Hernandez v. Saul

• Court: District Court, E.D. Washington
• Decided: June 30, 2021
• Docket: 1:20-cv-03113
• Status: Unknown

Opinion

1 2 3 4 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 Jun 30, 2021 6 SEAN F. MCAVOY, CLERK 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF WASHINGTON

11 EFRAHIN H., No. 1:20-CV-03113-JTR

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

18 Defendant.

19 BEFORE THE COURT are cross-motions for summary judgment. ECF 20 No. 16, 17. Attorney D. James Tree represents Efrahin H. (Plaintiff); Special 21 Assistant United States Attorney Jeffrey Staples represents the Commissioner of 22 Social Security (Defendant). The parties have consented to proceed before a 23 magistrate judge. ECF No. 6. After reviewing the administrative record and the 24 briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary 25 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 26 /// 27 /// 28 1 JURISDICTION 2 Plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Security Income on June 20, 2016, alleging disability since June 7, 4 2016, due to a lower back injury. Tr. 72. The applications were denied initially and 5 upon reconsideration. Tr. 117-24, 127-32. Administrative Law Judge (ALJ) 6 Virginia Robinson held a hearing on May 9, 2018, which was postponed for 7 Plaintiff to obtain a representative. Tr. 735-50. Judge Robinson held a second 8 hearing on May 7, 2019, Tr. 31-69, and issued an unfavorable decision on July 19, 9 2019. Tr. 15-25. Plaintiff requested review by the Appeals Council and the 10 Appeals Council denied the request for review on May 29, 2020. Tr. 1-5. The 11 ALJ’s July 2019 decision became the final decision of the Commissioner, which is 12 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 13 action for judicial review on July 23, 2020. ECF No. 1. 14 STATEMENT OF FACTS 15 Plaintiff was born in 1992 and was 24 years old as of his alleged onset date. 16 Tr. 23. He has a high school education and worked primarily in agriculture and 17 warehousing. Tr. 351. He testified he initially hurt his back while stacking boxes 18 and could not perform lighter work due to his need to lay down for many hours 19 throughout the day to relieve pain. Tr. 40-44. He testified that he was too scared to 20 undergo surgery at first, and tried more conservative treatments, but was planning 21 on discussing surgery again due to a lack of relief. Tr. 41-42, 50-51. 22 STANDARD OF REVIEW 23 The ALJ is responsible for determining credibility, resolving conflicts in 24 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 25 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 26 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 27 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 28 only if it is not supported by substantial evidence or if it is based on legal error. 1 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 2 defined as being more than a mere scintilla, but less than a preponderance. Id. at 3 1098. Put another way, substantial evidence is such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion. Richardson v. 5 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 6 rational interpretation, the Court may not substitute its judgment for that of the 7 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 8 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 9 administrative findings, or if conflicting evidence supports a finding of either 10 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 11 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 12 supported by substantial evidence will be set aside if the proper legal standards 13 were not applied in weighing the evidence and making the decision. Brawner v. 14 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 SEQUENTIAL EVALUATION PROCESS 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 18 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 19 four the claimant bears the burden of establishing a prima facie case of disability. 20 Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes that 21 a physical or mental impairment prevents the claimant from engaging in past 22 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 23 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 24 the Commissioner to show (1) the claimant can make an adjustment to other work; 25 and (2) the claimant can perform specific jobs that exist in the national economy. 26 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If 27 a claimant cannot make an adjustment to other work in the national economy, the 28 claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 1 ADMINISTRATIVE FINDINGS 2 On July 19, 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 date. Tr. 17. 6 At step two, the ALJ determined Plaintiff had the following severe 7 impairments: spinal impairment(s) and obesity. Id. 8 At step three, the ALJ found Plaintiff did not have an impairment or 9 combination of impairments that met or medically equaled the severity of one of 10 the listed impairments. Tr. 18. 11 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 12 he could perform light work, except:

13 His work tasks should allow him to sometimes alternate between 14 sitting, standing, and walking. He can stand and/or walk a total of four 15 hours in an eight-hour workday, during which he can sit for a total of six hours. He cannot climb ladders, ropes, or scaffolds. He can 16 occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs. 17 He should avoid concentrated exposure to vibration, extreme cold, and hazards. 18

