Malmsten v. Colvin (previously Astrue), No. 2:2013cv00028 - Document 14 (E.D. Wash. 2013)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Defendants Motion for Summary Judgment ECF No. 13 is GRANTED. Plaintiffs Motion for Summary Judgment ECF No. 12 is DENIED. The file is CLOSED. Signed by Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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Malmsten v. Colvin (previously Astrue) Doc. 14 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 SARA A. MALMSTEN, NO: 13-CV-0028-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. 12 and 13). Plaintiff is represented by Lora Lee Stover. 16 Defendant is represented by Franco L. Becia. 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 ALJ’S FINDINGS 8 Plaintiff filed applications for disability insurance benefits and supplemental 9 security income disability benefits on September 10, 2010, alleging a disability 10 onset date of November 15, 1982.1 Tr. 221-37. These applications were denied 11 initially and upon reconsideration, and Plaintiff requested a hearing. Tr. 170-76, 12 184-87, 192-93. A hearing was held before an Administrative Law Judge on 13 August 16, 2011. Tr. 41-88. The ALJ rendered a decision denying Plaintiff 14 benefits on October 14, 2011. Tr. 23-34. 15 The ALJ found that Plaintiff met the insured status requirements of Title II 16 of the Social Security Act through March 31, 2010. Tr. 25. At step one, the ALJ 17 1 18 Plaintiff also filed an application for child disability benefits on the same date. 19 The Commissioner’s disposition of that application is not at issue here. Plaintiff’s 20 alleged onset date was subsequently amended to November 15, 2000. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 found that Plaintiff had not engaged in substantial gainful activity since November 2 15, 2000, the amended alleged onset date. Tr. 26. At step two, the ALJ found that 3 Plaintiff had severe impairments consisting of (1) disorders of the spine involving 4 thoracolumbar scoliosis (status post thoracic fusion) and multi-level lumbar 5 spondylosis; (2) history of cerebral palsy; (3) reactive airway disease (asthma); (4) 6 visual disturbance involving left exotropia with visual field constriction; and (5) 7 learning/math disorder. Tr. 26. At step three, the ALJ found that Plaintiff’s severe 8 impairments did not meet or medically equal a listed impairment. Tr. 26. The ALJ 9 then determined that Plaintiff had the residual functional capacity to: 10 11 12 13 14 15 Perform a wide range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a). She would be able to perform work that does not involve lifting and/or carrying more than a maximum of 10 pounds at a time; lifting and/or carrying articles such as dockets files, ledgers, or small tools more than occasionally; any pushing or pulling in excess of lifting restrictions; standing and/or walking for more than a total of two hours in an eight-hour workday; any climbing of ladders, ropes, or scaffolds; climbing of ramps or stairs more than occasionally; balancing, stooping, crouching, kneeling, or crawling more than occasionally; any concentrated exposure to unprotected heights or use of moving machinery; or more than simple, routine, and repetitive tasks. 16 Tr. 28-32. At step four, the ALJ found that Plaintiff had no past relevant work. Tr. 17 32. At step five, the ALJ found that Plaintiff could perform the representative 18 occupations of hand packager, telephone solicitor and cashier, and that such 19 occupations existed in significant numbers in the national economy. Tr. 33. In 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 light of this step five finding, the ALJ concluded that Plaintiff was not disabled 2 under the Social Security Act and denied her claims on that basis. Tr. 33-34. 3 The Appeals Council denied Plaintiff’s request for review on November 30, 4 2012, making the ALJ’s decision the Commissioner’s final decision for purposes 5 of judicial review. Tr. 1-6; 20 C.F.R. §§ 404.981, 416.1484, and 422.210. 6 ISSUES 7 Plaintiff raises three issues for review: 8 1. Whether the ALJ erred in rejecting Plaintiff’s subjective complaints of disabling pain; 9 10 2. Whether the ALJ properly considered the opinions of two examining physicians; and 11 3. Whether the ALJ erred at step five. 12 13 14 15 ECF No. 12 at 8-15. DISCUSSION A. Adverse Credibility Determination In social security proceedings, a claimant must prove the existence of 16 physical or mental impairment with “medical evidence consisting of signs, 17 symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908; 416.927. A 18 claimant’s statements about his or her symptoms alone will not suffice. 