Adams v. Colvin, No. 1:2014cv03175 - Document 23 (E.D. Wash. 2015)
Court Description: ORDER GRANTING ECF No. 21 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; Denying ECF No. 16 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge James P. Hutton. (TR, Case Administrator)
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Adams v. Colvin Doc. 23 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 Nov 18, 2015 SEAN F. MCAVOY, CLERK 4 5 6 7 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 8 Case No. 1:14-cv-03175-JPH 9 10 MARK ADAMS, 11 Plaintiff, 12 vs. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 BEFORE THE COURT are cross-motions for summary judgment. ECF No. 17 16, 21. Attorney D. James Tree represents plaintiff (Adams). Special Assistant 18 United States Attorney L. Jamala Edwards represents defendant (Commissioner). 19 The parties consented to proceed before a magistrate judge. ECF No. 8. After 20 reviewing the administrative record and the briefs filed by the parties, the court ORDER ~ 1 Dockets.Justia.com 1 grants defendant’s motion for summary judgment, ECF No. 21. 2 JURISDICTION 3 Adams protectively applied for supplemental security income disability 4 benefits (SSI) on July 22, 2011, alleging onset as of February 8, 2007 (Tr. 149-157). 5 [He amended the date of onset at the hearing to the protective filing date, July 22, 6 2011. Tr. 43, 167.] The claim was denied initially and on reconsideration (Tr. 88-91, 7 93-95, 99-100, 103-04). Administrative Law Judge (ALJ) Riley J. Atkins held a 8 hearing April 15, 2013. Adams, represented by counsel, and a vocational expert 9 testified (Tr. 39-56). On April 25, 2103, the ALJ issued an unfavorable decision (Tr. 10 20-34). The Appeals Council denied review September 22, 2014 (Tr. 1-5), making 11 the ALJ’s decision final. On March 25, 2014 Adams filed this appeal pursuant to 42 12 U.S.C. §§ 405(g). ECF No. 1, 4. 13 STATEMENT OF FACTS 14 The facts have been presented in the administrative hearing transcript, the 15 ALJ’s decision and the parties’ briefs. They are only briefly summarized here and 16 throughout this order as necessary to explain the Court’s decision. 17 Adams was 43 years old when he applied for benefits and 49 at the hearing. 18 He graduated from high school and has taken college classes, but he has not earned a 19 degree. He has worked as a security guard, construction laborer, and cashier. He last 20 worked in 2006 and lives alone. Activities include reading, watching television and ORDER ~ 2 1 using a computer. Adams alleges physical and mental limitations (Tr. 44, 46, 171, 2 302). 3 SEQUENTIAL EVALUATION PROCESS 4 The Social Security Act (the Act) defines disability as the “inability to engage 5 in any substantial gainful activity by reason of any medically determinable physical 6 or mental impairment which can be expected to result in death or which has lasted or 7 can be expected to last for a continuous period of not less than twelve months.” 42 8 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a plaintiff shall 9 be determined to be under a disability only if any impairments are of such severity 10 that a plaintiff is not only unable to do previous work but cannot, considering 11 plaintiff’s age, education and work experiences, engage in any other substantial 12 work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 13 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 14 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 15 The Commissioner has established a five-step sequential evaluation process 16 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 17 one determines if the person is engaged in substantial gainful activities. If so, 18 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 19 decision maker proceeds to step two, which determines whether plaintiff has a 20 medially severe impairment or combination of impairments. 20 C.F.R. §§ ORDER ~ 3 1 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 2 If plaintiff does not have a severe impairment or combination of impairments, 3 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 4 the third step, which compares plaintiff’s impairment with a number of listed 5 impairments acknowledged by the Commissioner to be so severe as to preclude 6 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 7 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 8 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 9 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 10 step, which determines whether the impairment prevents plaintiff from performing 11 work which was performed in the past. If a plaintiff is able to perform previous work 12 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 13 416.920(a)(4)(iv). At this step, plaintiff’s residual functional capacity (RFC) is 14 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 15 the process determines whether plaintiff is able to perform other work in the national 16 economy in view of plaintiff’s residual functional capacity, age, education and past 17 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 18 Yuckert, 482 U.S. 137 (1987). 