Golder v. Colvin, No. 2:2015cv00017 - Document 22 (E.D. Wash. 2015)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT granting ECF No. 20 and denying ECF No. 18 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge James P. Hutton. (PH, Case Administrator)

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Golder v. Colvin Doc. 22 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON 3 4 WAYNE A. GOLDER, No. 2:15-CV-00017-JPH 5 ORDER GRANTING Plaintiff, DEFENDANT’S MOTION FOR 6 vs. SUMMARY JUDGMENT 7 CAROLYN W. COLVIN, Acting 8 Commissioner of Social Security, Defendant. 9 10 BEFORE THE COURT are cross-motions for summary judgment. ECF 11 Nos. 18, 20. The parties have consented to proceed before a magistrate judge. ECF 12 No. 3. After reviewing the administrative record and the parties’ briefs, the court 13 grants defendant’s motion for summary judgment, ECF No. 20. 14 JURISDICTION 15 Mr. Golder protectively applied for disability insurance benefits (DIB) 16 17 18 19 supplemental security income (SSI) benefits on January 3, 2012 (Tr. 205-14). He alleged onset began November 26, 2008. Benefits were denied initially and on reconsideration (Tr. 131-34, 139-45, 149-50). ALJ Rebekah Ross held a hearing August 23, 2013 (Tr. 33-70) and issued an unfavorable decision on September 9, ORDER - 1 Dockets.Justia.com 1 2013 (Tr. 13-25). The Appeals Council denied review on December 15, 2014 (Tr. 2 1-5). The matter is now before the Court pursuant to 42 U.S.C. § 405(g). Plaintiff 3 filed this action for judicial review on February 9, 2014. ECF No. 1, 6. STATEMENT OF FACTS 4 5 6 7 The facts have been presented in the administrative hearing transcript, the ALJ’s decision and the parties’ briefs. They are briefly summarized here and as necessary to explain the court’s decision. Golder was 43 years old at onset and 48 at the hearing. He graduated from 8 high school and has taken some college classes. He was honorably discharged from 9 the Air Force in 1992 and has worked as a drier/puller/feeder and forklift driver. 10 He alleges disability based on headaches, degenerative disc disease, chronic pain, 11 and adjustment disorder. He was not receiving mental health or shoulder treatment 12 13 at the time of the hearing. Golder alleges the ALJ should have found he is more limited (Tr. 35-36, 39, 42-45, 62-64, 239, 714). 14 SEQUENTIAL EVALUATION PROCESS 15 The Social Security Act (the Act) defines disability as the “inability to 16 engage in any substantial gainful activity by reason of any medically determinable 17 physical or mental impairment which can be expected to result in death or which 18 has lasted or can be expected to last for a continuous period of not less than twelve 19 months.” 42 U.S.C. §§ 423 (d)(1)(A), 1382c(a)(3)(A). The Act also provides that a ORDER - 2 1 plaintiff shall be determined to be under a disability only if any impairments are of 2 such severity that a plaintiff is not only unable to do previous work but cannot, 3 considering plaintiff’s age, education and work experiences, engage in any other 4 substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423 5 6 7 (d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 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. 9 Step 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 13 14 15 medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If plaintiff does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which 16 compares plaintiff’s impairment with a number of listed impairments 17 acknowledged by the Commissioner to be so severe as to preclude substantial 18 gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 C.F.R. 19 §404 Subpt. P App. 1. If the impairment meets or equals one of the listed ORDER - 3 1 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 2 not one conclusively presumed to be disabling, the evaluation proceeds to the 3 fourth step, which determines whether the impairment prevents plaintiff from 4 performing work which was performed in the past. If a plaintiff is able to perform 5 6 7 previous work, that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, plaintiff’s residual capacity (RFC) is considered. If plaintiff cannot perform past relevant work, the fifth and final step in the process determines whether plaintiff is able to perform other work 8 in the national economy in view of plaintiff’s residual functional capacity, age, 9 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 10 416.920(a)(4)(v); Bowen v. 