Moore v. Saul

• Court: District Court, E.D. Washington
• Decided: February 1, 2021
• Docket: 1:20-cv-03039
• Status: Unknown

Opinion

1 2 3 FILED IN THE U.S. DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON Feb 01, 2021 5 6 SEAN F. MCAVOY, CLERK 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF WASHINGTON

11 LONNIE M., No. 1:20-CV-03039-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 Lonnie M. (Plaintiff); Special 21 Assistant United States Attorney Franco Becia represents the Commissioner of 22 Social Security (Defendant). The parties have consented to proceed before a 23 magistrate judge. ECF No. 7. 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 an application for Supplemental Security Income on March 26, 3 2014, alleging disability beginning June 1, 2012 due to Hepatitis B and C, asthma, 4 bipolar disorder, COPD, chronic migraines, and foot infection. Tr. 64. The 5 application was denied initially and upon reconsideration. Tr. 91-99, 107-15. 6 Administrative Law Judge (ALJ) Virginia Robinson held a hearing on May 18, 7 2016, Tr. 34-65, and issued an unfavorable decision on December 21, 2016, Tr. 19- 8 27. Plaintiff requested review by the Appeals Council and the Appeals Council 9 denied the request on January 27, 2018. Tr. 1-5. Plaintiff filed a civil action in this 10 court on March 29, 2018. Tr. 506-08. On October 29, 2018, the Court granted the 11 parties’ stipulated motion to remand for further proceedings. Tr. 518-19. 12 ALJ Robinson held a remand hearing on November 5, 2019, Tr. 446-82, and 13 issued a partially favorable decision on January 14, 2020, finding Plaintiff was not 14 disabled prior to January 8, 2019, but became disabled on that date when he 15 changed age categories. Tr. 388-404. The Appeals Council did not review the 16 claim and the ALJ’s January 2020 decision became the final decision of the 17 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 18 405(g). Tr. 383-85. Plaintiff filed this action for judicial review on March 31, 19 2020. ECF No. 1. 20 STATEMENT OF FACTS 21 Plaintiff was born in 1969 and was 45 years old when he filed his claim. Tr. 22 64. He had a difficult childhood, with both of his parents experiencing mental 23 illness and Plaintiff being subjected to physical and emotional abuse. Tr. 291, 296, 24 428, 683. He completed the 8th grade and did not obtain his GED. Tr. 297, 427. 25 Plaintiff has a minimal work history, having worked primarily short-term jobs 26 doing siding work. Tr. 172, 185, 437. He struggled with substance addiction most 27 of his life until December 2017. Tr. 433-35, 465, 956-58. 28 /// 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. § 416.920(a); Bowen v. 25 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 26 proof rests upon the claimant to establish a prima facie case of entitlement to 27 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. § 416.920(a)(4). If a claimant 2 cannot perform past relevant work, the ALJ proceeds to step five, and the burden 3 shifts to the Commissioner to show (1) the claimant can make an adjustment to 4 other work; and (2) the claimant can perform specific jobs that exist in the national 5 economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 6 2004). If a claimant cannot make an adjustment to other work in the national 7 economy, the claimant will be found disabled. 20 C.F.R. § 416.920(a)(4)(v). 8 ADMINISTRATIVE FINDINGS 9 On January 14, 2020, the ALJ issued a decision finding Plaintiff was not 10 disabled as defined in the Social Security Act prior to January 8, 2019, but that he 11 became disabled on that date. 12 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 13 activity since the application date. Tr. 391. 14 At step two, the ALJ determined Plaintiff had the following severe 15 impairments: COPD, affective disorder (major depressive disorder vs. bipolar 16 disorder), anxiety related disorder, and substance use disorder. Id. 17 At step three, the ALJ found Plaintiff did not have an impairment or 18 combination of impairments that met or medically equaled the severity of one of 19 the listed impairments. Tr. 392-94. 20 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 21 that prior to March 23, 2018, he could perform light exertional work with some 22 exceptions:

