Herron v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: January 14, 2020
• Docket: 2:19-cv-01120
• Status: Unknown

Opinion

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

7 IAN H.,

8 Plaintiff, CASE NO. C19-1120-MAT

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

13 Plaintiff proceeds through counsel in his appeal of a final decision of the Commissioner of 14 the Social Security Administration (Commissioner). The Commissioner denied plaintiff’s 15 application for Supplemental Security Income (SSI) after a hearing before an Administrative Law 16 Judge (ALJ). Having considered the ALJ’s decision, the administrative record (AR), and all 17 memoranda of record, this matter is AFFIRMED. 18 FACTS AND PROCEDURAL HISTORY 19 Plaintiff was born on XXXX, 1977.1 He has a GED and previously worked as a cashier, 20 construction worker, and lumber handler. (AR 35, 55.) 21 Plaintiff protectively filed an SSI application on May 24, 2016, alleging disability 22 beginning June 1, 2008. (AR 192.) The application was denied initially and on reconsideration. 23

1 Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1). 1 On May 3, 2018, ALJ Stephanie Martz held a hearing, taking testimony from plaintiff and 2 a vocational expert (VE). (AR 30-57.) On September 4, 2018, the ALJ issued a decision finding 3 plaintiff not disabled. (AR 15-25.)

4 Plaintiff timely appealed. The Appeals Council denied plaintiff’s request for review on 5 May 21, 2019 (AR 1), making the ALJ’s decision the final decision of the Commissioner. Plaintiff 6 appealed this final decision of the Commissioner to this Court. 7 JURISDICTION 8 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). 9 DISCUSSION 10 The Commissioner follows a five-step sequential evaluation process for determining 11 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must 12 be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not 13 engaged in substantial gainful activity since the application date. At step two, it must be

14 determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff’s 15 degenerative disc disease lumbar spine, affective disorder, anxiety disorder, post-traumatic stress 16 disorder, and history of substance abuse severe. Step three asks whether a claimant’s impairments 17 meet or equal a listed impairment. The ALJ found plaintiff’s impairments did not meet or equal 18 the criteria of a listed impairment. 19 If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess 20 residual functional capacity (RFC) and determine at step four whether the claimant can perform 21 past relevant work. The ALJ found plaintiff able to perform sedentary work, with additional 22 limitations: sit about six hours and stand and/or walk two hours with regular breaks; unlimited 23 ability to push/pull; frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; 1 frequently balance and kneel; occasionally stoop, crouch, and crawl; avoid concentrated exposure 2 to wetness, vibration, and hazards; understand, remember, and carry out simple, routine tasks; 3 occasional brief contact with coworkers, but should work independently, not on team or tandem

4 tasks; should not work with the general public; and can adapt to occasional changes in the 5 workplace. With that RFC, the ALJ found plaintiff unable to perform his past relevant work. 6 If a claimant demonstrates an inability to perform past relevant work, or has no past 7 relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant 8 retains the capacity to make an adjustment to work that exists in significant levels in the national 9 economy. With the assistance of the VE, the ALJ found plaintiff capable of performing other jobs, 10 such as work as a bench hand, table worker, and hand bander. 11 This Court’s review of the ALJ’s decision is limited to whether the decision is in 12 accordance with the law and the findings supported by substantial evidence in the record as a 13 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Accord Marsh v. Colvin, 792 F.3d

14 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported 15 by substantial evidence in the administrative record or is based on legal error.”) Substantial 16 evidence means more than a scintilla, but less than a preponderance; it means such relevant 17 evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. 18 Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of 19 which supports the ALJ’s decision, the Court must uphold that decision. Thomas v. Barnhart, 278 20 F.3d 947, 954 (9th Cir. 2002). 21 Plaintiff asserts error in the assessment of two medical opinions. He requests remand to 22 cure the errors. The Commissioner argues the ALJ’s decision has the support of substantial 23 evidence and should be affirmed. 1 Medical Opinions 2 In general, more weight should be given to the opinion of a treating doctor than to a non- 3 treating doctor, and more weight to the opinion of an examining doctor than to a non-examining

4 doctor. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Plaintiff avers the ALJ erred in 5 rejecting opinions from treating doctor Phuc Phung, M.D., and examining doctor William 6 Wilkinson, Ed.D. Because the record contained contradictory opinions, the ALJ could reject the 7 opinions of Drs. Phung and Wilkinson only with specific and legitimate reasons, supported by 8 substantial evidence. Id. at 830-31. 9 A. Dr. Phuc Phung 10 In a form dated April 26, 2018, Dr. Phung assessed plaintiff’s capabilities from May 6, 11 2015 through the date of the form. (AR 596-97.) Dr. Phung opined plaintiff could, in an eight- 12 hour day, sit, stand, or walk up to four hours total and no more than thirty minutes continuously 13 and could, intermittently, sit and stand no more than two hours and walk no more than one-and-a-

