McKinley v. Saul

• Court: District Court, E.D. Washington
• Decided: April 19, 2021
• Docket: 4:20-cv-05119
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON

8 WILLIAM M., No. 4:20-CV-05119-JTR

9 Plaintiff, 10 ORDER GRANTING DEFENDANT’S 11 v. MOTION FOR SUMMARY JUDGMENT 12 ANDREW M. SAUL, 13 COMMISSIONER OF SOCIAL SECURITY, 14

15 Defendant.

16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 18, 20. Attorney Cory Brandt represents William M. (Plaintiff); Special 18 Assistant United States Attorney David Burdett represents the Commissioner of 19 Social Security (Defendant). The parties have consented to proceed before a 20 magistrate judge. ECF No. 9. After reviewing the administrative record and the 21 briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary 22 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 23 JURISDICTION 24 Plaintiff filed applications for Disability Insurance Benefits and 25 Supplemental Security Income on March 6, 2014, alleging disability since July 6, 26 2013, due to a heart attack with residual symptoms, high blood pressure, high 27 cholesterol, and multiple strokes. Tr. 189-94, 207. The applications were denied 28 1 initially and upon reconsideration. Tr. 117-25, 128-38. Administrative Law Judge 2 (ALJ) Mary Gallagher Dilley held a hearing on December 6, 2016, Tr. 29-65, and 3 issued an unfavorable decision on August 18, 2017, Tr. 15-23. The Appeals 4 Council denied Plaintiff’s request for review on May 24, 2018. Tr. 1-6. Plaintiff 5 filed a civil action with this court and on May 2, 2019, the Court issued an order 6 remanding the claim for further proceedings. Tr. 861-75. 7 A remand hearing was held by ALJ Jesse Shumway on March 16, 2020. Tr. 8 798-829. On March 31, 2020, ALJ Shumway issued an unfavorable decision. Tr. 9 737-49. Plaintiff did not file written exceptions with the Appeals Council and the 10 Appeals Council did not review the ALJ’s decision; therefore, the March 2020 ALJ 11 decision became the final decision of the Commissioner which is appealable to the 12 district court pursuant to 42 U.S.C. § 405(g). Tr. 735. Plaintiff filed this action for 13 judicial review on July 24, 2020. ECF No. 1. 14 STATEMENT OF FACTS 15 Plaintiff was born in 1969 and was 44 years old as of the alleged onset date. 16 Tr. 21. He has a high school education and a two-year degree in business 17 management. Tr. 36-37. Prior to the alleged disability, he last worked as a truck 18 driver in Oklahoma in 2008. Tr. 37, 208. He quit this job after his wife passed 19 away. Tr. 208. Plaintiff alleged his disability began in July 2013 when he had a 20 heart attack. Tr. 42, 208. 21 At the first hearing, Plaintiff testified his primary barrier to working was his 22 back pain, which limited the amount of time he could walk and sit, and his 23 unpredictable variations in blood pressure, which caused headaches, 24 lightheadedness, fatigue, and visual disturbances, necessitating multiple rest 25 periods throughout the day. Tr. 40, 43-47, 50-51. In May 2018 Plaintiff underwent 26 a renal artery angioplasty that resulted in substantial improvement in his labile 27 blood pressure events. Tr. 803, 1140-41. By July 2019, Plaintiff had returned to 28 work as a truck driver; he thus requested a closed period of disability. 1 STANDARD OF REVIEW 2 The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion. Richardson v. 12 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 13 rational interpretation, the Court may not substitute its judgment for that of the 14 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 15 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 16 administrative findings, or if conflicting evidence supports a finding of either 17 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 18 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 19 supported by substantial evidence will be set aside if the proper legal standards 20 were not applied in weighing the evidence and making the decision. Brawner v. 21 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 22 SEQUENTIAL EVALUATION PROCESS 23 The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 25 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 26 four, the claimant bears the burden of establishing a prima facie case of entitlement 27 to disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 28 claimant establishes that a physical or mental impairment prevents the claimant 1 from engaging in past relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). 