Gibbs v. Colvin, No. 4:2014cv05058 - Document 25 (E.D. Wash. 2015)
Court Description: ORDER GRANTING DEFENDANT'S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION. Denying 19 Motion for Summary Judgment; and Granting 21 Motion for Summary Judgment. CASE CLOSED. Signed by Senior Judge Edward F. Shea. (SK, Case Administrator)
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Gibbs v. Colvin Doc. 25 1 2 3 4 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 6 AMANDA M. GIBBS, 7 No.: 4:14-CV-5058-EFS Plaintiff, 8 v. 9 10 ORDER GRANTING DEFENDANT’S SUMMARY-JUDGMENT MOTION AND DENYING PLAINTIFF’S SUMMARYJUDGMENT MOTION CAROLYN COLVIN, Acting Commissioner of Social Security, 11 Defendant. 12 13 Before the Court, without oral argument, are two cross-summary14 judgment motions. Plaintiff Amanda Gibbs appeals the Administrative Law 15 Judge’s (ALJ) denial of benefits. ECF No. 19. Ms. Gibbs contends the ALJ 16 17 erred because she 1) failed to fully accept the opinions of Ms. Gibbs’ 18 treating and examining health care providers, 2) improperly rejected Ms. 19 Gibbs’ subjective complaints and Mr. Gibbs’ lay-witness statements, and 20 3) failed to include all of Ms. Gibbs’ limitations resulting from her 21 fibromyalgia and anxiety into the hypothetical question posed to the 22 vocational expert and therefore the identified jobs are not consistent 23 with Ms. Gibbs’ functional limitations. The Commissioner of Social 24 Security (“Commissioner”) asks the Court to affirm the ALJ’s decision that 25 Ms. Gibbs is capable of performing substantial gainful activity in a field 26 for which a significant number of jobs exist in the national economy. 27 28 After reviewing the record and relevant authority the Court is fully ORDER - 1 Dockets.Justia.com 1 informed. 2 decision 3 Commissioner’s motion. 4 A. For the reasons set forth below, the Court affirms the ALJ’s and therefore denies Ms. Gibbs’ motion and grants the Statement of Facts1 5 Ms. Gibbs is a 35-year-old, mother of three children, who has a high6 school education. In the past, she worked as a prep cook, office manager, 7 automobile title clerk, and bar waitress. In October 2009, Ms. Gibbs 8 9 sought treatment from Robert Whitson, D.O. for panic attacks, which she 10 had experienced for the previous three months. Dr. Whitson diagnosed Ms. 11 Gibbs as suffering from post-traumatic stress disorder (PTSD). Ms. Gibbs 12 continued to be treated by Dr. Whitson through 2012, during which time, 13 Dr. 14 headaches, agoraphobia, and fibromyalgia. In regard to the fibromyalgia 15 Whitson also diagnosed her as suffering from stress, tension diagnosis, Dr. Whitson noted, without an articulated explanation, that 16 Ms. Gibbs had 18 out of the 18 fibromyalgia trigger points in July 2010 17 and April 2011. 18 On December 22, 2010, Farrukh Hasmi, M.D., evaluated Ms. Gibbs and 19 20 diagnosed her as suffering from generalized anxiety disorder and social 21 phobia. Three months later, Ms. Gibbs was evaluated by Joan Davis, M.D., 22 who diagnosed Ms. Gibbs as experiencing panic disorder with agoraphobia 23 and major depressive disorder. Dr. Jones noted that Ms. Gibbs, in her 24 then-current condition, would experience difficulty in maintaining 25 26 1 The facts are only briefly summarized. Detailed facts are 27 contained in the administrative hearing transcript, the ALJ’s decision, 28 the parties’ briefs, and underlying records. ORDER - 2 1 attendance 2 agoraphobia, and difficulty dealing with usual workplace stressors, and 3 also commented that a higher dose of medication may help treat Ms. Gibbs’ 4 in the workplace, secondary to her panic disorder with anxiety and that she could perform simple, repetitive tasks and could 5 interact with supervisors, coworkers, and the public. 6 About a year later in January 2012, Matthew Peterson, M.D. evaluated 7 Ms. Gibbs and reported that her pain was getting progressively worse. He 8 9 found her pain was aggravated with extension and lateral flexion/bilateral 10 rotation. In April 2012, he noted she had tender spots in the spine, 11 shoulders, upper and mid posterior neck, both subclavical areas, lateral 12 elbows, both TM joints, feet, and toes. 13 On May 7, 2012, Dr. Whitson completed a physical medical source 14 statement for Ms. Gibbs. Dr. Whitson found Ms. Gibbs 1) was limited to 2 15 hours sitting, ½ hour standing, and ¾ hour walking at one time; 2) could 16 lift up to 5 pounds frequently and up to 20 pounds occasionally; 3) could 17 never crawl, climb, twist torso, or twist her neck; 4) could seldom 18 maintain a flexed neck position or forward bent position, or work with 19 20 21 hands outstretched; and 5) could reach only