Henning v. Saul

• Court: District Court, E.D. Washington
• Decided: November 2, 2020
• Docket: 2:19-cv-00425
• Status: Unknown

Opinion

1 2 3 FILED IN THE 4 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 5 Nov 02, 2020 6 UNITED STATES DISTRICT COURT SEAN F. MCAVOY, CLERK 7 EASTERN DISTRICT OF WASHINGTON

9 TRACEY H., No. 2:19-CV-0425-JTR

10 Plaintiff, ORDER GRANTING DEFENDANT’S 11 MOTION FOR SUMMARY 12 v. JUDGMENT

13 ANDREW M. SAUL, 14 COMMISSIONER OF SOCIAL SECURITY, 15

16 Defendant. 17 18 BEFORE THE COURT are cross-motions for summary judgment. ECF 19 No. 12, 13. Attorney Lora Lee Stover represents Tracey H. (Plaintiff); Special 20 Assistant United States Attorney Jeffrey E. Staples represents the Commissioner of 21 Social Security (Defendant). The parties have consented to proceed before a 22 magistrate judge. ECF No. 6. After reviewing the administrative record and the 23 briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary 24 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 25 JURISDICTION 26 Plaintiff filed applications for Disability Insurance Benefits and 27 Supplemental Security Income, alleging disability since December 24, 2014, due to 28 birth defect: deformed right foot (club foot); deformed right ankle; skin cancer: 1 basil cell and squamous cell carcinoma; injured right shoulder (multiple 2 operations); chronic headaches; nerve problems (extremities fall asleep); stomach 3 ulcer; GERD (treated with heavy medication); inner ear-brain syndrome (balance 4 and hearing issues); and hearing loss. Tr. 254, 261, 295. At the time of the 5 administrative hearing, Plaintiff amended the alleged onset date to December 1, 6 2015. Tr. 29, 68. The applications were denied initially and upon reconsideration. 7 Administrative Law Judge (ALJ) Marie Palachuk held a hearing on November 28, 8 2018, Tr. 65-102, and issued an unfavorable decision on January 14, 2019, Tr. 29- 9 40. The Appeals Council denied Plaintiff’s request for review on November 14, 10 2019. Tr. 1-5. The ALJ’s January 2019 decision thus became the final decision of 11 the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 12 405(g). Plaintiff filed this action for judicial review on December 19, 2019. ECF 13 No. 1. 14 STATEMENT OF FACTS 15 Plaintiff was born on September 25, 1970, Tr. 254, and was 45 years old on 16 the amended alleged disability onset date, December 1, 2015, Tr. 68. He 17 completed two years of college and had additionally obtained a real estate sales 18 license. Tr. 296. He reported past work in auto sales and real estate sales. Tr. 19 297. He indicated he stopped working because of his conditions in late 2015. Tr. 20 79, 295, 297. 21 Plaintiff testified at the administrative hearing on November 28, 2018, that 22 his most significant impairment was his right club foot and deformed ankle. Tr. 23 78, 80-81. He described his right foot as “mush inside,” Tr. 78, and indicated that, 24 despite three surgeries, being on his feet caused extreme pain, Tr. 81. He was 25 nevertheless able to work as an automobile salesperson with this condition and 26 would walk over 12 miles on the lot on a regular day. Tr. 79. He stated he also 27 had issues with his neck that caused shoulder pain and numbness in his arms and 28 hands. Tr. 82. Carpal tunnel surgery in 2016 did not alleviate his symptoms. Tr. 1 83-34. Plaintiff testified his dominant right hand was worse than the left and 2 numbness in the hand made it very difficult for him to write. Tr. 84. He indicated 3 he injured his left elbow, had undergone two surgeries for the injury, and was no 4 longer able to straighten his left arm. Tr. 85. At the time of the hearing, he was 5 also experiencing left shoulder pain. Tr. 86. Plaintiff additionally described 6 having recently undergone a surgery for sleep apnea and having had multiple 7 surgeries for tinnitus. Tr. 87-88. He stated he also had severe headaches at a rate 8 of about twice a week. Tr. 88. 9 With respect to his mental impairments, Plaintiff testified he had been taking 10 psychotropic medication which helped control his symptoms related to post- 11 traumatic stress disorder and panic disorder. Tr. 90. He was also attending 12 counseling sessions twice per month. Tr. 90. 13 Plaintiff indicated he lived in a studio apartment owned by his father and 14 received help with chores from his mother and girlfriend. Tr. 91-92. However, he 15 reported he was able to perform about 70% of the daily chores on his own 16 (cooking, cleaning, shopping, laundry, etc.). Tr. 92. 17 STANDARD OF REVIEW 18 The ALJ is responsible for determining credibility, resolving conflicts in 19 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 20 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 21 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 22 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 23 only if it is not supported by substantial evidence or if it is based on legal error. 