Reutov v. Colvin (previously Astrue), No. 2:2012cv00367 - Document 28 (E.D. Wash. 2014)

Court Description: DECISION AND ORDER; denying 15 Plaintiff's Motion for Summary Judgment; granting 22 Defendant's Motion for Summary Judgment. Case closed. Signed by Magistrate Judge Victor E. Bianchini. (CV, Case Administrator)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF WASHINGTON 10 11 Case No. 2:12-CV-00367-VEB IVAN C. REUTOV, 12 Plaintiff, DECISION AND ORDER 13 vs. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 16 17 Defendant. I. INTRODUCTION 18 In September of 2008, Plaintiff Ivan C. Reutov applied for Supplemental 19 Security Income ( SSI ) benefits and Disability Insurance Benefits ( DIB ) under 20 1 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 the Social Security Act. The Commissioner of Social Security denied the 2 applications. 3 Plaintiff, represented by the Law Office of Dana C. Madsen, Maureen J. 4 Rosette Esq., of counsel, commenced this action seeking judicial review of the 5 Commissioner s denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 6 The parties consented to the jurisdiction of a United States Magistrate Judge. 7 (Docket No. 6). 8 On February 3, 2014, the Honorable Rosanna Malouf Peterson, Chief United 9 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 10 636(b)(1)(A) and (B). (Docket No. 27). 11 12 II. BACKGROUND 13 The procedural history may be summarized as follows: 14 On September 24, 2008, Plaintiff applied for SSI benefits and DIB, alleging 15 disability beginning January 1, 2006. (T at 21, 171-77, 178-81). 1 The applications 16 were denied initially and Plaintiff requested a hearing before an Administrative Law 17 Judge ( ALJ ). On September 21, 2010, a hearing was held before ALJ James W. 18 Sherry. (T at 39). Plaintiff appeared with an attorney and testified with the aid of a 19 1 20 Citations to ( T ) refer to the administrative record at Docket Nos. 11 & 12. 2 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 Russian interpreter. (T at 39, 46-59). The ALJ also received testimony from Daniel 2 McKinney, a vocational expert. (T at 59-70). 3 On November 3, 2010, ALJ Sherry issued a written decision denying the 4 applications for benefits and finding that Plaintiff was not disabled within the 5 meaning of the Social Security Act. (T at 18-31). The ALJ s decision became the 6 Commissioner s final decision on April 11, 2012, when the Social Security Appeals 7 Council denied Plaintiff s request for review. (T at 1-6). 8 On May 29, 2012, Plaintiff, acting by and through his counsel, timely 9 commenced this action by filing a Complaint in the United States District Court for 10 the Eastern District of Washington. (Docket No. 5). The Commissioner interposed 11 an Answer on August 7, 2012. (Docket No. 10). 12 Plaintiff filed a motion for summary judgment with a supporting 13 memorandum of law on January 14, 2013. (Docket No. 15, 16). The Commissioner 14 moved for summary judgment on March 14, 2013. (Docket No. 22). Plaintiff filed a 15 reply memorandum of law in further support of his motion on March 20, 2013. 16 (Docket No. 23). As noted above, the parties consented to the jurisdiction of a 17 Magistrate Judge. (Docket No. 6). 18 19 20 For the reasons set forth below, the Commissioner s motion is granted and Plaintiff s motion is denied and the matter is dismissed. 3 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB III. DISCUSSION 1 2 A. Sequential Evaluation Process 3 The Social Security Act ( the Act ) defines disability as the inability to 4 engage in any substantial gainful activity by reason of any medically determinable 5 physical or mental impairment which can be expected to result in death or which has 6 lasted or can be expected to last for a continuous period of not less than twelve 7 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 8 plaintiff shall be determined to be under a disability only if any impairments are of 9 such severity that a plaintiff is not only unable to do previous work but cannot, 10 considering plaintiff s age, education and work experiences, engage in any other 11 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 12 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 13 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 16 one determines if the person is engaged in substantial gainful activities. If so, 17 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 18 decision maker proceeds to step two, which determines whether plaintiff has a 19 medially severe impairment or combination of impairments. 20 C.F.R. §§ 20 4 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 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 20 The initial burden of proof rests upon plaintiff to establish a prima facie case 5 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 2 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 3 met once plaintiff establishes that a mental or physical impairment prevents the 4 performance of previous work. The burden then shifts, at step five, to the 5 Commissioner to show that (1) plaintiff can perform other substantial gainful 6 activity and (2) a significant number of jobs exist in the national economy that 7 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 8 B. Standard of Review 9 Congress has provided a limited scope of judicial review of a Commissioner s 10 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner s decision, 11 made through an ALJ, when the determination is not based on legal error and is 12 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 13 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). The [Commissioner s] 14 determination that a plaintiff is not disabled will be upheld if the findings of fact are 15 supported by substantial evidence. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 16 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 17 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 18 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 19 Substantial evidence means such evidence as a reasonable mind might accept as 20 6 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 2 (1971)(citations omitted). [S]uch inferences and conclusions as the [Commissioner] 3 may reasonably draw from the evidence will also be upheld. Mark v. Celebreeze, 4 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 5 whole, not just the evidence supporting the decision of the Commissioner. Weetman 6 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 7 526 (9th Cir. 1980)). 8 It is the role of the Commissioner, not this Court, to resolve conflicts in 9 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 10 interpretation, the Court may not substitute its judgment for that of the 11 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 12 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 13 set aside if the proper legal standards were not applied in weighing the evidence and 14 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 15 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 16 administrative findings, or if there is conflicting evidence that will support a finding 17 of either disability or nondisability, the finding of the Commissioner is conclusive. 18 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 19 20 7 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 C. Commissioner s Decision 2 The ALJ found that Plaintiff had not engaged in substantial gainful activity 3 since January 1, 2006, the alleged onset date, and met the insured status 4 requirements of the Social Security Act through June 30, 2009. (T at 23). The ALJ 5 determined that Plaintiff s degenerative disc disease was a medically determinable 6 impairment, but that it was not a severe impairment as defined under the Act. (T at 7 23-27). As such, the ALJ concluded that Plaintiff had not been under a disability, as 8 defined under the Act, from January 1, 2006 (the alleged onset date) through 9 November 3, 2010 (the date of the ALJ s decision) and was therefore not entitled to 10 benefits. (T at 27). As noted above, the ALJ s decision became the Commissioner s 11 final decision on April 11, 2012, when the Appeals Council denied Plaintiff s 12 request for review. (Tr. 1-6). 13 D. Plaintiff s Argument 14 This case presents a single issue whether the ALJ s step two analysis 15 concerning the severity of Plaintiff s degenerative disc disease was consistent with 16 applicable law and supported by substantial evidence. 17 18 19 20 8 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 IV. ANALYSIS 2 At step two of the sequential evaluation process, the ALJ must determine 3 whether the claimant has a severe impairment. See 20 C.F.R. §§ 404.1520(c), 4 416.920(c). The fact that a claimant has been diagnosed with and treated for a 5 medically determinable impairment does not necessarily mean the impairment is 6 severe, as defined by the Social Security Regulations. See, e.g., Fair v. Bowen, 7 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 8 1985). To establish severity, the evidence must show the diagnosed impairment 9 significantly limited the claimant's physical or mental ability to do basic work 10 activities for at least 12 consecutive months. 20 C.F.R. § 416.920(c). 11 The step two analysis is a screening device designed to dispose of de minimis 12 complaints. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). [A]n impairment 13 is found not severe . . . when medical evidence establishes only a slight abnormality 14 or a combination of slight abnormalities which would have no more than a minimal 15 effect on an individual s ability to work. Yuckert v. Bowen, 841 F.2d 303 (9th Cir. 16 1988) (quoting SSR 85-28). The claimant bears the burden of proof at this stage and 17 the severity requirement cannot be satisfied when medical evidence shows that the 18 person has the ability to perform basic work activities, as required in most jobs. 19 SSR 85-28. Basic work activities include: walking, standing, sitting, lifting, 20 9 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 pushing, pulling, reaching, carrying, or handling; seeing, hearing, speaking; 2 understanding, carrying out and remembering simple instructions; responding 3 appropriately to supervision, coworkers, and usual work situation. Id. 4 In this case, the ALJ found that Plaintiff s degenerative disc impairment did 5 not cause significant vocational limitations for at least 12 consecutive months and, 6 therefore, it was a non-severe impairment. (T at 27). This Court finds that the ALJ s 7 decision was supported by substantial evidence. 