2 If a claimant cannot perform past relevant work, the ALJ proceeds to step five, and 3 the burden shifts to the Commissioner to show that (1) the claimant can make an 4 adjustment to other work; and (2) specific jobs which the claimant can perform 5 exist in the national economy. Batson v. Commissioner of Social Sec. Admin., 359 6 F.3d 1190, 1193-1194 (2004). If a claimant cannot make an adjustment to other 7 work in the national economy, the claimant will be found disabled. 20 C.F.R. §§ 8 404.1520(a)(4)(v), 416.920(a)(4)(v). 9 ADMINISTRATIVE FINDINGS 10 On March 31, 2020, the ALJ issued a decision finding Plaintiff was not 11 disabled as defined in the Social Security Act. 12 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 13 activity between the alleged onset date and July 1, 2019, when he returned to work. 14 Tr. 739-40. 15 At step two, the ALJ determined Plaintiff had the following severe 16 impairments: coronary artery disease, lumbar degenerative disc disease, and labile 17 blood pressure. Tr. 740. 18 At step three, the ALJ found Plaintiff did not have an impairment or 19 combination of impairments that met or medically equaled the severity of one of 20 the listed impairments. Tr. 741. 21 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 22 he could perform light exertion level work with the following limitations:

23 He cannot climb ladders, ropes, or scaffolds; he cannot crawl; he can 24 frequently perform all other postural activities; he can frequently use 25 foot controls; he cannot be exposed to extreme cold or to hazards, such as unprotected heights and moving mechanical parts. 26 Id. 27 /// 28 1 At step four, the ALJ found Plaintiff capable of performing his past relevant 2 work as a cashier. Tr. 747. 3 Alternatively, the ALJ found at step five that, based on the testimony of the 4 vocational expert, and considering Plaintiff’s age, education, work experience, and 5 RFC, Plaintiff was capable of making a successful adjustment to other work that 6 existed in significant numbers in the national economy, including the jobs of 7 electrical accessories assembler, marker, and wire worker. Tr. 747-48. The ALJ 8 further found that Plaintiff would have been capable of performing other jobs were 9 he further limited to sedentary exertional work with additional postural and 10 environmental limitations. Tr. 748-49. 11 The ALJ thus concluded Plaintiff was not under a disability within the 12 meaning of the Social Security Act at any time since the alleged onset date. Tr. 13 749. 14 ISSUES 15 The question presented is whether substantial evidence supports the ALJ’s 16 decision denying benefits and, if so, whether that decision is based on proper legal 17 standards. 18 Plaintiff contends the ALJ erred by (1) improperly rejecting medical opinion 19 evidence; (2) improperly rejecting Plaintiff’s subjective statements and the lay 20 witness statements; and (3) failing to conduct an adequate step four analysis. 21 DISCUSSION 22 1. Medical opinion evidence 23 Plaintiff argues the ALJ erred by failing to properly consider the medical 24 opinion evidence of record. ECF No. 18 at 11-16. Plaintiff argues the ALJ 25 improperly rejected opinions from Drs. Hipolito, Marcelo, Drenguis, Miller, and 26 Hurley. 27 When a treating or examining physician’s opinion is contradicted by another 28 physician, the ALJ may reject that opinion for “specific and legitimate reasons,” 1 based on substantial evidence. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 2 1995); Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The specific and 3 legitimate standard can be met by the ALJ setting out a detailed and thorough 4 summary of the facts and conflicting clinical evidence, stating their interpretation 5 thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 6 1989). The ALJ is required to do more than offer their conclusions, they “must set 7 forth [their] interpretations and explain why they, rather than the doctors’, are 8 correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 9 The Commissioner may reject the opinion of a non-examining physician by 10 reference to specific evidence in the medical record. Sousa v. Callahan, 143 F.3d 11 1240, 1244 (9th Cir. 1998). 12 A. Dr. Hipolito and Dr. Marcelo 13 Dr. Hipolito provided a medical report on April 5, 2016, stating Plaintiff was 14 capable of no more than sedentary work, would be expected to be off-task 50% of 15 a normal work day, and would be absent four or more days per month. Tr. 432-33. 16 She additionally opined Plaintiff would have limitations on performing postural 17 activities and would need to lie down approximately three to four times during an 18 eight-hour work shift. Tr. 433. 