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 physical or mental 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). STANDARD OF REVIEW 19 ORDER - 4 1 Congress has provided a limited scope of judicial review of a 2 Commissioner’s decision. 42 U.S.C. § 405(g). A Court must uphold the 3 Commissioner’s decision, made through an ALJ, when the determination is not 4 based on legal error and is supported by substantial evidence. See Jones v. Heckler, 5 6 7 760 F.2d 993, 995 (9th Cir. 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g). Substantial 8 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 9 1119 n. 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 10 888 F.2d 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence 11 as a reasonable mind might accept as adequate to support a conclusion.” 12 13 Richardson v. Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the 14 evidence” will also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 15 1965). On review, the Court considers the record as a whole, not just the evidence 16 supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 17 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980). 18 It is the role of the trier of fact, not this Court, to resolve conflicts in 19 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational ORDER - 5 1 interpretation, the Court may not substitute its judgment for that of the 2 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 3 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 4 set aside if the proper legal standards were not applied in weighing the evidence 5 6 7 and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the finding of the Commissioner is 8 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 9 ALJ’S FINDINGS 10 ALJ Ross found Golder was insured through December 21, 2013 (Tr. 13, 11 15). At step one the ALJ found that, although it appears Golder worked at 12 13 substantial gainful activity levels after onset (in 2008 and 2009), there has been a period of longer than twelve months that he has not worked at this level (Tr. 15, 14 221, 228). At steps two and three, she found Golder suffers from obesity, left 15 shoulder impingement, rotator cuff tear and knee arthralgia, impairments that are 16 severe but do not meet or medically equal a listed impairment (Tr. 15, 17-18). The 17 ALJ found Golder less than fully credible (Tr. 19-22). She found Golder can 18 perform a range light work (Tr. 18). At step four, the ALJ found Golder is unable 19 to perform any past relevant work (Tr. 23). At step five, the ALJ found there are ORDER - 6 1 other jobs Golder can perform, meaning he is not disabled as defined by the Act 2 (Tr. 24-25). ISSUES 3 4 5 6 7 Golder alleges the ALJ erred at step two, failed to properly weigh the opinions of several professionals, erred at step three and assessed a residual functional capacity for light work that is unsupported by the evidence. ECF No. 18 at 2. The Commissioner responds that the ALJ applied the correct legal standards and the decision is supported by substantial evidence. She asks the court to affirm. 8 ECF No. 20 at 2. 9 DISCUSSION 10 A. Credibility 11 Golder does not challenge the ALJ’s credibility assessment, making it a 12 verity on appeal. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 n. 13 2 (9th Cir. 2008). He challenges the weight the ALJ gave several opinions. ECF 14 No. 18 at 8-10. 15 To aid in weighing the conflicting medical evidence, the ALJ evaluated 16 Golder’s credibility. Credibility determinations bear on evaluations of medical 17 evidence when an ALJ is presented with conflicting medical opinions or 18 inconsistency between a claimant’s subjective complaints and diagnosed condition. 19 See Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005). It is the province of the ORDER - 7 1 ALJ to make credibility determinations. Andrews v. Shalala, 53 F.3d 1035, 1039 2 (9th Cir. 1995). However, the ALJ’s findings must be supported by specific cogent 3 reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 4 affirmative evidence of malingering, the ALJ’s reason for rejecting the claimant’s 5 6 7 testimony must be “clear and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). The ALJ’s reasons are clear and convincing. The ALJ notes activities of working, laundry, cooking, housework, mowing 8 and raking the lawn, caring for pets (5 dogs, 5 cats, 4 birds), riding a motorcycle, 9 grocery shopping, helping his son with homework and driving during the relevant 10 timeframe are inconsistent with allegedly disabling limitations. And, the ALJ 11 points out, plaintiff has done work-like activities after onset, including working 12 13 four hour days for two and a half months in a computer lab (Tr. 16, 22, 35, 37, 5052, 59, 255-58, 265-70, 714-16). 