Lesher v. Commissioner of Social Security, No. 2:2015cv00237 - Document 21 (E.D. Wash. 2018)
Court Description: ORDER GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION 20 AND DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION 18 . Signed by Judge Salvador Mendoza, Jr. (VR, Courtroom Deputy)
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Lesher v. Commissioner of Social Security Doc. 21 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Jan 05, 2018 1 SEAN F. MCAVOY, CLERK 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 TERRY M. LESHER, No. 2:15-CV-00237-SMJ 5 Plaintiff, 6 v. 7 8 COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING DEFENDANT’S SUMMARY JUDGMENT MOTION AND DENYING PLAINTIFF’S SUMMARY JUDGMENT MOTION Defendant. 9 10 Before the Court, without oral argument, are cross-summary-judgment 11 motions. ECF Nos. 18 & 20. Plaintiff Terry M. Lesher appeals the 12 Administrative Law Judge’s (ALJ) denial of benefits. ECF No. 3. Mr. Lesher 13 contends the ALJ improperly (1) rejected the opinion of Mr. Lesher’s treating 14 physician; (2) discredited Mr. Lesher’s VA disability rating; (3) rejected Mr. 15 Lesher’s subjective complaints; and (4) determined Mr. Lesher had the ability to 16 perform other work in the national economy. The Commissioner of Social 17 Security (“Commissioner”) asks the Court to affirm the ALJ’s decision. 18 After reviewing the record and relevant authority, the Court is fully 19 informed. For the reasons set forth below, the Court affirms the ALJ’s decision 20 and therefore denies Mr. Lesher’s motion and grants the Commissioner’s motion. ORDER - 1 Dockets.Justia.com I. 1 STATEMENT OF FACTS1 2 During the relevant period, Mr. Lesher suffered from several impairments 3 including: fibromyalgia, degenerative disc disease, osteoarthritis of the right 4 ankle, right wrist/forearm fracture, carpal tunnel syndrome, and sleep apnea 5 treated with a CPAP. Mr. Lesher saw a number of providers for treatment of his 6 conditions. Tr. 801. Mr. Lesher alleged that as a result of his conditions he was 7 unable to engage in most activities and lived a generally sedentary lifestyle limited 8 to sitting at home, reading, and watching television. Tr. 81–82. However, Mr. 9 Lesher did occasionally drive and grocery shop for himself. Tr. 77–78. Mr. Lesher 10 is a retired veteran with twenty years’ service in the United States Airforce. Tr. 11 74. When he retired in 2007, he was working as a shift supervisor for the kitchen. 12 Id. II. 13 PROCEDURAL HISTORY 14 Mr. Lesher filed an application for disability insurance benefits on January 15 21, 2014, alleging disability beginning on December 31, 2007. Tr. 185–86. Mr. 16 Lesher’s application for benefits was disapproved by the Social Security 17 Administration on March 27, 2014, and the agency denied reconsideration on 18 September 9, 2014. Tr. 102–15. Mr. Lesher appealed to the Office of Disability 19 1 20 The facts are only briefly summarized. Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, and the parties’ briefs. ORDER - 2 1 and Adjudication Review and, following a hearing, an Administrative Law Judge 2 (ALJ), issued a decision denying benefits on March 25, 2015. Tr. 11–32. Mr. 3 Lesher subsequently appealed to the Social Security Appeals Council, which 4 denied review. Tr. 1–10. Mr. Lesher filed an appeal in this district on September 5 30, 2015. ECF No. 3. III. 6 DISABILITY DETERMINATION 7 A “disability” is defined as the “inability to engage in any substantial 8 gainful activity by reason of any medically determinable physical or mental 9 impairment which can be expected to result in death or which has lasted or can be 10 expected to last for a continuous period of not less than twelve months.” 42 11 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The decision-maker uses a five-step 12 sequential evaluation process to determine whether a claimant is disabled. 20 13 C.F.R. §§ 404.1520, 416.920. 