Peterson v. Colvin, No. 2:2014cv00102 - Document 19 (E.D. Wash. 2015)

Court Description: ORDER Granting Defendant's Motion for Summary Judgment. Signed by Magistrate Judge James P. Hutton. (MO, Courtroom Deputy)

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Peterson v. Colvin Doc. 19 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Case No. 2:14-CV-00102-JPH 3 4 5 PEGGY SUE PETERSON, a/k/a PEGGY SUE SHAW, 6 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, 7 vs. 8 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 9 Defendant. 10 11 BEFORE THE COURT are cross-motions for summary judgment. ECF No. 12 14, 16. Attorney Dana Chris Madsen represents plaintiff (Peterson). Special 13 Assistant United States Attorney Franco L. Becia represents defendant 14 (Commissioner). The parties consented to proceed before a magistrate judge. ECF 15 No. 6. After reviewing the administrative record and the briefs filed by the parties, 16 the court grants defendant’s motion for summary judgment, ECF No. 16. 17 JURISDICTION 18 Peterson applied for supplemental security income benefits (SSI) on 19 December 4, 2012, alleging disability beginning at birth on July 1, 1963 (Tr. 175- 20 80). The claim was denied initially and on reconsideration (Tr. 116-19, 124-30). ORDER ~ 1 Dockets.Justia.com 1 Administrative Law Judge (ALJ) R.J. Payne held a hearing October 24, 2013. 2 Peterson, represented by counsel, and a medical expert testified (Tr. 38-66). On 3 November 25, 2013, the ALJ issued an unfavorable decision (Tr. 21-35). The 4 Appeals Council denied review March 6, 2014, making the ALJ’s decision final (Tr. 5 1-5). On April 18, 2014 Peterson filed this appeal pursuant to 42 U.S.C. §§ 405(g). 6 ECF No. 1, 4. 7 STATEMENT OF FACTS 8 The facts have been presented in the administrative hearing transcript, the 9 ALJ’s decision and the parties’ briefs. They are only briefly summarized here and 10 throughout this order as necessary to explain the Court’s decision. 11 Peterson was 50 years old at the hearing. She has a ninth grade education and 12 earned a GED. She has worked as a housekeeper, dishwasher, nursing assistant/care 13 giver, stocker and prep cook. She can walk two or three blocks, stand seven minutes 14 and sit ten minutes. (Tr. 44-55, 57, 436). 15 SEQUENTIAL EVALUATION PROCESS 16 The Social Security Act (the Act) defines disability as the “inability to engage 17 in any substantial gainful activity by reason of any medically determinable physical 18 or mental impairment which can be expected to result in death or which has lasted or 19 can be expected to last for a continuous period of not less than twelve months.” 42 20 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a plaintiff shall ORDER ~ 2 1 be determined to be under a disability only if any impairments are of such severity 2 that a plaintiff is not only unable to do previous work but cannot, considering 3 plaintiff’s age, education and work experiences, engage in any other substantial 4 work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 5 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 6 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 9 one determines if the person is engaged in substantial gainful activities. If so, 10 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 11 decision maker proceeds to step two, which determines whether plaintiff has a 12 medially severe impairment or combination of impairments. 20 C.F.R. §§ 13 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 14 If plaintiff does not have a severe impairment or combination of impairments, 15 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 16 the third step, which compares plaintiff’s impairment with a number of listed 17 impairments acknowledged by the Commissioner to be so severe as to preclude 18 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 19 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 20 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is ORDER ~ 3 1 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 2 step, which determines whether the impairment prevents plaintiff from performing 3 work which was performed in the past. If a plaintiff is able to perform previous work 4 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 5 416.920(a)(4)(iv). At this step, plaintiff’s residual functional capacity (RFC) is 6 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 7 the process determines whether plaintiff is able to perform other work in the national 8 economy in view of plaintiff’s residual functional capacity, age, education and past 9 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 10 Yuckert, 482 U.S. 137 (1987). 