# Davis v. Commissioner Social Security Administration

> District Court, D. Oregon · December 17, 2024

URL: https://www.frixlaw.com/law-library/cases/10783043

## Case

- **Court:** District Court, D. Oregon
- **Decided:** December 17, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

CHARLES D.,1 Case No.: 6:23-cv-01549-AN

Plaintiff,
v.
OPINION AND ORDER
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,

Defendant.

Plaintiff Charles D. brings this action seeking judicial review of the Commissioner of the Social
Security Administration’s ("Commissioner") denial of his application for Disability Insurance Benefits
("DIB") under Title II of the Social Security Act ("SSA"). The Court has jurisdiction over plaintiff's appeal
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons explained below, the Court affirms the
Commissioner's decision.
BACKGROUND
A. Plaintiff's Application for DIB
Plaintiff was born in March 1984, making him thirty-two years old on his alleged onset date of
December 31, 2016. Tr. 15, 168. Plaintiff has a high school education and past relevant work experience
as an intelligence specialist, commercial designer, and manager. Tr. 27, 199. In his application, plaintiff
alleges disability due to mast cell activation syndrome, fatigue, post-traumatic stress disorder ("PTSD"),
depression, anxiety, degenerative disc disease, arthritis, memory loss, and brain fog. Tr. 198. The
Commissioner denied plaintiff's applications initially and upon reconsideration. Tr. 81-85, 94-98. On May
98, 2023, plaintiff appeared with counsel for a hearing before Administrative Law Judge ("ALJ") John

1 In the interest of privacy, this opinion and order uses only the first name and the initial of the last name of the
nongovernmental party in this case.
Sullivan. Tr. 34-61. On July 19, 2023, ALJ Sullivan issued a written opinion, finding plaintiff not disabled.
Tr. 12-33. The Appeals Council denied plaintiff's request for review. Tr. 1-6. Plaintiff now seeks judicial
review of the ALJ's decision.
B. Sequential Disability Evaluation
The SSA defines a disability as the "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." 42 U.S.C. § 423(d)(1)(A). Disability claims are
evaluated according to a five-step sequential procedure. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d
685, 689 (9th Cir. 2009). The claimant bears the burden at steps one through four, and then the burden
shifts to the Commissioner at step five. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
The five-step evaluation requires the ALJ to determine: (1) whether a claimant is "doing substantial
gainful activity"; (2) whether the claimant has a "medically determinable physical or mental impairment,"
or combination of impairments, that is severe and either lasts at least a year or can be expected to result in
death; (3) whether the severity of the claimant's impairments meets or equals one of the various impairments
specifically listed by Commissioner; (4) whether the claimant's residual functional capacity ("RFC") allows
the claimant to perform their past relevant work; and (5) whether, given the claimant's RFC, age, education,
and work experience, the claimant can make an adjustment to other work that "exists in significant numbers
in the national economy." 20 C.F.R. § 404.1520(a).
C. The ALJ's Decision
At step one, the ALJ determined that plaintiff had not engaged in substantial gainful activity since
his alleged onset date of December 31, 2016. Tr. 17. At step two, the ALJ determined that plaintiff suffered
from the following severe, medically determinable impairments: morbid obesity, asthma, obstructive sleep
apnea, mast cell activation syndrome, major depressive disorder, anxiety disorder, somatic symptom
disorder, and PTSD. Tr. 17. At step three, the ALJ concluded that plaintiff did not have an impairment or
combination of impairments that meets or equals a listed impairment. Tr. 19. The ALJ then concluded that
plaintiff had the RFC to perform less than the full range of medium work as defined in 20 C.F.R. §
404.1567(c), with the following limitations:
[T]he claimant is capable of lifting and/or carrying 50 pounds occasionally and 25 pounds
frequently, sitting for 6 hours per 8 hour workday, standing or walking for 6 hours per 8
hour workday, and pushing/pulling within the same limits as lifting and carrying; he should
avoid work at unprotected heights; he should never be exposed to moving mechanical parts;
operation of a motor vehicle should not be part of his job duties; he should avoid exposure
to dust, odors, fumes and pulmonary irritants; the claimant is capable of understanding,
remembering, and carrying out simple, routine tasks; he is able to use judgment to make
simple work-related decisions; he is able to occasionally interact with coworkers and the
general public; in addition to normal breaks, the claimant is expected to be off-task five
percent of the time, scattered over the course of an eight-hour workday.

