includes work as an asbestos remover, roustabout, and event setup worker.

         The ALJ's Decision

         The ALJ first determined that plaintiff “meets the insured status requirements of the Social Security Act through June 30, 2014.”^[4]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.^[5]

         At step one, the ALJ first found that plaintiff had “engaged in substantial gainful activity during the following period: November and December 2014. . . .”^[6] However, the ALJ also found that “there has been a continuous 12-month period(s) during which the claimant did not engage in substantial gainful activity. The remaining findings address the period(s) during which the claimant did not engage in substantial gainful activity.”^[7]

         At step two, the ALJ found that plaintiff had “the following severe impairments: history of closed head[] injuries, seizures, migraine headaches, and cognitive disorder. . . .”^[8]The ALJ found that any functional limitations related to plaintiff's diagnoses of intellectual disability/borderline intellectual functioning and learning disorder were “adequately accounted for by consideration of the claimant's cognitive disorder as a severe impairment.”^[9]The ALJ found plaintiff's diagnoses of attention-deficit/hyperactivity and depressive disorder non-severe.^[10]

         At step three, the ALJ found that plaintiff did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. . . .”^[11] The ALJ considered Listings 11.18 (cerebral trauma/traumatic brain injury) and 12.02 (neurocognitive disorder). The ALJ considered the “paragraph B” criteria and found that plaintiff had mild restrictions in activities of daily living; mild difficulties with social functioning; moderate to marked difficulties with regard to concentration, persistence, or pace; and no episodes of decompensation, which had been of extended duration.^[12] The ALJ also found that the “paragraph C” criteria were not satisfied.^[13]

         “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC.” Bray v. Comm'r of Social Security Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found that plaintiff had

the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant cannot climb ladders, ropes, or scaffolding; can have no exposure to unprotected heights; needs to avoid concentrated exposure to non-weather extreme cold and extreme heat; and needs to avoid concentrated exposure to excessive vibrations. The claimant is also limited to working in places and situations where there would be no more than normal commercial/industrial lighting and in which he would not be around anyone who would be welding or causing any excessive flashing or bright lights. Further, the claimant is limited to unskilled work that does not involve the use of detailed written instruc-tions.^[14]

         The ALJ found plaintiff's symptom statements less than credible because they were inconsistent with the medical evidence, because plaintiff had not sought regular neurological treatment, because they were inconsistent with his daily activities, because they were inconsistent with statements from plaintiff's past employers, and because plaintiff called in sick or left early only 5 or 6 times during the course of working full-time for nine months.^[15]

         The ALJ gave great weight to Dr. White's opinion.^[16] The ALJ gave little weight to Dr. Roberts' opinions.^[17] The ALJ gave partial weight to the opinions of Drs. Fraser and Russo.^[18]The ALJ gave little weight to Dr. Fuller's opinion^[19] regarding plaintiff's ability to be exposed to noise but great weight to the rest of her opinion.^[20] The ALJ gave little weight^[21] to Dr. Youngblood's opinion.^[22] The ALJ gave little weight to Dr. Jones' opinion^[23] that plaintiff requires clear and concise expectations and that plaintiff would do best in positions with limited public and co-worker contact but great weight to the rest of her opinion.^[24] The ALJ gave great weight to Dr. Hill's opinion that plaintiff had no periods of decompensation for extended periods and his opinion that plaintiff “is able to understand, remember, and follow-through with simple one-to-two step instructions.”^[25] The ALJ gave little weight^[26] to Dr. Cherry's opinion.^[27] The ALJ gave great weight^[28] to Dr. Moore's opinion.^[29] The ALJ gave some weight^[30] to the lay testimony of plaintiff's sister, ^[31] plaintiff's mother, ^[32] Terria Clayton, ^[33] and Angela Gray.^[34] The ALJ considered the testimony of plaintiff's former employers, Karl Green and Greg Tyler, but did not assign any specific weight to their testimony.^[35]

         At step four, the ALJ found that plaintiff was “unable to perform any past relevant work. . . .”^[36]

         At step five, the ALJ found that “there are jobs that exist in significant numbers in the national economy that the claimant can perform” including work as a bagger/hand packer, laundry worker, or horticultural worker.^[37]

         The ALJ thus concluded that plaintiff had “not been under a disability, as defined in the Social Security Act from November 28, 2013, through the date of this decision. . . .”^[38]

         Standard of Review

         Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner. . . .” The court “properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed “‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).

