Pacios v. Colvin (previously Astrue), No. 2:2012cv05111 - Document 20 (E.D. Wash. 2014)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT, INTER ALIA; denying plaintiff's 15 Motion for Summary Judgment; granting defendant's 16 Motion for Summary Judgment; The Commissioner's decision denying benefits is AFFIRMED; the District Court Executive shall enter judgment accordingly. Signed by Senior Judge Lonny R. Suko. (LE, Case Administrator)
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Pacios v. Colvin (previously Astrue) Doc. 20 1 2 UNITED STATES DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON 4 5 6 7 8 9 10 11 12 ) ) ) Plaintiff, ) ) vs. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ______________________________ ) STEPHEN HUMPHREY PACIOS, No. 2:12-CV-05111-LRS ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 15) and the Defendant's Motion For Summary Judgment (ECF No. 16). 13 14 JURISDICTION 15 Stephen Humphrey Pacios, Plaintiff, applied for Title II Disability Insurance 16 benefits (DIB) and Title XVI Supplemental Security Income benefits (SSI) on June 17 4 and July 29, 2009, respectively. The applications were denied initially and on 18 reconsideration. Plaintiff timely requested a hearing and one was held on June 15, 19 2011, before Administrative Law Judge (ALJ) Moira Ausems via video. Plaintiff, 20 represented by counsel, testified at this hearing. Thomas Polsin testified as a 21 Vocational Expert (VE). On December 2, 2011, the ALJ issued a decision denying 22 benefits. The Appeals Council denied a request for review and the ALJ's decision 23 became the final decision of the Commissioner. This decision is appealable to district 24 court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). 25 26 STATEMENT OF FACTS 27 The facts have been presented in the administrative transcript, the ALJ's 28 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 the time of the administrative hearing, Plaintiff was 47 years old. He has a high 2 school education and past relevant work experience as a shipping clerk and as a 3 warehouse laborer. Plaintiff alleges disability since February 2, 2009, and his date 4 last insured for DIB was March 31, 2014. 5 STANDARD OF REVIEW 6 7 "The [Commissioner's] determination that a claimant is not disabled will be 8 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 9 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 10 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 11 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 12 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 13 1988). "It means such relevant evidence as a reasonable mind might accept as 14 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 15 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 16 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 17 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 18 On review, the court considers the record as a whole, not just the evidence supporting 19 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 20 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 21 It is the role of the trier of fact, not this court to resolve conflicts in evidence. 22 Richardson, 402 U.S. at 400. 23 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 24 F.2d 577, 579 (9th Cir. 1984). If evidence supports more than one rational 25 A decision supported by substantial evidence will still be set aside if the proper 26 legal standards were not applied in weighing the evidence and making the decision. 27 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 28 1987). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 2 1 ISSUES 2 Plaintiff argues the ALJ erred by: 1) omitting his trochanteric bursitis and 3 sacroilitis as “severe” impairments at step two of the sequential evaluation process; 4 2) improperly discounting his credibility regarding his subjective pain complaints and 5 claimed physical limitations; 3) improperly rejecting the opinions of his treating nurse 6 practitioner regarding his physical limitations; 4) improperly rejecting lay witness 7 opinion regarding his physical limitations; 5) arriving at a determination regarding 8 his residual functional capacity (RFC) which was at odds with his testimony and the 9 opinions of his treating nurse practitioner; and 5) failing to present a hypothetical to 10 the VE which included the full extent of his physical limitations. 11 12 13 DISCUSSION SEQUENTIAL EVALUATION PROCESS 14 The Social Security Act defines "disability" as the "inability to engage in any 15 substantial gainful activity by reason of any medically determinable physical or 16 mental impairment which can be expected to result in death or which has lasted or can 17 be expected to last for a continuous period of not less than twelve months." 