14 half hours. He found plaintiff could never perform various postural tasks and could occasionally 15 handle, finger, and feel and lift/carry and push/pull up to ten pounds. Dr. Phung also opined 16 plaintiff would be absent from work “30-31” days a month and is “not fit” to work due to his 17 conditions and limitations. (AR 596.) 18 The ALJ noted opinions a claimant is disabled or unable to work are not medical opinions 19 and are instead administrative findings reserved to the Commissioner. (AR 21.) The ALJ assigned 20 Dr. Phung’s opinions little weight given that he recorded no objective findings in support, his 21 exams showed no abnormalities other than antalgic gait on one occasion, he provided no reasons 22 for the opinion claimant was unable to work, and given inconsistency between the limitation to 23 thirty minutes of continuous sitting and the evidence plaintiff took a daily one-and-a-half to two- 1 hour trip to Tacoma during this time period. The ALJ further found Dr. Phung’s opinions 2 inconsistent with the remainder of the record and on an issue reserved to the Commissioner. 3 Plaintiff denies the alleged lack of objective evidentiary support for Dr. Phung’s opinion

4 by pointing to an August 9, 2012 MRI showing abutment of both the left L03 and left S1 nerve 5 roots. (AR 291.) He denies inconsistency with the evidence of daily trips from Auburn to Tacoma, 6 pointing to evidence reflecting he transferred to a closer methadone treatment center in February 7 2017 (AR 594), over a year prior to the April 2018 opinion of Dr. Phung. Plaintiff also posits an 8 assumption his trip to Tacoma required sitting more than thirty minutes at a time given that a 9 portion of the round trip necessarily included his methadone treatment. 10 Plaintiff does not demonstrate error. The ALJ did not find the record devoid of any 11 objective evidence associated with plaintiff’s physical impairments. The ALJ found plaintiff had 12 severe physical impairments, while rejecting Dr. Phung’s opinion as to the degree of associated 13 limitations by noting his failure to record any objective findings on the evaluation form, that his

14 examinations did not provide objective support for the limitations assessed, and by finding the 15 opinion inconsistent with the record as a whole. These reasons were specific and legitimate and 16 supported by substantial evidence. See, e.g., Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 17 2008) (ALJ may reject physician’s opinion due to inconsistency with the record); Bayliss v. 18 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (ALJ may reject physician’s opinion due to 19 discrepancy or contradiction between opinion and the physician’s own notes or observations); 20 Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) (treating physician’s opinions 21 properly discounted where it was in the form of a checklist and did not have supportive objective 22 evidence); and Thomas, 278 F.3d at 957 (“The ALJ need not accept the opinion of any physician, 23 including a treating physician, if that opinion is brief, conclusory, and inadequately supported by 1 clinical findings.”) 2 Nor did the ALJ err in identifying an inconsistency between the assessed limitation in 3 sitting and evidence of plaintiff’s daily one-and-a-half to two-hour drives for methadone treatment.

4 See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (ALJ may reject opinion based on 5 inconsistency with a claimant’s level of activity). The evidence associated with plaintiff’s 6 treatment in Tacoma is not entirely clear. (See, e.g., AR 564 (Dr. Phung, on September 14, 2017: 7 “He currently takes Methadone supplied by a clinic in Tacoma.”)) Dr. Phung, in any event, 8 assessed limitations from May 6, 2015 through the date of the April 2018 evaluation. (AR 595.) 9 Further, even without exact information as to the lengths of time in which plaintiff remained sitting 10 during the drives to and from Tacoma, the inference drawn by the ALJ of an inconsistency remains 11 reasonable. See Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (“Where evidence is 12 susceptible of more than one rational interpretation, it is the ALJ’s conclusion which must be 13 upheld. In reaching his findings, the law judge is entitled to draw inferences logically flowing

14 from the evidence.”) (cited sources omitted). The ALJ also, as the Commissioner observes, 15 included the need for “regular breaks” in assessing the amounts of time plaintiff could sit, stand, 16 and walk. (AR 19.) 17 The ALJ, finally, properly observed that the opinion evidence from Dr. Phung infringed 18 upon an issue reserved to the Commissioner, 20 C.F.R. § 416.927, and that Dr. Phung failed to 19 provide reasons for the opinion of plaintiff’s inability to perform any work, see, e.g., Molina v. 20 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“[T]he ALJ may ‘permissibly reject[ ] . . . check-off 21 reports that [do] not contain any explanation of the bases of their conclusions.’”) (quoting Crane 22 v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996)); 20 C.F.R. § 416.927(c)(3) (“The better an 23 explanation a source provides for an opinion, the more weight we will give that opinion.”). The 1 ALJ therefore provided adequate and properly supported rationale for assigning little weight to the 2 opinion evidence from Dr. Phung. 3 B. Dr. William Wilkinson

