Spears v. Commissioner of Social Security

• Court: District Court, E.D. Washington
• Decided: August 6, 2019
• Docket: 2:18-cv-00225
• Status: Unknown

Opinion

1 FILED IN THE U.S. DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON Aug 06, 2019 3 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON

8 JULIE S., No. 2:18-CV-00225-JTR

9 Plaintiff, ORDER GRANTING 10 DEFENDANT’S MOTION FOR 11 v. SUMMARY JUDGMENT

12 ANDREW M. SAUL, 13 COMMISSIONER OF SOCIAL SECURITY,1 14

15 Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 Nos. 13, 15. Attorney Dana C. Madsen represents Julie S. (Plaintiff); Special 19 Assistant United States Attorney Jacob P. Phillips represents the Commissioner of 20 Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 6. After reviewing the administrative record and the 22 briefs filed by the parties, the Court DENIES, Plaintiff’s Motion for Summary 23 Judgment and GRANTS Defendant’s Motion for Summary Judgment. 24 1Andrew M. Saul is now the Commissioner of the Social Security 25 Administration. Accordingly, the Court substitutes Andrew M. Saul as the 26 Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 27 25(d). 28 1 JURISDICTION 2 Plaintiff filed an application for Supplemental Security Income (SSI) on 3 August 26, 2015, Tr. 67, alleging disability since January of 2004, Tr. 170, due to 4 a back injury, ankylosing spondylitis, degenerative disc disease, bone spurs in her 5 back, spinal stenosis, nerve damage in her legs and feet, chronic pain, and 6 fibromyalgia, Tr. 209. The application was denied initially and upon 7 reconsideration. Tr. 95-103, 107-13. Administrative Law Judge (ALJ) Marie 8 Palachuk held a hearing on May 18, 2017 and heard testimony from Plaintiff, 9 medical expert Lynn Jahnke, M.D., and vocational expert Sharon F. Welter. Tr. 10 40-66. At the hearing, Plaintiff amended her date of onset to the date of 11 application, August 26, 2015. Tr. 45. The ALJ issued an unfavorable decision on 12 July 25, 2017. Tr. 20-31. The Appeals Council denied review on May 24, 2018. 13 Tr. 1-3. The ALJ’s July 25, 2017 decision became the final decision of the 14 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. §§ 15 405(g), 1383(c). Plaintiff filed this action for judicial review on July 17, 2018. 16 ECF Nos. 1, 4. 17 STATEMENT OF FACTS 18 The facts of the case are set forth in the administrative hearing transcript, the 19 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 20 here. 21 Plaintiff was 44 years old at the date of application. Tr. 169. She reported 22 that she completed one year of college in 2004. Tr. 210. Her reported work 23 history includes jobs in assembly, as a cashier, as a custodian and in customer 24 service. Tr. 192, 211. When applying for benefits Plaintiff reported that she 25 stopped working on January 1, 2004 because of her conditions. Tr. 210. 26 STANDARD OF REVIEW 27 The ALJ is responsible for determining credibility, resolving conflicts in 28 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 2 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 3 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 4 not supported by substantial evidence or if it is based on legal error. Tackett v. 5 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 6 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 7 another way, substantial evidence is such relevant evidence as a reasonable mind 8 might accept as adequate to support a conclusion. Richardson v. Perales, 402 9 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 10 interpretation, the court may not substitute its judgment for that of the ALJ. 11 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 12 findings, or if conflicting evidence supports a finding of either disability or non- 13 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 14 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 15 evidence will be set aside if the proper legal standards were not applied in 16 weighing the evidence and making the decision. Brawner v. Secretary of Health 17 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 18 SEQUENTIAL EVALUATION PROCESS 19 The Commissioner has established a five-step sequential evaluation process 20 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 21 v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of 22 proof rests upon the claimant to establish a prima facie case of entitlement to 23 disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the 24 claimant establishes that physical or mental impairments prevent her from 25 engaging in her previous occupations. 20 C.F.R. § 416.920(a)(4). If the claimant 26 cannot do her past relevant work, the ALJ proceeds to step five, and the burden 27 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 28 other work, and (2) the claimant can perform specific jobs which exist in the 1 national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 2 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the 3 national economy, she is found “disabled”. 20 C.F.R. § 416.920(a)(4)(v). 4 ADMINISTRATIVE DECISION 5 On July 25, 2017, the ALJ issued a decision finding Plaintiff was not 6 disabled as defined in the Social Security Act from August 26, 2015 through the 7 date of the decision. 8 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 9 activity since August 26, 2015, the date of application. Tr. 22. 10 At step two, the ALJ determined that Plaintiff had the following severe 11 impairment: degenerative disc disease of the lumbar spine. Tr. 22. 12 At step three, the ALJ found that Plaintiff did not have an impairment or 13 combination of impairments that met or medically equaled the severity of one of 14 the listed impairments. Tr. 23. 15 At step four, the ALJ assessed Plaintiff’s residual function capacity and 16 determined she could perform a range of sedentary work with the following 17 limitations:

