Chavez v. Commissioner of Social Security, No. 4:2017cv05159 - Document 14 (E.D. Wash. 2018)
Court Description: ORDER GRANTING 13 Defendant's Motion for Summary Judgment. Denying 12 Plaintiff's Motion for Summary Judgment. The Commissioner's final decision is AFFIRMED. Case CLOSED. Signed by Senior Judge Edward F. Shea. (SK, Case Administrator)
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Chavez v. Commissioner of Social Security Doc. 14 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 4 Aug 16, 2018 SEAN F. MCAVOY, CLERK 5 6 JUAN C.,1 No. 7 4:17-CV-05159-EFS Plaintiff, ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT v. 8 9 COMMISSIONER OF SOCIAL SECURITY, 10 Defendant. 11 12 Before the Court, without oral argument, are cross summary 13 judgment motions. ECF Nos. 12 & 13. Plaintiff, Juan C., appeals the 14 Administrative denial 15 Nos. 1 & 12. 16 Court to affirm the ALJ’s determination that Plaintiff is not disabled 17 and is capable of performing substantial gainful activity in a field 18 for which a significant number of jobs exist in the national economy. 19 See 20 authority, the Court is fully informed. 21 below, the Court denies Plaintiff’s Motion for Summary Judgment and 22 grants Defendant’s Motion for Summary Judgment. ECF Nos. Law Judge’s (ALJ) of benefits. See ECF Defendant, the Commissioner of Social Security, asks the 8 & 15. After reviewing the record and relevant For the reasons set forth 23 1 24 25 26 To protect the privacy of social-security plaintiffs, the Court refers to them by first name and last initial. See proposed draft of LCivR 5.2(c). When quoting the Administrative Record in this order, the Court will substitute “Plaintiff” for any other identifier that was used, and — for the sake of readability — the Court will refrain from using brackets to indicate such substitutions. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 1 Dockets.Justia.com Facts and Procedural History2 I. 1 Plaintiff 2 220. born In in 1971. February See 2012, Administrative after Record, Plaintiff ECF 3 No. 9, 4 workplace injury, an MRI of his lumbar spine showed desiccation of L4- 5 5, disc bulging, facet hypertrophy, loss of disc height, posterior 6 annular fissure, endplate irregularities, and spinal canal narrowing. 7 AR 527. 8 lateral discectomy with an endoscopic approach. AR 576. 9 Plaintiff has continued to see his medical care providers regarding 10 (AR) was suffered a And in March 2013, Plaintiff underwent a left L4-5 far Since then, back-pain management. See, e.g., AR 700–703. In and DIB 12 applications, alleging an onset date of January 7, 2013. AR 220. His 13 applications were denied initially and upon reconsideration. AR 100, 14 123. 15 hearing in February 2016, Administrative Law Judge (ALJ) Ilene Sloan 16 issued a decision finding Plaintiff not disabled for purposes of the 17 Social Security Act. AR 32. 11 2013, Plaintiff protectively filed SSI After conducting a hearing in September 2015 and a supplemental The 18 April ALJ found that Plaintiff has the following severe 19 impairments: “lumbar spine degenerative disc disease with stenosis and 20 disc protrusions with chronic left lower extremity referred/radicular 21 pain, status post three hernia repairs, status post two left hand 22 tendon repair, and obesity.” AR 23. Regarding Plaintiff’s residual 23 24 25 26 2 Detailed facts are contained in the administrative hearing transcript, the ALJ’s decision, and the parties’ briefs. The Court summarizes only those facts that are relevant to its decision. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 2 1 functional 2 consideration, the ALJ found as follows: (RFC), after taking those impairments into Plaintiff has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(b) and 416.967(b) except Plaintiff would be able to occasionally climb ramps and stairs, ladders, ropes, and scaffolds. Plaintiff would be able to frequently balance. Plaintiff would be able to occasionally stoop, kneel, and crouch. Plaintiff would never be able to crawl. Plaintiff must avoid concentrated exposures to hazards such as moving machinery and unprotected heights. 3 4 5 6 7 8 capacity AR 25. Given those limitations, the ALJ found that Plaintiff is unable 9 10 to perform any of his past relevant work. AR. 31. But, based on 11 testimony to 12 Plaintiff is “capable of making a successful adjustment to other work 13 that exists in significant numbers in the national economy,” namely, a 14 telephone solicitor. AR 31–32. by a vocational expert, the ALJ went on find that 15 The Appeals Council denied Plaintiff’s request for review, AR 1, 16 making the ALJ’s decision the final agency action for purposes of 17 judicial review.3 18 appealing the ALJ’s decision. ECF No. 1. 