Bailey v. Kijakazi, No. 2:2022cv00151 - Document 15 (E.D. Wash. 2023)

Court Description: ORDER DENYING 13 JUDGMENT FOR PLAINTIFF AND GRANTING 14 JUDGMENT FOR DEFENDANT. Case is closed. Signed by Judge Thomas O. Rice. (AY, Case Administrator)

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Bailey v. Kijakazi Doc. 15 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Apr 14, 2023 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 ANGELIA B., NO: 2:22-CV-151-TOR Plaintiff, 8 v. 9 10 ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT KILOLO KIJAKAZI, Acting Commissioner of Social Security, 11 Defendant. 12 13 BEFORE THE COURT are the parties’ briefs seeking judgment in their 14 favor. ECF Nos. 13, 14. The issues were submitted for consideration without oral 15 argument. The Court has reviewed the administrative record and the parties’ 16 completed briefing and is fully informed. For the reasons discussed below, 17 Plaintiff’s Opening Brief (ECF No. 13) is DENIED, and Defendant’s Brief (ECF 18 No. 14) is GRANTED. 19 // 20 // ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 1 Dockets.Justia.com 1 2 3 4 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 5 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is 6 limited: the Commissioner’s decision will be disturbed “only if it is not supported 7 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 8 1158 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 9 relevant evidence that “a reasonable mind might accept as adequate to support a 10 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 11 substantial evidence equates to “more than a mere scintilla[,] but less than a 12 preponderance.” Id. In determining whether this standard has been satisfied, a 13 reviewing court must consider the entire record as a whole rather than searching 14 for supporting evidence in isolation. Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the Commissioner. If the evidence in the record “is 17 susceptible to more than one rational interpretation, [the court] must uphold the 18 ALJ’s findings if they are supported by inferences reasonably drawn from the 19 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citation omitted). 20 Further, a district court “may not reverse an ALJ’s decision on account of an error ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 2 1 that is harmless.” Id. An error is harmless “where it is inconsequential to the 2 [ALJ’s] ultimate nondisability determination.” Id. at 1115 (quotation and citation 3 omitted). The party appealing the ALJ’s decision generally bears the burden of 4 establishing that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 5 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 A claimant must satisfy two conditions to be considered “disabled” within 7 the meaning of the Social Security Act. First, the claimant must be “unable to 8 engage in any substantial gainful activity by reason of any medically determinable 9 physical or mental impairment which can be expected to result in death or which 10 has lasted or can be expected to last for a continuous period of not less than twelve 11 months.” 42 U.S.C. § 423(d)(1)(A). Second, the claimant’s impairment must be 12 “of such severity that he is not only unable to do his previous work[,] but cannot, 13 considering his age, education, and work experience, engage in any other kind of 14 substantial gainful work which exists in the national economy.” 42 U.S.C. 15 § 423(d)(2)(A). 16 The Commissioner has established a five-step sequential analysis to 17 determine whether a claimant satisfies the above criteria. See 20 C.F.R. § 18 404.1520(a)(4)(i)–(v). At step one, the Commissioner considers the claimant’s 19 work activity. 20 C.F.R. § 404.1520(a)(4)(i). If the claimant is engaged in 20 “substantial gainful activity,” the Commissioner must find that the claimant is not ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 3 1 2 disabled. 20 C.F.R. § 404.1520(b). If the claimant is not engaged in substantial gainful activities, the analysis 3 proceeds to step two. At this step, the Commissioner considers the severity of the 4 claimant’s impairment. 20 C.F.R. § 404.1520(a)(4)(ii). If the claimant suffers 5 from “any impairment or combination of impairments which significantly limits 6 [his or her] physical or mental ability to do basic work activities,” the analysis 7 proceeds to step three. 