19 The initial burden of proof rests upon plaintiff to establish a prima facie case 20 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. ORDER ~ 4 1 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 2 met once plaintiff establishes that a mental or physical impairment prevents the 3 performance of previous work. The burden then shifts, at step five, to the 4 Commissioner to show that (1) plaintiff can perform other substantial gainful 5 activity and (2) a “significant number of jobs exist in the national economy” which 6 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 7 STANDARD OF REVIEW 8 Congress has provided a limited scope of judicial review of a Commissioner’s 9 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 10 made through an ALJ, when the determination is not based on legal error and is 11 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 12 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “The [Commissioner’s] 13 determination that a plaintiff is not disabled will be upheld if the findings of fact are 14 supported by substantial evidence.” Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 15 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 16 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 17 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 18 Substantial evidence “means such evidence as a reasonable mind might accept as 19 adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 20 (1971)(citations omitted). “[S]uch inferences and conclusions as the [Commissioner] ORDER ~ 5 1 may reasonably draw from the evidence” will also be upheld. Mark v. Celebreeze, 2 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 3 whole, not just the evidence supporting the decision of the Commissioner. Weetman 4 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 5 526 (9th Cir. 1980)). 6 It is the role of the trier of fact, not this Court, to resolve conflicts in evidence. 7 Richardson, 402 U.S. at 400. If evidence supports more than one rational 8 interpretation, the Court may not substitute its judgment for that of the 9 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 10 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 11 set aside if the proper legal standards were not applied in weighing the evidence and 12 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 13 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 14 administrative findings, or if there is conflicting evidence that will support a finding 15 of either disability or nondisability, the finding of the Commissioner is conclusive. 16 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 17 ALJ’S FINDINGS 18 At step one the ALJ found Adams did not work at SGA levels after he applied 19 for benefits (Tr. 22). At steps two and three, he found Adams suffers from morbid 20 obesity, back pain and depression, impairments that are severe but do not meet or ORDER ~ 6 1 medically equal a Listed impairment (Tr. 22-23). The ALJ found Adams less than 2 fully credible (Tr. 25). He found Adams is able to perform a range of light work (Tr. 3 24). At step four, relying on a vocational expert, ALJ Atkins found Adams is unable 4 to perform his past relevant work (Tr. 33). At step five, again relying on a VE, the 5 ALJ found Adams can perform other jobs, such as assembly worker and 6 packager/sorter. Accordingly, the ALJ found Adams is not disabled as defined by 7 the Act (Tr. 34). 8 ISSUES 9 Adams alleges the ALJ erred when he evaluated the medical evidence and 10 credibility. ECF No. 16 at 5. The Commissioner responds that the ALJ’s findings are 11 factually supported and free of harmful legal error. She asks the court to affirm. ECF 12 No. 21 at 3. 13 DISCUSSION 14 A. Credibility 15 Adams alleges the ALJ’s credibility assessment is not properly supported. 16 ECF No. 16 at 23-25. 17 When presented with conflicting medical opinions, the ALJ must determine 18 credibility and resolve the conflict. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 19 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s credibility findings must be 20 supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th ORDER ~ 7 1 Cir. 1990). Absent affirmative evidence of malingering, the ALJ’s reasons for 2 rejecting the claimant’s testimony must be “clear and convincing.” Lester v. Chater, 3 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: rather the ALJ 4 must identify what testimony is not credible and what evidence undermines the 5 claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 6 (9th Cir. 1993). 7 The ALJ’s finding is fully supported. 8 Plaintiff has received conservative treatment. Medical evidence contradicts 9 claimed disabling limitations. Plaintiff has failed to follow medical treatment 10 without adequate explanation (Tr. 25). 11 Adams alleged he is unable to work because of high blood pressure, major 12 depression, back injury, sleep apnea, memory problems, two separate head injuries, 13 insomnia, constant ringing in the ears, problems concentrating and anxiety around 14 large groups of people (Tr. 171). With respect to back pain, the ALJ is correct that 15 treating sources recommended conservative treatment. No medication is prescribed 16 for back pain (Tr. 25, 287). Treating doctor Christopher Samuels, M.D., opined 17 several times Plaintiff is not disabled and can work (Tr. 263, 269, 453). Plaintiff 18 failed to take medication for high blood pressure daily as prescribed, without 19 adequate explanation (Tr. 266--no explanation; 269--no explanation; 271-- 20 “forgetting”; 279-- “only missed a couple of days of his meds”). ORDER ~ 8 1 Daily activities are inconsistent with the limitations Adams describes. Adams 2 says he spends most of the day on the computer. He reads and attends a geneology 3 meeting once a month (Tr. 46, 185, 207). The ALJ notes computer use and reading 4 are inconsistent with plaintiff’s allegation that he is unable to concentrate. Plaintiff 5 also drives, cooks, shops and is able to go out alone. He goes to movies with his best 6 friend. He can only “stand to be around” his best friend and the friend’s family. In 7 2011 he agreed to continue seeing friends three times a week. At times he has 8 “helped with cows” (August 2010) and worked in his shop (October 2011) (Tr. 184, 9 206-08, 273, 287, 307, 316). 10 The ALJ considered plaintiff’s somewhat poor work history and inability to 11 satisfactorily explain that lack of work history. The record shows he did not work for 12 ten years prior to the alleged onset date (Tr. 32-33, 159-60). 13 Although lack of supporting medical evidence cannot form the sole basis for 14 discounting pain testimony, it is a factor the ALJ can consider when analyzing 15 credibility. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). Subjective 16 complaints contradicted by medical records and by daily activities are properly 17 considered. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 18 2008); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Evidence of 19 conservative treatment is sufficient to discount a claimant’s testimony regarding the 20 severity of an impairment. Parra v. Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007). ORDER ~ 9 1 2 The ALJ’s credibility assessment is supported by the evidence and free of harmful error. 3 B. Medical evidence 4 Adams alleges the ALJ failed to properly credit the opinions of treating, 5 examining and reviewing professionals. ECF No. 16 at 12-16. He points to the 6 opinions of Heistand, Didier, Edwards, Belding, Ragonesi and Harmon. The 7 Commissioner responds that the ALJ appropriately weighed these and other opinions 8 and evidence. ECF No. 21 at 13. 9 The Commissioner is correct. 10 1. Medical opinions 11 In August 2009 treating physician Christopher Samuels, M.D., assessed an 12 RFC for light work (Tr. 462). In January 2010 he opined plaintiff could perform 13 medium work (Tr. 456). In August 2010 he described plaintiff’s depression as stable 14 (Tr. 279). In January 2011, Dr. Samuels again opined plaintiff is able to work (Tr. 15 282, 450, 452-53). Six months later he opined nothing significant had occurred with 16 respect to plaintiff’s physical health (Tr. 283). In July 2011 he opined plaintiff can 17 stand four out of eight hours, sit for eight, lift fifty pounds occasionally and 18 frequently lift 20 pounds (Tr. 448). 