LacQuaye v. Colvin, No. 1:2015cv03029 - Document 22 (E.D. Wash. 2015)

Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 16 is DENIED. Defendants Motion for Summary Judgment ECF No. 20 is GRANTED. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

Download PDF

LacQuaye v. Colvin Doc. 22 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 TRACY LACQUAYE, NO: 1:15-CV-3029-TOR Plaintiff, 8 9 10 11 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant. 12 13 14 BEFORE THE COURT are the parties’ cross-motions for summary 15 judgment (ECF Nos. 16 and 20). Plaintiff is represented by D. James Tree. 16 Defendant is represented by Christopher J. Brackett. This matter was submitted 17 for consideration without oral argument. The Court has reviewed the 18 administrative record and the parties’ completed briefing and is fully informed. 19 For the reasons discussed below, the Court grants Defendant’s motion and denies 20 Plaintiff’s motion. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 3 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. § 405(g); 1383(c)(3). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 7 limited: the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 10 relevant evidence that “a reasonable mind might accept as adequate to support a 11 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 12 substantial evidence equates to “more than a mere scintilla[,] but less than a 13 preponderance.” Id. (quotation and citation omitted). In determining whether this 14 standard has been satisfied, a reviewing court must consider the entire record as a 15 whole rather than searching for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. at 1111. An error is harmless “where it is inconsequential to the [ALJ’s] 3 ultimate nondisability determination.” Id. at 1115 (quotation and citation omitted). 4 The party appealing the ALJ’s decision generally bears the burden of establishing 5 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 6 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 7 A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Second, the claimant’s 13 impairment must be “of such severity that he is not only unable to do his previous 14 work[,] but cannot, considering his age, education, and work experience, engage in 15 any other kind of substantial gainful work which exists in the national economy.” 16 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. 19 §§ 404.1520(a)(4)(i)-(v); 416.920(a)(4)(i)-(v). At step one, the Commissioner 20 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i); ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 2 Commissioner must find that the claimant is not disabled. 20 C.F.R. 3 §§ 404.1520(b); 416.920(b). 4 If the claimant is not engaged in substantial gainful activities, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the 7 claimant suffers from “any impairment or combination of impairments which 8 significantly limits [his or her] physical or mental ability to do basic work 9 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c); 10 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 11 however, the Commissioner must find that the claimant is not disabled. Id. 12 At step three, the Commissioner compares the claimant’s impairment to 13 several impairments recognized by the Commissioner to be so severe as to 14 preclude a person from engaging in substantial gainful activity. 20 C.F.R. 15 §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment is as severe or more 16 severe than one of the enumerated impairments, the Commissioner must find the 17 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d); 416.920(d). 18 If the severity of the claimant’s impairment does meet or exceed the severity 19 of the enumerated impairments, the Commissioner must pause to assess the 20 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 defined generally as the claimant’s ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations (20 C.F.R. 3 §§ 404.1545(a)(1); 416.945(a)(1)), is relevant to both the fourth and fifth steps of 4 the analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv); 8 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. 10 §§ 404.1520(f); 416.920(f). If the claimant is incapable of performing such work, 11 the analysis proceeds to step five. 12 At step five, the Commissioner considers whether, in view of the claimant’s 13 RFC, the claimant is capable of performing other work in the national economy. 14 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). In making this determination, 15 the Commissioner must also consider vocational factors such as the claimant’s age, 16 education and work experience. Id. If the claimant is capable of adjusting to other 17 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. 