Lockman v. Commissioner of Social Security, No. 4:2018cv05019 - Document 19 (E.D. Wash. 2018)
Court Description: ORDER GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION 17 AND DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION 16 - Signed by Senior Judge Edward F. Shea. (VR, Courtroom Deputy)
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Lockman v. Commissioner of Social Security Doc. 19 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 Nov 27, 2018 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 SHERRY L.,1 No. 4:18-CV-05019-EFS 8 Plaintiff, 9 v. 10 11 NANCY A. BERRYHILL, Commissioner of Social Security, 12 ORDER GRANTING DEFENDANT'S SUMMARY JUDGMENT MOTION AND DENYING PLAINTIFF'S SUMMARY JUDGMENT MOTION Defendant. 13 14 Before the Court, without oral argument, are cross summary-judgment 15 motions.2 Plaintiff Sherry L. appeals the Administrative Law Judge’s (ALJ) denial 16 of benefits.3 Plaintiff contends the ALJ: (1) erred at step one by finding that Plaintiff 17 18 engaged in substantial gainful activity since the alleged onset date; (2) improperly rejected the opinion of a lay witness, Plaintiff’s daughter; (3) improperly rejected the 19 opinions of Plaintiff’s medical providers; (4) improperly rejected Plaintiff’s severe 20 impairments; (5) erred in failing to find that Plaintiff’s impairments met or equaled 21 22 23 1 24 2 25 3 To protect the privacy of social-security plaintiffs, the Court refers to them by first name and last initial. See LCivR 5.2(c). When quoting the Administrative Record in this order, the Court will substitute “Plaintiff” for any other identifier that was used. ECF Nos. 16 & 17. ECF No. 16. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 1 Dockets.Justia.com 1 a listed impairment; (6) erred in rejecting Plaintiff’s subjective complaints; and (7) 2 erred in failing to conduct adequate analyses at steps four and five.4 The Court has 3 4 reviewed the administrative record and the parties’ briefing. For the reasons set forth below, the Court affirms the ALJ’s decision, denies Plaintiff’s Motion, and 5 grants the Commissioner’s Motion. 6 I. Standard of Review 7 On review, the Court must uphold the ALJ’s determination that the claimant 8 9 is not disabled if the ALJ applied the proper legal standards and there is substantial 10 evidence in the record as a whole to support the decision.5 Substantial evidence 11 means more than a mere scintilla, but less than a preponderance.6 It means such 12 relevant evidence as a reasonable mind might accept as adequate to support a 13 conclusion.7 The Court will also uphold “such inferences and conclusions as the [ALJ] 14 may reasonably draw from the evidence.”8 15 16 In reviewing a denial of benefits, the Court considers the record as a whole, not just the evidence supporting the ALJ’s decision.9 That said, the Court may not 17 substitute its judgment for that of the Commissioner. If the evidence supports more 18 than one rational interpretation, a reviewing court must uphold the ALJ’s decision.10 19 20 Further, the Court “may not reverse an ALJ’s decision on account of an error that is 21 4 22 5 23 6 7 24 8 9 25 10 See generally ECF No. 16. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) citing (Stone v. Heckler, 761 F.2d 530, 531 (9th Cir.1985)). Id. at 1110–11. Id. (quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir.2009)). Id. (citing Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir.2008)). Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 2 1 harmless.”11 An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 2 nondisability determination.”12 The burden of showing that an error is harmful 3 normally falls upon the party attacking the agency’s determination.13 4 II. Five-Step Disability Determination 5 The ALJ uses a five-step sequential evaluation process to determine whether 6 an adult claimant is disabled.14 The claimant has the initial burden of establishing 7 8 9 10 entitlement to disability benefits under steps one through four. 15 At step five, however, the burden shifts to the Commissioner to show that the claimant is not entitled to benefits.16 11 Step one assesses whether the claimant is currently engaged in a substantial 12 gainful activity.17 If the claimant is, benefits will be denied.18 If not, the ALJ 13 proceeds to the second step. 14 15 16 Step two assesses whether the claimant has a medically severe impairment, or combination of impairments, which significantly limit the claimant’s physical or mental ability to do basic work activities.19 If the claimant does not, the disability 17 claim is denied. 