Burland v. Commissioner of Social Security

• Court: District Court, E.D. Washington
• Decided: November 19, 2019
• Docket: 2:19-cv-00021
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Nov 19, 2019 3 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK EASTERN DISTRICT OF WASHINGTON 4 KENNETH B., No. 2:19-cv-00021-SMJ 5 Plaintiff, ORDER RULING ON MOTIONS 6 FOR SUMMARY JUDGMENT v. 7 COMMISSIONER OF SOCIAL 8 SECURITY,

9 Defendant.

11 Plaintiff Kenneth B. appeals the Administrative Law Judge’s (ALJ) denial of 12 his application for Supplemental Security Income (SSI) benefits. He alleges that the 13 ALJ (1) improperly rejected the opinions of an examining physician, (2) improperly 14 discounted Plaintiff’s symptom testimony, (3) improperly discounted the testimony 15 of Plaintiff’s wife, and (4) improperly found that Plaintiff could perform his past 16 relevant work at step four. The Commissioner of Social Security (“Commissioner”) 17 asks the Court to affirm the ALJ’s Decision. 18 Before the Court, without oral argument, are the parties’ cross-motions for 19 summary judgment, ECF Nos. 10, 11. Upon reviewing the administrative record, 20 the parties’ briefs, and the relevant authority, the Court is fully informed. For the 1 reasons set forth below, the Court finds no error in the ALJ’s determination that 2 Plaintiff was not entitled to benefits. Accordingly, the Court grants the

3 Commissioner’s motion and denies Plaintiff’s motion. 4 BACKGROUND1 5 Plaintiff applied for SSI benefits on April 16, 2018. AR 191.2 The

6 Commissioner denied Plaintiff’s application on October 28, 2016. AR 119–22. 7 Plaintiff requested, and the Commissioner denied, reconsideration. AR 123–28. At 8 Plaintiff’s request, a hearing was held before ALJ Carolina Siderius. AR 62–91. 9 The ALJ denied Plaintiff benefits on March 14, 2018. AR 27–43. The Appeals

10 Council denied Plaintiff’s request for review on November 28, 2018. AR 1–7. 11 Plaintiff then appealed to this Court under 42 U.S.C. § 405(g). ECF No. 1. 12 DISABILITY DETERMINATION

13 A “disability” is defined as the “inability to engage in any substantial gainful 14 activity by reason of any medically determinable physical or mental impairment 15 which can be expected to result in death or which has lasted or can be expected to 16 last for a continuous period of not less than twelve months.” 42 U.S.C.

17 §§ 423(d)(1)(A), 1382c(a)(3)(A). The decision-maker uses a five-step sequential 18

19 1 The facts, thoroughly stated in the record and the parties’ briefs, are only briefly summarized here. 20 2 References to the administrative record (AR), ECF No. 7, are to the provided page numbers to avoid confusion. 1 evaluation process to determine whether a claimant is disabled. 20 C.F.R. 2 §§ 404.1520, 416.920.

3 Step one assesses whether the claimant is engaged in substantial gainful 4 activities. If he is, benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he 5 is not, the decision-maker proceeds to step two.

6 Step two assesses whether the claimant has a medically severe impairment or 7 combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant 8 does not, the disability claim is denied. If the claimant does, the evaluation proceeds 9 to the third step.

10 Step three compares the claimant’s impairment with a number of listed 11 impairments acknowledged by the Commissioner to be so severe as to preclude 12 substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 404 Subpt. P App. 1,

13 416.920(d). If the impairment meets or equals one of the listed impairments, the 14 claimant is conclusively presumed to be disabled. If the impairment does not, the 15 evaluation proceeds to the fourth step. 16 Step four assesses whether the impairment prevents the claimant from

17 performing work he has performed in the past by examining the claimant’s residual 18 functional capacity, or RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant 19 is able to perform his previous work, he is not disabled. If the claimant cannot

20 perform this work, the evaluation proceeds to the fifth step. 1 Step five, the final step, assesses whether the claimant can perform other 2 work in the national economy in view of his age, education, and work experience.

3 20 C.F.R. §§ 404.1520(f), 416.920(f); see Bowen v. Yuckert, 482 U.S. 137 (1987). 4 If the claimant can, the disability claim is denied. If the claimant cannot, the 5 disability claim is granted.

