United States District Court, D. Montana, Butte Division
AUSTIN M. BRAUN, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
Jeremiah C. Lynch, United States Magistrate Judge.
Austin Braun brings this action 42 U.S.C. § 405(g)
seeking judicial review of the decision of the Commissioner
of Social Security terminating his supplemental security
income benefits as a result of a childhood disability
redetermination. Effective in May 2011, Braun was granted
childhood supplemental security income benefits due to a
cognitive delay and attention deficit/hyperactivity
disorders. (Doc. 6, at 113). As required by law, the
Commissioner conducted a disability redetermination
assessment after Braun reached age 18 by applying the
criteria used in determining initial eligibility for adults.
On August 5, 2014, the Commissioner issued a disability
redetermination decision, finding that Braun was no longer
disabled as of January 31, 2014. (Doc. 6, at 137). Braun
requested a hearing, and on April 13, 2016, an Administrative
Law Judge (“ALJ”) issued a decision finding that
Braun's disability ended on January 31, 2014 and he had
not become disabled again since that date. (Doc. 6, at 26).
The Appeals Council denied Braun's request for review,
making the ALJ's decision the agency's final decision
for purposes of judicial review. Jurisdiction vests with this
Court pursuant to 42 U.S.C. § 405(g).
Standard of Review
Court's review is limited. The Court may set aside the
Commissioner's decision only where the decision is not
supported by substantial evidence or where the decision is
based on legal error. Bayliss v. Barnhart, 427 F.3d
1211, 1214 n.1 (9th Cir. 2005); Thomas v.
Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971); Widmark v. Barnhart, 454 F.3d 1063,
1070 (9th Cir. 2006).
ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and resolving
ambiguities.” Edlund v. Massanari, 253 F.3d
1152, 1156 (9th Cir. 2001). This Court must uphold
the Commissioner's findings “if supported by
inferences reasonably drawn from the record.”
Batson v. Commissioner of Social Security
Administration, 359 F.3d 1190, 1193 (9th Cir.
2004). “[I]f evidence exists to support more than one
rational interpretation, ” the Court “must defer
to the Commissioner's decision.” Batson,
359 F.3d at 1193 (citing Morgan v. Commissioner, 169
F.3d 595, 599 (9th Cir. 1999). This Court
“may not substitute its judgment for that of the
Commissioner.” Widmark, 454 F.3d at 1070
(quoting Edlund, 253 F.3d at 1156).
Burden of Proof
establish disability, a claimant bears “the burden of
proving an ‘inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which...has lasted or can be
expected to last for a continuous period of not less than 12
months.'” Batson, 359 F.3d at 1193-94
(quoting 42 U.S.C. § 423(d)(1)(A)).
determining whether a claimant is disabled, the Commissioner
follows a five-step sequential evaluation process. 20 C.F.R.
§ 404.1520. The claimant bears the burden of
establishing disability at steps one through four of this
process. Burch v. Barnhart, 400 F.3d 676, 679
(9th Cir. 2005). At the first step, the ALJ will
consider whether the claimant is engaged in
“substantial gainful activity.” 20 C.F.R. §
404.1520(a)(4)(I). If not, the ALJ must determine at step two
whether the claimant has any impairments that qualify as
“severe” under the regulations. 20 C.F.R. §
404.1520(a)(4)(ii). If the ALJ finds that the claimant does
have one or more severe impairments, the ALJ will compare
those impairments to the impairments listed in the
regulations. 20 C.F.R. § 404.1520(a)(4)(iii). If the ALJ
finds at step three that the claimant has an impairment that
meets or equals a listed impairment, then the claimant is
considered disabled. 20 C.F.R. § 404.1520(a)(iii).
however, the claimant's impairments do not meet or equal
the severity of any impairment described in the Listing of
Impairments, then the ALJ must proceed to step four and
consider whether the claimant retains the residual functional
capacity to perform past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). If the claimant establishes an inability
to engage in past work, the burden shifts to the Commissioner
at step five to establish that the claimant can perform other
work in the national economy. 20 C.F.R. §
steps one and two, the ALJ found that since January 31, 3014,
Braun has had the following severe impairments:
attention-deficit hyperactive disorder (“ADHD”),
speech and language delays, organic brain syndrome, and
anxiety. At step three, the ALJ concluded that Braun did not
have an impairment or combination of impairments that met or
medically equaled any impairment described in the Listing of
Impairments. The ALJ further found that while Braun's
impairments could reasonably be expected to cause his alleged
symptoms, his statements regarding the severity of those
symptoms were not entirely consistent with the medical and
other evidence of record. The ALJ determined that Braun had
the residual functional capacity to perform at all exertional
levels, subject to certain non-exertional limitations. The
ALJ found that Braun did not have any past relevant work, but
concluded at step five that he was not disabled because he
could perform unskilled work as a window cleaner, garbage
collector, or addresser. (Doc. 6, at 26-35).
argues the ALJ's residual functional capacity assessment
is not supported by substantial evidence and raises three
main issues on appeal. First, he maintains the ALJ did not
set forth clear and convincing reasons for discounting his
subjective testimony. Second, Braun argues the ALJ failed to
properly evaluate evidence provided by his vocational
services program and treating nurse practitioner. Third,
Braun contends the ALJ erred by finding that he did not meet
or equal the criteria of any listed impairment. Finally,
Braun argues the ALJ erred by relying on the vocational
expert's testimony because it was based on an incomplete
Subjective Symptom Testimony
argues the ALJ did not provide sufficiently clear and
convincing reasons for discounting his subjective symptom
must follow a two-step process when evaluating a
claimant's subjective symptom testimony. Lingenfelter
v. Astrue, 504 F.3d 1028, 1035-36 (9thCir.
2007). At step one, “the ALJ must determine whether the
claimant has presented objective medical evidence of an
underlying impairment which could reasonably be expected to
produce the pain or other symptoms alleged.”
Lingenfelter, 504 F.3d at 1036. If the claimant
meets this initial burden, at step two the ALJ may discredit
the claimant's subjective symptom testimony about the
severity of his or her symptoms “only by offering
specific, clear and convincing reasons for doing so.”
Lingenfelter, 504 F.3d at 1036.
Security Ruling 16-3p clarifies that subjective symptom
evaluation is not an examination of an individual's
character or “credibility.” SSR 16-3p at *1,
2017 WL 5180304 (October 25, 2017). Rather, the ALJ should
consider whether the claimant's statements about the
intensity, persistence and limiting effects of his or her