Kerbs v. Colvin, No. 2:2014cv00127 - Document 18 (E.D. Wash. 2015)

Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT granting ECF No. 13 and denying ECF No. 12 Plaintiff's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 KATRINA NICOLE KERBS, No. 2:14-CV-0127-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 16 17 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 18 No. 12, 13. Attorney Dana C. Madsen represents Katrina Nicole Kerbs (Plaintiff); 19 Special Assistant United States Attorney Jordan D. Goddard represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 17. After reviewing the 22 administrative record and briefs filed by the parties, the Court GRANTS 23 Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for 24 Summary Judgment. 25 26 JURISDICTION Plaintiff filed an application for Supplemental Security Income (SSI) 27 benefits on May 17, 2010, alleging disability since July 15, 2009, due to 28 myasthenia gravis. Tr. 206, 225. Plaintiff amended the alleged onset date to May ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 17, 2010, at the administrative hearing. Tr. 41. The SSI application was denied 2 initially and upon reconsideration. Administrative Law Judge (ALJ) R. J. Payne 3 held a hearing on May 26, 2011, Tr. 39-89, and issued an unfavorable decision on 4 June 8, 2011, Tr. 102-116. However, the Appeals Council remanded the matter for 5 additional proceedings on August 30, 2012. Tr. 117-120. The Appeals Council 6 directed the ALJ to obtain evidence from a vocational expert to clarify the effect of 7 the assessed limitations on Plaintiff’s occupational base. Tr. 118. The ALJ held a 8 hearing on January 25, 2013, Tr. 90-99, and issued another unfavorable decision 9 on February 11, 2013, Tr. 19-28. The Appeals Council denied review on March 10 13, 2014. Tr. 1-6. The ALJ’s February 2013 decision became the final decision of 11 the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 12 405(g). Plaintiff filed this action for judicial review on May 5, 2014. ECF No. 1, 13 3. 14 STATEMENT OF FACTS 15 The facts of the case are set forth in the administrative hearing transcript, the 16 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 17 here. 18 Plaintiff was born on July 15, 1990, and was 19 years old on the May 17, 19 2010, amended alleged onset date. Tr. 40. Plaintiff is a high school graduate and 20 was attending college full-time at the time of the first administrative hearing. Tr. 21 60-64. Plaintiff testified she had not missed any days of school since beginning 22 her coursework. Tr. 67. On “bad days” she would have her mother drive her to 23 school, but this had occurred only three times during the school year. Tr. 79. In 24 December 2011, it was reported she had graduated from college as a floral 25 designer. Tr. 436. Plaintiff reported she has never worked. Tr. 225. 26 At the administrative hearing held on May 26, 2011, Mihn Vu, M.D., 27 testified that Plaintiff had been diagnosed with myasthenia gravis, a rare disease 28 where the connection between a patient’s nerves and muscles can be blocked and ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 may result in paralysis. Tr. 45-46. Dr. Vu opined Plaintiff would be capable of 2 performing light exertion level work, but would not be able to do the type of work 3 requiring continuous activity and would need a five to 10 minute break every two 4 hours. Tr. 50-51, 56-57. 5 6 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 7 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 8 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 9 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 10 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 11 not supported by substantial evidence or if it is based on legal error. Tackett v. 12 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 13 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 14 another way, substantial evidence is such relevant evidence as a reasonable mind 15 might accept as adequate to support a conclusion. Richardson v. Perales, 402 16 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 17 interpretation, the Court may not substitute its judgment for that of the ALJ. 18 Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 19 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by substantial 20 evidence will be set aside if the proper legal standards were not applied in 21 weighing the evidence and making the decision. Brawner v. Secretary of Health 22 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence 23 supports the administrative findings, or if substantial conflicting evidence supports 24 a finding of either disability or non-disability, the ALJ’s determination is 25 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 26 27 28 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 2 through four, the burden of proof rests upon the claimant to establish a prima facie 3 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 4 burden is met