42 18 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). The Act also provides that a claimant 19 shall be determined to be under a disability only if her impairments are of such 20 severity that the claimant is not only unable to do her previous work but cannot, 21 considering her age, education and work experiences, engage in any other substantial 22 gainful work which exists in the national economy. Id. 23 The Commissioner has established a five-step sequential evaluation process for 24 determining whether a person is disabled. 20 C.F.R. §§ 404.1520 and 416.920; 25 Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines 26 if she is engaged in substantial gainful activities. If she is, benefits are denied. 20 27 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If she is not, the decision-maker 28 proceeds to step two, which determines whether the claimant has a medically severe ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 3 1 impairment or combination of impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii) and 2 416.920(a)(4)(ii). If the claimant does not have a severe impairment or combination 3 of impairments, the disability claim is denied. If the impairment is severe, the 4 evaluation proceeds to the third step, which compares the claimant's impairment with 5 a number of listed impairments acknowledged by the Commissioner to be so severe 6 as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii) and 7 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 8 equals one of the listed impairments, the claimant is conclusively presumed to be 9 disabled. If the impairment is not one conclusively presumed to be disabling, the 10 evaluation proceeds to the fourth step which determines whether the impairment 11 prevents the claimant from performing work she has performed in the past. If the 12 claimant is able to perform her previous work, she is not disabled. 20 C.F.R. §§ 13 404.1520(a)(4)(iv) and 416.920(a)(4)(iv). If the claimant cannot perform this work, 14 the fifth and final step in the process determines whether she is able to perform other 15 work in the national economy in view of her age, education and work experience. 20 16 C.F.R. §§ 404.1520(a)(4)(v) and 416.920(a)(4)(v). 17 The initial burden of proof rests upon the claimant to establish a prima facie 18 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 19 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 20 mental impairment prevents her from engaging in her previous occupation. The 21 burden then shifts to the Commissioner to show (1) that the claimant can perform 22 other substantial gainful activity and (2) that a "significant number of jobs exist in the 23 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 24 1498 (9th Cir. 1984). 25 ALJ'S FINDINGS 26 The ALJ found the following: 1) Plaintiff has severe impairments which 27 include history of left femur fribroma that resulted in a spontaneous femur fracture 28 in 1980; history of right patellar fracture; mild left hip degenerative joint disease; ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 4 1 diffuse osteopenia; minute lumbar osteophyte formations and degenerative changes 2 of the apophyseal joint; and a seizure disorder; 2) Plaintiff does not have an 3 impairment or combination of impairments that meets or equals any of the 4 impairments listed in 20 C.F.R. § 404 Subpart P, App. 1; 3) Plaintiff has the residual 5 functional capacity (RFC) to perform sedentary work that does not require more than 6 occasional postural or manipulative activities or involve any climbing of ladders, 7 ropes, or scaffolds, or any exposure to hazards; 4) Plaintiff’s RFC prevents him from 8 performing his past relevant work; and 5) Plaintiff’s RFC allows him to perform other 9 jobs that exist in significant numbers in the national economy, including hand 10 packager, telephone solicitor, and cashier. Accordingly, the ALJ concluded the 11 Plaintiff is not disabled. 12 13 SEVERE IMPAIRMENT 14 A “severe” impairment is one which significantly limits physical or mental 15 ability to do basic work-related activities. 20 C.F.R. §§ 404.1520(c) and 416.920(c). 16 It must result from anatomical, physiological, or psychological abnormalities which 17 can be shown by medically acceptable clinical and laboratory diagnostic techniques. 18 It must be established by medical evidence consisting of signs, symptoms, and 19 laboratory findings, not just the claimant's statement of symptoms. 20 C.F.R. §§ 20 404.1508 and 416.908. 21 Step two is a de minimis inquiry designed to weed out nonmeritorious claims 22 at an early stage in the sequential evaluation process. Smolen v. Chater, 80 F.3d 23 1273, 1290 (9th Cir. 1996), citing Bowen, 482 U.S. at 153-54 ("[S]tep two inquiry is 24 a de minimis screening device to dispose of groundless claims"). "[O]nly those 25 claimants with slight abnormalities that do not significantly limit any basic work 26 activity can be denied benefits" at step two. Bowen, 482 U.S. at 158 (concurring 27 opinion). "Basic work activities" are the abilities and aptitudes to do most jobs, 28 including: 1) physical functions such as walking, standing, sitting, lifting, pushing, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 5 1 pulling, reaching, carrying, or handling; 2) capacities for seeing, hearing, and 2 speaking; 3) understanding, carrying out, and remembering simple instructions; 4) use 3 of judgment; 5) responding appropriately to supervision, co-workers and usual work 4 situations; and 6) dealing with changes in a routine work setting. 