14 Step one assesses whether the claimant is engaged in substantial gainful 15 activities. If he is, benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If 16 he is not, the decision-maker proceeds to step two. 17 Step two assesses whether the claimant has a medically severe impairment 18 ancing his activities to full. Id. A follow up exam noted that Mr. 2 Lesher’s condition had not objectively worsened since the date of the fracture. Id. 3 Accordingly, there is substantial evidence in the record to support the ALJ’s 4 decision to give significant weight to Dr. Alexander’s opinion. 5 B. The ALJ provided specific, valid, persuasive reasons for reducing the weight given to Mr. Lesher’s VA disability rating. 6 Mr. Lesher next objects to the ALJ’s treatment of the VA disability rating. 7 VA disability ratings are ordinarily entitled to great weight. McCartey v. 8 Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). However, an ALJ may give less 9 weight to a VA disability rating if he or she gives persuasive, specific, valid 10 reasons for doing so that are supported by the record. Id. An ALJ may not merely 11 rely on the “general ground that the VA and SSA disability inquiries are 12 different.” Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685 (9th Cir. 2009). 13 Instead, the distinction must be specific to the individual case, such as when the 14 SSA has information that the VA did not. Id. 15 Here, the ALJ gave the VA disability rating of 80% only “some weight.” 16 The ALJ provided two reasons in support of his decision. Tr. 26. First, the ALJ 17 noted that the VA decision contained “very little specific medical findings in the 18 rating decisions . . . [regarding] the relevant period under consideration here.” Id. 19 Second, the ALJ reasoned “[t]he claimant appears to have exaggerated some of 20 his complaints, given his testimony of five surgeries on the right ankle and ORDER - 9 1 disability due to post-traumatic stress disorder, none of which are outlined in these 2 VA disability rating decisions.” Id. 3 The ALJ provided persuasive, specific, valid reasons for reducing the 4 weight attributed to the VA disability rating. An ALJ need not accept medical 5 evidence that is brief and conclusory in form with little clinical findings to support 6 its conclusions. See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The 7 findings in the VA disability determination rely heavily on medical evidence from 8 Mr. Lesher’s term of service, dating as far back as 1991. See Tr. 804. While the 9 ratings report also contains findings from QTC examinations that occurred in 10 February and May of 2008, the ALJ’s conclusion that the report contains little 11 clinical findings regarding the relevant date, December 31, 2007, is supported by 12 substantial evidence in the record. 13 Although the point was not clearly articulated, the ALJ also appears to have 14 reduced the weight given to the VA rating because the ALJ possessed evidence 15 that the VA did not have, which undermines the evidence the VA did have. See 16 Valentine, 574 F.3d at 696 (upholding ALJ’s rejection of VA rating where it was 17 based largely on opinion discredited by ALJ). The ALJ found Mr. Lesher’s 18 symptom testimony to be less than credible. Tr. 23–24. The VA rating relied 19 heavily on evidence gathered from the 2008 QTC examination, which in turn 20 relied heavily on Mr. Lesher’s own reporting of his symptoms and pain. See Tr. ORDER - 10 1 802. Because the VA rating relied on evidence from a less-than-reliable source, 2 the ALJ did not err in reducing the weight given to the opinion. Mr. Lesher argues 3 that the VA is entitled to make its own credibility findings with respect to Mr. 4 Lesher’s symptom testimony. ECF No. 18 at 18. While this may be true, the 5 record does not show that the VA was aware of Mr. Lesher’s inaccurate symptom 6 reporting. It is therefore impossible to know how, if at all, the VA compensated 7 for potential inaccuracies in rendering its assessment of Mr. Lesher’s disability. 