Gibbs v. Colvin (previously Astrue), No. 2:2012cv00392 - Document 28 (E.D. Wash. 2014)

Court Description: ORDER Granting (ECF No 21 ) Defendant's Motion for Summary Judgment (Denying (ECF No 18 ) Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (LS, Courtroom Deputy)

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1 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 4 5 GARY L. GIBBS, No. CV-12-392-JTR 6 7 Plaintiff, 8 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. 9 10 CAROLYN W. COLVIN, Commissioner of Social Security, 11 12 13 Defendant. Before the Court are cross-motions for summary judgment. ECF Nos. 18, 14 21. Attorney Dana C. Madsen represents Plaintiff; Special Assistant United States 15 Attorney Jeffrey R. McClain represents the Commissioner of Social Security 16 (Defendant). The parties have consented to proceed before a magistrate judge. 17 ECF No. 6. After reviewing the administrative record and the briefs filed by the 18 parties, the court GRANTS Defendant’s Motion for Summary Judgment and 19 DENIES Plaintiff’s Motion for Summary Judgment. 20 JURISDICTION 21 On October 13, 2009, Plaintiff filed a Title II application for a period of 22 disability and disability insurance benefits, along with a Title XVI application for 23 supplemental security income, both alleging disability beginning October 13, 1999. 24 Tr. 18; 120. Plaintiff reported that he could not work due to vision loss, severe 25 neck pain, and he explained that he frequently runs into objects due to his limited 26 vision and his limited range of motion in his neck. Tr. 124. Plaintiff’s claim was 27 denied initially and on reconsideration, and he requested a hearing before an 28 administrative law judge (ALJ). Tr. 62-99. A hearing was held on September 15, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 1 2010, at which vocational expert K. Diane Kramer, and Plaintiff, who was 2 represented by counsel, testified. Tr. 38-60. ALJ James W. Sherry presided. Tr. 3 36. The ALJ denied benefits on November 2, 2010. Tr. 18-26. The instant matter 4 is before this court pursuant to 42 U.S.C. § 405(g). 5 6 STATEMENT OF FACTS The facts have been presented in the administrative hearing transcript, the 7 ALJ’s decision, and the briefs of the parties and, thus, they are only briefly 8 summarized here. At the time of the hearing, Plaintiff was 36 years old, divorced, 9 and living with his 15 year old son in a single-wide trailer. Tr. 42-43. Plaintiff 10 11 completed the 11th grade, and eventually earned a GED. Tr. 43. Plaintiff testified that he worked as a fork lift driver for Spokane Packaging 12 until 1999, when he was involved in a motorcycle accident. Tr. 44-46; 95; 239. 13 He was not wearing a helmet, and as a result, he was briefly unconscious, and he 14 was subsequently hospitalized for eight days. Tr. 239; 245. He was discharged to 15 a rehabilitation facility, where he spent an additional 17 days. Tr. 245. Upon 16 discharge from the rehabilitation facility, Plaintiff’s diagnoses were: Moderate 17 closed head injury (approximately 24 hours or less loss of consciousness); C1-C2 18 stable fracture without spinal cord injury; alcohol dependence; and mixed 19 personality disorder with antisocial traits (possibly bipolar features). Tr. 245. 20 Plaintiff testified that as a result of the accident, he lost “peripheral vision 21 off the left side in both eyes.” Tr. 46. He testified his neck injury left him with 22 limited range of motion, and turning his neck is “really painful.” Tr. 46-47. 23 Plaintiff also testified that his short-term memory was detrimentally affected and is 24 “really bad.” Tr. 47. He testified that he has headaches two-to-three times per 25 week, that last between four and five hours. Tr. 54. He does not take any 26 medication for his headaches. Tr. 54. 27 28 Plaintiff testified that his mother or son cooks and cleans for him. Tr. 49-50. He testified that he spends his day watching television, or outside. Tr. 50-51. His ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 said his mother or girlfriend does his grocery shopping. Tr. 50-51. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 STANDARD OF REVIEW In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). The ALJ is responsible for determining credibility, resolving conflicts in 17 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 18 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 19 although deference is owed to a reasonable construction of the applicable statutes. 