DePetro v. Commissioner of Social Security, No. 2:2016cv00398 - Document 22 (E.D. Wash. 2018)

Court Description: ORDER GRANTING 20 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 16 Plaintiff's Motion for Summary Judgment. Case closed. Signed by Senior Judge Robert H. Whaley. (CV, Case Administrator)

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DePetro v. Commissioner of Social Security Doc. 22 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Feb 22, 2018 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 JOHN SCOTT DEPETRO, 8 Plaintiff, No. 2:16-CV-000398-RHW 9 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, 10 11 Defendant. 12 13 14 15 16 17 18 19 20 Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 16, 20. Mr. DePetro brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied his application for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C §§ 1381-1383F. After reviewing the administrative record and briefs filed by the parties, the Court is now fully informed. For the reasons set forth below, the Court GRANTS Defendant’s Motion for Summary Judgment and DENIES Mr. DePetro’s Motion for Summary Judgment. // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 I. Jurisdiction Mr. DePetro filed his application for Supplemental Security Income on 2 3 November 4, 2010. AR 275-80. His alleged onset date in his application is 4 September 3, 2010. AR 275. Mr. DePetro’s application was initially denied on 5 December 29, 2010, AR 177-80, and on reconsideration on April 28, 2011, AR 6 187-90. A hearing with Administrative Law Judge (“ALJ”) R.J. Payne occurred on 7 January 6, 2013. AR 38-67. On October 12, 2010, the ALJ issued a decision 8 finding Mr. DePetro ineligible for disability benefits. AR 140-58. The Appeals 9 Council ordered remand on July 24, 2014. AR 159-63. In its decision, the Appeals 10 Council noted: “[T]he decision does not contain evidence from a vocational expert 11 to determine the erosion on the claimant’s occupational base, which is needed in 12 cases involving a severe mental impairment.” AR 160. 13 On remand, ALJ Moira Ausems held a hearing on February 3, 2015. AR 68- 14 114. ALJ Ausems issued a decision on April 14, 2015, finding Mr. DePetro 15 ineligible for disability benefits. AR 20-33. Because the Appeals Council did not 16 assume jurisdiction, the decision of the ALJ became final, see 20 C.F.R. § 17 404.984(d), and Mr. DePetro filed his current Complaint in District Court on 18 November 9, 2016, pursuant to 42 U.S.C. § 405(g). ECF No. 3. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 2 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 3 substantial gainful activity by reason of any medically determinable physical or 4 mental impairment which can be expected to result in death or which has lasted or 5 can be expected to last for a continuous period of not less than twelve months.” 42 6 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 7 under a disability only if the claimant’s impairments are of such severity that the 8 claimant is not only unable to do his previous work, but cannot, considering 9 claimant's age, education, and work experience, engage in any other substantial 10 gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) & 11 1382c(a)(3)(B). 12 The Commissioner has established a five-step sequential evaluation process 13 for determining whether a claimant is disabled within the meaning of the Social 14 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 15 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 16 Step one inquires whether the claimant is presently engaged in “substantial 17 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 18 activity is defined as significant physical or mental activities done or usually done 19 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 2 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 3 Step two asks whether the claimant has a severe impairment, or combination 4 of impairments, that significantly limits the claimant’s physical or mental ability to 5 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 6 impairment is one that has lasted or is expected to last for at least twelve months, 7 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 8 416.908-09. If the claimant does not have a severe impairment, or combination of 9 impairments, the disability claim is denied, and no further evaluative steps are 10 required. Otherwise, the evaluation proceeds to the third step. 11 Step three involves a determination of whether any of the claimant’s severe 12 impairments “meets or equals” one of the listed impairments acknowledged by the 13 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 14 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 15 