Turner v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: January 8, 2020
• Docket: 3:19-cv-05500
• Status: Unknown

Opinion

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 DENNIS T., 8 Plaintiff, Case No. C19-5500 RAJ 9 v. ORDER AFFIRMING THE 10 COMMISSIONER’S FINAL 11 COMMISSIONER OF SOCIAL DECISION AND DISMISSING SECURITY, THE CASE WITH PREJUDICE 12 Defendant. 13 Plaintiff seeks review of the denial of his applications for supplemental security 14 income and disability insurance benefits. Plaintiff contends the Administrative Law 15 Judge (“ALJ”) erred by (1) failing to fully accept any of the medical opinions in the 16 record, and therefore basing the physical limitations of Plaintiff’s residual functional 17 capacity (“RFC”) on the ALJ’s own lay medical opinions, and (2) rejecting the opinions 18 19 of examining doctor Jai Ghandi, M.D. Pl. Op. Br. (Dkt. 10) at 1. As discussed below, 20 the Court AFFIRMS the final decision of the Commissioner of Social Security 21 (“Commissioner”) and DISMISSES this case with prejudice. 22 BACKGROUND 23 Plaintiff is 43 years old, has a master’s degree, and has worked as a case manager, 1 and customer service relations analyst, among other things. See Admin. Record (“AR”) 2 39, 47-48, 78. Plaintiff applied for disability insurance benefits on January 23, 2016, and 3 supplemental security income benefits on July 20, 2016, alleging disability as of July 24, 4 2014. AR 78, 95, 213-14, 217-23. Plaintiff later amended the alleged onset date to 5 November 15, 2015. AR 47. Plaintiff’s applications were denied initially and on 6 reconsideration. AR 77-121. After the ALJ conducted a hearing on November 16, 2017, 7 the ALJ issued a decision finding Plaintiff not disabled. AR 15-24. 8 THE ALJ’S DECISION 9 Utilizing the five-step disability evaluation process,1 the ALJ found: 10

Step one: Plaintiff has not engaged in substantial gainful activity since November 11 15, 2015, the amended alleged onset date. 12 Step two: Plaintiff has the following severe impairments: Degenerative disc 13 disease, status post-surgery; lumbar post-laminectomy syndrome with stenosis and radiculopathy; degenerative joint disease of the hips, right greater than left and 14 reportedly status post-replacement after Plaintiff’s date last insured; and obesity.

15 Step three: These impairments do not meet or equal the requirements of a listed impairment.2 16 RFC: Plaintiff can perform sedentary work as defined in 20 C.F.R. §§ 17 404.1567(a) and 416.967(a), with additional limitations. He can never climb ladders, ropes, or scaffolds. He can occasionally climb ramps and stairs. He can 18 occasionally balance, stoop, kneel, crouch, and crawl. He can have occasional 19 exposure to vibrations and hazards such as heights and machinery.

20 Step four: Plaintiff is capable of performing past relevant work as a telephone solicitor. This work does not require the performance of work-related activities 21 precluded by Plaintiff’s RFC.

23 1 20 C.F.R. §§ 404.1520, 416.920. 2 20 C.F.R. Part 404, Subpart P, Appendix 1. 1 Step five: Plaintiff is capable of performing other jobs existing in significant numbers in the national economy, such as document preparer, bench hand, and 2 food and beverage order clerk. Plaintiff is therefore not disabled.