Tr. 20-21.

At step four, the ALJ found plaintiff unable to perform any past relevant work. Tr. 27. At step
five, the ALJ found that there are jobs that exist in significant numbers in the national economy that plaintiff
can perform, such as Marker (DOT# 209.587-034), with 84,000 jobs available; Electronics Worker (DOT#
726.687-010), with 169,000 jobs available; and Inspector and Hand Packager (DOT# 559.687-074), with
90,000 jobs available. Tr. 28. Therefore, the ALJ concluded that plaintiff was not disabled between the
alleged onset date, December 31, 2016, and June 30, 2020, his date last insured. Tr. 29.
STANDARD OF REVIEW
The district court may set aside the Commissioner's denial of benefits only if the ALJ's findings are
"'not supported by substantial evidence or [are] based in legal error.'" Bray v. Comm'r of Soc. Sec. Admin.,
554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.
2006)). Substantial evidence is defined as "'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)). The district court "cannot affirm the [ALJ's]
decision '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)). Instead, the
district court must consider the entire record. Id. Where the record as a whole can support either the grant
or denial of benefits, the district court "'may not substitute [its] judgment for the ALJ’s.'" Bray, 554 F.3d
at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
DISCUSSION
Plaintiff argues the ALJ erred by discounting plaintiff's testimony without a clear and convincing
reason for doing so or, alternatively, by failing to fully develop the record. As explained below, the Court
finds that the ALJ did not err.
A. Symptom Testimony
Plaintiff contends the ALJ erred by discrediting plaintiff's testimony about the extent of the
symptoms he suffers from mast cell activation syndrome, primarily, fatigue. Pl. Br., ECF [12], at 5-16.
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." Smolen v. Chater, 80 F.3d 1273, 1281 (9th
Cir. 1996) (internal citation omitted). A general assertion the claimant is not credible is insufficient; rather,
the ALJ must "state which ... testimony is not credible and what evidence suggests the complaints are not
credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). The reasons proffered must be "sufficiently
specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant’s
testimony." Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted). In other words,
the "clear and convincing" standard requires an ALJ to "show [their] work." Smartt v. Kijakazi, 53 F.4th
489, 499 (9th Cir. 2022).
Thus, in formulating the RFC, the ALJ is not tasked with "examining an individual's character" or
propensity for truthfulness, and instead assesses whether the claimant's subjective symptom statements are
consistent with the record as a whole. SSR 16-3p, available at 2017 WL 5180304. If the ALJ's finding
regarding the claimant's subjective symptom testimony is "supported by substantial evidence in the record,
[the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002)
(internal citation omitted). The question is not whether the ALJ's rationale convinces the court, but whether
the ALJ’s rationale "is clear enough that it has the power to convince." Smartt, 53 F.4th at 499.
At the hearing, plaintiff testified that he suffered significant symptoms from his mast cell activation
syndrome. Tr. 43. Starting in 2017, he began to experience "nausea, sickness, almost flu-like symptoms,"
fatigue, and weakness. Tr. 43. He would often have "GI symptoms, constantly in the bathroom multiple
times a day. And just tired and run down and often having to, you know, take a nap." Tr. 43-44. Plaintiff
further testified that his symptoms worsened with stress, causing him to be very physically sick. Tr. 48,
217. Plaintiff began treating these symptoms with medications in late 2017, which "stabilize[d] [the mast
cell activation syndrome] so [he’s] not having the flares and not feeling sick all the time." Tr. 45. Although
the medication improves his symptoms, plaintiff testified he still suffers "overall fatigue and cognitive
issues like memory fog." Tr. 45. And, despite the success of the medication, plaintiff testified that he still
has flares if he has "any kind of stress or even environmental triggers" like pollen, propane fumes, or too