18 §§ 404.1520(g)(1); 416.920(g)(1). If the claimant is not capable of adjusting to 19 other work, the analysis concludes with a finding that the claimant is disabled and 20 is therefore entitled to benefits. Id. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 The claimant bears the burden of proof at steps one through four above. 2 Lockwood v. Comm’r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010). If 3 the analysis proceeds to step five, the burden shifts to the Commissioner to 4 establish that (1) the claimant is capable of performing other work; and (2) such 5 work “exists in significant numbers in the national economy.” 20 C.F.R. 6 §§ 404.1560(c); 416.960(c)(2); Beltran v. Astrue, 700 F.3d 386, 389 (9th Cir. 7 2012). 8 ALJ’S FINDINGS 9 Plaintiff filed applications for disability insurance and supplemental security 10 income benefits on October 4-5, 2011, alleging a disability onset date of January 1, 11 2005, amended to March 1, 2009. Tr. 19, 189-92; 193-207. These applications 12 were denied initially and upon reconsideration, and Plaintiff requested a hearing. 13 Tr. 128-30, 131-34, 139-43, 144-47. A hearing was held before an Administrative 14 Law Judge on May 14, 2013. Tr. 34-65. The ALJ rendered a decision on July 22, 15 2013, finding Plaintiff disabled in December 2012, for purposes of supplemental 16 security income benefits. Tr. 15-29. 17 The ALJ found that Plaintiff met the insured status requirements of Title II 18 of the Social Security Act through March 31, 2009. Tr. 21. At step one, the ALJ 19 found that Plaintiff had not engaged in substantial gainful activity since March 1, 20 2009, the amended alleged onset date. Id. At step two, the ALJ found that ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 Plaintiff had severe impairments, but, at step three, the ALJ found that Plaintiff’s 2 severe impairments did not meet or medically equal a listed impairment. Tr. 22. 3 The ALJ then determined that Plaintiff had the residual functional capacity to: 4 5 6 7 8 9 10 11 [P]erform sedentary work with the following additional limitations. This individual can lift and carry 10 lbs. occasionally and less than 10 lbs. frequently, can stand or walk for 2 hours total in an 8-hour workday, and can sit for 6 hours in an 8-hour workday. She can frequently push or pull with the right lower extremity, such as for the operation of foot pedals. She can never climb ladders, ropes or scaffolds and all of the other postural limitations are occasional. She should avoid concentrated exposure to hazards such as heights and dangerous moving machinery. She has sufficient concentration to understand, remember and carry out simple repetitive tasks. She can work in proximity to an unlimited number of co-workers but cannot work in coordination with them. She can have occasional and superficial contact with the general public. She can interact with supervisors on an occasional basis and in this manner she can respond appropriately to supervisors. 20 CFR 404.1567(a) and 416.967(a). 12 Tr. 22-23. At step four, the ALJ found that Plaintiff was unable to perform any 13 past relevant work since the amended alleged onset date of March 1, 2009. Tr. 26- 14 27. At step five, the ALJ found that prior to December 2012, Plaintiff could 15 perform the representative occupations of assembler and semi-conductor bonder, 16 and that such occupations existed in significant numbers in the national economy. 17 Tr. 28. The ALJ concluded that Plaintiff became disabled by application of the 18 Grids (Medical-Vocational Rule 201.14), in December 2012, when she entered the 19 age category “Closely Approaching Advanced Age”. Id. Since Plaintiff was only 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 insured through March 31, 2009, disability insurance benefits were denied, but 2 supplemental security income benefits were awarded. 3 The Appeals Council denied Plaintiff’s request for review on December 22, 4 2014, making the ALJ’s decision the Commissioner’s final decision for purposes 5 of judicial review. Tr. 1-3; 20 C.F.R. §§ 404.981, 416.1484, and 422.210. 