20 C.F.R. § 404.1520(c). If the claimant’s impairment 8 does not satisfy this severity threshold, however, the Commissioner must find that 9 the claimant is not disabled. Id. 10 At step three, the Commissioner compares the claimant’s impairment to 11 several impairments recognized by the Commissioner to be so severe as to 12 preclude a person from engaging in substantial gainful activity. 20 C.F.R. § 13 404.1520(a)(4)(iii). If the impairment is as severe, or more severe than one of the 14 enumerated impairments, the Commissioner must find the claimant disabled and 15 award benefits. 20 C.F.R. § 404.1520(d). 16 If the severity of the claimant’s impairment does meet or exceed the severity 17 of the enumerated impairments, the Commissioner must pause to assess the 18 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 19 defined generally as the claimant’s ability to perform physical and mental work 20 activities on a sustained basis despite his or her limitations (20 C.F.R. § ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 4 1 2 404.1545(a)(1)), is relevant to both the fourth and fifth steps of the analysis. At step four, the Commissioner considers whether, in view of the claimant’s 3 RFC, the claimant is capable of performing work that he or she has performed in 4 the past (“past relevant work”). 20 C.F.R. § 404.1520(a)(4)(iv). If the claimant is 5 capable of performing past relevant work, the Commissioner must find that the 6 claimant is not disabled. 20 C.F.R. § 404.1520(f). If the claimant is incapable of 7 performing such work, the analysis proceeds to step five. 8 At step five, the Commissioner considers whether, in view of the claimant’s 9 RFC, the claimant is capable of performing other work in the national economy. 10 20 C.F.R. § 404.1520(a)(4)(v). In making this determination, the Commissioner 11 must also consider vocational factors such as the claimant’s age, education and 12 work experience. Id. If the claimant is capable of adjusting to other work, the 13 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 14 404.1520(g)(1). If the claimant is not capable of adjusting to other work, the 15 analysis concludes with a finding that the claimant is disabled and is therefore 16 entitled to benefits. Id. 17 The claimant bears the burden of proof at steps one through four above. 18 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). If the 19 analysis proceeds to step five, the burden shifts to the Commissioner to establish 20 that (1) the claimant is capable of performing other work; and (2) such work ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 5 1 “exists in significant numbers in the national economy.” 20 C.F.R. § 416.1560(c); 2 Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 2012). 3 4 ALJ’S FINDINGS Plaintiff applied for Title II disability and disability insurance benefits on 5 October 15, 2019, alleging disability beginning October 1, 2019. Tr. 15. The claim 6 was denied initially on April 13, 2020, and upon reconsideration on July 30, 2020. 7 Id. Plaintiff requested a hearing. Id. A telephonic hearing was held before an 8 administrative law judge (“ALJ”) on May 17, 2021. Id. On June 2, 2021, the ALJ 9 denied Plaintiff’s claim. Tr. 15-25. The Appeals Council denied review on June 6, 10 11 2022. Tr. 1-3. The ALJ found Plaintiff met the insured status requirements of the Social 12 Security Act through December 31, 2025. Tr. 17. At step one, the ALJ found that 13 Plaintiff had not engaged in substantial gainful activity since October 1, 2019, the 14 amended alleged onset date. Id. At step two, the ALJ found that Plaintiff had the 15 following severe impairments: lumbar degenerative disc disease; meralgia 16 paresthetica, left leg; degenerative joint disease, left hip, status post total hip 17 replacement; degenerative joint disease, right knee; and obesity. Tr. 18. At step 18 three, the ALJ found Plaintiff did not have an impairment or combination of 19 impairments that meets or medically equals the severity of one of the listed 20 ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 6 1 impairments. Tr. 19. The ALJ then determined Plaintiff had the residual 2 functioning capacity to perform a full range of sedentary work except: 3 4 5 she can stand and walk in combination for 30 minutes at a time, for 2 hours total in an 8-hour workday; she can never climb ladders, ropes, or scaffolds; she can occasionally balance, climb ramps and stairs, stoop, kneel, crouch, and crawl; she cannot have concentrated exposure to extreme cold or vibration; and she can have no exposure to workplace hazards (e.g., unprotected heights, and moving mechanical parts). 