occasionally. In the summer and fall of 2012, Ms. Gibbs was evaluated by Dr. John 22 Groner on three occasions. Dr. Groner noted that Ms. Gibbs had tenderness 23 in the upper and lower extremities, clavicles, and shoulders, and that 24 Ms. Gibbs reported her pain was getting worse. Dr. Groner administered an 25 epidural steroid injection in September 2012.2 26 27 28 2 It was later recommended that Ms. Gibbs receive a second steroid injection; the record does not indicate whether she received the second injection. ORDER - 3 In 1 June 2012, Wing C. Chau, M.D., diagnosed Ms. Gibbs with 2 fibromyalgia and psychiatric disorders. Dr. Chau completed a medical 3 source statement, finding Ms. Gibbs was limited to sitting, standing, and 4 walking for one hour at a time, she could frequently reach, handle, and 5 feel, she could occasionally pull, stoop, and kneel, and she could never 6 crouch or crawl. In September 2012, Ed Anderson, MSPT, completed a 7 functional capacity evaluation, in which he found Ms. Gibbs was limited 8 9 to sedentary work up to four hours a day and that she needed accommodations 10 to change positions to minimize aggravation of back symptoms. 11 B. Procedural History 12 Ms. Gibbs applied for disability insurance benefits on January 3, 13 2011, alleging an onset day of July 6, 2009. Benefits were denied initially 14 and also upon reconsideration. Ms. Gibbs requested a hearing, and in May 15 2012, a hearing was held before an ALJ. The ALJ ordered a post-hearing 16 physical consultative evaluation—Dr. Chau’s evaluation. A second hearing 17 was held before the ALJ on December 6, 2012; Ms. Gibbs testified at the 18 hearing. Ms. Gibbs testified that her anxiety caused her not to want to 19 20 leave the house or drive a car, sitting makes her uncomfortable, she is 21 tired due to lack of continuous sleep, she suffers migraines at least 15 22 days out of the month, and her fibromyalgia causes pain in her entire 23 back, neck, shoulders, and hips. 24 In a written decision, the ALJ determined that Ms. Gibbs suffered 25 the following severe impairments: fibromyalgia, anxiety, and agoraphobia. 26 The ALJ determined that due to these severe impairments that Ms. Gibbs 27 could not perform her past relevant work, but found that other jobs were 28 available and that Ms. Gibbs could perform these jobs notwithstanding her ORDER - 4 1 severe impairments. Therefore, the ALJ denied Ms. Gibbs’ benefits. Ms. 2 Gibbs’ request for review with the Appeals Council was denied. 3 4 Ms. Gibbs filed this lawsuit, appealing the ALJ’s decision. Thereafter, the parties filed the instant summary-judgment motions. 5 C. Disability Determination 6 A "disability" is defined as the "inability to engage in any 7 substantial gainful activity by reason of any medically determinable 8 physical or mental impairment which can be expected to result in death or 9 10 which has lasted or can be expected to last for a continuous period of 11 not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). 12 The decision-maker uses a five-step sequential evaluation process to 13 determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. 14 Step one assesses whether the claimant is engaged in substantial 15 gainful activities during the relevant period. If she is, benefits are 16 denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If she is not, the decision- 17 maker proceeds to step two. 18 Step two assesses whether the claimant has a medically severe 19 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(c), 20 416.920(c). If the 22 combination of impairments, 23 impairment is severe, the evaluation proceeds to the third step. 21 claimant does the not have disability a severe claim is impairment denied. If or the 24 Step three compares the claimant's impairment with a number of listed 25 impairments acknowledged by the Commissioner to be so severe as to preclude 26 substantial gainful activity. 27 20 C.F.R. §§ 404.1520(d), 404 Subpt. P App. 1, 416.920(d). If the impairment meets or equals one of the listed 28 impairments, the claimant is conclusively presumed to be disabled. If the ORDER - 5 1 impairment does not meet or equal one of the listed impairments, the 2 evaluation proceeds to the fourth step. 3 4 Step four assesses whether the impairment prevents the claimant from performing work she has performed in the past. This includes determining 5 the claimant’s residual functional capacity. 20 C.F.R. §§ 404.1520(e), 6 416.920(e). If the claimant is able to perform her previous work, she is 7 not disabled. If the claimant cannot perform this work, the evaluation 8 9 proceeds to the fifth step. 10 Step five, the final step, assesses whether the claimant can perform 11 other work in the national economy in view of her age, education, and work 12 experience. 