8 The ALJ was justified in reducing the VA’s disability rating on the basis 9 that he had evidence that the VA did not, which undermined the evidence the VA 10 did have. Notably, the ALJ did not reject the disability rating in its entirety. The 11 ALJ still took the disability rating into account, but to a lesser extent than he 12 would have had the opinion not contained the above-discussed flaws. Tr. 26. The 13 ALJ therefore did not commit reversible error on this point. 14 C. The ALJ’s credibility findings are supported by substantial evidence. 15 Mr. Lesher argues that the ALJ failed to provide valid reasons for rejecting 16 his subjective complaints.2 The Commissioner argues that the ALJ’s credibility 17 18 19 20 2 Mr. Lesher also asserts that the ALJ did not properly consider the lay witness statement of his ex-wife, Rachel Liddell. ECF No. 18 at 14. However, because Mr. Lesher does not present any specific argument in his opening brief that addresses and challenges the ALJ’s reasons for rejecting Ms. Liddell’s statement, Tr. 24, this Court finds the issue is waived. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). ORDER - 11 1 finding is supported by substantial evidence, and therefore may not be second 2 guessed by this Court. 3 Where a claimant presents objective medical evidence of impairments that 4 could reasonably produce the symptoms complained of, an ALJ may reject the 5 claimant’s testimony about the severity of his symptoms only for “specific, clear 6 and convincing reasons.” Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). 7 An ALJ must make sufficiently specific findings “to permit the court to conclude 8 that the ALJ did not arbitrarily discredit claimant’s testimony.” Tommasetti v. 9 Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). General findings are insufficient. 10 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). ALJs may consider many 11 factors in weighing a claimant’s credibility, including prior inconsistent 12 statements, unexplained failures to seek treatment, and claimant’s daily activities, 13 among others. Tommasetti, 533 F.3d at 1039. Courts may not second guess an 14 ALJ’s findings that are supported by substantial evidence. Id. 15 Here, the ALJ found that Mr. Lesher’s “medically determinable 16 impairments could reasonably be expected to cause the alleged symptoms,” 17 satisfying the first step in the analysis. Tr. 23. The ALJ then explained that Mr. 18 Lesher’s statements concerning the intensity, persistence and limiting effects of 19 the symptoms were not entirely credible. Tr. 23–24. In support of this finding, the 20 ALJ articulated five reasons: (1) Mr. Lesher waited several years between the ORDER - 12 1 onset of his allegedly disabling conditions and the date he finally applied for 2 disability benefits; (2) Mr. Lesher reported high levels of pain during treatment 3 but did not appear to be in acute distress when reporting the pain; (3) Mr. Lesher’s 4 reports of a sedentary lifestyle were not supported by the exam results reported in 5 an October 26, 2012; (4) Mr. Lesher misrepresented the number of surgeries he 6 underwent on his ankle; and (5) there was a lack of objective medical evidence to 7 support Mr. Lesher’s testimony that he regularly had accidents from his irritable 8 bowel syndrome, used the restroom 20 times per day, and struggled with nausea. 9 Id. 10 First, Mr. Lesher argues that the ALJ erred in discrediting his testimony 11 based on the nearly six-year delay between his alleged disability onset date in 12 2007 and the date on which he filed his application for disability benefits in 2014. 13 ECF No. 18 at 15. At the hearing, Mr. Lesher’s counsel explained that Mr. Lesher 14 was under the mistaken belief that he had to be considered 100% disabled under 15 the VA’s rating system to qualify for benefits. Tr. 43. While Mr. Lesher’s 16 explanation provides one interpretation of this delay, the ALJ drew a different, but 17 equally supported, inference—that Mr. Lesher’s symptoms were not truly 18 disabling as of the alleged disability onset date. See Molina v. Astrue, 674 F.3d 19 1104, 1111 (9th Cir. 2012) (“Even when the evidence is susceptible to more than 20 one rational interpretation, we must uphold the ALJ's findings if they are ORDER - 13 1 supported by inferences reasonably drawn from the record.”). The ALJ did not err 2 in considering the period of delay as a factor in determining the weight to assign 3 to Mr. Lesher’s symptom testimony. 