Sumpay v. Saul, No. 2:2019cv00254 - Document 17 (E.D. Wash. 2020)
Court Description: ORDER DENYING 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S 15 MOTION FOR SUMMARY JUDGMENT. FILE CLOSED. Signed by Magistrate Judge Mary K. Dimke. (AN, Courtroom Deputy)
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Sumpay v. Saul Doc. 17 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Mar 27, 2020 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 EDGARDO S,1 No. 2:19-cv-00254-MKD Plaintiff, 8 vs. 9 ANDREW M. SAUL, 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ECF Nos. 14, 15 12 13 Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 14, 15. The parties consented to proceed before a magistrate judge. ECF No. 15 6. The Court, having reviewed the administrative record and the parties’ briefing, 16 17 18 1 To protect the privacy of plaintiffs in social security cases, the undersigned 19 identifies them by only their first names and the initial of their last names. See 20 LCivR 5.2(c)14. 2 ORDER - 1 Dockets.Justia.com 1 is fully informed. For the reasons discussed below, the Court denies Plaintiff’s 2 motion, ECF No. 14, and grants Defendant’s motion, ECF No. 15. 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g); 5 1383(c)(3). 6 7 STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 8 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 9 limited; the Commissioner’s decision will be disturbed “only if it is not supported 10 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 11 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a 12 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 13 (quotation and citation omitted). Stated differently, substantial evidence equates to 14 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 15 citation omitted). In determining whether the standard has been satisfied, a 16 reviewing court must consider the entire record as a whole rather than searching 17 for supporting evidence in isolation. Id. 18 In reviewing a denial of benefits, a district court may not substitute its 19 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 20 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 ORDER - 2 1 rational interpretation, [the court] must uphold the ALJ’s findings if they are 2 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 3 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 4 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless 5 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 6 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 7 decision generally bears the burden of establishing that it was harmed. Shinseki v. 8 Sanders, 556 U.S. 396, 409-10 (2009). 9 10 FIVE-STEP EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within 11 the meaning of the Social Security Act. First, the claimant must be “unable to 12 engage in any substantial gainful activity by reason of any medically determinable 13 physical or mental impairment which can be expected to result in death or which 14 has lasted or can be expected to last for a continuous period of not less than twelve 15 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 16 impairment must be “of such severity that he is not only unable to do his previous 17 work[,] but cannot, considering his age, education, and work experience, engage in 18 any other kind of substantial gainful work which exists in the national economy.” 19 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 20 2 ORDER - 3 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 3 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 4 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 5 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 6 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 7 404.1520(b), 416.920(b). 8 If the claimant is not engaged in substantial gainful activity, the analysis 9 proceeds to step two. At this step, the Commissioner considers the severity of the 10 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 11 claimant suffers from “any impairment or combination of impairments which 12 significantly limits [his or her] physical or mental ability to do basic work 13 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 14 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 15 however, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 16 §§ 404.1520(c), 416.920(c). 17 At step three, the Commissioner compares the claimant’s impairment to 18 severe impairments recognized by the Commissioner to be so severe as to preclude 19 a person from engaging in substantial gainful activity. 20 C.F.R. §§ 20 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 2 ORDER - 4 1 severe than one of the enumerated impairments, the Commissioner must find the 2 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 3 If the severity of the claimant’s impairment does not meet or exceed the 4 severity of the enumerated impairments, the Commissioner must pause to assess 5 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 6 defined generally as the claimant’s ability to perform physical and mental work 7 activities on a sustained basis despite his or her limitations, 20 C.F.R. §§ 8 404.1545(a)(1), 416.945(a)(1), is relevant to both the fourth and fifth steps of the 9 analysis. 