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Braun v. Berryhill

United States District Court, D. Montana, Butte Division

August 15, 2018

AUSTIN M. BRAUN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          Jeremiah C. Lynch, United States Magistrate Judge.

         Plaintiff 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).

         I. Standard of Review

         This 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).

         “The 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).

         II. Burden of Proof

         To 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)).

         In 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).

         If, 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. § 404.1520(a)(4)(v).

         III. Discussion

         At 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).

         Braun 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 hypothetical.

         A. Subjective Symptom Testimony

         Braun argues the ALJ did not provide sufficiently clear and convincing reasons for discounting his subjective symptom testimony.

         The ALJ 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.

         Social Security Ruling 16-3p clarifies that subjective symptom evaluation is not an examination of an individual's character or “credibility.”[1] 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 ...


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