         Discussion

         Plaintiff first argues that the ALJ erred in giving Dr. White's opinion great weight. Dr. White was plaintiff's primary care physician. On January 31, 2014, Dr. White “cleared” plaintiff “to return to work without restrictions.”^[39] The ALJ gave great weight to this opinion because “it is consistent with [th]e record as a whole showing that the claimant did not seek neurological treatment from the alleged onset date to late July 2014 . . ., thus indicating that he did not experience functional limitations to the extent he has alleged during this time period.”^[40] The ALJ also gave Dr. White's opinion great weight because he was plaintiff's primary care physician.^[41]

         Plaintiff argues that there are two problems with the ALJ assigning great weight to Dr. White's opinion. First, plaintiff argues that Dr. White's opinion is not supported by his treatment notes, since as the ALJ observed, plaintiff had not had significant treatment prior to July 2014. Second, plaintiff contends that the ALJ's attempt to explain plaintiff's lack of treatment fails. In a footnote, the ALJ noted that “[a]lthough there is indication that the claimant did not have health insurance coverage during at least part of the period at issue . . ., there is no explanation as to why he was not eligible for such coverage under the provisions of the Affordable Care Act.”^[42] Plaintiff contends that if the ALJ had questions as to his insurance coverage, the ALJ should have brought this issue up at the administrative hearing.

         Contrary to plaintiff's argument, Dr. White's opinion was supported by his treatment notes. Dr. White's notes indicate that while plaintiff had migraines, ranging from 1 or 2 a month to 2-4 per year, his headaches responded well to Imitrex and Phenergan.^[43]

         As for the ALJ's explanation that Dr. White's opinion was consistent with the fact that plaintiff did not seek treatment for his headaches from the alleged onset date in November 2013 until July 2014, the record does bear this out. Plaintiff did not seek any treatment for his headaches during this time period. But, plaintiff is correct that it is not clear from the record why he was not receiving treatment at that time. If it was because he lacked insurance and could not afford treatment, that fact should not weigh against him. See Trevizo v. Berryhill, 871 F.3d 664, 681 (9th Cir. 2017) (quoting Gamble v. Chater, 68 F.3d 319, 321 (9th Cir. 1995)) (“‘Disability benefits may not be denied because of the claimant's failure to obtain treatment he cannot obtain for lack of funds.'”) The ALJ questioned why plaintiff would not have had insurance under the Affordable Care Act, but the ALJ did not explore this issue.

         But, that does not necessarily mean that the ALJ erred as to Dr. White's opinion. As discussed above, Dr. White's opinion was supported by his treatment notes. Thus, the ALJ did not err in giving Dr. White's opinion great weight.

         Plaintiff next argues that the ALJ should have further developed the record after Dr. Moore criticized Dr. Youngblood's and Dr. Cherry's testing methods. “The ALJ always has a ‘special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'” Garcia v. Comm'r of Social Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003)). “The ALJ's duty to develop the record fully is also heightened where the claimant may be mentally ill and thus unable to protect h[is] own interests.” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). “Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to ‘conduct an appropriate inquiry.'” Id. (quoting Smolen v. Chater, 80 F.3d at 1273, 1288 (9th Cir. 1996)). “The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record.” Id.

         Dr. Moore criticized Dr. Youngblood's assessments of borderline intellectual functioning and learning disabilities or disorders NOS.^[44] She explained that Dr. Youngblood relied on “the WAIS-IV and the RADD” to reach his conclusions but that

[t]he RADD is not an ideal assessment for learning problems. It's a screening tool. It kind of gives an overview of where the difficulties are, but overall . . . I thought that the learning disorders were, . . . as revealed by the RADD, . . . really consis- tent with the claimant's baseline IQ, and so many folks would not even go to the actual level of saying there are learning disabilities.^[45]

         As for Dr. Cherry, Dr. Moore testified that his administration of the WAIS-IV was “out of the standard of acceptable testing practice” because he “leaves out some of the subtests.”^[46]

         Dr. Moore also found fault with Dr. Cherry's evaluation because

[t]here are test[s] reported as administered but results are not always provided in the report. I think that's the case here. He had documented on one report, he had some neurological notes and that sort of thing, but his own assessment tools are not always reported.^[47]

         Plaintiff argues that because Dr. Moore criticized the testing methods used by Dr. Youngblood and Dr. Cherry, the ALJ should have either asked Dr. Moore if further testing was needed to clarify their results or ordered new testing. Plaintiff argues that Dr. Moore opined that the evidence in the record was flawed and thus the ALJ had a duty to further develop the record.