20 C.F.R. §§ 404.1520(f), 416.920(f); see Bowen v. Yuckert, 13 482 U.S. 137 (1987). 14 15 The burden of proof shifts during this sequential disability analysis. The claimant has the initial burden of establishing a prima 16 facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 17 F.2d 920, 921 (9th Cir. 1971). The claimant meets this burden if she 18 establishes that a physical or mental impairment prevents her from 19 20 engaging in her previous occupation. The burden then shifts to the 21 Commissioner to show 1) the claimant can perform other substantial gainful 22 activity, and 2) that a "significant number of jobs exist in the national 23 economy" which the claimant can perform. Kail v. Heckler, 722 F.2d 1496, 24 1498 (9th Cir. 1984). A claimant is disabled only if her impairments are 25 of such severity that she is not only unable to do her previous work but 26 cannot, considering her age, education, and work experiences, engage in 27 any other substantial gainful work which exists in the national economy. 28 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). ORDER - 6 1 D. Standard of Review 2 On review, the court considers the record as a whole, not just the 3 evidence supporting the ALJ’s decision. Weetman v. Sullivan, 877 F.2d 20, 4 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 5 1980)). The court upholds the ALJ’s determination that the claimant is 6 not disabled if the ALJ applied the proper legal standards and there is 7 substantial evidence in the record as a whole to support the decision. 8 9 Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 10 405(g)); Brawner v. Sec’y of Health & Human Servs., 839 F.2d 432, 433 (9th 11 Cir. 1987) (recognizing that a decision supported by substantial evidence 12 will be set aside if the proper legal standards were not applied in 13 weighing the evidence and making the decision). Substantial evidence is 14 more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 15 n.10 (9th Cir. 1975), but less than a preponderance, McAllister v. 16 Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989); Desrosiers v. Sec’y of 17 Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). "It means such 18 relevant evidence as a reasonable mind might accept as adequate to support 19 20 a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations 21 omitted). "[S]uch inferences and conclusions as the [ALJ] may reasonably 22 draw from the evidence" will also be upheld. 23 289, 293 (9th Cir. 1965). If the evidence supports more than one rational 24 interpretation, 25 Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 26 E. the court must uphold the Mark v. Celebrezze, 348 F.2d ALJ’s decision. Allen v. Analysis 27 The Court takes each of Ms. Gibbs’ challenges to the ALJ’s decision 28 in turn. ORDER - 7 1 1. 2 Ms. Gibbs argues the ALJ failed to specifically identify 1) what 3 testimony of Ms. Gibbs he found incredible regarding the severity of her 4 Ms. Gibbs’ Credibility symptoms, and 2) what evidence the ALJ relied on to reject Ms. Gibbs’ 5 subjective complaints. 6 A two-step analysis is used by the ALJ to assess whether a claimant's 7 testimony regarding subjective pain or symptoms is credible. Garrison v. 8 9 Colvin, 759 F.3d 995, 1014 (9th Cir. 2014). Step one requires the ALJ to 10 determine whether the claimant presented objective medical evidence of an 11 impairment, which could reasonably be expected to produce some degree of 12 the pain or other symptoms alleged. Lingenfelter v. Astrue, 504 F.3d 1028, 13 1035–36 (9th Cir. 2007); Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 14 1996). Objective medical evidence of the pain or fatigue, or the severity 15 thereof, need not be provided by the claimant. Garrison, 759 F.3d at 1014. 16 If the claimant satisfies the first step of this analysis, and there is 17 no evidence of malingering, the ALJ must accept the claimant's testimony 18 about the severity of her symptoms unless the ALJ provides specific, 19 20 clear, and convincing testimony. reasons Id. for 21 severity 22 rejecting (recognizing that the the claimant’s symptom- clear-and-convincing standard is a demanding standard). 