10 At step four, the Commissioner considers whether, in view of the claimant’s 11 RFC, the claimant is capable of performing work that he or she has performed in 12 the past (past relevant work). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 13 If the claimant is capable of performing past relevant work, the Commissioner 14 must find that the claimant is not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). 15 If the claimant is incapable of performing such work, the analysis proceeds to step 16 five. 17 At step five, the Commissioner considers whether, in view of the claimant’s 18 RFC, the claimant is capable of performing other work in the national economy. 19 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 20 the Commissioner must also consider vocational factors such as the claimant’s age, 2 ORDER - 5 1 education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 2 416.920(a)(4)(v). If the claimant is capable of adjusting to other work, the 3 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 4 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 5 work, analysis concludes with a finding that the claimant is disabled and is 6 therefore entitled to benefits. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 7 The claimant bears the burden of proof at steps one through four above. 8 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 9 step five, the burden shifts to the Commissioner to establish that 1) the claimant is 10 capable of performing other work; and 2) such work “exists in significant numbers 11 in the national economy.” 20 C.F.R. §§ 404.1560(c)(2), 416.960(c)(2); Beltran v. 12 Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 13 ALJ’S FINDINGS 14 On July 20, 2015, Plaintiff applied both for Title II disability insurance 15 benefits and Title XVI supplemental security income benefits alleging an amended 16 disability onset date of December 28, 2014.2 Tr. 111, 227-33; Tr. 234-35. The 17 18 2 Plaintiff previously applied for disability benefits on January 5, 2012, Tr. 210-19, 19 which was denied on September 19, 2012, Tr. 145-51. Plaintiff did not appeal the 20 denial. 2 ORDER - 6 1 applications were denied initially and on reconsideration. Tr. 152-55; Tr. 158-63. 2 Plaintiff appeared before an administrative law judge (ALJ) on November 15, 3 2017. Tr. 28-73. At the hearing, Plaintiff requested a closed period of disability 4 from December 28, 2014 until his return to work on February 8, 2017. Tr. 10, 30. 5 On July 2, 2018, the ALJ denied Plaintiff’s claim. Tr. 7-27. 6 At step one of the sequential evaluation process, the ALJ found Plaintiff, 7 who met the insured status requirements through December 31, 2018, did not 8 engage in substantial gainful activity from December 28, 2014 through February 8, 9 2017. Tr. 13. At step two, the ALJ found that Plaintiff has the following severe 10 impairments: congestive heart failure, obesity, personality disorder, and anxiety 11 disorder. Id. 12 At step three, the ALJ found Plaintiff does not have an impairment or 13 combination of impairments that meets or medically equals the severity of a listed 14 impairment. Id. The ALJ then concluded that Plaintiff has the RFC to perform 15 light work with the following limitations: 16 17 18 19 20 2 [Plaintiff] can lift and carry 20 pounds occasionally and 10 pounds frequently. He can stand and walk for a total of 2 hours a day. He can sit for 8 hours in an 8-hour workday with normal breaks. He can occasionally climb, balance, and stoop. He can frequently kneel, crouch, and crawl. He can have no concentrated exposure to vibrations and hazards. He can have no exposure to pulmonary irritants. He is limited to simple, routine tasks. He can have occasional interaction with the public, coworkers, and supervisors. He should work in a stable and regular work environment. ORDER - 7 1 Tr. 15. 2 At step four, the ALJ found Plaintiff was unable to perform any of his past 3 relevant work. Tr. 19. At step five, the ALJ found that, considering Plaintiff’s 4 age, education, work experience, RFC, and testimony from the vocational expert, 5 there were jobs that existed in significant numbers in the national economy that 6 Plaintiff could perform, such as production assembler, electronics worker, cannery 7 worker, final assembler, bench hand, and table worker. Tr. 20-21. Therefore, the 8 ALJ concluded Plaintiff was not under a disability, as defined in the Social 9 Security Act, from the alleged onset date of December 28, 2014, though the date of 10 the decision. Id. 11 On May 21, 2019, the Appeals Council denied review of the ALJ’s decision, 12 Tr. 1-6, making the ALJ’s decision the Commissioner’s final decision for purposes 13 of judicial review. See 42 U.S.C. § 1383(c)(3). 