Pumroy v. O'Malley

• Court: District Court, E.D. Washington
• Decided: March 10, 2023
• Docket: 4:22-cv-05082
• Status: Unknown

Opinion

1 FILED IN THE 2 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 3 Mar 10, 2023 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 CHRISTOPHER P., No. 4:22-CV-05082-SAB 10 Plaintiff, 11 v. ORDER DENYING PLAINTIFF’S 12 COMMISSIONER OF SOCIAL MOTION FOR SUMMARY 13 SECURITY ADMINISTRATION, JUDGMENT; GRANTING 14 Defendant. DEFENDANT’S MOTION FOR 15 SUMMARY JUDGMENT 16 17 Before the Court are Cross-Motions for Summary Judgment. ECF Nos. 9, 18 10. The motions were heard without oral argument. Plaintiff is represented by 19 Chad L. Hatfield; Defendant is represented by Michael J. Mullen and Brian M. 20 Donovan. 21 Plaintiff brings this action seeking judicial review of the Commissioner of 22 Social Security’s final decision denying his application for Disability Insurance 23 Benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 1382. After 24 reviewing the administrative record and briefs filed by the parties, the Court is now 25 fully informed. For the reasons set forth below, the Court denies Plaintiff’s Motion 26 for Summary Judgment, ECF No. 9, and grants Defendant’s Motion for Summary 27 Judgment, ECF No. 10. 28 // 1 I. Jurisdiction 2 On July 28, 2020, Plaintiff filed an application for disability insurance 3 benefits, with onset of October 1, 2016. Plaintiff’s application was denied initially 4 and on reconsideration. On March 3, 2022, a telephonic hearing was held. Plaintiff 5 appeared and testified before an ALJ, with the assistance of his counsel, Chad 6 Hatfield. Mark A. Harrington, vocational expert, also participated. The ALJ found 7 that Plaintiff was not disabled. 8 Plaintiff requested review by the Appeals Council and the Appeals Council 9 denied the request on April 21, 2022. The Appeals Council’s denial of review 10 makes the ALJ’s decision the “final decision” of the Commissioner of Social 11 Security, which this Court is permitted to review. 42 U.S.C. §§ 405(g), 12 1383(c)(1)(3). 13 Plaintiff filed a timely appeal with the United States District Court for the 14 Eastern District of Washington on June 24, 2022. ECF No. 1. The matter is before 15 this Court pursuant to 42 U.S.C. § 405(g). 16 II. Five-Step Sequential Evaluation Process 17 The Social Security Act defines disability as the “inability to engage in any 18 substantial gainful activity by reason of any medically determinable physical or 19 mental impairment which can be expected to result in death or which has lasted or 20 can be expected to last for a continuous period of not less than twelve months.” 42 21 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 22 under a disability only if their impairments are of such severity that the claimant is 23 not only unable to do their previous work, but cannot, considering claimant’s age, 24 education, and work experiences, engage in any other substantial gainful work that 25 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 26 Commissioner has established a five-step sequential evaluation process to 27 determine whether a person is disabled in the statute. See 20 C.F.R. §§ 28 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). 1 Step One: Is the claimant engaged in substantial gainful activities? 20 2 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work 3 done for pay and requires compensation above the statutory minimum. Keyes v. 4 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 5 substantial activity, benefits are denied. 20 C.F.R. § 404.1520(b), 416.920(b). If 6 the claimant is not, the ALJ proceeds to step two. 7 Step Two: Does the claimant have a medically-severe impairment or 8 combination of impairments? 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A 9 severe impairment is one that lasted or must be expected to last for at least 12 10 months and must be proven through objective medical evidence. Id. §§ 404.1509, 11 416.909. If the claimant does not have a severe impairment or combination of 12 impairments, the disability claim is denied. Id. § 404.1520(a)(4)(ii), 13 416.920(a)(4)(ii). If the impairment is severe, the evaluation proceeds to the third 14 step. 15 Step Three: Does the claimant’s impairment meet or equal one of the listed 16 impairments acknowledged by the Commissioner to be so severe as to preclude 17 substantial gainful activity? 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If 18 the impairment meets or equals one of the listed impairments, the claimant is 19 conclusively presumed to be disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the 20 impairment is not one conclusively presumed to be disabling, the evaluation 21 proceeds to the fourth step. 22 Before considering to the fourth step, the ALJ must first determine the 23 claimant’s residual functional capacity. An individual’s residual functional 24 capacity is their ability to do physical and mental work activities on a sustained 25 basis despite limitations from their impairments. 