19 Tr. 18. 20 At step four, the ALJ found Plaintiff was unable to perform his past relevant 21 work as a laborer or harvest worker. Tr. 23. 22 At step five, the ALJ found that, based on the testimony of the vocational 23 expert, and considering Plaintiff’s age, education, work experience, and RFC, there 24 were jobs that existed in significant numbers in the national economy that Plaintiff 25 was capable of performing, including the jobs of cashier II, electrical assembler, 26 and inspector/hand packager. Tr. 24. 27 /// 28 1 The ALJ thus concluded Plaintiff was not under a disability within the 2 meaning of the Social Security Act at any time from the alleged onset date through 3 the date of the decision. Tr. 25. 4 ISSUES 5 The question presented is whether substantial evidence supports the ALJ’s 6 decision denying benefits and, if so, whether that decision is based on proper legal 7 standards. 8 Plaintiff contends the ALJ erred by (1) not fully and fairly developing the 9 record; (2) improperly rejecting medical opinions; and (3) not properly assessing 10 Plaintiff’s subjective testimony. 11 DISCUSSION 12 1. Plaintiff’s subjective statements 13 Plaintiff alleges the ALJ improperly disregarded his subjective symptom 14 reports. ECF No. 16 at 14-21. 15 It is the province of the ALJ to make determinations regarding a claimant’s 16 subjective complaints. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 17 However, the ALJ’s findings must be supported by specific, cogent reasons. 18 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant 19 produces medical evidence of an underlying medical impairment, the ALJ may not 20 discredit testimony as to the severity of an impairment merely because it is 21 unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 22 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting 23 the claimant’s testimony must be “specific, clear and convincing.” Smolen v. 24 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 25 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must identify 26 what testimony is not credible and what evidence undermines the claimant’s 27 complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 28 1993). 1 The ALJ found Plaintiff’s medically determinable impairments could 2 reasonably be expected to cause the alleged symptoms; however, she found 3 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 4 his symptoms to be not entirely consistent with the medical evidence and other 5 evidence in the record. Tr. 19. The ALJ found Plaintiff’s allegations to be 6 incompatible with his minimal pursuit of treatment, evidence of improvement with 7 conservative treatment, his activities, and his receipt of unemployment benefits. Tr. 8 19-22. The ALJ also found notes of exaggeration/malingering and evidence of 9 secondary gain further undermined the reliability of Plaintiff’s allegations. Id. 10 Plaintiff argues the ALJ improperly found him to be a malingerer and 11 improperly interpreted the record with respect to his treatment, activities, and 12 pursuit of other benefits. ECF No. 16 at 14-21. Defendant argues that because there 13 is affirmative evidence of malingering, the ALJ did not need to offer any other 14 basis for discounting Plaintiff’s subjective reports. ECF No. 17 at 2-5. 15 The Court finds the ALJ did not err. A finding of malingering is sufficient to 16 support an ALJ’s rejection of a claimant’s subjective reports. See Benton v. 17 Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). The ALJ noted PA-C David Fine’s 18 notes regarding “slight malingering” on multiple occasions. Tr. 20, 538, 566. 19 Plaintiff argues these notes are insufficient to label Plaintiff a malingerer, as the 20 evidence came only from a non-acceptable source to whom the ALJ assigned only 21 minimal weight, and whose treatment notes contain significant objective evidence 22 of impairment. ECF No. 16 at 10, 14. He argues malingering requires a deliberate 23 attempt to deceive and the notes are insufficient to establish Plaintiff’s motive. Id. 24 at 14-15. Defendant asserts the case law does not require any particular level or 25 severity of malingering or that the assessment come from an acceptable source, 26 only that evidence of malingering be “affirmative.” ECF No. 17 at 3. While 27 Plaintiff offers an alternative explanation for the persuasiveness of the evidence, 28 the ALJ’s interpretation and finding of affirmative evidence of malingering is 1 supported by substantial evidence. She therefore offered legally sufficient rationale 2 for disregarding Plaintiff’s subjective complaints. 