20 If the claimant does, the evaluation proceeds to the third step. 18 19 20 11 21 22 12 13 14 15 23 16 17 24 18 25 20 19 Molina, 674 F.3d at 1111 (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055–56 (9th Cir.2006)). Id. at 1115 (citations omitted). Id. at 1111 citing (Shinseki v. Sanders, 556 U.S. 396, 409 (2009)). See 20 C.F.R. §§ 404.1520, 416.920. See Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). See Kail v. Heckler, 722 F.2d 1496, 1497 (9th Cir. 1984). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 20 C.F.R. §§ 404.1520(b), 416.920(b). 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 20 C.F.R. §§ 404.1520(c), 416.920(c). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 3 1 Step three compares the claimant’s impairment to several recognized by the 2 Commissioner to be so severe as to preclude substantial gainful activity.21 If the 3 4 impairment meets or equals one of the listed impairments, the claimant is conclusively presumed to be disabled.22 If the impairment does not, the evaluation 5 proceeds to the fourth step.23 6 Step four assesses whether the impairment prevents the claimant from 7 8 9 performing work he or she has performed in the past by determining the claimant’s residual functional capacity (RFC).24 If the claimant is able to perform his or her 10 previous work, the claimant is not disabled.25 If the claimant cannot perform this 11 work, the evaluation proceeds to the fifth step. 12 Step five, the final step, assesses whether the claimant can perform other 13 work in the national economy in light of his or her age, education, and work 14 experience.26 The Commissioner has the burden to show (1) that the claimant can 15 16 perform other substantial gainful activity, and (2) that a “significant number of jobs exist in the national economy” which the claimant can perform.27 If both of these 17 conditions are met, the disability claim is denied; if not, the claim is granted.28 18 19 20 21 22 21 22 23 23 24 25 24 26 25 28 27 20 C.F.R. §§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d). See 404 Subpt. P App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). 20 C.F.R. §§ 404.1520(e), 416.920(e). 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Id. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). Kail, 722 F.2d at 1497–98; 20 C.F.R. §§ 404.1520(g), 416.920(g). 20 C.F.R. §§ 404.1520(g), 416.920(g). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 4 1 III. 2 3 4 Facts, Procedural History, and the ALJ’s Findings Plaintiff was born on March 25, 1962, and is 54 years old.29 Plaintiff has her two year college degree.30 From October 2014 to March 2015, Plaintiff worked at an onion plant in Pasco, Washington, picking debris out of onions on a conveyor belt.31 5 Plaintiff testified that her job ended after Plaintiff was informed she was being taken 6 off the schedule at work.32 7 On December 23, 2013, Plaintiff filed a Title II application for a period of 8 9 disability and disability insurance benefits,33 and a Title XVI application for 10 supplemental security income.34 In both applications, Plaintiff alleged disability 11 beginning on September 30, 2013.35 Plaintiff’s claims were initially denied and also 12 denied upon reconsideration.36 Plaintiff requested a hearing before an ALJ, which 13 was held on February 3, 2016.37 On February 26, 2016 the ALJ, M.J. Adams, 14 rendered a decision denying Plaintiff’s claim.38 15 16 At step one, the ALJ found Plaintiff had engaged in substantial gainful activity from October 2014 through March 2015.39 17 18 19 20 29 21 22 30 31 32 33 34 23 35 36 24 37 38 25 39 See Administrative Record (AR) 654. Id. AR 655–58. AR 659. AR 24. Id. Id. Id. Id. AR 24–37. AR 26. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 5 1 At step two, the ALJ found the Plaintiff had one severe medical impairment: 2 degenerative changes of the lumbar spine.40 The ALJ also found that Plaintiff’s HIV, 3 4 rash/dermatitis, trigger finger, hand arthritis, knee pain, hip pain, foot problems, shoulder pain, rheumatoid arthritis, Attention Deficit Hyperactivity Disorder, 5 memory loss, substance use disorder, and adjustment disorder were not severe.41 6 At step three, the ALJ found that Plaintiff did not have an impairment that 7 8 met the severity of a listed impairment.42 At step four, the ALJ found that Plaintiff has the RFC to lift and/or carry 50 9 10 pounds occasionally and 25 pounds frequently, stand and/or walk six hours in an 11 eight-hour workday with usual breaks, and sit six hours in an eight-hour workday 12 with usual breaks.43 The ALJ also found that Plaintiff can push and pull, including 13 operation of hand and foot controls without limitations, except those noted for lifting 14 and carrying.44 The ALJ stated that Plaintiff can frequently climb ramps, stairs, 15 16 ladders, ropes, and scaffolds, as well as balance without limitation, and can frequently kneel, crouch, and crawl.45 The ALJ did not find that the Plaintiff had 17 manipulative, visual, communicative, or environmental limitations.46 In reaching 18 these conclusions, the ALJ found that Plaintiff’s degenerative changes of lumbar 19 20 spine could be reasonably expected to cause the alleged symptoms, but that her 21 22 40 41 23 42 43 24 44 45 25 46 AR 27. AR 27–34. AR 31. AR 31–32. Id. Id. Id. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 6 1 statements concerning the intensity, persistence, and limiting effects of the 2 symptoms were not entirely consistent with evidence presented in the record.47 3 4 When determining Plaintiff’s RFC, the ALJ gave little weight to the lay witness testimony of Monica Mata, Plaintiff’s daughter.48 The ALJ gave some weight 5 to the July 2014 opinion of Dr. Steven Vanderwaal.49 The ALJ gave greater weight 6 to the 2014 state agency opinion of Dr. Susan Moner.50 The ALJ gave little weight 7 8 9 10 the December 2015 opinion of PA-C Ryan Law.51 The ALJ gave some weight to the July 2014 opinion of Dr. Heather Bee, but limited weight to Dr. Bee’s opinion that Plaintiff struggles to relate to others.52 11 At step five, the ALJ found that Plaintiff was able to perform past relevant 12 work as a waitress, bartender, cashier, supervisor, and agricultural produce sorter.53 13 The ALJ found that these jobs do not require the performance of work-related 14 activities precluded by Plaintiff’s RFC.54 Alternatively, the ALJ found that there are 15 16 other jobs that exist in significant numbers in the national economy that Plaintiff can perform, considering her age, education, work experience, and RFC.55 17 18 19 20 21 22 47 48 49 50 23 51 52 24 53 54 25 55 AR 32. AR 34. Id. AR 34. Id. AR 35. Id. Id. AR 36. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 7 1 The Appeals Council denied Plaintiff’s request for review,56 making the ALJ’s 2 decision the final decision for purposes of judicial review.57 Plaintiff filed this lawsuit 3 on February 2, 2018.58 4 IV. Applicable Law & Analysis 5 A. 6 The ALJ did not err in finding that Plaintiff engaged in substantial gainful activity. 7 Plaintiff’s work at the onion plant from October 2014 to March of 2015 is 8 presumptively substantial gainful activity (SGA) because Plaintiff’s average 9 10 monthly earnings exceeded the substantial gainful employment amounts. SGA is work done for pay or profit that involves significant mental or physical activities.59 11 Earnings may be a presumptive, but not conclusive, sign of whether a job is 12 substantial gainful activity.60 Monthly earnings averaging more than $1,070 in 2014, 13 14 15 and $1,090 in 2015 generally show that a claimant has engaged in substantial gainful activity.61 Plaintiff earned $223.00 during the third quarter of 2014, 16 $6,065.00 during the fourth quarter of 2014, and $4,951.00 during the first quarter 17 of 2015 while working at the onion plant.62 The ALJ therefore correctly concluded 18 that Plaintiff’s average monthly earnings of $1,293.50 in 2014 and $1,650.33 in 2015 19 20 21 22 56 57 58 59 23 60 24 61 25 62 AR 7. 42 U.S.C. § 1383(c)(3); 20 C.F.R. §§ 416.1481, 422.210. ECF No. 1. Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001); 20 C.F.R. §§ 404.1571–404.1572, 416.971– 416.975. 