11 The initial burden of proof rests upon plaintiff to establish a prima facie case 12 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 13 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 14 met once plaintiff establishes that a mental or physical impairment prevents the 15 performance of previous work. The burden then shifts, at step five, to the 16 Commissioner to show that (1) plaintiff can perform other substantial gainful 17 activity and (2) a “significant number of jobs exist in the national economy” which 18 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 19 20 STANDARD OF REVIEW Congress has provided a limited scope of judicial review of a Commissioner’s ORDER ~ 4 1 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 2 made through an ALJ, when the determination is not based on legal error and is 3 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 4 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s] 5 determination that a plaintiff is not disabled will be upheld if the findings of fact are 6 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 7 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 8 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 9 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 10 Substantial evidence “means such evidence as a reasonable mind might accept as 11 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 12 (1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner] 13 may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze, 14 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 15 whole, not just the evidence supporting the decision of the Commissioner. Weetman 16 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 17 526 (9th Cir. 1980)). 18 It is the role of the trier of fact, not this Court, to resolve conflicts in evidence. 19 Richardson, 402 U.S. at 400. If evidence supports more than one rational 20 interpretation, the Court may not substitute its judgment for that of the ORDER ~ 5 1 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 2 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 3 set aside if the proper legal standards were not applied in weighing the evidence and 4 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 5 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 6 administrative findings, or if there is conflicting evidence that will support a finding 7 of either disability or nondisability, the finding of the Commissioner is conclusive. 8 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 ALJ’S FINDINGS 10 At step one ALJ Payne found Peterson did not work at SGA levels after the 11 application date of December 4, 2012 (Tr. 23). At steps two and three, he found 12 Peterson suffers from chronic back pain due to age-related degenerative changes, an 13 impairment that is severe but does not meet or medically equal a Listed impairment 14 (Tr. 23, 27). The ALJ found Peterson less than fully credible (Tr. 29). He assessed a 15 residual functional capacity (RFC) for a range of light work (Tr. 27). At step four, 16 the ALJ found Peterson is able to perform her past relevant work as a stocker, 17 housekeeper and prep cook (Tr. 30). Alternatively, at step five, the ALJ used the 18 Medical-Vocational Guidelines (Grids) as a framework and found Peterson is not 19 disabled as defined by the Act (Tr. 31). 20 ORDER ~ 6 1 ISSUES 2 Peterson alleges the ALJ erred when he weighed the medical evidence and 3 assessed credibility. She alleges he should have sought the opinion of a vocational 4 expert and should have found she is disabled by applying the Grids. ECF No. 14 at 5 9. The Commissioner responds that the ALJ’s findings are factually supported and 6 free of harmful legal error. She asks the court to affirm. ECF No. 16 at 3. 7 DISCUSSION 8 A. Credibility 9 Peterson alleges the ALJ’s credibility assessment is not properly supported. 10 ECF No. 14 at 14-17. The Commissioner answers that because there is affirmative 11 evidence of malingering, no additional reasons are required, and the ALJ’s finding is 12 nonetheless supported by clear and convincing reasons supported by substantial 13 evidence. ECF No. 16 at 5-12. 14 When presented with conflicting medical opinions, the ALJ must determine 15 credibility and resolve the conflict. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 16 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s credibility findings must be 17 supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th 18 Cir. 1990). Absent affirmative evidence of malingering, the ALJ’s reasons for 19 rejecting the claimant’s testimony must be “clear and convincing.” Lester v. Chater, 20 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: rather the ALJ ORDER ~ 7 1 must identify what testimony is not credible and what evidence undermines the 2 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 3 (9th Cir. 1993). 4 The ALJ’s reasons are clear and convincing. 5 There is evidence of malingering. In November 2012 Peterson came to the 6 emergency room alleging she was numb from neck to toe and had lost feeling in her 7 hands. Findings were very benign. Peterson later admitted she needed a place to 8 sleep because recently she had been kicked out of a shelter. The ER doctor 9 diagnosed malingering (Tr. 23, 338-43). The ALJ opines test results in 2008 and 10 2013 suggested malingering. (Tr. 24-25, 29, 406-12, 434-45.) 