6 The burden of proof shifts during this sequential disability analysis. The 7 claimant has the initial burden of establishing a prima facie case of entitlement to 8 disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). The 9 burden then shifts to the Commissioner to show (1) the claimant can perform other

10 substantial gainful activity, and (2) that a “significant number of jobs exist in the 11 national economy,” which the claimant can perform. Kail v. Heckler, 722 F.2d 12 1496, 1498 (9th Cir. 1984). A claimant is disabled only if his impairments are of

13 such severity that he is not only unable to do his previous work but cannot, 14 considering his age, education, and work experiences, engage in any other 15 substantial gainful work which exists in the national economy. 42 U.S.C. 16 §§ 423(d)(2)(A), 1382c(a)(3)(B).

17 ALJ FINDINGS 18 At step one, the ALJ found that Plaintiff had not engaged in substantial 19 gainful activity. AR 32.

20 At step two, the ALJ found that Plaintiff had three medically determinable 1 severe impairments: post-traumatic stress disorder, depression, and general anxiety 2 disorder with panic features. Id. The ALJ did not find that Plaintiff’s antisocial

3 personality disorder or obsessive compulsive disorder were severe impairments, 4 and found that Plaintiff’s complaint of back pain was not a medically determinable 5 impairment because it was not supported by sufficient medical signs or laboratory

6 findings. AR 32–33. 7 At step three, the ALJ found that Plaintiff did not have an impairment or 8 combination of impairments that met or medically equaled the severity of a listed 9 impairment. AR 33.

10 At step four, the ALJ found that Plaintiff had an RFC sufficient to perform a 11 full range of work at all exertional levels, subject to the following “nonexertional 12 limitations: he would be restricted to simple, routine, and repetitive tasks with no

13 detailed work; he could have only ordinary production requirements; he could have 14 only superficial, brief contact with coworkers, supervisors, and the general public; 15 he would work best independently; he would work best with things rather than 16 people.” AR 34. The ALJ found that Plaintiff’s medically determinable

17 impairments could reasonably be expected to cause the alleged symptoms, but she 18 found that some of Plaintiff’s statements concerning the intensity, persistence and 19 limiting effects were inconsistent with the medical and other evidence in the record.

20 AR 34–35. 1 In reaching this determination, the ALJ gave great weight to the opinion of 2 Nancy Winfrey, Ph.D., an impartial medical expert. AR 36. The ALJ gave partial

3 weight to the opinion of two psychological consultants from the Washington 4 Department of Social and Health Services (DSHS), Steven Haney, M.D., and 5 Michael Regets, Ph.D. AR 36. The ALJ gave little weight to the opinion of John

6 Arnold, Ph.D., who performed a psychological evaluation on behalf of DSHS, and 7 to the statements of Plaintiff’s wife. Id. 8 At step five, the ALJ found Plaintiff could perform past relevant work as a 9 nursery laborer or construction laborer. AR 36. In the alternative, the ALJ found

10 Plaintiff could perform other jobs existing in the national economy. AR 37–38. 11 STANDARD OF REVIEW 12 The Court must uphold an ALJ’s determination that a claimant is not disabled

13 if the ALJ applied the proper legal standards and there is substantial evidence in the 14 record, considered as a whole, to support the ALJ’s decision. Molina v. Astrue, 674 15 F.3d 1104, 1110 (9th Cir. 2012) (citing Stone v. Heckler, 761 F.2d 530, 531 (9th 16 Cir. 1985)). “Substantial evidence ‘means such relevant evidence as a reasonable

17 mind might accept as adequate to support a conclusion.’” Id. at 1110 (quoting 18 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)). This 19 must be more than a mere scintilla but may be less than a preponderance. Id. at

20 1110–11 (citation omitted). If the evidence supports more than one rational 1 interpretation, the Court must uphold an ALJ’s decision if it was supported by 2 inferences reasonably drawn from the record. Id.; Allen v. Heckler, 749 F.2d 577,

3 579 (9th Cir. 1984). 4 ANALYSIS 5 A. The ALJ appropriately weighed Dr. Arnold’s testimony

6 Plaintiff first argues the ALJ erred by giving little weight to the testimony of 7 Dr. Arnold. ECF No. 10 at 12. Plaintiff contends the ALJ was required to give “clear 8 and convincing” reasons to reject the opinion of Dr. Arnold and asserts that the ALJ 9 failed to do so. Id. at 12. The Commissioner contends the ALJ only needed to offer

10 “specific and legitimate” reasons to reject Dr. Arnold’s testimony, but that even 11 under the less deferential “clear and convincing” standard, the ALJ was justified in 12 rejecting Dr. Arnold’s opinions. ECF No. 11 at 8–11.

