Kaiser v. Commissioner of Social Security, No. 2:2017cv00304 - Document 25 (E.D. Wash. 2018)

Court Description: ORDER Granting 23 Defendant's Motion for Summary Judgment; denying 21 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)

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Kaiser v. Commissioner of Social Security Doc. 25 1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON Sep 11, 2018 SEAN F. MCAVOY, CLERK 4 5 6 7 8 9 10 11 KARL K., No. 2:17-CV-0304-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 12 13 BEFORE THE COURT are cross-motions for summary judgment. ECF 14 No. 21, 23. Attorney Joseph M. Linehan represents Karl K. (Plaintiff); Special 15 Assistant United States Attorney Jeffrey Eric Staples represents the Commissioner 16 of Social Security (Defendant). The parties have consented to proceed before a 17 magistrate judge. ECF No. 8. After reviewing the administrative record and briefs 18 filed by the parties, the Court GRANTS Defendant’s Motion for Summary 19 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 20 JURISDICTION 21 On September 13, 2013, Plaintiff protectively filed an application for 22 disability insurance benefits. Tr. 170. On November 26, 2014, Plaintiff also 23 protectively filed an application for supplemental security income. Tr. 178. In 24 both applications, Plaintiff alleged disability since December 31, 2011, due to left 25 shoulder and lower back problems and a torn rotator cuff (right shoulder). Tr. 170, 26 178, 189. Plaintiff’s applications were denied initially and upon reconsideration. 27 28 Administrative Law Judge (ALJ) R. J. Payne held a hearing on February 18, 2016, Tr. 40-81, and issued a partially favorable decision on March 9, 2016, Tr. ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 22-31. The ALJ determined that Plaintiff was not disabled prior to February 12, 2 2016, but became disabled on that date and continued to be disabled through the 3 date of the ALJ’s decision. Tr. 22. The Appeals Council denied review on June 4 29, 2017. Tr. 1-6. The ALJ’s March 2016 decision thus became the final decision 5 of the Commissioner, which is appealable to the district court pursuant to 42 6 U.S.C. § 405(g). Plaintiff filed this action for judicial review on August 28, 2017. 7 ECF No. 1, 4. STATEMENT OF FACTS 8 The facts of the case are set forth in the administrative hearing transcript, the 9 10 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 11 here. 12 Plaintiff was born on May 12, 1961, and was 50 years old on the alleged 13 onset date, December 31, 2011. Tr. 54, 178. He has a high school education and 14 has primarily worked as a manufacturing and repairs welder. Tr. 53-54, 62, 190. 15 Plaintiff’s disability report indicates he stopped working on December 31, 2011, 16 because of his condition(s). Tr. 189. He testified the main thing preventing him 17 from being able to work is left shoulder pain. Tr. 55. Nevertheless, Plaintiff 18 indicated he could lift 10 pounds with his right arm and could lift up to 20 pounds 19 total, but not above waist-level. Tr. 56. His daily activities consisted of taking 20 walks, looking after his friend’s cattle, doing a small amount of cleaning and 21 taking care of his personal needs. Tr. 66-67. 22 23 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 24 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 25 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 26 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 27 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 28 only if it is not supported by substantial evidence or if it is based on legal error. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 2 defined as being more than a mere scintilla, but less than a preponderance. Id. at 3 1098. Put another way, substantial evidence is such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion. Richardson v. 5 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 6 rational interpretation, the Court may not substitute its judgment for that of the 7 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 8 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 9 administrative findings, or if conflicting evidence supports a finding of either 10 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 11 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 12 supported by substantial evidence will be set aside if the proper legal standards 13 were not applied in