19 Dr. Hipolito and Dr. Marcelo each submitted a copy of a letter indicating 20 their opinion that Plaintiff’s high and low blood pressure events caused symptoms 21 that would prevent him from returning safely to work. Tr. 434, 708. Both doctors 22 deferred further recommendations regarding Plaintiff’s ability to work and the 23 duration of his incapacity to his specialist. Id. 24 The ALJ gave Dr. Hipolito’s medical report no weight, finding it to be 25 lacking in meaningful explanation and to be markedly discrepant from the 26 longitudinal medical record, particularly records indicating Plaintiff reported being 27 active without limitations and often denied the symptoms Dr. Hipolito mentioned 28 in the statement. Tr. 745. The ALJ further gave no weight to both copies of the 1 letters submitted by Drs. Hipolito and Marcelo, noting them to be conclusory and 2 unclear, unsupported by the record, and inconsistent with the lack of persistent 3 symptoms from Plaintiff’s labile blood pressure. Tr. 745-46. The ALJ further 4 found the letters suspect due to their identical content, and agreed with the medical 5 expert’s characterization of the letters as “nonsense.” Id. 6 Plaintiff argues the ALJ erred, asserting that the opinions are supported by 7 the extensive treatment records and arguing that the ALJ selectively read the 8 record, in violation of the prior remand order from this court. ECF No. 18 at 12-14. 9 Plaintiff further asserts there is nothing nonsensical about the letters, and notes the 10 medical expert agreed that Plaintiff’s conditions could cause the reported 11 symptoms. Id. at 14-15. Defendant argues the ALJ reasonably discounted the 12 opinions as vague, inconsistent with Plaintiff’s reports, and contrary to the context 13 of the record as a whole, and appropriately gave more weight to the medical 14 expert, Dr. Smiley. ECF No. 20 at 12-16. 15 The Court finds the ALJ did not err. The consistency of an opinion with the 16 record as a whole and the amount of explanation offered by the source are 17 legitimate factors for an ALJ to consider. 20 C.F.R. § 404.1527(c). The ALJ 18 reasonably found Dr. Hipolito’s medical report to be lacking in explanation for the 19 extreme limits offered. Tr. 745. The report contains little in the way of explanation 20 for the limitations, citing only to the diagnoses and no objective findings or testing. 21 Tr. 432-33. 22 The ALJ further adequately explained his interpretation of the longitudinal 23 medical record, noting the numerous instances when Plaintiff denied symptoms 24 related to his labile blood pressure, or presented with high or low pressure without 25 manifesting any symptoms. Tr. 745-46. The ALJ did not violate the directives of 26 the Court’s remand order. The Court found error in the previous ALJ pointing to 27 instances of Plaintiff denying symptoms without acknowledging the times when 28 symptoms were reported. Tr. 868-69. In the present decision, the ALJ engaged in a 1 thorough discussion of the evidence, acknowledging the varying reports and 2 denials of symptoms, and ultimately finding the weight of the evidence did not 3 support the extent of the limitations assessed by Drs. Hipolito and Marcelo. Tr. 4 745-46. The Court further finds the ALJ’s interpretation is reasonable in light of 5 the medical expert’s testimony. 6 B. Consultative examiner Dr. Drenguis 7 Plaintiff argues the ALJ erred in giving little weight to the manipulative 8 limitations assessed by Dr. Drenguis. ECF No. 18 at 15. 9 Following an August 2014 exam, Dr. Drenguis offered a medical source 10 statement regarding Plaintiff’s abilities. Tr. 410-11. Among other limits, he opined 11 Plaintiff “may frequently reach, handle, finger and feel.” Tr. 411. The ALJ found 12 the manipulative limitations were not well-supported by the exam results, which 13 showed no issues with the extremities, and inconsistent with the longitudinal 14 record which did not show Plaintiff having any ongoing persistent difficulties with 15 his arms. Tr. 744. 16 The Court finds the ALJ did not err. Dr. Drenguis’ exam does not document 17 any objective findings supportive of limitations in the upper extremities, and he 18 offered no justification for any limitation on the use of the arms (while listing 19 coronary artery disease as the justification for the standing, walking, and lifting 20 limitations). Tr. 410-11. Furthermore, the record does not document any issues 21 with Plaintiff’s arms. Therefore, the ALJ’s rationale is supported by the record. 22 Additionally, as was noted in the prior remand order, any error in the 23 exclusion of the manipulative limitations is harmless. All of the jobs identified by 24 the vocational expert do not require more than frequent reaching, handling, 25 /// 26 /// 27 /// 28 /// 1 fingering, or feeling.1 Therefore, even if the ALJ had adopted Dr. Drenguis’ 2 assessed limitations in full, the outcome would not have changed. See Tommasetti 3 v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (An error is harmless when “it is 4 clear from the record that the . . . error was inconsequential to the ultimate 5 nondisability determination.”). 