20 C.F.R. §§ 404.1574(b)(2), 416.974(b)(2). See Substantial Gainful Activity, Social Security, https://www.ssa.gov/oact/cola/sga.html (last visited Nov. 19, 2018). Id. AR 26, 139 & 149. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 8 1 exceeded the SGA amounts per month for the calendar years of 2014 and 2015, 2 making her work presumptively SGA. 3 4 Further, substantial evidence supports the ALJ’s finding that Plaintiff’s work was not an “unsuccessful work attempt,” and that Plaintiff therefore failed to rebut 5 the presumption that she engaged in SGA.63 When a claimant works for less than 6 six months, that work will be considered an unsuccessful work attempt and not SGA 7 8 9 if the claimant stopped working because of his or her impairment, or because of the removal of special conditions that took into account the claimant’s impairment and 10 permitted the claimant to work.64 Plaintiff argues that she was unable to keep up 11 with the demands of her employment and sustained multiple injuries, which 12 resulted in the termination of her employment.65 However, the ALJ noted that 13 Plaintiff admitted she was unsure why her job ended.66 Further, the ALJ found that 14 the record did not support Plaintiff’s allegations that she often missed work, was 15 16 injured on the job three times, and was constantly reprimanded for sitting down at work.67 Therefore, the ALJ properly concluded that Plaintiff’s work at the onion 17 plant was not an unsuccessful work attempt. 18 19 20 63 64 21 65 66 22 23 24 25 67 AR 27. 20 CFR §§ 404.1574(c)(3), 416.974(c)(3). ECF No. 16 at 9. Compare Lingenfelter v. Astrue, 504 F.3d 1028, 1033 (9th Cir. 2007) (holding that where the claimant was fired after nine weeks “because he was too slow to do the work adequately” and because he “just couldn’t do it anymore because of the pain,” this constituted an unsuccessful work attempt) and Taylor v. Colvin, No. 3:13-CV-05448-RBL, 2014 WL 2216094, at *5 (W.D. Wash. May 23, 2014) (finding that claimant’s work was SGA because “the record in Lingenfelter showed the claimant stopped working due to his impairments, whereas the record here, as plaintiff himself admits, fails to demonstrate that. Indeed, plaintiff admits he does not know why those jobs ended.”) (citation omitted). See AR 26–27 & 658–59. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 9 1 Plaintiff points to three medical reports to support her argument,68 none of 2 which contradict the substantial evidence that supports the ALJ’s conclusion.69 3 4 First, Plaintiff points to a March 2, 2015 report where Plaintiff presented with leg numbness resulting from a work accident.70 Plaintiff also states that an April 16, 5 2015 report proves that her leg numbness was not improving and shows new 6 injuries, including a back injury.71 However, the April report does not state whether 7 8 9 Plaintiff’s leg numbness was improving or worsening—it only indicates that she was still being treated for leg numbness.72 Further, the back injury indicated in the April 10 report states that the back injury began on April 12, 2015, after Plaintiff’s 11 employment ended.73 Finally, Plaintiff cites to an MRI from July 28, 2015—four 12 months after Plaintiff stopped working.74 Ultimately, the ALJ rationally concluded 13 that the record does not show Plaintiff stopped working because of her impairment.75 14 The ALJ was not required to continue to steps two through five because 15 16 Plaintiff failed at step one, therefore any subsequent errors are harmless.76 B. 17 The ALJ did not improperly reject the opinion of Plaintiff’s lay witness. 18 The ALJ provided sufficient reasons for giving little weight to the lay witness 19 testimony of Monica Mata, Plaintiff’s daughter. An ALJ need only give germane 20 21 68 69 22 70 23 72 71 73 24 74 75 25 76 ECF No. 16 at 10. The Court also notes that the ALJ need not discuss every piece of medical evidence. Smith v. Berryhill, 708 F. App’x 402, 403 (9th Cir. 2017). ECF No. 16 at 10. See AR 474–75. Id. AR 476. AR 477 (“This is a new problem. Episode onset: [S]unday”). ECF No. 16 at 10. See AR 449, 508. See Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). Molina, 674 F.3d at 1115. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 10 1 reasons for discrediting the testimony of lay witnesses.77 Ms. Manta stated that 2 Plaintiff’s back injury limits Plaintiff’s ability to bend, lift, stand for long periods, 3 4 and lift heavy objects.78 The ALJ provided three particularized reasons for discounting Ms. Manta’s testimony: the ALJ stated that Ms. Manta’s descriptions 5 were inconsistent with (1) Plaintiff’s physical examinations, (2) Plaintiff’s own 6 testimony, and (3) Plaintiff’s work at the onion plant.79 Therefore, the ALJ did not 7 8 9 improperly reject the opinion of Ms. Manta. C. 10 The ALJ did not improperly reject the opinions of Plaintiff’s medical providers. The ALJ properly assigned little weight to Mr. Law’s December 2015 11 opinion,80 some weight to Dr. Bee’s July 2014 opinion, and limited weight to Dr. Bee’s 12 opinion that Plaintiff struggles to relate to others.81 13 1. 14 Ryan Law The ALJ properly gave the opinion of Mr. Law less weight than the opinion of 15 16 Dr. Moner. Mr. Law, a physician’s assistant, is considered an “other source,”82 17 therefore, his opinion is entitled to less weight than opinions from acceptable medical 18 sources.83 The ALJ concluded that the opinion of Dr. Moner, an acceptable medical 19 20 21 22 77 78 79 80 81 23 82 24 83 25 Lewis, 236 F.3d at 511. AR 213–220. See AR 34 & 712–13. AR 35. Id. Medical opinions are separated into evidence from acceptable and nonacceptable medical sources and “other sources.” Physician’s assistants are considered “other sources” and “nonacceptable medical sources.” 20 CFR § 404.1513(d)(1). Noe v. Apfel, 6 F. App’x 587, 588 (9th Cir. 2001) (citing Gomez v. Chater, 74 F.3d 967, 970–71 (9th Cir. 1996)). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 11 1 source, more accurately reflected the medical records and properly gave Mr. Law’s 2 opinion less weight.84 3 4 Further, The ALJ may discount the opinion of an “other source” by providing reasons that are germane to that witness.85 Mr. Law diagnosed Plaintiff with 5 degenerative disc disease and polyarthritis, concluding that Plaintiff was limited to 6 light exertional work.86 The ALJ provided several reasons supported by the record 7 8 9 for discounting Mr. Law’s opinion: Mr. Law’s opinion was inconsistent with (1) Plaintiff’s medical record; (2) Plaintiff’s work at the onion plant, which required her 10 to lift 20 pounds and stand for her entire shift; (3) Plaintiff’s own report in July 2014 11 that she could lift up to 20 pounds, stand two hours, and walk one mile; (4) overall 12 objective findings that Plaintiff retained intact motor and sensory function 13 throughout her extremities.87 Therefore, the ALJ properly discounted Mr. Law’s 14 opinion. 15 2. 16 Dr. Bee’s opinions The opinion of Dr. Bee, a non-treating source, 88 was properly accorded less 17 weight because her opinion was contradicted by the record.89 “A report of a non18 examining, non-treating physician should be discounted and is not substantial 19 20 21 84 85 86 22 87 88 23 24 25 89 See AR 34 & 60–73. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993). AR 448. See AR 35 & 412–13. AR 62. Plaintiff argues that the ALJ did not explain how Dr. Bee’s conclusions were based on Plaintiff’s subjective complaints rather than objective testing.89 However, the ALJ’s inference is rational because Dr. Bee’s conclusion seems to be based on Plaintiff’s report that she has had altercations with co-workers. See Molina, 674 F.3d at 1110 (concluding that Courts should uphold reasonable inferences by the ALJ); AR 415, 417 & 422. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 12 1 evidence when contradicted by all other evidence in the record.”90 The ALJ gave some 2 weight to Dr. Bee’s July 2014 opinion that the claimant possessed adequate cognitive 3 4 capacities to function in a number of employment roles and limited weight to Dr. Bee’s opinion that the claimant struggles to relate to others.91 The ALJ reasoned 5 that Dr. Bee did not have the opportunity to review the longitudinal record, which 6 supported no more than mild limitations in social functioning.92 Additionally, the 7 8 9 ALJ noted that the longitudinal record shows minimal mental complaints, essentially no mental health treatment, and that providers frequently described 10 Plaintiff as having a normal mood and affect.93 Therefore, the evidence on the record 11 contradicted Dr. Bee’s opinion and the ALJ properly disregarded it. 12 D. The ALJ did