20 C.F.R. §§ 404.1545(a)(1), 26 416.945(a)(1). The residual functional capacity is relevant to both the fourth and 27 fifth steps of the analysis. 28 Step Four: Does the impairment prevent the claimant from performing work 1 they have performed in the past? 20 C.F.R. §§ 404.1520(a)(4)(iv), 2 416.920(a)(4)(iv). If the claimant is able to perform their previous work, they are 3 not disabled. 20 C.F.R. §§ 404.1520(f), 416.920(f). If the claimant cannot perform 4 this work, the evaluation proceeds to the fifth and final step. 5 Step Five: Is the claimant able to perform other work in the national 6 economy in view of their age, education, and work experience? 20 C.F.R. §§ 7 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 8 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 9 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 10 establishes that a physical or mental impairment prevents him from engaging in her 11 previous occupation. Id. At step five, the burden shifts to the Commissioner to 12 show that the claimant can perform other substantial gainful activity. Id. 13 III. Standard of Review 14 The Commissioner’s determination will be set aside only when the ALJ’s 15 findings are based on legal error or are not supported by substantial evidence in the 16 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 17 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 18 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 19 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 20 evidence is “such relevant evidence as a reasonable mind might accept as adequate 21 to support a conclusion.” Richardson, 402 U.S. at 401. 22 A decision supported by substantial evidence will be set aside if the proper 23 legal standards were not applied in weighing the evidence and making the decision. 24 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 25 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 26 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 27 1050, 1055 (9th Cir. 2006). The Court must uphold the ALJ’s denial of benefits if 28 the evidence is susceptible to more than one rational interpretation, one of which 1 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 2 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 3 weighing both the evidence that supports and the evidence that detracts from the 4 Commissioner’s conclusion, and may not affirm simply by isolating a specific 5 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 6 2017) (quotation omitted). “If the evidence can support either outcome, the court 7 may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 8 IV. Statement of Facts 9 The facts have been presented in the administrative record, the ALJ’s 10 decision, and the briefs to this Court. Only the most relevant facts are summarized 11 herein. 12 Plaintiff served in the United States Marine Corp, including deployments to 13 Iraq. He also worked as a contractor overseas. He has been diagnosed with PTSD. 14 He experiences nightmares, chronic hypervigilance, quick changes of mood, 15 feelings of guilt, and the inability to adapt between family and past military 16 experiences easily. He has difficulty with his memory. His nightmares contribute 17 to his anxiety. He testified that he does not like going out and he does not like 18 crowds. 19 Plaintiff was injured while on active duty. He experiences numbness in his 20 hands and diminished dexterity. He has difficulty with holding a pencil, typing, 21 and handling a firearm. He also testified that he has a brain injury. The Veterans 22 Administration has determined that Plaintiff is 100% disabled. 23 He testified he voluntarily left his last job because he was having some 24 performance issues. He was a sergeant at a nuclear waste facility and was in charge 25 of a squad of armed and commissioned nuclear security officers. He was 26 experiencing neuropathy and his hands were going numb. He was having difficulty 27 with shooting a pistol. After he quit his job, he attended college and attempted to 28 complete his degree. He struggled with math classes and sought out assistance 1 from the resource center. He ultimately left college. 2 He testified that he applied to be a firefighter and received a conditional job 3 offer but was ultimately turned down because of his reactive airway disease that he 4 acquired from serving in Iraq. 5 Plaintiff explained that the birth of his daughter opened up difficult emotions 6 for him. It caused him to rethink his actions while in Iraq and to bring back 7 difficult memories of his combat time. 8 Plaintiff is divorced and he has 50/50 custody for his two children. He has 9 his children for a week, then his ex-wife has them for a week. 10 V. The ALJ’s Findings 11 The ALJ issued an opinion affirming denial of benefits. AR 15-26. At step 12 one, the ALJ found that Plaintiff has not engaged in substantial gainful activity 13 since August 21, 2018, the alleged onset date. AR 18. 14 At step two, the ALJ identified the following severe impairments: 15 posttraumatic stress disorder (PTSD), major depressive disorder, attention deficit 16 hyperactivity disorder (ADHD), and degenerative joint disease of the bilateral 17 elbows. AR 17. 18 At step three, the ALJ found that Plaintiff did not have an impairment or 19 combination of impairments that meets or medically equals the severity of one of 20 the listed impairments. AR 19. Ultimately, the ALJ concluded that Plaintiff has a 21 residual function capacity (“RFC”) to perform:

22 a full range of medium work as defined in 20 CFR 404.1567(c) 23 except: he was limited to simple, routine tasks and could have only occasional, superficial contact with the public and coworkers, 24 with no collaborative tasks. 25 AR 20. 26 At step four, the ALJ found that Plaintiff was unable to perform any past 27 relevant work. AR 25. 28 In the alternative, the ALJ found there were other jobs that existed in 1 significant numbers in the national economy that Plaintiff could also perform, 2 including janitor, packager, and landscape specialist. AR 26. 3 VI. Issues 4 1. Whether it was proper for the ALJ to not consider the VA’s 100% 5 disability rating. 6 2. Whether the ALJ properly determined that Plaintiff’s bilateral carpal 7 tunnel was non-severe. 8 3. Whether the ALJ properly evaluated Plaintiff’s symptom testimony. 9 4. Whether the ALJ properly conducted a Step Five analysis. 10 VII. Analysis 11 1. Consideration of VA’s disability rating 12 Plaintiff asserts the ALJ erred in failing to provide weight to the VA 13 determination that Plaintiff was 100% disability based on his PTSD, migraine 14 headaches, paralysis of the ulnar nerve and limited motion of his arm, citing to 15 McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). 16 Defendant points out, however, that the SSA issued revised regulations 17 addressing this issue. Notably, 20 C.F.R. § 404.1504 provides that for “claims filed 18 on or after March 27, 2017, we will not provide any analysis in our determination 19 or decision about a decision made by any other governmental agency or 20 nongovernmental entity about whether you are disabled, blind, employable, or 21 entitled to any benefits.” But an ALJ must “consider all of the supporting evidence 22 underlying the other governmental agency . . . decision.” Id. 23 Plaintiff argues that notwithstanding the revised regulations, McCartey 24 remains good law. The Court disagrees. As the Ninth Circuit explained in Woods v. 25 Kijakazi, circuit precedent controls unless its “reasoning or theory is clearly 26 irreconcilable with the reasoning or theory of intervening higher authority, which 27 includes SSA’s updated regulations. 32 F.3d 785, 790 (9th Cir. 2022) (quotation 28 omitted). 1 Based on the revised regulations, the ALJ was not required to give any 2 analysis of the VA disability determination. Notably, Plaintiff has not argued the 3 ALJ failed to consider the supporting evidence underlying the VA’s decision. 4 2. Step Two Analysis – Bilateral Carpal Tunnel Syndrome 5 The ALJ found that Plaintiff’s bilateral carpal tunnel syndrome/cubital 6 tunnel syndrome caused no more than minimal functional limitations through the 7 date last insured and therefore was non-severe. The ALJ noted that Plaintiff 8 reported excellent results from surgeries that took place within 12 months of this 9 impairment first being diagnosed. The ALJ also noted that the medical evidence in 10 the record does not show ongoing complaints to providers or any additional 11 treatment. Finally, the ALJ noted that Plaintiff’s complaints regarding his carpal 12 tunnel syndrome were inconsistent with his activities of daily living. 13 “An impairment or combination of impairments may be found not severe 14 only if the evidence establishes a slight abnormality that has no more than a 15 minimal effect on an individual's ability to work.” Webb v. Barnhart, 433 F.3d 16 683, 686 (9th Cir. 2005) (quotation omitted). As instructed by the Ninth Circuit, 17 the step two analysis is “a de minimis screen device used to dispose of groundless 18 claims, and an ALJ may find that a claimant lacks a medically severe impairment 19 or combination of impairments only when his conclusion is clearly established by 20 the record.” Id. at 687 (quotation omitted). 21 The ALJ’s reasons for finding that Plaintiff’s carpal tunnel syndrome was 22 non-severe are supported by substantial evidence in the record. 23 3. Plaintiff’s Symptom Testimony 24 The ALJ found that while Plaintiff’s medically determinable impairments 25 could reasonably cause some of the alleged symptoms, his statements concerning 26 the intensity, persistence, and limiting effects of these symptoms are not entirely 27 consistent with the medical evidence and other evidence in the record. 