Bell v. Commissioner of Social Security, No. 4:2017cv05104 - Document 21 (E.D. Wash. 2018)
Court Description: ORDER Granting 20 Defendant's Motion for Summary Judgment; denying 12 Plaintiff's Motion for Summary Judgment. Signed by Judge Stanley A Bastian. (PL, Case Administrator)
Download PDF
<![CDATA[
Bell v. Commissioner of Social Security Doc. 21 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Oct 02, 2018 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 NO. 4:17-CV-05104-SAB 10 MARJORIE B., 11 Plaintiff, 12 v. ORDER GRANTING 13 COMMISSIONER OF SOCIAL DEFENDANT’S MOTION FOR 14 SECURITY, SUMMARY JUDGMENT; 15 Defendant. DENYING PLAINTIFF’S 16 MOTION FOR SUMMARY 17 JUDGMENT 18 Before the Court is Plaintiff’s Motion for Summary Judgment, ECF No. 12, 19 and Defendant’s Motion for Summary Judgment, ECF No. 20. The motions were 20 heard without oral argument. 21 Plaintiff brings this action challenging the denial of disability benefits 22 pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, the Court grants 23 Defendant’s Motion for Summary Judgment, ECF No. 20, and denies Plaintiff’s 24 Motion for Summary Judgment, ECF No. 12. 25 26 ADMINISTRATIVE PROCEEDINGS Plaintiff protectively filed an application for disability insurance benefits on 27 January 29, 2013, alleging a disability onset date of December 31, 2012. AR 20. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 1 Dockets.Justia.com 1 The application was denied initially on August 9, 2013, and upon reconsideration 2 on January 30, 2014. Thereafter, Plaintiff filed a written request for a hearing. 3 On August 26, 2015, a video hearing was held in Kennewick, Washington, 4 with Administrative Law Judge (“ALJ”) Cheri Filion presiding from Seattle, 5 Washington. At the hearing, the ALJ found Plaintiff was capable of performing 6 past relevant work as an office manager/administrative clerk. AR 32. Accordingly, 7 the ALJ found Plaintiff was not under a disability as defined in the Social Security 8 Act. The Appeals Council denied Plaintiff’s request for review. AR 1. 9 Plaintiff timely filed the present action challenging the denial of disability 10 benefits pursuant to 42 U.S.C. § 405(g). 11 12 SEQUENTIAL EVALUATION PROCESS The Social Security Act defines disability as the “inability to engage in any 13 substantial gainful activity by reason of any medically determinable physical or 14 mental impairment which can be expected to result in death or which has lasted or 15 can be expected to last for a continuous period of not less than 12 months.” 42 16 U.S.C. § 423(d)(1)(A). A claimant shall be determined to be under a disability 17 only if the claimant’s impairments are of such severity that the claimant is not only 18 unable to do his previous work, but cannot, considering claimant’s age, education, 19 and work experience, engage in any other substantial gainful work that exists in 20 the national economy. 42 U.S.C. § 423(d)(2)(A). 21 The Commissioner of Social Security has established a five-step sequential 22 evaluation process for determining whether a claimant meets the definition of 23 disabled under the Social Security Act. 20 C.F.R. § 404.1520(a)(4); Lounsburry v. 24 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). 25 At step one, the ALJ must determine whether the claimant is presently 26 engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(b). Substantial 27 gainful activity is defined as significant physical or mental activities done or 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 2 1 usually done for profit. 20 C.F.R. § 404.1572. If the individual is engaged in 2 substantial gainful activity, he or she is not disabled. 20 C.F.R. § 404.1571. If not, 3 the ALJ proceeds to step two. 4 At step two, the ALJ must determine whether the claimant has a severe 5 medically determinable impairment, or combination of impairments, that 6 significantly limits the claimant’s physical or mental ability to do basic work 7 activities. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe 8 medically determinable impairment or combination of impairments, he or she is 9 not disabled. Id. If the ALJ finds the claimant does have a severe impairment or 10 combination of impairments, the ALJ proceeds to step three. 11 At step three, the ALJ must determine whether any of the claimant’s severe 12 impairments “meets or equals” one of the listed impairments acknowledged by the 13 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 14 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526; 20 C.F.R. § 404 Subpt. P. App. 1 15 (“the Listings”). If the impairment meets or equals one of the listed impairments, 16 the claimant is per se disabled and qualifies for benefits. If not, the ALJ proceeds 17 to the fourth step. 18 Before considering step four, the ALJ must determine the claimant’s 19 “residual functional capacity.” 