23 The claimant could occasionally climb ramps or stairs, but never 24 climb ladders, ropes, or scaffolds, and needed to avoid concentrated 25 exposure to extreme cold, extreme heat, excessive vibration, and workplace hazards such as working with dangerous machinery and 26 working at unprotected heights. He needed to avoid even moderate 27 exposure to pulmonary irritants such as fumes, odors, dust, and gases. The claimant could perform simple routine tasks, in a routine work 28 environment with simple work related decisions, and could have only 1 superficial interaction with coworkers and occasional, superficial 2 interaction with the public. In the workplace the claimant required a 3 break area where during his normal break periods he could leave his work area and elevate his legs. 4

5 Tr. 394-95. The ALJ further found that beginning on March 23, 2018, Plaintiff was 6 limited to performing sedentary work, based on an opinion provided by treating 7 doctor, Caryn Jackson, which limited Plaintiff to performing sedentary work due to 8 his marked impairments from COPD and various other conditions. Tr. 401, 670-71. 9 At step four, the ALJ found Plaintiff had no past relevant work. Tr. 402. 10 At step five, the ALJ determined that, based on the testimony of the 11 vocational expert, and considering Plaintiff’s age, education, work experience, and 12 RFC, Plaintiff was capable of performing jobs that existed in significant numbers 13 in the national economy, including the jobs of cleaner housekeeping, small 14 products assembler, marker II, hand packager, and surveillance system monitor. Tr. 15 402-03. 16 On January 8, 2019, Plaintiff’s age category changed, and the ALJ found 17 him to be disabled under the Medical Vocational Guidelines. Tr. 403. 18 The ALJ thus concluded Plaintiff was not under a disability within the 19 meaning of the Social Security Act at any time from the application date through 20 January 8, 2019, and that he subsequently became disabled on that date. Tr. 404. 21 ISSUES 22 The question presented is whether substantial evidence supports the ALJ’s 23 decision denying benefits and, if so, whether that decision is based on proper legal 24 standards. 25 Plaintiff contends the ALJ erred by (1) improperly rejecting Plaintiff’s 26 symptom testimony; (2) improperly evaluating the medical opinion evidence from 27 ARNP Wheeler; and (3) improperly evaluating Listing 3.02. 28 1 DISCUSSION 2 1. Plaintiff’s symptom statements 3 Plaintiff alleges the ALJ erred in rejecting his symptom testimony without 4 providing adequate reasons. ECF No. 16 at 7-14. 5 It is the province of the ALJ to make determinations regarding a claimant’s 6 subjective complaints. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 7 However, the ALJ’s findings must be supported by specific cogent reasons. 8 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative 9 evidence of malingering, the ALJ’s reasons for rejecting a claimant’s testimony 10 must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 11 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 12 The ALJ found Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause the alleged symptoms; however, she found 14 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 15 his symptoms were not fully supported. Tr. 395. Specifically, the ALJ found 16 Plaintiff’s subjective complaints to be undermined by inconsistent statements from 17 his treating providers, the minimal and mild findings on examination for both his 18 physical and mental conditions, the relief he received from treatments, and his 19 inconsistent statements regarding his use of drugs. Tr. 395-98. 20 Plaintiff argues the ALJ selectively cited the record, omitting evidence that 21 was supportive of Plaintiff’s allegations, and argues that the objective exam 22 findings were less severe due to Plaintiff not working and remaining reclined for 23 most of his days. ECF No. 16 at 8-9. He further argues the evidence of 24 improvement in the record did not mean that his condition did not continue to 25 impair his abilities. Id. at 10-11. Finally, he argues his disability claim is not based 26 primarily on pain, and the ALJ therefore erred in discrediting him based on him not 27 presenting in pain or distress at his appointments. Id. at 12. Defendant argues the 28 ALJ’s findings are supported by substantial evidence and Plaintiff’s alternative 1 interpretation of the evidence does not render the ALJ’s interpretation invalid. ECF 2 No. 17 at 6-15. 