1 U.S. FDILISETDR IINC TT HCEO URT EASTERN DISTRICT OF WASHINGTON Mar 18, 2022 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 DOROTHEANN A.,1 No. 1:20-cv-03112-MKD
8 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY 9 vs. JUDGMENT AND GRANTING DEFENDANT’S MOTION FOR 10 KILOLO KIJAKAZI, ACTING SUMMARY JUDGMENT COMMISSIONER OF SOCIAL 11 SECURITY,2 ECF Nos. 17, 18
12 Defendant. 13
14 1 To protect the privacy of plaintiffs in social security cases, the undersigned 15 identifies them by only their first names and the initial of their last names. See 16 LCivR 5.2(c). 17 2 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 18 2021. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo 19 Kijakazi is substituted for Andrew M. Saul as the defendant in this suit. No further 20 action need be taken to continue this suit. See 42 U.S.C. § 405(g). 2 1 Before the Court are the parties’ cross-motions for summary judgment. ECF 2 Nos. 17, 18. The Court, having reviewed the administrative record and the parties’
3 briefing, is fully informed. For the reasons discussed below, the Court denies 4 Plaintiff’s motion, ECF No. 17, and grants Defendant’s motion, ECF No. 18. 5 JURISDICTION
6 The Court has jurisdiction over this case pursuant to 42 U.S.C. § 1383(c)(3). 7 STANDARD OF REVIEW 8 A district court’s review of a final decision of the Commissioner of Social 9 Security is governed by 42 U.S.C. § 405(g). The scope of review under § 405(g) is
10 limited; the Commissioner’s decision will be disturbed “only if it is not supported 11 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 12 1158 (9th Cir. 2012). “Substantial evidence” means “relevant evidence that a
13 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 14 (quotation and citation omitted). Stated differently, substantial evidence equates to 15 “more than a mere scintilla[,] but less than a preponderance.” Id. (quotation and 16 citation omitted). In determining whether the standard has been satisfied, a
17 reviewing court must consider the entire record as a whole rather than searching 18 for supporting evidence in isolation. Id. 19 In reviewing a denial of benefits, a district court may not substitute its
20 judgment for that of the Commissioner. Edlund v. Massanari, 253 F.3d 1152, 2 1 1156 (9th Cir. 2001). If the evidence in the record “is susceptible to more than one 2 rational interpretation, [the court] must uphold the ALJ’s findings if they are
3 supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 4 F.3d 1104, 1111 (9th Cir. 2012). Further, a district court “may not reverse an 5 ALJ’s decision on account of an error that is harmless.” Id. An error is harmless
6 “where it is inconsequential to the [ALJ’s] ultimate nondisability determination.” 7 Id. at 1115 (quotation and citation omitted). The party appealing the ALJ’s 8 decision generally bears the burden of establishing that it was harmed. Shinseki v. 9 Sanders, 556 U.S. 396, 409-10 (2009).
10 FIVE-STEP EVALUATION PROCESS 11 A claimant must satisfy two conditions to be considered “disabled” within 12 the meaning of the Social Security Act. First, the claimant must be “unable to
13 engage in any substantial gainful activity by reason of any medically determinable 14 physical or mental impairment which can be expected to result in death or which 15 has lasted or can be expected to last for a continuous period of not less than twelve 16 months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the claimant’s impairment must be
17 “of such severity that he is not only unable to do his previous work[,] but cannot, 18 considering his age, education, and work experience, engage in any other kind of 19 substantial gainful work which exists in the national economy.” 42 U.S.C. §
20 1382c(a)(3)(B). 2 1 The Commissioner has established a five-step sequential analysis to 2 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §
3 416.920(a)(4)(i)-(v). At step one, the Commissioner considers the claimant’s work 4 activity. 20 C.F.R. § 416.920(a)(4)(i). If the claimant is engaged in “substantial 5 gainful activity,” the Commissioner must find that the claimant is not disabled. 20
6 C.F.R. § 416.920(b). 7 If the claimant is not engaged in substantial gainful activity, the analysis 8 proceeds to step two. At this step, the Commissioner considers the severity of the 9 claimant’s impairment. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant suffers from
10 “any impairment or combination of impairments which significantly limits [his or 11 her] physical or mental ability to do basic work activities,” the analysis proceeds to 12 step three. 20 C.F.R. § 416.920(c). If the claimant’s impairment does not satisfy
13 this severity threshold, however, the Commissioner must find that the claimant is 14 not disabled. Id. 15 At step three, the Commissioner compares the claimant’s impairment to 16 severe impairments recognized by the Commissioner to be so severe as to preclude
17 a person from engaging in substantial gainful activity. 20 C.F.R. § 18 416.920(a)(4)(iii). If the impairment is as severe or more severe than one of the 19 enumerated impairments, the Commissioner must find the claimant disabled and
20 award benefits. 20 C.F.R. § 416.920(d). 2 1 If the severity of the claimant’s impairment does not meet or exceed the 2 severity of the enumerated impairments, the Commissioner must pause to assess
3 the claimant’s “residual functional capacity.” Residual functional capacity (RFC), 4 defined generally as the claimant’s ability to perform physical and mental work 5 activities on a sustained basis despite his or her limitations, 20 C.F.R. §
6 416.945(a)(1), is relevant to both the fourth and fifth steps of the analysis. 7 At step four, the Commissioner considers whether, in view of the claimant’s 8 RFC, the claimant is capable of performing work that he or she has performed in 9 the past (past relevant work). 20 C.F.R. § 416.920(a)(4)(iv). If the claimant is
10 capable of performing past relevant work, the Commissioner must find that the 11 claimant is not disabled. 20 C.F.R. § 416.920(f). If the claimant is incapable of 12 performing such work, the analysis proceeds to step five.