much physical activity. Tr. 48.
Plaintiff described his "brain fog" as a "groggy kind of just foggy feeling" that causes problems
with memory, planning ahead, and things like following a recipe when cooking. Tr. 45-46. Plaintiff tried
to complete a part-time MBA program during the relevant period, but testified that the fatigue was "wearing
[him] out," and that he could not handle the mental and physical toll of the work. Tr. 47-48. Plaintiff
testified that his continuous positive airway pressure ("CPAP") machine helps with his obstructive sleep
apnea, which is a separate medically determined impairment, but that it still contributes to his overall
fatigue. Tr. 52. Plaintiff also testified that he needs to go slow and rest often, and that most things take
twice as long. Tr. 213. He tries to walk the dogs daily but can only manage it on "good days"—i.e., 2 or 3
times a week, Tr. 212.
The ALJ found plaintiff’s medically determinable impairments could reasonably be expected to
cause some of the alleged symptoms and did not identify evidence of malingering. Tr. 23. However, the
ALJ concluded that plaintiff's statements concerning the intensity, persistence and limiting effects of his
symptoms were not entirely consistent with the medical evidence and other evidence in the record. Tr. 23.
Specifically, the ALJ found plaintiff's symptom allegations were inconsistent with objective medical
evidence, plaintiff's treatment history, and that plaintiff's daily activities conflicted with his symptom
allegations. Tr. 23.
The ALJ reasonably discounted plaintiff's allegations of limitations stemming from his mast cell
activation syndrome as inconsistent with the record. Conflict with objective medical evidence is a sufficient
basis for discounting a claimant's testimony. Smartt, 53 F.4th at 498; 20 C.F.R. § 404.1529(c)(2). At the
hearing, plaintiff testified that fatigue, weakness, and "brain fog" were his most limiting symptoms. Tr. 47,
211. Specifically, plaintiff alleged his fatigue and cognitive issues made it impossible for him to complete
even a part-time MBA, and that he has trouble following written and verbal instructions. Tr. 48, 216. In
contrast to Plaintiff’s allegations, the ALJ highlighted several medical tests that plaintiff underwent which
show that mast cell diagnosis was not responsible for these symptoms. For example, laboratory and GI
testing both returned normal results. Tr. 23-24, 783, 791, 805, 808, 815. Moreover, in contrast to plaintiff's
allegations of memory impairment, difficulty focusing, and fatigue/brain fog, the ALJ noted that
neurocognitive and neurological testing showed no cognitive deficits. Tr. 24-26, 45-46, 211, 791, 925-27.
A brain MRI was normal. Tr. 24, 932. And plaintiff's full-scale IQ of 105 was in the average range. Tr.
24, 363. The ALJ further relied on the fact that plaintiff did not demonstrate distractibility or inattentiveness
in mental status exams. Tr. 24-26, 365. These records all conflicted with plaintiff's allegations of more
significant limitations and amount to substantial evidence supporting the ALJ’s decision to discount
plaintiff's testimony about the severity of his fatigue and cognitive symptoms.
Plaintiff urges the Court to adopt a different interpretation of the record but does not undermine the
substantial evidence supporting the ALJ's decision. He argues the ALJ failed to provide sufficient
specificity about what exact testimony the ALJ was discounting, and why. Pl. Reply 5-6 (citing, inter alia,
Brown-Hunter v. Colvin, 806 F.3d 487 (9th Cir. 2015)). But the ALJ provided a thorough recitation of
plaintiff's testimony, identified specifically which areas of testimony the ALJ found less-than-credible, and
provided specific medical records that undermined that testimony. See, e.g., Tr. 24 ("claimant alleges
significant cognitive decline…and brain fog. However . . . [lists counter examples]"). This satisfies the
ALJ’s obligation to "show his work." Smartt, 53 F.4th at 499.
Plaintiff also argues that the ALJ failed to address plaintiff's testimony about stress, his need to nap
often, and inability to sustain. Pl. Reply 4-6. The ALJ does specifically address plaintiff’s fatigue, which