once a claimant establishes that a physical or mental impairment 5 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 6 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 7 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 8 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 9 in the national economy which claimant can perform. Batson v. Commissioner of 10 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 11 an adjustment to other work in the national economy, a finding of “disabled” is 12 made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 13 14 ADMINISTRATIVE DECISION On February 11, 2013, the ALJ issued a decision finding Plaintiff was not 15 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff 16 had not engaged in substantial gainful activity since May 17, 2010, the application 17 date. Tr. 21. At step two, the ALJ determined Plaintiff had the severe impairment 18 of myasthenia gravis. Tr. 21. At step three, the ALJ found Plaintiff did not have 19 an impairment or combination of impairments that met or medically equaled the 20 severity of one of the listed impairments. Tr. 22. 21 The ALJ assessed Plaintiff’s residual function capacity (RFC) and 22 determined she could perform a range of sedentary exertion level work. Tr. 22. 23 The ALJ indicted Plaintiff could only walk for 30 minutes, stand for 30 minutes 24 and sit for two hours at a time; needs to be able to alternate from sitting to standing 25 every two hours for a period of five minutes or less; can do frequent pushing and 26 pulling within the lifting limits; can occasionally climb, balance, stoop, kneel, 27 crouch or crawl; can never climb ropes, ladders or scaffolds; should avoid even 28 moderate exposure to extreme temperatures and hazards; can frequently handle, ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 finger, reach and feel; and would be able to remain reasonably attentive in a work 2 setting despite the fact that she takes medication for mild to moderate, occasional 3 to frequent pain. Tr. 22. 4 The ALJ determined at step four that Plaintiff has no past relevant work. Tr. 5 26. At step five, the ALJ concluded that, considering Plaintiff’s age, education, 6 work experience and RFC, and based on the testimony of the vocational expert, 7 there were jobs that exist in significant numbers in the national economy Plaintiff 8 could perform, including the jobs of cashier II, assembly/bench hand, and call out 9 operator. Tr. 26-27. The ALJ thus concluded Plaintiff was not under a disability 10 within the meaning of the Social Security Act at any time from May 17, 2010, 11 through the date of the ALJ’s decision, February 11, 2013. Tr. 27-28. 12 ISSUES The question presented is whether substantial evidence supports the ALJ’s 13 14 decision denying benefits and, if so, whether that decision is based on proper legal 15 standards. Plaintiff contends the ALJ erred by (1) improperly discrediting her 16 symptom claims; and (2) failing to properly consider and weigh the expert opinion 17 evidence. 18 19 20 21 DISCUSSION A. Plaintiff’s Credibility Plaintiff contests the ALJ’s adverse credibility determination in this case. ECF No. 12 at 10-12. 22 It is the province of the ALJ to make credibility determinations. Andrews v. 23 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 24 supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 25 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 26 medical impairment, the ALJ may not discredit testimony as to the severity of an 27 impairment because it is unsupported by medical evidence. Reddick v. Chater, 157 28 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of malingering, the ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear and 2 convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 3 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 4 rather the ALJ must identify what testimony is not credible and what evidence 5 undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 6 12 F.3d 915, 918 (9th Cir. 1993). 7 In this case, the ALJ found Plaintiff’s medically determinable impairments 8 could reasonably be expected to cause some of the alleged symptoms; however, 9 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 10 these symptoms were not credible or persuasive to the extent they were 11 inconsistent with the ALJ’s RFC determination. Tr. 24. 12 The ALJ first determined Plaintiff’s demonstrated ability to participate in 13 college classes five days a week weakened her position that her ability to work is 14 limited and that she is totally disabled. Tr. 24. The Ninth Circuit has held that 15 taking college courses is an activity which is inconsistent with an alleged inability 16 to perform work. McGroarty v. Apfel, 188 F.3d 514 (9th Cir. 1999); Matthews v. 17 Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (attending school three days a week is an 18 activity inconsistent with an alleged inability to perform all work). 