3 AR 15-24. The Appeals Council denied Plaintiff’s request for review, making the ALJ’s 4 decision the Commissioner’s final decision. AR 1-3. 5 DISCUSSION 6 This Court may set aside the Commissioner’s denial of Social Security benefits 7 only if the ALJ’s decision is based on legal error or not supported by substantial evidence 8 in the record as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). Each of 9 an ALJ’s findings must be supported by substantial evidence. Reddick v. Chater, 157 10 F.3d 715, 721 (9th Cir. 1998). “Substantial evidence” is more than a scintilla, less than a 11 12 preponderance, and is such relevant evidence as a reasonable mind might accept as 13 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); 14 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The ALJ is responsible for 15 evaluating evidence, resolving conflicts in medical testimony, and resolving any other 16 ambiguities that might exist. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 17 While the Court is required to examine the record as a whole, it may neither reweigh the 18 evidence nor substitute its judgment for that of the ALJ. Thomas v. Barnhart, 278 F.3d 19 947, 954, 957 (9th Cir. 2002). When the evidence is susceptible to more than one 20 interpretation, the ALJ’s interpretation must be upheld if rational. Burch v. Barnhart, 21 400 F.3d 676, 680-81 (9th Cir. 2005). This Court “may not reverse an ALJ’s decision on 22 account of an error that is harmless.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 23 1 2012). 2 A. The ALJ Did Not Harmfully Err in Formulating the Physical RFC 3 Plaintiff argues the ALJ did not fully accept any of the medical opinions in the 4 record, and therefore erred by basing the physical portions of Plaintiff’s RFC on the 5 ALJ’s own lay medical opinions. Pl. Op. Br. at 2-3. Plaintiff bears the burden of 6 showing harmful error, and he has failed to meet that burden. See Ludwig v. Astrue, 681 7 F.3d 1047, 1054 (9th Cir. 2012) (citing Shinseki v. Sanders, 556 U.S. 396, 407-09 (2009)) 8 (holding that the party challenging an administrative decision bears the burden of proving 9 harmful error). 10 Plaintiff first asserts the ALJ erred in rejecting the opinions of Donald Baumer, 11 12 ARNP. Id. But Plaintiff has made almost no substantive arguments on this issue. Mr. 13 Baumer responded to a series of written questions from Plaintiff’s counsel. See AR 777- 14 78. Mr. Baumer opined that Plaintiff would have needed to recline for one hour a day in 15 2014, and three hours a day in 2017. AR 778. Mr. Baumer opined that Plaintiff would 16 miss three or more days of work per month due to acute-to-chronic exacerbations of his 17 pain, which require one to three recovery days and occur as many as four times a month. 18 Id. The ALJ gave Mr. Baumer’s opinions little weight. AR 22. The ALJ reasoned that 19 the opinions “lack[ed] adequate explanation or citation to objective evidence.” Id. The 20 ALJ further reasoned that Mr. Baumer was not an acceptable medical source, and his 21 opinions were inconsistent with those of Drew Stevick, M.D.,3 who reviewed most of the 22 23 3 The ALJ did not refer to Dr. Stevick by name, but instead referred to “DDS,” an 1 record. Id. 2 Plaintiff has not challenged the ALJ’s first reason for rejecting Mr. Baumer’s 3 opinions, but has instead simply argued that the ALJ was “incorrect” in finding that Mr. 4 Baumer’s opinions were inconsistent with those of Dr. Stevick. See Pl. Op. Br. at 3. It is 5 not enough merely to present an argument in the skimpiest way, and leave the Court to do 6 counsel’s work by framing the argument and putting flesh on its bones through a 7 discussion of the applicable law and facts. See Indep. Towers of Wash. v. Wash., 350 F.3d 8 925, 929 (9th Cir. 2003). Moreover, the ALJ reasonably found Dr. Stevick’s opinions 9 inconsistent with Mr. Baumer’s opinions. See AR 22. Implicit in Dr. Stevick’s opinions 10 is that Plaintiff’s absenteeism and productivity due to his impairments would be no 11 12 greater than that tolerated in competitive employment, which is inconsistent with Mr. 13 Baumer’s opinions those issues. See AR 102-04, 116-18. Plaintiff has thus failed to 14 show that the ALJ erred in rejecting Mr. Baumer’s opinions on this basis. 15 Plaintiff has further failed to show that any error in rejecting Mr. Baumer’s 16 opinions as inconsistent with Dr. Stevick’s opinions was harmful. The ALJ gave another 17 reason for rejecting Mr. Baumer’s opinions—that they lacked adequate explanation or 18 citation to objective evidence—and Plaintiff has made no argument showing that this 19