13 At step five, the Commissioner considers whether, in view of the claimant’s 14 RFC, the claimant is capable of performing other work in the national economy. 15 20 C.F.R. § 416.920(a)(4)(v). In making this determination, the Commissioner 16 must also consider vocational factors such as the claimant’s age, education and
17 past work experience. Id. If the claimant is capable of adjusting to other work, the 18 Commissioner must find that the claimant is not disabled. 20 C.F.R. § 19 416.920(g)(1). If the claimant is not capable of adjusting to other work, analysis
20 2 1 concludes with a finding that the claimant is disabled and is therefore entitled to 2 benefits. Id.
3 The claimant bears the burden of proof at steps one through four above. 4 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). If the analysis proceeds to 5 step five, the burden shifts to the Commissioner to establish that (1) the claimant is
6 capable of performing other work; and (2) such work “exists in significant 7 numbers in the national economy.” 20 C.F.R. § 416.960(c)(2); Beltran v. Astrue, 8 700 F.3d 386, 389 (9th Cir. 2012). 9 ALJ’S FINDINGS
10 On December 6, 2016, Plaintiff applied for Title XVI supplemental security 11 income benefits alleging an amended disability onset date of December 6, 2016.3 12
13 3 Plaintiff previously applied for Title XVI benefits on March 18, 2013; the 14 application was denied and resulted in a September 26, 2016 unfavorable decision 15 from an ALJ. Tr. 199-21. At the 2019 hearing the ALJ found that although the 16 prior unfavorable ALJ decision created a presumption of continuing non-disability
17 under Chavez, the presumption had been rebutted because of the change in criteria 18 in evaluating mental health impairments. Tr. 18, see Chavez v. Bowen, 844 F.2d 19 691, 693 (9th Cir. 1998); see also Acquiescence Ruling (AR) 97-4(9), available at
20 1997 WL 742758 at *3. 2 1 Tr. 18, 222, 355-63, 371-76. The application was denied initially, and on 2 reconsideration. Tr. 260-68, 273-79. Plaintiff appeared before an administrative
3 law judge (ALJ) on July 15, 2019. Tr. 175-98. On September 5, 2019, the ALJ 4 denied Plaintiff’s claim. Tr. 15-36. 5 At step one of the sequential evaluation process, the ALJ found Plaintiff has
6 not engaged in substantial gainful activity since the amended onset date, December 7 6, 2016. Tr. 20. At step two, the ALJ found that Plaintiff has the following severe 8 impairments: degenerative disc disease, cervicalgia, fibromyalgia, migraine 9 headaches, post-traumatic stress disorder/anxiety disorder, and depressive disorder.
10 Id. 11 At step three, the ALJ found Plaintiff does not have an impairment or 12 combination of impairments that meets or medically equals the severity of a listed
13 impairment. Tr. 21. The ALJ then concluded that Plaintiff has the RFC to perform 14 light work with the following limitations: 15 [S]he is limited to no overhead reaching; she can occasionally climb stairs; she can occasionally balance, stoop, kneel, crouch, and crawl; 16 she can never climb ladders; she must avoid concentrated exposure to hazards, fumes, odors[,] dust, and gases, extreme cold, and vibration; 17 she is limited to jobs with simple routine instructions, tasks, and decisions, few workplace changes, no contact with the public; 18 incidental contact with coworkers; and she would be off task for 10% of the workday. 19 Tr. 22. 20 2 1 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 28. At 2 step five, the ALJ found that, considering Plaintiff’s age, education, work
3 experience, RFC, and testimony from the vocational expert, there were jobs that 4 existed in significant numbers in the national economy that Plaintiff could perform, 5 such as garment folder, small products assembler, and hand packager. Tr. 28-29.
