Bailey v. Saul

• Court: District Court, E.D. Washington
• Decided: June 28, 2021
• Docket: 4:20-cv-05121
• Status: Unknown

Opinion

1 2 3 4 5 6 7 FILED IN THE 8 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 9 UNITED STATES DISTRICT COURT Jun 28, 2021 10 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK

12 MICHAEL B., No. 4:20-CV-05121-JTR

13 Plaintiff, 14 v. ORDER GRANTING DEFENDANT’S 15 MOTION FOR SUMMARY 16 ANDREW M. SAUL, JUDGMENT 17 COMMISSIONER OF SOCIAL SECURITY, 18

19 Defendant.

20 BEFORE THE COURT are cross-motions for summary judgment. ECF 21 No. 13, 15. Attorney Victoria Chhagan represents Michael B. (Plaintiff); Special 22 Assistant United States Attorney Joseph Langkamer represents the Commissioner 23 of Social Security (Defendant). The parties have consented to proceed before a 24 magistrate judge. ECF No. 6. After reviewing the administrative record and the 25 briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary 26 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 27 /// 28 1 JURISDICTION 2 Plaintiff filed an application for Disability Insurance Benefits on January 23, 3 2018, alleging disability since December 12, 2016, due to lower back pain, 4 bilateral knee pain, tailbone, bilateral leg swelling and pain, diabetes, problems 5 with breathing, bilateral hip pain, sleeping disorder with extreme daytime fatigue, 6 obesity, and chronic pain disorder. Tr. 70-71. The application was denied initially 7 and upon reconsideration. Tr. 98-104, 106-12. Administrative Law Judge (ALJ) 8 Marie Palachuk held a hearing on October 7, 2019, Tr. 39-68, and issued an 9 unfavorable decision on October 22, 2019, Tr. 16-26. Plaintiff requested review 10 from the Appeals Council. Tr. 168-70. The Appeals Council denied the request for 11 review on May 28, 2020. Tr. 1-6. The ALJ’s October 2019 decision became the 12 final decision of the Commissioner, which is appealable to the district court 13 pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on July 14 27, 2020. ECF No. 1. 15 STATEMENT OF FACTS 16 Plaintiff was born in 1972 and was 44 years old as of the alleged onset date. 17 Tr. 24. He has a high school education with some college, and worked primarily as 18 a lube technician and department manager. Tr. 61, 238. He testified that he stopped 19 working in December 2016 due to pain and an inability to make it through a shift 20 of work. Tr. 44. 21 STANDARD OF REVIEW 22 The ALJ is responsible for determining credibility, resolving conflicts in 23 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 24 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 25 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 26 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 27 only if it is not supported by substantial evidence or if it is based on legal error. 28 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 1 defined as being more than a mere scintilla, but less than a preponderance. Id. at 2 1098. Put another way, substantial evidence is such relevant evidence as a 3 reasonable mind might accept as adequate to support a conclusion. Richardson v. 4 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 5 rational interpretation, the Court may not substitute its judgment for that of the 6 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 7 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 8 administrative findings, or if conflicting evidence supports a finding of either 9 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 10 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 11 supported by substantial evidence will be set aside if the proper legal standards 12 were not applied in weighing the evidence and making the decision. Brawner v. 13 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 14 SEQUENTIAL EVALUATION PROCESS 15 The Commissioner has established a five-step sequential evaluation process 16 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); Bowen v. 17 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four the claimant 18 bears the burden of establishing a prima facie case of disability. Tackett, 180 F.3d 19 at 1098-1099. This burden is met once a claimant establishes that a physical or 20 mental impairment prevents the claimant from engaging in past relevant work. 20 21 C.F.R. § 404.1520(a)(4). If a claimant cannot perform past relevant work, the ALJ 22 proceeds to step five, and the burden shifts to the Commissioner to show (1) the 23 claimant can make an adjustment to other work; and (2) the claimant can perform 24 specific jobs that exist in the national economy. Batson v. Comm’r of Soc. Sec. 25 Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If a claimant cannot make an 26 adjustment to other work in the national economy, the claimant will be found 27 disabled. 20 C.F.R. § 404.1520(a)(4)(v). 28 /// 1 ADMINISTRATIVE FINDINGS 2 On October 22, 2019, the ALJ issued a decision finding Plaintiff was not 3 disabled as defined in the Social Security Act. 4 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity since the alleged onset. Tr. 18. 6 At step two, the ALJ determined Plaintiff had the following severe 7 impairments: lumbar sprain, bilateral hip tendinitis, bilateral knee tendinitis, 8 supramorbid obesity, right shoulder acromioclavicular osteoarthritis, and cervical 9 degenerative disc disease. Id. 10 At step three, the ALJ found Plaintiff did not have an impairment or 11 combination of impairments that met or medically equaled the severity of one of 12 the listed impairments. Tr. 18-19. 13 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 14 he could perform work at the light exertional level, except:

15 Standing and walking is limited to 2 hours per day. He needs the 16 ability to alternate sitting and standing approximately every 60 17 minutes. Posturals are at occasional, except he can never climb ladders, ropes or scaffolds. The claimant needs the use of a cane to 18 ambulate away from the workstation. He can never reach overhead 19 with the right upper extremity. He must avoid concentrated exposure to extreme heat, humidity, and respiratory irritants. Finally, he can 20 have no more than moderate exposure to hazards. 21 22 Tr. 19-20. 23 At step four, the ALJ found Plaintiff was unable to perform his past relevant 24 work as a department manager or lubrication servicer. Tr. 24. 25 At step five, the ALJ determined that, based on the testimony of the 26 vocational expert, and considering Plaintiff’s age, education, work experience, and 27 RFC, there were jobs that existed in significant numbers in the national economy 28 /// 1 that Plaintiff was capable of performing, including the jobs of mail clerk, storage 2 rental clerk, and office helper. Tr. 25-26. 3 The ALJ thus concluded Plaintiff was not under a disability within the 4 meaning of the Social Security Act at any time from the alleged onset date through 5 the date of the decision. Tr. 26. 6 ISSUES 7 The question presented is whether substantial evidence supports the ALJ’s 8 decision denying benefits and, if so, whether that decision is based on proper legal 9 standards. 10 Plaintiff contends the ALJ erred by (1) improperly rejecting Plaintiff’s 11 testimony; and (2) not providing sufficient reasons for rejecting the opinion of his 12 treating physician, Dr. Suzanne Staudinger. 13 DISCUSSION 14 1. Plaintiff’s symptom testimony 15 Plaintiff alleges the ALJ erred in rejecting his symptom testimony without 16 providing adequate reasons. ECF No. 13 at 3-12. 17 It is the province of the ALJ to make determinations regarding a claimant’s 18 subjective statements. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 19 However, the ALJ’s findings must be supported by specific cogent reasons. 20 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative 21 evidence of malingering, the ALJ’s reasons for rejecting a claimant’s testimony 22 must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 23 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 24 findings are insufficient: rather the ALJ must identify what testimony is not 25 credible and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d 26 at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 27 The ALJ found Plaintiff’s medically determinable impairments could 28 reasonably be expected to cause the alleged symptoms; however, she found 1 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 2 his symptoms were not entirely consistent with the medical evidence and other 3 evidence in the record. Tr. 20. The ALJ found Plaintiff’s allegations were 4 inconsistent with the mild imaging and minimal objective findings, unsupported by 5 Plaintiff’s lack of treatment through a significant portion of the relevant period and 6 his lack of follow through with treatment recommendations, and inconsistent with 7 the consultative exam findings and his activities of daily living. Tr. 22-23. 8 The Court finds the ALJ offered sufficient reasons for discounting Plaintiff’s 9 subjective reports. Unexplained or inadequately explained reasons for failing to 10 seek medical treatment or follow a prescribed course of treatment can cast doubt 11 on a claimant’s subjective complaints. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 12 1989). The ALJ noted that, despite alleging onset of disability in December 2016, 13 Plaintiff did not receive treatment for his conditions until May 2018. Tr. 21. The 14 ALJ also noted Plaintiff’s failure to follow through with orthopedic and bariatric 15 referrals. Tr. 22. Plaintiff argues the ALJ erred in rejecting his testimony on this 16 basis, as there were justifications for not being seen by these specialists, including 17 insurance and location issues and the orthopedic referral not being able to 18 accommodate Plaintiff’s size. ECF No. 13 at 6-8. However, the ALJ did note 19 Plaintiff’s explanation regarding insurance and availability, but instead relied on 20 the contemporaneous treatment records that indicated Plaintiff chose to stop 21 pursuing weight loss surgery. Tr. 22, 459. The ALJ’s interpretation of the record is 22 reasonable. Furthermore, though one orthopedist canceled an appointment due to 23 being unable to accommodate Plaintiff’s size, the record reflects his primary care 24 provider gave him another referral to another orthopedist. Tr. 363-65. There is 25 nothing in the record to indicate Plaintiff ever followed through with this referral. 26 Plaintiff has offered no explanation for his failure to obtain any treatment for the 27 first year and a half of the relevant period. Therefore, the ALJ’s finding is 28 supported by substantial evidence. 1 Although it cannot serve as the sole ground for rejecting a claimant’s 2 symptom statements, objective medical evidence is a “relevant factor in 3 determining the severity of the claimant’s pain and its disabling effects.” Rollins v. 4 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ found Plaintiff’s 5 allegations to be inconsistent with the mild imaging results and the minimal 6 objective findings in the longitudinal medical record. Tr. 22. The Court finds the 7 ALJ’s interpretation of the record is reasonable. While there are some objective 8 findings in Plaintiff’s treatment records that are supportive of his allegations, 9 “when the evidence is susceptible to more than one rational interpretation, we must 10 uphold the ALJ’s findings if they are supported by inferences reasonably drawn 11 from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). The ALJ 12 reasonably summarized the records, pointing to the largely unremarkable findings 13 throughout the record and the mild findings on imaging in finding Plaintiff’s 14 allegations to be unsupported. Tr. 21-22. 15 2. Dr. Staudinger 16 Plaintiff contends the ALJ erred by improperly rejecting the opinion from 17 his treating physician, Dr. Suzanne Staudinger. ECF No. 13 at 12-19. 18 For claims filed on or after March 27, 2017, new regulations apply that 19 change the framework for how an ALJ must weigh medical opinion evidence. 20 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 21 168819, 82 Fed. Reg. 5844 (Jan. 18, 2017); 20 C.F.R. § 404.1520c. The new 22 regulations provide the ALJ will no longer give any specific evidentiary weight to 23 medical opinions or prior administrative medical findings, including those from 24 treating medical sources. 20 C.F.R. § 404.1520c(a). Instead, the ALJ will consider 25 the persuasiveness of each medical opinion and prior administrative medical 26 finding, regardless of whether the medical source is an Acceptable Medical Source. 27 20 C.F.R. § 404.1520c(c). The ALJ is required to consider multiple factors, 28 including supportability, consistency, the source’s relationship with the claimant, 1 any specialization of the source, and other factors (such as the source’s familiarity 2 with other evidence in the file or an understanding of Social Security’s disability 3 program). Id. The regulations make clear that the supportability and consistency of 4 the opinion are the most important factors, and the ALJ must articulate how they 5 considered those factors in determining the persuasiveness of each medical opinion 6 or prior administrative medical finding. 20 C.F.R. § 404.1520a(b). The ALJ may 7 explain how they considered the other factors, but is not required to do so, except 8 in cases where two or more opinions are equally well-supported and consistent 9 with the record. Id. 10 Supportability and consistency are further explained in the regulations:

11 (1) Supportability. The more relevant the objective medical evidence 12 and supporting explanations presented by a medical source are to 13 support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior 14 administrative medical finding(s) will be. 15 (2) Consistency. The more consistent a medical opinion(s) or prior 16 administrative medical finding(s) is with the evidence from other 17 medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical 18 finding(s) will be. 19 20 20 C.F.R. § 404.1520c(c). 1 21 22

23 1 The parties disagree over whether Ninth Circuit case law continues to be 24 controlling in light of the amended regulations, specifically whether an ALJ is still 25 required to provide specific and legitimate reasons for discounting a contradicted 26 opinion from a treating or examining physician. ECF No. 13 at 13; ECF No. 15 at 27 14-17. The Court finds resolution of this question unnecessary to the disposition of 28 this case. 1 Plaintiff’s treating physician, Dr. Suzanne Staudinger, completed a medical 2 source statement on September 4, 2019. Tr. 483-84. She noted Plaintiff’s diagnoses 3 included osteoarthritis in multiple joints, obesity, and hypertension. Tr. 483. She 4 noted his symptoms included pain in the knees, hip, shoulder, low back, and 5 tailbone, and that he could walk for only 10-15 minutes, could not sit in a normal 6 chair comfortably, and needed to change position frequently. Id. Dr. Staudinger 7 opined Plaintiff needed to lie down intermittently during the day for 20-30 minutes 8 due to pain. Id. She stated full time work would cause him to deteriorate due to 9 additional pain, and that he would be likely to miss work four or more days per 10 month if attempting to work full time. Tr. 483-84. She finally stated that those 11 limitations had existed for three years. Tr. 484. 12 The ALJ found this opinion was not persuasive, noting many of the limits 13 were clearly based on Plaintiff’s self-reports, the opinion was inconsistent with the 14 minimal objective abnormalities described in the treatment notes, and that the 15 opinion was contradicted by other medical opinions of record. Tr. 24. The ALJ 16 further found there was no basis for Dr. Staudinger to relate the limits back three 17 years when she had first evaluated Plaintiff in August 2018, and finally the ALJ 18 found some of the limits to be speculative and not supported by the longitudinal 19 record. Id. 20 Plaintiff argues the ALJ’s rationale is not supported by specific enough 21 explanations and is based on a flawed reading of the medical record. He further 22 asserts the prospective and retrospective assessments are within Dr. Staudinger’s 23 area of expertise, and the ALJ found no problem with such opinions from the 24 consultative examiner or the state agency reviewing doctors. Finally, Plaintiff 25 argues the ALJ improperly relied on inconsistency with the other opinions, as the 26 state agency reviewers do not constitute substantial evidence on their own and had 27 not reviewed all of the evidence that was available to Dr. Staudinger, and the ALJ 28 /// 1 failed to fully adopt all elements of Dr. Opara’s opinion.2 ECF No. 13 at 12-19. 2 Defendant argues the ALJ reasonably found the opinion to be unsupported by the 3 treatment notes and at odds with Dr. Opara and the state agency doctors. ECF No. 4 15 at 14-21. 5 The Court finds the ALJ did not err. The revised rules require the ALJ to 6 consider the supportability and consistency of an opinion. The ALJ reasonably 7 found Dr. Staudinger’s records lacked support for the limitations assessed, noting 8 the minimal objective abnormalities and Dr. Staudinger’s recitation in the opinion 9 of Plaintiff’s subjective complaints. Tr. 24; compare Tr. 396, 449, 464 with Tr. 10 483. The ALJ also reasonably found Dr. Staudinger did not provide a basis for her 11 opinion that Plaintiff had been so limited for three years and offered no 12 explanatory support for her prediction regarding missed days. Tr. 24. The ALJ 13 must consider the amount of objective medical evidence and supporting 14 explanations presented by the source. 20 C.F.R. 404.1520c(c). The ALJ also 15 reasonably noted the differing opinions from other sources and offered sufficient 16 explanation for her reliance on the other opinions. 17 CONCLUSION 18 Having reviewed the record and the ALJ’s findings, the Court finds the 19 ALJ’s decision is supported by substantial evidence and free of legal error and is 20 affirmed. Therefore, IT IS HEREBY ORDERED: 21

22 2 To the extent Plaintiff implies the ALJ erred in her discussion of Dr. 23 Opara, the Court finds no harmful error. Dr. Opara stated Plaintiff was limited to 24 standing and walking less than two hours, while the RFC allows for two hours. Tr. 25 19, 355. However, the discussion with the vocational expert indicated that the 26 hypothetical worker would be able to alternate between sitting and standing every 27 60 minutes as needed. Tr. 62. The Court therefore finds the discrepancy between 28 the opinion and the RFC to be harmless. 1 1. Defendant’s Motion for Summary Judgment, ECF No. 15, is 2 GRANTED. 3 2. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 4 The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 6|| and the file shall be CLOSED. 7 IT IS SO ORDERED. 8 DATED June 28, 2021.

10 JOHN T. RODGERS Il ae UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28