13 There are three types of physicians: “(1) those who treat the claimant (treating 14 physicians); (2) those who examine but do not treat the claimant (examining 15 physicians); and (3) those who neither examine nor treat the claimant [but who 16 review the claimant’s file] (non-examining physicians).” Holohan v. Massanari,

17 246 F.3d 1195, 1201–02 (9th Cir. 2001). Generally, a treating physician’s opinion 18 carries more weight than an examining physician’s, and an examining physician’s 19 opinion carries more weight than a non-examining physician’s. Id. at 1202. “In

20 addition, the regulations give more weight to opinions that are explained than to 1 those that are not, and to the opinions of specialists concerning matters relating to 2 their specialty over that of nonspecialists.” Id.

3 If a treating or examining physician’s opinion is uncontradicted, the ALJ may 4 reject it only by offering “clear and convincing reasons that are supported by 5 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005).

6 But “the ALJ need not accept the opinion of any physician, including a treating 7 physician, if that opinion is brief, conclusory and inadequately supported by clinical 8 findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). 9 “If a treating or examining doctor’s opinion is contradicted by another doctor’s

10 opinion, an ALJ may only reject it by providing specific and legitimate reasons that 11 are supported by substantial evidence.” Bayliss, 427 F.3d at 1216 (citing Lester, 81 12 F.3d 821, 830–31).

13 1. The ALJ only needed to offer “specific and legitimate” reasons to reject Dr. Arnold’s testimony 14 Dr. Arnold, who performed a psychological evaluation, was an examining 15 physician. Holohan, 246 F.3d at 1201–02; AR 35. Dr. Arnold diagnosed Plaintiff 16 with unspecified depressive disorder; general anxiety disorder with panic features; 17 antisocial personality disorder with paranoid features, opioid & amphetamine 18 substance use disorder (severe); and cannabis use disorder. AR 329. Dr. Arnold 19 opined that Plaintiff suffered from a number of moderate, marked, and severe 20 limitations. AR 329–30. Dr. Arnold’s opinions and diagnoses were contradicted by 1 Dr. Winfrey’s testimony. See, e.g., AR 69 (“[Dr. Arnold] doesn’t really tie those 2 ratings to the test, and the test is pretty sparse.”). Accordingly, the ALJ only needed

3 to offer “specific and legitimate reasons that are supported by substantial evidence” 4 to reject it. Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830–31). 5 2. The ALJ gave “specific and legitimate” reasons to reject Dr. Arnold’s opinions 6 Plaintiff offers little in the way of argument that the ALJ’s rejection of Dr. 7 Arnold’s testimony was without a basis in substantial evidence, instead stating, “the 8 ALJ did not cite to any clear and convincing reasons for failing to credit the 9 limitations which Dr. Arnold gave in his report.” ECF No. 10 at 12. This conclusory 10 assertion is belied by the record, as the ALJ gave several “specific and legitimate 11 reasons” that were “supported by substantial evidence” to reject Dr. Arnold’s 12 evaluation. Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d at 830–31). 13 First, the ALJ explained that Dr. Arnold “made no serious attempt to tie his 14 significant ratings to the text of his report.” AR 36. This conclusion is supported by 15 substantial evidence. Although Dr. Arnold diagnosed Plaintiff with five separate 16 mental disorders, and assigned a handful of moderate, marked, and severe ratings 17 to Plaintiff’s limitations, Dr. Arnold offered next to no explanation for how he 18 reached those diagnoses. See generally AR 328–32. The Court finds this a specific 19 and legitimate reason, with a basis in substantial evidence, to give Dr. Arnold’s 20 opinions little weight. See 20 C.F.R § 416.927(c)(3); Bray v. Comm’r of Soc. Sec. 1 Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (quoting Thomas v. Barnhart, 278 2 F.3d 947, 957 (9th Cir. 2002)).

