Barraza v. Colvin (previously Astrue), No. 2:2012cv05165 - Document 20 (E.D. Wash. 2014)

Court Description: ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Defendants Motion for Summary Judgment ECF No. 18 is GRANTED. Plaintiffs Motion for Summary Judgment ECF No. 14 is DENIED. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Barraza v. Colvin (previously Astrue) Doc. 20 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 ISMAEL BARRAZA, NO: 12-CV-5165-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. 14 and 18). Plaintiff is represented by Corey J. Brandt. 16 Defendant is represented by Terrye E. Shea. This matter was submitted for 17 consideration without oral argument. The Court has reviewed the administrative 18 record and the parties’ completed briefing and is fully informed. For the reasons 19 discussed below, the Court grants Defendant’s motion and denies Plaintiff’s 20 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. § 1382c(a)(3)(A). Second, the claimant’s impairment must be 13 “of such severity that he is not only unable to do his previous work[,] but cannot, 14 considering his age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy.” 42 U.S.C. § 16 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 the 4 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, the 11 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 other 19 work, the analysis concludes with a finding that the claimant is disabled and is 20 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. 2012). 7 8 9 ALJ’S FINDINGS Plaintiff filed applications for disability insurance benefits and supplemental security income disability benefits on January 27, 2012. Tr. 159-74. These 10 applications were denied initially and upon reconsideration, Tr. 90-93, 98-103, and 11 a hearing was requested, Tr. 104-05. A hearing was held before an Administrative 12 Law Judge on June 8, 2012. Tr. 31-51. The ALJ rendered a decision denying 13 Plaintiff benefits on June 25, 2012. Tr. 17-26. 14 The ALJ found that Plaintiff met the insured status requirements of Title II 15 of the Social Security Act through December 31, 2014. Tr. 19. At step one, the 16 ALJ found that Plaintiff had not engaged in substantial gainful activity since July 17 24, 2009, the alleged onset date. Id. At step two, the ALJ found that Plaintiff had 18 severe impairments, id., but at step three, the ALJ found that Plaintiff’s 19 impairments did not meet or medically equal a listed impairment. Tr. 22. The ALJ 20 then determined that Plaintiff had the residual functional capacity to: ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 2 3 4 perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with occasional climbing ramps or stairs, balancing, stooping, kneeling, crouching, and crawling. He should never climb ladders, ropes, or scaffolds. He has a hearing loss in the left ear with normal hearing on the right. He should avoid concentrated exposure to respiratory irritants and hazards such as unprotected heights or dangerous machinery. 5 Id. At step four, the ALJ found that Plaintiff was not able to perform his past 6 relevant work as a respiratory therapist. Tr. 24-25. After considering the 7 Plaintiff’s age, education, work experience, and residual functional capacity, the 8 ALJ concluded that there are jobs that exist in significant numbers in the national 9 economy that the Plaintiff can perform in the representative occupations such as 10 cashier II, retail price marker, or mail clerk. Tr. 25-26. Thus, the ALJ concluded 11 that Plaintiff was not disabled and denied his claims on that basis. Id. 12 The Appeals Council denied Plaintiff’s request for review on November 8, 13 2012, making the ALJ’s decision the Commissioner’s final decision for purposes 14 of judicial review. Tr. 1-6; 20 C.F.R. §§ 404.981, 416.1484, and 422.210. 15 ISSUES 16 Plaintiff raises three issues for review: 1) Whether the ALJ improperly 17 rejected the opinions of the Plaintiff’s treating and examining doctors; 2) Whether 18 the ALJ improperly rejected the Plaintiff’s subjective complaints; and 3) Whether 19 the ALJ failed to identify specific jobs, available in significant numbers, which 20 Plaintiff could perform in light of his functional limitations. ECF No. 14 at 9. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 3 DISCUSSION A. Opinions of Treating and Examining Doctor Plaintiff contends that the ALJ erred in rejecting the opinion of treating 4 physician Dr. Field that Plaintiff would miss four or more days of work each 5 month and would have to lie down during the day. ECF No. 14 at 12. 6 A treating physician’s opinions are entitled to substantial weight in social 7 security proceedings. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 8 (9th Cir. 2009). If a treating or examining physician’s opinion is uncontradicted, 9 an ALJ may reject it only by offering “clear and convincing reasons that are 10 supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 11 Cir. 2005). “However, the ALJ need not accept the opinion of any physician, 12 including a treating physician, if that opinion is brief, conclusory and inadequately 13 supported by clinical findings.” Bray, 554 F.3d at 1228 (quotation and citation 14 omitted). “If a treating or examining doctor’s opinion is contradicted by another 15 doctor’s opinion, an ALJ may only reject it by providing specific and legitimate 16 reasons that are supported by substantial evidence.” Bayliss, 427 F.3d at 1216 17 (citing Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995)). An ALJ may also 18 reject a treating physician’s opinion which is “based to a large extent on a 19 claimant’s self-reports that have been properly discounted as incredible.” 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (internal quotation and 2 citation omitted). 3 While the ALJ agreed with Dr. Field’s opinion that Plaintiff could do light 4 work, Tr. 24; 430-43, 458-60, the ALJ rejected Dr. Field’s conclusion that Plaintiff 5 “is unable to work” and that he would be expected to miss work “4 or more days 6 per month,” Tr. 24; 350-53; 430-34, 458-60. The ALJ fully explained that 7 Plaintiff’s oncologist, Dr. Iacoboni, agreed in March 2012 to certify Plaintiff for 8 temporary disability, based on his request, due to “the disruption in his life from 9 the surgery and chemotherapy.” Tr. 24. The ALJ explained that he gave this 10 opinion only some weight in light of the temporary nature and lack of functional 11 limitations given. Id. The ALJ further explained that Dr. Iacoboni reported 12 Plaintiff was working out 6 days a week at the time, appeared healthy and alert, 13 and had been able to gain some weight. Tr. 23; 356. The ALJ observed that 14 oncology treatment notes indicate he had "pretty good" treatment tolerance overall, 15 other than one incidence of pancreatitis. Tr. 23; 360 (2/9/12: doing very well, no 16 nausea vomiting or diarrhea); 354 (2/23/12: doing pretty well, seventh round of 17 chemotherapy 10 days ago, mild nausea, but completely recovered, recommend 18 one more round of chemotherapy). 19 20 The ALJ credited the medical expert, Dr. Sklaroff’s testimony that the progress notes indicate Plaintiff generally felt well on what can be described as ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 relatively mild chemotherapy treatment for a finite period of time, if not already 2 completed. Tr. 22. While Dr. Field opined that Plaintiff would need to elevate his 3 legs later in the day, Tr. 430-34; 458-60, the ALJ observed that Plaintiff did not 4 even begin to complain about his feet and knee pain until April 2012, Tr. 422. 5 Most importantly, the ALJ observed that there was no support in the record for the 6 recommendation to elevate his legs. 7 Having reviewed the entire record, the Court finds that the ALJ’s rejection 8 of Dr. Field’s conclusion concerning Plaintiff’s ability to work is grounded in clear 9 and convincing reasons supported by substantial evidence. 10 11 B. Plaintiff’s Subjective Complaints In social security proceedings, a claimant must prove the existence of 12 physical or mental impairment with “medical evidence consisting of signs, 13 symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908; 416.927. A 14 claimant’s statements about his or her symptoms alone will not suffice. 20 C.F.R. 15 §§ 416.908; 416.927. Once an impairment has been proven to exist, the claimant 16 need not offer further medical evidence to substantiate the alleged severity of his or 17 her symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 18 As long as the impairment “could reasonably be expected to produce [the] 19 symptoms,” the claimant may offer a subjective evaluation as to the severity of the 20 impairment. Id. This rule recognizes that the severity of a claimant’s symptoms ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 “cannot be objectively verified or measured.” Id. at 347 (quotation and citation 2 omitted). 3 In the event that an ALJ finds the claimant’s subjective assessment 4 unreliable, “the ALJ must make a credibility determination with findings 5 sufficiently specific to permit [a reviewing] court to conclude that the ALJ did not 6 arbitrarily discredit claimant's testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 7 (9th Cir. 2002). In making such a determination, the ALJ may consider, inter alia: 8 (1) the claimant’s reputation for truthfulness; (2) inconsistencies in the claimant’s 9 testimony or between his testimony and his conduct; (3) the claimant’s daily living 10 activities; (4) the claimant’s work record; and (5) testimony from physicians or 11 third parties concerning the nature, severity, and effect of the claimant’s condition. 