19 Kevin Weeks, D.O., examined plaintiff September 17, 2011 (Tr. 256-61). He 20 reviewed x-rays dated the same date. Plaintiff alleged back injuries in 1982 and 1992 ORDER ~ 10 1 made him unable to work since 2007. He has treated with a chiropractor but never 2 had physical therapy or surgical consideration. He suffers from obstructive sleep 3 apnea and uses a CPAP machine. Plaintiff lives alone. He cooks, drives, shops and 4 has difficulty cleaning house because he “simply does not feel like doing it” and 5 feels it is a reflection of his depression. He attends monthly geneology meetings, 6 plays computer games and reads. He takes sertraline (zoloft) for depression. He 7 appeared somewhat depressed, with a very flat affect. Muscle strength and tone are 8 5/5 (Tr. 259). He opined plaintiff can stand or walk six hours out of eight and sitting 9 is unlimited (Tr. 256-60). 10 2. Psychological opinions 11 In April 2010, therapists Candi Didier, M.S., and Carol Jurs, M.A., evaluated 12 plaintiff. They assessed major depressive disorder, NOS, dysthymic disorder and 13 dependent personality features, cluster C characteristics (Tr. 325). 14 In July 2010 Aaron Edwards, M.A., noted plaintiff felt he could work at a 15 sedentary job with occasional movement. He sometimes helped a friend who owns a 16 convenience store (Tr. 434). In September 2010 Mr. Edwards noted plaintiff’s mood 17 and affect brightened after he took medication consistently and increased social 18 contact (Tr. 358). A month later, he observed plaintiff would no longer qualify for 19 services at the end of October. Plaintiff remained ambivalent about changing his life. 20 Edwards challenged plaintiff “to pursue vocational rehabilitation options” (Tr. 353). ORDER ~ 11 1 He opined there “is no indication that going beyond the six months of treatment that 2 he is allotted for GAU is necessary” (Tr. 366, 377). In January 2011 he observed 3 plaintiff volunteers one day a week at the Discovery Center and attends monthly 4 geneology meetings. He has not worked full time since 1994 (Tr. 428-30). 5 In June 2012 treating psychiatrist Kari Heistand, M.D., opined plaintiff was 6 markedly and moderately limited by mental impairments. Plaintiff points out that 7 this is after two years of treatment, and after Dr. Heistand saw plaintiff about seven 8 times. Dr. Heistand saw plaintiff for medication management. In 2012 Plaintiff told 9 her he reads on the computer until three a.m. (Tr. 392-94, 413). She previously 10 diagnosed dysthymic disorder, major depressive disorder (recurrent) and avoidant 11 personality disorder in August 2010 and November 2011. In 2011 she changed 12 plaintiff’s medication from zoloft to celexa (Tr. 299-304, 305-09). 13 Therapist Lisa Belding, B.A., worked with plaintiff on setting goals and 14 treatment planning (Tr. 330, 336, 343-44). In August 2012 she opined he suffers 15 moderate and marked limitations and his condition is unlikely to change (Tr. 410). 16 Dr. Amanda Ragonesi, Psy.D. evaluated Adams on August 31, 2011 for 17 memory assessment at the request of Disability Determination Services (Tr. 251-54). 18 She opined memory testing was within normal limits but observed symptoms 19 consistent with major depressive disorder. She opined plaintiff is prone to respond to 20 the stress of a typical work setting with increased symptoms of depression. This, in ORDER ~ 12 1 turn, is likely to negatively impact his ability to tolerate the pressure of a typical 2 work setting. Ongoing struggles with worthlessness and social withdrawal are likely 3 to interfere with his ability to maintain socially appropriate behavior (Tr. 253-54). 4 The Commissioner points out the ALJ included limitations in the RFC that are 5 consistent with Dr. Ragonesi’s opinion, including limiting plaintiff to simple tasks 6 and no more than occasional public contact. ECF No. 21 at 15-16. 7 Finally, DDS reviewing source Dr. Dana Harmon, M.D., opined on September 8 14, 2011 plaintiff “appears to meet the SSA criteria for [Listing] 12.04” but the data 9 sent for review did not include the necessary information, including a relevant 10 evaluation by a Ph.D or M.D. (Tr. 501-05). The Commissioner answers that the 11 ALJ’s failure address this evidence is harmless error since when read carefully it 12 supports the ALJ’s decision. ECF No. 21 at 16-17. 13 The Commissioner is correct. 