18 Specifically, standing and walking are limited to one hour at a time and 19 for no more than four hours per day (which is actually less 20 limiting/restrictive than the requirements for sedentary work), and the claimant would need the ability to stand and stretch for approximately 21 one minute every hour, after which she would sit back down at her 22 workstation. Postural activities are limited to occasional except that the claimant cannot climb ladders, ropes, or scaffolds or crawl. In addition, 23 the claimant would need to avoid concentrated exposure to extreme 24 temperatures and industrial vibrations and all exposure to hazards. 25 Tr. 23. The ALJ identified Plaintiff’s past relevant work as housekeeping cleaner 26 and found that she could not perform this past relevant work. Tr. 29. 27 At step five, the ALJ determined that, considering Plaintiff’s age, education, 28 work experience and residual functional capacity, and based on the testimony of 1 the vocational expert, there were other jobs that exist in significant numbers in the 2 national economy Plaintiff could perform, including the jobs of call-out operator, 3 ticket seller, and sewing machine operator. Tr. 29-30. The ALJ concluded 4 Plaintiff was not under a disability within the meaning of the Social Security Act 5 from August 26, 2015, through the date of the ALJ’s decision. Tr. 30. 6 ISSUES 7 The question presented is whether substantial evidence supports the ALJ’s 8 decision denying benefits and, if so, whether that decision is based on proper legal 9 standards. Plaintiff contends the ALJ erred by failing to properly weigh Plaintiff’s 10 symptom statements and failing to properly weigh the medical opinions in the 11 record. ECF No. 13. Additionally, Plaintiff argues that these errors are harmful 12 and prays that the Court remand the matter for an immediate award of benefits. Id. 13 DISCUSSION 14 1. Plaintiff’s Symptom Statements 15 Plaintiff challenges the ALJ’s rejection of her symptom statements. ECF 16 No. 13 at 14-16. 17 It is generally the province of the ALJ to make determinations regarding the 18 reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 19 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 20 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 21 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 22 and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 23 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 24 rather the ALJ must identify what testimony is not credible and what evidence 25 undermines the claimant’s complaints.” Lester, 81 F.3d at 834. 26 The ALJ found Plaintiff’s statements concerning the intensity, persistence, 27 and limiting effects of her symptoms to be “not entirely consistent with the medical 28 evidence and other evidence in the record.” Tr. 24. Specifically, the ALJ found 1 that (1) “the objective medical evidence generally does not support the degree of 2 limitations alleged by the claimant”; (2) the “minimal/conservative treatment 3 during the period at issue and that the claimant appears to have responded 4 favorably to such treatment” was inconsistent with her alleged severity of 5 symptoms; (3) Plaintiff made inconsistent statements regarding her symptoms; and 6 (4) Plaintiff’s limited earnings history “demonstrates a lack of motivation or desire 7 to work.”. Tr. 24-27. 8 A. Objective Medical Evidence 9 The ALJ’s first reason for rejecting Plaintiff’s symptom statements, that they 10 were not supported by the objective medical evidence, is specific, clear and 11 convincing. 12 An ALJ may cite inconsistencies between a claimant’s testimony and the 13 objective medical evidence in discounting the claimant’s testimony. Bray v. 14 Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009). While it is a 15 “relevant factor in determining the severity of the claimant’s pain and its disabling 16 effects,” it cannot serve as the sole reason for rejecting a claimant’s symptom 17 statements. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); see also 18 Lester, 81 F.3d at 834 (an ALJ may not discredit the claimant’s testimony as to 19 subjective symptoms merely because they are unsupported by objective evidence). 20 Here, the ALJ provided multiple examples of how the objective medical 21 evidence did not support Plaintiff’s alleged severity of symptoms. Tr. 25 (the ALJ 22 found that while Plaintiff complained of worse symptoms on the left side, the 23 objective evidence demonstrated weakness and foot drop only being present on the 24 right side); Tr. 26 (the ALJ noted that electromyographic testing was non- 25 definitive as to the existence of radiculopathy and this was inconsistent with 26 Plaintiff’s allegation of being unable to engage in any work activity whatsoever); 27 Tr. 26 (imaging of Plaintiff’s sacroiliac joints in February of 2017 was normal 28 despite her complaints of pain in these joints). 1 Plaintiff did not challenge the ALJ’s examples of how the objective medical 2 evidence did not support Plaintiff’s symptom statements. Instead, she only 3 asserted that the Ninth Circuit precluded an ALJ from rejecting a claimant’s 4 testimony because it was not supported by the objective medical evidence and 5 cited three Ninth Circuit cases as support for her position. ECF No. 13 at 15. 6 However, Plaintiff failed to recognize that these cases highlighted that a claimant’s 7 symptom complaints could not be rejected solely because the statements were not 8 supported by objective medical evidence. See Robbins v. Soc. Sec. Admin, 466 9 F.3d 880, 883 (9th Cir. 2006) (“While an ALJ may find testimony not credible in 10 part or in whole, he or she may not disregard it solely because it is not 11 substantiated affirmatively by objective medical evidence.”); Oretza v. Shalala, 50 12 F.3d 748, 750 (9th Cir. 1995) (internal citations omitted) (“the ALJ may not 13 discredit a claimant’s testimony of pain and deny disability benefits solely because 14 the degree of pain alleged by the claimant is not supported by objective medical 15 evidence.”); Cotton v. Bowen, 799 F.2d, 1403, 1407 (9th Cir. 1986) (“is improper 16 as a matter of law for an ALJ to discredit excess pain testimony solely on the 17 ground that it is not fully corroborated by objective medical findings.)2. 18 Because the ALJ provided specific testimony that was undermined by 19 specific objective medical evidence and provided other legally sufficient reasons 20 for rejecting Plaintiff’s symptoms statements, see infra, this reason meets the 21 specific, clear and convincing standard. 22 B. Minimal/Conservative Treatment 23 The ALJ’s second reason for rejecting Plaintiff’s symptom statements, that 24