12 Id. If there is no evidence of malingering, the ALJ’s reasons for discrediting the 13 claimant's testimony must be “specific, clear and convincing.” Chaudhry v. Astrue, 14 688 F.3d 661, 672 (9th Cir. 2012) (quotation and citation omitted). The ALJ “must 15 specifically identify the testimony she or he finds not to be credible and must 16 explain what evidence undermines the testimony.” Holohan v. Massanari, 246 17 F.3d 1195, 1208 (9th Cir. 2001). 18 Plaintiff claims that the ALJ failed to provide clear and convincing reasons 19 supported by substantial evidence for discrediting his subjective complaints. ECF 20 No. 14 at 16. At the hearing, Plaintiff testified to a myriad of symptoms and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 limitations. Tr. 23 (e.g., He has low energy and feels very weak, such that he will 2 need to lie down 3-4 times day for up to 2-3 hours each time. Other days he won't 3 have to lie down, but will sit and watch TV. He testified he is in bed approximately 4 15 days every month. His diarrhea is constant and he needs to go to the bathroom 5 every 15-30 minutes.). 6 Contrary to Plaintiff’s assertions, the ALJ provided a number of clear and 7 convincing reasons for discounting his testimony. First, the ALJ noted that, the 8 claimant described a very limited lifestyle at the hearing because of side effects of 9 chemotherapy and because of pain in his knees and feet. Tr. 23. The ALJ found 10 11 12 13 14 15 16 17 18 19 20 the medical evidence of record simply does not support his claims. Oncology treatment notes at Exhibit 6F indicate he had "pretty good" treatment tolerance overall, other than one incidence of pancreatitis in November 2010, and Dr. Sklaroff described the chemotherapy as "relatively mild" despite the claimant's claims of extremely high doses. Indeed, the claimant's request for temporary disability in March 2012 because he felt "pretty weakened" by the chemo, appeared to come unexpectedly. Dr. Iacoboni reported he was working out 6 days a week at the time, appeared healthy and alert, and had been able to gain some weight. Regarding his complaints of pain in the knees and feet, he testified that his knee has not been the same since his injury in 2005, yet he worked successfully as a respiratory therapist until 2009, telling Dr. Field at 21F that he was on his feet most of the time in that job. Treatment notes do not document any complaints regarding his knees or feet until April 2012 at 10F. The claimant is alleging disability since July 24, 2009, but the basis for his claim is not clear. According to Exhibit 2E/2, he was laid off for reasons other than disability and there are no treatment records until September 2009 at Exhibit lF, at which time he was described as "generally very healthy," other than bouts of bronchitis in the winter. Indeed, in November 2009 he was requesting a signature on a form that said he was in good health. It is not until he was evaluated by the gastroenterologist in August 2011 and found to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 2 have a GI bleed that his condition could be considered serious in any way. Even at that time (Exhibit 3F), he denied any significant past medical history until about 10 months earlier when he started having burning pain in the epigastric area. 3 4 Tr. 23-24. 5 Having thoroughly reviewed the record, the Court concludes that these 6 reasons are supported by substantial evidence. The ALJ did not err in relying upon 7 them as a basis for not fully crediting Plaintiff’s testimony about the disabling 8 effects of his impairments. 9 10 C. Specific Jobs in the National Economy Plaintiff step 5 argument is dependent upon successfully overturning the 11 ALJ’s decision concerning the arguments presented above. Having rejected those 12 arguments, the Court finds the ALJ’s step 5 decision is supported by substantial 13 evidence. Considering Plaintiff’s age, education, work experience, and residual 14 functional capacity, the ALJ found he could still perform other jobs that existed in 15 the national economy including representative positions such as: cashier II, with 16 25,000 jobs in Washington and 1,000,000 jobs in the nation; retail price marker, 17 with 1,500 jobs in Washington and 75,000 in the nation; and mail clerk, with 3,000 18 jobs in Washington and 130,000 in the nation. 19 Accordingly, Defendant is entitled to summary judgment. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 2 3 IT IS HEREBY ORDERED: 1. Defendant’s Motion for Summary Judgment (ECF No. 18) is GRANTED. 4 2. Plaintiff’s Motion for Summary Judgment (ECF No. 14) is DENIED. 5 The District Court Executive is hereby directed to file this Order, enter 6 7 Judgment for Defendant, provide copies to counsel, and CLOSE the file. DATED March 11, 2014. 8 9 THOMAS O. RICE United States District Judge 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14

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