Gidlund v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: August 27, 2021
• Docket: 3:20-cv-06018
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 JOHN G., 8 Plaintiff, CASE NO. C20-6018-BAT 9 v. ORDER AFFIRMING THE 10 COMMISSIONER’S DECISION COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12

13 Plaintiff seeks review of the denial of his application for Disability Insurance Benefits. 14 He contends the ALJ erred in assessing the medical evidence, his subjective testimony, and the 15 lay evidence. Dkt. 16 at 1. Plaintiff also raises for the first time in his reply brief a constitutional 16 claim. Dkt. 18. For the reasons below, the Court AFFIRMS the Commissioner’s final decision 17 and DISMISSES the case with prejudice. 18 BACKGROUND 19 Plaintiff is currently 62 years old, graduated from high school, and previously worked as 20 a truck parts salesperson. Tr. 44, 264. In February 2018, he applied for benefits, alleging 21 disability as of April 29, 2017.1 Tr. 231-32. His application was denied initially and on 22 reconsideration. Tr. 117-19, 123-29. The ALJ conducted hearings in July and November 2019 23

1 At the hearing, Plaintiff amended his alleged onset date to August 28, 2017. Tr. 39. 1 (Tr. 33-98), subsequently finding Plaintiff not disabled. Tr. 20-28. As the Appeals Council 2 denied Plaintiff’s request for review, the ALJ’s decision is the Commissioner’s final decision. 3 Tr. 5-10. 4 THE ALJ’S DECISION

5 Utilizing the five-step disability evaluation process,2 the ALJ found:

6 Step one: Plaintiff had not engaged in substantial gainful activity since the alleged onset date. 7 Step two: Plaintiff has the following severe impairments: right temporal hemorrhagic 8 brain mass status-post temporal craniotomy; essential hypertension; and hearing loss with hearing aids (right-sided hearing impairment greater than left). 9 Step three: These impairments did not meet or equal the requirements of a listed 10 impairment.3

11 RFC: Plaintiff can perform a full range of work at all exertional levels with the following non-exertional limitations: he can work with no more than moderate noise 12 levels. He cannot climb ladders, ropes, or scaffolds. He cannot be exposed to hazards, as defined in the Dictionary of Occupational Titles. 13 Step four: Plaintiff cannot perform his past work. 14 Step five: As there are jobs that exist in significant numbers in the national economy that 15 Plaintiff can perform, he is not disabled.

16 Tr. 20-28.

17 DISCUSSION 18 A. Medical Evidence 19 Under 20 C.F.R. § 416.920c(b)(2), (c), the ALJ considers the persuasiveness of the 20 medical opinion using five factors (supportability, consistency, relationship with claimant, 21 specialization, and other), with supportability and consistency being the two most important 22

23 2 20 C.F.R. §§ 404.1520, 416.920. 3 20 C.F.R. Part 404, Subpart P, Appendix 1. 1 factors. The decision must explain how the ALJ considered the factors of supportability and 2 consistency, 20 C.F.R. § 416.920c(b), and must be supported by substantial evidence. 3 Plaintiff contends the ALJ erroneously discounted the opinion of Jennifer Nelson, ARNP 4 his primary care provider. Ms. Nelson opined in June 2019 that Plaintiff’s weekly headaches

5 would preclude all activity for 1-2 hours. Tr. 673-78. The ALJ discounted this opinion on the 6 grounds Ms. Nelson’s treatment notes reference Plaintiff’s denial of headaches in August 2019, 7 and other records reference such denials as well. Tr. 27 (citing Tr. 403, 689). 8 Plaintiff contends that other records corroborate his reports of headaches, and the ALJ 9 erred in relying on a few isolated instances where he denied headaches. Dkt. 16 at 4. But the 10 record shows many other instances where Plaintiff denied headaches. See, e.g., Tr. 358, 361, 11 365, 388, 397, 421, 424, 429, 477, 486, 518, 564, 567-68. Hence, Plaintiff's claim the ALJ's 12 cherry picked the record fails as the Court cannot say the ALJ's assessment is unreasonable or 13 lacks substantial evidence. 14 Plaintiff also suggests the ALJ should have rejected the testimony Dr. Lebeau's gave at