20 C.F.R. § 404.1520(e). An individual’s residual 20 functional capacity is his or her ability to do physical and mental work activities 21 on a sustained basis despite limitations from his impairments. 20 C.F.R. 22 § 404.1545(a)(1). In making this finding, the ALJ must consider all of the relevant 23 medical and other evidence. 20 C.F.R. § 404.1545(a)(3). 24 At step four, the ALJ must determine whether the claimant’s residual 25 functioning capacity allows the claimant to perform past relevant work. 20 C.F.R. 26 § 404.1520(e)-(f). If the claimant can still perform past relevant work, he or she is 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 3 1 not disabled. If the ALJ finds the claimant cannot perform past relevant work, the 2 analysis proceeds to the fifth and final step. 3 At step five, the burden shifts to the Commissioner to prove the claimant is 4 able to perform other work in the national economy, taking into account claimant’s 5 age, education, work experience, and residual functioning capacity. 20 C.F.R. 6 § 404.1520(g). To meet this burden, the Commissioner must establish (1) the 7 claimant is capable of performing other work; and (2) such work exists in 8 significant numbers in the national economy. 20 C.F.R. § 404.1560(c)(2); Beltran 9 v. Astrue, 700 F.3d 386, 388-89 (9th Cir. 2012). STANDARD 10 11 A district court’s review of a final decision of the Commissioner is 12 governed by 42 U.S.C. § 405(g). The scope of review under Section 405(g) is 13 limited, and the Commissioner’s decision will be disturbed “only if the ALJ’s 14 decision was not supported by substantial evidence in the record as a whole or if 15 the ALJ applied the wrong legal standard.” Shaibi v. Berryhill, 883 F.3d 1102, 16 1106 (9th Cir. 2017). “Substantial evidence” is defined as “such relevant evidence 17 as a reasonable mind might accept as adequate to support a conclusion.” Molina v. 18 Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012). “The findings of the Commissioner 19 of Social Security as to any fact, if supported by substantial evidence, shall be 20 conclusive.” 42 U.S.C § 405(g). 21 In reviewing a denial of benefits, a district court may not substitute its 22 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 23 1992). If the evidence in the record “is susceptible to more than one rational 24 interpretation, [the court] must uphold the ALJ’s findings if they are supported by 25 inferences reasonably drawn from the record.” Molina, 674 F.3d at 1111. 26 Moreover, a district court “may not reverse an ALJ’s decision on account of 27 an error that is harmless.” Id. An error is harmless “where it is inconsequential to 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 4 1 the [ALJ’s] ultimate nondisability determination.” Robbins v. Soc. Sec. Admin., 2 466 F.3d 880, 885 (9th Cir. 2006). “[T]he burden of showing that an error is 3 harmful normally falls upon the party attacking the agency’s determination.” 4 Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 5 6 STATEMENT OF FACTS The facts of this case are set forth in detail in the transcript of the 7 administrative proceedings and, therefore, are only briefly summarized here. 8 Plaintiff was born on March 22, 1962. She obtained a B.S. degree in computer 9 science and chemistry. AR 49. In December 2010, Plaintiff underwent a bilateral 10 mastectomy subsequent to being diagnosed with breast cancer, and in August 11 2011, Plaintiff underwent a complete hysterectomy. AR 412. Plaintiff currently 12 works part-time as a caregiver for DSHS. AR 59. 13 14 ALJ’S FINDINGS At step one, the ALJ found Plaintiff had not engaged in substantial gainful 15 activity since December 21, 2013, the alleged onset date. AR 22. 16 At step two, the ALJ found Plaintiff suffers from the following severe 17 impairments: breast cancer in current remission, status post mastectomies and 18 chemotherapy, lymphedema, and affective disorder (major depression). AR 22. 19 At step three, the ALJ found Plaintiff does not have an impairment or 20 combination of impairments that meets or medically equals the severity of one of 21 the listed impairments in 20 C.F.R. § 404 Subpt. P. App. 1 (citing 20 C.F.R. 22 §§ 404.1520(d), 404.1525 and 404.1526). AR 22. 23 Before reaching step four, the ALJ found Plaintiff has the residual 24 functioning capacity to perform light work as defined in 20 C.F.R. § 404.1567(b), 25 with the following exceptions: Plaintiff can frequently climb ramps and stairs; 26 occasionally climb ladders, ropes, and scaffolds; crawl occasionally; occasionally 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 5 1 reach bilaterally overhead; Plaintiff must avoid concentrated exposure to vibration 2 and hazards; and could perform work involving semi-skilled tasks. AR 23-24. 