3 The Court finds the ALJ offered clear and convincing reasons for 4 discounting Plaintiff’s subjective complaints. Plaintiff testified the swelling of his 5 feet was a significant barrier to working. Tr. 423-24, 457-58. However, the ALJ 6 noted Plaintiff’s treating provider, ARNP Wheeler, did not mention any concerns 7 with edema, and the exam findings throughout the record only occasionally noted 8 any issues with swelling. Tr. 396. These conclusions are supported by substantial 9 evidence. Tr. 704. Plaintiff reported no problems with swelling for the year and a 10 half prior to his hearing. Tr. 835-39 (April 2018, last chronological report of 11 swelling in legs); 734, 746, 1276, 1280, 1287, 1294 (subsequent exams showing no 12 edema). An ALJ may cite inconsistencies between a claimant’s testimony and the 13 objective medical evidence in discounting the claimant’s symptom statements. 14 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). 15 Similarly, the ALJ reasonably interpreted the mental health records as 16 demonstrating minimal psychiatric observations, inconsistent with Plaintiff’s 17 allegations of disabling mental health symptoms. Tr. 397-98. 18 In evaluating a claimant’s subjective complaints, an ALJ may consider the 19 medications and other treatments an individual receives, along with their 20 effectiveness. Social Security Ruling 16-3p. The ALJ reasonably concluded that 21 Plaintiff’s breathing issues were largely controlled by his medications, outside of 22 some acute flares. Tr. 396-97; see 273, 680, 741, 750, 1008, 1199, 1209, 1237, 23 1280, 1292, 1304. 24 The ALJ also reasonably found Plaintiff made inconsistent statements about 25 his past substance use history, a factor that an ALJ may properly consider in 26 assessing the reliability of a claimant’s subjective complaints. Verduzco v. Apfel, 27 188 F.3d 1087, 1090 (9th Cir. 1999) (conflicting or inconsistent testimony 28 concerning alcohol or drug use can contribute to an adverse credibility finding). 1 While Plaintiff offers an alternative interpretation of the record, the Court 2 finds the ALJ’s interpretation is reasonable and supported by substantial evidence. 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (“If the evidence can 4 reasonably support either affirming or reversing a decision, we may not substitute 5 our judgment for that of the Commissioner.”). 6 2. ARNP Wheeler 7 Plaintiff argues the ALJ improperly weighed the opinion from treating 8 ARNP Marybeth Wheeler. ECF No. 16 at 14-16. 9 An ALJ may discount the opinion of a non-acceptable medical source, such 10 as a nurse practitioner, if they provide “reasons germane to each witness for doing 11 so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 12 In August 2019, Plaintiff’s treating provider, Marybeth Wheeler, ARNP, 13 completed a medical source statement. Tr. 704-06. She noted Plaintiff’s conditions 14 included COPD, hyperlipidemia, asthma, depression, and PTSD. Tr. 704. She 15 opined he was capable of light work and would be likely to miss four or more days 16 of work per month due to exacerbations of his respiratory state, and that full-time 17 work would cause his pulmonary function to deteriorate. Tr. 705. She opined the 18 limitations had existed since June 2012. Tr. 706. 19 The ALJ gave this opinion some weight. Tr. 401-02. She found that by this 20 point in time Plaintiff was limited to sedentary work, based on physical exam 21 findings and the opinion from Dr. Jackson. Id. She further reasoned that it 22 appeared Ms. Wheeler relied on Plaintiff’s subjective reports, as the treatment 23 record did not support the frequency of respiratory exacerbations that Ms. Wheeler 24 alluded to, and Ms. Wheeler did not have treatment records to support her opinion 25 that Plaintiff’s impairments had existed at that level since 2012. Id. Finally, the 26 ALJ found the form did not provide any basis for concluding work would cause 27 Plaintiff’s condition to deteriorate. Id. 28 /// 1 Plaintiff argues the ALJ had no basis for finding Ms. Wheeler unduly relied 2 on Plaintiff’s reports, as Ms. Wheeler noted Plaintiff’s diagnoses, symptoms, and 3 treatment course, all of which would have contributed to her opinion. ECF No. 16 4 at 15. He further argues the ALJ did not have the medical expertise to claim that 5 the avoidance of pulmonary irritants and limitation to sedentary work would be 6 sufficient to avoid pulmonary stress. Id. at 16. Defendant argues the ALJ’s 7 rationale was germane and supported by substantial evidence. ECF No. 17 at 15- 8 18. 