14 15 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 16 him disability insurance benefits under Title II and supplemental security income 17 benefits under Title XVI of the Social Security Act. Plaintiff raises the following 18 issues for review: 19 1. Whether the ALJ conducted a proper step-three analysis; and 20 2. Whether the ALJ properly evaluated Plaintiff’s symptom claims. 2 ORDER - 8 1 ECF No. 14 at 2. 2 3 4 DISCUSSION A. Step-Three Plaintiff contends that the ALJ erred by finding that Plaintiff’s chronic heart 5 failure did not meet or equal Listing 4.02. ECF No. 14 at 5-9. At step three, the 6 ALJ must determine if a claimant’s impairments meet or equal a listed impairment. 7 20 C.F.R. §§ 416.920(a)(4)(iii), 404.1520(a)(4)(iii). The Listing of Impairments 8 “describes each of the major body systems impairments [which are considered] 9 severe enough to prevent an individual from doing any gainful activity, regardless 10 of his or her age, education or work experience.” 20 C.F.R. §§ 416.925, 404.1525. 11 “Listed impairments are purposefully set at a high level of severity because ‘the 12 listings were designed to operate as a presumption of disability that makes further 13 inquiry unnecessary.’ ” Kennedy v. Colvin, 758 F.3d 1172, 1176 (9th Cir. 2013) 14 (citing Sullivan v. Zebley, 493 U.S. 521, 532 (1990)). “Listed impairments set such 15 strict standards because they automatically end the five-step inquiry, before 16 residual functional capacity is even considered.” Kennedy, 758 F.3d at 1176. If a 17 claimant meets the listed criteria for disability, he will be found to be disabled. 20 18 C.F.R. §§ 416.920(a)(4)(iii), 404.1520(a)(4)(iii). 19 “To meet a listed impairment, a claimant must establish that he or she meets 20 each characteristic of a listed impairment relevant to his or her claim.” Tackett, 2 ORDER - 9 1 180 F.3d at 1099 (emphasis in original); 20 C.F.R. §§ 416.925(d), 404.1525(d). 2 “To equal a listed impairment, a claimant must establish symptoms, signs and 3 laboratory findings ‘at least equal in severity and duration’ to the characteristics of 4 a relevant listed impairment . . . .” Tackett, 180 F.3d at 1099 (emphasis in original) 5 (quoting 20 C.F.R. § 404.1526(a)); 20 C.F.R. § 416.926(a). “If a claimant suffers 6 from multiple impairments and none of them individually meets or equals a listed 7 impairment, the collective symptoms, signs and laboratory findings of all of the 8 claimant’s impairments will be evaluated to determine whether they meet or equal 9 the characteristics of any relevant listed impairment.” Tackett, 180 F.3d at 1099. 10 However, “ ‘[m]edical equivalence must be based on medical findings,” and “[a] 11 generalized assertion of functional problems is not enough to establish disability at 12 step three.’ ” Id. at 1100 (quoting 20 C.F.R. § 404.1526(a)); 20 C.F.R. § 13 416.926(a). 14 The claimant bears the burden of establishing his impairment (or 15 combination of impairments) meets or equals the criteria of a listed impairments. 16 Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). “An adjudicator’s 17 articulation of the reason(s) why the individual is or is not disabled at a later step in 18 the sequential evaluation process will provide rationale that is sufficient for a 19 subsequent reviewer or court to determine the basis for the finding about medical 20 2 ORDER - 10 1 equivalence at step 3.” Social Security Ruling (SSR) 17-2P, 2017 WL 3928306, at 2 *4 (effective March 27, 2017). 3 Here, the ALJ found that Plaintiff’s impairments and combinations of 4 impairments did not meet or equal any listings, including Listing 4.02. Tr. 13-14. 5 To satisfy Listing 4.02, the claimant must satisfy both the Paragraph A and 6 Paragraph B criteria, while on a regimen of prescribed treatment, and with the 7 symptoms and signs described in Listing 4.00(D)(2) including: cardiomegaly or 8 ventricular dysfunction, demonstrated by medically acceptable imaging; symptoms 9 and signs such as fatigue, weakness, dyspnea, cough, chest discomfort at rest or 10 with activity, cardiac arrhythmias resulting in palpitations, lightheadedness or 11 fainting, peripheral edema, rales, rapid weight gain, ascites, increased jugular 12 venous distention or pressure, or hepatomegaly. 