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 16 equals one of the listed impairments, the claimant is per se disabled and qualifies 17 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 18 fourth step. 19 Step four examines whether the claimant’s residual functional capacity 20 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) & ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is 2 not entitled to disability benefits and the inquiry ends. Id. 3 Step five shifts the burden to the Commissioner to prove that the claimant is 4 able to perform other work in the national economy, taking into account the 5 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 6 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 7 burden, the Commissioner must establish that (1) the claimant is capable of 8 performing other work; and (2) such work exists in “significant numbers in the 9 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 10 11 12 676 F.3d 1203, 1206 (9th Cir. 2012). III. Standard of Review A district court's review of a final decision of the Commissioner is governed 13 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 14 Commissioner's decision will be disturbed “only if it is not supported by 15 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 16 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a 17 mere scintilla but less than a preponderance; it is such relevant evidence as a 18 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 19 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 20 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 whether the Commissioner’s findings are supported by substantial evidence, “a 2 reviewing court must consider the entire record as a whole and may not affirm 3 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 4 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 5 F.2d 498, 501 (9th Cir. 1989)). 6 In reviewing a denial of benefits, a district court may not substitute its 7 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 8 1992). If the evidence in the record “is susceptible to more than one rational 9 interpretation, [the court] must uphold the ALJ's findings if they are supported by 10 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 11 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 12 2002) (if the “evidence is susceptible to more than one rational interpretation, one 13 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 14 a district court “may not reverse an ALJ's decision on account of an error that is 15 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 16 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 17 The burden of showing that an error is harmful generally falls upon the party 18 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 2 VII. Discussion A. The ALJ Properly Discounted Mr. DePetro’s Credibility. 3 An ALJ engages in a two-step analysis to determine whether a claimant’s 4 testimony regarding subjective symptoms is credible. Tommasetti v. Astrue, 533 5 F.3d 1035, 1039 (9th Cir. 2008). First, the claimant must produce objective 6 medical evidence of an underlying impairment or impairments that could 7 reasonably be expected to produce some degree of the symptoms alleged. Id. 8 Second, if the claimant meets this threshold, and there is no affirmative evidence 9 suggesting malingering, “the ALJ can reject the claimant’s testimony about the 10 severity of [his] symptoms only by offering specific, clear, and convincing reasons 11 for doing so.” Id. 12 In weighing a claimant's credibility, the ALJ may consider many factors, 13 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 14 reputation for lying, prior inconsistent statements concerning the symptoms, and 15 other testimony by the claimant that appears less than candid; (2) unexplained or 16 inadequately explained failure to seek treatment or to follow a prescribed course of 17 treatment; and (3) the claimant's daily activities.” Smolen, 80 F.3d at 1284. When 18 evidence reasonably supports either confirming or reversing the ALJ's decision, the 19 Court may not substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 20 F.3d 1094, 1098 (9th Cir.1999). Here, the ALJ found that the medically ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 determinable impairments could reasonably be expected to produce the symptoms 2 Mr. DePetro alleges; however, the ALJ determined that Mr. DePetro’s statements 3 regarding intensity, persistence, and limiting effects of the symptoms were not 4 entirely credible. AR 28. 5 The ALJ provided multiple reasons for discrediting Mr. DePetro’s subjective 6 complaint testimony. AR 28-29. She found that the evidentiary record does not 7 support the degree of limitations claimed by Mr. DePetro. AR 28. 