Ard v. Kijakazi

Opinion

1 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 2 Apr 12, 2023 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 ELIZABETH A., No. 1:22-CV-03081-SAB 9 Plaintiff, 10 v. ORDER DENYING PLAINTIFF’S 11 COMMISSIONER OF SOCIAL MOTION FOR SUMMARY 12 SECURITY ADMINISTRATION, JUDGMENT; AFFIRMING DENIAL 13 Defendant. OF BENEFITS 14 15 Before the Court are Plaintiff’s Motion for Summary Judgment, ECF No. 11 16 and Defendant’s Motion for Summary Judgment, ECF No. 16. Plaintiff is 17 represented by D. James Tree; Defendant is represented by John Drenning, 18 Michael Mullen and Brian M. Donovan. 19 Plaintiff brings this action seeking judicial review of the Commissioner of 20 Social Security’s final decision denying her application for Social Security 21 benefits. ECF No. 1 After reviewing the administrative record and briefs filed by 22 the parties, the Court is now fully informed. For the reasons set forth below, the 23 Court denies Plaintiff’s Motion for Summary Judgment, ECF No. 11, and grants 24 Defendant’s Motion for Summary Judgment, ECF No. 16. 25 I. Jurisdiction 26 On October 15, 2015, Plaintiff filed an application for disability insurance 27 benefits, with onset of October 5, 2015. Plaintiff’s application was denied initially 1 appealed that decision to the District Court, which remanded the case for additional 2 proceedings. 3 On February 3, 2022, a telephonic hearing was held. Plaintiff appeared and 4 testified before an ALJ, with the assistance of his counsel, D. James Tree and 5 Robert Tree. Justin Puritan, vocational expert, also participated. The ALJ found 6 that Plaintiff was not disabled. 7 Plaintiff filed a timely appeal with the United States District Court for the 8 Eastern District of Washington on June 24, 2022. ECF No. 1. 9 II. Five-Step Sequential Evaluation Process 10 The Social Security Act defines disability as the “inability to engage in any 11 substantial gainful activity by reason of any medically determinable physical or 12 mental impairment which can be expected to result in death or which has lasted or 13 can be expected to last for a continuous period of not less than twelve months.” 42 14 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 15 under a disability only if their impairments are of such severity that the claimant is 16 not only unable to do their previous work, but cannot, considering claimant’s age, 17 education, and work experiences, engage in any other substantial gainful work that 18 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 19 Commissioner has established a five-step sequential evaluation process to 20 determine whether a person is disabled in the statute. See 20 C.F.R. §§ 21 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 22 Step One: Is the claimant engaged in substantial gainful activities? 20 23 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work 24 done for pay and requires compensation above the statutory minimum. Keyes v. 25 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 26 substantial activity, benefits are denied. 20 C.F.R. § 404.1520(b), 416.920(b). If 27 the claimant is not, the ALJ proceeds to step two. 1 combination of impairments? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A 2 severe impairment is one that lasted or must be expected to last for at least 12 3 months and must be proven through objective medical evidence. Id. §§ 404.1509, 4 416.909. If the claimant does not have a severe impairment or combination of 5 impairments, the disability claim is denied. Id. § 404.1520(a)(4)(ii), 6 416.920(a)(4)(ii). If the impairment is severe, the evaluation proceeds to the third 7 step. 8 Step Three: Does the claimant’s impairment meet or equal one of the listed 9 impairments acknowledged by the Commissioner to be so severe as to preclude 10 substantial gainful activity? 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 11 the impairment meets or equals one of the listed impairments, the claimant is 12 conclusively presumed to be disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the 13 impairment is not one conclusively presumed to be disabling, the evaluation 14 proceeds to the fourth step. 15 Before considering to the fourth step, the ALJ must first determine the 16 claimant’s residual functional capacity. An individual’s residual functional 17 capacity is their ability to do physical and mental work activities on a sustained 18 basis despite limitations from their impairments. 20 C.F.R. §§ 404.1545(a)(1), 19 416.945(a)(1). The residual functional capacity is relevant to both the fourth and 20 fifth steps of the analysis. 21 Step Four: Does the impairment prevent the claimant from performing work 22 they have performed in the past? 20 C.F.R. §§ 404.1520(a)(4)(iv), 23 416.920(a)(4)(iv). If the claimant is able to perform their previous work, they are 24 not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform 25 this work, the evaluation proceeds to the fifth and final step. 26 Step Five: Is the claimant able to perform other work in the national 27 economy in view of their age, education, and work experience? 20 C.F.R. §§ 1 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 2 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 3 establishes that a physical or mental impairment prevents him from engaging in her 4 previous occupation. Id. At step five, the burden shifts to the Commissioner to 5 show that the claimant can perform other substantial gainful activity. Id. 6 III. Standard of Review 7 The Commissioner’s determination will be set aside only when the ALJ’s 8 findings are based on legal error or are not supported by substantial evidence in the 9 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 10 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 11 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 12 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 13 evidence is “such relevant evidence as a reasonable mind might accept as adequate 14 to support a conclusion.” Richardson, 402 U.S. at 401. 15 A decision supported by substantial evidence will be set aside if the proper 16 legal standards were not applied in weighing the evidence and making the decision. 17 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 18 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 19 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 20 1050, 1055 (9th Cir. 2006). The Court must uphold the ALJ’s denial of benefits if 21 the evidence is susceptible to more than one rational interpretation, one of which 22 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 23 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 24 weighing both the evidence that supports and the evidence that detracts from the 25 Commissioner’s conclusion, and may not affirm simply by isolating a specific 26 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 27 2017) (quotation omitted). “If the evidence can support either outcome, the court 1 IV. Statement of Facts 2 The facts have been presented in the administrative record, the ALJ’s 3 decision, and the briefs to this Court. Only the most relevant facts are summarized 4 herein. 5 Plaintiff was 32 years old at the alleged date of onset. Plaintiff left school 6 after the eighth grade, but she was able to obtain her GED. At the first hearing, she 7 testified that she had a variety of jobs but she had trouble keeping them due to 8 various problems, including anger, harassment, as well as her physical and mental 9 issues. She was living with her grandmother and her fifteen-year-old son. 10 At the second hearing, Plaintiff testified that she works for Klickitat County 11 as a certified nursing assistant (CNA). She testified that she works 12-hour shifts 12 for six days and then is off for eight days unless she picks up extra shifts. Prior to 13 obtaining her CNA license and her current job, Plaintiff worked for about a year or 14 year and a half as the activity coordinator at New Hope Farms. She also got 15 married. 16 V. The ALJ’s Findings 17 The ALJ issued an opinion affirming denial of benefits. AR 700-718. At step 18 one, the ALJ found that Plaintiff engaged in substantial gainful activity during the 19 following periods: April 2020 to present but found there had been a continuous 12- 20 month period during which she did not engage in substantial gainful activity. AR 21 703. 22 At step two, the ALJ identified the following severe impairments: chronic 23 obstructive pulmonary disease (COPD), carpal tunnel syndrome, gastrointestinal 24 disorder, depressive disorder, posttraumatic stress disorder (PTSD), borderline 25 personality disorder, and cannabis dependence. AR 703. 26 At step three, the ALJ found that Plaintiff did not have an impairment or 27 combination of impairments that meets or medically equals the severity of one of 1 residual function capacity (“RFC”) to perform:

