1 2 FILED IN THE 3 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 4 Jul 25, 2023 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 NORMAN S., No. 2:22-CV-00239-SAB 11 Plaintiff, 12 v. 13 COMMISSIONER OF SOCIAL ORDER AFFIRMING DECISION OF 14 SECURITY ADMINISTRATION, COMMISSIONER 15 Defendant. 16 17 Plaintiff brings this action seeking judicial review of the Commissioner of 18 Social Security’s final decision denying his application for social security benefits. 19 Plaintiff is represented by Chad L. Hatfield. The Commissioner is represented by 20 Franco Becia, Frederick Fripps, and Brian M. Donovan. Pending before the Court 21 are Plaintiff’s Opening Brief, ECF No. 18, the Commissioner’s Brief, ECF No. 20, 22 and Plaintiff’s Reply Brief, ECF No. 21. 23 After reviewing the administrative record, briefs filed by the parties, and 24 applicable case law, the Court is fully informed. For the reasons set forth below, 25 the Court affirms the Commissioner’s decision. 26 I. Jurisdiction 27 On May 24, 2018, Plaintiff filed an application for Title II disability 28 insurance benefits and application for Supplements Security Income, with the onset 1 date of March 2, 2017. Plaintiff’s applications were denied initially and on 2 reconsideration. Plaintiff requested a hearing before an ALJ. On January 24, 2021, 3 a hearing was held by telephone. Plaintiff participated and was represented by 4 Chad Hatfield. On July 14, 2021, the ALJ issued its decision finding that Plaintiff 5 was not disabled. 6 Plaintiff requested review by the Appeals Council, and the Appeals Council 7 denied the request on August 15, 2022. The Appeals Council’s denial of review 8 makes the ALJ’s decision the “final decision” of the Commissioner of Social 9 Security, which this Court is permitted to review. 42 U.S.C. § 405(g), 10 1383(c)(1)(3). Plaintiff filed a timely appeal on October 19, 2022. ECF No. 1. The 11 matter is before this Court pursuant to 42 U.S.C. § 405(g). 12 II. Five-Step Sequential Evaluation Process 13 The Social Security Act defines disability as the “inability to engage in any 14 substantial gainful activity by reason of any medically determinable physical or 15 mental impairment which can be expected to result in death or which has lasted or 16 can be expected to last for a continuous period of not less than twelve months.” 42 17 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be under 18 a disability only if their impairments are of such severity that the claimant is not 19 only unable to do their previous work, but cannot, considering claimant’s age, 20 education, and work experiences, engage in any other substantial gainful work that 21 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 22 Commissioner has established a five-step sequential evaluation process to 23 determine whether a person is disabled in the statute. See 20 C.F.R. 24 § 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v). 25 Step One: Is the claimant engaged in substantial gainful activities? Id. 26 § 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work done for 27 pay and requires compensation above the statutory minimum. Keyes v. Sullivan, 28 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in substantial 1 activity, benefits are denied. Id. § 404.1520(b), 416.920(b). If the claimant is not, 2 the ALJ proceeds to step two. 3 Step Two: Does the claimant have a medically-severe impairment or 4 combination of impairments? Id. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A severe 5 impairment is one that lasted or must be expected to last for at least 12 months and 6 must be proven through objective medical evidence. Id. §§ 404.1509, 416.909. If 7 the claimant does not have a severe impairment or combination of impairments, the 8 disability claim is denied. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 9 impairment is severe, the evaluation proceeds to the third step. 10 Step Three: Does the claimant’s impairment meet or equal one of the listed 11 impairments acknowledged by the Commissioner to be so severe as to preclude 12 substantial gainful activity? Id. § 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the 13 impairment meets or equals one of the listed impairments, the claimant is 14 conclusively presumed to be disabled. Id. § 404.1520(d), 416.920(d). If the 15 impairment is not one conclusively presumed to be disabling, the evaluation 16 proceeds to the fourth step. 17 Before proceeding to the fourth step, the ALJ must first determine the 18 claimant’s residual functional capacity (RFC). An individual’s residual functional 19 capacity is their ability to do physical and mental work activities on a sustained 20 basis despite limitations from their impairments. Id. § 404.1545(a)(1), 21 416.945(a)(1). The RFC is relevant to both the fourth and fifth steps of the 22 analysis. 