4 Second, Mr. Lesher appears to argue that the ALJ relied on inaccurate 5 medical information regarding Mr. Lesher’s subjective pain reporting. ECF No. 6 18 at 16. During various exams, Mr. Lesher reported pain as high as 10/10, but the 7 physicians noted Mr. Lesher did not appear to be in acute distress while reporting 8 these pain levels. See, e.g., Tr. 351, 386, 460, 465, 479, 521, 526. Mr. Lesher 9 argues that “the treatment records here are inconsistent and are not a good 10 indication of what defines ‘acute distress’ and whether Mr. Lesher was actually in 11 pain at the time.” ECF No. 18 at 16. Mr. Lesher does not cite any legal precedent 12 to suggest the ALJ is not entitled to consider the information provided in the 13 medical record. The ALJ did not err in considering this discrepancy when 14 evaluating the credibility of Mr. Lesher’s symptom testimony. 15 Third, Mr. Lesher asserts that the ALJ erred in concluding his reports of a 16 sedentary lifestyle conflicted with the medical evidence in the October 26, 2012 17 exam. ECF No. 18 at 16. He contends that the fact that the exam did not indicate 18 fibromyalgia or worsening degenerative disc disease does not necessarily mean 19 that he does not live a sedentary lifestyle. Id. This argument is unsuccessful, 20 however, because the interpretation of the evidence in the record is within the ORDER - 14 1 ALJ’s discretion. See Molina, 674 F.3d at 1111. The October 26, 2012 2 examination did not reveal any apparent medical condition that would render Mr. 3 Lesher unable to pursue a more active lifestyle. Tr. 480. The ALJ’s conclusion 4 that Mr. Lesher’s symptom testimony is not in line with the medical evidence is 5 supported by the record. 6 Fourth, Mr. Lesher argues that the ALJ should not have considered his 7 misrepresentation of the number of surgeries he had undergone on his ankle in 8 considering the reliability of his testimony. ECF No. 18 at 16–17. Mr. Lesher 9 contends that he was not purposefully untruthful and that the number of surgeries 10 has no bearing on whether Mr. Lesher’s symptoms were of the severity and 11 intensity he described. Id. While the number of surgeries may not affect the 12 severity of Mr. Lesher’s symptoms, his misrepresentation of his medical history 13 has a direct bearing on the credibility of his testimony overall. An ALJ is entitled 14 to rely on inconsistencies in evaluating the credibility of a claimant’s subjective 15 complaints. See Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005) (“In 16 determining credibility, an ALJ may engage in ordinary techniques of credibility 17 evaluation, such as considering claimant’s reputation for truthfulness and 18 inconsistencies in claimant’s testimony.”). 19 Finally, Mr. Lesher argues that the ALJ incorrectly found that there was no 20 objective medical evidence to support Mr. Lesher’s testimony that he used the ORDER - 15 1 restroom 20 times per day, regularly experienced accidents from his irritable 2 bowel syndrome, and struggled with nausea. ECF No. 18 at 17. Although the 3 record shows Mr. Lesher was diagnosed with benign prostate hypertrophy, the 4 ALJ correctly noted other evidence in the record that contradicted Mr. Lesher’s 5 testimony. Specifically, on August 6, 2009, Mr. Lesher had an appointment with 6 Dr. Noland during which Dr. Noland “urged [Mr. Lesher] to consider urology 7 evaluation” but Mr. Lesher declined. Tr. 291. During this same visit, Dr. Noland 8 explained to Mr. Lesher that his worsening urinary symptoms were linked to his 9 antihistamine use. Id. Dr. Noland set a follow up appointment for two months later 10 “or sooner if there are problems.” Id. Mr. Lesher had appointments with Dr. 11 Noland on August 31, 2009, September 8, 2009, and October 9, 2009. Tr. 279–91. 