not improperly reject Plaintiff’s severe impairments at step two. 13 Substantial evidence supported the ALJ’s conclusion that Plaintiff had only 14 15 one severe impairment: degenerative changes of the lumbar spine.94 At step two, the 16 claimant has the burden to show that he or she has a medically severe impairment 17 or combination of impairments.95 The ALJ will only find an impairment to be severe 18 if it “significantly limits [the claimant’s] physical or mental ability to do basic work 19 activities.”96 The “ability to do basic work activities” means possessing “the abilities 20 and aptitudes necessary to do most jobs.”97 For Plaintiff, the most relevant activities 21 22 90 91 92 23 93 94 24 95 96 25 97 Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984) (citation omitted). AR 30. AR 30, 33. AR 30. AR 31. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). 20 C.F.R. §§ 404.1521(a), 416.920(a). 20 C.F.R. §§ 404.1521(b), 416.920(b). ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 13 1 include the ability to perform physical functions such as walking, sitting, lifting, 2 pushing, pulling, reaching, carrying, or handling.98 “An impairment is considered 3 4 ‘not severe’ if it is a slight abnormality that causes no more than minimal limitations in the individual’s ability to function independently, appropriately, and effectively 5 in an age-appropriate manner.”99 Thus, the ALJ must have had substantial evidence 6 to find that the medical evidence clearly established that Plaintiff did not have a 7 8 medically severe impairment or combination of impairments.100 Substantial evidence indicates that the medical evidence does not establish 9 10 that Plaintiff’s HIV was a severe impairment because it was well controlled since 11 beginning treatment in December 2014; thus, it did not significantly limit her ability 12 to do basic work activities.101 Plaintiff’s testimony that she experienced fatigue from 13 her HIV medication was not corroborated by any of the treatment notes from her 14 former HIV provider, who noted that she was tolerating therapy well.102 15 16 Substantial evidence indicates that the medical evidence does not establish that Plaintiff’s rash/dermatitis was a severe impairment because it was resolved 17 within 6 months; thus, it did not significantly impair her ability to work.103 18 Substantial evidence indicates that the medical evidence does not establish 19 20 21 that trigger finger and arthritis were severe impairments because Plaintiff’s medical examinations and records, as well as her job as a produce sorter, contradicted 22 98 23 99 24 101 100 102 25 103 20 C.F.R. §§ 404.1522, 416.922. Webb, 433 F.3d at 686–87 (citations omitted). Id. at 687. AR 27. See AR 27 & 534–67. AR 27 & 417. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 14 1 Plaintiff’s testimony.104 Thus, evidence did not indicate that it significantly impaired 2 Plaintiff’s ability to work. 3 4 Substantial evidence indicates that the medical evidence does not establish that shoulder, knee, and foot pain were severe impairments because Plaintiff’s 5 alleged symptoms were not consistent with Plaintiff’s physical examination, medical 6 records, and examinations.105 Further, no provider ever ordered any imaging studies 7 8 9 of her hips or workups of her shoulders.106 Thus, evidence did not establish that it significantly impaired Plaintiff’s ability to work. 10 Substantial evidence indicates that the medical evidence does not establish 11 that ADHD was a severe impairment because Mr. Law, who diagnosed Plaintiff with 12 ADHD, is not qualified to establish whether an individual has a medically 13 determinable impairment.107 Further, Dr. Bee did not diagnose Plaintiff with 14 ADHD.108 The ALJ also found that a diagnosis of ADHD was inconsistent with 15 Plaintiff’s education and work history.109 16 Substantial evidence indicates that the medical evidence does not establish 17 that memory loss was a severe impairment because Dr. Bee did not find evidence of 18 a cognitive disorder.110 19 20 21 22 104 105 23 106 107 24 108 109 25 110 AR 27. AR 29. Id. Id. Id. Id. AR 30. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 15 1 Substantial evidence indicates that the medical evidence does not establish 2 that substance abuse was a severe impairment because Plaintiff was largely clean 3 and sober since the alleged onset date of September 2013.111 4 Substantial evidence indicates that the medical evidence does not establish 5 that adjustment disorder was a severe impairment because Plaintiff’s providers 6 consistently stated she had a normal mood and affect.112 Further, although Dr. Bee 7 8 9 diagnosed Plaintiff with adjustment disorder, Dr. Bee was a one-time examiner who did not have the opportunity to review the entire longitudinal record, which shows 10 minimal mental health complaints and no mental health treatment.113 Alternatively, 11 the ALJ based this conclusion on Plaintiff’s “Part B” ratings, which showed Plaintiff 12 had: (1) no more than mild limits in daily living; (2) no more than mild limitations 13 in social functioning; (3) no more than mild limits in concentration, persistence, and 14 pace; and (4) no episodes of decompensation.114 15 E. 16 The ALJ did not improperly discount Plaintiff’s subjective account. The ALJ found that Plaintiff’s medical impairment could reasonably be 17 expected to produce the Plaintiff’s alleged symptoms. The ALJ engages in a two-step 18 analysis to determine whether a claimant’s testimony regarding subjective pain or 19 20 21 symptoms is credible. First, the ALJ determines whether there is objective medical evidence of an impairment that could reasonably be expected to produce the alleged 22 23 111 24 112 25 114 113 Id. AR 30–31. Id. Id. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 16 1 symptoms.115 In the present case, because the ALJ determined the Plaintiff’s medical 2 impairment could “reasonably be expected to cause the alleged symptoms,” she 3 passed the first step of the analysis.116 4 However, the ALJ properly rejected Plaintiff’s subjective account of her 5 symptoms. If a claimant meets the first test and there is no evidence of malingering, 6 the ALJ can only reject the claimant’s testimony about the severity of the symptoms 7 8 9 if the ALJ gives “specific, clear and convincing reasons” for doing so.117 In making an adverse credibility determination, an ALJ may consider: (1) the claimant’s 10 reputation for truthfulness; (2) inconsistencies in the claimant’s testimony or 11 between her testimony and her conduct; (3) the claimant’s daily living activities; (4) 12 the claimant’s work record; and (5) the nature, severity, and effect of the claimant’s 13 condition.118 The ALJ found that Plaintiff’s allegations were out of proportion with 14 the overall objective evidence because her symptoms were contradicted by medical 15 16 evidence, including an MRI in July of 2015 and physical examination findings.119 The ALJ also found the allegations were also inconsistent with Plaintiff’s conduct, 17 reports, work at the onion plant, and subsequent filing for and receipt of 18 19 20 21 22 115 116 117 23 24 118 25 119 Molina, 674 F.3d at 1112 (internal quotations and citations omitted). AR 25. Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)). See Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citation omitted) (noting the ALJ must make sufficiently specific findings “to permit the court to conclude that the ALJ did not arbitrarily discredit [the] claimant’s testimony.”). Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002). See AR 32–34, 449 & 508. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 17 1 unemployment benefits.120 Therefore, substantial evidence existed for the ALJ to 2 discount Plaintiff’s subjective complaints. 3 4 The ALJ did not err in failing to find that Plaintiff’s impairments met or equaled a Listing. 5 The ALJ reasonably concluded that Plaintiff failed to meet Listing 1.04A.121 6 At step three, the ALJ determines if a claimant’s impairment meets or equals an 7 impairment listed in Appendix 1 to Subpart P of Regulations Number 4.122 As the 8 Social Security Ruling explains, each case should be evaluated based on the 9 F. record.123 Listing 1.04A, disorders of the spine, requires Plaintiff to exhibit: 10 Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).124 11 12 13 14 15 The ALJ properly concluded that Plaintiff demonstrated intact motor, sensory, and neurologic function on physical examinations, as well as negative straight leg 16 raising.125 Accordingly, the ALJ’s finding that Plaintiff did not meet listing 1.04A 17 was supported by substantial evidence. 