ANN AIKEN, District Judge.
Plaintiff Karl Eggemeyer brings this action pursuant to the Social Security Act ("Act") to obtain judicial review of a final decision of the Commissioner of Social Security ("Commissioner"). The Commissioner denied plaintiff's application for Title XVI supplemental security income ("SSI") under the Act. For the reasons set forth below, the Commissioner's decision is affirmed and this case is dismissed.
On September 30, 2009, plaintiff applied for SSI. Tr. 148-55. His application was denied initially and upon reconsideration. Tr. 104-08, 112-17. On July 26, 2011, an administrative hearing was held before an Administrative Law Judge ("ALJ"), wherein plaintiff was represented by counsel and testified, as did a vocational expert ("VE"). Tr. 33-98, 118, 123-28. On December 20, 2011, the ALJ issued a decision finding plaintiff disabled for the closed period of August 26, 2008, through January 14, 2010, but thereafter experienced medical improvement. Tr. 11-32. After the Appeals Council denied his request for review, plaintiff filed a complaint in this Court. Tr. 1-4.
Born on June 1, 1980, plaintiff was 28 years old on the alleged onset date of disability and 31 years old at the time of the hearing. Tr. 37, 148. Plaintiff graduated from high school, although he was in special education classes and received a modified diploma, and attended approximately two years of college. Tr. 26, 44, 62, 169, 171, 205-06, 248. He was previously employed as a fast food worker, sales person, welder, and laborer. Tr. 25, 89-93, 165, 172. Plaintiff alleges disability as of August 26, 2008, due to a traumatic back injury, which resulted in degenerative disc disease ("DDD") and post laminectomy syndrome; he also alleges disability due to diabetes, obesity, asthma, depression, and borderline intellectual functioning. Tr. 47-48, 148, 164;
The 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.
The initial burden of proof rests upon the claimant to establish disability.
The Commissioner has established a five-step sequential process for determining whether a person is disabled.
At step two, the Commissioner determines whether the claimant has a "medically severe impairment or combination of impairments."
At step three, the Commissioner resolves whether the claimant's impairments, either singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity."
At step four, the Commissioner determines whether the claimant can still perform "past relevant work." 20 C.F.R. § 416.920(e). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work that exists in significant numbers in the national and local economy.
At step one of the five step sequential evaluation process outlined above, the ALJ found that plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 14. At step two, the ALJ determined that plaintiff had the following severe impairments: DDD, post laminectomy syndrome, diabetes, asthma, obesity, borderline intellectual functioning, depression with a mood disorder, and cannabis use. Tr. 14, 16. At step three, the ALJ found that, from August 26, 2008, through January 14, 2010, plaintiff's impairments met listing 1. 04 (A). Tr. 15. Beginning on January 15, 2010, the ALJ concluded that plaintiff's impairments had improved as the result of a corrective back surgery, such that he was no longer presumptively disabled at step three. Tr. 16-18.
Accordingly, the ALJ continued to evaluate how plaintiff's impairments affected his ability to work. The ALJ resolved that, as of January 15, 2010, plaintiff had the residual functional capacity ( "RFC") to perform a limited range of light work as defined by 20 C.F.R. § 416.967(b):
Tr. 19.
At step four, the ALJ found that plaintiff could not perform his past relevant work. Tr. 25. At step five, the ALJ determined that jobs existed in significant numbers in the national and local economy that plaintiff could perform despite his impairments, such as small products assembler and electronics assembler. Tr. 26, 94. As such, the ALJ concluded that plaintiff was not disabled under the Act as of January 15, 2010.
Plaintiff argues that the ALJ erred by: ( 1) rejecting his testimony; (2) not finding him presumptively disabled at step three after January 14, 2010, under listing 1.04 or 12.05C; and (3) failing to account for all of his limitations in the RFC.
Plaintiff asserts that the ALJ failed to articulate a clear and convincing reason, supported by substantial evidence, for rejecting his subjective symptom statements concerning the extent and severity of his impairments. When a claimant has medically documented impairments that could reasonably be expected to produce some degree of the symptoms complained of, and the record 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."
At the hearing, plaintiff testified that he was unable to work because of his back pain. Tr. 59. Due to the severity of this pain, plaintiff stated that can stand for 15 to 20 minutes, and sit for 20 to 30 minutes, before needing to change position. Tr. 68. He explained further that he sleeps during the day as a result of nocturnal insomnia. Tr 69. When asked whether his Oxycontin contributed to his day time sleepiness, plaintiff responded "[y]eah, sometimes"; when questioned earlier whether he suffers from any side-effects as a result of this drug, he stated only "[m]emory." Tr. 58, 70.
As for activities of daily living, plaintiff or his girlfriend, who also testified at the hearing, reported that he walks, stretches, reads, watches television or movies, cooks, and vacuums; he also can do laundry and dishes, although his girlfriend usually completes those tasks. Tr. 65, 76, 79-80, 83-85. In addition, plaintiff remarked that he performs stand up comedy and travels from Eugene to Portland at least twice a month to visit his mother. Tr. 42-43, 49-52. Regarding his marijuana usage, plaintiff reported that he has been "a medical marijuana card holder [for a] little over a year" and smokes "[u]sually at night to go to sleep"; he initially denied using marijuana prior to being issued a medical card. Tr. 55. Later during the hearing, the ALJ confronted plaintiff with a medical report reflecting that plaintiff did not have a medical marijuana card but was nonetheless smoking a joint each night. Tr. 72. Plaintiff clarified that he "tried it before . . . to see if it would help anything out." Tr. 72. The ALJ persisted that daily usage was "more than trying it"; plaintiff responded "well — it was painful . . . it's illegal, I'm on probation." Tr. 72-73.