19 While Plaintiff avers the ALJ misstated the record by asserting she was 20 taking collegiate level courses five days a week, ECF No. 14 at 3, Plaintiff testified 21 at the administrative hearing that she did, in fact, attend two classes on Mondays, 22 Tuesdays, Thursdays and Fridays and three classes on Wednesdays, Tr. 64, and 23 had never missed a class, Tr. 67. Contrary to Plaintiff’s assertion, Plaintiff was 24 attending college classes five days a week. Plaintiff’s demonstrated ability to 25 successfully navigate college coursework five days a week was a valid reason for 26 the ALJ to find her subjective complaints less than fully credible. 27 28 The ALJ next stated the objective medical evidence did not support the level of impairment Plaintiff alleged. Tr. 24. The ALJ indicated the medical evidence ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 did not support the degree of limitations and perpetual restrictions described by 2 Plaintiff at the hearing. Tr. 24. A lack of supporting objective medical evidence is 3 a factor which may be considered in evaluating a claimant’s credibility, provided it 4 is not the sole factor. Bunnell v. Sullivan, 347 F.2d 341, 345 (9th Cir. 1991). 5 As noted by the ALJ, there are no treating source opinions from the relevant 6 time period “opining greater restrictions than what are described in the [ALJ’s] 7 residual functional capacity” determination. Tr. 24. Medical expert Vu testified 8 Plaintiff’s condition had been treated and well controlled, except for a January 9 2011 incident Dr. Vu attributed to Plaintiff not using her medication as instructed. 10 Tr. 24-25, 47-48. Dr. Vu opined Plaintiff could perform a full range of light 11 exertion level work with a limitation on continuous activity and the need for a five- 12 minute break every two hours. Tr. 25, 50-51, 56-57. The ALJ adopted Dr. Vu’s 13 opinion with the exception of finding the record supported an RFC determination 14 of only sedentary exertional level work, consistent with the State Agency 15 reviewing physicians’ opinions. Tr. 25, 378-386. While the doctors of record 16 disagreed about whether Plaintiff should be limited to work at the light exertion 17 level, Tr. 49-53, or sedentary exertion level, Tr. 49, 378-386, all doctors who 18 offered an opinion regarding Plaintiff’s RFC indicated Plaintiff was capable of 19 maintaining full-time work and her condition had generally improved over time, 20 Tr. 46-49, 386. The ALJ properly concluded that the objective medical evidence 21 did not support limitations to the extent claimed by Plaintiff. 22 The ALJ also held that Plaintiff’s daily activities were inconsistent with her 23 allegations of disabling symptoms and limitations. Tr. 24. It is well-established 24 that the nature of daily activities may be considered when evaluating credibility. 25 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 26 The ALJ indicated Plaintiff was able to rake leaves, hike, camp, spend the 27 day at the fair walking all over, and participate in the color guard. Tr. 24. The 28 record reflects that Plaintiff informed Pat Hesselgesser, ARNP, on November 16, ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 2010, that she “was raking and could not grip the ra[k]e any longer,” but that the 2 episode was “very brief” and “she recovered quickly.” Tr. 387. It was noted that 3 Plaintiff “showed excellent recovery and improvement in her mild exacerbation.” 4 Tr. 389. At the administrative hearing held on May 26, 2011, Plaintiff testified she 5 went camping for three days in August of 2010. Tr. 82-84. On September 12, 6 2011, Ms. Hesselgesser indicated Plaintiff reported a general sense of weakness 7 “after spending the entire day at the fair . . . walking all over the Fairgrounds.” Tr. 8 423. On March 23, 2012, Plaintiff reported to Ms. Hesselgesser she had been 9 doing well with no signs of weakness, but had experienced pain in the right 10 forearm from her work as a color guard where she marches with a flag and 11 performs maneuvers with the flag. Tr. 444. 12 While one does not need to be “utterly incapacitated” to be disabled, Fair, 13 885 F.2d at 603, the ALJ appropriately determined Plaintiff’s documented 14 activities of raking, hiking, camping, spending an entire day walking at the fair, 15 and participating in the color guard are inconsistent with her allegation that she is 16 not able to work. 17 Lastly, the ALJ indicated Plaintiff’s was less than fully credible because the 18 evidence of record showed that Plaintiff was not particularly motivated or 19 interested in working. Tr. 24. The Ninth Circuit has recognized that the ALJ may 20 properly consider the issue of motivation in assessing credibility. Matney v. 21 Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992); Tommasetti v. Astrue, 533 F.3d 22 1035, 1040 (9th Cir. 2008) (finding an ALJ may draw reasonable inferences 23 regarding a claimant’s motivation to work). 