3 At step four, the ALJ found Plaintiff is capable of performing past relevant 4 work as an office manager/administrative clerk. AR 32. Accordingly, the ALJ 5 found Plaintiff was not disabled within the meaning of the Social Security Act. 6 ISSUES FOR REVIEW 7 1. Whether the ALJ erred in discounting medical opinion evidence? 8 2. Whether the ALJ erred at step two of the sequential evaluation process? 3. Whether the ALJ erred at step three of the sequential evaluation process? 9 10 11 12 4. Whether the ALJ erred in discounting Plaintiff’s testimony? 5. Whether the ALJ erred in discounting lay witness testimony? 6. Whether the ALJ erred at steps four and five of the sequential evaluation process? 13 DISCUSSION 14 (1) The ALJ did not err in discounting medical opinion evidence. Plaintiff claims the ALJ improperly rejected the medical opinions of treating 15 16 physicians Dr. Charles Krause and Dr. Kenneth Cole. “Generally, a treating 17 physician’s opinion carries more weight than an examining physician’s, and an 18 examining physician’s opinion carries more weight than a reviewing physician’s.” 19 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001). In the absence of a 20 contrary opinion, a treating physician’s opinion may not be rejected unless “clear 21 and convincing” reasons are provided. Lester, 81 F.3d at 830. If a treating 22 physician’s opinion is contradicted, it may be discounted only for “ ‘specific and 23 legitimate reasons’ supported by substantial evidence in the record.” Id. at 830-31. 24 “The ALJ can meet this burden by setting out a detailed and thorough summary of 25 the facts and conflicting clinical evidence, stating [her] interpretation thereof, and 26 making findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 27 // 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 6 1 2 A. Dr. Krause Treating physician Dr. Krause provided two medical opinions. On February 3 17, 2014, Dr. Krause completed a Physical Medical Source Statement (the “2014 4 opinion”). AR 877. Dr. Krause opined that Plaintiff would need a job that permits 5 shifting positions at will from sitting to standing/walking, and that Plaintiff needs 6 to take a five to ten minute unscheduled break every one to two hours throughout 7 the day, due to pain, paresthesia/numbness and adverse effects of medication. AR 8 878. Dr. Krause further opined that Plaintiff has significant limitations in reaching, 9 handling, and fingering, and that Plaintiff’s symptoms are severe enough to 10 interfere with Plaintiff’s attention and concentration needed to perform simple 11 work tasks 25% or more of the day. AR 879-80. Dr. Krause concluded by finding 12 that if Plaintiff was trying to work full time, she would likely be absent more than 13 four days per month as a result of her impairments or treatment, and that Plaintiff 14 was incapable of tolerating even “low stress” work. AR. 880. 15 On August 7, 2015, Dr. Krause completed a Medical Report on behalf of 16 Plaintiff (the “2015 opinion”). AR 1141. Dr. Krause opined that Plaintiff must lie 17 down one to two times per day for thirty to sixty minutes; regular, continuous 18 employment would cause her condition to deteriorate due to aggravation of her 19 pain symptoms; she is limited to part-time sedentary work; and that she is limited 20 to occasional handling and reaching on both upper extremities. AR 1141-45. 21 The ALJ gave little weight to Dr. Krause’s opinions, finding (1) there were 22 clear contradictions in his opinions when comparing his two assessments; (2) Dr. 23 Krause attributed manipulative limitations to neuropathy, which is not a valid 24 impairment supported by objective evidence; (3) Plaintiff’s daily activities are 25 inconsistent with Dr. Krause’s 2015 opinion because she works as a caregiver 26 doing tasks greater than sedentary level employment; (4) Dr. Krause’s 2014 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 7 1 opinion is inconsistent with Plaintiff’s allegations; and (5) Dr. Krause provided 2 little explanations for either opinion. AR 30. 3 The Court finds the ALJ provided “specific and legitimate” reasons for 4 discounting Dr. Krause’s opinions. First, The ALJ discredited Dr. Krause’s 5 testimony, in part, because of the inconsistencies between his two opinions. An 6 ALJ may reject inconsistent medical opinions from a treating physician. 7 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). In this case, the ALJ 8 identified two inconsistencies between Dr. Krause’s 2014 and 2015 opinions. 9 First, the ALJ pointed out that in 2014, Dr. Krause opined that Plaintiff could lift 10 up to twenty pounds occasionally, with the combined ability to walk, stand, and sit 11 for eight hours in a work-day. AR 878-79. Then, in 2015, Dr. Krause opined that 12 Plaintiff was limited to part-time sedentary work. AR 1144. Dr. Krause’s 2015 13 opinion also stated that Plaintiff would need to lie down thirty to sixty minutes, 14 one to two times a day. AR 1143. This limitation was not noted in Dr. Krause’s 15 2014 opinion. These inconsistencies serve as a “specific and legitimate” reason for 16 discounting Dr. Krause’s opinion. 