Schriver v. Colvin, No. 2:2014cv00143 - Document 18 (E.D. Wash. 2015)

Court Description: ORDER Granting Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON 4 5 KEITH EUGENE SCHRIVER, JR., 6 Plaintiff, 7 v. 8 No. 2:14-CV-0143-JTR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 CAROLYN W. COLVIN, 10 Commissioner of Social Security, 11 Defendant. 12 13 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 14 No. 14, 16. Attorney Dana C. Madsen represents Keith Eugene Schriver, Jr. 15 (Plaintiff); Special Assistant United States Attorney Franco L. Becia represents the 16 Commissioner of Social Security (Defendant). The parties have consented to 17 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 18 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 19 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 20 JURISDICTION 21 Plaintiff filed applications for a period of disability, Disability Insurance 22 Benefits and Supplemental Security Income (SSI) on October 7, 2008, alleging 23 disability since July 15, 2006, due to heart issues, headaches, and problems with 24 his left ankle, right knee, right elbow and lower back. Tr. 155. The applications 25 were denied initially and upon reconsideration. Administrative Law Judge (ALJ) 26 R.J. Payne held a hearing on February 26, 2010, Tr. 31-67, and issued an 27 unfavorable decision on March 11, 2010, Tr. 16-27. The Appeals Council denied 28 review and Plaintiff thereafter commenced action in federal court. On September ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 12, 2011, Magistrate Judge James P. Hutton granted Plaintiff’s motion for 2 summary judgment and remanded the matter on one specific issue: A new step 3 five determination with the assistance of a vocational expert. Tr. 372-388. 4 The Appeals Council entered an order of remand on April 3, 2012, Tr. 404- 5 406, and ALJ Payne held a new hearing on August 2, 2012, Tr. 389-403. The ALJ 6 issued another unfavorable decision on August 24, 2012, Tr. 349-360, and the 7 Appeals Council declined further action on March 20, 2014, Tr. 334-337. The 8 August 24, 2012, decision thus became the final decision of the Commissioner, 9 which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff 10 filed this action for judicial review on May 14, 2014. ECF No. 1, 4. 11 STATEMENT OF FACTS 12 The facts of this case have not changed since Judge Hutton’s September 12, 13 2011, remand order. Tr. 372-388. No new or updated medical records have been 14 submitted, other than a one-page document indicating Plaintiff was taking no 15 medications, Tr. 447, and no new or additional testimony was elicited from 16 Plaintiff or any medical professionals, Tr. 389-403. 17 Plaintiff was born on July 24, 1962, and was 43 years old on the alleged 18 onset date, July 16, 2006. Tr. 359. Plaintiff completed high school and has 19 worked as a vineyard laborer, hotel houseman, and warehouse worker. Tr. 40-44, 20 160, 167. 21 Plaintiff testified at the first administrative hearing that his ankle hurts daily, 22 he has constant headaches and occasional back pain, and an elbow injury prevents 23 lifting. Tr. 47-48, 50. Plaintiff reported he has had vision problems since 24 childhood. He can only see with one eye at a time and has no binocular vision. 25 Plaintiff testified he suffers heart palpitations five to six times a month and about 26 three times a month this issue causes him to blackout. Tr. 51-53. Plaintiff stated 27 he has sleep problems, he can stand one hour and walk two hours, he “nods off” 28 after sitting for an hour, and he is able to lift and carry 10-15 pounds. Tr. 54-56, ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 61. Plaintiff also testified he suffers from depression and has suicidal thoughts 2 every few days. He lives alone with his dog in an isolated area without running 3 water, electricity, or indoor plumbing. The nearest water source is a half-mile 4 from his home. He sees a neighbor about once a month. Tr. 53, 56-60, 63-64. 5 At the August 2, 2012, administrative hearing, vocational expert K. Diane 6 Kramer (VE) testified. Tr. 392-402. The VE identified Plaintiff’s past relevant 7 work as insulation installer; building maintenance laborer; seed packer, laborer; 8 and vineyard supervisor, Tr. 393-398, and opined that Plaintiff would not be able 9 to perform any of his past relevant work. Tr. 399-400. In response to a 10 hypothetical which reflected Plaintiff’s residual functional capacity, the VE 11 testified that work existed in significant numbers in the national economy which 12 Plaintiff could perform, including the jobs of cleaner I, advertising material 13 distributor, and parking lot attendant. Tr. 399-401. 