20 C.F.R. §§ 5 404.1521(b) and 416.921(b). 6 The ALJ’s omission of trochanteric bursitis in Plaintiff’s left hip (Tr. at p. 248) 7 and “left sacroilitis” (Tr. at p. 253) as “severe” impairments is of no consequence.1 8 These conditions relate to, and are not independent of, the severe impairments found 9 by the ALJ concerning Plaintiff’s back (minute lumbar osteophyte formations and 10 degenerative changes of the apophyseal joint) and left leg and left hip (history of left 11 femur fribroma that resulted in a spontaneous femur fracture in 1980; history of right 12 patellar fracture; mild left hip degenerative joint disease; diffuse osteopenia). There 13 is nothing in the record suggesting that the trochanteric bursitis and sacroilitis 14 exacerbated Plaintiff’s physical limitations or gave rise to separate additional 15 limitations not considered by the ALJ. Accordingly, the ALJ did not err in omitting 16 these as severe impairments. Furthermore, if there was any error, it was harmless. 17 18 CREDIBILITY/RFC 19 An ALJ can only reject a plaintiff’s statement about limitations based upon a 20 finding of “affirmative evidence” of malingering or “expressing clear and convincing 21 reasons” for doing so. Smolen, 80 F.3d at 1283-84. "In assessing the claimant's 22 credibility, the ALJ may use ordinary techniques of credibility evaluation, such as 23 considering the claimant's reputation for truthfulness and any inconsistent statements 24 25 1 “Sacroilitis” is used to describe any inflammation in the sacroiliac joint 26 which is located on either side of the sacrum (lower spine) that connects to the 27 iliac bone of the hip. See http://www.spine-health.com/conditions/sacroiliac-joint- 28 dysfunction/all-about-sacroilitis ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 6 1 in her testimony." Tonapeytan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). See 2 also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir.2002)(following factors may be 3 considered: 1) claimant's reputation for truthfulness; 2) inconsistencies in the 4 claimant's testimony or between her testimony and her conduct; 3) claimant’s daily 5 living activities; 4) claimant's work record; and 5) testimony from physicians or third 6 parties concerning the nature, severity, and effect of claimant's condition). 7 In January 2009, Jeffrey C. Cleven, M.D., noted the “[m]ost obvious 8 deficiency” was that Plaintiff’s left leg was slightly shorter than his right leg. (Tr. at 9 pp. 149-50). Dr. Cleven opined that some of Plaintiff’s “standing and walking 10 symptoms may relate to the hip and lumbar stresses from the discrepancy which can 11 be corrected with a heel lift, starting [at] about one-half inch.” (Tr. at p. 150). Dr. 12 Cleven referred Plaintiff to “Hangar Ortho” for a heel lift. (Id.). As noted by the 13 ALJ, subsequent medical records suggest he did not follow through with obtaining 14 the recommended heel lift. (Tr. at pp. 188, 194, 216, 228 and 257). The same is 15 suggested by Plaintiff’s own hearing testimony. (Tr. at p. 302). 16 There are, however, other medical records suggesting Plaintiff did use a heel 17 lift at times and that it was beneficial to him. Plaintiff saw John Staeheli, M.D., of 18 Northwest Orthopaedic, on September 30, 2010, and told him he had seen a doctor 19 in Portland, Oregon (Dr. Cleven) who recommended a heel lift, but “[t]his did not 20 seem to help and in fact he says it made the pain a little worse.” (Tr. at p. 234). A 21 November 10, 2010 chart note from Dr. Staeheli states “heel lift left shoe Stephen 22 reported decreased pain and increased ability to walk/stand without as noticeable 23 symptoms,” (Tr. at p. 223), and a November 15, 2010 chart note states “[h]ave been 24 using lift in shoe which helps when standing but walking having pain.” (Tr. at p. 25 222). And yet, a May 3, 2011 report from Dr. Staeheli indicates Plaintiff never used 26 a heel lift as the doctor had recommended: 27 28 I felt that his symptoms might well be relieved just using a shoe lift. He did not get this when I recommended [it] to him last fall as he felt the state should have paid for this and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 7 1 2 3 4 5 6 7 they did not do [so because of] the budget cutbacks. I told him that his insurance company will not pay for this type of device. I cut him three heel lifts out of felt that he can use in his shoe and suggested that he talk to a shoe repairman who can typically put a lift belt onto the bottom of his shoe for about $30 or so. We put him on a block test and found that about a 0.5-inch lift seemed to feel better. I think his symptoms are probably referred from his back and are aggravated by the leg-length discrepancy. I do not see anything that needs to be done in terms of any orthopedic surgery. (Tr. at p. 228). 