is the alleged cause of plaintiff's need to nap and inability to sustain, as well as the extent to which plaintiff’s
mast cell activation syndrome causes his alleged symptoms. Tr. 23-24. Plaintiff’s arguments about the
significance of the evidence the ALJ cites are an effort to have this Court re-weigh the evidence, which is
beyond the scope of review. Ahearn v. Saul, 988 F.3d 1111, 1115 (9th Cir. 2021) (“We may not reweigh
the evidence or substitute our judgment for that of the ALJ.”). Even when there are two reasonable
interpretations—plaintiff’s and the ALJ’s—the ALJ’s interpretation must prevail. Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to more than one rational interpretation, it is
the [Commissioner’s] conclusion that must be upheld.”). Against that backdrop, even though plaintiff
clearly interprets the evidence differently, he has not (and cannot) establish error by simply advancing a
different interpretation of the medical evidence.
The ALJ also discounted plaintiff's subjective symptom testimony because it was inconsistent with
his own statements about daily activities. Tr. 24. Activities of daily living can form the basis for an ALJ
to discount a claimant’s testimony in two ways: (1) as evidence a claimant can work if the activities "meet
the threshold for transferable work skills," or (2) where the activities "contradict [a claimant's] testimony."
Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). The relevant regulations require an ALJ to consider a
claimant’s daily activities when evaluating subjective symptom statements. 20 C.F.R. § 404.1529(c)(3)(i).
The Ninth Circuit has even found such routine activities as playing video games, using public
transportation, and preparing meals to undercut a claimant's testimony of disabling limitations. Ahearn,
988 F.3d at 1117. A claimant need not be utterly incapacitated to receive disability benefits, however, and
sporadic completion of minimal activities is insufficient to support a negative credibility finding. Vertigan
v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001); see Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998)
(requiring the level of activity to be inconsistent with the claimant's alleged limitations to be relevant to his
or her credibility).
The ALJ reasonably found that several of plaintiff's reported daily activities conflicted with his
allegations about fatigue and inability to sustain. To discount a plaintiff's testimony, an ALJ must cite daily
activities that "meet the threshold for transferable work skills" or "contradict [a claimant's] testimony."
Orn, 495 F.3d at 639. Although plaintiff alleged significant fatigue and difficulty focusing, the ALJ noted
plaintiff independently managed his own household, finances, and medical treatment. Tr. 26, 212-14.
Further, the ALJ considered that plaintiff drove, grocery shopped independently, could walk two miles, and
cared for his dogs and his son. Tr. 22, 26, 212, 214-15. The ALJ reasonably found that plaintiff's ability
to perform these activities was inconsistent with his allegations of debilitating symptoms, specifically
finding those activities "in contrast to the claimant's reports of significant impairment in memory, focus,
and fatigue/brain fog." Tr. 26. Because the ALJ reasonably cited several activities that conflict with
plaintiff's allegations about the limitations his physical symptoms cause, this was another clear and
convincing reason for the ALJ to rely upon to discount plaintiff's testimony.
The medical records the ALJ cited also showed plaintiff's fatigue and cognitive symptoms
improved with treatment, which was another clear and convincing reason to discount his symptom
testimony. If the record shows a claimant’s symptoms have improved with treatment, that improvement is
"an important indicator of the intensity and persistence of . . . symptoms." 20 C.F.R. § 404.1529(c)(3). The
ALJ noted at the outset that plaintiff received treatment for his mast cell activation syndrome symptoms,
including medications for mast cell disease, allergen immunotherapy, and treatment of environmental
allergies. Tr. 23, 292. The ALJ also considered that plaintiff did not have significant complications from
his mast cell disease, such as anaphylactic reaction, anemia, poor blood clotting, peptic ulcer disease,