14 15 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 16 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 17 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 18 although deference is owed to a reasonable construction of the applicable statutes. 19 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ 20 may be reversed only if it is not supported by substantial evidence or if it is based 21 on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 22 evidence is defined as being more than a mere scintilla, but less than a 23 preponderance. Id. at 1098. Put another way, substantial evidence is such relevant 24 evidence as a reasonable mind might accept as adequate to support a conclusion. 25 Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to 26 more than one rational interpretation, the court may not substitute its judgment for 27 that of the ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. 28 Admin., 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 substantial evidence will still be set aside if the proper legal standards were not 2 applied in weighing the evidence and making the decision. Brawner v. Secretary 3 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial 4 evidence exists to support the administrative findings, or if conflicting evidence 5 exists that will support a finding of either disability or non-disability, the ALJ’s 6 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 7 Cir. 1987). 8 9 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 10 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 11 416.920(a); see, Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 12 through four, the burden of proof rests upon the claimant to establish a prima facie 13 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 14 burden is met once a claimant establishes that a physical or mental impairment 15 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 16 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 17 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 18 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 19 in the national economy which claimant can perform. Batson v. Commissioner of 20 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 21 an adjustment to other work in the national economy, a finding of “disabled” is 22 made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). 23 ADMINISTRATIVE DECISION 24 On August 24, 2012, the ALJ issued a new decision finding Plaintiff was not 25 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff 26 had not engaged in substantial gainful activity since July 15, 2006, the alleged 27 onset date. Tr. 351. At step two, the ALJ determined Plaintiff had the following 28 severe impairments: syncopal episodes due to unknown causes, strabismus, ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 hypertension, obesity, cardiomyopathy, and history of left ankle sprain. Tr. 351. 2 At step three, the ALJ found Plaintiff did not have an impairment or combination 3 of impairments that meets or medically equals the severity of one of the listed 4 impairments. Tr. 352. 5 The ALJ assessed Plaintiff’s RFC and determined he could perform a range 6 of light exertion level work (he can sit for two hours at a time, stand for two hours 7 at a time, and walk for two hours at a time; he is able to sit for six hours total in an 8 eight-hour workday and stand/walk for six hours total in an eight-hour workday, 9 with normal breaks; and he can lift/carry 20 pounds occasionally and 10 pounds 10 frequently), except that he can only occasionally stoop, crouch, kneel, crawl and 11 balance; can only occasionally climb stairs and ramps; can never climb ladders, 12 ropes or scaffolds; cannot work around unprotected heights, hazardous machinery 13 and open flames; cannot do commercial driving; cannot do work requiring 14 binocular vision and can only use one eye at a time; and cannot perform job tasks 15 requiring good depth perception or good bilateral peripheral vision. Tr. 353. 16 At step four, the ALJ found Plaintiff was unable to perform his past relevant 17 work. Tr. 358-359. However, at step five, the ALJ determined that, considering 18 Plaintiff’s age, education, work experience and RFC, and based on the testimony 19 of the vocational expert, there were other jobs that exist in significant numbers in 20 the national economy, including the jobs of cleaner I, advertising material 21 distributor and parking lot attendant, that Plaintiff could perform. Tr. 359-360. 22 The ALJ thus concluded Plaintiff was not under a disability within the meaning of 23 the Social Security Act at any time from July 15, 2006, the alleged onset date, 24 through the date of the ALJ’s decision, August 24, 2012. Tr. 360. 