23 Step Four: Does the impairment prevent the claimant from performing work 24 they have performed in the past? Id. § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 25 claimant is able to perform their previous work, they are not disabled. Id. 26 § 404.1520(f), 416.920(f). If the claimant cannot perform this work, the evaluation 27 proceeds to the fifth and final step. 28 Step Five: Is the claimant able to perform other work in the national 1 economy in view of their age, education, and work experience? Id. 2 § 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 3 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 4 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 5 establishes that a physical or mental impairment prevents him from engaging in her 6 previous occupation. Id. At step five, the burden shifts to the Commissioner to 7 show that the claimant can perform other substantial gainful activity. Id. 8 III. Standard of Review 9 The Commissioner’s determination will be set aside only when the ALJ’s 10 findings are based on legal error or are not supported by substantial evidence in the 11 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 12 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 13 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 14 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 15 evidence is “such relevant evidence as a reasonable mind might accept as adequate 16 to support a conclusion.” Richardson, 402 U.S. at 401. 17 A decision supported by substantial evidence will be set aside if the proper 18 legal standards were not applied in weighing the evidence and making the decision. 19 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 20 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 21 ultimate nondisability determination. Stout v.
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1 2 FILED IN THE 3 EASTERU N. S D. I SD TI RS IT CR TI C OT F C WO AU SR HT I NGTON 4 Jul 25, 2023 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 NORMAN S., No. 2:22-CV-00239-SAB 11 Plaintiff, 12 v. 13 COMMISSIONER OF SOCIAL ORDER AFFIRMING DECISION OF 14 SECURITY ADMINISTRATION, COMMISSIONER 15 Defendant. 16 17 Plaintiff brings this action seeking judicial review of the Commissioner of 18 Social Security’s final decision denying his application for social security benefits. 19 Plaintiff is represented by Chad L. Hatfield. The Commissioner is represented by 20 Franco Becia, Frederick Fripps, and Brian M. Donovan. Pending before the Court 21 are Plaintiff’s Opening Brief, ECF No. 18, the Commissioner’s Brief, ECF No. 20, 22 and Plaintiff’s Reply Brief, ECF No. 21. 23 After reviewing the administrative record, briefs filed by the parties, and 24 applicable case law, the Court is fully informed. For the reasons set forth below, 25 the Court affirms the Commissioner’s decision. 26 I. Jurisdiction 27 On May 24, 2018, Plaintiff filed an application for Title II disability 28 insurance benefits and application for Supplements Security Income, with the onset 1 date of March 2, 2017. Plaintiff’s applications were denied initially and on 2 reconsideration. Plaintiff requested a hearing before an ALJ. On January 24, 2021, 3 a hearing was held by telephone. Plaintiff participated and was represented by 4 Chad Hatfield. On July 14, 2021, the ALJ issued its decision finding that Plaintiff 5 was not disabled. 6 Plaintiff requested review by the Appeals Council, and the Appeals Council 7 denied the request on August 15, 2022. The Appeals Council’s denial of review 8 makes the ALJ’s decision the “final decision” of the Commissioner of Social 9 Security, which this Court is permitted to review. 42 U.S.C. § 405(g), 10 1383(c)(1)(3). Plaintiff filed a timely appeal on October 19, 2022. ECF No. 1. The 11 matter is before this Court pursuant to 42 U.S.C. § 405(g). 12 II. Five-Step Sequential Evaluation Process 13 The Social Security Act defines disability as the “inability to engage in any 14 substantial gainful activity by reason of any medically determinable physical or 15 mental impairment which can be expected to result in death or which has lasted or 16 can be expected to last for a continuous period of not less than twelve months.” 42 17 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be under 18 a disability only if their impairments are of such severity that the claimant is not 19 only unable to do their previous work, but cannot, considering claimant’s age, 20 education, and work experiences, engage in any other substantial gainful work that 21 exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). The 22 Commissioner has established a five-step sequential evaluation process to 23 determine whether a person is disabled in the statute. See 20 C.F.R. 24 § 404.1520(a)(4)(i)–(v), 416.920(a)(4)(i)–(v). 