3 Second, the ALJ concluded that Dr. Arnold’s findings were unsupported by 4 specific medical signs or laboratory findings. AR 36. As above, Dr. Arnold made 5 little attempt to explain the basis for his conclusions—for example, Dr. Arnold

6 opined that Plaintiff’s ability to “[a]dapt to changes in a routine work setting” was 7 “severe[ly]” limited, but his report offers no justification for that assessment. AR 8 330. This too was a legitimate reason, with a basis in substantial evidence, to give 9 Dr. Arnold’s conclusions little weight. See 20 C.F.R § 416.927(c)(3); Bray, 554

10 F.3d at 1228. 11 Third, the ALJ noted that Dr. Arnold’s conclusions were inconsistent with 12 his own specific findings, particularly his assessment that Plaintiff suffered severe

13 limitations in numerous aspects of his mental faculties, despite Dr. Arnold’s report 14 that the tests he conducted with Plaintiff were “unremarkable.” AR 36; see also AR 15 331. This was also a sufficient basis to give Dr. Arnold’s report minimal weight. 16 See Bayliss, 427 F.3d at 1216.

17 Finally, the ALJ explained that Dr. Arnold’s opinions were inconsistent with 18 the remainder of the medical evidence in the record. AR 36. As Dr. Winfrey noted 19 at the hearing, Dr. Arnold was the sole provider to diagnose Plaintiff with antisocial

20 personality disorder—causing Dr. Winfrey to have a “pretty big degree of doubt” 1 regarding that diagnosis, AR 69—and many of Dr. Arnold’s other diagnostic 2 conclusions were alone in the medical record before the ALJ. AR 36. Therefore, the

3 ALJ’s final reason to reject the conclusions of Dr. Arnold was specific, legitimate, 4 and grounded in the record before her. See Bayliss, 427 F.3d at 1216. 5 In sum, the ALJ provided at least four “specific and legitimate” reasons to

6 reject the opinions of Dr. Arnold. Bayliss, 427 F.3d at 1216 (citing Lester, 81 F.3d 7 at 830–31). Because these reasons were supported by substantial evidence in the 8 record, the Court upholds the ALJ’s decision to reject Dr. Arnold’s conclusions. 9 Molina, 674 F.3d at 1110.

10 B. The ALJ properly discounted Plaintiff’s symptom testimony 11 Plaintiff next argues the “ALJ failed to fully credit Plaintiff’s testimony as to 12 why he is not able to work, which is that he cannot be around people due to his

13 mental health concerns.” ECF No. 10 at 12. 14 Where a claimant presents objective medical evidence of impairments that 15 could reasonably produce the symptoms complained of, an ALJ may reject the 16 claimant’s testimony about the severity of his symptoms only for “specific, clear

17 and convincing reasons.” Burrell v. Colvin, 775 F.3d 1133, 1137 (9th Cir. 2014). 18 The ALJ’s findings must be sufficient “to permit the court to conclude that the ALJ 19 did not arbitrarily discredit claimant’s testimony.” Tommasetti v. Astrue, 533 F.3d

20 1035, 1039 (9th Cir. 2008). General findings are insufficient. Lester v. Chater, 81 1 F.3d 821, 834 (9th Cir. 1995). In evaluating the claimant’s credibility, the “ALJ 2 may weigh inconsistencies between the claimant’s testimony and his or her conduct,

3 daily activities, and work record, among other factors.” Bray, 554 F.3d at 1227. The 4 Court may not second guess the ALJ’s credibility findings that are supported by 5 substantial evidence. Tommasetti, 533 F.3d at 1039.

6 The ALJ gave little weight to Plaintiff’s opinion testimony because it was 7 self-contradictory. AR 34–35. For example, Plaintiff previously told Dr. Arnold that 8 he had “difficulty around people,” reportedly “sweating and shaking,” and couldn’t 9 “have people behind him.” AR 328. As the ALJ observed, these complaints were

10 inconsistent with Plaintiff’s testimony that he relied on public transportation. AR 11 35; see also Attmore v. Colvin, 827 F.3d 872, 878 n.2 (9th Cir. 2016) (noting that 12 claimant’s ability to take public transportation was legitimately considered in

13 evaluating intensity of claimant’s social impairments). The ALJ also found 14 Plaintiff’s symptom testimony inconsistent with remarks elsewhere in the record 15 that Plaintiff often cared for his grandchildren, including a statement that Plaintiff 16 would have “no problem taking the grandchildren.” AR 35 (quoting AR 376).