12 The treatment notes from these visits do not show that Mr. Lesher made any 13 complaints regarding his urinary symptoms. See id. The failure to report 14 symptoms to treatment providers is a legitimate consideration in determining the 15 credibility of those complaints. See Greger v. Barnhart, 464 F.3d 972 (9th Cir. 16 2006). 17 In sum, the ALJ provided numerous justifications for discrediting Mr. 18 Lesher’s symptom testimony, which, taken together, constitute specific, clear and 19 convincing reasons supported by substantial evidence in the record. The ALJ 20 therefore did not err in giving no weight to Mr. Lesher’s testimony. ORDER - 16 2 The ALJ met the burden of showing that jobs were available in significant numbers in the national economy that Mr. Lesher could perform. 3 Mr. Lesher objects to the ALJ’s step-five determination that jobs were 4 available in significant number in the national economy that Mr. Lesher could 5 perform. ECF No. 18 at 18. Mr. Lesher specifically asserts that the ALJ 6 committed legal error by failing to call or consult a vocational expert. See id. 7 “There are two ways for the Commissioner to meet the burden of showing that 8 there is other work in significant numbers in the national economy that the 9 claimant can perform: (a) by the testimony of a vocational expert, or (b) by 10 reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 11 2.” Tackett v. Apfel, 180 F.3d 1094, 1100–01 (9th Cir. 1999). Here, the ALJ did 12 the latter and concluded that Mr. Lesher had the residual functional capacity to 13 perform the full range of light work. Tr. 26–27. The fact that the ALJ did not 14 consult a vocational expert is not grounds for reversal. 1 D. 15 Mr. Lesher next appears to argue that the ALJ misapplied the Medical- 16 Vocational Guidelines because “the evidence establishes Mr. Lesher is disabled 17 and cannot perform jobs in the national economy.” ECF No. 18 at 18. However, 18 this argument merely rehashes Mr. Lesher’s objections to the ALJ’s 19 determinations in steps 1–4. For the reasons discussed above, the ALJ properly 20 weighed and evaluated the medical and subjective evidence in the record. The ORDER - 17 1 ALJ properly discredited Mr. Lesher’s testimony that his symptoms rendered him 2 largely sedentary and unable to perform normal daily functions. The ALJ 3 therefore properly applied the evidence to the Medical Vocational-Guidelines to 4 reach a conclusion that Mr. Lesher could perform a full range of light work. The 5 ALJ’s determination that Mr. Lesher’s limitations had “little or no effect on the 6 occupational base of unskilled light work” is likewise supported by substantial 7 evidence in the record. See Tr. 27. 8 Finally, Mr. Lesher asserts that “[i]n order to find that the claimant’s 9 disability does not continue through the date of the decision, the evidence must 10 show that medical improvement has occurred which is related to the claimant’s 11 ability to work, or that an exception applied.” ECF No. 19 at 18–19. Mr. Lesher 12 bases his argument on 20 C.F.R. § 404.1594(a). However, the requirements under 13 this regulation are triggered only when a claimant has already been found disabled 14 by the Social Security Administration. Because the ALJ found Mr. Lesher was not 15 disabled at any time during the relevant period, the process set out in 20 C.F.R. 16 § 404.1594 did not apply. 17 E. Conclusion 18 For the reasons discussed, the Court finds the record contains substantial 19 evidence from which the ALJ properly concluded, when applying the correct legal 20 standards, that Terry M. Lesher does not qualify for benefits. ORDER - 18 1 Accordingly, IT IS HEREBY ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is DENIED. 3 2. The Commissioner’s Motion for Summary Judgment, ECF No. 20, is GRANTED. 4 5 3. JUDGMENT is to be entered in the Commissioner’s favor. 6 4. The case shall be CLOSED. 7 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order 8 9 and provide copies to all counsel. DATED this 5th day of January 2018. 10 __________________________ SALVADOR MENDOZA, JR. United States District Judge 11 12 13 14 15 16 17 18 19 20 ORDER - 19
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