6 ISSUES 7 Plaintiff seeks disability insurance benefits from March 1, 2009, and 8 supplemental security income benefits for the period from March 1, 2009 through 9 December 9, 2012. See ECF No. 16 at 2. Plaintiff raises three issues for review: 10 1. Whether the ALJ committed reversible error by finding Plaintiff not credible; 11 12 13 14 15 16 17 18 2. Whether the ALJ committed reversible error in weighing the opinion evidence; and 3. Whether the ALJ committed reversible error by failing to properly consider SSR 83-20 and finding Plaintiff only disabled after December 2012. Id. at 12. DISCUSSION A. Adverse Credibility Determination In social security proceedings, a claimant must prove the existence of 19 physical or mental impairment with “medical evidence consisting of signs, 20 symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908; 416.927. A ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 claimant’s statements about his or her symptoms alone will not suffice. 20 C.F.R. 2 §§ 416.908; 416.927. Once an impairment has been proven to exist, the claimant 3 need not offer further medical evidence to substantiate the alleged severity of his or 4 her symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 5 As long as the impairment “could reasonably be expected to produce [the] 6 symptoms,” the claimant may offer a subjective evaluation as to the severity of the 7 impairment. Id. This rule recognizes that the severity of a claimant’s symptoms 8 “cannot be objectively verified or measured.” Id. at 347 (quotation and citation 9 omitted). 10 If an ALJ finds the claimant’s subjective assessment unreliable, “the ALJ 11 must make a credibility determination with findings sufficiently specific to permit 12 [a reviewing] court to conclude that the ALJ did not arbitrarily discredit claimant's 13 testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). In making 14 this determination, the ALJ may consider, inter alia: (1) the claimant’s reputation 15 for truthfulness; (2) inconsistencies in the claimant’s testimony or between his 16 testimony and his conduct; (3) the claimant’s daily living activities; (4) the 17 claimant’s work record; and (5) testimony from physicians or third parties 18 concerning the nature, severity, and effect of the claimant’s condition. Id. If there 19 is no evidence of malingering, the ALJ’s reasons for discrediting the claimant's 20 testimony must be “specific, clear and convincing.” Chaudhry v. Astrue, 688 F.3d ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 661, 672 (9th Cir. 2012) (quotation and citation omitted).1 The ALJ “must 2 specifically identify the testimony she or he finds not to be credible and must 3 explain what evidence undermines the testimony.” Holohan v. Massanari, 246 4 F.3d 1195, 1208 (9th Cir. 2001). 5 Plaintiff concedes the ALJ provided some reasoning to find Plaintiff not 6 credible, ECF No. 16 at 14, but argues that the ALJ made inadequate findings to 7 warrant an adverse credibility determination concerning her activities of daily 8 living. ECF No. 16 at 14-18. For the closed period at issue, the ALJ found 9 Plaintiff capable of sedentary work, with some additional limitations. Tr. 22-23. 2 10 The ALJ reasoned: 11 Before the later onset date of December [ ], 2012, the claimant’s selfreported activities reflect that she was capable of the RFC. In a Function Report on December 7, 2011, she stated that as hobbies and interests, she used the computer and read books “about 6-7 hr a day.” She went outside “about 2-3 times a week.” She shopped at stores once “every 2-3 weeks.” (4E/4-5) She could do some housework including washing dishes, sweeping 12 13 14 1 The Commissioner disputes this standard of review. The Ninth Circuit recently 15 rejected the Commissioner’s similar argument in Burrell v. Colvin, 775 F.3d 1133, 16 1136-37 (9th Cir. 2014), and that holding is binding on this Court. 17 18 2 Plaintiff does not contest the ALJ’s RFC findings concerning her physical 19 capabilities based on medical opinions that she could perform sedentary work with 20 some postural restrictions. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 2 3 floors and folding clothes (4E/3). At the hearing, the claimant stated that she last drove a car “2 to 3 months ago.” She stated that she stopped driving because her husband had gotten a car with manual transmission (hearing testimony). This statement suggests that she is not so medically impaired that she cannot drive. . . . . 4 5 6 7 8 9 10 11 A third-party Function Report by the claimant’s spouse, Michael Lee LacQuaye, suggests that needing help with activities of daily activities was the claimant’s lifestyle choice. This was before the established onset date. Mr. LacQuaye indicated that as of December 13, 2011 the claimant had “no problem” with activities of personal care (5E/2), contradicting the claimant’s allegation that she required Mr. LacQuaye’s help to get in and out of the shower and to get dressed. Mr. LacQuaye described that the claimant could prepare her own meals “daily” for “1 hour or more” and she could do “laundry & dishes” and chores for “most of the day every day.” (5E/3) Mr. LacQuaye further described that the claimant could drive a car by herself for “2 or 3 days a week.” (5E/4) Taken together, Mr. LacQuaye’s report suggests a much higher level of functioning than that alleged by the claimant, at least before the later onset date of December [ ], 2012. Mr. LacQuaye’s statements in 2011 are accorded some weight. 