25 Step One: Is the claimant engaged in substantial gainful activities? Id. 26 § 404.1520(a)(4)(i), 416.920(a)(4)(i). Substantial gainful activity is work done for 27 pay and requires compensation above the statutory minimum. Keyes v. Sullivan, 28 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in substantial 1 activity, benefits are denied. Id. § 404.1520(b), 416.920(b). If the claimant is not, 2 the ALJ proceeds to step two. 3 Step Two: Does the claimant have a medically-severe impairment or 4 combination of impairments? Id. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). A severe 5 impairment is one that lasted or must be expected to last for at least 12 months and 6 must be proven through objective medical evidence. Id. §§ 404.1509, 416.909. If 7 the claimant does not have a severe impairment or combination of impairments, the 8 disability claim is denied. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 9 impairment is severe, the evaluation proceeds to the third step. 10 Step Three: Does the claimant’s impairment meet or equal one of the listed 11 impairments acknowledged by the Commissioner to be so severe as to preclude 12 substantial gainful activity? Id. § 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the 13 impairment meets or equals one of the listed impairments, the claimant is 14 conclusively presumed to be disabled. Id. § 404.1520(d), 416.920(d). If the 15 impairment is not one conclusively presumed to be disabling, the evaluation 16 proceeds to the fourth step. 17 Before proceeding to the fourth step, the ALJ must first determine the 18 claimant’s residual functional capacity (RFC). An individual’s residual functional 19 capacity is their ability to do physical and mental work activities on a sustained 20 basis despite limitations from their impairments. Id. § 404.1545(a)(1), 21 416.945(a)(1). The RFC is relevant to both the fourth and fifth steps of the 22 analysis. 23 Step Four: Does the impairment prevent the claimant from performing work 24 they have performed in the past? Id. § 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the 25 claimant is able to perform their previous work, they are not disabled. Id. 26 § 404.1520(f), 416.920(f). If the claimant cannot perform this work, the evaluation 27 proceeds to the fifth and final step. 28 Step Five: Is the claimant able to perform other work in the national 1 economy in view of their age, education, and work experience? Id. 2 § 404.1520(a)(4)(v), 416.920(a)(4)(v). The initial burden of proof rests upon the 3 claimant to establish a prima facie case of entitlement to disability benefits. Tackett 4 v. Apfel, 108 F.3d 1094, 1098 (9th Cir. 1999). This burden is met once a claimant 5 establishes that a physical or mental impairment prevents him from engaging in her 6 previous occupation. Id. At step five, the burden shifts to the Commissioner to 7 show that the claimant can perform other substantial gainful activity. Id. 8 III. Standard of Review 9 The Commissioner’s determination will be set aside only when the ALJ’s 10 findings are based on legal error or are not supported by substantial evidence in the 11 record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) (citing 12 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 13 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance,” 14 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975). Substantial 15 evidence is “such relevant evidence as a reasonable mind might accept as adequate 16 to support a conclusion.” Richardson, 402 U.S. at 401. 17 A decision supported by substantial evidence will be set aside if the proper 18 legal standards were not applied in weighing the evidence and making the decision. 19 Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th Cir. 1988). 20 An ALJ is allowed “inconsequential” errors as long as they are immaterial to the 21 ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 22 1050, 1055 (9th Cir. 2006). The court must uphold the ALJ’s denial of benefits if 23 the evidence is susceptible to more than one rational interpretation, one of which 24 supports the decision of the administrative law judge. Batson v. Barnhart, 359 F.3d 25 1190, 1193 (9th Cir. 2004). It “must consider the entire record as a whole, 26 weighing both the evidence that supports and the evidence that detracts from the 27 Commissioner’s conclusion, and may not affirm simply by isolating a specific 28 quantum of supporting evidence.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 1 2017) (quotation omitted). “If the evidence can support either outcome, the court 2 may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 3 IV. Statement of Facts 4 The facts have been presented in the administrative record, the ALJ’s 5 decision, and the briefs to this Court. Only the most relevant facts are summarized 6 here. 7 At the time of the hearing, Plaintiff was 58 years old. He was living with his 8 wife, who was on disability for mental health issues. He owns a tow truck business, 9 which he has been working with his daughter and son-in-law to take over. Plaintiff 10 continues to help at the business, filling out paperwork, ordering supplies, 11 answering the phone, interacting with customers, and occasionally driving a tow 12 truck. 