         Dr. Moore's testimony did not trigger the ALJ's duty to further develop the record. Dr. Moore's testimony did not create any ambiguities in the evidence. Rather, in criticizing Dr. Youngblood's and Dr. Cherry's testing methods, Dr. Moore was explaining why her opinion was different from theirs. Moreover, Dr. Moore testified that she had adequate information on which to base her opinion. Dr. Moore testified that “I don't think I need to know anything more than what I already do”^[48] and that she had “enough evidence to have an opinion as to the claimant's medical status[.]”^[49] Dr. Moore also testified that the records from plaintiff's youth were not complete but that while such information would be “interesting and historical”, it was not necessarily required to evaluate plaintiff in the “current timeframe.”^[50]

         Plaintiff next argues that the ALJ's duty to further develop the record was triggered by Greg Tyler's testimony. Tyler was plaintiff's former employer at the Egan Convention Center. On August 4, 2016, Tyler wrote that plaintiff

was hired on 7/22/15 and his last day of employment was 4/30/16. Eric's job title was conversion worker, his main duties w[ere] to setup stages and chairs for multiple events and tear down after events. It became clear early on to co-workers and management that Eric had problems remembering and performing his duties when given multiple tasks. We had to ask all of our employees and management to only assign Eric one task to perform at a time because of his disability. I work[ed] with Eric so he could make all of his appointments with his neurologist. Eric called off or left work 5 to 6 times during his employment with SMG because of se[vere] headaches.^[51]

         The ALJ considered Tyler's testimony and found that it indicated that plaintiff's migraines

did not significantly interfere with his job performance. . . . Rather, although Mr. Tyler reported that it became clear early on to both co-workers and management that the claimant had problems with remembering and performing his duties when given multiple tasks, it was also reported that he was nevertheless able to maintain his employment in this position by being assigned only one task at a time . . . .^[52]

         The ALJ also noted that “[a]lthough it was indicated that the claimant called in sick from work or left work early approximately five or six times due to severe headaches, there is no indication that this was a problem for this employer such that the claimant was let go as a result.”^[53]

         Plaintiff argues that the ALJ should have further developed the record as to Tyler's testimony because Tyler did not expressly explain why plaintiff no longer worked for him. Plaintiff also points out that Tyler indicated that he accommodated plaintiff's medical appointments and call outs and his limitations as to remembering instructions. Plaintiff argues that the ALJ should have explored with the vocational expert whether these were accommodations that all employers could reasonably be expected to provide or whether the need for such accommodations would have eroded the number of jobs available for someone with plaintiff's limitations. Plaintiff also seems to suggest that the ALJ should have clarified whether his work at the Egan Center was considered full time or part time.

         Although Tyler did not indicate why plaintiff no longer worked at the Egan Center, plaintiff testified that he stopped work because Dr. Roberts “just told me, you know what, we're taking - we're just completely taking you off work until we get this [plaintiff's headaches] figured out.”^[54] This testimony is supported by Dr. Roberts' treatment notes from 2016, in which he advises plaintiff to stop working. There was nothing further for the ALJ to develop as to this issue.

         As for whether plaintiff worked full time or part time, the record is clear that plaintiff worked essentially full time at the Egan Center. The ALJ indicated^[55] that plaintiff had testified that he worked “nearly” full time, working 38 hours a week, ^[56] and other evidence indicated that “[a]lthough it is technically part-time, ” plaintiff was working 40 hours per week at the Egan Center.^[57] There was nothing further for the ALJ to develop as to this issue.

         As for the accommodations that were made by the Egan Center, Tyler stated that plaintiff was limited to one task at time. The ALJ limited plaintiff to unskilled work. The Social Security regulations define unskilled work as “work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time.” 20 C.F.R. § 416.968(a). While some unskilled work might only require an employee to do only one task at a time, it is not clear that all unskilled work would encompass such a limitation. It is not clear what impact, if any, plaintiff's ability to only perform one task at a time would have on his ability to sustain full-time employment. The ALJ should have further developed the record as to this issue.

         As to the call-out issue, Tyler stated that plaintiff called out 5-6 times in a nine-month period. The ALJ noted that there was no indication that this level of call outs was a problem for Tyler, ^[58] but that does not necessarily mean that it would not be a problem for other employers. The ALJ should have clarified with the vocational ...