3 Alternatively, the Court finds the ALJ offered other clear and convincing 4 reasons for finding Plaintiff’s testimony to be unpersuasive. Unexplained or 5 inadequately explained reasons for failing to seek medical treatment or follow a 6 prescribed course of treatment can cast doubt on a claimant’s subjective 7 complaints. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The record contains 8 multiple notations of Plaintiff’s failure to follow through with recommendations 9 regarding physical therapy and referrals to an orthopedist. Tr. 537, 562, 566, 598, 10 637. While one note indicates he had transportation issues, it also indicates 11 Plaintiff had not even called the referred provider’s office yet. Tr. 566. 12 An ALJ may also consider the type and effectiveness of treatment received. 13 Social Security Ruling 16-3p. While it cannot serve as the sole basis for 14 disregarding a claimant’s reports, support from objective medical evidence is a 15 “relevant factor in determining the severity of the claimant’s pain and its disabling 16 effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ found 17 Plaintiff’s allegations of disabling limitations to be inconsistent with evidence of 18 adequate management with minimal conservative treatment and largely normal 19 physical exams. Tr. 21. The ALJ’s interpretation of the record is reasonable. 20 2. Opinion evidence 21 Plaintiff alleges the ALJ erred by improperly disregarding the medical 22 opinion evidence from Dr. Crank, Dr. Palasi, and PA-C Richmond. ECF No. 16 at 23 7-14. 24 a. Dr. Jeremiah Crank and Dr. Myrna Palasi 25 When an examining physician’s opinion is contradicted by another 26 physician, the ALJ may reject the opinion by providing “specific and legitimate 27 reasons,” based on substantial evidence. Lester v. Chater, 81 F.3d 821, 830-31 (9th 28 Cir. 1995). The specific and legitimate standard can be met by the ALJ setting out 1 a detailed and thorough summary of the facts and conflicting clinical evidence, 2 stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 3 F.2d 747, 751 (9th Cir. 1989). An ALJ may reject the opinion of a non-examining 4 physician by reference to specific evidence in the medical record. Sousa v. 5 Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). 6 Plaintiff presented to Dr. Crank in April 2016 for a DSHS physical exam 7 and completion of disability paperwork. Tr. 446-55. Dr. Crank found Plaintiff had 8 tenderness to palpation of his lower back and a positive straight leg raise 9 bilaterally, with normal strength and sensation, and some reduction in range of 10 motion. Tr. 449-50, 455. He completed the DSHS paperwork, stating Plaintiff had 11 marked limitations in all physical movements due to lumbar radiculopathy/ 12 herniated disc, and was limited to performing sedentary work. Tr. 447-48. A month 13 later, Dr. Myrna Palasi reviewed Dr. Crank’s report and Plaintiff’s 2013 MRI, and 14 concurred with Dr. Crank’s diagnoses, but opined that due to chronic intractable 15 pain, she would rate Plaintiff’s impairment as level five (severe) and limit him to 16 less than sedentary work. Tr. 578. 17 The ALJ gave these opinions minimal weight.1 Tr. 22. She found the 18 objective evidence did not support marked postural, environmental, and 19 manipulative limits, noted treating source Mr. Fine expressly disagreed with 20 Plaintiff’s claim to disability, and the ALJ reiterated Plaintiff’s failure to follow 21 through with treatment recommendations and his pursuit of secondary gain, while 22 indicating that his symptoms were adequately managed with minimal conservative 23 treatment. Tr. 22. 24 Plaintiff argues the ALJ selectively read the record, ignoring evidence of 25 other objective findings that are supportive of the DSHS opinions, gave undue 26