17 Second, The ALJ also discredited Dr. Krause’s opinion because Dr. Krause 18 attributed Plaintiff’s manipulative limitations to neuropathy which, according to 19 the ALJ, is not supported by objective medical evidence. An ALJ may discredit a 20 treating physician’s opinion if it is conclusory or unsubstantiated by relevant 21 medical evidence. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 22 In this case, Dr. Krause opined that Plaintiff is significantly limited in her 23 ability to hold things, AR 879, and is limited to the occasional use of her upper 24 extremities. AR 1142. The ALJ discredited this opinion because there is no 25 evidence that Plaintiff ever underwent an EMG to substantiate the existence of a 26 nerve condition. AR 30. Plaintiff argues that the record establishes medical signs 27 of neuropathy, with symptoms of weakness, numbness, and pain. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 8 1 While Plaintiff attempts to point at other evidence that supports her 2 position, if the evidence in the record “is susceptible to more than one rational 3 interpretation, [the court] must uphold the ALJ’s findings if they are supported by 4 inferences reasonably dawn from the record.” Molina, 674 F.3d at 1111. There is 5 nothing that would indicate the ALJ’s interpretation of the record on this point is 6 irrational. Thus, this also serves as a “specific and legitimate” reason for 7 discounting Dr. Krause’s opinion. 8 Third, the ALJ also discredited Dr. Krause’s opinion for being inconsistent 9 with Plaintiff’s self-reported limitations. Inconsistency between a treating 10 physician’s opinion and a claimant’s daily activities serves as a specific and 11 legitimate reason for discounting a treating physician’s opinion. Morgan v. 12 Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999); see also Fair 13 v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). In this case, Dr. Krause’s 2014 14 opinion indicates that Plaintiff has significant limitation walking, standing, and 15 sitting, AR 878, and that this limitation has existed since December 2010. AR 880. 16 On July 21, 2013, Plaintiff self-reported that she has no limitations walking, 17 standing, or sitting. AR 864. This inconsistency also serves as a “specific and 18 legitimate” reason to discredit Dr. Krause’s medical opinion. 19 As indicated above, the ALJ offered several valid reasons for discounting 20 Dr. Krause’s medical opinions. The Court need not address whether the ALJ’s 21 remaining reasons satisfy the “specific and legitimate” standard, as any error 22 would be harmless. See Tommasetti, 533 F.3d at 1038. 23 24 B. Dr. Cole Treating physician Dr. Cole completed two mental functional capacity 25 assessments, one on February 26, 2016, AR 891-912, and one on August 5, 2015. 26 AR 1137-40. 27 // 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 9 Dr. Cole opined that Plaintiff has marked 1 limitations in her ability to 1 2 understand and remember detailed instructions; maintain attention and 3 concentration for extended periods; make simple, work-related decisions; 4 complete a normal work-day and work-week without interruptions from 5 psychologically based symptoms, and to perform at a consistent pace without an 6 unreasonable number and length of rest periods; and interact appropriately with 7 the general public. AR 1137-38. Dr. Cole further opined that Plaintiff’s mental 8 listings result in marked limitations in her activities of daily living; difficulties in 9 maintaining social functioning; and difficulties in maintaining concentration, 10 persistence or pace. AR 1139. Based on Plaintiff’s cumulative limitations, Dr. 11 Cole determined that Plaintiff is likely to be off-task over 30% of the time during a 12 40-hour work-week, and that Plaintiff is likely to miss four or more days per 13 month. AR 1139. The ALJ gave little weight to Dr. Cole’s opinion, finding (1) Dr. Cole gave 14 15 inconsistent opinions in multiple areas, and did not explain these discrepancies; 16 (2) Plaintiff’s daily activities contradicted Dr. Cole’s opinion as to Plaintiff’s 17 limitations; (3) Dr. Cole’s opinion that Plaintiff has had four or more episodes of 18 decompensation is not supported by the record; (4) there was no testing performed 19 or other similar information to support the many severe mental limitations 20 identified by Dr. Cole; and (5) Dr. Cole’s treatment notes failed to provide 21 adequate support for his findings. AR 30. The Court finds the ALJ provided “specific and legitimate” reasons for 22 23 discounting Dr. Cole’s opinion. 24 25 26 27 1 Marked limitations are defined as very significant interference with basic work- related activities i.e., unable to perform the described mental activity for more than 33% of the work-day. AR 1137. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 10 1 First, as indicated above, an ALJ may reject inconsistent medical opinions 2 from a treating physician. Tommasetti, 533 F.3d at 1041. In this case, Dr. Cole 3 initially opined that Plaintiff had moderate limitations in her activities of daily 4 living and concentration related functioning. AR 901. Dr. Cole later opined that 5 Plaintiff had marked limitations in these same areas. AR 1139. Additionally, Dr. 6 Cole’s opinions also differed as to Plaintiff’s ability to maintain attention and 7 concentration for extended periods; ability to perform activities within a schedule, 8 maintain regular attendance, and to be punctual within customary tolerances; 9 ability to sustain an ordinary routine without special supervision; ability to work in 10 coordination with or proximity to others without being distracted by them; ability 11 to make simple, work-related decisions; and ability to complete a normal work-day 12 and work-week without interruptions from psychologically based symptoms, and 13 to perform at a consistent pace without an unreasonable number and length of rest 14 periods. AR 905, 1137-38. These discrepancies are not explained in Dr. Cole’s 15 reports. 16 The ALJ identified unexplained, inconsistent opinions in Dr. Cole’s reports, 17 and determined these inconsistencies rendered Dr. Cole’s opinions unreliable. 18 While Plaintiff disagrees with the ALJ’s characterization of Dr. Cole’s opinions, 19 the Court may not substitute its judgment for that of the ALJ. Matney, 981 F.2d at 20 1019. Thus, this reason is sufficient to affirm the ALJ’s adverse credibility 21 determination of Dr. Cole. 22 Second, an ALJ may discredit a treating physician’s opinion if it is 23 contradicted by the claimant’s daily activities. Morgan, 169 F.3d at 600-02. In this 24 case, the ALJ noted that Dr. Cole found marked limitations in Plaintiff’s ability to 25 concentrate for extended periods of time, AR 1137, yet Plaintiff had been working 26 up to four hours in a work-day, AR 59-60, read for enjoyment, AR 269, did 27 crossword puzzles, AR 269, and drives a truck, AR 268. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 11 1 Dr. Cole also found Plaintiff had marked limitations with goals and 2 planning, AR 1138, yet Plaintiff had the freedom to choose her clients and work 3 hours, AR 59. Dr. Cole also found multiple social limitations, AR 1138, yet 4 Plaintiff never reported social problems and worked as a caregiver, which involves 5 substantial social interaction with clients. Plaintiff also reported that she 6 maintained contact with friend from a church, which she attends on a regular 7 basis. AR 850. 8 This reason also satisfies the “specific and legitimate” standard. An ALJ can 9 satisfy the “specific and legitimate” standard by “setting out a detailed and 10 thorough summary of the facts and conflicting clinical evidence, stating [her] 11 interpretation thereof, and making findings.” Magallanes, 881 F.2d at 750. The 12 ALJ did so here. The ALJ summarized Plaintiff’s daily activities; cited to specific 13 findings in Dr. Cole’s opinions; and determined that they were inconsistent with 14 one another. As such, this reason is also sufficient to affirm the ALJ’s adverse 15 credibility determination of Dr. Cole. 16 As indicated above, the ALJ offered several valid reasons for discounting 17 Dr. Cole’s medical opinions. The Court need not address whether the ALJ’s 18 remaining reasons satisfy the “specific and legitimate” standard, as any error 19 would be harmless. See Tommasetti, 533 F.3d at 1038. 20 (2) The ALJ did not err at step two. 21 The second issue for review is whether the ALJ improperly rejected 22 Plaintiff’s alleged severe limitations at step two of the sequential process. At step 23 two, the ALJ is required to determine whether an individual has one or more 24 severe medically determinable impairments. 20 C.F.R. § 404.1520(4)(ii). A 25 medically determinable impairment “must result from anatomical, physiological, 26 or psychological abnormalities that can be shown by medically acceptable clinical 27 and laboratory diagnostic techniques.” 20 C.F.R. § 404.1521. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 12 1 A “severe” impairment, or combination of impairments, is defined as one 2 that significantly limits a claimant’s physical or mental ability to do basic work 3 activities. 20 C.F.R. § 404.1520(c). “An impairment or combination of 4 impairments may be found ‘not severe only if the evidence establishes a slight 5 abnormality that has no more than a minimal effect on an individual’s ability to 6 work.’ ” Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) (quoting Smolen 7 v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). The claimant has the burden of 8 proving his “impairments or their symptoms affect his ability to perform basic 9 work activities.” Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001). 10 In this case, the ALJ found Plaintiff suffers from the following severe 11 impairments: breast cancer in current remission, status post mastectomies and 12 chemotherapy, lymphedema, and affective disorder (major depression). AR 22. 13 Plaintiff argues the ALJ committed error by failing to consider Plaintiff’s other 14 severe impairments, which include: anxiety; neuropathy of chest, back, and arms; 15 chronic respiratory issues; fractured rib; esophagitis; migraines/headaches; 16 arthritis of the knee with bone spurs; insomnia; irritable bowel syndrome; 17 endometrial hyperplasia; and pelvic pain. 18 Even if the ALJ failed to identify these alleged impairments as severe 19 medically determinable impairments at step two, such an error would be harmless. 20 Step two of the sequential analysis is “merely a threshold determination meant to 21 screen out weak claims.” Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987). “It is not 22 meant to identify the impairments that should be taken into account when 23 determining the [Residual Functional Capacity].” Buck v. Berryhill, 869 F.3d 24 1040, 1048-49 (9th Cir. 2017). When assessing a claimant’s Residual Functional 25 Capacity, an ALJ will consider limitations and restrictions imposed by all of an 26 individual’s impairments, even those that are not “severe.” Id. Since step two was 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 13 1 decided in Plaintiff’s favor, and the ALJ continued through the sequential process, 2 any alleged error at this step is harmless. 3 (3) The ALJ did not err at step three. 4 Plaintiff argues that had the ALJ considered Dr. Cole’s opinion, the ALJ 5 would have found Plaintiff disabled at step three. However, as indicated above, the 6 ALJ provided sufficient reasons for discounting Dr. Cole’s opinion. As such, the 7 ALJ did not err at step three. 8 (4) The ALJ did not err in discounting Plaintiff’s testimony. 9 An ALJ engages in a two-step analysis to determine whether a claimant’s 10 testimony regarding subjective pain or symptoms is credible. Garrison v. Colvin, 11 759 F.3d 995, 1014 (9th Cir. 2014). “First, the ALJ must determine whether the 12 claimant has presented objective medical evidence of an underlying impairment 13 ‘which could reasonably be expected to produce the pain or other symptoms 14 alleged.’ ” Id. (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 15 2007)). In this analysis, the claimant is not required to show “that her impairment 16 could reasonably be expected to cause the severity of the symptom she has 17 alleged; she need only show that it could reasonably have caused some degree of 18 that symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Nor must a 19 claimant produce “objective medical evidence of the pain or fatigue itself, or the 20 severity thereof.” Id. 21 If the claimant satisfies the first step of this analysis, and there is no 22 evidence of malingering, “the ALJ can reject the claimant’s testimony about the 23 severity of [his] symptoms only by offering specific, clear and convincing reasons 24 to do so.” Id. at 1281. 25 In this case, the ALJ found Plaintiff satisfied the first step of the analysis. 26 AR 25. Nonetheless, the ALJ discounted Plaintiff’s subjective symptom claims for 27 the following reasons. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 14 1 First, the ALJ found Plaintiff’s self-reports have not always been consistent. 2 AR 25. “[T]he ALJ may consider inconsistencies either in the claimant’s 3 testimony or between the testimony and the claimant’s conduct,” when evaluating 4 a Plaintiff’s subjective complaints. Molina, 674 F.3d at 1112. In this case, the ALJ 5 found that in February 2013, Plaintiff indicated that she could lift less than 10 6 pounds, AR 270, then in December 2013, Plaintiff reported that she could lift less 7 than 20 pounds, AR 294. Additionally, Plaintiff testified that she would need to 8 change positions when sitting, AR 68, but denied any problems with sitting in her 9 functional report. AR 294. Plaintiff also reported issues with balance, yet was able 10 to walk at least a mile a day, and two to four miles on a good day. AR 270. The 11 ALJ discounted Plaintiff’s subjective symptom claims based on these 12 inconsistencies. 13 The ALJ’s first reason satisfies the “specific, clear and convincing” 14 standard. The ALJ identified several inconsistencies within Plaintiff’s self15 reported symptom claims that warrant an adverse credibility determination. 16 Second, the ALJ found Plaintiff’s daily activities contradict her symptom 17 claims. “Engaging in daily activities that are incompatible with the severity of 18 symptoms alleged can support an adverse credibility determination.” Ghanim v. 19 Colvin, 763 F.3d 1154, 1165 (9th Cir. 2014). A Plaintiff’s daily activities may also 20 support an ALJ’s adverse credibility determination “if a claimant is able to spend a 21 substantial part of [her] day engaged in pursuits involving the performance of 22 physical functions that are transferable to a work setting.” Fair v. Bowen, 885 F.2d 23 597, 603 (9th Cir. 1989). 