6 Therefore, the ALJ concluded Plaintiff was not under a disability, as defined in the 7 Social Security Act, from the date of the application through the date of the 8 decision. Tr. 29. 9 On May 19, 2020, the Appeals Council denied review of the ALJ’s decision,
10 Tr. 1-7, making the ALJ’s decision the Commissioner’s final decision for purposes 11 of judicial review. See 42 U.S.C. § 1383(c)(3). 12 ISSUES
13 Plaintiff seeks judicial review of the Commissioner’s final decision denying 14 her supplemental security income benefits under Title XVI of the Social Security 15 Act. Plaintiff raises the following issue for review: 16 1. Whether the ALJ properly evaluated the medical opinion evidence.
17 ECF No. 17 at 2. 18 19
20 2 1 DISCUSSION 2 A. Medical Opinion Evidence
3 Plaintiff contends the ALJ erred in rejecting the opinion of Steven O. Foster, 4 D.O., in favor of Debra Baylor, M.D. ECF No. 17 at 7-20. 5 There are three types of physicians: “(1) those who treat the claimant
6 (treating physicians); (2) those who examine but do not treat the claimant 7 (examining physicians); and (3) those who neither examine nor treat the claimant 8 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 9 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted).
10 Generally, a treating physician’s opinion carries more weight than an examining 11 physician’s, and an examining physician’s opinion carries more weight than a 12 reviewing physician’s. Id. at 1202. “In addition, the regulations give more weight
13 to opinions that are explained than to those that are not, and to the opinions of 14 specialists concerning matters relating to their specialty over that of 15 nonspecialists.” Id. (citations omitted). 16 If a treating or examining physician’s opinion is uncontradicted, the ALJ
17 may reject it only by offering “clear and convincing reasons that are supported by 18 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 19 “However, the ALJ need not accept the opinion of any physician, including a
20 treating physician, if that opinion is brief, conclusory and inadequately supported 2 1 by clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 2 (9th Cir. 2009) (internal quotation marks and brackets omitted). “If a treating or
3 examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 4 may only reject it by providing specific and legitimate reasons that are supported 5 by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester v. Chater, 81
6 F.3d 821, 830-31 (9th Cir. 1995)). 7 Generally, an ALJ should accord more weight to the opinion of a treating or 8 examining physician than to that of a non-examining physician. See Andrews v. 9 Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995). However, the opinion of a non-
10 examining physician may serve as substantial evidence if it is “supported by other 11 evidence in the record and [is] consistent with it.” Id. at 1041. 12 1. Dr. Foster
13 On June 20, 2019, Dr. Foster, Plaintiff’s treating physician, completed a 14 physical assessment form on Plaintiff’s behalf. Tr. 1363-64. Dr. Foster indicated 15 her diagnoses were “spondylosis of lumbar spine, cervicalgia.” Tr. 1363. He 16 opined her symptoms were frequently severe enough to interfere with the attention
17 and concentration required to perform simple work-related tasks; he identified 18 “dizziness, fatigue, nausea” as side effects of her medications which may impact 19 her ability to work; and he indicated Plaintiff would need to recline or lie down in
20 excess of typical breaks in a hypothetical eight hour workday. Id. He estimated 2 1 that if she were placed in a competitive work environment on a sustained basis, she 2 would be able to walk one to two city blocks without rest or significant pain; she
3 could sit a total of two hours and stand and walk a total of one hour in an eight 4 hour day; she would need to take unscheduled breaks lasting one hour every one to 5 two hours during an eight hour workday; and she could occasionally lift less than
6 10 pounds but should never lift 10 pounds or more. Id. Dr. Foster estimated 7 Plaintiff was likely to be absent from work more than four times a month as a 8 result of her impairments or treatments. Tr. 1364. He also indicated that 9 Plaintiff’s impairments, defined as “physical impairments plus any emotional
10 impairments” were reasonably consistent with the symptoms and functional 11 limitations described on the form. Id. The ALJ gave Dr. Foster’s opinion little 12 weight. Tr. 26. Because Dr. Foster’s opinion was contradicted by reviewing
13 physician Dr. Baylor, Tr. 249-51, the ALJ was required to provide specific and 14 legitimate reasons to reject Dr. Foster’s opinion. Bayliss, 427 F.3d at 1216. 15 The ALJ found Dr. Foster’s opinion of extreme limitations to be inconsistent 16 with his treatment notes. Tr. 26. A medical opinion may be rejected if it is
17 unsupported by medical findings. Bray, 554 F.3d at 1228; Batson v. Comm’r Soc. 18 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 19 947, 957 (9th Cir. 2002); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.