24 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 25 defined as being more than a mere scintilla, but less than a preponderance. Id. at 26 1098. Put another way, substantial evidence is such relevant evidence as a 27 reasonable mind might accept as adequate to support a conclusion. Richardson v. 28 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 1 rational interpretation, the Court may not substitute its judgment for that of the 2 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 3 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 4 administrative findings, or if conflicting evidence supports a finding of either 5 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 6 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 7 supported by substantial evidence will be set aside if the proper legal standards 8 were not applied in weighing the evidence and making the decision. Brawner v. 9 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 10 SEQUENTIAL EVALUATION PROCESS 11 The Commissioner has established a five-step sequential evaluation process 12 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 13 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 14 proof rests upon the claimant to establish a prima facie case of entitlement to 15 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 16 claimant establishes that a physical or mental impairment prevents the claimant 17 from engaging in past relevant work. 20 C.F.R. § 416.920(a)(4). If a claimant 18 cannot perform past relevant work, the ALJ proceeds to step five, and the burden 19 shifts to the Commissioner to show (1) the claimant can make an adjustment to 20 other work; and (2) the claimant can perform specific jobs that exist in the national 21 economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (9th 22 Cir. 2004). If a claimant cannot make an adjustment to other work in the national 23 economy, the claimant will be found disabled. 20 C.F.R. § 416.920(a)(4)(v). 24 ADMINISTRATIVE DECISION 25 On January 14, 2019, the ALJ issued a decision finding Plaintiff was not 26 disabled as defined in the Social Security Act. 27 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 28 activity since December 1, 2015, the amended alleged disability onset date. Tr. 32. 1 At step two, the ALJ determined Plaintiff had the following severe 2 impairments: obesity, degenerative disc disease of the lumbar and cervical spine, 3 congenital right club foot, left foot neuritis, degenerative joint disease of the right 4 shoulder post rotator cuff repair, left triceps tendon repair, anxiety disorder, bipolar 5 disorder, and personality disorder. Tr. 32. 6 At step three, the ALJ found Plaintiff did not have an impairment or 7 combination of impairments that meets or medically equals the severity of one of 8 the listed impairments. Tr. 34. 9 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 10 Plaintiff could perform sedentary exertion level work with the following 11 limitations: he can never climb ladders, ropes or scaffolds, but all other postural 12 activities are limited to occasional performance (balancing, stooping, kneeling, 13 crouching, crawling, and climbing ramps or stairs); he is limited to occasional 14 overhead reaching with the left upper extremity; he must avoid concentrated 15 exposure to extreme cold, industrial noise and hazards; and he must have minimal 16 interaction with the public and only superficial interaction with coworkers (no 17 tandem tasks or collaborative work). Tr. 35. 18 At step four, the ALJ found Plaintiff was not able to perform his past 19 relevant work as a real estate sales agent or automobile salesperson. Tr. 38-39. 20 At step five, the ALJ determined that, based on the testimony of the 21 vocational expert, and considering Plaintiff’s age, education, work experience, and 22 RFC, Plaintiff was capable of making a successful adjustment to other work that 23 exists in significant numbers in the national economy, including the jobs of 24 document preparer, printed circuit board assembler, and surveillance system 25 monitor. Tr. 39-40. 26 The ALJ thus concluded Plaintiff was not under a disability within the 27 meaning of the Social Security Act at any time from December 1, 2015, the alleged 28 onset date, through the date of the ALJ’s decision, January 14, 2019. Tr. 40. 1 ISSUES 2 The question presented is whether substantial evidence supports the ALJ’s 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. Plaintiff contends that: (1) The ALJ erred in assessing Plaintiff’s 5 credibility; (2) The ALJ erred in assessing Plaintiff’s residual functional capacities; 6 and (3) The ALJ erred in finding Plaintiff to be capable of substantial gainful 7 activity at step five of the sequential evaluation process. ECF No. 12 at 11. 8 DISCUSSION 9 A. Plaintiff’s Symptom Testimony 10 Plaintiff asserts the ALJ erred by rejecting his complaints of pain and 11 impaired function. ECF No. 12 at 15. 12 It is the province of the ALJ to make credibility determinations. Andrews, 13 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 14 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 15 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 16 testimony must be “specific, clear and convincing.” Lester v. Chater, 81 F.3d 821, 17 834 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must 18 identify what testimony is not credible and what evidence undermines the 19 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 20 918 (9th Cir. 1993). 