2 perform light work as defined in 20 CFR 404.1567(b) and 3 416.967(b) except she can occasionally stoop, crouch, and climb ramps and stairs; cannot crawl, kneel, or climb ropes, ladders, or 4 scaffolds; and can frequently reach, handle, and finger. The claimant 5 is able to remember, understand, and carry out simple and routine instructions and tasks consistent with the learning and training 6 requirements of SVP level one and two jobs and reasoning levels of 7 two or less; in a work environment that is routine and predictable; can have no contact with the public; is capable or working in proximity to 8 but not in coordination with co-workers; and can have occasional 9 contact with supervisors. AR 706. 10 At step four, the ALJ found that Plaintiff was unable to perform any past 11 relevant work. AR 717. 12 At step five, the ALJ found there were other jobs that existed in significant 13 numbers in the national economy that Plaintiff could also perform, including 14 housekeeping cleaner, office helper, and small parts assembler. AR 718. 15 VI. Issues 16 1. Whether the ALJ properly assessed Plaintiff’s symptom testimony. 17 2. Whether the ALJ properly assessed the opinion evidence. 18 3. Whether the RFC mandates that Plaintiff be found to be disabled. 19 VII. Analysis 20 1. Plaintiff’s Symptom Testimony 21 The ALJ found that while Plaintiff’s medically determinable impairments 22 could reasonably cause some of the alleged symptoms, her statements concerning 23 the intensity, persistence, and limiting effects of these symptoms are not entirely 24 consistent with the medical evidence and other evidence in the record. 25 An ALJ’s assessment of a claimant’s credibility is entitled to “great weight.” 26 Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir.1990). When there is no 27 evidence of malingering, the ALJ must give “specific, clear and convincing 1 reasons” for rejecting a claimant’s subjective symptom testimony. Molina v. 2 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation omitted). If the ALJ’s 3 credibility finding is supported by substantial evidence in the record, the reviewing 4 court “may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 5 959 (9th Cir. 2002). 6 In recognition of the fact that an individual’s symptoms can sometimes 7 suggest a greater level of severity of impairment than can be shown by the 8 objective medical evidence alone, 20 C.F.R. §§ 404.1529(c) and 416.929(c) 9 describe the kinds of evidence, including the factors below, that the ALJ must 10 consider in addition to the objective medical evidence when assessing the 11 credibility of an individual’s statements:

12 1. The individual’s daily activities; 2. The location, duration, 13 frequency, and intensity of the individual’s pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, 14 dosage, effectiveness, and side effects of any medication the 15 individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has 16 received for relief of pain or other symptoms; 6. Any measures other 17 than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 18 minutes every hour, or sleeping on a board); and 7. Any other factors 19 concerning the individual’s functional limitations and restrictions due to pain or other symptoms. 20 SSR 96-7P, 1996 WL 374186. 21 The ALJ discounted Plaintiff’s statements because it believed the medical 22 evidence was not consistent with the symptoms and limitations alleged by Plaintiff 23 and the medical records show that while Plaintiff had some limitations, they were 24 not as severe as she alleged. The ALJ noted that while the longitudinal record 25 documented some continued symptoms, it also shows modest mental status 26 examination findings and improvement with medication throughout the entire 27 period at issue. The ALJ also relied on the fact that Plaintiff’s activity levels were 1 inconsistent with her claimed limitations. 2 These are specific, clear and convincing reasons for rejecting Plaintiff’s 3 subjective symptom testimony. As such, the ALJ’s credibility determination is 4 supported by substantial evidence in the record. 5 2. The ALJ’s Evaluation of the Medical Opinions 6 The medical opinion of a claimant’s treating physician is given “controlling 7 weight” as long as it “is well-supported by medically acceptable clinical and 8 laboratory diagnostic techniques and is not inconsistent with the other substantial 9 evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2); Trevizo v. 10 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). When a treating physician’s opinion 11 is not controlling, it is weighted according to factors such as the length of the 12 treatment relationship and the frequency of examination, the nature and extent of 13 the treatment relationship, supportability, consistency with the record, and 14 specialization of the physician. § 404.1527(c)(2)-(6); Id. “If a treating or 15 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 16 may only reject it by providing specific and legitimate reasons that are supported 17 by substantial evidence. Trevizo, 871 F.3d at 675 (quoting Ryan v. Comm’r of Soc. 18 Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)). “[A]n ALJ errs when he rejects a 19 medical opinion or assigns it little weight while doing nothing more than ignoring 20 it, asserting without explanation that another medical opinion is more persuasive, 21 or criticizing it with boilerplate language that fails to offer a substantive basis for 22 his conclusion.” Garrison v. Colvin, 759 F.3d 995, 1012–13 (9th Cir. 2014) (citing 23 Nguyen v. Chater, 100 F.3d 1462, 1464 (9th Cir. 1996)). 24 Plaintiff asserts the ALJ gave improper weight to Ms. K. Mata, M.S., M. 25 Anders, LICSW, and Dr. Reinmuth. The ALJ gave little weight to these provider’s 26 opinions because they were not well-supported or consistent with the record as a 27 whole. The ALJ noted the opinions were vague and based, for the most part, on 1 not provide sufficient explanation or cite any objective evidence in support of the 2 conclusions. The ALJ provided valid reasons for discounting these opinions, and as 3 such, the ALJ’s assignment of weight to these opinions are supported by 4 substantial evidence in the record. 5 3. Whether the ALJ’s RCF mandates a finding of disability 6 As set forth above, the ALJ limited Plaintiff to simple and routine 7 instructions and tasks in a routine and predictable work environment; no work in 8 contact with the public, or in coordination with coworkers; and only occasional 9 contact with supervisors. 10 Plaintiff argues the limitation of “occasional contact with supervisors” 11 requires a finding that she is disabled. Plaintiff asserts that the Vocational Expert’s 12 testimony that the inability be trained in the early days of employment due to the 13 requirement of occasional supervision may amount to a sheltered work situation 14 demonstrates that she is disabled. 15 This argument is without merit. Plaintiff was limited to occasional 16 interaction with supervisors, which means that she could interact with supervisors 17 for “up to 1/3 of the time.”1 At the hearing, Plaintiff choose an arbitrary 0F 18 subdivision of a workday, i.e. three-hour training period, and then asserts that 19 based on the RFC, the supervisor could only be in contact with Plaintiff for one- 20 third of that time. Common sense does not support this definition of occasional 21 contact with supervisors. Moreover, the record does not support the necessity of a 22 three-hour continuous block of training. 23 The RFC limited Plaintiff to interacting with supervisors for a third of each 24 eight-hour workday. Because Plaintiff’s attorney’s hypothetical question did not 25 reflect her actual limitations, the VE’s testimony that such a limitation would 26

27 1“Occasionally” means “very little up to one-third of the time.” See SSR 96-9p, 1|| require “special workplace accommodation” did not undermine the ALJ’s analysis. VII. Conclusion 3 Substantial evidence supports the ALJ’s conclusion that Plaintiff was not disabled from October 5, 2015 to February 24, 2022. 5 Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Summary Judgment, ECF No. 11, is DENIED. 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is | GRANTED. 9 3. The decision of the Commissioner is affirmed. 10 4. Judgment shall be entered in favor of Defendant and against Plaintiff. 11 IT IS SO ORDERED. The District Court Executive is hereby directed to file this Order, provide copies to counsel, and close the file. 13 DATED this 12th day of April 2023. 14 15 16 17 Sfraleyld Eee 19 Stanley A. Bastian 50 Chief United States District Judge 21 22 23 24 25 26 27 28 ADNTD NONVING DT AIN TICES SC MATION CAD CTINIVTADYV