24 However, the Ninth Circuit has “repeatedly warned that ALJs must be 25 especially cautious in concluding that daily activities are inconsistent with 26 testimony about pain, because impairments that would unquestionably preclude 27 work and all the pressures of a workplace environment will often be consistent 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 15 1 with doing more than merely resting in bed all day.” Garrison v. Colvin, 759 F.3d 2 995, 1016 (9th Cir. 2014). [M]any home activities are not easily transferable to what may be the more 3 grueling environment of the workplace, where it might be impossible to 4 periodically rest or take medication. Recognizing that disability claimants should not be penalized for attempting to lead normal lives in the face of 5 their limitations, we have held that [o]nly if [her] level of activity were 6 inconsistent with [a claimant’s] claimed limitations would these activities have any bearing on [her] credibility. 7 8 Id. (internal citations and quotations omitted). 9 In this case, the ALJ found Plaintiff’s daily activities illustrate her capacity 10 to work at the light exertional level, if not more. For example, Plaintiff worked as 11 a caregiver for two clients, for up to twenty hours a week, and up to five days a 12 week. AR 26. A care provider is a medium level job under the Dictionary of 13 Occupational Titles (DOT). AR 26. And while Plaintiff’s work mostly involved 14 giving reminders, running errands, and other non-physically demanding tasks, the 15 ALJ found Plaintiff’s other work activities (housekeeping, bathing, dressing, 16 shopping, carrying groceries) were more physically demanding and were 17 consistent with the DOT’s description. AR 26. The ALJ found that “it is not 18 reasonable that [Plaintiff] would work as a caregiver or be paid to be a caregiver if 19 she had minimal ability to fulfill the physical aspects of the role. . . It is 20 unreasonable that she could fill this role throughout the period at issue but 21 concurrently alleged that she herself has debilitating physical and mental 22 limitations.” AR 26. Plaintiff argues that the modest activities cited by the ALJ do not show 23 24 Plaintiff is capable of regular, continuous employment. And it is true; these 25 activities do not show Plaintiff is capable of regular, continuous employment. But 26 Plaintiff’s daily activities do provide the ALJ with a reason to discredit the 27 severity of Plaintiff’s subjective symptom claims. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 16 1 Here, Plaintiff’s daily activities as a part-time caregiver show that Plaintiff 2 “is able to spend a substantial part of [her] day engaged in pursuits involving the 3 performance of physical functions that are transferable to a work setting.” Fair v. 4 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). While these activities are modified to 5 accommodate Plaintiff’s impairments, the ALJ uses these facts to discredit the 6 severity of Plaintiff’s symptom claims. Thus, the ALJ’s second reason also 7 satisfies the “specific, clear and convincing” standard. 8 Finally, the ALJ also discounted Plaintiff’s symptom claims because the 9 objective medical evidence did not support Plaintiff’s alleged physical symptoms. 10 AR 27. An ALJ must consider objective medical evidence when determining the 11 intensity and persistence of a claimant’s alleged symptoms. 20 C.F.R. § 12 416.929(c)(2). An ALJ will not reject a claimant’s statements about the intensity 13 and persistence of the pain “solely because the available medical evidence does 14 not substantiate [a claimant’s] statements.” Id.; see also Burch, 400 F.3d at 681 15 (“Although lack of medical evidence cannot form the sole basis for discounting 16 pain testimony, it is a factor the ALJ can consider in [her] credibility analysis”). 17 In this case, Plaintiff claimed that she suffers from severe neuropathic pain, 18 yet a physical examination in July 2013 showed generally normal findings. AR 19 865-66. Plaintiff showed no difficulty sitting; she could get on and off the 20 examination table without assistance; gait and overall coordination was normal; 21 and she had mild left arm weakness. AR 865-66. In January 2014, an x-ray was 22 taken of Plaintiff’s chest, in response to her allegations of debilitating chest pain. 23 AR 889. The results were negative with little changes since June 1, 2012. AR 889. 24 Additionally, the ALJ noted that there is no objective evidence of neuropathy, 25 such as an EMG study, to support allegations of severe neuropathic pain. AR 27. 