27 1 The ALJ also addressed a statement from treating PA-C Fine in the same 28 paragraph. Plaintiff has not challenged the ALJ’s rejection of Mr. Fine’s opinion. 1 weight to the comments about malingering from Mr. Fine, and erred in finding 2 Plaintiff disregarded treatment recommendations. ECF No. 16 at 8-11. He further 3 asserts the ALJ’s rationale only applied to Dr. Crank and Mr. Fine, and that the 4 ALJ did not offer any explicit reasons for rejecting Dr. Palasi’s opinion. Id. at 11- 5 12. Defendant argues the ALJ offered sufficient reasons for disregarding both 6 DSHS opinions, and reasonably found the opinions conflicted with the objective 7 findings and evidence of Plaintiff’s malingering, which Dr. Crank and Dr. Palasi 8 were unaware of. ECF No. 17 at 5-7. 9 The Court finds the ALJ did not err. An ALJ may reasonably consider the 10 consistency of an opinion with the rest of the record. 20 C.F.R. § 404.1527(c)(3). 11 As noted by the ALJ, the record contains notations of normal findings and 12 malingering that the sources were not aware of, as well as Plaintiff’s failure to 13 follow up with treatment recommendations. While Plaintiff points to some findings 14 that are supportive of the opinions, the ALJ’s interpretation is reasonable. 15 b. PA-C Daniel Richmond 16 An ALJ may discount the opinion of an “other source,” such as a nurse 17 practitioner, if they provide “reasons germane to each witness for doing so.” 18 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 19 Plaintiff’s treating physician’s assistant, Mr. Richmond, completed a DSHS 20 physical functional evaluation noting persistent daily low back pain with left sided 21 radiculopathy, resulting in marked limitations in all basic physical work activities. 22 Tr. 651-52. 23 The ALJ gave minimal weight to Mr. Richmond’s opinion, finding there was 24 inadequate objective support for the assessed limits, indicating Mr. Richmond gave 25 undue credence to Plaintiff’s subjective reporting. Tr. 23. The ALJ further noted 26 Mr. Richmond’s contemporaneous treatment records stated Plaintiff was doing 27 relatively well until a recent exacerbation, and other evidence indicated his 28 condition was adequately managed by conservative treatment. Id. 1 Plaintiff argues the ALJ’s discussion disregarded objective evidence that 2 supported Mr. Richmond’s opinion, and thus it was not overly reliant on Plaintiff’s 3 subjective reports. ECF No. 16 at 12-14. Plaintiff also argues his pain was not 4 adequately managed, and he was only okay when he stayed within his activity 5 limits. Id. at 14. Defendant argues the ALJ reasonably found the opinion conflicted 6 with the longitudinal evidence and the contemporaneous records noting him to be 7 doing relatively well. ECF No. 17 at 7-8. 8 The Court finds the ALJ did not err. The consistency of a medical opinion 9 with the record as a whole is a germane factor for an ALJ to consider in evaluating 10 the weight due to an “other source.” 20 C.F.R. §§ 416.927(c)(2)(4), 416.927(f). 11 The ALJ reasonably interpreted the record in finding Mr. Richmond’s opinion to 12 be inconsistent with the contemporaneous treatment records noting Plaintiff’s 13 condition to be relatively well-controlled and manageable apart from a recent 14 exacerbation and running out of his medication. Tr. 23, 641, 661. 15 3. Development of the record 16 Plaintiff argues the ALJ failed to fulfill her duty to develop the record when 17 she did not obtain evidence of treatment with Dr. Chang, Plaintiff’s orthopedic 18 surgeon. ECF No. 16 at 4-7. Plaintiff asserts his hearing testimony along with 19 records referencing referrals from Dr. Chang were sufficient to put the ALJ on 20 notice that relevant records were missing. Id. He further argues that the omission 21 was not harmless, as the ALJ partly discounted his testimony and other opinion 22 evidence based on the lack of treatment, his failure to follow up with the 23 orthopedist, and the lack of severe objective findings. Id. at 6. 24 Defendant argues the ALJ’s duty to develop the record is only triggered 25 when there is ambiguous evidence or the record is inadequate to allow for proper 26 evaluation, and that Plaintiff must show a substantial likelihood of prejudice 27 arising from the omitted evidence, which he has not done, as he has not submitted 28 the missing records to the Court or the Appeals Council. ECF No. 17 at 8-9. 1 Defendant further argues any error in rejecting other evidence due to failure to 2 follow up with the orthopedist was harmless as the ALJ offered independent 3 rationale for the rejection of Plaintiff’s subjective reports and the opinion evidence. 4 Id. 5 The Court finds the ALJ did not err. The ALJ has an independent duty to 6 make “every reasonable effort” to develop the record. 20 C.F.R. §§ 404.1512, 7 416.912. At the first hearing the ALJ discussed with Plaintiff where he had 8 received treatment and he was unable to remember the names of providers or 9 facilities, but he indicated he would figure them out. Tr. 742-47. At the second 10 hearing, at which point Plaintiff was represented, there was a discussion about 11 outstanding physical therapy records, but not missing records from Dr. Chang. Tr. 12 34-36. Plaintiff mentioned speaking to Dr. Chang about surgery again, but did not 13 indicate he had recently received treatment with him. Tr. 50-51. Because the ALJ 14 was not notified that there were further records missing, the Court finds the ALJ 15 did not err in not seeking out additional records. 16 Furthermore, a plaintiff must show a “substantial likelihood of prejudice” 17 arising from the allegedly omitted evidence, not just a “[m]ere probability.” 18 McLeod v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011). While the record indicates 19 Plaintiff was referred to physical therapy and pain management by Dr. Chang, Tr. 20 607, 676, there is no indication of any substantial treatment with Dr. Chang, and it 21 appears his recommendation for surgery remained the same since his 2014 22 recommendation. Tr. 430, 440-41, 676. To the extent Plaintiff argues the ALJ erred 23 in rejecting other opinion evidence and Plaintiff’s subjective statements based on 24 an incomplete record, the Court finds the ALJ offered sufficient other reasons for 25 the rejections, rendering any error harmless at most. 26 /// 27 /// 28 /// 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, the Court finds the ALJ’s decision is supported by substantial evidence and free of legal error and is 4|| affirmed. Therefore, IT IS HEREBY ORDERED: 5 1. Defendant’s Motion for Summary Judgment, ECF No. 17, is 6|| GRANTED. 7 2. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED. 8 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 10]| and the file shall be CLOSED. 11 IT IS SO ORDERED. 12 DATED June 30, 2021. 13 Em, Je ~ JOHNT.RODGERS 15 a UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28