15 the supplemental hearing because the doctor did not consider Plaintiff’s testimony or the lay 16 testimony. Dkt. 16 at 4. The argument implies Dr. Lebeau's opinion fails to include limitations 17 the ALJ should have included. But the ALJ as discussed below, the ALJ did not err in 18 discounting the testimony of Plaintiff and the lay witness's testimony and thus the Court finds the 19 ALJ's consideration of Dr. Lebeau is not erroneous. 20 Lastly, Plaintiff argues in conclusory fashion the ALJ failed to assess his headaches in 21 accordance with Social Security Ruling (“SSR”) 19-4p. Plaintiff has not identified a particular 22 error related to SSR 19-4p or shown which “legal standards” contained therein that the ALJ 23 failed to follow, and has thus failed to meet his burden of establishing harmful error. See Dkt. 16 1 at 4. In the absence of such argument, the Court declines to further address SSR 19-4p. See 2 Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (declining to address 3 assertions unaccompanied by legal arguments: “We require contentions to be accompanied by 4 reasons.”). In sum, because Plaintiff fails to show the ALJ erred in assessing the medical

5 evidence, the Court rejects Plaintiff’s first assignment of error. 6 B. Plaintiff’s Testimony 7 The ALJ discounted Plaintiff’s alleged limitations as inconsistent with the objective 8 medical evidence and with treatment notes wherein Plaintiff denied experiencing the symptoms 9 he complains of. Tr. 24-26. The ALJ also found Plaintiff’s activities were “generally 10 inconsistent with the degree of functional limitation” he alleged. Tr. 27. Plaintiff argues the 11 ALJ erred by failing to provide a clear and convincing reason to discount his statements. See 12 Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 13 The Court agrees the ALJ erred in failing to identify any particular inconsistency between 14 Plaintiff’s activities and his allegations (Tr. 27), but finds the ALJ adequately identified

15 inconsistencies between the record and Plaintiff’s allegations of limitations due to headaches, 16 dizziness, hypertension, and hearing loss. Tr. 25-26. Specifically, the ALJ noted Plaintiff’s 17 headaches improved after his craniotomy surgery and after his blood pressure was lowered via 18 medication, and the objective evidence indicated Plaintiff’s other physical limitations were not 19 disabling. Id. The ALJ’s findings were more specific than simply a “selective summary” of the 20 medical evidence, as Plaintiff contends. See Dkt. 16 at 5. The ALJ noted Plaintiff's symptoms 21 and detailed the medical record finding it showed Plaintiff's functional limitations were less 22 severe than Plaintiff claimed. See Tr. 25-26. The ALJ also noted Plaintiff's wife stated Plaintiff's 23 headaches, dizziness and other neurological conditions did not affect his activities of daily living, 1 lending further support to the ALJ's assessment that Plaintiff's complaints did not square with the 2 medical record. Tr. 25 (citing Tr. 320). The ALJ thus did not err in relying on inconsistencies 3 between the record and Plaintiff’s allegations in order to discount Plaintiff’s testimony. See 4 Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008)

5 (“Contradiction with the medical record is a sufficient basis for rejecting the claimant’s 6 subjective testimony.”). Accordingly, because the ALJ provided a valid reason to discount 7 Plaintiff's testimony, the ALJ's error with respect to Plaintiff’s activities is harmless. See 8 Carmickle, 533 F.3d at 1162-63. The Court affirms the ALJ's treatment of Plaintiff's testimony. 9 C. Lay Testimony 10 Plaintiff’s wife completed a headache questionnaire, describing Plaintiff’s experience of 11 twelve headaches per month lasting three hours each. Tr. 320. Plaintiff’s wife also indicated 12 that the headaches have no impact on Plaintiff’s ability to complete his daily activities, although 13 they do prevent him from falling asleep at night. Id. The ALJ found Plaintiff’s wife’s statement 14 was “generally consistent” with Plaintiff’s treatment history, showing that Plaintiff did have

15 headaches at times but they “improved [when] his blood pressure was controlled with 16 conservative medications.” Tr. 26. 17 Plaintiff argues the ALJ erred in purporting to credit his wife’s statement but failing to 18 account for the numerous headaches she described. Dkt. 16 at 9. But Plaintiff’s wife explicitly 19 stated the headaches did not limit Plaintiff's daily activities which is consistent with the ALJ’s 20 interpretation of the record. As such, Plaintiff fails to show the ALJ erred in assessing Plaintiff’s 21 wife’s statement. See, e.g., Turner v. Comm’r of Social Sec. Admin., 613 F.3d 1217, 1223 (9th 22 Cir. 2010) (ALJ not required to provide clear and convincing reasons to reject physician’s 23 statement when statement did not assess any limitations). 1 E. Separation of Powers Claim 2 In his reply brief, Plaintiff argues for the first time that because the Commissioner is 3 removable only for cause, the SSA's structure violates the separation of powers doctrine and 4 strips the Commissioner from delegating to the ALJ the authority to make findings regarding