6 C. Medical expert Dr. Miller 7 In connection with the prior hearing, the first ALJ obtained interrogatories 8 from medical expert Scott Miller. Tr. 724-33. Dr. Miller opined Plaintiff was 9 capable of light level lifting and carrying, could stand and walk four hours each in 10 an 8-hour workday, and could sit for two hours in an 8-hour workday. Tr. 724-25. 11 He also assessed additional limitations on use of foot controls, postural activities, 12 and environmental conditions. Tr. 726-28. 13 The ALJ gave this opinion some weight, but noted Dr. Miller offered little 14 supportive explanation for his opinion and reviewed the record over three years 15 prior to the decision. Tr. 744. The ALJ thus stated that he relied more heavily on 16 the medical expert who testified at the hearing and reviewed the entire medical 17 record. Id. 18 Plaintiff argues the ALJ erred, as the opinion was offered during the relevant 19 period and is supported by the records Dr. Miller reviewed and evidence added to 20 the record later, and is consistent with treating provider opinions. ECF No. 18 at 21 15. Defendant argues the ALJ reasonably found the opinion inconsistent with 22 normal findings and lacking in supportive explanation, and asserts Plaintiff offered 23 no citation for his assertion that that opinion is consistent with evidence later added 24 to the record. ECF No. 20 at 17-18. 25

26 1 See Dictionary of Occupational Titles (DOT) #729.687-010, 1991 WL 27 679733 (electrical accessories assembler); DOT #209.587-034, 1991 WL 671802 28 (marker); DOT #728.684-022, 1991 WL 679684 (wire worker). 1 The Court finds the ALJ did not err. The amount of explanation offered for 2 an opinion and the source’s familiarity with the record are legitimate factors for the 3 ALJ to consider. 20 C.F.R. § 404.1527(c). Dr. Miller’s interrogatories contain very 4 little in the way of justification for the assessed limitations. Tr. 724-33. The ALJ 5 did not err in assigning more weight to the medical expert who reviewed the entire 6 record and was available for questioning at the hearing. 7 D. State agency consultant Dr. Hurley 8 At the reconsideration stage of review in December 2014, Dr. Wayne Hurley 9 reviewed Plaintiff’s file and opined he was capable of light level lifting and 10 carrying, but was limited to two hours of standing and walking. Tr. 93-94. 11 The ALJ gave some weight to this early opinion, but found Dr. Smiley’s 12 opinion was more consistent with the current record, noting a number of exhibits 13 had been added to the file in the intervening five years. Tr. 744. Plaintiff asserts 14 this opinion is still relevant, as it pertains to the period at issue, and argues it is not 15 inconsistent with later added evidence. ECF No. 18 at 16. Defendant argues the 16 ALJ’s rationale is reasonable and notes Plaintiff offers no citation for his assertion 17 that the opinion is consistent with later evidence, and notes Plaintiff does not 18 identify which portion of Dr. Hurley’s opinion he thinks was improperly rejected. 19 ECF No. 20 at 17-18. 20 The Court finds the ALJ did not err. As discussed above, a source’s 21 familiarity with the record is a reasonable factor to consider, and the ALJ did not 22 err in assigning the most weight to the medical expert who reviewed the entire file 23 and testified at the hearing. 24 2. Plaintiff’s subjective complaints 25 Plaintiff contends the ALJ erred by improperly rejecting his subjective 26 complaints. ECF No. 18 at 16-19. 27 It is the province of the ALJ to make determinations regarding a claimant’s 28 reports. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the 1 ALJ’s findings must be supported by specific, cogent reasons. Rashad v. Sullivan, 2 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant produces medical evidence 3 of an underlying medical impairment, the ALJ may not discredit testimony as to 4 the severity of an impairment merely because it is unsupported by medical 5 evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). Absent affirmative 6 evidence of malingering, the ALJ’s reasons for rejecting the claimant’s testimony 7 must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 8 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). “General 9 findings are insufficient: rather the ALJ must identify what testimony is not 10 credible and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d 11 at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 12 The ALJ concluded Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause some of his alleged symptoms; however, 14 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 15 those symptoms were not entirely consistent with the medical and other evidence 16 of record. Tr. 742. The ALJ found Plaintiff’s statements were inconsistent with the 17 longitudinal medical evidence of record, including his regular denial of any 18 symptoms related to his cardiac condition or labile blood pressure, the lack of 19 objective findings regarding his back problems, his weak and inconsistent work 20 history, and his failure to stop smoking. Tr. 742-43. 