8 Plaintiff alleged an onset date of January 1, 2006. However, the earliest 9 treatment record is dated March 17, 2006, and concerns Plaintiff receiving a blood 10 test preliminary to an extended overseas trip. (T at 297). No reference is made to 11 any complaints of back or other pain. (T at 297). There is an indication that Plaintiff 12 next visited a physician on or about January 24, 2007, but the record contains no 13 evidence concerning the substance of that appointment. (T at 302). Plaintiff was 14 seen at the Spokane Falls Family Clinic on June 1, 2007, and complained of 15 dizziness. (T at 295). There is no indication that Plaintiff complained of back pain 16 and/or lumbar issues. (T at 295-96). 17 On August 10, 2007, Plaintiff saw Dr. Christopher Goodwin at the Spokane 18 Family Clinic and requested a handicap parking placard. (T at 294). 19 complained that he had difficulty walking due to neck and low back pain, as well as 20 10 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB Plaintiff 1 balance problems. (T at 294). Dr. Goodwin assessed degenerative disc disease of 2 the neck and lumbar spine and filled out the handicap placard, but made no other 3 findings and cited no imaging studies. (T at 294). 4 According to the record, Plaintiff s next visit to his physician occurred more 5 than four (4) months later, on December 21, 2007, following a motor vehicle 6 accident. (T at 297-98). Plaintiff complained that the accident had aggravated his 7 chronic neck, shoulder, and back pain. (T at 297). Dr. Goodwin assessed mild 8 residual aches and pains related to the motor vehicle accident, with [n]o acute 9 findings. (T at 293). 10 On January 22, 2008, Plaintiff was seen at the Lake Spokane Community 11 Health Center. He was seeking a prescription medication refill in advance of a 12 planned trip to Mexico. (T at 332). Derek Whitehall, a physician s assistant, noted a 13 diagnosis of chronic back pain, but described Plaintiff s spine as aligned, with full 14 range of motion and negative straight leg test results. (T at 332). 15 Mr. Whitehall treated Plaintiff again in March of 2008 for high blood 16 pressure. He described Plaintiff as in no obvious discomfort or distress. (T at 17 331). Although Mr. Whitehall noted Plaintiff s history of chronic back pain, he did 18 not report any limitations or concerns related to that condition. (T at 331). A 19 20 11 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 treatment note from November of 2008 referenced back pain secondary to blood 2 pressure issues. (T at 329-30). 3 On January 15, 2009, Dr. Peter Weir conducted a consultative examination. 4 Dr. Weir reported that Plaintiff ambulated without a limp. (T at 339). Although 5 Plaintiff used a cane in his right hand, Dr. Weir noted that he did not appear to bear 6 any weight on the cane. (T at 339). According to Dr. Weir, Plaintiff showed poor 7 effort on his range of motion and muscle strength testing, making the test results 8 invalid. (T at 341). Dr. Weir diagnosed degenerative disc disease of the cervical and 9 lumbar spine, but opined that Plaintiff s ability to stand, walk, and sit throughout an 10 8-hour day was not restricted. (T at 341). He also opined that Plaintiff did not 11 require the use of an assistive device and that his ability to lift and/or carry was not 12 restricted. (T at 341). Dr. Weir found no postural issues, environmental limitations, 13 or any problems with manual dexterity. (T at 341). He concluded that Plaintiff s 14 complaints of pain [were] subjective and not support[ed] by objective findings. (T 15 at 341). 16 An MRI of Plaintiff s spine in February of 2009 noted mild or minimal 17 findings. (T at 374-74). The report noted no significant change since an earlier MRI, 18 conducted in July of 2002 (well before the alleged onset date). (T at 374). An MRI 19 20 12 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 from February of 2010 found [s]table degenerative spondylosis of the lumbar 2 spine when compared to the 2002 MRI. (T at 386). 3 The foregoing evidence provides ample support for the ALJ s conclusion that 4 Plaintiff s condition was not severe. Plaintiff challenges this conclusion and cites an 5 April 2009 report from Marty Malone, a physician s assistant and treating provider. 6 Mr. Malone noted decreased range of motion, sensation, and muscle strength. (T at 7 379). He assessed moderate to marked limitations with basic work-related activities 8 related to neck and lower back pain. (T at 380). Mr. Malone opined that Plaintiff 9 would be limited to sedentary work. (T at 380). 10 The ALJ gave little weight to Mr. Malone s assessment, noting that he was 11 not an acceptable medical source. (T at 26). 12 Malone s opinion contradicted by the evidence and based primarily on Plaintiff s 13 subjective complaints, which the ALJ considered not fully credible. (T at 26). This 14 Court finds no reversible error in the ALJ s assessment. In addition, the ALJ found Mr. 15 The Social Security Regulations provide that [m]edical opinions are 16 statements from physicians and psychologists or other acceptable medical sources 17 that reflect judgments about the nature and severity of ... impairment(s).... 20 18 C.F.R. § 404.1527(a)(2). Section 404.1513(a) lists five categories of acceptable 19 medical sources. Physician s assistants are not listed in any of these categories. 20 13 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 Rather, these providers are listed in a separate section, under other sources whose 2 [i]nformation ... may ... help us to understand how [the] impairment affects your 3 ability to work. Id. (citing 20 C.F.R. § 404.1513(e) (1994)). 