12 Tr. 23-24. These findings are supported by substantial evidence. The Court also 13 rejects Plaintiff’s subsequent argument buried later in her opening brief under an 14 unrelated heading that argues her husband’s testimony should not be used against 15 her and that his testimony was misconstrued. ECF No. 16 at 22-24. The ALJ 16 properly reconciled conflicting evidence as she was required. Burch v. Barnhart, 17 400 F.3d 676, 679 (9th Cir. 2005) (Where evidence is susceptible to more than one 18 rational interpretation, it is the ALJ’s conclusion that must be upheld.) Moreover, 19 the ALJ thoroughly recited the medical evidence that also supported her finding 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 that Plaintiff could work at the sedentary level. Tr. 24-25. No error has been 2 shown. 3 Plaintiff next claims the ALJ erred when she misconstrued what Plaintiff 4 actually reported about her use of a cane. ECF No. 16 at 17. The ALJ recognized 5 that Plaintiff’s “use of a cane was not medically necessary.” Tr. 25. But even 6 more important, Plaintiff answered the ALJ’s question that she had only used a 7 cane for about a month before the May 14, 2013 hearing. Tr. 47. Plaintiff was 8 granted benefits for the year 2013, thus, any perceived error concerning her use of 9 a cane is harmless in this case. 10 In reply, Plaintiff contends the Commissioner inappropriately offers 11 “reasoning outside that given by the ALJ in his (sic) original decision, which 12 should be rejected as post-hoc rationalization.” ECF No. 21 at 3-8. Yet, a careful 13 reading of the ALJ’s decision does not support Plaintiff’s post-hoc rationalization 14 argument. First, Plaintiff contends the ALJ never reasoned that Plaintiff’s 15 misrepresentation of her work history impacted her credibility. Id. at 3. On the 16 contrary, the ALJ specifically observed: 17 18 19 20 The claimant stated that after her mother passed away in 2008, she did not look for work because she was depressed. She continued to allege depression as a disabling impairment at the time of the hearing in 2013. However, the claimant gave a different account to Laurie Jones, MSW during a therapy session on August 7, 2012, when the claimant stated that she lost the Caregiver job “as a result of a felony conviction.” (8F/7) Inconsistent statements of the reason for stopping work erode some of the claimant's credibility. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 Tr. 25. The ALJ’s findings are supported by substantial evidence in the record. 2 Next, Plaintiff contends the ALJ never found that Plaintiff’s back pain only 3 recently began in 2012, “noting only that [Plaintiff] was not to begin PT until after 4 the hearing. ECF No. 21 at 5 (citing Tr. 24). Again, Plaintiff is mistaken. The 5 ALJ resolved the discrepancies in the record concerning Plaintiff’s varied 6 allegations of back pain in the following manner: 7 8 9 10 11 12 13 The claimant also described low back pain that began “a year ago,” for which she would start physical therapy the week after the hearing. ... The claimant testified to having low back pain for about one year. However, she was going to start physical therapy only after the hearing, even though she has been alleging back pain as a disabling impairment since the amended alleged onset date in 2009, or 3 years before the hearing. A physical exam on April 21, 2012 revealed muscle strength of “5/5 in the upper and lower extremities bilaterally, except for the right leg, which [was] 4/5.” Muscle bulk and tone were both “normal.” (5F/5) In spite of these benign findings, physical limitations in the right lower extremity have been incorporated in the RFC, after crediting some of the claimant’s subjective complaints of swelling and weakness in the right leg. 14 15 16 Tr. 23-24. These findings are supported by substantial evidence in the record. Next, Plaintiff contends the ALJ did not reference Plaintiff’s use of a 17 computer and reading books in her reasoning. Once again, Plaintiff is mistaken. 