26 This reason also satisfies the “specific, clear and convincing” standard for 27 discrediting a Plaintiff’s testimony. The ALJ cited to specific medical evidence 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 17 1 and made a finding that such evidence contradicted Plaintiff’s allegations of 2 chronic pain. As such, the ALJ did not err. 3 The Court need not address the ALJ’s remaining reasons for discounting 4 Plaintiff’s testimony. See Molina, 674 F.3d at 1115 (holding that an ALJ’s error is 5 harmless where the ALJ provided one or more invalid reasons for disbelieving a 6 claimant’s testimony, but also provided valid reasons that were supported by the 7 record.). 8 (5) The ALJ did not err in rejecting lay witness testimony. 9 Plaintiff argues that the ALJ improperly rejected the testimony of Plaintiff’s 10 brother, Michael Schonhoff. Lay witness testimony, as to a claimant’s symptoms 11 or how an impairment affects Plaintiff’s ability to work, is competent evidence and 12 cannot be disregarded without comment. Van Nguyen v. Chater, 100 F.3d 1462, 13 1467 (9th Cir. 1996). An ALJ can reject the testimony of a lay witness only upon 14 giving a reason germane to that witness. Smolen, 80 F.3d at 1288. 15 In this case, Mr. Schonhoff submitted a third party function report. AR 281- 16 88. In his report, Mr. Schonhoff indicated that Plaintiff experiences constant pain 17 in her arms and chest; is restricted in her ability to lift/push/move objects of any 18 weight; and that she gets tired quickly and needs rest breaks often. AR 281. Mr. 19 Schonhoff also reported that Plaintiff’s symptoms negatively impact her ability to 20 sleep, AR 282; engage in personal care, Id.; and complete house and yard work, 21 AR 284. 22 The ALJ found Mr. Schonhoff’s testimony was very similar to Plaintiff’s 23 symptom claims, and gave his statements some weight, but ultimately discounted 24 Mr. Schonhoff’s testimony for the same reasons the ALJ rejected Plaintiff’s 25 symptom claims. AR 31. As indicated above, the ALJ provided “specific, clear 26 and convincing” reasons for discrediting Plaintiff’s symptoms claims. Thus, the 27 ALJ did not err in rejecting Mr. Schonhoff’s testimony for the same reasons. See 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 18 1 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (“In 2 light of our conclusion that the ALJ provided clear and convincing reasons for 3 rejecting [Plaintiff’s] own subjective complaints, and because [lay witness’s] 4 testimony was similar to such complaints, it follows that the ALJ also gave 5 germane reasons for rejecting [the lay witness] testimony.”) 6 (6) The ALJ did not err at step four or five. 7 Finally, Plaintiff argues that the ALJ erred at steps four and five by relying 8 on the vocational expert’s response to an incomplete hypothetical. “The vocational 9 expert’s opinion about a claimant’s residual functional capacity has no evidentiary 10 value if the assumptions in the hypothetical are not supported by the record.” 11 Magallanes, 881 F.2d at 756. 12 In response to the ALJ’s hypothetical, the vocational expert found Plaintiff 13 was capable of performing past relevant work as an office manager/administrative 14 clerk. AR 72-73. 15 Plaintiff contends that the vocational expert’s opinion is without evidentiary 16 value because the hypothetical failed to account for the impairments set forth in 17 the opinions of Dr. Krause and Dr. Cole. In other words, Plaintiff restates her 18 argument that the ALJ improperly discounted medical opinion testimony. 19 The ALJ’s hypothetical contained all of the limitations that the ALJ found 20 credible and supported by substantial evidence in the record. Thus, the ALJ’s 21 reliance on the vocational expert’s testimony was proper. See Magallanes, 881 22 F.2d at 756-57 (holding that it is proper for an ALJ to limit a hypothetical to 23 restrictions supported by substantial evidence in the record). 24 // 25 // 26 // 27 // 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 19 CONCLUSION 1 2 For the foregoing reasons, the Court grants Defendant’s Motion for 3 Summary Judgment, ECF No. 20, and denies Plaintiff’s Motion for Summary 4 Judgment, ECF No. 12. 5 Accordingly, IT IS HEREBY ORDERED: 6 1. Defendant’s Motion for Summary Judgment, ECF No. 20, is GRANTED. 7 2. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 8 3. The decision of the Commissioner of Social Security is affirmed. 9 4. The District Court Executive is directed to enter judgment in favor of 10 Defendant and against Plaintiff. 11 IT IS SO ORDERED. The District Court Executive is hereby directed to 12 file this Order, provide copies to counsel, and close the file. 13 DATED this 2nd day of October 2018. 14 15 16 17 18 19 20 Stanley A. Bastian United States District Judge 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ^ 20
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