28 An ALJ’s assessment of a claimant’s credibility is entitled to “great weight.” 1 Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir.1990). When there is no 2 evidence of malingering, the ALJ must give “specific, clear and convincing 3 reasons” for rejecting a claimant’s subjective symptom testimony. Molina v. 4 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation omitted). If the ALJ’s 5 credibility finding is supported by substantial evidence in the record, the reviewing 6 court “may not engage in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 7 959 (9th Cir. 2002). 8 In recognition of the fact that an individual’s symptoms can sometimes 9 suggest a greater level of severity of impairment than can be shown by the 10 objective medical evidence alone, 20 C.F.R. §§ 404.1529(c) and 416.929(c) 11 describe the kinds of evidence, including the factors below, that the ALJ must 12 consider in addition to the objective medical evidence when assessing the 13 credibility of an individual’s statements:

14 1. The individual’s daily activities; 2. The location, duration, 15 frequency, and intensity of the individual’s pain or other symptoms; 3. Factors that precipitate and aggravate the symptoms; 4. The type, 16 dosage, effectiveness, and side effects of any medication the 17 individual takes or has taken to alleviate pain or other symptoms; 5. Treatment, other than medication, the individual receives or has 18 received for relief of pain or other symptoms; 6. Any measures other 19 than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 20 minutes every hour, or sleeping on a board); and 7. Any other factors 21 concerning the individual’s functional limitations and restrictions due to pain or other symptoms. 22 SSR 96-7P, 1996 WL 374186. 23 The ALJ concluded that the objective medical evidence in this case was 24 largely unremarkable, including evidence of largely normal mental status 25 examinations. Plaintiff reported to his medical providers that things were going 26 well, medications helped with his anxiety and nightmares and his mood as 27 stabilized. The ALJ noted that Plaintiff’s course of treatment had been routine and 28 1 conservative. 2 The ALJ noted that Plaintiff testified that when he quit his job in 2016, he 3 was the primary caregiver for his baby daughter, and he returned to college full- 4 time. Additionally, he testified that he applied for a job as a firefighter, and he 5 performed exceptionally on the tests. The ALJ reasoned that it would make no 6 sense for Plaintiff to engage in a prolonged hiring process and pursue litigation to 7 try to secure the job if he did not believe he was capable of performing that job. 8 The ALJ also relied on Plaintiff’s daily living activities, including being the sole 9 caregiver for two young children on a weekly basis, cooking, shopping, caring for 10 pets, having no problems with personal care, cleaning, doing laundry, mowing the 11 yard, doing basic household repairs, going outside daily, going out alone, driving, 12 and managing financial accounts. 13 These are specific, clear and convincing reasons for rejecting Plaintiff’s 14 subjective symptom testimony. As such, the ALJ’s credibility determination is 15 supported by substantial evidence in the record. 16 4. The ALJ’s Step Five Analysis 17 Here, the ALJ’s step five analysis is supported by substantial evidence in the 18 record. The ALJ’s determination of Plaintiff’s RFC is supported by substantial 19 evidence. There is nothing in the record that indicates the vocational expert’s 20 conclusion that a person with Plaintiff’s limitations would be capable of working 21 as a janitor, packager, and landscape specialist was in error. 22 VIII. Conclusion 23 Substantial evidence supports the ALJ’s conclusion that Plaintiff was not 24 disabled. Notably, Plaintiff’s daily activities, childcare, college attendance, and 25 prolonged attempt at becoming a firefighter, his conservative approach to 26 treatment, situational factors; and improvements through surgery, medication, and 27 other treatment all indicate that he is capable of making a successful adjustment to 28 other work that existed in significant numbers in the national economy. 1 Accordingly, IT IS HEREBY ORDERED: 1. Plaintiff's Motion for Summary Judgment, ECF No. 9, is DENIED. 3 2. Defendant’s Motion for Summary Judgment, ECF No. 10, is GRANTED. 5 3. The decision of the Commissioner is affirmed. 4. Judgment shall be entered in favor of Defendant and against Plaintiff. IT IS SO ORDERED. The District Court Executive is hereby directed to 8|| file this Order, provide copies to counsel, and close the file. 9 DATED this 10th day of March 2023. 10 11 12 13 Sfrelerld Eee toar 5 Stanley A. Bastian Chief United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY TIMCONMENT: CR ANTING NEEENNANT?SC MATION BAR CIINIVIARYV