18 The ALJ made the following findings: 19 20 Before the later onset date of December [ ], 2012, the claimant’s selfreported activities reflect that she was capable of the RFC. In a Function Report on December 7, 2011, she stated that as hobbies and interests, she used the computer and read books “about 6-7 hr a day.” She went outside ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 2 “about 2-3 times a week.” She shopped at stores once “every 2-3 weeks.” (4E/4-5) She could do some housework including washing dishes, sweeping floors and folding clothes (4E/3). 3 Tr. 23-24. These findings are also supported by substantial evidence in the record. 4 A careful reading of the ALJ’s findings shows specific, clear and convincing 5 reasons for discounting Plaintiff’s credibility regarding her claim of total disability 6 during the time at issue. 7 8 9 B. Opinion Evidence There are three types of physicians: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 10 (examining physicians); and (3) those who neither examine nor treat the claimant 11 [but who review the claimant's file] (nonexamining [or reviewing] physicians).” 12 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 13 Generally, the opinion of a treating physician carries more weight than the opinion 14 of an examining physician, and the opinion of an examining physician carries more 15 weight than the opinion of a reviewing physician. Id. 16 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 17 reject it only by offering “clear and convincing reasons that are supported by 18 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 19 “If a treating or examining doctor’s opinion is contradicted by another doctor’s 20 opinion, an ALJ may only reject it by providing specific and legitimate reasons ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 that are supported by substantial evidence.” Id. (citing Lester v. Chater, 81 F.3d 2 821, 830-831 (9th Cir. 1995)). Regardless of the source, an ALJ need not accept a 3 physician’s opinion that is “brief, conclusory and inadequately supported by 4 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 5 Cir. 2009) (quotation and citation omitted). 6 1. Opinions of Thomas Genthe, Ph.D. and Jan Kouzes, Ed.D. 7 Plaintiff contends that on February 3, 2012, consultative examiner Thomas 8 Genthe, Ph.D. opined that Plaintiff was unable to work but her condition would 9 improve with 3-6 months treatment. ECF No. 16 at 19; Tr. 348. Plaintiff claims 10 she did not improve and therefore concludes that she should have been found 11 disabled in February 2012. 12 On September 25, 2012, Jan Kouzes, Ed.D., performed an examination and 13 assessment. Tr. 371-75. Dr. Kouzes rated Plaintiff’s ability to perform basic work 14 activities, finding several “moderate” and five “marked” limitations. Tr. 373. Dr. 15 Kouzes did not find Plaintiff had any “severe” limitations, defined on the checkbox 16 form to mean the inability to perform the particular activity in regular competitive 17 employment. Id. Plaintiff’s briefing attributes opinions of disability to Dr. Kouzes 18 that are not borne out by the record. ECF No. 21 at 9 (claiming “Dr. Kouzes 19 ensuing September 2012 opinion confirmed that she continued to suffer disabling 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 impairments”, but no such disability opinion was offered by Dr. Kouzes. See Tr. 2 373). 3 With respect to Dr. Genthe, the ALJ found: 4 Dr. Genthe further opined that the claimant’s ability to understand, remember and carry out short, simple instructions was “good;” the ability to work with or near others without being distracted by them was “fair;” and the ability to interact appropriately with the public was “fair.” (3F/5) In particular, Dr. Genthe assessed that the claimant’s mental symptoms were “mild to moderately well managed with medications.” (3F/5) Dr. Genthe’s opinions are accorded some weight, as the restrictions he placed on the claimant’s work capacity were limited in duration and they do not correspond to the excellent test results obtained from the mental status exam. 5 6 7 8 9 Tr. 24. With respect to Dr. Kouzes, the ALJ observed: 14 In a DSHS Psychological Evaluation on September 25, 2012, Jan Kouzes, Ed.D., rated the claimant’s GAF score at 55 and opined that she has many “marked” mental limitations, including in the ability to perform activities within a schedule and to complete a normal work day or work week (7F /9). However, this opinion remain[s] unsupported by the consultative opinions of Thomas Genthe, Ph.D. (12F), or the third-party statements by the claimant’s spouse, Mr. LacQuaye (5F). Unlike Dr. Genthe, Dr. Kouzes is not an acceptable medical source under SSR 96-6p. Dr. Kouzes’ opinions are accorded less weight. 