20 C.F.R. Pt. 404, Subpt. P, App. 13 1, Listing 4.02. Paragraph A requires either 1) medically documented systolic 14 failure with left ventricular end diastolic dimensions greater than 6.0 cm or 15 ejection fraction of 30 percent or less during a period of stability (not during an 16 episode of acute heart failure); or 2) diastolic failure, with left ventricular 17 posterior wall plus septal thickness totaling 2.5 cm or greater on imaging, with 18 an enlarged left atrium greater than or equal to 4.5 cm, with normal or elevated 19 ejection fraction during a period of stability (not during an episode of acute heart 20 failure). Id. Paragraph B requires one of the following: 1) Persistent symptoms 2 ORDER - 11 1 of heart failure which very seriously limit the ability to independently initiate, 2 sustain, or complete activities of daily living in an individual for whom a 3 medical consultant, preferably one experienced in the care of patients with 4 cardiovascular disease, has concluded that the performance of an exercise test 5 would present a significant risk to the individual; or 2) Three or more separate 6 episodes of acute congestive heart failure within a consecutive 12-month period, 7 with evidence of fluid retention from clinical and imaging assessments at the 8 time of the episodes, requiring acute extended physician intervention such as 9 hospitalization or emergency room treatment for 12 hours or more, separated by 10 periods of stabilization; or 3) Inability to perform an exercise tolerance test at a 11 workload equivalent to 5 METs or less due to: a. Dyspnea, fatigue, palpitations, 12 or chest discomfort; or b. Three or more consecutive premature ventricular 13 contractions (ventricular tachycardia), or increasing frequency of ventricular 14 ectopy with at least 6 premature ventricular contractions per minute; or c. 15 Decrease of 10 mm Hg or more in systolic pressure below the baseline systolic 16 blood pressure or the preceding systolic pressure measured during exercise due 17 to left ventricular dysfunction, despite an increase in workload; or d. Signs 18 attributable to inadequate cerebral perfusion, such as ataxic gait or mental 19 confusion. Id. 20 2 ORDER - 12 1 The ALJ found Plaintiff did not meet the Paragraph A criteria of the listing 2 because he did not have an ejection fraction below 30 percent during periods of 3 stability; rather, the low ejection fractions only occurred during an episode of 4 acute heart failure, and when Plaintiff became stable, his ejection fractions were 5 well above 30 percent. Tr. 13 (citing Tr. 842, 965). The ALJ did not address the 6 other prong of Paragraph A, regarding whether Plaintiff had left ventricular end 7 diastolic dimensions greater than 6.0 cm. Additionally, the ALJ found Plaintiff 8 did not meet the B criteria of the listing, because his symptoms did not prevent 9 him from completing daily activities, he has not had three or more episodes of 10 heart failure in a 12 month period, and he has not been found unable to perform 11 exercise tolerance tests. Tr. 13-14. 12 Plaintiff contends he may have met the criteria set forth in Listing 13 4.02A(1), and the ALJ erred by not consulting a medical expert to determine if 14 Plaintiff met the listing. ECF No. 14 at 5-9. While Plaintiff does not argue error 15 in the finding he did not have an ejection fraction of 30 percent or less during a 16 period of stability, he contends he may have had systolic failure with left 17 ventricular end diastolic dimensions greater than 6.0 cm, but states the evidence 18 is not able to interpreted by a lay individual and an expert is needed. ECF No. 19 14 at 7. Plaintiff also contends the ALJ erred in not considering his obesity 20 2 ORDER - 13 1 when determining if Plaintiff equaled Listing 4.02. ECF No. 14 at 8. The Court 2 finds the ALJ did not error at step three, and any error would be harmless. 3 First, Plaintiff bears the burden of establishing he meets a listing. Burch, 4 400 F.3d at 683. The evidence does not demonstrate Plaintiff meets the Paragraph 5 A criteria of the listing. While a single decision maker reviewed the evidence at 6 the initial level, on reconsideration, Dr. Hale considered Listing 4.02, but found 7 Plaintiff did not meet a listing and was capable of light work. Tr. 120-23. Dr. 8 Garfield, an examining doctor, also opined Plaintiff was capable of sustaining full9 time work, with some limitations. Tr. 969-70. Although Dr. Garfield did not 10 explicitly address any listings, his finding that Plaintiff can sustain eight-hour 11 workdays is inconsistent with Plaintiff meeting a listing. 12 An electrocardiogram showed Plaintiff had sinus tachycardia with left 13 ventricular hypertrophy, Tr. 102, 614. Plaintiff cites to other treatment records that 14 indicate abnormal findings, but there is no evidence the left ventricular end 15 diastolic dimensions were greater than 6.0 cm. ECF No. 14 at 7 (citing Tr. 420, 16 498, 575, 682, 737, 842-44). As Plaintiff does not set forth evidence 17 demonstrating Plaintiff meets this prong of Paragraph A, and Plaintiff did not 18 challenge the ALJ’s analysis of the other prong, Plaintiff has not met his burden 19 of demonstrating he meets the Paragraph A criteria of Listing 4.02. 20 2 ORDER - 14 1 Second, while Plaintiff contends the ALJ had a duty to consult an expert, 2 ECF No. 14 at 7, the ALJ did not have a duty to further develop the record. The 3 ALJ has an independent duty to fully and fairly develop a record in order to make a 4 fair determination as to disability, even where, as here, the claimant is represented 5 by counsel. Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003); see also 6 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Crane v. Shalala, 76 7 F.3d 251, 255 (9th Cir. 1996). “Ambiguous evidence, or the ALJ’s own finding 8 that the record is inadequate to allow for proper evaluation of the evidence, triggers 9 the ALJ's duty to ‘conduct an appropriate inquiry.’” See Tonapetyan, 242 F.3d at 10 1150 (quoting Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). 11 Here, the ALJ did not find that the record was inadequate to allow for 12 evaluation of the evidence. While Plaintiff argues an additional medical opinion 13 was needed to determine if Plaintiff met a listing because the findings are 14 complex, Plaintiff does not point to any ambiguous evidence. ECF No. 14 at 7. 15 Plaintiff cites to evidence that demonstrates abnormal left ventricular findings, 16 but none indicate Plaintiff’s left ventricular end diastolic dimensions were 17 greater than 6.0 cm, and there are no opinions that indicate Plaintiff meets or 18 equals a listing. Id. As such, the ALJ’s duty to further develop the record was 19 not triggered. 20 2 ORDER - 15 1 Third, any error in the ALJ’s Paragraph A analysis would be harmless 2 because Plaintiff does not challenge the ALJ’s analysis of the Paragraph B 3 criteria. Molina, 674 F.3d at 1115. To meet Listing 4.02, both the Paragraph A 4 and Paragraph B criteria must be met. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing 5 4.02. Plaintiff challenges only the ALJ’s Paragraph A analysis. ECF No. 14 at 56 9. As such, any argument regarding the Paragraph B analysis is waived. See 7 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) 8 (determining Court may decline to address on the merits issues not argued with 9 specificity); Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998) (the Court may not 10 consider on appeal issues not “specifically and distinctly argued” in the party’s 11 opening brief). However, the Court conducted an independent review of the ALJ’s 12 decision and finds the ALJ’s opinion is supported by substantial evidence in the 13 record. 14 There is no evidence that any of the three prongs of Paragraph B are 15 satisfied. A medical consultant did not opine Plaintiff could not perform an 16 exercise test, Plaintiff did not have three or more separate episodes of acute 17 congestive heart failure in a 12-month period, and there is no evidence Plaintiff 18 could not perform an exercise tolerance test at a workload equivalent to five METs 19 or less. See Tr. 19, 577, 683, 713-14. As Plaintiff did not present any evidence 20 2 ORDER - 16 1 that demonstrates that he meets the Paragraph B criteria, any error in the ALJ’s 2 analysis of the Paragraph A criteria would be harmless. 3 Lastly, Plaintiff argues the ALJ erred in not considering whether he equals 4 Listing 4.02, when considering his obesity. ECF No. 14 at 8-9. While the ALJ 5 must consider if the medical findings demonstrate the claimant’s conditions are 6 equal in severity to a listing, general functional problems are not enough to 7 establish disability at step three. Tackett, 180 F.3d at 1100. Further, the claimant 8 bears the burden of establishing his impairments equal the criteria of a listed 9 impairments. Burch, 400 F.3d at 683. 10 The ALJ found Plaintiff’s conditions are not equal to a listing and 11 considered Plaintiff’s obesity in making that determination. Tr. 13-14. Plaintiff 12 argues that his chronic heart failure symptoms, EKG and other test results, and 13 obesity “could equal Listing 4.02.” ECF No. 14 at 8. However, Plaintiff does not 14 set forth any specific argument as to how his impairments are of equal severity to 15 Listing 4.02, when neither Paragraph A nor Paragraph B of the listing are met. 16 In summary, the ALJ did not error in his step three analysis. Further, any 17 error would be harmless. As such, Plaintiff is not entitled to remand on these 18 grounds. 19 20 2 ORDER - 17 1 2 B. Plaintiff’s Symptom Claims Plaintiff faults the ALJ for failing to rely on reasons that were clear and 3 convincing in discrediting his symptom claims. ECF No. 14 at 9-15. An ALJ 4 engages in a two-step analysis to determine whether to discount a claimant’s 5 testimony regarding subjective symptoms. SSR 16–3p, 2016 WL 1119029, at *2. 6 “First, the ALJ must determine whether there is objective medical evidence of an 7 underlying impairment which could reasonably be expected to produce the pain or 8 other symptoms alleged.” Molina, 674 F.3d at 1112 (quotation marks omitted). 9 “The claimant is not required to show that [the claimant’s] impairment could 10 reasonably be expected to cause the severity of the symptom [the claimant] has 11 alleged; [the claimant] need only show that it could reasonably have caused some 12 degree of the symptom.” Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). 