Hansen v. Commissioner of Social Security

Opinion

6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE

8 LISA H.,

9 Plaintiff, CASE NO. C19-0031-MAT

10 v. ORDER RE: SOCIAL SECURITY 11 ANDREW M. SAUL, DISABILITY APPEAL Commissioner of Social Security,1 12 Defendant. 13

14 Plaintiff proceeds through counsel in her appeal of a final decision of the Commissioner of 15 the Social Security Administration (Commissioner). The Commissioner denied Plaintiff’s 16 application for Disability Insurance Benefits (DIB) after a hearing before an Administrative Law 17 Judge (ALJ). Having considered the ALJ’s decision, the administrative record (AR), and all 18 memoranda of record, this matter is AFFIRMED. 19 FACTS AND PROCEDURAL HISTORY 20 Plaintiff was born on XXXX, 1959.2 She has an 11th-grade education, and has worked as 21

22 1 Andrew M. Saul is now the Commissioner of the Social Security Administration. Pursuant to Federal Rule of Civil Procedure 25(d), Andrew M. Saul is substituted for Nancy A. Berryhill as defendant in this suit. 23 2 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1).

ORDER RE: SOCIAL SECURITY 1 a restaurant server and banquet server. (AR 46, 57-58.) 2 Plaintiff applied for DIB in March 2015. (AR 70, 135-36.) That application was denied 3 and Plaintiff timely requested a hearing. (AR 89-91, 93-98.)

4 On November 27, 2017, ALJ Ilene Sloan held a hearing, taking testimony from Plaintiff 5 and a vocational expert. (AR 25-69.) On February 15, 2018, the ALJ issued a decision finding 6 Plaintiff not disabled. (AR 11-19.) Plaintiff timely appealed. The Appeals Council denied 7 Plaintiff’s request for review on November 16, 2018 (AR 1-5), making the ALJ’s decision the final 8 decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this 9 Court. 10 JURISDICTION 11 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 12 DISCUSSION 13 The Commissioner follows a five-step sequential evaluation process for determining

14 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must 15 be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had not 16 engaged in substantial gainful activity between her alleged onset and date last insured (DLI). (AR 17 13.) At step two, it must be determined whether a claimant suffers from a severe impairment. The 18 ALJ found that through the DLI, Plaintiff’s obesity, status post cervical spine fusion with stenosis, 19 early acquired scoliosis, and degenerative disc disease with facet arthropathy was severe. (AR 20 14.) Step three asks whether a claimant’s impairments meet or equal a listed impairment. The 21 ALJ found that Plaintiff’s impairments did not meet or equal the criteria of a listed impairment. 22 (AR 14-15.) 23 If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess

ORDER RE: SOCIAL SECURITY 1 residual functional capacity (RFC) and determine at step four whether the claimant has 2 demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of 3 performing light work, with additional limitations: she can frequently climb ramps and stairs and

4 occasionally climb ladders, ropes, and scaffolds. She can frequently balance. She can occasionally 5 stoop, kneel, crouch, and crawl. (AR 15.) With that assessment, the ALJ found Plaintiff able to 6 perform past relevant work as a waitress and caterer’s helper. (AR 18.) 7 If a claimant demonstrates an inability to perform past relevant work, the burden shifts to 8 the Commissioner to demonstrate at step five that the claimant retains the capacity to make an 9 adjustment to work that exists in significant levels in the national economy. Because the ALJ 10 found Plaintiff capable of performing past relevant work, the ALJ did not proceed to step five. 11 (AR 18-19.) 12 This Court’s review of the ALJ’s decision is limited to whether the decision is in 13 accordance with the law and the findings supported by substantial evidence in the record as a

14 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more 15 than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable 16 mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 17 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s 18 decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 19 2002). 20 Plaintiff argues the ALJ erred in (1) discounting her subjective symptom testimony, (2) 21 discounting her husband’s letter, and (3) discounting her treating doctor’s opinions. The 22 Commissioner argues that the ALJ’s decision is supported by substantial evidence and should be 23 affirmed.