5 benefits eligibility. Dkt. 18 at 5-7. The Ninth Circuit has long held appellants cannot raise a new 6 issue for the first time in their reply briefs. Northwest Acceptance Corp. v. Lynnwood Equip., 7 Inc., 841 F.2d 918, 924 (9th Cir.1988); Zango, Inc. v. Kaspersky Lab, Inc., 568 F.3d 1169, 1177 8 n.8 (9th Cir. 2009) (“[A]rguments not raised by a party in an opening brief are waived.”). 9 Petitioner claims an exception to this rule applies to his case arguing under Varney v. 10 Secretary of Health & Human Services, 859 F.2d 1396 (9th Cir. 1988), he can raise the issue in 11 his reply because it is a pure question of law, not dependent on the record, and has wide impact 12 on all claimants. Dkt. 18 at 6. The Court finds Varney inapplicable here. The Court in Varney 13 considered an issue raised for the first time in a petition for rehearing on the grounds that if 14 Varney prevailed on the new issue, she would be awarded benefits in a disability case that had

15 pending over five years. Varney, 859 F.2d at 1398 ("We have no wish to further delay the 16 payment of deserved and much-needed benefits, to Varney or to others in her situation, by 17 declining to resolve this issue now."). In contrast, Plaintiff argues under its current structure the 18 SSA has no power to determine benefits eligibility. Plaintiff's request for remand on 19 constitutional grounds thus does not lead to a possible immediate award of benefits as in Varney 20 and instead leads to remand to the SSA which Plaintiff argues lacks the authority to adjudicate 21 his claim. Alternatively, it leads to a remand that based upon the findings of this Court directs the 22 Commissioner to affirm the ALJ's decision, not grant Plaintiff another hearing. 23 1 The Court in Varney also considered the new claim because there was no indication the 2 petitioner's failure to raise the new issue was "willful." Id. In contrast, the claim Plaintiff raises 3 is based upon a 2020 Supreme Court decision. Plaintiff could have raised the claim in his 4 opening brief and does not aver he was negligent or made a mistake in failing to do so. Rather he

5 seems to argue he is entitled to raise it in the reply brief under Varney. But Varney creates no 6 such automatic entitlement. Plaintiff also relies upon a memo from the Office of Legal Counsel 7 issued in July 8, 2021 arguing it concludes the restrictions in removing the Commissioner 8 violates separation of powers. However, the memo does not help Plaintiff because while it 9 concludes the removal provision is unconstitutional it also concludes it is severable and thus does 10 not affect the viability of the remainder of the statute, which would include the ALJ's decision 11 which the Court affirms here. If the Court were to apply the memo as Plaintiff urges, the Court 12 would reject Plaintiff's argument and conclude the unconstitutional removal provision does not 13 render the ALJ's decision unconstitutional. 14 The Court thus finds Plaintiff's case presents facts dissimilar to the facts in Varney. In

15 Varney the Court found no indication of willful failure to raise the claim earlier. Here Plaintiff 16 could have but did not raise the claim and makes no mention he was negligent. In Varney the 17 Court was pressed to avoid delay in awarding benefits, and in fact ended up ordering benefits. 18 Here, the Constitutional claim does not result in an award of benefits. Instead it results in either 19 further delay or a denial upon remand as the Court has found the ALJ's decision in this case is 20 free of legal error and supported by substantial evidence. Accordingly, this case does not present 21 an untimely issue that is "sufficiently urgent" and involving "extraordinary circumstances" as 22 was the case in Varney. The Court therefore declines to consider Plaintiff's constitutional claim 23 regarding the separation of powers that was presented for the first time in his reply brief. 1 CONCLUSION 2 For the foregoing reasons, the Commissioner’s decision is AFFIRMED and this case is 3 DISMISSED with prejudice. 4 DATED this 27th day of August 2021.

5 A 6 BRIAN A. TSUCHIDA United States Magistrate Judge 7

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