osteoporosis, or organ failure. Tr. 26. The ALJ further noted that plaintiff testified that his medications for
mast cell disease had helped with fatigue. Tr. 22, 44-45. plaintiff reported that gastrointestinal issues and
dizziness/balance issues improved with medication as well. Tr. 23, 287-88, 295-96. Likewise, plaintiff
indicated that he had less anxiety and dizziness/vertigo on fluoxetine. Tr. 24, 779. Plaintiff's mood
improved after increasing his fluoxetine, with the record subsequently noting that his symptoms were
"stable." Tr. 25, 996, 1001. The ALJ also noted that plaintiff reported that he felt better with improved
fatigue and allergy symptoms when taking Vitamin D. Tr. 24, 775, 825, 829-36, 929-30, 943. Finally, a
polysomnogram showed improved sleep apnea with use of a CPAP machine, further undermining plaintiff’s
fatigue testimony. Tr. 24, 745, 755. This was all substantial evidence supporting the ALJ's conclusion that
plaintiff's fatigue and cognitive symptoms improved with treatment, and his decision to discount plaintiff's
symptom allegations as a result.
Finally, the ALJ reasonably discounted plaintiff's testimony about cognitive issues stemming from
both his mental and physical impairments that conflicted with his failure to follow providers' treatment
recommendations to stop using marijuana. An ALJ may consider "unexplained or inadequately explained
failure" to follow prescribed treatment when assessing symptom testimony. Tommasetti v. Astrue, 533 F.3d
1035, 1039 (9th Cir. 2008); see also SSR 16-3p, 2016 WL 1119029 ("if the frequency or extent of the
treatment sought by an individual is not comparable with the degree of the individual's subjective
complaints, or if the individual fails to follow prescribed treatment that might improve symptoms, we may
find the alleged intensity and persistence of [the] individual’s symptoms are inconsistent with the overall
evidence of record"). Here, the ALJ highlighted that plaintiff's treatment providers concluded that his
marijuana use was causing some of his symptoms, advised him to stop on multiple occasions, and warned
him about the possible causal effect between his marijuana use and symptoms. Tr. 18-27, 982, 1008, 1026.
Based on this evidence, the ALJ reasonably concluded that plaintiff’s noncompliance with his doctors'
recommendations to stop marijuana use undermined his allegations of debilitating cognitive symptoms. Tr.
27. This was another clear and convincing reason the ALJ relied upon to discount plaintiff's testimony of
the extent of his cognitive limitations.
B. Duty to Develop the Record
Finally, plaintiff argues that the ALJ erred by not seeking a further consultative examination to
determine if plaintiff suffered from any mental impairments. Pl. Br. 19-20.
Although an ALJ "has an independent duty to fully and fairly develop the record," Smolen, 80 F.3d
at 1288, this duty is only triggered by ambiguous evidence or the ALJ's own finding that the record is
inadequate to allow for proper evaluation of the evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th
Cir. 2001). Here, there was no ambiguous evidence in the record that triggered the ALJ's duty to further
develop it. Plaintiff points to no evidence that was ambiguous or difficult to interpret and the record was
sufficient for the ALJ to evaluate plaintiff's application. See Pl. Br. 16-17. On this record, the ALJ did not
have a duty to seek a further consultative examination. See Smolen, 80 F.3d at 1288 (ALJ has no duty to
develop the record if no medical evidence indicates that such an impairment might exist); Mayes, 276 F.3d
at 459-60 (ALJ “had no duty to develop the record by diagnosing [claimant’s] herniated discs" where
claimant "did not provide the ALJ with any medical evidence indicating that she had herniated discs until
after the ALJ hearing"). Accordingly, the ALJ did not err by failing further to develop the record with a
retrospective consultative examination or a medical expert opinion.
CONCLUSION
For the reasons given above, the Commissioner's decision is affirmed, and this case is dismissed.
IT IS SO ORDERED.
DATED this 17th day of December, 2024 /)
Adrieme Nelson SsS~S
United States District Judge

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