20 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 21 It is the role of the trier of fact, not this court, to resolve conflicts in 22 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 23 rational interpretation, the court may not substitute its judgment for that of the 24 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 25 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 26 still be set aside if the proper legal standards were not applied in weighing the 27 evidence and making the decision. Brawner v. Secretary of Health and Human 28 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 support the administrative findings, or if conflicting evidence exists that will 2 support a finding of either disability or non-disability, the Commissioner’s 3 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 4 Cir. 1987). 5 6 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 7 for determining whether a person is disabled. 8 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one 9 through four, the burden of proof rests upon the claimant to establish a prima facie 10 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 11 burden is met once a claimant establishes that a physical or mental impairment 12 prevents him from engaging in his previous occupation. 13 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 14 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 15 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 16 in the national economy which claimant can perform. Batson v. Commissioner of 17 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 18 adjustment to other work in the national economy, a finding of “disabled” is made. 19 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). 20 C.F.R. §§ ALJ’S FINDINGS 20 21 20 C.F.R. §§ 404.1520(a), At step one of the sequential evaluation process, the ALJ found Plaintiff has 22 not engaged in substantial gainful activity since March 12, 2004, the amended 23 onset date.1 Tr. 20. At step two, the ALJ found Plaintiff suffered from the severe 24 impairments of complete left homonymous hemianopsia (peripheral vision loss) 25 and a cervical spine fracture. Tr. 20. At step three, the ALJ found Plaintiff’s 26 27 28 1 During the Administrative hearing, Plaintiff amended his onset date to March 12, 2004. Tr. 20; 41-42. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 impairments, alone and in combination, did not meet or medically equal one of the 2 listed impairments. Tr. 22. The ALJ determined that Plaintiff had the residual 3 functional capacity (“RFC”) to perform light work: 4 5 6 7 8 9 Specifically, the claimant can lift no more than 20 pounds at a time and can frequently lift or carry 10 pounds. The claimant can stand/ walk 6 of 8 hours, sit 6 of 8 hours, push/pull within lifting restrictions and occasionally crawl. Further, the claimant should avoid concentrated exposure to irritants, such as fumes, odors, dust, chemicals, and gases, as well as, poorly ventilated areas. Additionally, the claimant can perform work requiring occasional peripheral acuity and depth perception. 10 11 Tr. 22. 12 At step four, the ALJ found that Plaintiff is unable to perform any past 13 relevant work. Tr. 25. At step five, the ALJ concluded that considering Plaintiff’s 14 age, education, work experience, and residual functional capacity, jobs exist in 15 significant numbers in the national economy that Plaintiff can perform, such as 16 cleaner, survey worker, and mail clerk. Tr. 26. The ALJ concluded Plaintiff was 17 not disabled as defined by the Social Security Act. Tr. 26. 18 19 20 ISSUES Plaintiff contends the ALJ erred by improperly weighing the medical opinions. ECF No. 19 at 7-11. 2 21 22 23 2 Plaintiff’s briefing includes a cursory observation that the ALJ found 24 Plaintiff had no psychological impairment at step two. ECF No. 19 at 10. It is far 25 from clear that Plaintiff intended to raise this as an issue, because Plaintiff’s 26 briefing failed to list discrete issues. The court ordinarily will not consider matters 27 on appeal that are not specifically and distinctly argued in an appellant's opening 28 brief. See Carmickle v. Comm'r Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 2 DISCUSSION A. Dennis Pollack, Ph.D. 3 Plaintiff argues that the ALJ improperly weighed the opinion from Dennis 4 Pollack, Ph.D. ECF No. 19 at 9-10. On September 10, 2010, Dennis R. Pollack, 5 Ph.D., examined Plaintiff and completed a report about his findings. Tr. 228-33. 6 During the exam, Dr. Pollack administered several objective tests related to 7 intelligence, memory, personality and neuropsychological functioning. Tr. 230-32. 8 Dr. Pollack diagnosed Plaintiff with a cognitive disorder due to head trauma, and a 9 personality disorder, NOS. Tr. 233. 10 On September 12, 2010, Dr. Pollack completed a Mental Medical Source 11 Statement form. Tr. 234-37. In that form, Dr. Pollack found that Plaintiff was 12 markedly limited in both his ability to: (1) complete a normal workday and 13 workweek without interruptions from psychologically based symptoms and to 14 perform at a consistent pace without an unreasonable number and length of rest 15 periods; and (2) accept instructions and respond appropriately to criticism from 16 supervisors. Tr. 235. Additionally, Dr. Pollack found that Plaintiff would have 17 moderate limitation in his ability to be aware of normal hazards and take 18 appropriate precautions. Tr. 236. 