8 At his administrative hearing, Plaintiff testified about his visits to Dr. Staeheli 9 and that he had recommended Plaintiff “go to the shoe repair guy . . . and the shoe 10 mall.” According to Plaintiff, however, “that didn’t seem quite . . . right to me.” (Tr. 11 at p. 302). The record shows, however, that all of the medical professionals 12 recognized and concurred that use of a heel lift would be appropriate. In November 13 2010, a physical therapist at Therapeutic Associates recommended that Plaintiff be 14 discharged from physical therapy, noting as follows: “In therapy use of shims under 15 foot/LE did correct standing posture and ease discomfort while upright. Stephen may 16 benefit from consult and set up of 3/4 inch to 1 inch build up/lift on shoes. 17 Recommend he be referred to appropriate specialist that can provide this service.” 18 (Tr. at p. 216). In January 2011, Aaron Thomason, the Plaintiff’s treating nurse 19 practitioner, indicated that “participation in training or employment activities was 20 appropriate at this time” for the Plaintiff, based on the “notes and recommendations” 21 from the orthopedist (Dr. Staeheli) who had evaluated him. (Tr. at p. 194). In March 22 2012, Plaintiff saw Janmeet S. Sahota, M.D., at the Tri-City Orthopaedic Clinic who 23 told Plaintiff “mostly his symptoms are likely due to his SI [sacroiliac] joint and 24 bursitis and the limb length discrepancy and he elected to proceed with getting his 25 shoes adjusted.” (Tr. at p. 264). Subsequent medical records suggest Plaintiff was 26 following up with getting his shoes adjusted. On March 15, 2012, Wing C. Chau, 27 M.D., of Tri-Cities Physical Medicine and Rehabilitation, P.C., noted Plaintiff “is 28 being followed by orthopedist and is getting lifts,” (Tr. at p. 254), and a March 28, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 8 1 2012 note from Jourdan C. Nicholls, D.P.M., indicated the plan was to add a half-inch 2 to Plaintiff’s left shoe.”2 3 The foregoing indicates Plaintiff failed to follow a specified course of 4 treatment (left heel lift) recommended from the very outset of his alleged disability 5 and repeatedly recommended thereafter. This constitutes a “clear and convincing” 6 reason to discount his credibility. An ALJ may consider an “unexplained or 7 inadequately explained failure to seek treatment or follow a prescribed course of 8 treatment” in evaluating the credibility of a claimant’s testimony. Smolen, 80 F.3d 9 at 1284.3 10 Mr. Thomason, a nurse practitioner with Tri-Cities Community Health, began 11 seeing the Plaintiff in approximately July 2010, after the Plaintiff’s move from 12 Portland, Oregon to Kennewick, Washington.4 In August 2010, he completed a 13 “Physical Evaluation” form for the Washington Department Social and Health 14 Services (DSHS) in conjunction with Plaintiff’s application for and receipt of general 15 16 2 Records from Tri-City Orthopaedic Clinic and Tri-Cities Physical 17 Medicine and Rehabilitation were made part of the record by the Appeals Council 18 and considered by it in denying review. (Tr. at pp. 6-9). 19 20 21 3 Plaintiff’s briefing does not challenge this reason cited by the ALJ for discounting his credibility. 4 As a nurse practitioner, Mr. Thomason is not a medically acceptable 22 treating source within the meaning of Social Security regulations. 20 C.F.R. 23 §404.1513(a) and 20 C.F.R. §416.913(a). Although his opinion cannot be 24 considered a medical opinion, it can still be considered to show the severity of the 25 Plaintiff’s impairments and how they affected his ability to work. 20 C.F.R. 26 §404.1513(d) and 20 C.F.R. §416.913(d). An ALJ can reject an opinion from an 27 “other source,” such as a nurse practitioner, by providing “germane” reasons for 28 doing so. Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 9 1 assistance benefits. In that evaluation, Mr. Thomason indicated Plaintiff’s left hip 2 impairment was of moderate to marked severity and affected his abilities to sit, stand, 3 walk, lift and carry. He further indicated that Plaintiff had restricted mobility, agility 4 or flexibility in terms of balancing, bending, climbing, crouching, sitting and 5 stooping.5 He opined that Plaintiff’s overall work level was “sedentary,” defined as 6 “the ability to lift 10 pounds maximum and frequently lift and/or carry such articles 7 as files and small tools,” and “may require sitting, walking and standing for brief 8 periods.” (Tr. at p. 205).6 Mr. Thomason indicated that Plaintiff was “able to 9 participate in pre-employment activities such as job search or employment classes.” 10 (Tr. at p. 206). In January 2011, Mr. Thomason indicated that Plaintiff was capable 11 of standing for 20 minutes before he needed to change positions; was capable of 12 sitting for 20 minutes before he needed to change positions; and could lift 10 pounds 13 frequently and greater than 5 pounds frequently. He acknowledged, however, that 14 this was “mostly based on [plaintiff’s] subjective history.” (Tr. at p. 193). And, as 15 noted above, he indicated that it was appropriate at that time for Plaintiff to 16 participate in training or employment activities. (Tr. at p. 194). 