19 present summary-judgment motions. ECF Nos. 12 & 13. Plaintiff filed this lawsuit on October 2, 2017, II. 20 The parties then filed the Standard of Review 21 The Court will uphold an ALJ’s determination that a claimant is 22 not disabled if the ALJ applied the proper legal standards and there 23 is substantial evidence in the record as a whole to support the 24 25 26 3 See 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 3 1 decision.4 2 less than a preponderance. 3 reasonable mind might accept as adequate to support a conclusion.”5 Substantial evidence is “more than a mere scintilla, but It means such relevant evidence as a III. Applicable Law & Analysis6 4 5 Plaintiff raises three issues: (1) whether the ALJ improperly 6 rejected the opinions of Plaintiff’s medical providers; (2) whether 7 the ALJ erred in rejecting Plaintiff’s subjective complaints; and 8 (3) whether the hypothetical posed to the vocational expert at step 9 five accurately reflected all of Plaintiff’s limitations. ECF No. 12 10 at 5. The Court addresses each issue in turn and, for the reasons 11 that follow, affirms the ALJ’s decision. 12 A. Medical Providers’ Opinions 13 Plaintiff first argues that “the ALJ improperly rejected the 14 opinions of his treating and examining providers, including [ARNP] Ang 15 and [ARNP] Roberts.” ECF No. 12 at 7. 16 claim, advanced nurses, such as ARNP Ang and ARNP Roberts, are not 17 considered 18 sources” whose opinions are generally entitled to less weight than 19 that of a “acceptable physician.7 medical An ALJ For purposes of Plaintiff’s sources” need only but give are instead “germane “other reasons,” 20 21 4 22 5 23 6 24 25 26 7 Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citations and internal quotation marks omitted). The applicable five-step disability determination process is set forth in the ALJ’s decision, AR 20–21, and the Court presumes the parties are well acquainted with that standard process. As such, the Court does not restate the five-step process in this order. See Huff v. Astrue, 275 F. App’x 713, 716 (9th Cir. 2008). But see 20 C.F.R. § 404.1502 (adding licensed advanced practice nurse to the list of “acceptable medical sources” for claims filed on or after March 27, 2017). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 4 1 supported 2 opinions.8 by substantial evidence, to discredit other-source 3 4 1. The ALJ provided germane reasons, supported by substantial evidence, for rejecting ARNP Ang’s opinion. 5 As relevant here, in June 2015, Desiree Ang, ARNP — Plaintiff’s 6 treating provider who was overseeing his degenerative disc disease — 7 filled out a checkbox medical questionnaire. AR 279. 8 a box that stated, “I do not believe that this patient is capable of 9 performing any type of work on a reasonably continuous, sustained 10 basis.” 11 follows: 759. In addressing this opinion, the ALJ stated as I give this opinion no weight because Mrs. Ang did not provide an explanation for the claimant’s limitation or a function-by-function analysis of the claimant’s impairments (SSR 96-8p). Moreover, Ms. Ang is not [an] acceptable medical source with the expertise necessary to render such an opinion. In addition, I find the opinions of the medical expert to be the most informed, consistent with the medical evidence of record, and consistent with the record as a whole. 12 13 14 15 16 17 AR ARNP Ang checked AR 30. In her decision, the ALJ correctly noted that ARNP Ang’s opinion 18 19 regarding Plaintiff’s inability to work was unsupported by any 20 explanation or a function-by-function analysis.9 21 a series of treatment notes that — he argues — support ARNP Ang’s 22 opinion that he is unable to perform any work activity on a consistent 23 basis. ECF No. 12 at 10. Plaintiff points to For instance, Plaintiff quotes ARNP Ang as 24 8 25 26 9 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). See Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citations omitted). (holding that an ALJ may discount medical-source opinions that are conclusory, brief, and unsupported by the record as a whole or by objective medical findings). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 5 1 stating, “His gait was antalgic, he had diminished sensation, positive 2 straight leg raise, and difficulty with heel-toe walking.” ECF No. 12 3 at 9. 4 follows: “Mild difficulty with heel and toe walking, favoring the 5 left. 6 added). The record shows, however, that ARNP Ang actually reported as Gait is slightly antalgic, but steady.” AR 575 (emphasis 7 Further, although some of ARNP Ang’s treatment notes arguably 8 could have supported her opinion, others were inconsistent with such 9 an opinion.10 And ARNP Ang did not indicate which particular 10 treatment notes or test results she was relying upon in arriving at 11 her June 2015 opinion. 12 in deciding to give more weight to the opinion of the medical expert, 13 who was an orthopedic surgeon and therefore more highly trained than 14 an ARNP in the field of orthopedic medicine.11 The 15 ALJ provided Moreover, the ALJ acted within her discretion germane reasons, supported 16 evidence, for rejecting ARNP Ang’s opinion. 