25 26 ISSUES The question presented is whether substantial evidence exists to support the 27 ALJ’s decision denying benefits and, if so, whether that decision is based on 28 proper legal standards. ORDER GRANTING DEFENDANT’S MOTION . . . - 5 Plaintiff contends the ALJ erred by (1) improperly discrediting Plaintiff’s 1 2 symptom claims; (2) improperly evaluating the assessment of Dennis R. Pollack, 3 Ph.D.; (3) improperly disregarding the opinion of medical expert Reuben Beezy, 4 M.D.; and (4) presenting a hypothetical to the vocational expert which failed to 5 account for all of Plaintiff’s symptoms. 6 7 8 9 10 11 DISCUSSION A. Plaintiff’s Credibility Plaintiff first contends the ALJ erred by improperly discrediting his symptom claims. ECF No. 14 at 8-10. This Court, however, previously concluded the ALJ did not err in assessing Plaintiff’s credibility. Tr. 386-387. The law of the case doctrine provides that an appellate court’s decision on a 12 legal issue must be followed in all subsequent proceedings in the same case. See 13 United States v. Lewis, 611 F.3d 1172, 1179–1180 (9th Cir. 2010). Despite 14 Plaintiff’s argument to the contrary, ECF No. 17 at 2, the law of the case doctrine 15 precludes the re-litigation of issues settled by a district court’s order prior to 16 remand. See Holst v. Bowen, 637 F. Supp. 145, 148 (E.D. Wash. 1986);1 see also 17 Pearson v. Chater, 1997 WL 314380, at *3 (N.D. Cal. 1997) (holding that, 18 “[u]nder the law of the case doctrine, this court will not re-examine its legal 19 decision that the ALJ had sufficient reasons to discount [a medical expert’s] 20 21 1 In Holst, the social security matter had previously been remanded for 22 further proceedings, with instructions to reconsider certain points of law and 23 consider additional evidence offered by the claimant. Holst, 637 F. Supp. at 145- 24 146. On remand, the ALJ conducted the full sequential analysis, took “prodigious” 25 new evidence, and held that the claimant was not disabled. Id. at 146. The district 26 court reversed, holding that the fact of the claimant’s disability had become “the 27 law of the case and [was] not subject to tampering in further administrative 28 proceedings.” Id. at 147. ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 testimony”), aff’d, 141 F.3d 1178 (9th Cir. 1998); Ischay v. Barnhart, 383 F. Supp. 2 2d 1199, 1216 (C.D. Cal. 2005) (finding the doctrine of the law of the case applies 3 to matters remanded for further proceedings); Sanchez v. Astrue, 2012 WL 4 3704756 at *13 (C.D. Cal. 2012) (finding the ALJ’s decision exceeded the scope 5 of remand because the remand was solely for purposes of permitting the ALJ to re- 6 determine whether Plaintiff was disabled at step five, not to revisit the claimant’s 7 RFC). 8 Plaintiff argues in his reply brief that the law of case doctrine does not apply 9 to sentence four remands. ECF No. 17 at 2. Plaintiff cites the Supreme Court case 10 of Shalala v. Schaefer, 509 U.S. 292, 299 (1993) in support of his argument in this 11 regard. In Schaefer, however, the Supreme Court held for the first time that the 12 time for filing an application for fees in Social Security cases begins to run from 13 the time the district court enters a judgment remanding the case for further 14 administrative proceedings, rather than after a claimant has obtained benefits. 15 Schaefer, 509 U.S. at 299-300. Schaefer set forth a new procedure for obtaining 16 attorney fees under the Equal Access to Justice Act. It did not address or discuss 17 the law of the case doctrine. Schaefer is inapposite. 18 Under the law of the case doctrine, a court will generally refuse to 19 reconsider an issue that has already been decided by the same court or a higher 20 court in the same case. Jefferies v. Wood, 114 F.3d 1484, 1488-1489 (9th Cir. 21 1997). Nevertheless, the Court may reconsider a previously decided issue if 22 “(1) the decision is clearly erroneous and its enforcement would work a manifest 23 injustice, (2) intervening controlling authority makes reconsideration appropriate, 24 or (3) substantially different evidence was adduced at a subsequent trial.” 25 Jefferies, 114 F.3d at 1489 (footnote omitted) (internal quotation marks omitted). 