17 In her decision, the ALJ commented on Mr. Thomason’s January 2011 18 19 5 Contrary to Plaintiff’s assertion, however, this evaluation made no 20 representation regarding the extent of the restrictions and more specifically, 21 whether the Plaintiff could do these things less than “occasionally” throughout an 22 eight hour workday. 23 6 This is consistent with the definition of “sedentary” work found in the 24 Social Security regulations. Per those regulations, such work involves lifting 10 25 pounds maximum and occasionally lifting and/or carrying articles such as docket 26 files, ledgers, and small tools. It involves sitting, although a certain amount of 27 walking and standing is often necessary in carrying out job duties. 20 C.F.R. 28 §404.1567(a) and §416.967(a)). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 10 1 assessment as follows: In the questionnaire of January 6, 2011, ARNP Thompson (sic) described the claimant as able to stand/sit for 20 minutes before needing a change of position and as able to lift 10 pounds occasionally. Even these subjectively-reported limitations are generally consistent with the ability to perform sedentary work, although it is noted for the purpose of this decision that the record provides no support for a conclusion that the claimant requires an opportunity to alternate the position of sitting after a mere 20 minutes. 2 3 4 5 6 7 (Tr. at pp. 23-24). As indicated above, Mr. Thomason expressly noted that this 8 assessment was mostly based on the Plaintiff’s subjective history. In a questionnaire 9 Mr. Thomason completed in July 2010, he reported that Plaintiff could stand two 10 hours before needing to change positions, and sit one hour before needing to change 11 positions. (Tr. at p. 209).7 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 24 7 The ALJ questioned the Plaintiff’s credibility because of an April 13, 25 2011 chart note of Mr. Thomason which, according to the ALJ, indicated the 26 Plaintiff told Mr. Thomason he had “no pain” when sitting. (Tr. at p. 187). The 27 note appears to read, however, that “when stands still- no pain . . . when sits, picks 28 things up, walks, pain starts again in hip.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 11 1 The ALJ’s RFC determination is largely consistent with Mr. Thomason’s 2 assessment of Plaintiff’s physical limitations and, as such, constitutes another “clear 3 and convincing” reason offered by the ALJ to discount Plaintiff’s assertion that his 4 limitations are greater than those found by the ALJ.8 To the extent, if any, the RFC 5 determination is not consistent with Mr. Thomason’s assessment that Plaintiff needed 6 to alternate sitting and standing every twenty minutes, the ALJ provided a “germane” 7 8 8 9 It is unnecessary to analyze the other reasons offered by ALJ for discounting Plaintiff’s credibility. That said, in assessing the degree of pain the 10 Plaintiff claimed to be experiencing, it was appropriate for the ALJ to also 11 consider the fact Plaintiff was taking no prescription medication. Orteza v. 12 Shalala, 50 F.3d 748, 750 (9th Cir. 1995). In July 2010, Plaintiff informed the Tri- 13 Cities Community Health Center that his current medications were aspirin and 14 ibuprofen (Tr. at p. 207), and in September 2010, he apparently informed Dr. 15 Staeheli that he was “not taking anything for [pain] at the present time.” (Tr. at p. 16 234). 17 In her decision, the ALJ observed that “[s]ubsequent to January 5, 2009, the 18 claimant did not seek medical care from any source other than a brief period of 19 chiropractic therapy . . ., until July 15, 2010, a gap in treatment of one and one- 20 half years that does not provide support for his allegation of total disability under 21 the Social Security Act during that period.” (Tr. at p. 21). In a “Disability Report” 22 he completed for the Social Security Administration in July 2009, Plaintiff 23 explained that once he was laid off in January 2009, he lost his health insurance 24 and so he was unable to afford additional medical treatment, and his 25 unemployment income appeared too high to qualify for public assistance or 26 Medicaid. (Tr. at p. 107). This does not explain, however, how he was able to 27 afford chiropractic treatment for neck and shoulder pain between August 10, 2009 28 and September 22, 2009 (Tr. at pp. 151-175). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 12 1 reason for discounting the same, that being the assessment was based on Plaintiff’s 2 subjective statements. 