21 In this case, the ALJ found Plaintiff’s medically determinable impairments 22 could reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 23 statements concerning the intensity, persistence and limiting effects of those 24 symptoms were not entirely consistent with the medical and other evidence of 25 record. Tr. 36. 26 The ALJ first determined Plaintiff’s level of activity demonstrated by the 27 record was inconsistent with his testimony and supported the assigned RFC 28 assessment. Tr. 36. 1 It is well-established that the nature of daily activities may be considered 2 when evaluating credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 3 For daily activities to discount subjective symptom testimony, the activities do not 4 need to be equivalent to full-time work; it is sufficient that a claimant’s activities 5 “contradict claims of a totally debilitating impairment.” See Molina v. Astrue, 674 6 F.3d 1104, 1112-1113 (9th Cir. 2012). A claimant, however, need not be utterly 7 incapacitated to receive disability benefits, and completion of certain routine 8 activities is insufficient to discount subjective symptom testimony. Id. at 1112- 9 1113 (noting that a “claimant need not vegetate in a dark room in order to be 10 eligible for benefits” (quotation marks omitted)); Benecke v. Barnhart, 379 F.3d 11 587, 594 (9th Cir. 2004) (“One does not need to be ‘utterly incapacitated’ in order 12 to be disabled.”). 13 Plaintiff indicated he had difficulty standing and walking due to his club foot 14 and deformed ankle, conditions he has had since birth. Tr. 36, 78-79, 81. Plaintiff 15 described his right foot as “mush inside;” however, he testified he had worked as 16 an automobile salesperson despite this condition and would walk over 12 miles on 17 the lot on a regular day. Tr. 78-79. Plaintiff also stated he had pain and numbness 18 throughout his back and upper extremities and was unable to straighten his left 19 arm. Tr. 81. Yet, Plaintiff has a history of heavy weightlifting and bodybuilding 20 over several decades, which continued into the relevant time period. Tr. 37, 1203- 21 1204 (October 23, 2018 medical report noting Plaintiff’s weightlifting history), 22 642 (report that Plaintiff checked into a 24-hour fitness facility eight times in 23 August, seven times in September and two times in November, all in 2016). 24 Despite assertions of needing assistance with chores, Plaintiff wrote in his function 25 report that he was able to complete activities of self-care independently, care for 26 pets (two dogs), and prepare his own meals. Tr. 36, 328-329. Plaintiff also 27 reported to an investigator he spent his days “helping his father with projects, 28 working on his place, and doing maintenance like painting and taking care of odds 1 and ends around his home.” Tr. 37, 630. Plaintiff additionally told the investigator 2 he helped physically restrain a shoplifter at a gas station in May 2016. Tr. 37, 641. 3 It appears it was proper for the ALJ to note Plaintiff’s activities of daily 4 living as contrary to his subjective complaints. However, even if it were improper 5 for the ALJ to find Plaintiff’s level of activity inconsistent with his subjective 6 complaints, see Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001) (“the mere 7 fact that a plaintiff has carried on certain daily activities, such as grocery shopping, 8 driving a car, or limited walking for exercise, does not in any way detract from her 9 credibility as to her overall disability”), the Court would find this error harmless 10 given the ALJ’s other supported reasons for finding Plaintiff less than fully 11 credible (see infra). Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1160, 1163 12 (9th Cir. 2008) (upholding adverse credibility finding where ALJ provided four 13 reasons to discredit claimant, two of which were invalid); Batson v. Comm’r, Soc. 14 Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (affirming credibility finding 15 where one of several reasons was unsupported by the record). 16 The ALJ next noted inconsistencies in Plaintiff’s statements. Tr. 37. 17 Inconsistencies in a disability claimant’s testimony supports a decision by the ALJ 18 that a claimant lacks credibility with respect to her claim of disabling pain. Nyman 19 v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). 20 The ALJ indicated Plaintiff gave differing accounts regarding why he quit 21 working. Tr. 37. At the administrative hearing, he testified he stop working 22 because of the pain caused by having to be on his feet which ultimately led to him 23 being fired due to “lack of performance.” Tr. 80-81. However, Plaintiff reported 24 to a treatment provider that he “had to quit work, secondary to not being able to do 25 writing more than a few sentences.” Tr. 37, 568, 1131. The ALJ further noted that 26 Plaintiff’s assertion that he was unable to work due to his defective foot/ankle was 27 inconsistent with Plaintiff’s ability to work for decades with the same condition 28 and without evidence of significant exacerbation of the impairment over this 1 period. Tr. 37. The ALJ found the foregoing inconsistencies detracted from 2 Plaintiff’s reliability regarding his impairments, and Plaintiff makes no argument 3 to the contrary. See Carmickle, 533 F.3d at 1161 (the Court will not ordinarily 4 consider matters on appeal that were not specifically and distinctly argued in a 5 party’s opening brief). 