24 While Plaintiff contends in her reply brief that the ALJ did not rely on her 25 alleged reluctance to return to work due to insurance concerns as a ground for 26 credibility, ECF No. 14 at 4, the record shows to the contrary, see Tr. 24. The ALJ 27 specifically noted Plaintiff indicated in December 2011 that she was reluctant to 28 work because she would lose her insurance. Tr. 24, 436. The ALJ held that this ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 evidence indicates Plaintiff is not particularly motivated or interested in working, 2 which calls into question whether it is her impairments or her lack of desire to 3 work that caused her to seek disability. Tr. 24. The ALJ’s finding that Plaintiff’s 4 poor motivation undermined her credibility is supported by the record. 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. 7 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 8 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 9 determining whether the ALJ’s decision is supported by substantial evidence and 10 may not substitute its own judgment for that of the ALJ even if it might justifiably 11 have reached a different result upon de novo review. 42 U.S.C. § 405(g). After 12 reviewing the record, the Court finds that the reasons provided by the ALJ for 13 discounting Plaintiff’s subjective complaints are clear, convincing, and fully 14 supported by the record. Accordingly, the ALJ did not err by concluding that 15 Plaintiff’s subjective complaints and alleged limitations were not entirely credible 16 in this case. 17 B. Step Five 18 Plaintiff lastly contends that the ALJ erred because “[b]oth vocational 19 experts indicated that competitive full-time employment could not accommodate” 20 a schedule where the individual would need to take five to 10 minutes breaks every 21 two hours, a limitation Dr. Vu assessed and the ALJ adopted in his RFC 22 determination. ECF No. 12 at 13. 23 At the administrative hearing held on May 26, 2011, Dr. Vu testified that 24 Plaintiff would be capable of performing light exertion level work, but would not 25 be able to do the type of work requiring continuous activity and would need a five 26 to 10 minute break every two hours. Tr. 50-51, 56-57. The ALJ accorded “great 27 weight” to Dr. Vu’s opinion, Tr. 25, and determined Plaintiff retained the RFC to 28 perform a range of sedentary exertion level work that was not inconsistent with Dr. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 Vu’s opinion, Tr. 22. At the January 25, 2013, administrative hearing, Deborah 2 Lapoint, a certified vocational expert, Tr. 181-182, testified that an individual with 3 the limitations assessed by the ALJ would be able to perform jobs that exist in 4 significant numbers in the national economy, including the jobs of cashier II, 5 assembly/bench hand, and call out operator. Tr. 94-97. 6 The ALJ accorded weight to the testimony of the certified vocational expert 7 and thus determined there were sedentary exertion level jobs that exist in 8 significant numbers in the national economy that Plaintiff could perform. Tr. 26- 9 27. The ALJ’s conclusion in this regard is fully supported by the evidence of 10 record. While Plaintiff submits that an April 2012 report and “vocational opinion” 11 12 from an individual identified as a “certified vocational evaluation specialist” 13 provides support for her allegation that she is not gainfully employable, Tr. 280- 14 282, the individual’s resume and credentials are not a part of the record. The 15 individual’s qualifications to provide an opinion as a vocational expert are thus 16 uncertain. Of greater significance, this individual was not provided a hypothetical 17 which specifically reflected the ALJ’s ultimate RFC determination in this case. In 18 any event, the opinion expressed was not as definitive on the issue of 19 employability as alleged by Plaintiff. The opinion stated merely that “the need to 20 have a 5 to 10-minute break every two hours, on a more probable than not basis, 21 would impact her ability to be gainfully employed. Many work situations do not 22 allow for scheduled breaks.” Tr. 282. The opinion did not elaborate on the 23 asserted impact or specify what type of jobs would not allow scheduled breaks. 24 The April 2012 vocational opinion, Tr. 280-282, is not entitled to weight in this 25 matter. The Court finds the ALJ’s step five determination is supported by substantial 26 27 evidence and free of legal error. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, the Court finds the 3 ALJ’s decision in this case is supported by substantial evidence and free of legal 4 error. Accordingly, IT IS ORDERED: 5 6 1. Defendant’s Motion for Summary Judgment, ECF No. 13, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 7 2. 8 The District Court Executive is directed to file this Order and provide a copy 9 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 10 11 and the file shall be CLOSED. DATED November 30, 2015. 12 13 14 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 11

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