14 The course of treatment and medical findings are not consistent with 15 plaintiff’s complaints. Plaintiff testified his last shoulder treatment was physical 16 therapy that ended in the summer of 2012, about a year before the hearing (Tr. 22, 17 45). Testing in January 2013 showed no weakness in the left shoulder (Tr. 21, 18 1151). Plaintiff has made inconsistent statements and complaints. He testified he 19 can lift eight pounds with the left arm and fifty with the right, walk for an hour, ORDER - 8 1 stand fifteen to twenty minutes and sit for half an hour. Golder testified he takes 2 pain medication daily but if he worked, by day three, he would have to take 3 medication during the day. He testified he does not think he has any mental 4 limitations. He reported to the SSA he cannot afford to see a doctor to deal with 5 6 7 depression. In the past he has utilized veterans’ benefits (Tr. 22, 48-50, 62, 254, 1151). Even though the ALJ improperly relied on a finding that Golder failed to allege a severe mental impairment, the error is harmless because the ALJ’s 8 remaining reasons are clear, convincing and supported by the record. See 9 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) 10 (internal citations omitted)(error that does not negate the overall the validity of the 11 ALJ’s ultimate credibility determination and that determination is supported by 12 substantial evidence supporting the conclusion, is harmless); Burch v. Barnhart, 13 400 F.3d 676, 680 (9th Cir. 2005)(daily activities and lack of consistent treatment 14 are properly considered); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 15 2002)(proper factors include inconsistencies in claimant’s statements and 16 inconsistencies between statements and conduct). 17 B. Weighing opinion evidence 18 Golder alleges the ALJ should have given more credit to the opinion of 19 evaluating psychologist Kathleen Mayers, Ph.D. He alleges “the examination ORDER - 9 1 found that Mr. Golder had been depressed for about two years and was feeling 2 helpless, hopeless, and worthless.” ECF No. 18 at 5, citing Tr. 714. 3 4 5 6 7 The examiner did not make these “findings.” It simply reflect statements Golder made to Dr. Mayers. As noted, the ALJ properly found plaintiff less than fully credible. The ALJ was not required to credit these statements. Similarly, plaintiff alleges Dr. Mayers “found that he had poor eating and sleeping [habits], and that he was not able to experience joy and pleasure and was losing interest in everything.” ECF No. 18 at 5-6, citing Tr. 714. Again Dr. Mayers did not so 8 “find”; rather, she simply recorded Golder’s statements. Notably plaintiff told Dr. 9 Mayers psychotropic medication helped depression in the past but he was not 10 currently taking it (Tr. 343, 713-14). 11 A physician’s opinion that is premised on Plaintiff’s subjective complaints 12 and testing within Plaintiff’s control is properly given the same weight as 13 Plaintiff’s own credibility. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 14 2001).The ALJ was therefore entitled to give these statements the same degree of 15 credibility she gave Golder – a diminished amount. 16 Plaintiff alleges Dr. Mayers’ diagnosis of an adjustment disorder “would 17 affect his ability to interact with coworkers” and maintain concentration in the 18 workplace. ECF No. 18 at 6. Plaintiff fails to cite anything in the record supporting 19 this statement. ORDER - 10 1 Rather, Dr. Mayers opined Golder is capable of understanding, remembering 2 and carrying out three-step instructions as well as detailed tasks. She specifically 3 found he would be able to interact with others in a work setting, and his fund of 4 information and concentration were good (Tr. 717). The mental status exam 5 6 7 showed at most mild deficits. Dr. Mayers’ opinion supports the ALJ’s determination Golder does not suffer from a severe mental