11 While tests in 2013 suggest plaintiff exaggerated difficulties (Tr. 439), results 12 in 2008 show underreporting of symptomology (Tr. 407-08)(tests show Peterson is 13 attempting conceal any symptoms). However, she is also described by the same 14 examiner as “evasive, vague, obstructive, and resistant to disclosing any real details 15 about her life.” (Tr. 25, citing Tr. 407). 16 The ALJ relied, in part, on the lack of supporting objective evidence and 17 failure to follow treatment recommendations. See Tr. 23-30, referring to Tr. 379 18 (good muscle strength throughout both arms; Tr. 381 (good range of motion and no 19 weakness in both legs); and Tr. 281 (failed to get an MRI ordered by Dr. Shanks). 20 Plaintiff takes no medication for her physical conditions (Tr. 437). The medical ORDER ~ 8 1 expert testified he did not see evidence of nerve damage in Peterson’s hands or feet. 2 Degenerative changes in the spine were solely a function of age and would not result 3 in any limitations (Tr. 24, referring to Tr. 40-43). All suggest much greater 4 functional capacity than alleged. 5 Plaintiff has also made numerous inconsistent statements. She told Dr. Pollack 6 she had suffered no childhood abuse (Tr. 436). She told Dr. Mabee she suffered 7 physical abuse by her mother and sexual abuse by her brother during childhood (Tr. 8 405). 9 Subjective complaints contradicted by medical records may be considered, as 10 long as it is not the only basis for discrediting a claimant’s subjective complaints. 11 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008). 12 Inadequately or unexplained failure to follow treatment recommendations or 13 consistently seek treatment is properly considered. Tommasetti v. Astrue, 533 F.3d 14 1035, 1039 (9th Cir. 2008); Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). 15 The ALJ may consider inconsistent statements when assessing credibility. Thomas v. 16 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 17 18 The ALJ’s credibility assessment is supported by the evidence and free of harmful error. 19 B. Mental impairments 20 Peterson alleges the ALJ should have found she suffers severe mental ORDER ~ 9 1 impairments. ECF No. 14 at 12-14. The Commissioner responds that plaintiff failed 2 to meet her burden and the ALJ properly weighed the evidence of mental 3 impairment. ECF No. 16 at 15-20. 4 At step two, a claimant must establish that he or she suffers from a medically 5 determinable impairment. See Ukolov v. Barnhart, 420 F.3d 1002, 1004-1005 (9th 6 Cir. 2005). The existence of a medically determinable impairment cannot be 7 established in the absence of objective medical abnormalities, i.e., medical signs and 8 laboratory findings. SSR 96-4p. 9 Next, the claimant has the burden of proving that “these impairments or their 10 symptoms affect [her] ability to perform basic work activities.” Edlund v. 11 Massanari, 253 F.3d 1152, 1159-1160 (9th Cir. 2001). Denial of a claim at step two 12 is only appropriate if the medical signs, symptoms and laboratory findings establish 13 only a slight abnormality that would not be expected to interfere with a person’s 14 ability to work. This has been described as a “de minimus” screening device 15 designed to dispose of groundless or frivolous claims. Yuckert v. Bowen, 841 F.2d 16 303 (9th Cir. 1988); SSR 85-28. 17 W. Scott Mabee, Ph.D., evaluated Peterson three times. The first evaluation 18 was April 24, 2008 (Tr. 403-12). He opined psychological problems prevent her 19 from working (Tr. 408). He evaluated plaintiff again six months later, on October 20 15, 2008 (Tr. 413-21). He opined “substance abuse could be a possibility” (Tr. 417). ORDER ~ 10 1 Dr. Mabee evaluated plaintiff again after another six months, in April 2009. Plaintiff 2 was trying to find a job. He opined she “clearly has problems;” however, the 3 MMPI-2 was again invalid (Tr. 422-33). 4 The ALJ rejected Dr. Mabee’s opinion because Plaintiff’s current application 5 failed to allege any mental problems. Similarly, the appeals documents failed to 6 allege any mental problems (Tr. 25). She has never had mental health treatment and 7 takes no psychotropic medication (Tr. 25). She has greatly exaggerated symptoms 8 on most of the tests she has been given. These are all specific, legitimate reasons for 9 rejecting this examining psychologist’s opinion. In addition, plaintiff described her 10 activities as baking, taking classes, cooking, cleaning, driving, grocery shopping, 11 going to the library and visiting friends and family (Tr. 424). This level of 12 functioning is clearly inconsistent with debilitating mental health symptoms. 13 Dr. Pollack evaluated plaintiff more than four years later, on October 22, 14 2013. Some of the personality test results were invalid. (Tr. 434-45.) He assessed 15 several marked and moderate limitations (Tr. 442-444). 