6 7 8 Tr. 20. At step four, the ALJ found Plaintiff could not perform past relevant work. 9 Tr. 23. At step five, the ALJ determined that before May 17, 2021, considering the 10 claimant’s age, education, work experience, and residual functional capacity, there 11 were jobs that existed in significant numbers in the national economy that the 12 Plaintiff could have performed. Tr. 23. The vocational expert testified that given 13 all of these factors the individual would be able to perform the requirements of 14 sedentary, SVP 2, unskilled representative occupations such as Table Bench 15 Worker, DOT 739.687-182, approximately 31,000 jobs exist nationally; Wafer 16 Breaker, DOT 726.687-046, approximately 23,000 jobs exist nationally; and 17 Taper, DOT 017.684-010, approximately 15,600 jobs exist nationally. Tr. 24. 18 Based on the vocational expert’s testimony, the ALJ determined that Plaintiff was 19 not under a disability from October 1, 2019 through May 17, 2021. Tr. 24. The 20 ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 7 1 ALJ then found Plaintiff disabled on May 17, 2021 through the date of his decision 2 and awarded benefits. Tr. 24-25. 3 ISSUES 4 Plaintiff seeks judicial review of the ALJ’s final decision denying her 5 disability insurance benefits under Title II of the Social Security Act for this closed 6 period of time, October 1, 2019 through May 17, 2021. In essence, Plaintiff raises 7 the following issues: 8 9 10 11 12 13 14 15 16 1. Whether the ALJ provided adequate reasons for discounting Plaintiff’s statement about the severity of her symptoms and limitations; and 2. Whether the ALJ reasonably considered the opinion of Lynne Jahnke, M.D. ECF No. 19 at 2. DISCUSSION A. Plaintiff’s Claimed Symptoms and Limitations Plaintiff contends the ALJ failed to rely on clear and convincing reasons to discredit Plaintiff’s subjective symptom testimony. ECF No. 13 at 4-12 An ALJ engages in a two-step analysis to determine whether to discount a 17 claimant’s testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 18 1119029, at *2. “First, the ALJ must determine whether there is ‘objective 19 medical evidence of an underlying impairment which could reasonably be 20 expected to produce the pain or other symptoms alleged.’” Molina, 674 F.3d at ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 8 1 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)). “The 2 claimant is not required to show that [the claimant’s] impairment ‘could reasonably 3 be expected to cause the severity of the symptom [the claimant] has alleged; [the 4 claimant] need only show that it could reasonably have caused some degree of the 5 symptom.’” Vasquez, 572 F.3d at 591 (quoting Lingenfelter v. Astrue, 504 F.3d 6 1028, 1035–36 (9th Cir. 2007)). 7 Second, “[i]f the claimant meets the first test and there is no evidence of 8 malingering, the ALJ can only reject the claimant’s testimony about the severity of 9 the symptoms if [the ALJ] gives ‘specific, clear and convincing reasons’ for the 10 rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 11 omitted). General findings are insufficient; rather, the ALJ must identify what 12 symptom claims are being discounted and what evidence undermines these claims. 13 Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas v. 14 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 15 explain why he or she discounted claimant’s symptom claims). “The clear and 16 convincing [evidence] standard is the most demanding required in Social Security 17 cases.” Garrison v. Colvin, 759 F.3d 995, 1015 (9th Cir. 2014) (quoting Moore v. 18 Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 19 20 Factors to be considered in evaluating the intensity, persistence, and limiting effects of a claimant’s symptoms include: (1) daily activities; (2) the location, ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 9 1 duration, frequency, and intensity of pain or other symptoms; (3) factors