8 First, despite having a severe impairment of hepatitis C, the record indicates 9 he had an undetectable viral load by December 2010 after interferon treatment. AR 10 360. Subsequent follow ups show Mr. DePetro was consistently doing well after 11 treatment. AR 361-66. While Mr. DePetro testified to weakness due to his 12 treatment, the record does not support disabling limitations but rather a pattern of 13 improvement with regard to Mr. DePetro’s hepatitis C. 14 Mr. DePetro also alleged problems with his left foot, including numbness, 15 following the surgical removal of a sarcoma in his left leg, and that these problems 16 limited his ability to stand more than one hour. AR 28. To the contrary, the ALJ 17 pointed to chart notations from October 2011, one month after surgery, that 18 demonstrate Mr. DePetro’s extremities showed normal and full range of motion in 19 all joints. AR 461. He was found to be neurovacularly intact at a follow up in 20 December 2011. AR 464. Again, his range of motion was within normal limits. Id. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Inconsistency between a claimant’s allegations and relevant medical evidence is a 2 legally sufficient reason to reject a claimant’s subjective testimony. Tonapetyan v. 3 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). These records support the ALJ’s 4 finding that Mr. DePetro’s subjective symptom testimony regarding his leg is not 5 as severe as alleged. 6 Likewise, the record supports the ALJ’s findings that Mr. DePetro’s 7 limitations related to his mental impairments are not as severe as alleged. AR 29. 8 For example, his bipolar disorder was described as “very stable” in January 2011. 9 AR 364. During this visit, he was described as not anxious and negative for 10 anhedonia or suicidal ideation. Id. He continued to exhibit general stability with 11 regard to his mental impairments through June to September 2011, AR 376, 380, 12 435, and January 2012, AR 385. The record substantially supports the ALJ’s 13 conclusions regarding Mr. DePetro’s subjective mental impairment testimony. 14 15 16 B. The ALJ properly weighed the medical opinion evidence. a. Legal Standard. The Ninth Circuit has distinguished between three classes of medical 17 providers in defining the weight to be given to their opinions: (1) treating 18 providers, those who actually treat the claimant; (2) examining providers, those 19 who examine but do not treat the claimant; and (3) non-examining providers, those 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 2 Cir. 1996) (as amended). 3 A treating provider’s opinion is given the most weight, followed by an 4 examining provider, and finally a non-examining provider. Id. at 830-31. In the 5 absence of a contrary opinion, a treating or examining provider’s opinion may not 6 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 7 treating or examining provider’s opinion is contradicted, it may only be discounted 8 for “specific and legitimate reasons that are supported by substantial evidence in 9 the record.” Id. at 830-31. 10 The ALJ may meet the specific and legitimate standard by “setting out a 11 detailed and thorough summary of the facts and conflicting clinical evidence, 12 stating his interpretation thereof, and making findings.” Magallanes v. Bowen, 881 13 F.2d 747, 751 (9th Cir. 1989) (internal citation omitted). When rejecting a treating 14 provider’s opinion on a psychological impairment, the ALJ must offer more than 15 his or her own conclusions and explain why he or she, as opposed to the provider, 16 is correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 17 b. Dr. Debra Brown, Ph.D. 18 Dr. Brown provided a Washington Department of Social and Health 19 Services (“DSHS”) psychological evaluation on September 24, 2009. AR 405-11. 20 She noted marked limitations in the ability to respond appropriately to and tolerate ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 the pressures and expectations of a normal work setting and in the ability to 2 maintain appropriate behavior in a work setting. AR 410. 3 The ALJ discounted Dr. Brown’s opinion because of a lack of longitudinal 4 perspective by the provider. AR 30. The ALJ referenced that Dr. Brown stated Mr. 5 DePetro had “been seen at Brown & Associates by various providers since 2009.” 6 AR 405. The ALJ gave some limited weight to Dr. Brown’s opinion that Mr. 7 DePetro had “some cognitive and social limitations,” but not to the extent that they 8 were disabling. AR 30. 9 While Dr. Brown acknowledged that Mr. DePetro had been seen by her 10 practice, there is no evidence that she has ever personally treated Mr. DePetro prior 11 to preparing the evaluation. The record is void of evidence of treatment by Brown 12 & Associates, other than Dr. Brown’s assertion that he had been seen since 2009. 