13 He earned a B.A. in Business Administration and has training in criminal 14 justice. He is obese and suffers from diabetes. He complains of lower back, 15 shoulder, and neck pain, as well as depression and PTSD. 16 V. The ALJ’s Findings 17 The ALJ issued an opinion affirming denial of benefits. AR 23-36. The ALJ 18 found overcame the presumptions addressed in Chavez v. Bowen, 844 F.2d 691 19 (9th Cir. 1988), due to changed circumstances. AR 24. 20 At step one, the ALJ found that Plaintiff has not engaged in substantial 21 gainful activity since March 2, 2017, the alleged onset date. AR 26. 22 At step two, the ALJ identified the following severe impairments: cervical 23 spondylosis/degenerative disc disease and radicular symptoms; chronic left 24 shoulder pain greater on the right; bilateral carpal and cubital tunnel syndrome; 25 type 2 diabetes mellitus; hypertension; and obesity. AR 27. 26 At step three, the ALJ found that Plaintiff did not have an impairment or 27 combination of impairments that meets or medically equals the severity of one of 28 the listed impairments. AR 30. 1 The ALJ concluded that Plaintiff has an RFC to perform:
2 medium work as defined in 20 CFR 404.1567(c) and 416.967(c) with 3 certain exceptions. Specifically, climbing, balancing, stooping, kneeling, crouching, and crawling must be limited to occasionally 4 while overhead reaching and handling with the bilateral upper 5 extremities must be limited to frequently. AR 31. 6 At step four, the ALJ found that Plaintiff was capable of performing past 7 relevant work of a composite job consisting of being a tow truck driver, 8 automobile mechanic and general office clerk. AR 35. 9 Consequently, the ALJ found that Plaintiff was not disabled. 10 VI. Discussion 11 A. Step Two Analysis 12 Plaintiff asserts the ALJ erred in the Step Two analysis by failing to find that 13 his mental impairments were not severe. Specifically, the ALJ concluded that 14 Plaintiff’s major depressive disorder and PTSD did not cause more than minimal 15 limitation in Plaintiff’s residual function ability to perform basic mental work 16 activities. 17 The ALJ reviewed the record and concluded that Plaintiff possessed no more 18 than mild mental limitations. Based on this review, it was reasonable that the ALJ 19 found that his mental health symptoms do not limit Plaintiff’s ability to perform 20 basic work activities beyond the residual functional capacity addressed in its 21 decision. There is little evidence in the record beyond his own testimony and a few 22 incidents in the record to support that he is unable to work because of his mental 23 conditions. Instead, the record demonstrates that Plaintiff answers phones, interacts 24 with customers, spends time at the restaurant near his house and goes out on calls 25 with the tow trucks, all of which indicate that Plaintiff’s mental impairments do not 26 limit his ability to perform basic work activities. As such, the ALJ’s step two 27 analysis is supported by substantial evidence. 28 1 B. Evaluation of Plaintiff’s Subjective Complaints 2 Plaintiff argues the ALJ erred in discounting his subjective symptoms 3 testimony. 4 In determining whether a claimant’s testimony regarding subjective pain or 5 symptoms is credible, the ALJ engages in a two-step analysis. Garrison, 759 F.3d 6 at 1014. “First, the ALJ must determine whether the claimant has presented 7 objective medical evidence of an underlying impairment which could reasonably 8 be expected to produce the pain or other symptoms alleged.” Id. (citation and 9 quotation omitted). If the claimant satisfies the first step of the analysis, and there 10 is no evidence of malingering, the ALJ can reject the claimant’s testimony about 11 the severity of their symptoms “only by offering specific, clear and convincing 12 reasons for doing so.” Id. (citation and quotation omitted). “This is not an easy 13 requirement to meet: The clear and convincing standard is the most demanding 14 required in Social Security cases.” Id. (citation and quotation omitted). That said, if 15 the ALJ’s credibility finding is supported by substantial evidence in the record, the 16 Court may not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 17 (9th Cir. 2002). 