ORDER RE: SOCIAL SECURITY 1 Subjective symptom testimony 2 The ALJ discounted Plaintiff’s testimony for a number of reasons: (1) the objective 3 evidence did not corroborate Plaintiff’s allegations of disabling limitations; (2) her activities were

4 inconsistent with her allegation of disability; (3) Plaintiff stopped working for reasons unrelated 5 to her impairments, and her condition had not deteriorated since she was laid off; and (4) Plaintiff’s 6 receipt of unemployment benefits contradicted her allegation that she is disabled.3 (AR 16-17.) 7 Plaintiff argues that these reasons are not clear and convincing, as required in the Ninth Circuit. 8 Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). 9 Plaintiff objects to the ALJ’s first reason on the grounds that an ALJ is not a doctor, and 10 thus is not qualified to consider whether the objective medical evidence corroborates her 11 allegations. Dkt. 8 at 5. This argument is inconsistent with the agency’s regulatory scheme and 12 guidance, which instructs the ALJ to consider whether a claimant’s testimony is consistent with 13 the medical record. See, e.g., 20 C.F.R. § 404.1529; Social Security Ruling (SSR) 16-3p, 2017

14 WL 5180304, at *5 (Oct. 25, 2017) (“A report of minimal or negative findings or inconsistencies 15 in the objective medical evidence is one of the many factors we must consider in evaluating the 16 intensity, persistence, and limiting effects of an individual’s symptoms.”). Although Plaintiff 17 emphasizes in her briefing (Dkt. 8 at 6) that she underwent surgeries for her medical conditions, 18 the ALJ acknowledged as much (AR 16) and the fact that Plaintiff had surgeries in the past does 19 not necessarily suggest that her condition remained at the same level that required surgical 20 intervention. Plaintiff has not shown that the ALJ erred in considering whether Plaintiff’s 21 3 The Commissioner does not defend the ALJ’s reasoning with regard to unemployment benefits. 22 Dkt. 10. Assuming this line of reasoning was erroneous, it is nonetheless harmless in light of the other valid reasons the ALJ provided. See Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 1155, 1162-63 23 (9th Cir. 2008).

ORDER RE: SOCIAL SECURITY 1 allegations of disabling impairments were consistent with the normal and mild findings in the 2 record, along with other factors. 3 The ALJ also properly considered Plaintiff’s work history in assessing her allegations. The

4 ALJ noted that Plaintiff reported to providers that she stopped working after being laid off 5 following a change of management. (AR 17 (citing AR 379, 421).) This explanation for the end 6 of her employment does not suggest that Plaintiff’s impairments are the primary reason why she 7 cannot work, which undermines her disability claim. See SSR 82-61, 1982 WL 31387, at *1 (Jan. 8 1, 1982) (“A basic program principle is that a claimant’s impairment must be the primary reason 9 for his or her inability to engage in substantial gainful work.”). Plaintiff argues that the ALJ’s 10 findings in this regard are not supported by substantial evidence (Dkt. 8 at 6-7), but does not 11 explain why her reports of layoff due to a change in management are not sufficient to support the 12 ALJ’s finding. Plaintiff emphasizes her hearing testimony regarding her difficulty performing her 13 job (Dkt. 11 at 3 (citing AR 47-51)), but cites no authority requiring an ALJ to credit statements

14 made at the hearing over statements made at other times. Plaintiff’s inconsistent statements 15 regarding the reason why she stopped working support the ALJ’s conclusion. See Bruton v. 16 Massanari, 268 F.3d 824, 828 (9th Cir. 2001) (holding that the ALJ did not err in discounting 17 claimant’s testimony based on his report that he stopped working because he was laid off rather 18 than because he was injured). 19 Finally, the ALJ discounted Plaintiff’s description of disabling impairments in light of 20 evidence she was able to engage in activities inconsistent with those allegations. (AR 16-17.) The 21 ALJ cited Plaintiff’s ability to inter alia act as the “predominant caregiver” for her young grandson 22 on a full-time basis as well as volunteer at a food bank. (AR 16.) This finding is supported by 23 substantial evidence. (See AR 296 (“She is able to care for her 2 year old grandson. This brings

ORDER RE: SOCIAL SECURITY 1 her joy to be around him and babysit.”), 322 (“She continues to care for [grandson] every day and 2 enjoys spending time with him.”), 347 (“She continues to watch her grandchildren every day and 3 says they are a source of great inspiration for her to continue with her taper.”), 356 (“[Plaintiff] is