3 Plaintiff testified he uses a cane to ambulate so he can put as much weight as 4 possible on his right side so his left hip does not hurt. (Tr. at p. 289). The ALJ did 5 not include this in her RFC determination and therefore, did not present it to the VE 6 in hypothetical questioning. While treating and examining medical sources noted 7 Plaintiff’s use of a cane, none of them stated it was necessary and/or prescribed its 8 use. A reasonable explanation is these sources believed the use of a left heel lift 9 would resolve the problem in Plaintiff’s left hip. The ALJ did not err in failing to 10 include Plaintiff’s use of a cane as part of her RFC determination. Therefore, she did 11 not err in failing to present such a limitation to the VE in the hypothetical questions 12 she presented to him. 13 14 LAY TESTIMONY 15 Lay testimony as to a claimant’s symptoms or how an impairment affects the 16 claimant’s ability to work is competent evidence that must be considered by an ALJ. 17 Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). In order to discount 18 competent lay witness testimony, the ALJ “must give reasons that are germane to 19 each witness.” Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 20 The “clear and convincing” reasons the ALJ offered for discounting Plaintiff’s 21 testimony as to his pain and functional limitations constitute “germane” reasons for 22 discounting the statement of his mother (Tr. at pp. 116-23) regarding Plaintiff’s 23 functional limitations. Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th 24 Cir. 2009)(because “the ALJ provided clear and convincing reasons for rejecting [the 25 claimant’s] own subjective complaints, and because [the lay witness’s] testimony was 26 similar to such complaints, it follows that the ALJ also gave germane reasons for 27 rejecting [the lay witness’s] testimony”). 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 13 1 VE HYPOTHETICALS/STEP FIVE 2 The ALJ’s ultimate RFC determination was presented to the VE in the form of 3 a hypothetical question and the VE identified several jobs existing in the national 4 economy which the Plaintiff would be capable of performing. (Tr. at pp. 308-311). 5 The ALJ, however, also presented a second hypothetical question asking the VE to 6 assume the Plaintiff required the option to sit or stand at will throughout an eight hour 7 workday. The VE testified the telephone solicitor position (6,700 jobs in Washington 8 State; 404,000 jobs in the United States) would allow for this option. On the other 9 hand, a sit/stand option would diminish by 50% the number of hand packager jobs 10 available. Accordingly, instead of 1,200 such jobs available in Washington, there 11 would be 600; and instead of 71,000 such jobs available in the United States, there 12 would be 35,500. (Tr. at pp. 311-12). Even with the reduced number of hand 13 packager jobs, however, there was still a significant number of jobs in the national 14 economy which Plaintiff would be capable of performing, considering the 404,000 15 available telephone solicitor jobs. 16 The VE testified the cashier position would allow a person to sit or stand at 17 will, but if a person chose to stand, that might require some bending at the waist 18 which could reduce the number of positions if the person was limited to less than 19 occasional bending. More specifically, according to the VE, if an individual stood 20 for 50% of the day to perform the cashier position, he would be bending more than 21 occasionally (more than 33% of the time). Accordingly, if he could not bend more 22 than occasionally, the cashier position would be eliminated. (Tr. at pp. 315-16). As 23 noted above, the ALJ determined that Plaintiff was limited to occasional bending. 24 The VE, however, also pointed out that the amount of bending depended on the 25 particular work station and the height of the individual: “I would expect a person that 26 was 5'10 to six feet tall, for example, is going to be - - if they’re standing and bending 27 over a desk 50 percent of the day - - that’s going to cause some other issues.” (Tr. at 28 p. 320). The record indicates Plaintiff is only 5'5 and ½" tall (Tr. at 192) and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 14 1 therefore, it is unclear whether performing the cashier position while standing would 2 present a problem for the Plaintiff in terms of bending. In the end, however, even if 3 the cashier position were disregarded, the VE still identified a significant numbers of 4 jobs (telephone solicitor and hand packager) in the national economy available to an 5 individual with Plaintiff’s RFC, even if it was also necessary for that individual to 6 have the option of sitting or standing at will throughout the workday. 7 CONCLUSION 8 9 Defendant’s Motion For Summary Judgment (ECF No. 16) is GRANTED and 10 Plaintiff’s Motion For Summary Judgment (ECF No. 15) is DENIED. 11 Commissioner's decision denying benefits is AFFIRMED. 12 13 14 IT IS SO ORDERED. The District Executive shall enter judgment accordingly and forward copies of the judgment and this order to counsel of record. DATED this 24th of February, 2014. 15 16 17 18 The s/Lonny R. Suko LONNY R. SUKO Senior United States District Judge 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 15
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