4 An ALJ is required to consider observations by non-medical sources as to 5 how an impairment affects a claimant's ability to work. Sprague v. Bowen, 812 F.2d 6 1226, 1232 (9th Cir. 1987); see also SSR 06-03p. The ALJ must provide germane 7 reasons before discounting other source opinions. Dodrill v. Shalala, 12 F.3d 915 8 (9th Cir. 1993). 9 Here, the ALJ recognized and discussed Mr. Malone s opinion (T at 26). 10 Given the evidence outlined above (including, in particular, the MRI results, 11 relatively sparse treatment history, and consultative examiner s assessment), it was 12 not unreasonable for the ALJ to conclude that Mr. Malone s opinion was based 13 substantially on Plaintiff s subjective complaints. The lack of medical support for a 14 medical source s opinion based substantially on a claimant s subjective complaints 15 of pain is a legitimate reason for discounting the opinion. Flaten v. Secretary of 16 Health and Human Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). Notably, the ALJ 17 found Plaintiff s complaints less than credible (T at 26-27), a finding consistent with 18 the consultative examiner s doubts concerning Plaintiff s effort (T at 341), and a 19 finding not challenged by Plaintiff before this Court. 20 14 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 Plaintiff contends that Mr. Malone s opinion should have been considered a 2 treating physician s opinion because the physician s assistant worked in 3 collaboration with a doctor. In Taylor v. Comm r of Soc. Sec., 659 F.3d 1228, 1234 4 (9th Cir. 2011), the Ninth Circuit concluded that a nurse practitioner should be 5 considered an acceptable medical source to the extent he or she was working 6 closely with, and under the supervision of a physician. The same logic has been 7 applied to the opinion of a physician s assistant. See Molina v. Astrue, 674 F.3d 8 1104, 1111 (9th Cir. 2012). However, the physician s assistant must be working 9 under a physician s close supervision. Id. at 1111. 10 Here, although Dr. June Goodman signed off on several of Mr. Malone s 11 treatment notes (T at 389, 393, 395, 400, 403), she does not appear to have reviewed 12 or signed off on the April 2009 opinion. (T at 381). As such, it is not clear whether 13 Mr. Malone developed his opinion while working under Dr. Goodman s close 14 supervision. 15 However, this Court need not resolve this issue. Even if Mr. Malone was 16 considered an acceptable medical source, the ALJ provided legally sufficient 17 reasons for discounting his opinion. Mr. Malone s opinion was contradicted by the 18 treatment history and notes, clinical tests and MRI results, and consultative 19 examiner s assessment. 20 The opinion was also based primarily upon Plaintiff s 15 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 subjective complaints, which the ALJ reasonably found not credible. Accordingly, 2 even under the higher standard applicable to acceptable medical source opinions, 3 the ALJ s decision to discount Mr. Malone s opinion was supported by substantial 4 evidence and must be sustained. 5 In essence, Plaintiff argues that the ALJ should have weighed the evidence 6 differently and resolved the conflicting assessments in favor of Mr. Malone s 7 opinion. However, it is the role of the Commissioner, not this Court, to resolve 8 conflicts in evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); 9 Richardson, 402 U.S. at 400. If the evidence supports more than one rational 10 interpretation, this Court may not substitute its judgment for that of the 11 Commissioner. Allen v. Heckler, 749 F.2d 577, 579 (9th 1984). If there is substantial 12 evidence to support the administrative findings, or if there is conflicting evidence 13 that will support a finding of either disability or nondisability, the Commissioner s 14 finding is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 15 Here, the ALJ s finding was supported by substantial evidence and is therefore 16 sustained. 17 18 19 20 16 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB V. CONCLUSION 1 2 After carefully reviewing the administrative record, this Court finds 3 substantial evidence supports the Commissioner s decision, including the objective 4 medical evidence and supported medical opinions. The ALJ thoroughly examined 5 the record, afforded appropriate weight to the medical evidence, including the 6 assessments of the examining medical providers, and afforded the subjective claims 7 of symptoms and limitations an appropriate weight when rendering his decision that 8 Plaintiff is not disabled. This Court finds no reversible error and because substantial 9 evidence supports the Commissioner s decision, the Commissioner is GRANTED 10 summary judgment and Plaintiff s motion for judgment summary judgment is 11 DENIED. 12 13 14 V. ORDERS IT IS THEREFORE ORDERED that: 15 Plaintiff s motion for summary judgment, Docket No. 15, is DENIED. 16 The Commissioner s motion for summary judgment, Docket No. 22, is 17 GRANTED. 18 19 20 17 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB 1 2 The District Court Executive is directed to file this Order, provide copies to counsel, enter judgment in favor of the Commissioner and CLOSE the file. 3 4 DATED this 6th day of March, 2014. 5 6 7 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 18 DECISION AND ORDER REUTOV v COLVIN 12-CV-00367-VEB

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