impairment. The ALJ notes Golder began a computer technician training program in August 2010 that required completing an internship, which he did in 2011. He 8 worked four hours a day for two and a half months and reported no problems. He 9 failed to complete the program due to lack of money, rather than mental or 10 physical limitations (Tr. 22). Golder’s ability to perform work-like activities and 11 Dr. Mayers’ opinion both fully support the ALJ’s step two finding that Golder does 12 13 not suffer from a severe mental impairment. With respect to physical limitations, plaintiff’s surgeon opined in April 14 2011, four months after the second shoulder surgery in 2010, that Golder was 15 capable of light duty work (Tr. 440, 907). In December 2011, he opined Golder 16 “may begin work immediately” as a computer technician. In August 2011 an 17 examining doctor opined shoulder strength was 5/5. He opined Plaintiff could 18 return to work immediately but needed to avoid repetitive use of the left arm above 19 shoulder level. The treating surgeon agreed with these findings, diagnoses and ORDER - 11 1 conclusions “in every particular” on August 20, 2012, about a year before the 2 hearing (Tr. 481, 485, 501, 608, 620, 824-24, 934). The ALJ included the repetitive 3 lifting limitation in the assessed residual functional capacity. 4 5 6 7 It is the ALJ’s province to resolve ambiguity in the record. Although Golder alleges the ALJ should have weighed the evidence differently, the ALJ is responsible for reviewing the evidence and resolving conflicts or ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). C. Steps two and three 8 Golder alleges the ALJ should have found headaches and adjustment 9 disorder with depressed mood are severe impairments. ECF No. 18 at 5-6. The 10 Commissioner responds that the ALJ properly found at step two that these are not 11 severe impairments. ECF No. 20 at 2-7. 12 13 A diagnosis may establish a medically determinable impairment, but does not alone establish an impairment is severe. An impairment or combination of 14 impairments may be found “not severe only if the evidence establishes a slight 15 abnormality that has no more than a minimal effect on an individual’s ability to 16 work.” Webb. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005)(citing Smolen v. Chater, 17 80 F.3d 1273, 1290 (9th Cir. 1996 )(internal quotation marks omitted). Step two is a 18 “de minimis screening device [used] to dispose of groundless claims,” and an ALJ 19 may find that a claimant lacks a medically severe impairment or combination of ORDER - 12 1 impairments only when his conclusion is “clearly established by medical 2 evidence.” Webb, 433 F. 3d a 687, citing Smolen, 80 F.3d at 1290; S.S.R. 85-28. 3 An impairment is severe if it significantly limits the mental or physical ability to 4 do basic work activities. 5 6 7 The ALJ notes a treatment provider opined in October 2012 that plaintiff suffers no mental health condition requiring further intervention. A depression screen was negative (Tr. 1187-1190). The ALJ states plaintiff failed to allege any severe mental impairment (Tr. 18, referring to Tr. 306-307). As both parties 8 acknowledge, this is error. It is harmless, however, because the ALJ’s other 9 reasons for finding no severe mental impairment are fully supported. 10 Psychologist Kathleen Mayers, Ph.D., evaluated plaintiff on March 21, 2012 11 (Tr. 713-17). She opined concentration and persistence were good, plaintiff would 12 13 probably be “far happier” if he was working and she felt referring him to the Department of Vocational Rehabilitation might be helpful. She did not assess 14 mental limitations (Tr. 17, 716-17). The ALJ is correct that Golder fails to 15 establish a severe mental impairment. With respect to Dr. Mayers’ opinion, Golder 16 recasts the same allegation that the ALJ failed to properly weigh the evidence. 17 Plaintiff alleges headaches are a severe impairment. He testified he suffers 18 migraine headaches as a result of neck pain (Tr. 45), the record clearly shows he 19 suffers from headaches (Tr. 1143) and headaches make it difficult to concentrate ORDER - 13 1 (Tr. 259). Golder alleges the ALJ’s failure to make any determination with respect 2 to plaintiff’s headaches requires remand. ECF No. 18 at 6. 