21 Plaintiff argues the ALJ’s analysis of Plaintiff’s symptoms is not supported 22 and asserts the ALJ violated the remand order by cherry picking instances of 23 symptom-free visits. ECF No. 18 at 16-19. Defendant argues the ALJ reasonably 24 considered Plaintiff’s poor work history and the various evidence that 25 demonstrates inconsistency with Plaintiff’s allegations, including records of him 26 regularly denying symptoms. ECF No. 20 at 5-10. 27 The Court finds the ALJ offered clear and convincing reasons for 28 discounting Plaintiff’s subjective allegations. The Ninth Circuit has found that a 1 poor work history can support a rejection of a claimant’s symptom statements. 2 See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (An ALJ’s finding that 3 the claimant had limited work history and “ha[d] shown little propensity to work in 4 her lifetime” was a specific, clear, and convincing reason for discounting the 5 claimant’s testimony.). The ALJ reasonably considered Plaintiff’s lack of 6 consistent prior work history in discounting his allegations of disability for the 7 requested period. 8 Although it cannot serve as the sole ground for rejecting a claimant’s 9 symptom statements, objective medical evidence is a “relevant factor in 10 determining the severity of the claimant’s pain and its disabling effects.” Rollins v. 11 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). An ALJ may cite inconsistencies 12 between a claimant’s testimony and the objective medical evidence in discounting 13 the claimant’s symptom statements. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 14 1219, 1227 (9th Cir. 2009). As discussed above, the ALJ reasonably considered the 15 record, discussing the various incidences of Plaintiff’s high and low blood pressure 16 events and the accompanying symptoms, or lack thereof. While Plaintiff argues the 17 record supports his allegations, the ALJ’s interpretation of the record is supported 18 by substantial evidence. “If the evidence can reasonably support either affirming or 19 reversing a decision, we may not substitute our judgment for that of the 20 Commissioner.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 21 Plaintiff also asserts the ALJ erred in discounting the testimony of the third 22 party for the same reasons he discounted Plaintiff’s subjective statements. ECF No. 23 18 at 18. Because the Court finds no error in the ALJ’s discussion of Plaintiff’s 24 allegations, the ALJ did not err in rejecting similar testimony from a third party for 25 the same reasons. Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012). 26 3. Step four findings 27 Plaintiff argues the ALJ erred in his step four determination because the 28 testimony of the vocational expert was based on an incomplete hypothetical 1 || stemming from an inaccurate assessment of the medical and other evidence, and the ALJ failed to make specific findings regarding the demands of the past relevant 3|| work. ECF No. 18 at 19-20. 4 Success on the first assignment of error is dependent on successfully 5 || showing that the ALJ erred in his treatment of the symptom statements and 6|| medical opinions. Because the Court finds that the ALJ did not harmfully err in his 7|| treatment of Plaintiff's symptom statements and the medical opinions, Plaintiff's argument is without merit. 9 The second issue is harmless at most, as the ALJ made alternative step five 10]| findings that Plaintiff has not challenged. 11 CONCLUSION 12 Having reviewed the record and the ALJ’s findings, the Court finds the 13|| ALJ’s decision is supported by substantial evidence and free of legal error and is 14|| affirmed. Therefore, IT IS HEREBY ORDERED: 15 1. Defendant’s Motion for Summary Judgment, ECF No. 20, is GRANTED. 17 2. Plaintiff's Motion for Summary Judgment, ECF No. 18, is DENIED. 18 The District Court Executive is directed to file this Order and provide a copy 19]| to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant and the file shall be CLOSED. 21 IT IS SO ORDERED. 22 DATED April 19, 2021. 23 SE JW a4 JOHNT.RODGERS 25 ae UNITED STATES MAGISTRATE JUDGE 26 27 28