23 In pertinent part, the ALJ stated: 24 After careful consideration of the evidence, the undersigned finds the claimant’s medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment. 25 26 27 28 ORDER - 8 1 ECF No. 15 at 24. Thereafter, for the next four pages, the ALJ summarizes 2 the medical records and compares them to Ms. Gibbs’ assessments regarding 3 the severity of her pain, ultimately concluding, “the claimant has not 4 presented objective medical evidence that would support physical or 5 psychological limitation greater than that accounted for in the claimant’s 6 residual functional capacity assessment.” ECF No. 15 at 28. The Court 7 finds the ALJ’s analysis sets forth specific, clear, and convincing 8 9 reasons for rejecting Ms. Gibbs’ symptom-severity testimony, including 10 that Ms. Gibbs’ calm presentation at appointments was inconsistent with 11 her reports of the limitations imposed by her pain and anxiety, that Ms. 12 Gibbs failed to react in pain to Dr. Chau’s palpation over the typical 13 fibromyalgia points during his consultative examination, and that Ms. 14 Gibbs failed to pursue recommended treatment options such as counseling. 15 The ALJ’s analysis comports with Social Security Ruling 12-2p, which 16 acknowledges that fibromyalgia is a complex medical condition for which 17 there is often no objective test to support a diagnosis, but then proceeds 18 to find, based on substantial evidence in the medical records, that Ms. 19 20 Gibbs’ impairments did not limit her to the extent she claimed. 21 2. 22 Ms. Gibbs contends the ALJ failed to explain why she rejected Brenton 23 Gibbs’ lay statements regarding Ms. Gibb’s panic attacks and anxiety while 24 driving and in the public. In his 2011 Function Report regarding Ms. 25 Gibbs, Mr. Gibbs acknowledged that his wife got the two older kids ready 26 Brenton Gibbs for school and cared for the youngest child at home, she cleaned the 27 house, did laundry, made dinner—tasks which took her a couple of hours a 28 day, manages the household finances, watches television or reads for three ORDER - 9 1 to four hours a day, and that on at least two occasions she has gotten 2 sick when traveling within the community due to her anxiety. 3 4 5 6 7 In regard to Mr. Gibbs, the ALJ wrote: The undersigned has also considered the 3rd-party Function Report from the claimant’s husband, Brenton Gibbs (Exhibit 5E), but finds that it merely recites the claimant’s allegations of limitation. As the undersigned has found that these allegations lack credibility to the extent they are inconsistent with the residual functional capacity outlined above, any recitation of those allegations likewise lacks credibility. 8 9 ECF No. 15 at 29. The Court finds no error in the ALJ’s acceptance of Mr. 10 Gibbs’ observations and reports that were consistent with the determined 11 residual 12 inconsistent determined residual functional capacity. See Bayliss v. 13 Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (requiring an ALJ to “only 14 give germane reasons for discrediting the testimony of lay witnesses” and 15 functional capacity, and rejection of those that were that “[i]nconsistency with medical evidence is one such reason”); Molina 16 v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012). The ALJ properly compared 17 Mr. Gibbs’ comments regarding Ms. Gibbs’ anxiety and panic attacks while 18 driving and outside the home, to Ms. Gibbs’ calm appearance and mannerisms 19 20 while at her medical appointments, as reflected in the medical records. 21 3. 22 Ms. Gibbs contends the ALJ improperly rejected the opinions of Dr. 23 Whitson, Dr. Davis, and Mr. Anderson in regard to the severity of her 24 impairments and the impact they have on her ability to work. 25 26 Treating Opinions In regard to Dr. Whitson, Ms. Gibbs highlights that he noted that Ms. Gibbs was limited to sedentary work and had many postural limitations 27 due to fibromyalgia and, therefore, the ALJ erred in finding that the 28 record did not contain diagnostic evidence identifying a disease that ORDER - 10 1 explained Ms. Gibbs’ debilitating symptoms. Upon review of Dr. Whitson’s 2 records and the ALJ’s decision, the Court finds the ALJ sufficiently 3 explained 4 why she concluded that Dr. Whitson’s physical-limitation conclusions were based on Ms. Gibbs’ subjective statements rather than 5 objective evidence. The ALJ properly discounted Dr. Whitson’s opinion 6 regarding the severity and functional effects of Ms. Gibbs’ fibromyalgia 7 because the ALJ found Ms. Gibbs incredible as to the severity of her 8 9 impairments, and this decision was based on substantial evidence in the 10 medical records. The ALJ also recognized that Dr. Whitson failed to provide 11 any 12 process 13 symptoms” and “there is little in the way of narrative explanation . . . 14 of the claimant’s symptomology.” ECF No. 15 at 28. See Tonapetyan v. 15 “supporting to objective explain or diagnostic support the evidence identifying claimant’s alleged a disease debilitating Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (affirming the ALJ’s rejection 16 of the examining physician’s opinion, which was based merely on the 17 claimant’s subjective complaints—complaints that were appropriately 18 discounted by the ALJ). 