13 Second, “[i]f the claimant meets the first test and there is no evidence of 14 malingering, the ALJ can only reject the claimant’s testimony about the severity of 15 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 16 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 17 omitted). General findings are insufficient; rather, the ALJ must identify what 18 symptom claims are being discounted and what evidence undermines these claims. 19 Id. (quoting Lester, 81 F.3d at 834; Thomas v. Barnhart, 278 F.3d 947, 958 (9th 20 Cir. 2002) (requiring the ALJ to sufficiently explain why it discounted claimant’s 2 ORDER - 18 1 symptom claims)). “The clear and convincing [evidence] standard is the most 2 demanding required in Social Security cases.” Garrison v. Colvin, 759 F.3d 995, 3 1015 (9th Cir. 2014) (quoting Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 4 924 (9th Cir. 2002)). 5 Factors to be considered in evaluating the intensity, persistence, and limiting 6 effects of a claimant’s symptoms include: 1) daily activities; 2) the location, 7 duration, frequency, and intensity of pain or other symptoms; 3) factors that 8 precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and 9 side effects of any medication an individual takes or has taken to alleviate pain or 10 other symptoms; 5) treatment, other than medication, an individual receives or has 11 received for relief of pain or other symptoms; 6) any measures other than treatment 12 an individual uses or has used to relieve pain or other symptoms; and 7) any other 13 factors concerning an individual’s functional limitations and restrictions due to 14 pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7; 20 C.F.R. §§ 15 404.1529(c), 416.929 (c). The ALJ is instructed to “consider all of the evidence in 16 an individual’s record,” to “determine how symptoms limit ability to perform 17 work-related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 18 The ALJ found that Plaintiff’s medically determinable impairments could 19 reasonably be expected to cause some of the alleged symptoms, but that Plaintiff’s 20 2 ORDER - 19 1 statements concerning the intensity, persistence, and limiting effects of his 2 symptoms were not entirely consistent with the evidence. Tr. 16. 3 In support of his finding that Plaintiff’s symptom complaints were not 4 entirely consistent with the evidence, the ALJ cited five reasons. Tr. 16-18. 5 Plaintiff challenges only the ALJ’s conclusion that Plaintiff’s activities of daily 6 living were inconsistent with Plaintiff’s symptom complaints. ECF No. 14 at 9-15. 7 Because Plaintiff failed to challenge the other four reasons cited by the ALJ, any 8 challenges are waived, and the Court may decline to review them. See Carmickle, 9 533 F.3d at 1161 n.2. However, upon review, the Court finds that the ALJ 10 provided specific, clear, and convincing reasons, supported by substantial 11 evidence, to support his finding. Tr. 16-18. 12 First, the ALJ found the objective evidence during the relevant period was 13 inconsistent with Plaintiff’s reports of disabling limitations due to his heart 14 condition and mental health conditions. Tr. 16-18. An ALJ may not discredit a 15 claimant’s symptom testimony and deny benefits solely because the degree of the 16 symptoms alleged is not supported by objective medical evidence. Rollins v. 17 Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Bunnell v. Sullivan, 947 F.2d 341, 18 346-47 (9th Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch, 19 400 F.3d at 680. However, the objective medical evidence is a relevant factor, 20 along with the medical source’s information about the claimant’s pain or other 2 ORDER - 20 1 symptoms, in determining the severity of a claimant’s symptoms and their 2 disabling effects. Rollins, 261 F.3d at 857; 20 C.F.R. §§ 404.1529(c)(2), 3 416.929(c)(2). The ALJ noted that as to Plaintiff’s heart condition, EKGs showed 4 Plaintiff’s ejection fraction improved over time. Tr. 17 (citing Tr. 742, 842, 965). 5 At a consultative exam, Plaintiff had a generally normal exam, including no 6 edema, rales, or signs of heart failure, and, no evidence of unexplained fatigability, 7 though he had mildly restricted lumbar and cervical range of motion. Tr. 17 (citing 8 Tr. 965-69). At a January 2017 exam, Plaintiff again had a normal cardiac exam. 9 Tr. 17 (citing Tr. 991). As to his mental impairments, the ALJ noted that although 10 Plaintiff had abnormal behavior, memory, and concentration at a psychological 11 exam, Tr. 975, Plaintiff otherwise had generally normal mental status exams, Tr. 12 17-18 (citing Tr. 896-97, 991), 794 The DSHS facilitator observed on one 13 occasion that Plaintiff had a fair memory and could describe his symptoms in 14 detail, Tr. 334, though on another occasion he relied on his friend to provide 15 details for him, Tr. 368. 16 In summarizing evidence of his fatigue, Plaintiff relies primarily on 17 treatment records outside of the relevant period, and records that re-state Plaintiff’s 18 self-report, rather than objective evidence. ECF No. 14 at 10-11. The ALJ 19 reasonably found the objective evidence is inconsistent with Plaintiff’s symptom 20 complaints. 