17 assigning it no weight. by substantial The ALJ did not err in 18 19 2. The ALJ provided germane reasons, supported by substantial evidence, for discounting ARNP Roberts’ opinion. 20 In October 2013, Jason Roberts, ARNP, completed an assessment in 21 which he opined that Plaintiff was limited to sedentary work. AR 587. 22 The ALJ gave this opinion little weight because “even though it is 23 consistent with the medical evidence supporting the claimant’s 24 25 10 26 11 See, e.g., AR 700 (“Plaintiff’s current medication regimen has been moderately sufficient in keeping his symptoms down to a more manageable level.”). See Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 6 1 sedentary residual functional capacity, Mr. Roberts did not provide an 2 explanation for the claimant’s limitation and a function-by-function 3 analysis of the claimant’s impairments.” AR 29. As with ARNP Ang’s opinion, the ALJ provided a germane reason, 4 5 supported by substantial evidence, 6 opinion.12 7 more, Plaintiff does not show how the ultimate outcome would have been 8 different if the ALJ gave greater weight to ARNP Roberts’ opinion. 9 Indeed, the ALJ’s RFC findings arguably included all the functional discounting ARNP Roberts’ The ALJ did not err by giving it little weight. 10 limitations opined by ARNP Roberts.13 11 B. Even Plaintiff’s Subjective Complaints14 In 12 for making an adverse credibility determination regarding a 13 claimant, an ALJ may consider, among other things, (1) the claimant’s 14 reputation for truthfulness; (2) inconsistencies in the claimant’s 15 testimony or between his testimony and his conduct; (3) the claimant’s 16 daily living activities; (4) the claimant’s work record; and (5) the 17 nature, severity, and effect of the claimant’s condition.15 18 contrary to Plaintiff’s second argument, see ECF No. 12 at 11 — the Here — 19 20 12 21 22 13 23 24 14 25 26 15 See Batson, 359 F.3d at 1195 (citations omitted). (holding that an ALJ may discount medical-source opinions that are conclusory, brief, and unsupported by the record as a whole or by objective medical findings). Compare AR 25 (ALJ limiting RFC to sedentary work with restrictions on activities such as stooping, kneeling, and crouching) with AR 586 (ARNP Roberts indicating “moderate” limitations in areas such as walking, reaching, and crouching). The standard for analyzing a claimant’s symptom testimony is set forth in the ALJ’s decision, see AR 25, and the Court presumes the parties are familiar with that standard. As such, the Court does not restate it here. Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 7 1 ALJ provided specific, clear and convincing reasons for rejecting 2 portions of Plaintiff’s symptom testimony.16 The ALJ had good reason to question Plaintiff’s reputation for 3 4 truthfulness. As the ALJ noted, Plaintiff admitted to frequently 5 lying about being out of work. 6 inform the different government agencies about his surgeries in order 7 to continue collecting unemployment benefits. AR 27. 8 the ALJ said the following: He also admitted that he did not In her decision, In addition, his receipt of unemployment benefits further erode the consistency of the claimant’s allegations. In the third quarter of 2013, the claimant received and exhausted unemployment benefits (7D, 6F). In order to receive unemployment benefits, the claimant had to certify he was “able to, available for, and actively seeking full time work.” The claimant offered no persuasive explanation at his hearing for this major inconsistency in his claims. 9 10 11 12 13 AR. 26. 14 The 15 ALJ articulated even more inconsistencies between 16 Plaintiff’s testimony, the record, and his daily living activities. 17 For instance, the ALJ found that Plaintiff “is able to go grocery 18 shopping without the need for assistance. 19 independently.” He cooks and prepares meals AR 26. Plaintiff argues that the ALJ’s analysis “is not an accurate 20 21 depiction” of his activities. ECF No. 12 at 12. As support, Plaintiff 22 points out that he “testified he did not cook and would instead have a 23 protein shake that lasted him all day.” ECF No. 12 at 12 (emphasis in 24 original). 25 when his children were there to carry the groceries because he could He also testified that grocery shopping “was done only 26 16 Cf. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 8 1 not.” ECF No. 12 at 12. Plaintiff’s arguments, however, only 2 highlight the inconsistencies that were of concern to the ALJ. 3 all, Plaintiff had recently reported being able to grocery shop and 4 cook meals unaided.17 After 5 The ALJ stated clear and convincing reasons that were supported 6 by substantial evidence in finding Plaintiff’s subjective complaints 7 were not entirely credible. 8 Plaintiff’s symptom testimony. 