26 Plaintiff fails to assert an exception to the law of the case doctrine that would 27 require the Court to reconsider the credibility issue previously decided in this case, 28 and, in any event, the Court finds there is no clear error, intervening changes in the ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 law, or new evidence that would require a refusal to follow the law of the case 2 doctrine with respect to this issue. Judge Hutton concluded the record supported the ALJ’s March 11, 2010, 3 4 adverse credibility finding. Tr. 387. Judge Hutton determined the ALJ’s decision 5 provided “clear and convincing reasons for his unchallenged credibility 6 assessment, including (1) inconsistent statements; (2) activities inconsistent with 7 claimed disabling limitations, and (3) a lack of supporting medical evidence for 8 complaints of disabling limitations.” Tr. 386. On remand, the ALJ again found 9 Plaintiff not credible to the extent that Plaintiff’s alleged limitations contradicted 10 the ALJ’s RFC determination. Tr. 354. The ALJ cited essentially the same factors 11 for his credibility assessment that he previously relied upon and that Judge Hutton 12 previously affirmed. Tr. 23-25, 354-358, 386-387. 13 Under the law of the case doctrine, the Court will not re-examine the legal 14 determination that the ALJ provided clear and convincing reasons, supported by 15 substantial evidence, for his adverse credibility determination. 16 B. 17 Dr. Pollack Plaintiff next contends the ALJ erred by failing to accord weight to Dr. 18 Pollack’s assessment. ECF No. 14 at 10-11. Defendant responds that Judge 19 Hutton’s remand order determined the ALJ’s reasons for discounting the opinion 20 of examining psychologist Pollack were legally sufficient, Tr. 385-388; therefore, 21 the law of the case doctrine again precludes the Court from reconsidering the issue. 22 ECF No. 16 at 7-13. 23 The Court agrees with Plaintiff’s opening brief assertion that the ALJ’s 24 comment that Plaintiff’s counsel “is known to continually seek Dr. Pollack’s 25 favorable reporting,” ECF No. 14 at 10; Tr. 357, is inappropriate and has “no place 26 in the disability evaluation process.” Reed v. Massanari, 270 F.3d 838, 843-844 27 (9th Cir. 2001) (quoting Miles v. Chater, 84 F.3d 1397, 1399 (11th Cir. 1996); see 28 also Miller v. Commissioner of Soc. Sec. Admin., 172 F.3d 303, 305 (3d Cir. 1999) ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 (“[I]t is erroneous for an ALJ to reject every report submitted by a certain 2 physician . . . simply because the physician often reaches the same conclusion.”) 3 (dicta). Nevertheless, the law of the case doctrine precludes the Court from 4 reconsidering the ALJ’s rationale for discounting the opinion of examining 5 psychologist Pollack. 6 Judge Hutton’s order to remand expressly affirmed the ALJ’s rationale for 7 discounting Dr. Pollack’s February 2010 opinion. Tr. 385-388. He determined the 8 ALJ provided specific, legitimate reasons supported by substantial evidence (a 9 complete lack of treatment, contradictory opinions by other professionals, tests 10 showing exaggeration, and failing to allege mental limitations until years after 11 onset) for rejecting Dr. Pollack’s conclusions. Tr. 387. Since none of the three 12 exceptions to the law of the case doctrine are applicable with respect to this issue, 13 see Jefferies, 114 F.3d at 1489, the Court will not revisit this prior ruling under the 14 law of the case doctrine. 15 Even if the doctrine of the law of the case did not apply to the issue 16 involving Dr. Pollack, the ALJ’s current reasoning for rejecting the opinion of Dr. 17 Pollack, Tr. 356-358, is identical to his prior rationale, Tr. 21-23, and again 18 supported. The ALJ provided specific, legitimate reasons, supported by substantial 19 evidence, for disregarding Dr. Pollack’s opinions in this case. 20 C. 21 Dr. Beezy Plaintiff asserts the ALJ also improperly disregarded medical expert Beezy’s 22 testimony regarding Plaintiff’s syncope and blackouts. ECF No. 14 at 11. 23 Defendant concedes the ALJ omitted a discussion of Dr. Beezy’s testimony from 24 his second decision, but argues this omission is harmless because the ALJ’s RFC 25 determination is in accord with the opinion expressed by Dr. Beezy. ECF No. 16 26 at 13-16. 27 28 Dr. Beezy testified at the first administrative hearing. Tr. 33-39. Dr. Beezy stated the record showed Plaintiff has complained of syncope episodes without a ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 known cause, preceded by heart palpitations, that occur three times a month; 2 Plaintiff has a history of hypertension, chest pain, and mild cardiomyopathy as 3 well as morbid obesity; there is a reference to heart surgery in the 1990’s; Plaintiff 4 has complained of left ankle pain subsequent to slipping on some ice in 2005 and 5 2006; Plaintiff has a history of strabismus, left leg surgery due to a fracture, right 6 knee surgery for internal derangement, and hernia surgery; and Plaintiff has a 7 history of polysubstance abuse prior to 1998. Tr. 22, 34-37. Dr. Beezy opined 8 Plaintiff would be limited to light exertion level work with only occasional 9 climbing, stooping, kneeling, crouching, crawling and balancing; no ladders, ropes 10 or scaffolds; and no work requiring binocular vision or depth perception. Tr. 38. 