25 2While the standard set forth in Cotton was overruled in Burnnell v. Sullivan, 26 912 F.2d 1149, 1153-54 (9th Cir. 1990), a rehearing en banc by the 9th Cir. 27 established this to be the proper standard. Bunnell v. Sullivan, 947 F.2d 341, 342 28 (9th Cir. 1991). 1 the alleged severity was inconsistent with the minimal/conservative treatment and 2 the positive results of that conservative treatment, is specific, clear and convincing. 3 Conservative treatment can be “sufficient to discount a claimant’s testimony 4 regarding [the] severity of an impairment.” Parra v. Astrue, 481 F.3d 742, 751 5 (9th Cir. 2007). Here, the ALJ noted that despite Plaintiff’s complaints to 6 providers, she was consistently prescribed conservative treatment including ice, 7 anti-inflammatory medication, physical therapy, and possible injections. Tr. 25 8 citing Tr. 315-16. Additionally, the ALJ noted that records showed Plaintiff had 9 relief with this treatment, stating she was doing well with her home exercises and 10 feeling well until about 2 pm. Tr. 25 citing Tr. 356. Based on these records, the 11 ALJ concluded that “during the early part of the period at issue, indications are that 12 her symptoms were only intermittent in nature and not as severe as alleged by her 13 hearing testimony.” Tr. 25. The ALJ also relied upon the conservative treatment 14 recommended by specialist Christopher P. Hofstetter, M.D. in November of 2015. 15 Tr. 26 citing Tr. 331 (stating Plaintiff may benefit from a low dose of nonsteroidal 16 anti-inflammatory drugs and encouraged Plaintiff to pursue physical therapy). 17 Plaintiff argues that she “cannot be discredited for failing to pursue non- 18 conservative treatment options where none exist.” ECF No. 13 at 16 (quoting 19 Lapeirre-Gutt v. Astrue, 832 Fed. Appx. 662, 664 (9th Cir. 2010)). However, the 20 ALJ’s rationale exceeds a simple finding that she failed to seek more aggressive 21 treatment. Instead, the ALJ found that Plaintiff’s providers only prescribed 22 conservative treatment, and Plaintiff reported relief with this conservative 23 treatment. Tr. 25-26. Therefore, Plaintiff’s reliance on Lapeirre-Gutt, is 24 unpersuasive in this case. 25 C. Inconsistent Statements 26 The ALJ’s third reason for rejecting Plaintiff’s symptom statements, that she 27 made inconsistent statements regarding her alleged symptoms, is specific, clear 28 and convincing. 1 In determining a claimant’s credibility, the ALJ may consider “ordinary 2 techniques of credibility evaluation, such as the claimant’s reputation for lying, 3 prior inconsistent statements . . . and other testimony by the claimant that appears 4 less than candid.” Smolen, 80 F.3d at 1284. 5 Here, the ALJ noted that Plaintiff made inconsistent statements regarding 6 her symptoms to her providers. Specifically, the ALJ found that in September of 7 2016 Plaintiff reported that she was managing well with her conservative treatment 8 after completing her physical therapy. Tr. 26 citing Tr. 449. She then found that 9 this was inconsistent with Plaintiff’s April 2017 statement that Plaintiff had not 10 experienced improvement in her symptoms with her conservative treatment. Tr. 26 11 citing Tr. 444. 12 Plaintiff failed to challenge this reason. ECF No. 13 at 14-16. Therefore, 13 the Court is not required to address these reasons. See Carmickle v. Comm’r., Soc. 14 Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008). The Ninth Circuit explained 15 the necessity for providing specific argument:

16 The art of advocacy is not one of mystery. Our adversarial system relies 17 on the advocates to inform the discussion and raise the issues to the 18 court. Particularly on appeal, we have held firm against considering arguments that are not briefed. But the term “brief” in the appellate 19 context does not mean opaque nor is it an exercise in issue spotting. 20 However much we may importune lawyers to be brief and to get to the point, we have never suggested that they skip the substance of their 21 argument in order to do so. It is no accident that the Federal Rules of 22 Appellate Procedure require the opening brief to contain the “appellant’s contentions and the reasons for them, with citations to the 23 authorities and parts of the record on which the appellant relies.” Fed. 24 R. App. P. 28(a)(9)(A). We require contentions to be accompanied by 25 r easons. 26 27 28 1 Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003).3 2 Moreover, the Ninth Circuit has repeatedly admonished that the court will not 3 “manufacture arguments for an appellant” and therefore will not consider claims 4 that were not actually argued in appellant’s opening brief. Greenwood v. Fed. 5 Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). Because Plaintiff failed to 6 provide adequate briefing, the Court will not disturb the ALJ’s determination 7 regarding Plaintiff’s symptom statements. 8 D. Limited Work History 9 The ALJ’s fourth reason for rejecting Plaintiff’s symptom statements, that 10 her limited work history demonstrated a lack of motivation to work, is specific, 11 clear and convincing. 12 The Ninth Circuit has held that an ALJ’s finding that a claimant had limited 13 work history and “ha[d] shown little propensity to work in her lifetime” was a 14 specific, clear, and convincing reason for discounting the claimant’s testimony. 15 See Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 16 Here, the ALJ found that Plaintiff’s “earning record shows no work activity 17 since 2003 and no work at the level of substantial gainful activity since 2001.” Tr. 18 27 (citing Tr. 179-83, 185-86, 188-91). Plaintiff failed to challenge this reason in 19 her briefing. ECF Nos. 13, 16. Therefore, the Court will not disturb the ALJ’s 20 determination regarding Plaintiff’s symptom statements. See Carmickle, 533 F.3d 21 at 1163; Batson, 359 F.3d at 1197. 22 2. Medical Opinions 23 Plaintiff argues that the ALJ failed to properly consider and weigh the 24 medical opinions. ECF No. 13 at 17-18. However, Plaintiff’s argument consists of 25 an assertion that the ALJ based the unfavorable decision on the opinions of non- 26