19 The ALJ found Dr. Pollack’s opinion less persuasive than the opinion from 20 Dr. Bostwick. Specifically, the ALJ noted that Dr. Pollack’s check-marked 21 findings were internally inconsistent. Tr. 21. The ALJ explained that Dr. Pollack 22 assessed Plaintiff would be markedly limited in the ability to complete a normal 23 workweek, Dr. Pollack also opined Plaintiff would have no limitation in his ability 24 to maintain attention and concentration for extended periods, and Plaintiff has only 25 mild limitation in his ability to sustain an ordinary routine. Tr. 21. Also, the ALJ 26 27 Cir. 2008). As a result of Plaintiff’s failure to specifically set forth a challenge to 28 the ALJ’s Step Two determinations, the court will not address this issue. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 found that Dr. Pollack’s assessed limitations are contradicted by Plaintiff’s 2 activities of daily living. Tr. 21. In support, the ALJ cited Plaintiff’s admission to 3 Dr. Bostwick that he does his own laundry, shopping, he performs automotive 4 repair, drag racing, reads, watches movies, performs yard work, and he plays video 5 games with his son. Tr. 21. 6 The medical opinions of three types of medical sources are recognized in 7 social security cases: "(1) those who treat the claimant (treating physicians); (2) 8 those who examine but do not treat the claimant (examining physicians); and (3) 9 those who neither examine nor treat the claimant (nonexamining physicians)." 10 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, a treating physician's 11 opinion should be accorded more weight than opinions of doctors who did not treat 12 the claimant, and an examining physician's opinion is entitled to greater weight 13 than a non-examining physician's opinion. Id. However, "[t]he ALJ is responsible 14 for determining credibility and resolving conflicts in medical testimony." 15 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 16 An ALJ may properly reject a treating physician's opinion that is conclusory 17 and unsupported by clinical findings, particularly check-the-box style forms. See 18 Batson, 359 F.3d at 1195 (holding that the ALJ did not err in giving minimal 19 evidentiary weight to the opinions of the plaintiff's treating physician where the 20 opinion was in the form of a checklist, did not have supportive objective evidence, 21 was contradicted by other statements and assessments of the plaintiff's medical 22 condition, and was based on the plaintiff's subjective descriptions of pain). When 23 providing reasons for rejecting opinion evidence, the ALJ should provide “a 24 detailed and thorough summary of the facts and conflicting clinical evidence, 25 stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 26 F.3d 715, 725 (9th Cir. 1998). The ALJ must do more than merely state his 27 conclusions: "[h]e must set forth his own interpretations and explain why they, 28 rather than the doctors', are correct." Id. (citing Embrey v. Bowen, 849 F.2d 418, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 421-22 (9th Cir. 1988)). Plaintiff complains that the ALJ’s reason for giving less weight to Dr. 2 3 Pollack’s opinion is simply boilerplate and fails to provide sufficient specificity. 4 ECF No. 19 at 11. Plaintiff fails to recognize that the ALJ provided specific 5 examples from the record that support his reasoning. For example, the ALJ cited 6 to the internal inconsistency in Dr. Pollack’s report. Tr. 21. Additionally, the ALJ 7 provided specific examples of the contradiction between Dr. Pollack’s opinion of 8 Plaintiff’s functional limits and Plaintiff’s specific admissions to Dr. Bostwick that 9 evidenced his ability to independently perform activities of daily living. Tr. 21; 10 196-98. 11 The ALJ offered specific and legitimate reasons to discount the contradicted 12 opinions of Dr. Pollack; namely, internal inconsistency, and inconsistency with 13 Plaintiff’s activities of daily living. Tr. 21. Both are supported by the record, and 14 are proper reasons to afford Dr. Pollack’s opinion little weight. See Roberts v. 15 Shalala, 66 F.3d at 184 (rejecting an opinion that contains internal inconsistencies 16 is a specific and legitimate reason to discount the opinion; rejection of examining 17 psychologist's functional assessment which conflicted with his own written report 18 and test results); Regennitter v. Commissioner of SSA, 166 F.3d 1294, 1297 (9th 19 Cir. 1998) (inconsistencies with clinical observations can "satisfy the requirement 20 of a clear and convincing reason for discrediting a claimant's testimony"); Rollins 21 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (ALJ may reject the claimant's 22 testimony when inconsistent with the claimant's daily activities and contrary to the 23 medical evidence). The ALJ’s reasoning is supported by the record. 