that 2 precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and 3 side effects of any medication an individual takes or has taken to alleviate pain or 4 other symptoms; (5) treatment, other than medication, an individual receives or has 5 received for relief of pain or other symptoms; (6) any measures other than 6 treatment an individual uses or has used to relieve pain or other symptoms; and (7) 7 any other factors concerning an individual’s functional limitations and restrictions 8 due to pain or other symptoms. SSR 16-3p, 2016 WL 1119029, at *7–8; 20 C.F.R. 9 § 404.1529(c). The ALJ is instructed to “consider all of the evidence in an 10 individual’s record,” “to determine how symptoms limit ability to perform work- 11 related activities.” SSR 16-3p, 2016 WL 1119029, at *2. 12 The ALJ found Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause some of the alleged symptoms; however, the 14 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 15 these symptoms are not fully supported the evidence. Tr. 21. In arriving at this 16 conclusion, the ALJ considered several of the factors described above. 17 The ALJ found the objective medical evidence did not support disability 18 before the established onset date. Tr. 21. The ALJ recounted the objective 19 medical evidence, including objective imaging, MRIs, X-rays, Venous Doppler 20 ultrasounds, and physical exams. Id. This evidence showed no acute findings, ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 10 1 moderate abnormalities without nerve room compression, no distress, normal gait 2 with minor exception, ambulate without assistive device, normal reflexes, and 3 overall negative straight leg raising tests. Id. Additionally, Plaintiff reported great 4 pain relief with treatment and that she was very pleased with her current 5 conditions. Plaintiff repeatedly reported that standing/walking aggravates her pain, 6 but that sitting alleviates it. Id. 7 While an ALJ may not discredit a claimant’s symptom testimony and deny 8 benefits solely because the degree of the symptoms alleged is not supported by 9 objective medical evidence, such objective medical evidence is still a relevant 10 factor. Rollins, 261 F.3d at 857; Bunnell v. Sullivan, 947 F.2d 341, 346–47 (9th 11 Cir. 1991); Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989); Burch v. Barnhart, 12 400 F.3d 676, 680 (9th Cir. 2005). 13 The ALJ additionally found that Plaintiff’s high-functioning activities of 14 daily living showed she could perform a fulltime sedentary job. Tr. 21. Plaintiff 15 reported she works 4.5 hours per day [doing a light-exertion job that requires her to 16 be on her feet throughout her shifts], picks up her kitchen, vacuums, provides care 17 for her son, takes care of the family’s pets, cooks simple foods, cleans the house, 18 takes care of her laundry, goes out alone, drives, shops in stores, manages her own 19 finances, etc. Id. While the Ninth Circuit has cautioned against reliance on 20 “certain daily activities, such as grocery shopping, driving a car, or limited walking ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 11 1 for exercise” to discount a plaintiff’s symptom allegations, the ALJ here 2 considered other factors and found additional reasons for discrediting Plaintiff’s 3 subjective symptom testimony. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 4 2001). 5 When the ALJ asked Plaintiff at hearing whether she could perform 6 sedentary work, she responded that she was not sure. Tr. 21. When her 7 representative returned to the subject and prompted the claimant with references to 8 previous conversations they had, Plaintiff responded that she did not think she 9 could do sedentary work. The ALJ found that Plaintiff’s equivocal response 10 followed closely by conflicting testimony when responding to her representative 11 does not carry the claimant’s burden of proof. Id. at 21-22. This is also 12 contradictory to her working at near-substantial gainful activity levels performing 13 light work, not sedentary work. 14 “[T]he key question is not whether there is substantial evidence that could 15 support a finding of disability, but whether there is substantial evidence to support 16 the Commissioner’s actual finding.” Jamerson v. Chater, 112 F.3d 1064, 1067 17 (9th Cir. 1997). The Court finds the ALJ provided clear and convincing reasons 18 supported by substantial evidence in the record to discount Plaintiff’s subjective 19 symptom testimony. 