15 Tr. 25-26. While, acknowledging the conflicting opinions given by Dr. 10 11 12 13 16 Genthe and Dr. Kouzes, the ALJ made the following findings concerning state- 17 agency consultant Diane Fligstein, Ph.D.: 18 19 20 With respect to mental impairments, the state-agency consultant, Diane Fligstein, Ph.D., opined on April 2, 2012 that the claimant had affective disorders and anxiety disorders, but she was “not significantly limited” or was only “moderately limited” in the major functional areas of understanding and memory, sustained concentration and persistence, social interaction, and adaption. In particular, Dr. Fligstein wrote that the claimant ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 was “able to remember, understand and perform up to a 3-step task” and could “do SRT (simple repetitive tasks).” (7 A/11) 2 3 4 Opinions of the state-agency consultants, including Dr. Stevick and Dr. Fligstein, are accorded significant weight as expert-opinions within the meaning of SSR 96-6p. The state-agency consultants’ opinions, expressed in April and May of 2012, are consistent with the totality of the medical records up to the established onset date of December [ ], 2012. 5 6 Tr. 25. The ALJ’s findings are supported by substantial evidence in the record. 7 The ALJ’s RFC determination was consistent with these findings and, despite 8 Plaintiff’s argument to the contrary, no examining physician opined that Plaintiff 9 was disabled within the meaning of the Social Security Act. No error has been 10 shown. 11 2. Opinion of Aaron Burdge, PhD. 12 Aaron Burdge, Ph.D., conducted a DSHS review of medical evidence on 13 October 15, 2012. Tr. 376. He reviewed two reports, Dr. Kouzes’ September 25, 14 2012 report (Tr. 371-75) and what appears to be a single page client progress 15 report from Yakima Neighborhood Health Services dated August 7, 2012 (Tr. 16 370). Tr. 376. Dr. Burdge opined that Plaintiff will qualify for SSI with an onset 17 date of September 25, 2012, the date of Dr. Kouzes’ report. Id. Plaintiff contends 18 the ALJ erred by rejecting this opinion because “[t]here is simply no evidence to 19 support the finding that [Plaintiff] experienced a deterioration of functioning after 20 this point.” ECF No. 16 at 22. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 The ALJ gave Dr. Kouzes’ report less weight than Dr. Genthe’s and had 2 accepted Dr. Fligstein’s opinions. The ALJ explained that Dr. Burdge’s opinions 3 made on behalf of the state DSHS were not binding on the Social Security 4 Administration and were accorded less weight. Having already discounted the 5 underlying report from Dr. Kouzes, the ALJ did not error by rejecting Dr. Burdge’s 6 reviewing, non-examining opinion. As explained below, the onset date coincided 7 with Plaintiff’s change in age category which directed a finding of disability. 8 Thus, no error has been shown. 9 10 C. Onset Date for Disability Finding Plaintiff argues that SSR 83-20 requires the ALJ to engage the services of a 11 medical advisor to determine her disability onset date. ECF No. 16 at 25-29. Only 12 when the “medical evidence is not definite” and “medical inferences” need to be 13 made does the ALJ need medical expert testimony in order to establish an onset 14 date. See Armstrong v. Comm’r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir. 15 1998) (“If the ‘medical evidence is not definite concerning the onset date and 16 medical inferences need to be made, SSR 83-20 requires the administrative law 17 judge to call upon the services of a medical advisor and to obtain all evidence 18 which is available to make the determination.”). 19 20 Here in contrast, the ALJ found Plaintiff could perform no more than sedentary work for the period at issue. Once Plaintiff turned 50 years old, the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 limitation to sedentary work was itself sufficient for a finding of disability 2 regardless of any other physical or mental limitation. The Grids directed a finding 3 of disability and the ALJ did not err by finding her disabled when she became a 4 person closely approaching advanced age. 20 C.F.R. Pt. 404, Subpt. P, App. 2, 5 § 201.14. No medical inference was necessary to determine the onset date and 6 thus, SSR 83-20 is inapplicable. 7 8 9 10 11 12 13 14 Defendant is entitled to summary judgment. IT IS HEREBY ORDERED: 1. Plaintiff’s Motion for Summary Judgment (ECF No. 16) is DENIED. 2. Defendant’s Motion for Summary Judgment (ECF No. 20) is GRANTED. The District Court Executive is hereby directed to file this Order, enter Judgment for Defendant, provide copies to counsel, and CLOSE the file. DATED November 4, 2015. 15 16 THOMAS O. RICE United States District Judge 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.