4 Dr. Wilkinson examined plaintiff and completed a psychological evaluation form dated 5 September 23, 2016. (AR 315-22.) He assessed mostly mild and moderate limitations in 6 functioning, but identified marked limitations in performing activities in a schedule, maintaining 7 regular attendance, and being punctual, completing a normal work day and week, and maintaining 8 appropriate behavior in a work setting. (AR 317-18.) 9 The ALJ found Dr. Wilkinson’s opinion not consistent with the evidence. (AR 22.) The 10 ALJ noted plaintiff is able to maintain a regular schedule to get his methadone and does not miss 11 appointments. She found no evidence to support this opinion and not a single appointment 12 showing plaintiff engages in inappropriate behavior, adding: “Occasionally the claimant is tearful, 13 but this is not even a regular observation, which is inconsistent with the marked limitations.” (Id.

14 (citing AR 308, 374, 382, 387, 495, 502-04, 510, 523-24, 537-38, 542-43, 560-62, 567.)) 15 Plaintiff alleges the ALJ erred by impermissibly conflating a medical opinion concerning 16 the ability to perform basic work activities with the ability to perform activities of daily living. 17 See Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014) (citing Bjornson v. Astrue, 671 F.3d 18 640, 647 (7th Cir. 2012) (“The critical differences between activities of daily living and activities 19 in a full-time job are that a person has more flexibility in scheduling the former than the latter, can 20 get help from other persons ..., and is not held to a minimum standard of performance, as she would 21 be by an employer. The failure to recognize these differences is a recurrent, and deplorable, feature 22 of opinions by administrative law judges in social security disability cases.”)). Plaintiff also rejects 23 the asserted absence of support for Dr. Wilkinson’s opinion, pointing to his clinical and mental 1 status examination (MSE) findings. (See AR 316, 319 (plaintiff reported in clinical interview his 2 “mood is down”, he “thinks negatively”, “his self esteem and sense of self worth are quite low to 3 nil”, moderate to marked suicidal thoughts, thinks “in a worrying manner that can become

4 obsessive and never ending or producing anything”, and avoids being around people and senses 5 they are critical of him; MSE findings included despair and downcast behavior, anxious mood, 6 affect congruent with mood, thought process and content “tends to the obsessive”, poor recent 7 memory, overly self-critical, self-analytical insight and judgment compromised “by being on the 8 opioid maintenance program”).) 9 Again, however, the Court finds no error. “The ALJ is responsible for resolving conflicts 10 in the medical record.” Carmickle v. Comm’r of SSA, 533 F.3d 1155, 1164 (9th Cir. 2008). When 11 evidence reasonably supports either confirming or reversing the ALJ’s decision, the court may not 12 substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 13 Where the evidence is susceptible to more than one rational interpretation, it is the ALJ’s

14 conclusion that must be upheld.” Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 599 15 (9th Cir. 1999). The fact the ALJ “could have come to a different conclusion” in interpreting the 16 record does not suffice to demonstrate error. Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 17 2018) (emphasis in original). 18 In this case, while assessing significant limitations associated with plaintiff’s mental 19 impairments (see AR 19), the ALJ rationally interpreted the evidence as inconsistent with Dr. 20 Wilkinson’s opinion of the degree of plaintiff’s impairment. In so doing, the ALJ reasonably 21 pointed to the evidence of plaintiff’s ability to maintain regular attendance with his methadone 22 maintenance schedule, without missing appointments, and the absence of evidence of 23 inappropriate behavior aside from occasional tearfulness. The ALJ, in so doing, provided specific 1 and legitimate reasons for not accepting Dr. Wilkinson’s assignment of marked limitations in 2 functioning. See, e.g., Tommasetti, 533 F.3d at 1041 (inconsistency with the record); Rollins, 261 3 F.3d at 856 (inconsistency with level of activity). Because the ALJ’s interpretation of the evidence

4 is rational and supported by substantial evidence, her conclusions are properly upheld. 5 CONCLUSION 6 For the reasons set forth above, this matter is AFFIRMED. 7 DATED this 14th day of January, 2020. A 8

9 Mary Alice Theiler United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23