2 ORDER - 21 1 Second, the ALJ found Plaintiff’s improvement in his conditions was 2 inconsistent with his symptom claims. Tr. 16-17. The effectiveness of treatment is 3 a relevant factor in determining the severity of a claimant’s symptoms. 20 C.F.R. 4 §§ 404.1529(c)(3), 416.929(c)(3); see Warre v. Comm’r of Soc. Sec. Admin., 439 5 F.3d 1001, 1006 (9th Cir. 2006); Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th 6 Cir. 2008) (a favorable response to treatment can undermine a claimant’s 7 complaints of debilitating pain or other severe limitations). As discussed supra, 8 Plaintiff’s ejection fraction improved with time. Tr. 16-17, 742, 842, 965. The 9 ALJ reasoned that the evidence demonstrated that along with improvement in his 10 ejection fraction, Plaintiff overall had gradual improvement in his heart condition 11 and stabilized cardiac findings. Tr. 18. In 2014, Plaintiff’s heart condition 12 required emergency room visits though his symptoms improved, Tr. 596, and 13 hospitalization on his alleged onset date, Tr. 785. Plaintiff underwent left radial 14 coronary angiography and left heart catheterization in December 2014. Tr. 805. 15 Plaintiff did not generally complain of cardiac symptoms at appointments in 2015, 16 Tr. 744, 828, his condition was noted as stable and improving, Tr. 909, he reported 17 not wearing a life vest in case of cardiac rest, though it was recommended, Tr. 744, 18 and he reported engaging in activities including “throwing a log,” walking a dog, 19 and gardening, Tr. 828. Plaintiff did not exhibit objective signs of cardiac 20 2 ORDER - 22 1 symptoms at multiple exams in 2016 and 2017. Tr. 967, 969, 991. Plaintiff’s 2 cardiac symptoms were noted to be well-controlled with medication. Tr. 969. 3 Plaintiff also reported improvement in his mental health symptoms with time 4 and reported his mental health symptoms responded well to medication. Tr. 896, 5 909, 1035, 1041. Though Plaintiff exhibited some mental health symptoms in 6 2016, he later reported his anxiety was significantly improved and he was able to 7 return to work by early 2017. Tr. 18 (citing Tr. 1030, 1034, 1040). Treatment 8 records also indicate he had “notable symptomatic improvement with only one 9 week of sertraline.” Tr. 897. The ALJ reasonably found that Plaintiff’s 10 improvement in his symptoms was inconsistent with his symptom complaints. 11 This was a clear and convincing reason to reject Plaintiff’s symptom claims. 12 Third, the ALJ found Plaintiff’s minimal treatment for his mental health 13 conditions inconsistent with his claims. Tr. 17. An unexplained, or inadequately 14 explained, failure to seek treatment or follow a prescribed course of treatment may 15 be considered when evaluating the claimant’s subjective symptoms. Orn v. Astrue, 16 495 F.3d 625, 638 (9th Cir. 2007). And evidence of a claimant’s self-limitation 17 and lack of motivation to seek treatment are appropriate considerations in 18 determining the credibility of a claimant’s subjective symptom reports. Osenbrock 19 v. Apfel, 240 F.3d 1157, 1165-66 (9th Cir. 2001); Bell-Shier v. Astrue, 312 F. 20 App’x 45, *3 (9th Cir. 2009) (unpublished opinion) (considering why plaintiff was 2 ORDER - 23 1 not seeking treatment). When there is no evidence suggesting that the failure to 2 seek or participate in treatment is attributable to a mental impairment rather than a 3 personal preference, it is reasonable for the ALJ to conclude that the level or 4 frequency of treatment is inconsistent with the alleged severity of complaints. 5 Molina, 674 F.3d at 1113-14. But when the evidence suggests lack of mental 6 health treatment is partly due to a claimant’s mental health condition, it may be 7 inappropriate to consider a claimant’s lack of mental health treatment when 8 evaluating the claimant’s failure to participate in treatment. Nguyen v. Chater, 100 9 F.3d 1462, 1465 (9th Cir. 1996). 10 Although he alleged significant mental health symptoms, including difficulty 11 getting along with others, Plaintiff sought minimal mental health treatment. Tr. 17. 12 He was encouraged to seek psychiatric care, but he did not seek further care during 13 the relevant period. Id. (citing Tr. 1033, 1035, 1041). Plaintiff does not offer any 14 arguments as to why he did not seek additional care. Although the records indicate 15 Plaintiff may have been uninsured for a period of time, he was repeatedly given 16 resources and assistance to obtain insurance and mental health services, and 17 Plaintiff did later obtain insurance coverage yet still did not seek ongoing mental 18 health care. Tr. 571, 750, 1035, 1379. This was a clear and convincing reason to 19 reject Plaintiff’s symptom claims. 20 2 ORDER - 24 1 Fourth, the ALJ found the longitudinal record, including Plaintiff’s 2 activities, did not support Plaintiff’s symptom claims. Tr. 18. Minimal objective 3 evidence is a factor which may be relied upon in discrediting a claimant’s 4 testimony, although it may not be the only factor. See Burch, 400 F.3d at 680. 