18 G. The ALJ did not fail to meet her step four or five burden. 19 At step four, the ALJ properly concluded that Plaintiff was able to perform 20 past relevant work as a waitress, bartender, cashier, supervisor, and agricultural 21 22 23 120 121 122 24 123 124 25 125 AR 33 (noting that Plaintiff held herself out as “ready, able, and willing to work.”). See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161–62 (9th Cir. 2008) (“[R]eceipt of unemployment benefits can undermine a claimant’s alleged inability to work fulltime.”). AR 23–24. 20 C.F.R. §§ 404.1520(d), 404 Subpt. P App. 1, 416.920(d). Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (citing SSR 02–01p (2002)). 20 C.F.R. §§ 404.1520(d), 404 Subpt. P App. 1, 416.920(d). See AR 31, 523–30 & 412–13. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 18 1 sorter.126 At step four, the ALJ asks whether Plaintiff can perform any past 2 performed work.127 The ALJ concluded that Plaintiff’s past jobs do not require the 3 4 performance of work-related activities precluded by Plaintiff’s RFC because the Plaintiff performed them in the last 15 years at SGA levels.128 The ALJ also adopted 5 the testimony of the vocational expert (VE), who opined that Plaintiff can perform 6 all of her past relevant work.129 Therefore, substantial evidence supported the ALJ’s 7 8 conclusion at step four. While the ALJ did not need to proceed to step five, the ALJ alternatively found 9 10 that there would still be a significant number of jobs in the national economy that 11 Plaintiff could perform, even if Plaintiff’s RFC was limited to medium or light 12 work.130 At step five, the Commissioner has the burden to “identify specific jobs 13 existing in substantial numbers in the national economy that [the] claimant can 14 perform despite her identified limitations.”131 An ALJ may solicit VE testimony as 15 16 to the availability of jobs in the national economy.132 A VE’s testimony may constitute substantial evidence.133 The ALJ adopted the VE’s testimony that 17 substantial jobs existed that Plaintiff could perform,134 therefore the ALJ’s 18 conclusion was supported by substantial evidence. 19 20 126 21 22 127 128 129 130 23 131 24 133 25 134 132 Bayliss v. Barnhart, 427 F.3d 1211, 1217–18 (9th Cir. 2005) (concluding that VE testimony can constitute substantial evidence). 20 C.F.R. §§ 404.1520(e), 416.920(e). AR 35. See AR 35–36 & 676–81. AR 36. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). Tackett v. Apfel, 180 F.3d 1094, 1100–01 (9th Cir. 1999). Bayliss, 427 F.3d at 1217–18. See Hill v. Astrue, 698 F.3d 1153, 1158 (9th Cir. 2012). See also Farias v. Colvin, 519 F. App’x 439, 440 (9th Cir. 2013). See AR 36–37 & 676–81. ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 19 1 Plaintiff argues that because the ALJ improperly rejected medical findings, 2 severe impairments, and supported functional limitations, the VE’s testimony was 3 4 incomplete and of no evidentiary value.135 This argument merely restates Plaintiff’s earlier allegations.136 The ALJ’s hypothetical properly accounted for the limitations 5 supported by the record.137 6 V. Conclusion 7 In summary, the Court finds the record contains substantial evidence from 8 9 which the ALJ properly concluded that Plaintiff does not qualify for benefits. 10 Accordingly, IT IS HEREBY ORDERED: 11 1. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED. 12 2. The Commissioner’s Motion for Summary Judgment, ECF No. 17, is 13 GRANTED. 14 15 16 3. JUDGMENT is to be entered in the Commissioner’s favor. 4. The case shall be CLOSED. IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and 17 provide copies to all counsel. 18 DATED this 27th day of November 2018. 19 20 s/Edward F. Shea EDWARD F. SHEA Senior United States District Judge 21 22 23 135 24 136 137 25 ECF No. 16 at 19–20. Id. See Magallanes v. Bowen, 881 F.2d 747, 756–57 (9th Cir. 1989) (holding it is proper for the ALJ to limit a hypothetical to those restrictions supported by substantial evidence in the record). Q:\EFS\Civil\2018\18-cv-5019.Sherry L. Order Denying Petitioner's MSJ.lc02.docx ORDER GRANTING SUMMARY JUDGMENT FOR DEFENDANT - 20
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