24 B. 25 Donald Ankov, M.D. Plaintiff argues that the ALJ improperly rejected the opinion from Donald 26 Ankov, M.D. ECF No. 19 at 8. On July 9, 2009, Donald Ankov, M.D., completed 27 a form entitled, “Certification for Medicaid: GAX Decision.” Tr. 226. In the 28 form, Dr. Ankov references two June 2009 eye exam records that revealed, in part, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 that Plaintiff had bilateral vision field loss on the left and hemienopsia. Tr. 226. 3 2 Dr. Ankov summarily concluded that Plaintiff would “likely meet the Listing 3 2.03.” Tr. 226. 4 The ALJ rejected Dr. Ankov’s opinion that Plaintiff met Listing 2.03 5 because the opinion was equivocal, cursory, and failed to provide a medical 6 explanation. Tr. 22. An ALJ may discredit treating physicians' opinions that are 7 conclusory, brief, and unsupported by the record as a whole, or by objective 8 medical findings. Batson, 359 F.3d at 1195. 9 As the ALJ found, Dr. Ankov’s opinion that Plaintiff’s vision impairment 10 would “likely” meet Listing 2.03 was not accompanied by an explanation, testing, 11 or clinical notes other than the notations from medical records from Plaintiff’s eye 12 exams. Tr. 226. Listing 2.03 requires contraction of the visual field in the better 13 eye with (a) the widest diameter subtending an angle around the point of fixation 14 no greater than 20 degrees; (b) a mean deviation of -22 or worse, determined by 15 automated static threshold perimetry as described in Listing 2.00(A)(6)(a)(v); or 16 (c) a visual field efficiency of 20 percent or less as determined by kinetic 17 perimetry. See 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 2.03. Dr. Ankov’s minimal 18 assessment provided insufficient data on which to determine if Plaintiff’s vision 19 impairment met Listing 2.03. As such, the ALJ’s rejection of Dr. Ankov’s opinion 20 that Plaintiff may meet Listing 2.03 was specific and legitimate, and supported by 21 the record. 22 23 3 24 6/18/09: bilateral field loss on left. Va without correction 2/50 on L), 25 20/40 on R), 20/30 both eyes. 26 Ophthalmology exam 6/17/09: corrected Va R) 20/230-2, L) 20/20. 27 Bilateral L)h. hemienopsia. 28 Dr. Ankov noted: Tr. 226. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 2 C. Debra A. Stimpson, PA-C Finally, Plaintiff argues that the ALJ improperly rejected the opinion from 3 Debra Stimpson, PA-C. ECF No. 19 at 8. On June 16, 2009, Ms. Stimpson 4 completed a Physical Evaluation form. Tr. 180-83. In the form, Ms. Stimpson 5 found that Plaintiff’s visual field defect would present an inability to perform one 6 or more basic work-related activities, and his neck impairment would pose a mild 7 interference with work-related activities. Tr. 182. Ms. Stimpson concluded that 8 Plaintiff was limited to sedentary work. Tr. 182. Also included in the record is a 9 chart note from Plaintiff’s office visit with Ms. Stimpson on June 15, 2009. Tr. 10 11 184-87. The ALJ gave little weight to Ms. Stimpson’s opinion that Plaintiff was 12 limited to sedentary work because she failed to explain the correlation between 13 Plaintiff’s visual field defect and her sedentary work rating. Tr. 24. Plaintiff 14 argues that Ms. Stimpson’s evaluation was improperly rejected because Ms. 15 Stimpson examined Plaintiff, and upon examination noted that Plaintiff had a 16 decreased range of motion with left rotation. ECF No. 19 at 8. 17 The ALJ’s reason is specific and legitimate and supported by substantial 18 evidence. As the ALJ noted, Ms. Stimpson failed to explain how or why 19 Plaintiff’s visual impairment or his limited range of motion in his neck on his left 20 side rendered him unable to perform work other than sedentary work. The ALJ 21 may reject an opinion that is brief, conclusory, or inadequately supported by 22 clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). A 23 careful review of Ms. Stimpson’s Physical Evaluation and the chart notes from the 24 examination do not reveal facts or explanation that would support her opinion that 25 Plaintiff is limited to sedentary work. As such, the ALJ’s rejection of Ms. 26 Stimpson’s opinion was not error. 27 28 CONCLUSION Having reviewed the record and the ALJ’s conclusions, this court finds that ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 the ALJ’s decision is supported by substantial evidence and free of legal error. 2 Accordingly, 3 IT IS ORDERED: 4 1. 5 Defendant’s Motion for Summary Judgment, ECF No. 21, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is DENIED. 6 2. 7 IT IS SO ORDERED. The District Court Executive is directed to file this 8 Order, provide copies to the parties, enter judgment in favor of Defendant, and 9 CLOSE this file. 10 DATED February 19, 2014. 11 12 13 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11

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