14 The ALJ rejected some of Dr. Heistand’s more dire assessments because she 15 failed to provide any objective evidence supporting it, it was on a check box form 16 and plaintiff improved when he consistently took prescribed medication and 17 increased social contact (Tr. 30-31). The ALJ’s reasons are specific, legitimate and 18 supported by the record. An ALJ may properly reject any opinion that is brief, 19 conclusory and inadequately supported by clinical findings. Bayliss v. Barnhart, 427 20 F.3d 1211, 1216 (9th Cir. 2005). Opinions given in formats that provide little ORDER ~ 13 1 opportunity for the physician to explain the bases of their opinion, such as check-box 2 forms, are entitle to little weight. Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996). 3 Moreover, plaintiff himself felt he was able to work at various times, and he has 4 engaged in activities such as volunteering that indicate greater ability than alleged 5 (Tr. 302, 307, 428, 434, 443). 6 The ALJ accepted therapist Didier’s opinion plaintiff should have limited 7 public contact and can follow simple directions (Tr. 26, 28-29). In July 2011 she 8 opined it was unlikely plaintiff would be able to work successfully (Tr. 29, 406). 9 The ALJ rejected this opinion because, thereafter, plaintiff reported feeling better 10 with medication and increased social contact. In August 2012 plaintiff reports he 11 leaves the house four times per week, inconsistent with Didier’s opinion he suffers 12 moderate and marked social limitations (Tr. 29, referring to Tr. 331, 337, 341, 410, 13 414 (December 2011-June 2012)). As a non-acceptable medical source, Ms. Didier’s 14 opinion need only be rejected by germane reasons. Molina v. Astrue, 674 F.3d 1104, 15 1111 (9th Cir. 2012). The ALJ’s reasons are germane. Ms. Didier’s opinion is 16 contradicted by other evidence, including plaintiff’s self-reported activities. 17 With respect to Mr. Edwards’ opinions, the ALJ credited his opinions plaintiff 18 is able to follow simple instructions (Tr. 28) but rejected his opinion plaintiff is 19 moderately limited in the ability to relate to co-workers or supervisors because 20 plaintiff reported he usually gets along with authority figures (Tr. 28, comparing Ex. ORDER ~ 14 1 15F/4 with Ex. 5E/7, 12F/9). As Mr. Edwards is also a non-acceptable medical 2 source, the ALJ’s reason is germane. 3 Similarly, Ms. Belding is a non-acceptable medical source. The ALJ did not 4 credit her August 2012 opinion plaintiff’s condition is unlikely to change or her 5 assessed marked and moderate limitations because the record shows greater 6 functioning and improvement. Plaintiffs condition improved with medication and 7 increased social contact. And his range of activities is inconsistent with marked 8 limitations. These are germane reasons. 9 The ALJ credited Dr. Ragonesi’s August 2011 opinion (Tr. 30). His RFC 10 included a limitation to simple routine tasks, which would reduce stress, and limited 11 public contact. The assessed RFC appears to fully account for the assessed 12 limitations. Plaintiff fails to show how the ALJ erred in translating Dr. Ragonesi’s 13 opinion into the assessed RFC. The ALJ appropriately included the limitations 14 supported by the record. 15 Adams alleges the ALJ should have weighed the evidence differently, but the 16 ALJ is responsible for reviewing the evidence and resolving conflicts or ambiguities 17 in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). It is the role 18 of the trier of fact, not this court, to resolve conflicts in evidence. Richardson, 402 19 U.S. at 400. If evidence supports more than one rational interpretation, the Court 20 may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at ORDER ~ 15 1 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 1984). If there is substantial evidence 2 to support the administrative findings, or if there is conflicting evidence that will 3 support a finding of either disability or nondisability, the finding of the 4 Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 5 1987). 6 7 The ALJ’s determinations are supported by the record and free of harmful legal error. 8 9 10 CONCLUSION After review the Court finds the ALJ’s decision is supported by substantial evidence and free of harmful legal error. 11 IT IS ORDERED: 12 Defendant’s motion for summary judgment, ECF No. 21, is granted. 13 Plaintiff’s motion for summary judgment, ECF No. 16, is denied. 14 The District Court Executive is directed to file this Order, provide copies to 15 16 counsel, enter judgment in favor of defendant and CLOSE the file. DATED this 18th day of November, 2015. 17 S/ James P. Hutton 18 JAMES P. HUTTON UNITED STATES MAGISTRATE JUDGE 19 20 ORDER ~ 16
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