4 predominant caregiver for grandchild”), 371 (“She is a full-time day care provider for grandchild, 5 something she very much enjoys.”), 379 (“[Plaintiff] has been spending considerable time [] baby- 6 sitting.”), 384 (same), 398 (same), 405 (Plaintiff caring for seven-week-old grandson), 412 7 (Plaintiff “spending considerable time [] baby-sitting”), 454 (listing “childcare activities 8 (grandmother [] role)”), 459 (Plaintiff is able to care for her 2-year-old grandson), 464 (same), 551 9 (Plaintiff has high “life role function” as “caring for her grandchildren”), 559 (Plaintiff “has done 10 some volunteering at food bank”), 572 (Plaintiff “volunteering for Good Neighbors Ass’n 11 (distributing food to individuals and institutions)”).) 12 Although Plaintiff argues that the ALJ merely assumed that her childcare and volunteer 13 activities were inconsistent with her disability allegation, this inference is reasonable in light of

14 the discrepancy between the nature of the activities and the extreme limitations she alleged. Dkt. 15 8 at 9-10. For example, Plaintiff alleged that she could not lift anything heavier than a cup of 16 coffee (AR 226), yet she brought her grandson to two of her own medical appointments (when he 17 was an infant and toddler) and told her doctors she took care of him every day. (See, e.g., AR 322, 18 379.) During the same appointment where Plaintiff reported volunteering at a food bank, she also 19 told her doctor that she was “feeling better and functioning well[,]” and thus wanted to maintain 20 her current pain medication regimen. (AR 572.) Even without seeking additional clarification 21 about Plaintiff’s activities, the ALJ reasonably interpreted her childcare and volunteer activities to 22 be inconsistent with her allegation of disability. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 23 2007) (activities may undermine credibility where they (1) contradict the claimant’s testimony or

ORDER RE: SOCIAL SECURITY 1 (2) “meet the threshold for transferable work skills”). Although Plaintiff attempted to minimize 2 her childcare responsibilities at the administrative hearing (AR 53), the ALJ did not err in relying 3 on the multitude of statements she made to providers describing her childcare role as more

4 expansive. (See AR 296, 322, 347, 356, 371, 379, 384, 398, 405, 412, 454, 459, 464, 551.) 5 Because the ALJ provided multiple clear and convincing reasons to discount Plaintiff’s 6 allegations, the ALJ’s assessment is affirmed. 7 Lay statement 8 Plaintiff’s husband, Scott Lane, wrote a letter describing his wife’s symptoms and 9 limitations. (AR 261-62.) The ALJ summarized Mr. Lane’s statement and stated that she gave it 10 little weight because the record showed that Plaintiff’s condition had remained stable since the 11 time she had last worked, and that she had stopped working for reasons unrelated to her 12 impairments. (AR 18.) 13 Plaintiff contends that this reasoning is not germane, as is required in the Ninth Circuit.

14 See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993) (“If the ALJ wishes to discount the 15 testimony of the lay witnesses, he must give reasons that are germane to each witness.”). 16 Specifically, Plaintiff argues that the record does not support the ALJ’s reasoning, but instead 17 supports Mr. Lane’s statement that Plaintiff “worked as long as she could despite severe back pain 18 until she simply no longer could do so.” Dkt. 8 at 13. 19 As discussed above, the record shows that Plaintiff reported to her providers at the time 20 that she stopped working because she was laid off due to a change in management. (See AR 379, 21 421.) The record also corroborates the ALJ’s finding that Plaintiff’s symptoms had remained 22 stable since before she stopped working. (See, e.g., AR 315 (July 2014 report that Plaintiff’s 23 symptoms had been stable for the past four years), 339 (January 2014 note describing improvement

ORDER RE: SOCIAL SECURITY 1 in Plaintiff’s symptoms and functioning since 2013).) Although Plaintiff focuses on her own 2 testimony that contradicts her reports to her doctors about why she stopped working, as explained 3 above, the ALJ did not err in discounting Plaintiff’s hearing testimony. Thus, the ALJ did not err