9 The Court finds the ALJ offered germane reasons for discounting Ms. 10 Wheeler’s opinion. The ALJ’s finding that the record did not reflect exacerbations 11 of Plaintiff’s breathing problem at the rate Ms. Wheeler noted is supported by 12 substantial evidence. Inconsistency with the medical evidence is a germane reason 13 for rejecting such evidence. See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th 14 2005). The ALJ also reasonably noted Ms. Wheeler’s brief treatment record and 15 lack of basis for relating her limitations back to 2012 when Plaintiff had only been 16 treated at the clinic since 2017. Finally, an ALJ may reasonably consider the 17 amount of explanation and supportive evidence provided by a source in evaluating 18 the weight to be assigned. 20 C.F.R. §§ 416.927(c)(3), 416.927(f)(1). The ALJ 19 found Ms. Wheeler’s opinion lacked a basis for concluding work would cause 20 Plaintiff’s pulmonary function to deteriorate. This finding is reasonable based on 21 the form completed. Tr. 704-06. 22 3. Listing 3.02 23 At step three of the sequential evaluation process, the ALJ considers whether 24 one or more of the claimant’s impairments meets or equals an impairment listed in 25 Appendix 1 to Subpart P of the regulations. 20 C.F.R. § 416.920(a)(4)(iii). Each 26 Listing sets forth the “symptoms, signs, and laboratory findings” which must be 27 established for a claimant’s impairment to meet the Listing. Tackett v. Apfel, 180 28 1 F.3d 1094, 1099 (9th Cir. 1999). If a condition meets or equals a Listing, the 2 claimant is considered disabled without further inquiry. 20 C.F.R. § 416.920(d). 3 Listing 3.02 addresses chronic respiratory disorders due to any cause, other 4 than cystic fibrosis, with a showing of spirometry FEV less than or equal to a 1 5 particular value based on the claimant’s age, gender, and height. 20 C.F.R. Part 6 404, Subpart P, Appendix 1, § 3.02(a) (Listing 3.02).1 For an adult male 73 inches 7 tall, such as Plaintiff, the listing-level FEV is 1.90. Listing 3.02(a). The Listing 1 8 further explains that spirometry testing must be done when the claimant is 9 medically stable, and if the reading is less than 70 percent of the predicted normal 10 value, repeat testing must be done after inhalation of a bronchodilator. Listing 11 3.00E. 12 The ALJ found only two listing-level FEV readings in the record were 1 13 made after the use of a bronchodilator, and neither was taken during a period of 14 stability as required by the listing. Tr. 393. 15 Plaintiff contends his breathing problems satisfy the requirements of Listing 16 3.02(a) based on his FEV readings in June and July 2017. ECF No. 16 at 17. He 1 17 argues these test results are consistent with the many findings throughout the 18 record of severe chronic pulmonary insufficiency. Id. Defendant argues the ALJ’s 19 findings were correct and Plaintiff did not meet his burden of demonstrating the 20 Listing was met. ECF No. 17 at 18-19. 21 The Court finds the ALJ did not err. Plaintiff did not address the ALJ’s 22 finding that the two listing-level FEV findings were made during or soon after an 1 23 acute exacerbation and therefore not during a period of stability. The record 24 reflects the June and July 2017 readings were from a period of time when Plaintiff 25

26 1 Listing 3.02 also has parts (b), (c), and (d). Plaintiff advanced no argument 27 that his condition satisfies any of those sections of the listing. Therefore, only part 28 (a) shall be addressed. ran out of his inhalers and had changes in his medications due to insurance. Tr. 1208-10, 1308-17. By August and September, Plaintiff was showing significant improvement. Tr. 1300-06. The ALJ’s conclusion that the listing-level FEV, measures did not occur during a period of stability is supported by substantial evidence. Therefore, the ALJ did not err in concluding the requirements of Listing 6|| 3.02(a) were not met. 7 CONCLUSION 8 Having reviewed the record and the ALJ’s findings, the Court finds the 9|| ALJ’s decision is supported by substantial evidence and free of legal error. 10|| Therefore, IT IS HEREBY ORDERED: 11 1. Defendant’s Motion for Summary Judgment, ECF No. 17, is 12|| GRANTED. 13 2. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED. 14 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 16]| and the file shall be CLOSED. 17 IT IS SO ORDERED. 18 DATED February 1, 2021. 19 Se, Je °° ~ JOHNT.RODGERS 21 a UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28