20 2001); Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Furthermore, a 2 1 physician’s opinion may be rejected if it is unsupported by the physician’s 2 treatment notes. Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003). Here, the
3 ALJ found Dr. Foster’s opinion was inconsistent with his treatment notes because 4 “Dr. Foster assessed the [Plaintiff’s] back condition was stable. The [Plaintiff] was 5 reportedly doing well and her pain was controlled with medication. She had
6 normal strength and range of motion on exam. She denied headaches.” Tr. 26. 7 Elsewhere in the decision, the ALJ discusses Dr. Foster’s records. Tr. 23- 8 24. The ALJ notes that “in October 2016, Steven Foster, DO assessed the 9 [Plaintiff’s] musculoskeletal pain as intermittent and stable,” Tr. 23 (citing Tr.
10 1057). The ALJ also notes a visit with Dr. Foster in March 2017, where Plaintiff 11 reported she was doing well with her chronic issues except for symptoms of 12 fatigue. Tr. 24 (citing Tr. 923-25). The ALJ noted Dr. Foster’s report at that time
13 that she had no joint swelling or muscle weakness, no headaches, numbness or 14 tingling, and generally “normal exam findings.” Id. Dr. Foster also indicated her 15 fatigue might be an exacerbation of depression. Tr. 925. Upon physical exam Dr. 16 Foster noted no pain on palpitation of the spine, normal muscle tone, and gross
17 movement of extremities without restriction; her gait was normal. Tr. 924. Dr. 18 Foster’s only assessment at that visit was fatigue, unspecified type; moderate 19 episode of recurrent major depressive disorder; and routine health maintenance.
20 Tr. 925. 2 1 The ALJ also noted “generally benign findings” in treatment records overall, 2 explaining that at a visit in January 2019, Dr. Foster indicated Plaintiff was overall
3 doing well and taking medications as prescribed; Dr. Foster noted Plaintiff’s report 4 that her neck and back pain were controlled with current medications, she denied 5 any muscle spasm or weakness, and upon exam he observed she had no pain on
6 palpation of the spine, normal muscle tone, and gross movement of extremities 7 without restriction. Tr. 24 (citing 1081-82). Dr. Foster noted Plaintiff was to 8 continue treatment with a pain management clinic. Tr. 1082. Given the generally 9 normal findings by Dr. Foster, the ALJ reasonably found that Dr. Foster’s opinion
10 was inconsistent with his treatment notes. This was a specific and legitimate 11 reason, supported by substantial evidence, to reject Dr. Foster’s opinion. 12 The ALJ also gave more weight to the opinion of Dr. Baylor than to the
13 opinion of Dr. Foster. Tr. 26. In September 2017, Dr. Baylor opined Plaintiff 14 could occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds; 15 she could stand and walk a total of about six hours in an eight hour workday and sit 16 for a total of about six hours in an eight hour workday; she could occasionally
17 climb ramps and stairs, but should never climb ladders, ropes, and scaffolds; she 18 could occasionally balance, stoop, kneel, crouch, and crawl; she should not reach 19 overhead with bilateral upper extremities; she should avoid concentrated exposure
20 to extreme cold, noise, vibration, fumes, odors, dusts, gases, and poor ventilation; 2 1 and she should avoid concentrated exposure to hazards such as machinery and 2 heights. Tr. 249-51.
3 The ALJ gave significant weight to the opinion of Dr. Baylor because Dr. 4 Baylor reviewed the record; “her opinion is consistent with images of the spine, 5 which are generally mild”; her opinion is “consistent with physical exams, which
6 consistently show normal gait and full strength. The [Plaintiff] has mostly normal 7 movement of her extremities”; and because Dr. Baylor’s opinion “is also consistent 8 with Plaintiff’s activities” such as personal care, working in a garden, and “going 9 camping during the relevant period.” Tr. 26.