After summarizing plaintiff's hearing testimony, the ALJ found that plaintiff's medically determinable impairments could reasonably be expected to produce some degree of symptoms, but that his statements regarding the extent of these symptoms were not fully credible due to his activities of daily living, inconsistent statements, failure to seek and follow prescribed medical treatments, and the lack of corroborating objective medical evidence.
Notably, the ALJ determined that plaintiff's credibility was impaired by his activities of daily living. Inconsistencies in a claimant's testimony, including those between daily activities and the alleged symptoms, can serve as a basis for discrediting it.
The ALJ also resolved that plaintiff's inconsistent statements rendered him less credible. Tr. 22-23. As denoted above, inconsistent statements can be used to undermine a claimant's credibility.
Additionally, the ALJ found that plaintiff lacked credibility because he failed to seek treatment for his allegedly debilitating depression or follow his doctors' dietary and exercise recommendations. Tr. 20-22. Failure to seek or follow up on medical treatment is a clear and convincing reason to reject a claimant's subjective statements.
Thus, the ALJ provided clear and convincing reasons, supported by substantial evidence, for rejecting plaintiff's subjective symptom statements. As a result, this Court need not discuss all of the reasons provided by the ALJ because at least one legally sufficient reason exists.
Plaintiff next contends that the ALJ erred at step three in determining that his impairments did not meet or equal listing 1.04 or 12.05C. To establish a listed impairment at step three, the claimant must demonstrate that "all of the specified criteria [are met]."
Listing 1.04(A)
As of January 15, 2010, approximately one year after his corrective back surgery, the ALJ determined that plaintiff no longer met listing 1.04(A): "[n]o treating or examining physician has reported clinical findings equivalent in severity to the criteria of any listed impairment, nor does the evidence show medical findings that are the same or equivalent to those of any listed impairment." Tr. 16. Specifically, the ALJ denoted that, after plaintiff's back surgery, "[h]e noticed improvement in his pain and incontinence," and "[b]y January of 2010 had a negative straight leg-raising test and only had mild tenderness to palpation in one area in his back." Tr. 18. Further, the ALJ observed that May 2010 MRis revealed medical improvement: "[n]o focal masses or clumping of the nerve roots was seen [and] [p]reviously present severe central canal stenosis was no longer visualized."
Here, substantial evidence supports the ALJ's finding of medical improvement after January 14, 2010. Post-surgery, Todd Kuether, M.D., reported that plaintiff was "certainly up and moving much better and his other symptoms of incontinence have improved although they have not completely resolved." Tr. 319, 321; compare Tr. 257, 302, 411 (medical records reflecting chronic incontinence pre-surgery),
Accordingly, the ALJ properly determined that, as of January 15, 2010, plaintiff's back impairment no longer met all of listing 1.04(A)'s requisite elements.
To be disabled under listing 12.05C, the claimant bears the burden of demonstrating: "(1) subaverage intellectual functioning with deficits in adaptive functioning initially manifested before age 22; (2) an IQ score of 60 to 70; and (3) a physical or other mental impairment causing an additional and significant work-related limitation."
Presuming that the first and third elements are met, plaintiff failed to establish presumptive disability under this listing. The record contains one set of IQ test results. In March 2010, Pamela Joffe, Ph.D., performed a psychological evaluation on plaintiff. Tr. 333-40. Verbal and performance IQ were no longer calculated pursuant to the method employed by Dr. Joffe, but plaintiff's full-scale IQ was 74.
As such, because neither his full-scale IQ nor sub-tests resulted in scores between 60 and 70, even in conjunction with his chronic narcotic usage, plaintiff cannot demonstrate equivalence under listing 12.05C.
Finally, plaintiff argues that the ALJ's RFC is erroneous in two respects. First, plaintiff contends that the ALJ neglected to account for his inability to sustain activity: "[p]laintiff does not disagree that [he] may have the general residual physical ability to do activities equivalent to the sedentary, or even light, exertion level from time to time [but] [o]n the basis of the foregoing arguments it is clear that he would lack the capacity to sustain SGA level work." Pl.'s Opening Br. 18. Second, plaintiff asserts that the ALJ's RFC is inconsistent with the assessment of state-agency consulting source Martin Lahr, M.D., "who opined that Mr. Eggemeyer was limited to an `overall sedentary' level RFC."
The RFC is the maximum that a claimant can do despite his limitations.
Regarding plaintiff's first allegation of error relating to the RFC, the ALJ properly discredited plaintiff's testimony and found that he did not meet or equal listing 1.04 (A) or 12.05C. Thus, to the extent plaintiff's argument is contingent upon a finding of harmful error in regard to the aforementioned issues, it lacks merit.
Concerning his second allegation of error surrounding the RFC, plaintiff quotes Dr. Lahr's report out of context. The doctor explicitly identified plaintiff's functional limitations, in relevant part, as follows: standing and/or walking for a total of at least two hours in an eight-hour workday, and sitting for a total of six hours in an eight-hour workday. Tr. 361. In formulating the RFC, the ALJ did not deviate from Dr. Lahr' s assessment and instead articulated restrictions consistent therewith.
In other words, the distinction between sedentary and light exertion work is immaterial in this case because the ALJ resolved that plaintiff was limited to standing no more than two hours in an eight-hour workday.
For the foregoing reasons, the Commissioner's decision is AFFIRMED and this case is DISMISSED.
IT IS SO ORDERED.