18 Here, the ALJ reasonably evaluated Plaintiff’s subjective symptom 19 testimony. The ALJ provided clear and convincing reasons for finding that 20 Plaintiff’s testimony regarding his limitations was not entirely credible. The ALJ 21 noted that Plaintiff’s complaints were inconsistent with the medical evidence. The 22 ALJ also noted that Plaintiff’s activities were not consistent with his testimony that 23 he could not work. Most important, even with the symptoms that Plaintiff 24 experienced, he was able to work for his tow truck business, including answering 25 phones, ordering supplies, completing paperwork and occasionally driving tow 26 trucks. He also worked on cars in his spare time and worked out at the gym. These 27 activities cast significant doubt over his claims that he is unable to work due to his 28 impairments. Substantial evidence supports the ALJ’s evaluation of Plaintiff’s 1 symptom testimony. 2 C. Evaluation of the Medical Opinion Evidence 3 In evaluating medical opinion evidence, the ALJ considers the 4 persuasiveness of each medical opinion and prior administrative medical finding 5 from medical sources. 20 C.F.R. § 416.920c(a), (b). The ALJ is required to 6 consider multiple factors, including supportability, consistency, the source’s 7 relationship with the claimant, any specialization of the source, and other factors 8 (such as the source’s familiarity with other evidence in the file or an understanding 9 of Social Security's disability program). Id. § 416.920c(c)(1)–(5). Supportability 10 and consistency of an opinion are the most important factors, and the ALJ must 11 articulate how they considered those factors in determining the persuasiveness of 12 each medical opinion or prior administrative medical finding. Id. § 416.920c(b)(2). 13 The ALJ may explain how they considered the other factors, but is not required to 14 do so, except in cases where two or more opinions are equally well-supported and 15 consistent with the record. Id. 16 Supportability and consistency are further explained in the regulations: 17 (1) Supportability. The more relevant the objective medical evidence and supporting 18 explanations presented by a medical source are to support his or her medical 19 opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 20 (2) Consistency. 21 The more consistent a medical opinion(s) or prior administrative medical 22 finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior 23 administrative medical finding(s) will be. 24 Id. §§ 404.1520c(c); 416.920c(c). 25 Plaintiff argues the ALJ erred in rejecting Dr. Fitterer’s opinion what 26 limited Plaintiff to less than a full range of light work. 27 The ALJ found that Dr. Platter’s opinion, limiting Plaintiff to less than a full 28 1 range of medium work, to be more persuasive, relying on the record that indicated 2 Plaintiff continued to work in his tow truck business, occasionally drive a tow 3 truck, service his car, and exercise at the gym. 4 The ALJ’s evaluation of Dr. Fitterer’s and Dr. Platter’s opinion is supported 5 by substantial evidence. Dr. Platter’s opinion is more supported and more 6 consistent with the record and therefore, the ALJ is entitled to find it is more 7 persuasive. 8 D. Lay Witness Testimony 9 The ALJ did not address Plaintiff’s wife’s testimony. However, the ALJ is 10 not required to do so. Plaintiff’s wife did not provide any additional evidence that 11 was not considered as part of Plaintiff’s own testimony. Given that it was 12 reasonable to view Plaintiff’s symptom testimony as unreliable, it was not 13 necessary for the ALJ to address the wife’s testimony. 14 E. Step Four Findings 15 The ALJ’s Step Four Findings are supported by substantial evidence. Based 16 on the hypothetical given to the vocational expert, it is clear that Plaintiff could 17 perform past work as a general office clerk, and in fact, is performing work as an 18 office clerk. Also, it is clear from the record that Plaintiff is capable of performing 19 less than a full range of medium work, so the ALJ’s conclusion that he is able to 20 perform the other components of the composite job of tow truck driver and 21 automobile mechanic is also supported by substantial evidence in the record. 22 VII. Conclusion 23 The ALJ’s decision is supported by substantial evidence the decision is free 24 of harmful error. As such, the Court affirms the Commissioner’s decision. 25 Accordingly, IT IS HEREBY ORDERED: 26 1. For docket purposes, Plaintiff’s Opening Brief, ECF No. 18, and 27 Reply Brief, ECF No. 21, are DENIED. 28 2. For docket purposes, the Commissioner’s Response Brief, ECF No. 20, GRANTED. 3. The decision of the Commissioner is AFFIRMED. 3 4. Judgment shall be entered in favor of Defendant and against Plaintiff. IT ISSO ORDERED. The District Court Executive is hereby directed to fil 5|| this Order, provide copies to counsel, and close the file. DATED this 25th day of July 2023.
8 9 10 □ Souler Feathar 12 Stanley A. Bastian 13 Chief United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER AFFIRMING DECISION OF COMMISSIONER ~ 10