20 abbreviation sometimes used for providers who review a claimant’s records as part of the Social Security Administration’s initial review and reconsideration. Dr. Stevick was the only doctor 21 who opined as to Plaintiff’s physical capacities as part of these reviews, so the Court infers this is who the ALJ was referring to. See AR 78-121. Charlie Bennett, the single decision maker who 22 conducted the initial review of Plaintiff’s claim, also opined as to Plaintiff’s physical capacities. See AR 78-91. But per the Program Operations Manual System (“POMS”), DI 24510.050C, 23 available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510050, this is not opinion evidence. 1 reason was erroneous. Where an ALJ gives erroneous and non-erroneous reasons for 2 rejecting evidence, the ALJ’s “error is harmless so long as there remains substantial 3 evidence supporting the ALJ’s decision and the error ‘does not negate the validity of the 4 ALJ’s ultimate conclusion.’” Molina, 674 F.3d at 1115 (quoting Batson v. Comm’r of 5 Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). Plaintiff has not shown that the 6 ALJ’s rejection of Mr. Baumer’s opinions as inadequately explained or supported was 7 erroneous, and has thus not shown harmful error. 8 Plaintiff next argues the ALJ did not fully accept the only other medical opinion in 9 the record regarding Plaintiff’s physical limitations—that of Dr. Stevick—so the ALJ 10 must have substituted his own medical opinion in formulating the RFC. Plaintiff’s 11 12 argument fails for two reasons. First, the ALJ’s RFC is more restrictive than that of Dr. 13 Stevick, yet the ALJ still identified jobs Plaintiff could perform considering those 14 limitations. See AR 19, 21-23. Thus, any error was inconsequential to the disability 15 determination, and therefore harmless. See Molina, 675 F.3d at 1115. 16 Second, the ALJ is not required to accept in full any medical opinions to formulate 17 the RFC. He must instead consider all of the evidence, which includes medical opinions, 18 but also includes treatment records, the claimant’s testimony, lay witness statements, and 19 other non-medical considerations, such as the claimant’s daily activities. See 20 C.F.R. § 20 404.1545(a)(3); Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006); SSR 96- 21 8p, 1996 WL 374184, at *5 (July 2, 1996) (stating that the “RFC assessment must be 22 based on all of the relevant evidence in the case record, such as: [m]edical history, 23 1 [m]edical signs and laboratory findings, . . . [r]eports of daily activities, [l]ay evidence, 2 [r]ecorded observations, [and] [m]edical source statements”). The ALJ must then 3 translate all of this evidence into a succinct RFC. See Rounds v. Comm’r Soc. Sec. 4 Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (citing Stubbs-Danielson v. Astrue, 539 F.3d 5 1169, 1174 (9th Cir. 2008)). The RFC is not a purely medical determination, and thus the 6 ALJ did not harmfully err in formulating an RFC based on the sum of the evidence rather 7 than a particular medical opinion. 8 B. The ALJ Did Not Harmfully Err in Rejecting Dr. Ghandi’s Opinions 9 Plaintiff argues the ALJ erred in rejecting the opinions of examining psychiatrist 10 Dr. Ghandi. Pl. Op. Br. at 4. An ALJ may rejected the contradicted4 opinions of an 11 12 examining doctor by providing “specific and legitimate reasons” supported by substantial 13 evidence in the record. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995) (citing 14 Andrews, 53 F.3d at 1043). The ALJ met this standard. 15 Dr. Ghandi examined Plaintiff on May 14, 2016. See AR 557-63. Dr. Ghandi 16 reviewed Plaintiff’s medical records, conducted a clinical interview, and performed a 17 mental status examination. See id. Based on this information, Dr. Ghandi opined that 18 Plaintiff was impaired in his ability to perform simple and repetitive, or complex and 19 detailed tasks. AR 561. Dr. Ghandi opined that Plaintiff was impaired in his ability to 20 maintain pace, maintain attendance, interact with the public and coworkers, and adapt to 21 22

23 4 Dr. Ghandi’s opinions were contradicted by the opinions of consulting doctors Jan Lewis, Ph.D., and Diane Fligstein, Ph.D. See AR 87-89, 100-01. 1 normal workplace stress due to the level of pain he was experiencing. AR 562. 2 The ALJ gave Dr. Ghandi’s opinions little weight. AR 21. The ALJ reasoned that 3 Dr. Ghandi’s opinions were based on Plaintiff’s pain complaints, but “in this case 4 [Plaintiff’s] pain is directly related to a physical impairment and not a mental health 5 impairment and thus is not adequate grounds upon which to limit [Plaintiff’s] mental 6 function.” Id. The ALJ also reasoned that Dr. Ghandi’s opinions were inconsistent with 7 Plaintiff’s presentation on examination, which showed normal functioning. Id. 8 The ALJ’s first reason for rejecting Dr. Ghandi’s opinions fails, but the second 9 reason withstands scrutiny. Physical impairments causing pain can affect a claimant’s 10 mental functioning, regardless of whether a mental diagnosis exists. Cf. 20 C.F.R. § 11 12 404.1545(a)(1) (“Your impairment(s), and any related symptoms, such as pain, may 13 cause physical and mental limitations that affect what you can do in a work setting. Your 14 residual functional capacity is the most you can still do despite your limitations.”). The 15 ALJ erred in drawing an arbitrary line between physical and mental limitations. 16 The ALJ did not err in rejecting Dr. Ghandi’s opinions as inconsistent with his 17 examination of Plaintiff. An ALJ may discount a doctor’s opinions when they are 18 inconsistent with or unsupported by the doctor’s own clinical findings. See Tommasetti 19 v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). As the ALJ noted, Plaintiff’s mental 20 status exam produced almost entirely normal results, including good performance in 21 orientation, memory, fund of knowledge, concentration, abstract thinking, insight, and 22 judgment. See AR 21, 560-61. 23 1 Because the ALJ reasonably rejected Dr. Ghandi’s opinions as inconsistent with 2 his examination, the ALJ’s error in rejecting Dr. Ghandi’s opinions based on a 3 delineation between physical and mental limitations due to pain was harmless. See 4 Molina, 674 F.3d at 1115. 5 CONCLUSION 6 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and 7 this case is DISMISSED with prejudice. 8 DATED this 8th day of January, 2020. 9 A 10 11 The Honorable Richard A. Jones 12 United States District Judge

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