11 Dr. Beezy further opined that Plaintiff should be able to work eight hours a day, 12 five days a week. Tr. 39. 13 Consistent with Dr. Beezy’s testimony, the ALJ concluded Plaintiff had the 14 residual functional capacity to perform light exertion level work, except that he 15 could only occasionally stoop, crouch, kneel, crawl and balance; could only 16 occasionally climb stairs and ramps; could never climb ladders, ropes or scaffolds; 17 could not work around unprotected heights, hazardous machinery and open flames; 18 could not perform commercial driving; could not perform work requiring binocular 19 vision and could only use one eye at a time; and could not perform job tasks 20 requiring good depth perception or good bilateral peripheral vision. Tr. 353. The 21 ALJ did not exclude any limitations assessed by Dr. Beezy. 22 Even though the ALJ failed to specifically discuss Dr. Beezy’s testimony in 23 his second decision, it is clear that the ALJ’s RFC determination does not conflict 24 with Dr. Beezy’s assessment of Plaintiff. Consequently, this error was 25 “inconsequential to the ultimate non-disability determination” in this case and 26 therefore harmless. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (ALJ’s 27 failure to include impairment as severe at step two was harmless error where ALJ 28 considered the limitations posed by the impairment at step four); Johnson v. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 1995) (an error is harmless when the 2 correction of that error would not alter the result). An ALJ’s decision will not be 3 reversed for errors that are harmless. Burch v. Barnhart, 400 F.3d 676, 679 (9th 4 Cir. 2005) (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991). 5 D. 6 7 8 9 Vocational Expert Plaintiff lastly argues the ALJ erred by not including all of Plaintiff’s symptoms in the hypothetical posed to the VE. ECF No. 14 at 11-12. The ALJ may rely on VE testimony if the hypothetical presented to the VE includes all functional limitations supported by the record and found credible by 10 the ALJ. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). An ALJ is not 11 obliged to accept the limitations presented by Plaintiff’s representative. Osenbrock 12 v. Apfel, 240 F.3d 1157, 1164-1165 (9th Cir. 2001); Martinez v. Heckler, 807 F.2d 13 771, 773 (9th Cir. 1986). It is the province of the ALJ to make a final 14 determination regarding Plaintiff’s RFC and disability. 15 As indicated above, the ALJ concluded Plaintiff could perform light exertion 16 level work, with certain exceptions. Tr. 353. The Court finds the ALJ’s rationale 17 for this RFC determination was legally sufficient and supported by substantial 18 evidence in the record. There is no credible evidence of record supporting greater 19 limitations than those determined by the ALJ. The ALJ was thus not required to 20 include any further restrictions in the RFC assessment or the hypothetical 21 presented to the VE. The hypothetical presented to the VE at the administrative 22 hearing and relied upon by the ALJ was proper because it reflected the ALJ’s RFC 23 determination, including the restriction that the individual could perform “no work 24 requiring binocular vision” and could “only use one eye at a time,” which is a 25 reasonable interpretation of the evidence of record. Tr. 399-401. 26 In response to the hypothetical which reflected Plaintiff’s RFC, the VE 27 testified that work existed in significant numbers in the national economy which 28 Plaintiff could perform, including the jobs of cleaner I, advertising material ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 distributor, and parking lot attendant. Tr. 399-401. Accordingly, the ALJ did not 2 err by relying on the VE testimony that an individual with Plaintiff’s profile could 3 perform other work that existed in significant numbers in the national economy. 4 The ALJ did not err at step five of the sequential evaluation process or by 5 concluding Plaintiff was not disabled. 6 CONCLUSION 7 Having reviewed the record and the ALJ’s findings, the Court finds the 8 ALJ’s decision is supported by substantial evidence and free of legal error. 9 Accordingly, IT IS ORDERED: 10 11 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 12 2. 13 The District Court Executive is directed to file this Order and provide a copy 14 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 15 and the file shall be CLOSED. 16 DATED March 24, 2015. 17 18 19 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 12

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