6 Finally, the ALJ found objective and observational evidence did not support 7 the level of limitation alleged by Plaintiff. Tr. 37. An ALJ may discount a 8 claimant’s allegations if they conflict with the medical evidence of record. 9 Carmickle, 553 F.3d at 1161 (contradiction with the medical record is a sufficient 10 basis for rejecting a claimant’s subjective testimony); Lingenfelter v. Astrue, 504 11 F.3d 1028, 1040 (9th Cir. 2007) (an ALJ may consider whether alleged symptoms 12 are consistent with the medical evidence). 13 With regard to Plaintiff’s lower extremities complaints, the investigator 14 noted Plaintiff had a normal gait and pace, Tr. 642, which was consistent with 15 multiple treatment records, Tr. 477 (gait without coordination deficits), 532 16 (normal gait, no limp), 594 (walks without limp), 646 (walks without limp), 861 17 (walks without limp), 939 (ambulating normally), 999 (normal gait), 1209 (normal 18 gait), 1246 (normal gait). Tr. 37. As to Plaintiff’s assertions of upper extremity 19 pain and numbness, carpal tunnel release surgery was noted as successful despite 20 Plaintiff missing follow-up appointments, and Plaintiff had been released to 21 activities without restriction. Tr. 37, 587 22 Medical expert Robert H. Smiley, M.D., testified at the administrative 23 hearing that with Plaintiff’s back and ankle problems, he would be limited to 24 sedentary level work with overhead reaching limited to occasional and some 25 postural and environmental limitations. Tr. 72, 74, 77. The ALJ accorded 26 “considerable weight” to the testimony of Dr. Smiley, and the RFC determination 27 is consistent with his testimony. Tr. 37-38. The ALJ also accorded partial weight 28 to the opinions of state agency consultants who determined that Plaintiff could 1 perform a range of light work with limits on fingering and reaching and noted the 2 record lacked any opinion evidence regarding Plaintiff’s mental limitations. Tr. 3 38. Plaintiff’s brief does not specifically and distinctly dispute the opinions of Dr. 4 Smiley or the state agency consultants, nor has Plaintiff challenged the ALJ’s 5 finding that objective and observational evidence contradicted Plaintiff’s 6 subjective complaints. See Carmickle, 533 F.3d at 1161 (the Court will not 7 ordinarily consider matters on appeal that were not specifically and distinctly 8 argued in a party’s opening brief). 9 The ALJ is responsible for reviewing the evidence and resolving conflicts or 10 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 11 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 12 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 13 determining whether the ALJ’s decision is supported by substantial evidence and 14 may not substitute its own judgment for that of the ALJ even if it might justifiably 15 have reached a different result upon de novo review. 42 U.S.C. § 405(g). After 16 reviewing the record, the Court finds the ALJ provided clear and convincing 17 reasons, supported by substantial evidence, for finding Plaintiff’s symptom 18 allegations were not entirely credible in this case. 19 B. Residual Functional Capacity 20 Plaintiff’s brief provides a cursory assertion that his limitations were not 21 adequately addressed by the ALJ’s RFC assessment. ECF No. 12 at 16. 22 Plaintiff’s three-sentence argument fails to identify any contradictory 23 medical source opinion evidence, and Plaintiff does not argue that the ALJ erred 24 by rejecting the opinion of any specific medical professional of record. It appears 25 Plaintiff merely reasserts his contention that his subjective complaints should have 26 been accorded weight in this case. However, as noted in Section A above, the 27 ALJ’s determination regarding Plaintiff’s subjective allegations is supported by 28 substantial evidence. Supra. 1 The Court finds Plaintiff has failed to advance a specific, valid error with 2|| respect to the ALJ’s evaluation of the medical evidence or her determination 3|| regarding Plaintiff's residual functional capacity. 4 CONCLUSION 5 As determined above, the ALJ did not err by finding Plaintiff's symptom 6|| allegations were not entirely credible, and Plaintiff has not demonstrated any error 7|| with respect to the ALJ’s evaluation of the medical evidence of record. As such, the Court finds the ALJ’s decision is supported by substantial evidence and free of error. 10 Having reviewed the record and the ALJ’s findings, the Court finds the 11|} ALJ’s decision should be affirmed. Therefore, IT IS HEREBY ORDERED: 12 1. Defendant’s Motion for Summary Judgment, ECF No. 13, is 13|| GRANTED. 14 2. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 15 IT IS SO ORDERED. The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall 17|| be entered for Defendant and the file shall be CLOSED. 18 DATED November 2, 2020.

20 JOHNT.RODGERS ts 21 a UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28