17 The ALJ also discounted Plaintiff’s testimony because his symptoms 18 responded well to treatment. AR 35; see also Crane v. Shalala, 76 F.3d 251, 254 19 (9th Cir. 1996) (holding ALJ’s decision to discount claimant’s testimony is not

20 arbitrary when evidence showed claimant’s depression responded to therapy). 1 Finally, the ALJ gave little weight to Plaintiff’s symptom testimony because it was 2 rebutted by the medical opinion of Dr. Winfrey. AR 36; see also Light v. Soc. Sec.

3 Admin., 119 F.3d 789, 792 (9th Cir. 1997), as amended on reh’g (Sept. 17, 1997) 4 (holding ALJ may reject claimant’s symptom testimony by considering “testimony 5 from physicians and third parties concerning the nature, severity, and effect of the

6 symptoms of which he complains”) 7 In sum, the Court finds the ALJ properly gave “specific, clear and convincing 8 reasons” to reject Plaintiff’s symptom testimony. Colvin, 775 F.3d at 1137. These 9 reasons were supported by the ALJ’s credibility determinations and based on

10 substantial evidence in the record, and the Court will not second guess those 11 conclusions. Tommasetti, 533 F.3d at 1039. 12 C. The ALJ properly discounted Plaintiff’s wife’s testimony

13 Plaintiff next claims the ALJ erred in giving little weight to the testimony of 14 his wife. ECF No. 10 at 13. The testimony of a lay witness alone can never establish 15 disability. 20 C.F.R. §§ 416.929(a), (b). And to reject a lay witness’s opinion, the 16 ALJ need only cite a “germane” reason for doing so. Bayliss, 427 F.3d at 1218

17 (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). “Inconsistency with 18 medical evidence is one such reason.” Id. The ALJ discounted Plaintiff’s wife 19 testimony about Plaintiff’s social limitations because it was inconsistent with the

20 opinions of Dr. Winfrey and the medical record before the ALJ. AR 36. The ALJ 1 thus relied on at least one germane reason to reject the testimony of Plaintiff’s wife, 2 and the Court will not disturb that conclusion.

3 D. The ALJ’s decision at step four was supported by substantial evidence 4 Finally, Plaintiff asserts the ALJ erred at step four by propounding an 5 incomplete hypothetical to the vocational expert. ECF No. 10 at 14. “An ALJ must

6 propose a hypothetical that is based on medical assumptions supported by 7 substantial evidence in the record that reflects each of the claimant’s limitations.” 8 Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995). But where the ALJ does not 9 find that a claimant suffers from alleged impairments, those impairment need not

10 be included in the hypothetical. Id. 11 In this matter, the ALJ asked the testifying vocational expert if an individual 12 suffering from the impairments the ALJ determined were established could perform

13 work as a nursery or construction laborer. AR 87–88. The vocational expert testified 14 that such an individual could, and the ALJ accordingly found Plaintiff capable of 15 performing past relevant work. AR 88, 37. As set out above, the ALJ did not err in 16 rejecting several of Plaintiff’s alleged impairments, and therefore did not err in

17 propounding a similarly limited hypothetical to the vocational expert. Roberts, 66 18 F.3d at 184. Accordingly, the Court finds no error in the ALJ’s step four analysis. 19 //

20 // 1 CONCLUSION 2 For the reasons set forth above, IT IS HEREBY ORDERED: 3 1. Plaintiff's Motion for Summary Judgment, ECF No. 10, is DENIED. 4 2. The Commissioner’s Motion for Summary Judgment, ECF No. 11, is

5 GRANTED.

6 3. The Clerk’s Office shall ENTER JUDGMENT in favor of the

7 Commissioner and thereafter CLOSE the file. 8 IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and

9 || provide copies to all counsel. 10 DATED this 19th day of November 2019. 11 coastal SALVADOR MENE-S3\A, JR. 12 United States District Jecge 13 14 15 16 17 18 19 20