20 ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 12 1 2 B. Medical Opinion of Lynne Jahnke, M.D. Plaintiff argues that the ALJ mischaracterized the medical record, thus 3 obviating Dr. Jahnke’s opinion that Plaintiff did not meet Listing 11.14 when she 4 learned that sitting mitigated Plaintiff’s symptoms. From this, Plaintiff concludes 5 that the ALJ ignored the entirety of the medical evidence that confirmed Plaintiff 6 continued to have problems when in a seated position. 7 There are three types of physicians: “(1) those who treat the claimant 8 (treating physicians); (2) those who examine but do not treat the claimant 9 (examining physicians); and (3) those who neither examine nor treat the claimant 10 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 11 Holohan v. Massanari, 246 F.3d 1195, 1201–02 (9th Cir. 2001) (citations omitted). 12 Generally, the opinion of a treating physician carries more weight than the opinion 13 of an examining physician, and the opinion of an examining physician carries more 14 weight than the opinion of a reviewing physician. Id. In addition, the 15 Commissioner’s regulations give more weight to opinions that are explained than 16 to opinions that are not, and to the opinions of specialists on matters relating to 17 their area of expertise over the opinions of non-specialists. Id. (citations omitted). 18 The opinion of a nonexamining physician may serve as substantial evidence 19 if it is supported by other independent evidence in the record. Andrews v. Shalala, 20 53 F.3d 1035, 1041 (9th Cir. 1995). ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 13 1 Medical expert Lynne Jahnke, M.D. testified that “the primary problem 2 being on her feet…has made her symptoms worse,” but that, due to her obesity, 3 sitting might aggravate her symptoms as well. The ALJ then informed Dr. Jahnke 4 of numerous citations in the record that sitting actually alleviated Plaintiff’s 5 symptoms. Dr. Jahnke responded: 6 7 8 9 Well, I would say it does [change my opinion] and in that I didn’t make note of that. I don’t know why I didn’t make note of that. I think perhaps because I was focusing on all those different techniques they were trying and the – her unusual description of her discomfort which isn’t what we clearly see in patients with the degenerative disc disease. But if that were true, then a sedentary level of activity could be appropriate. 10 Tr. 160. On those facts, Dr. Jahnke opined that Plaintiff did not meet Listing 11 11.14, and Plaintiff would be capable of sedentary work. Id. The ALJ found Dr. 12 Jahnke’s opinion persuasive and incorporated her opinion into the RFC. 13 Plaintiff does not cite a medical opinion regarding quantifiable limitations 14 related to her ability to sit. The ALJ cited multiple instances where sitting was 15 shown to alleviate Plaintiff’s symptoms, instances Dr. Jahnke initially overlooked. 16 Some of the records Plaintiff cites are outside the period of time at issue and others 17 are inconclusive and vague. 18 While Plaintiff clearly takes a differing view of the medical record, 19 ultimately it is the ALJ’s responsibility to assess that individual’s RFC. 20 C.F.R. 20 § 404.1546(c). This Court does not make findings of fact; instead, “[w]here ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 14 1 evidence is susceptible to more than one rational interpretation, it is the ALJ’s 2 conclusion that must be upheld.” Woods v. Kijakazi, 32 F.4th 785, 788 (9th Cir. 3 2022) (citation omitted). 4 CONCLUSION 5 Having reviewed the record and the ALJ’s findings, this Court concludes 6 that the ALJ’s decision is supported by substantial evidence and free of harmful 7 legal error. 8 ACCORDINGLY, IT IS HEREBY ORDERED: 9 1. Plaintiff’s Opening Brief, ECF No. 13 is DENIED. 10 2. Defendant’s Brief, ECF No. 14, is GRANTED. 11 The District Court Executive is directed to file this Order, enter Judgment 12 13 for Defendant, provide copies to counsel, and CLOSE this file. DATED April 14, 2023. 14 15 THOMAS O. RICE United States District Judge 16 17 18 19 20 ORDER DENYING JUDGMENT FOR PLAINTIFF AND GRANTING JUDGMENT FOR DEFENDANT ~ 15

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