9 C. The ALJ’s Hypothetical to the Vocational Expert In 10 Thus, she did not err by discounting January 2014, Patrick B. Reilly, Ph.D. performed a 11 psychological examination of Plaintiff. AR 592–97. Plaintiff’s last 12 argument five 13 account for limitations set forth by [ARNP] Ang and Dr. Reilly.” ECF 14 No. 12 at 15. 15 already found the ALJ did not err by omitting the limitations set 16 forth by ARNP Ang. As 17 is to that ALJ’s hypothetical at step “failed to As a preliminary matter, as discussed above, the Court Dr. and the Reilly’s ignores report, important Plaintiff portions 19 Plaintiff includes a quote in which Dr. Reilly stated that “there does 20 appear to be a 21 setting related to interpersonal interactions, task persistence, self- 22 regulations, 23 organizational skills.” ECF No. 12 at 15 (citing AR 596). self-management, of Dr. particular 18 moderate degree aspects cherry-picks Reilly’s of decompensation in a task accomplishment and opinion. work like generalized Plaintiff 24 17 25 26 In a 2014 mental evaluation of Plaintiff, Patrick B. Reilly, Ph.D. stated as follows: “With regard to grocery shopping, the claimant reports being able to independently achieve the task without the need for assistance. In terms of cooking, he reports cooking and preparing meals independently.” AR 595. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 9 1 also relies on a quote stating that Plaintiff’s “prognosis was poor 2 for the next 12 months and his persistent symptoms brought into doubt 3 the likelihood of a full recovery.” ECF No. 12 at 15 (citing AR 596). 4 Plaintiff uses these statements out of context to argue that the ALJ 5 “did 6 interactions, 7 Dr. Reilly in the hypothetical to the vocational expert.” ECF No. 12 8 at 15. 9 not Dr. include task Reilly’s any associated persistence, report, or however, 10 limitations. 11 Dr. Reilly gave the following opinion: 12 13 14 15 16 17 18 19 20 21 limitations other did on limitations not set interpersonal outlined forth any by such In the “Functional Assessment” portion of the report, Sustained concentration and persistence: The claimant’s attention and concentration characteristics appear to be within normal limits based on performance data related to serial sequences, mental rotation, and execution in multistep directions. Social interaction: The claimant’s social interaction characteristics appear to be within normal limits based on performance data related to general appearance, attitude, general behavior, and the ability to follow conversation appropriately. Adaptation: The claimant’s adaptive characteristics and abilities appear to be within normal limits based on report, history, and evidence of activities of daily living, social functioning, task persistence, and pacing of living skills. AR 597. 22 Thus, the ALJ met her burden at step five and did not err by 23 omitting any additional limitations as to interpersonal interactions 24 25 26 ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 10 1 or task 2 expert. persistence in the hypothetical to the vocational 18 IV. 3 In 4 posed summary, substantial Conclusion evidence in the record as a whole 5 supports the ALJ’s determination.19 6 supported by substantial evidence, for rejecting the opinions of ARNP 7 Ang 8 convincing reasons, supported by substantial evidence, for discounting 9 Plaintiff’s and ARNP Roberts.20 subjective The ALJ provided germane reasons, Similarly, symptom the ALJ testimony.21 provided And, when clear posing and the 10 hypothetical to the vocational expert, the ALJ was not required to 11 include additional limitations based on Dr. Reilly’s report. 12 Accordingly, IT IS HEREBY ORDERED: 13 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 14 2. 15 Defendant’s Motion for Summary Judgment, ECF No. 13, is GRANTED. 16 3. 17 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED. 18 4. 19 The Clerk’s Office is directed to enter JUDGMENT for Defendant. 20 21 18 22 23 24 19 20 25 26 21 See Shaibi v. Berryhill, 870 F.3d 874, 880 (9th Cir. 2017) (holding that an ALJ’s interpretation need only be rational to be upheld); see also Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1222-23 (9th Cir. 2010) (holding that the hypothetical posed to a vocational expert need only be consistent with credibly assessed limitations). See Molina, 674 F.3d at 1121. See id. at 1111. C.f. Haagenson v. Colvin, 656 Fed. App’x 800, 802 (9th Cir. 2016) (holding that ALJ’s dismissal of opinions of nurse and counselor solely because they were “other sources” was reversible error). See Thomas, 278 F.3d at 959. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 11 1 5. 2 IT IS SO ORDERED. The Clerk’s Office is directed to enter this 3 4 The case shall be CLOSED. Order, enter Judgment for Defendant, and provide copies to counsel. DATED this 16th _ day of August 2018. 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 Q:\EFS\Civil\2017\17-CV-5159;Juan C.SS.SJ for Commissioner.LC1.docx ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 12
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