weighing the evidence and making the decision. Brawner v. 14 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 16 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 18 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 19 four, the burden of proof rests upon the claimant to establish a prima facie case of 20 entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is 21 met once a claimant establishes that a physical or mental impairment prevents the 22 claimant from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 23 416.920(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds 24 to step five, and the burden shifts to the Commissioner to show that the claimant 25 can perform other jobs present in significant numbers in the national economy. 26 Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). 27 If a claimant cannot make an adjustment to other work in the national economy, a 28 finding of “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 ADMINISTRATIVE DECISION 2 On March 9, 2016, the ALJ issued a decision finding Plaintiff was not 3 disabled prior to February 12, 2016, but became disabled on that date and 4 continued to be disabled through the date of the ALJ’s decision. Tr. 22, 30. 5 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 6 activity since the alleged onset date, December 31, 2011. Tr. 24. At step two, the 7 ALJ determined Plaintiff had the following severe impairments: degenerative joint 8 disease of the bilateral shoulders, status-post surgery 2008; right cubital tunnel 9 syndrome; and right carpal tunnel syndrome. Tr. 24. At step three, the ALJ found 10 Plaintiff did not have an impairment or combination of impairments that meets or 11 medically equals the severity of one of the listed impairments. Tr. 25. 12 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 13 determined he could perform light exertion level work with the following 14 limitations: he could lift no more than 20 pounds occasionally and lift or carry 10 15 pounds frequently; he could sit, stand, and walk six hours each in an eight-hour 16 workday with normal breaks; he could occasionally push/pull bilaterally within the 17 light exertion level weight restrictions; he could never reach overhead with the left 18 upper extremity but could occasionally reach in all other directions; and he could 19 occasionally perform fine and gross handling with the right hand. Tr. 25. 20 At step four, the ALJ determined Plaintiff could not perform his past 21 relevant work. Tr. 28. At step five, the ALJ found that based on the testimony of 22 the vocational expert, and considering Plaintiff’s age, education, work experience 23 and RFC, Plaintiff could perform other jobs present in significant numbers in the 24 national economy prior to May 12, 2016, including the jobs of furniture rental 25 consultant and sales clerk. Tr. 29-30. The ALJ further determined that beginning 26 on May 12, 2016, the date Plaintiff’s age category changed to age 55, a finding of 27 “disabled” was reached by direct application of Medical-Vocation Rule (grid rule) 28 202.06. The ALJ thus concluded Plaintiff was not under a disability within the ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 meaning of the Social Security Act at any time from December 31, 2011, the 2 alleged onset date, through February 12, 2016, but became disabled on that date 3 due to the non-mechanical application of the grid rules and continued to be 4 disabled through the date of the ALJ’s decision, March 9, 2016. Tr. 30-31. ISSUES 5 The question presented is whether substantial evidence supports the ALJ’s 6 7 decision denying benefits and, if so, whether that decision is based on proper legal 8 standards. Plaintiff contends the ALJ erred in this case by failing to give the 9 10 appropriate weight to the opinions of Plaintiff’s treating and examining doctors 1 11 and his testimony. ECF No. 21 at 1. DISCUSSION2 12 13 14 A. Medical Opinion Evidence Plaintiff asserts the ALJ erred by assigning “little weight” to the opinion of 15 Donald Jackson, PA-C, regarding Plaintiff’s physical functional capacity. ECF 16 No. 21 at 5-9. 