4 in characterizing Mr. Lane’s statement as inconsistent with the record, or in discounting it on that 5 basis. See Lewis v. Apfel, 236 F.3d 503, 511-12 (9th Cir. 2001) (germane reasons for discounting 6 lay testimony included inconsistency with medical evidence, evidence of claimant’s activities, and 7 claimant’s reports). 8 Medical evidence 9 Plaintiff’s treating doctor David Tauben, M.D., submitted two statements in support of her 10 disability claim. (AR 591-98.) The ALJ summarized Dr. Tauben’s findings and explained why 11 she gave them little weight: 12 Dr. Tauben indicated that the claimant could not lift or carry any weight. He opined that the claimant could only stand or sit for 15 minutes before needing to change 13 position. Dr. Tauben indicated that the claimant could lift less than five pounds. He opined that the claimant was permanently disabled. The limitations opined by 14 Dr. Tauben are rather extreme, and are more restrictive than the limitations alleged by the claimant. His lifting limitation is inconsistent with the claimant’s ability to 15 hold and carry her grandchild, diaper, feed, place him in a carseat, lift the car seat out of the car, push him in a stroller, and take care of all of his needs from when he 16 was an infant until he was three-years-old ([AR 53, 296, 347, 371, 379, 483, 551]). Moreover, Dr. Tauben’s statements are inconsistent with the objective findings on 17 examination. The claimant has had no neurological deficits, her gait is normal, sensation, reflexes, and strength have consistently been normal ([AR 348, 514, 18 530]). It is also inconsistent with no findings of atrophy on examination. The determination of disability is a decision reserved to the Commissioner, and Dr. 19 Tauben’s opinion that the claimant is permanently disabled infringes on this issue. His opinion is also inconsistent with her reported activities and imaging, which 20 showed no acute process ([AR 449]). For these reasons, Dr. Tauben’s opinion is given little weight. 21

22 (AR 17-18.) Plaintiff contends that the ALJ erred in speculating as to her childcare activities, and 23 erred in finding Dr. Tauben’s opinion to be inconsistent with the medical evidence because Dr.

ORDER RE: SOCIAL SECURITY 1 Tauben is a pain specialist and described her pain to be reasonable in light of the objective 2 evidence. Dkt. 8 at 14. 3 In general, more weight should be given to the opinion of a treating physician than to a

4 non-treating physician, and more weight to the opinion of an examining physician than to a non- 5 examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted 6 by another physician, a treating or examining physician’s opinion may be rejected only for “‘clear 7 and convincing’” reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). 8 Where contradicted, a treating or examining physician’s opinion may not be rejected without 9 “‘specific and legitimate reasons’ supported by substantial evidence in the record for so doing.” 10 Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 11 The Court finds that the ALJ’s reasoning with respect to Dr. Tauben’s opinions is specific 12 and legitimate. As explained supra, the Court finds the ALJ’s inferences regarding Plaintiff’s 13 childcare activities to be reasonable in light of the evidence in the record showing that Plaintiff

14 cared for her grandson on a full-time basis and even occasionally brought him with her to medical 15 appointments: the physical requirements of this activity is inconsistent with the limitations 16 described by Dr. Tauben, particularly the lifting/carrying restrictions. (See AR 593, 598.) It is 17 reasonable to find Dr. Tauben’s opinions that Plaintiff can lift no weight to be inconsistent with 18 her ability to care for her grandson while he was an infant and toddler, and to discount his opinions 19 on that basis. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (affirming an ALJ’s 20 rejection of a treating physician’s opinion that was inconsistent with the claimant’s level of 21 activity). 22 Furthermore, the ALJ’s reference to evidence that Plaintiff maintained a normal gait, full 23 extremity strength, and had no atrophy also contradicts Dr. Tauben’s opinion that Plaintiff was

ORDER RE: SOCIAL SECURITY 1 extremely limited in her ability to lift/carry, sit, or stand. See AR 281, 348, 379, 426, 514. This 2 is another valid reason to discount Dr. Tauben’s opinions. See Tommasetti v. Astrue, 533 F.3d 3 1035, 1041 (9th Cir. 2008) (not improper to reject an opinion presenting inconsistencies between

4 the opinion and the medical record). 5 Because the ALJ provided specific, legitimate reasons to discount Dr. Tauben’s opinions, 6 the ALJ’s assessment of those opinions is affirmed. 7 CONCLUSION 8 For the reasons set forth above, this matter is AFFIRMED. 9 DATED this 5th day of August, 2019. 10 A 11 12 Mary Alice Theiler United States Magistrate Judge

14 15 16

18 19 20 21 22 23

ORDER RE: SOCIAL SECURITY