10 First, the ALJ found Dr. Baylor’s opinion was consistent with imaging of 11 Plaintiff’s spine, which was generally mild. Tr. 26. Elsewhere in the decision, the 12 ALJ noted an MRI of Plaintiff’s cervical spine in April 2016 showed mild stenosis
13 of the canal of C5-6 and C6-7 disc levels and mild neural foraminal stenosis. Tr. 14 23 (citing Tr. 577, see also 1148). The ALJ also noted an MRI of her lumbar spine 15 in February 2019 showed a small central protrusion of the L5-S1 disc, mild 16 degeneration and bulging of the L4-5 disc, and mild facet arthrosis at L4-5 and L5-
17 S1. Tr. 24 (citing 1160). Given the imaging reports in the record, the ALJ’s 18 finding that Dr. Baylor’s opinion was consistent with imaging of Plaintiff’s spine is 19 supported by substantial evidence.
20 2 1 Next, the ALJ found Dr. Baylor’s opinion was consistent with physical 2 exams, which consistently show normal gait, full strength, and mostly normal
3 movement of the extremities. Tr. 26. This finding is consistent with Dr. Foster’s 4 physical exams, as explained supra. Elsewhere in the decision the ALJ also noted 5 that despite Plaintiff’s allegations of limited ability to lift, sit, and stand, “physical
6 exams consistently indicate 5/5 strength, appropriate/normal gait, no decreased 7 range of motion, and normal neurological findings. Tr. 23, see e.g., Tr. 538, 1666, 8 1669-70. While Plaintiff points out that she still reported 8/10 pain level despite 9 treatment including physical therapy, medication, and injections, ECF No. 17 at
10 11-13, Defendant notes Plaintiff also reported her medication was working, 11 plaintiff “appeared well,” and physical exams were generally normal. ECF No. 18 12 at 5-6. Defendant also points out that the ALJ found Plaintiff’s self-reports were
13 not always reliable, noting a consultative examiner reported “exaggerated pain 14 behavior” and assessed malingering in 2016. ECF No. 18 at 7; Tr. 25 (citing Tr. 15 528-532). Even if the medical opinion evidence could be interpreted more 16 favorably to Plaintiff, if it is susceptible to more than one rational interpretation,
17 the ALJ’s ultimate conclusion must be upheld. Burch v. Barnhart, 400 F.3d 676, 18 679 (9th Cir. 2005). Given Dr. Foster’s exams, supra, and other generally normal 19 exams in the record, the ALJ’s finding that Dr. Baylor’s opinion was consistent
20 with physical exams is supported by substantial evidence. 2 1 Finally, the ALJ found Dr. Baylor’s opinion was consistent with Plaintiff’s 2 activities, noting that while Plaintiff testified to limited activities, the “record
3 shows she is independent in personal care. She worked in a garden and went 4 camping during the relevant period.” Tr. 26, see Tr. 933, 946, 1647. Elsewhere in 5 the decision the ALJ also noted that Plaintiff prepared meals, played games on her
6 phone, shopped in stores, and took the bus. Tr. 21. On this record, the ALJ 7 reasonably determined that Dr. Baylor’s opinion was consistent with Plaintiff’s 8 activities. 9 The ALJ reasonably gave little weight to Dr. Foster’s opinion because Dr.
10 Foster’s opinion was inconsistent with his treatment records. This was a specific 11 and legitimate reason, supported by substantial evidence, to reject Dr. Foster’s 12 opinion. The ALJ also did not err by giving substantial weight to the opinion of
13 Dr. Baylor, because the reviewing doctor’s opinion was supported by and 14 consistent with other evidence in the record. Plaintiff is not entitled to remand on 15 this issue. 16 CONCLUSION
17 Having reviewed the record and the ALJ’s findings, the Court concludes the 18 ALJ’s decision is supported by substantial evidence and is free of harmful legal 19 error. Accordingly, IT IS HEREBY ORDERED:
20 2 1 1. The District Court Executive is directed to substitute Kilolo Kijakazi as 2 Defendant and update the docket sheet.
3 2. Plaintiff’s Motion for Summary Judgment, ECF No. 17, is DENIED. 4 3. Defendant’s Motion for Summary Judgment, ECF No. 18, is 5 GRANTED.
6 4. The Clerk’s Office shall enter JUDGMENT in favor of Defendant. 7 The District Court Executive is directed to file this Order, provide copies to 8 counsel, and CLOSE THE FILE. 9 DATED March 18, 2022.
10 s/Mary K. Dimke MARY K. DIMKE 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16
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