13 The ALJ need not accept medical opinions that are unsupported by objective 14 medical evidence, such as clinical notes. Bayliss v. Barnhart, 427 F.3d 1211, 1216 15 (9th Cir. 2005). 16 Additionally, because Mr. DePetro was seen by multiple providers, there is 17 no single professional that was able to provide a comprehensive analysis of Mr. 18 DePetro’s mental impairments, and the record does not suggest that Dr. Brown 19 viewed records from other providers. At best, Dr. Brown can piece together 20 through records available to her and subjective testimony, and this is contradicted ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 by more reliable review. For example, while Dr. Brown diagnoses PTSD based on 2 the record, Dr. Donna Veraldi, Ph.D., the impartial medical expert and, more 3 importantly, the only doctor to review the entire record testified that “historically 4 there were references to PTSD without enough symptoms to justify that 5 diagnosis.” AR 78-79. This is supported by the record. An ALJ may reject a 6 doctor’s opinion when it is inconsistent with other evidence in the record. See 7 Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 602-603 (9th Cir. 1999). 8 9 10 11 12 For the reasons stated, particularly because of the lack of objective medical evidence to support the opinion, the Court does not find error with the ALJ’s treatment of Dr. Brown’s opinion. c. Dr. John Arnold, Ph.D. Dr. Arnold also completed a DSHS evaluation on November 5, 2010. AR 13 413-19. Dr. Arnold found marked limitations in Mr. DePetro’s ability to function 14 within a work setting. AR 415. In this evaluation, he referred to borderline 15 intellectual functioning as “rule out” diagnosis. AR 414. 16 The only record that Dr. Arnold reviewed was the DSHS form from Dr. 17 Brown previously detailed. AR 413. Thus, much of Dr. Arnold’s findings are 18 based on Dr. Brown’s findings, which the Court noted above were properly 19 discounted by the ALJ. See supra at 13-15. Moreover, none of Dr. Arnold’s 20 findings were supported by objective medical findings. See Bayliss, 427 F.3d at ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 1216 (ALJ does not need to accept opinion that is unsupported by objective 2 medical evidence). The ALJ reasoned that absent objective findings, the opinion 3 was based on subjective testimony, which the ALJ has properly found to be 4 unreliable. See supra at pp. 9-12; see also Ghanim v. Colvin, 763 F.3d 1154, 1162 5 (9th Cir. 2014) (ALJ may discount a treating provider’s opinion if it is based 6 largely on the claimant’s self-reports and not on clinical evidence, and the ALJ 7 finds the claimant not credible). 8 Dr. Arnold completed a second DSHS form on November 4, 2011. AR 421- 9 26. On this form, he diagnosed borderline intellectual functioning “per Magnolia,” 10 which is again unsupported by medical evidence. See Bayliss, 427 F.3d at 1216. 11 The ALJ properly discounted this opinion again for the lack of objective findings 12 and the reliance on subjective testimony. 13 Finally, Dr. Arnold provided a third DSHS form on October 28, 2013. AR 14 489-492. On this form, the findings in Mr. DePetro’s mental status examination 15 contradict Dr. Arnold’s opinions. Mr. DePetro’s thought process and content, 16 orientation, perception, concentration, abstract thoughts, insight, and judgments 17 were all within normal limits. AR 491. He was also described as cooperative and 18 congenial. Id. A discrepancy between a doctor’s recorded observations and 19 opinions is a clear and convincing reason for not relying on the doctor’s opinion. 20 Bayliss, 427 F.3d at 1216. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 Moreover, the Court notes that the ALJ did include significant limitations in 2 the residual functional capacity regarding interaction with others on the job. AR 3 27. The ALJ based these on the opinions of multiple doctors whose opinions Mr. 4 DePetro does not allege were given improper weight. AR 29-32. 5 VIII. Conclusion 6 Having reviewed the record and the ALJ’s findings, the Court finds the 7 ALJ’s decision is supported by substantial evidence and is free from legal error. 8 Accordingly, IT IS ORDERED: 9 1. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED. 10 2. Defendant’s Motion for Summary Judgment, ECF No. 20, is 11 GRANTED. 12 3. Judgment shall be entered in favor of Defendant and the file shall be 13 CLOSED. 14 IT IS SO ORDERED. The District Court Executive is directed to enter this Order, 15 forward copies to counsel and close the file. 16 DATED this 22nd day of February, 2018. 17 18 19 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17

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