19 Ms. Gibbs also argues the ALJ improperly rejected Dr. Davis’ opinions 20 21 that 22 workplace due to her panic disorder with agoraphobia and coping with usual 23 workplace stressors. After reviewing the record, the Court finds no error 24 in the ALJ’s decision in this regard. Dr. Davis concluded that Ms. Gibbs 25 in 26 Ms. her Gibbs would “current attendance in have difficulty condition” the workplace would maintaining experience secondary to attendance “difficulty her panic in the maintaining disorder with 27 agoraphobia” and “difficulty dealing with usual workplace stressors,” but 28 Dr. Davis also noted that Ms. Gibbs’ “depressive disorder could be ORDER - 11 1 successfully treated if she was treated with a different medication and 2 that Ms. Gibbs “could interact with supervisors as well as coworkers and 3 members of the public.” ECF No. 15 at 279; see Turner v. Comm’r of Social 4 Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (recognizing that an individual’s 5 difficulties do not always equate to a residual function limitation). In 6 sum, the ALJ fully considered Dr. Davis’ findings, and the ALJ’s final 7 determination is consistent with Dr. Davis’ findings. 8 Ms. Gibbs also contends the ALJ improperly rejected Mr. Anderson’s 9 10 opinion that Ms. Gibbs was not limited to sedentary work up to four hours 11 a day; the Commissioner agrees that because Mr. Anderson was an “other 12 source” of medical information that the ALJ improperly failed to consider 13 his information. The ALJ’s determination that Mr. Anderson, who is a 14 physical therapist, was not an acceptable medical source was erroneous as 15 physical therapists are “other sources.” 20 C.F.R. § 404.1513(d); Social 16 Security Ruling 06-03p. However, this error was harmless. The ALJ’s 17 determination that Ms. Gibbs’ subjective reports of the severity of her 18 impairments was incredible, impacts Mr. Anderson’s functional assessment, 19 20 21 which was based on Ms. Gibbs’ own report of the extent that her fibromyalgia caused her pain and affected her everyday activities. 22 4. 23 Finally, Ms. Gibbs submits the ALJ failed to include all of Ms. 24 Gibbs’ limitations as recognized and determined by Dr. Chau, Dr. Whitson, 25 and Dr. Davis in the hypothetical posed to the vocational expert. As 26 Step Five explained above, the Court concludes the ALJ fully considered each of the 27 medical 28 ORDER - 12 personnel’s observations and opinions and appropriately 1 discredited those that were supported merely by Ms. Gibbs’ personal 2 account of the severity of her symptoms. 3 4 In addition, Ms. Gibbs posits that the ALJ erred because the jobs identified by the vocational expert are not consistent with the ALJ’s 5 hypothetical and/or Dictionary of Occupational Titles. In the hypothetical 6 provided to the vocational expert, the ALJ did not identify a specific 7 exertion level, instead identifying specific limitations, including 8 9 sitting for up to two hours at a time for six hours total, standing for 10 up to two hours at a time for two hours total, walking for ¾ hour at a 11 time for up to ¾ hour total, and the ability to use upper and lower 12 extremities for pushing and pulling, including the operation of hand and 13 foot controls. The vocational expert concluded that Ms. Gibbs could 14 perform “sedentary and light work, where there would be an allowance for 15 a sit/stand option.” ECF No. 15 at 79. With the identified allowance for 16 the sit/stand option, the Court finds the three light, unskilled jobs 17 identified by the vocational expert are consistent with the hypothetical 18 and the residual functional capacity and are not inconsistent with the 19 20 21 Dictionary of Occupational Titles. E. Conclusion 22 The ALJ applied the correct legal standards and there is substantial 23 evidence in the record to support the ALJ’s decision. For the above-given 24 reasons, IT IS HEREBY ORDERED: 25 1. Ms. Gibbs’ Motion for Summary Judgment, ECF No. 19, is DENIED. 26 2. The Commissioner’s Motion for Summary Judgment, ECF No. 21, is 27 GRANTED. 28 3. ORDER - 13 JUDGMENT is to be entered in the Commissioner’s favor. 1 4. 2 IT IS SO ORDERED. 3 4 The case shall be CLOSED. The Clerk’s Office is directed to enter this Order and provide copies to counsel. DATED this 19th day of October 2015. 5 6 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Q:\EFS\Civil\2014\5058.social.sec.lc1.docx ORDER - 14
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