27 3Under the current version of the Federal Rules of Appellate Procedure, the 28 appropriate citation would be to FED. R. APP. P. 28(a)(8)(A). 1 examining non-treating doctors, a recitation of caselaw, and the following 2 paragraph:

3 Since the treating and examining physicians’ opinions were not 4 contradicted there were no clear and convincing reasons to disregard 5 their opinions, the hypothetical question given to the VE should have included the findings of the doctors that have actually treated and 6 examined [Plaintiff]; this includes Jlyn Pritchard, MD and Lesley 7 Morical, ND. The treatment records support [Plaintiff]’s testimony that she suffers from severe disabling pain with significant daily limitations 8 9 o n activities. 10 Id. 11 First, the initial part of the above paragraph, “[s]ince the treating and 12 examining physicians’ opinions were not contradicted there were no clear and 13 convincing reasons to disregard their opinions,” misstates the Ninth Circuit 14 standard. The correct standard is set forth in Lester: If the opinion of a treating or 15 examining physician is uncontradicted, the ALJ is required to provide clear and 16 convincing reasons to reject the opinion. 81 F.3d at 830-31. 17 Second, an ALJ is not required to provide an explanation for accepting an 18 opinion but must provide an explanation for rejecting an opinion. S.S.R. 96-8p 19 (“The [residual functional capacity] assessment must always consider and address 20 medical source opinions. If the [residual functional capacity] assessment conflicts 21 with an opinion from a medical source, the adjudicator must explain why the 22 opinion was not adopted.”). Plaintiff failed to challenge the reasons the ALJ 23 provided for rejecting the opinions of Dr. Pritchard and Dr. Morical. 24 Without a specific argument addressing the ALJ’s reasons for rejecting a 25 provider’s opinion, the Court will not disturb the ALJ’s treatment of the medical 26 opinions. See Carmickle, 533 F.3d at 1161 n.2. Because Plaintiff failed to provide 27 adequate briefing, the court declines to consider this issue. 28 /// 1 CONCLUSION 2 Having reviewed the record and the ALJ’s findings, the Court finds the 3|| ALJ’s decision is supported by substantial evidence and free of harmful legal error. 4}| Accordingly, IT IS ORDERED: 5 1. Defendant’s Motion for Summary Judgment, ECF No. 15, is 6|| GRANTED. 7 2. Plaintiff’s Motion for Summary Judgment, ECF No. 13, 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 DATED August 6, 2019.

JOHNT.RODGERS 14 ” UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28