17 18 1 Plaintiff’s briefing fails to actually contest the ALJ’s consideration of any 19 doctors’ opinions in this case. See ECF No. 21 at 5-9. Instead, Plaintiff challenges 20 the ALJ’s rationale for according “little weight” to the opinions of Donald Jackson, 21 PA-C. Id. 22 2 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 In a disability proceeding, the courts distinguish among the opinions of three 2 types of acceptable medical sources: treating physicians, physicians who examine 3 but do not treat the claimant (examining physicians) and those who neither 4 examine nor treat the claimant (nonexamining physicians). Lester v. Chater, 81 5 F.3d 821, 830 (9th Cir. 1996). A treating physician’s opinion carries more weight 6 than an examining physician’s opinion, and an examining physician’s opinion is 7 given more weight than that of a nonexamining physician. Benecke v. Barnhart, 8 379 F.3d 587, 592 (9th Cir. 2004); Lester, 81 F.3d at 830. Moreover, the opinion 9 of an acceptable medical source is given more weight than that of an “other 10 source.” 20 C.F.R. §§ 404.1527, 416.927; Gomez v. Chater, 74 F.3d 967, 970-71 11 (9th Cir. 1996). Evidence from “other sources” is any information or statements 12 from a non-medical source about any issue in Plaintiff’s claim. 20 C.F.R. § 13 404.1513(a)(4). An ALJ is obligated to provide germane reasons for discounting 14 “other source” statements. Dodrill v. Shalala, 12 F.3d 915 (9th Cir. 1993). 15 With regard to the weight of the medical evidence pertaining to Plaintiff’s 16 physical capacity, Drew Stevick, M.D., a medical consultant at the state level of 17 disability determination, reviewed the record on March 26, 2014, and noted there 18 was insufficient evidence of a medical impairment based on the absence of any 19 medical evidence from December 31, 2011, the alleged onset date, until the date 20 last insured, March 31, 2013. Tr. 27, 92. As correctly stated by the ALJ, there is 21 virtually no record of medical treatment or any medically documented physical 22 abnormality from December 2008 to June 2014. Tr. 27. 23 Harvey Alpern, M.D., testified as a medical expert at the February 18, 2016 24 administrative hearing and was accorded “great weight” by the ALJ. Tr. 27-28, 25 45-52. Plaintiff has not contested the weight accorded to Dr. Alpern. See 26 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (the 27 Court will not ordinarily consider matters on appeal that were not specifically and 28 distinctly argued in a party’s opening brief). ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 Dr. Alpern indicated Plaintiff had degenerative joint disease in both 2 shoulders, predominantly in the left shoulder, with surgeries in 2008. Tr. 46-47. 3 He further indicated cubital and carpal tunnel syndrome of the right hand/upper 4 extremity was suggested as well as low back pain. Tr. 47-48. He found that 5 Plaintiff could lift 20 pounds occasionally, lift 10 pounds frequently, and sit, stand 6 and walk six hours each in an eight-hour day. Tr. 48. Dr. Alpern opined Plaintiff 7 could not reach overhead with the left upper extremity and could only occasionally 8 push and pull. Tr. 49. Plaintiff was also limited to only occasional fine/gross 9 grasping with the right hand. Tr. 49. Based on Dr. Alpern’s testimony, and the medical record as a whole, the 10 11 ALJ determined Plaintiff had the severe impairments of degenerative joint disease 12 of the bilateral shoulders, right cubital tunnel syndrome, and right carpal tunnel 13 syndrome, Tr. 24, which limited Plaintiff to light exertion level work with certain 14 upper extremity restrictions, Tr. 25. Tr. 27. Physician Assistant Jackson, an “other source,” filled out a “Physical 15 16 Functional Evaluation” form on October 29, 2014. Tr. 282-284. Mr. Jackson 17 assessed low back/sciatica pain and left shoulder derangement and opined that 18 Plaintiff’s left shoulder derangement severely limited Plaintiff’s ability to walk, 19 lift, carry, handle, push, pull and reach. Tr. 283. Mr. Jackson further found 20 Plaintiff was severely limited overall and unable to meet the demands of even 21 sedentary work. Tr. 284. The ALJ accorded little weight to Mr. Jackson’s opinions. Tr. 28. The ALJ 22 23 indicated Mr. Jackson primarily relied on Plaintiff’s self-reported symptoms and 24 complaints and that the evaluation was conducted for the purpose of state welfare 25 assistance, not social security disability. Tr. 28. The ALJ further held that the 26 report was a check-box form with few objective findings in support of the degree 27 of limitation opined. Tr. 28. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 As determined by the ALJ, Mr. Jackson provided little objective rationale 2 for his opinion on the form report that Plaintiff was severely limited; therefore, the 3 assessed limitations appear to be predominantly based on Plaintiff’s subjective 4 complaints. See Morgan, 169 F.3d at 602 (the opinion of a physician premised to a 5 large extent on a claimant’s own account of symptoms and limitations may be 6 disregarded where they have been properly discounted). As discussed below, the 7 ALJ’s reasons for discounting plaintiff’s subjective complaints in this case are 8 supported by the evidence of record and free of error. See infra. Moreover, it is 9 proper for an ALJ to discredit a treating physician’s opinion that is unsupported by 10 rationale or treatment notes and offers no objective medical findings to support the 11 existence of alleged conditions. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 12 (9th Cir. 2001); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (stating that the 13 ALJ’s rejection of a check-off report that did not contain an explanation of the 14 bases for the conclusions made was permissible). The Court finds that the ALJ 15 provided germane reasons for discounting Mr. Jackson’s report. 3 16 17 3 As stated above, the ALJ also indicated he accorded little weight to Mr. 18 Jackson’s opinion because the evaluation was conducted for the purpose of state 19 welfare assistance, not social security disability. Tr. 28. “The purpose for which 20 medical reports are obtained does not provide a legitimate basis for rejecting them” 21 unless there is additional evidence demonstrating impropriety, and the ALJ has 22 identified no such evidence. Lester, 81 F.3d at 832. The Court finds that Mr. 23 Jackson’s opinion should not have been discounted on the basis of the purpose of 24 the exam. However, since the ALJ provided other germane reasons, supported by 25 substantial evidence, for according little weight to the opinions of Mr. Jackson, any 26 error based on the ALJ’s finding that Mr. Jackson’s examination was accorded 27 little weight because it was conducted for the purpose of state welfare assistance is 28 harmless. See Johnson v. Shalala, 60 F.3d 1428, 1436 n.9 (9th Cir. 1995) (an error ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 The record reflects that no medical professional, other than Physician 2 Assistant Jackson, has assessed greater physical limitations than determined by the 3 ALJ in this case. In fact, as noted by the ALJ, Tr. 27, a later examination 4 conducted by Mr. Jackson in June 2015 revealed only moderate pain with overhead 5 and behind the back reaching, Tr. 289. The restriction to less than sedentary work 6 as opined by Mr. Jackson in October 2014 is not supported by the weight of the 7 record evidence. The physical limitations assessed by the ALJ are supported by 8 the weight of the record evidence and are free of error. 9 B. 10 11 12 Plaintiff’s Symptom Testimony Plaintiff also challenges the ALJ’s rejection of Plaintiff’s symptom testimony. ECF No. 21 at 9-13. It is the province of the ALJ to make credibility determinations. Andrews, 13 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 14 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 15 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 16 testimony must be “specific, clear and convincing.” Smolen, 80 F.3d at 1281; 17 Lester, 81 F.3d at 834. “General findings are insufficient: rather the ALJ must 18 identify what testimony is not credible and what evidence undermines the 19 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill, 12 F.3d at 918. 20 In this case, the ALJ found Plaintiff’s medically determinable impairments 21 could reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 22 statements concerning the intensity, persistence and limiting effects of those 23 symptoms were not entirely credible. Tr. 27. 24 25 is harmless when the correction of that error would not alter the result). An ALJ’s 26 decision will not be reversed for errors that are harmless. Burch v. Barnhart, 400 27 F.3d 676, 679 (9th Cir. 2005) (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th 28 Cir. 1991). ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 The ALJ first indicated Plaintiff’s statements of alleged disabling physical 2 impairments and their corresponding symptoms were inconsistent with the 3 objective medical evidence of record. Tr. 27. A lack of supporting objective 4 medical evidence is a factor which may be considered in evaluating an individual’s 5 credibility, provided it is not the sole factor. Bunnell v. Sullivan, 347 F.2d 341, 6 345 (9th Cir. 1991) (Once a claimant produces objective medical evidence of an 7 underlying impairment, an adjudicator may not reject the claimant’s subjective 8 complaints based solely on a lack of objective medical evidence to fully 9 corroborate the alleged severity of pain.); see also Robbins v. Soc. Sec. Admin., 466 10 F3d 880, 883 (9th Cir. 2006) (An ALJ may not make a negative credibility finding 11 “solely because” the claimant’s symptom testimony “is not substantiated 12 affirmatively by objective medical evidence.”). As stated above, the ALJ correctly reported there is virtually no record of 13 14 medical treatment or physical abnormality from December 2008 to June 2014. Tr. 15 27. Furthermore, no medical professional, other than Mr. Jackson, has assessed 16 greater physical limitations than determined by the ALJ in this case. The medical 17 evidence of record does not support Plaintiff’s allegation of disabling limitations. 18 The ALJ also indicated Plaintiff’s activities of daily living were inconsistent 19 with his assertions of totally disabling symptoms. Tr. 27, 28. It is well-established 20 that the nature of daily activities may be considered when evaluating credibility. 21 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). While one does not need to be 22 “utterly incapacitated” to be disabled, id., it was proper for the ALJ to find 23 Plaintiff’s reports of activities such as preparing meals daily, doing household 24 chores, going out daily, sometimes driving a car, going grocery shopping, 25 swimming, lifting up to 20 pounds, fishing, and hunting, Tr. 56, 202-206, were 26 /// 27 /// 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 inconsistent with the debilitating limitations he alleged4 and thus detracted from 2 his overall credibility. Tr. 28. See Smith v. Comm’r Soc. Sec. Admin., 611 3 Fed.Appx. 897, 900 (9th Cir. 2015) (affirming the ALJ’s adverse credibility 4 determination and noting the ALJ found the claimant’s testimony was contradicted 5 by “her own description of helping with” the “care of children” and household 6 chores); Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (affirming the 7 ALJ’s adverse credibility determination and noting that the claimant’s claim of 8 disability was undermined by testimony about her daily activities, such as 9 “attending to the needs of her two young children,” cooking, and shopping); see 10 also Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012) (“Even where [a 11 claimant’s daily] activities suggest some difficulty functioning, they may be 12 grounds for discrediting the claimant’s testimony to the extent that they contradict 13 claims of a totally debilitating impairment.”). The ALJ is responsible for reviewing the evidence and resolving conflicts or 14 15 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 16 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 17 evidence. Richardson v. Perales, 402 U.S. 389, 400 (1971). The Court has a 18 limited role in determining whether the ALJ’s decision is supported by substantial 19 evidence and may not substitute its own judgment for that of the ALJ even if it 20 might justifiably have reached a different result upon de novo review. 42 U.S.C. § 21 405(g). After reviewing the record, the Court finds that the ALJ provided clear 22 and convincing reasons, which are fully supported by the record, for discounting 23 Plaintiff’s subjective complaints. Accordingly, the ALJ did not err by finding 24 Plaintiff’s symptom allegations were not entirely credible in this case. 25 26 4 Plaintiff’s disability function report indicated he was “unable to lift,” was 27 “unable to reach, pull and grab,” and had decreased range of motion and pain. Tr. 28 201. ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, the Court finds the 3 ALJ’s decision is supported by substantial evidence and free of legal error. 4 Accordingly, IT IS ORDERED: 5 6 1. Defendant’s Motion for Summary Judgment, ECF No. 23, is GRANTED. 7 2. 8 The District Court Executive is directed to file this Order and provide a copy 9 10 11 Plaintiff’s Motion for Summary Judgment, ECF No. 21, is DENIED. to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant and the file shall be CLOSED. DATED September 11, 2018. 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 . . . - 12

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