16 The ALJ rejected this opinion because the assessed cognitive disorder is not 17 supported by the Plaintiff’s own statements that she had a normal educational 18 experience. Cf. Tr. 441 with Tr. 405 (no special education classes; left school in 19 ninth grade to became a babysitter and later earned a GED). Plaintiff’s long work 20 history is also inconsistent with a disabling cognitive disorder. See Tr. 405 (plaintiff ORDER ~ 11 1 worked for eighteen years as a geriatric health provider). 2 In evidence considered by the Appeals Council but not by the ALJ, Patricia 3 Norton, MA, LMHC opined in December 2013 plaintiff is unable to work (Tr. 449- 4 50). The Court considers this evidence part of the record on review. Brewes v. 5 Comm’r of Soc. Sec., 682 F.3d 1157, 1159-60 (9th Cir. 2012). 6 Ms. Norton’s opinion does not change the outcome. The ALJ appropriately 7 determined plaintiff does not suffer from a severe mental impairment. The record 8 strongly supports this conclusion. Plaintiff’s past and present activities and 9 established malingering in particular support the ALJ’s finding. The opinion of a 10 case manager at the homeless shelter where plaintiff sometimes resides does not 11 change the other evidence supporting the ALJ’s determination. 12 Plaintiff did not allege mental limitations initially or on appeal. The 13 undersigned finds that the claimant has not met the burden of establishing a severe 14 mental impairment or error by the ALJ in weighing the evidence of mental 15 limitations. 16 An ALJ may properly reject any opinion that is brief, conclusory and 17 inadequately supported by clinical findings. Bayliss v. Barnhart, 427 F.3d 1211, 18 1216 (9th Cir. 2005). An ALJ may not rely solely on a nonexamining expert’s 19 opinion when rejecting the opinion of a treating doctor, as this does not constitute 20 substantial evidence. Pitzer v. Sullivan, 908 F.2d 502, 506 n. 4 (9th Cir. ORDER ~ 12 1 1990)(emphasis added). Opinions based on a claimant’s unreliable self-report need 2 not be credited. Bayliss, 427 F.3d at 1216. 3 C. RFC and Grids 4 Peterson alleges the ALJ erred by finding she has the RFC to perform a range 5 of light work. She alleges she should have been found capable of sedentary work, as 6 assessed by Dr. Shanks, and this would mandate a finding of disability pursuant to 7 Medical-Vocational Rule 201.14 (the “Grids). ECF No. 14 at 14. 8 The flaw in Plaintiff’s reasoning is with respect to the RFC. The ALJ found 9 plaintiff is capable of light rather than sedentary work, and this finding is fully 10 supported. 11 The ALJ notes Plaintiff testified she thought she could perform light work (Tr. 12 29, 58 – plaintiff says she can carry 12 to 18 pounds). She also testified on Sundays 13 she puts together 10 tables, 84 chairs and 12 salt and pepper shakers for church 14 banquets (Tr. 29, 63). Perhaps most significantly Dr. Shanks expected the limitation 15 to sedentary work to last no more than two months. (Tr. 26, 376). 16 The ALJ properly found plaintiff is able to perform light work. 17 D. VE 18 Peterson alleges the ALJ erred by failing to call a vocational expert to testify. 19 20 ECF No. 14 at 11-12. The ALJ found plaintiff has no severe mental limitations and is capable of ORDER ~ 13 1 performing past relevant work. This assessed RFC did not require a vocational 2 expert’s testimony. Step five was an alternative finding, one the ALJ was not 3 required to make. On this record a vocational expert’s testimony was unnecessary. 4 Peterson alleges the ALJ should have weighed the evidence differently, but 5 the ALJ is responsible for reviewing the evidence and resolving conflicts or 6 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). It 7 is the role of the trier of fact, not this court, to resolve conflicts in evidence. 8 Richardson, 402 U.S. at 400. If evidence supports more than one rational 9 interpretation, the Court may not substitute its judgment for that of the 10 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 11 1984). If there is substantial evidence to support the administrative findings, or if 12 there is conflicting evidence that will support a finding of either disability or 13 nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 14 F.2d 1226, 1229-30 (9th Cir. 1987). 15 16 The ALJ’s determinations are supported by the record and free of harmful legal error. 17 18 19 20 CONCLUSION After review the Court finds the ALJ’s decision is supported by substantial evidence and free of harmful legal error. IT IS ORDERED: ORDER ~ 14 1 Defendant’s motion for summary judgment, ECF No. 16, is granted. 2 Plaintiff’s motion for summary judgment, ECF No. 14, is denied. 3 The District Court Executive is directed to file this Order, provide copies to 4 5 counsel, enter judgment in favor of defendant and CLOSE the file. DATED this 30th day of October, 2015. 6 S/ James P. Hutton 7 JAMES P. HUTTON UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER ~ 15

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