5 Additionally, the ALJ may consider a claimant’s activities that undermine reported 6 symptoms. Rollins, 261 F.3d at 857. If a claimant can spend a substantial part of 7 the day engaged in pursuits involving the performance of exertional or non8 exertional functions, the ALJ may find these activities inconsistent with the 9 reported disabling symptoms. Fair, 885 F.2d at 603; Molina, 674 F.3d at 1113. 10 “While a claimant need not vegetate in a dark room in order to be eligible for 11 benefits, the ALJ may discount a claimant’s symptom claims when the claimant 12 reports participation in everyday activities indicating capacities that are 13 transferable to a work setting” or when activities “contradict claims of a totally 14 debilitating impairment.” Molina, 674 F.3d at 1112-13. 15 The ALJ reasoned that the longitudinal records show steady improvement in 16 Plaintiff’s heart condition, improvement with medication, and minimal mental 17 health treatment. Tr. 18. Further, during the relevant period, Plaintiff reported 18 lifting weights, bicycling, playing with his dog, gardening, bicycling, and serving 19 as caregiver to his fiancée. Tr. 17-18. The ALJ noted that while Plaintiff testified 20 2 ORDER - 25 1 he could lift only four pounds, the records indicated he enjoyed weightlifting.3 Tr. 2 16, 985. Treatment records support the ALJ’s conclusion as they indicate Plaintiff 3 was walking his dog, bicycling, throwing a log, gardening, and raking in 2015. Tr. 4 828, 896. He reported using shopping and gardening as stress relief in 2016. Tr. 5 1034. In January 2017, it was noted Plaintiff is his fiancée’s caregiver, and he had 6 been lifting “40 pound weights.” Tr. 985. 7 Plaintiff argues the ALJ was not specific enough his findings, and the record 8 lacks enough information about the activities to find they are inconsistent with 9 Plaintiff’s allegations. However, the reported activities are inconsistent with 10 Plaintiff’s allegations of disability, and further, any error is harmless, as the ALJ’s 11 other supported reasons for discounting Plaintiff’s symptom complaints constitute 12 clear and convincing reasons to discount Plaintiff’s symptom claims. Although 13 Plaintiff argues the ALJ’s rejection of Plaintiff’s statements lead to an error at step 14 five, ECF No. 14 at 16, the ALJ's RFC need only include those limitations found 15 16 3 The hearing transcript indicates Plaintiff testified he could lift up to 40 pounds. 17 Tr. 46. However, Plaintiff also testified he was told not to lift over 20 pounds, Tr. 18 46, and he later testified he could lift ten pounds, Tr. 68. As such, it is unclear if 19 there is a typographical error as to Plaintiff’s testimony regarding the maximum 20 weight he could lift being forty or four pounds. 2 ORDER - 26 1 credible and supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 2 1211, 1217 (9th Cir. 2005) (“The hypothetical that the ALJ posed to the VE 3 contained all of the limitations that the ALJ found credible and supported by 4 substantial evidence in the record.”). The hypothetical that ultimately serves as the 5 basis for the ALJ’s determination, i.e., the hypothetical that is predicated on the 6 ALJ’s final RFC assessment, must account for all of the limitations and restrictions 7 of the particular claimant. Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1228 8 (9th Cir. 2009). “If an ALJ’s hypothetical does not reflect all of the claimant’s 9 limitations, then the expert’s testimony has no evidentiary value to support a 10 finding that the claimant can perform jobs in the national economy.” Id. However, 11 the ALJ “is free to accept or reject restrictions in a hypothetical question that are 12 not supported by substantial evidence.” Greger v. Barnhart, 464 F.3d 968, 973 13 (9th Cir. 2006). A claimant fails to establish that a step five determination is 14 flawed by simply restating argument that the ALJ improperly discounted certain 15 evidence, when the record demonstrates the evidence was properly rejected. 16 Stubbs–Danielson v. Astrue, 539 F.3d 1169, 1175–76 (9th Cir. 2008). As the ALJ 17 properly rejected Plaintiff’s statements, the ALJ did not error at step five by not 18 19 20 2 ORDER - 27 1 including additional limitations in the RFC based on Plaintiff’s reported fatigue. 2 Plaintiff is not entitled to remand on these grounds. 3 4 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 5 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 6 Accordingly, IT IS HEREBY ORDERED: 7 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 8 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is 9 GRANTED. 10 3. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 11 The District Court Executive is directed to file this Order, provide copies to 12 counsel, and CLOSE THE FILE. 13 DATED March 27, 2020. 14 s/Mary K. Dimke MARY K. DIMKE UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 2 ORDER - 28
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