3 4 5 6 7 The ALJ points out Dr. Mayers found Golder would have no limitation in the ability to maintain attention and concentration through a normal work day (Tr. 17, 717). The record plaintiff cites as clearly showing he suffers headaches, Tr. 1143, is a medical record from March 2013 indicating Golder reports he has headaches (Tr. 1143). As the Commissioner accurately points out, a step two determination can only be made “on the basis of objective medical evidence.” ECF 8 No. 20 at 6. Golder fails to cite any objective medical evidence in support of this 9 allegation. 10 As indicated the ALJ properly found plaintiff’s adjustment disorder did not 11 significantly limit his ability to perform basic work activities, as required to find an 12 13 14 impairment severe at step two. The record also does not support finding headaches are a severe impairment at step two. See Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001).The Commissioner is correct. 15 Step three 16 Golder alleges the ALJ should have found his impairments meet Listings 17 1.02 (shoulder condition) and 12.04 (affective disorders). ECF No. 18 at 6-8. 18 19 ORDER - 14 1 As noted Golder’s mental impairments do not even rise to the level of severe 2 at step two. There is no evidence he suffers a mental impairment meeting or 3 equaling the severity of a Listed impairment. 4 5 6 7 With respect to meeting the Listing for his shoulder impairment, plaintiff cites Tr. 322-24, 327-28, 338, 352, 434, 549, 1148, 1151. ECF No. 18 at 7. The Commissioner observes that these records do not support Golder’s allegation his shoulder impairment meets the criteria of Listing 1.02(b) because he is unable to show this impairment results in an inability to perform fine and gross 8 movements effectively. ECF. No. 20 at 8-9, referring to C.F.R. Part 404, Subpt. P. 9 Appx. 1, § 1.02; ECF No. 18 at 7. 10 The Commissioner is correct. Golder’s activities include using the computer, 11 cooking, cleaning, laundry, grocery shopping, riding a motorcycle, and driving – 12 13 all requiring fine and gross movements (Tr. 255-58, 716). Moreover, objective findings show normal grip strength and sensation (Tr. 324, 327-28, 434, 481, 549, 14 1151). Plaintiff fails to meet his burden of showing he suffers impairments that 15 meet or equal any Listed impairment. 16 D. RFC 17 Last, Golder alleges the ALJ erred when she found he is able to perform a 18 range of light work. ECF No. 18 at 10-11. The Commissioner responds that the 19 ALJ’s assessment is supported by the record. ECF No. 20 at 13-14. ORDER - 15 1 This recasts plaintiff’s allegation that the ALJ failed to properly weight the 2 evidence. The ALJ relied on numerous findings when she assessed the RFC for a 3 range of light work. In September 2008 (about five months after plaintiff’s first 4 surgery, an examining source opined Plaintriff could perform medium work with 5 6 7 lifting restrictions (Tr. 653). The ALJ relied on the opinion of treating surgeon Timothy Berney, M.D., in April 2011 that Plaintiff was able to perform light work (Tr. 440). She relied on the opinion of examining physician Louis Kretschmer, M.D., in August 2011 that plaintiff should return to work immediately and could 8 perform the work of computer technician. In making this assessment Dr. 9 Kretschmer reviewed the June 1, 2011 MRI (Tr. 477, 484-85, 501, 608). The ALJ 10 relied on plaintiff’s extensive activities when she found Golder can perform a 11 range of light work (see e.g., Tr. 515, 624, 628)(in May and September 2011 12 13 Plaintiff reports he is sore from riding a motorcycle). The RFC is consistent with restrictions identified in the medical testimony. 14 There was no error. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 15 2008). 16 17 The ALJ’s assessed RFC is also consistent with the record as a whole. There was no harmful error. CONCLUSION 18 19 After review the Court finds the ALJ’s decision is supported by substantial ORDER - 16 1 evidence and free of legal error. 2 IT IS ORDERED: 3 1. Defendant’s motion for summary judgment, ECF No. 20, is granted. 4 2. Plaintiff’s motion for summary judgment, ECF No. 18, is denied. 5 6 7 The District Executive is directed to file this Order, provide copies to counsel, enter judgment in favor of defendant, and CLOSE the file. DATED this 4th day of November, 2015. s/James P. Hutton 8 JAMES P. HUTTON 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 ORDER - 17

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