20 C.F.R. 19 §§ 416.908; 416.927. Once an impairment has been proven to exist, the claimant 20 need not offer further medical evidence to substantiate the alleged severity of his or ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 her symptoms. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). 2 As long as the impairment “could reasonably be expected to produce [the] 3 symptoms,” the claimant may offer a subjective evaluation as to the severity of the 4 impairment. Id. This rule recognizes that the severity of a claimant’s symptoms 5 “cannot be objectively verified or measured.” Id. at 347 (quotation and citation 6 omitted). 7 If an ALJ finds the claimant’s subjective assessment unreliable, “the ALJ 8 must make a credibility determination with findings sufficiently specific to permit 9 [a reviewing] court to conclude that the ALJ did not arbitrarily discredit claimant's 10 testimony.” Thomas v. Barnhart, 278 F .3 d 947, 958 (9th Cir. 2002). In making 11 this determination, the ALJ may consider, inter alia: (1) the claimant’s reputation 12 for truthfulness; (2) inconsistencies in the claimant’s testimony or between his 13 testimony and his conduct; (3) the claimant’s daily living activities; (4) the 14 claimant’s work record; and (5) testimony from physicians or third parties 15 concerning the nature, severity, and effect of the claimant’s condition. Id. If there 16 is no evidence of malingering, the ALJ’s reasons for discrediting the claimant's 17 testimony must be “specific, clear and convincing.” Chaudhry v. Astrue, 688 F.3d 18 661, 672 (9th Cir. 2012) (quotation and citation omitted). The ALJ “must 19 specifically identify the testimony she or he finds not to be credible and must 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 explain what evidence undermines the testimony.” Holohan v. Massanari, 246 2 F.3d 1195, 1208 (9th Cir. 2001). 3 Plaintiff contends that the ALJ failed to provide clear and convincing 4 reasons supported by substantial evidence for discrediting her statements about the 5 severity of her back impairment. ECF No. 12 at 12-13. The Court disagrees. The 6 ALJ provided at least three clear and convincing reasons for rejecting Plaintiff’s 7 statements. First, the ALJ noted that Plaintiff’s treatment history did not support 8 her claims of total disability. Specifically, the ALJ observed that, despite 9 undergoing corrective back surgery in 1991, Plaintiff’s medical records reflected 10 only “episodic complaints of back pain due to activity related injuries” sustained 11 while playing basketball and running cross-country in high school. Tr. 29. The 12 ALJ also found it significant that (1) Plaintiff’s spondylolisthesis remained 13 unchanged over the course of four routine follow-up evaluations from 2000 to 14 2002; and (2) Plaintiff did not seek any treatment for back pain during the next 15 three years. Tr. 30. These observations, when taken in conjunction with the 16 additional clear and convincing reasons discussed below, are sufficient to support 17 the ALJ’s adverse credibility determination. See Burch v. Barnhart, 400 F.3d 676, 18 680 (9th Cir. 2005) (although an ALJ “may not reject a claimant’s subjective 19 complaints based solely upon a lack of objective medical evidence to fully 20 corroborate the alleged severity of pain,” he or she may consider an absence of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 objective medical evidence in conjunction with other factors when making an 2 adverse credibility determination). 3 Second, and in a related vein, the ALJ noted that Plaintiff had not been 4 treated for back pain in the four years preceding her application for disability 5 benefits (from February 2006 to September 2010). Tr. 30. This was also a 6 permissible basis for discounting Plaintiff’s credibility. See Tommasetti v. Astrue, 7 533 F.3d 1035, 1040 (9th Cir. 2008) (ALJ may consider claimant’s failure to 8 pursue “an aggressive treatment program [or] an alternative or more tailored 9 treatment program” in response to allegedly disabling pain as a reason for 10 discounting the claimant’s credibility). The record does not support Plaintiff’s 11 apparent assertion that she was unable to pursue treatment due to a lack of health 12 insurance. See ECF No. 12 at 12. At the hearing, Plaintiff expressly conceded that 13 she had health insurance during this period. Tr. 53-54. 14 Third, the ALJ noted that Plaintiff’s activities of daily living were 15 inconsistent with her claims of disabling back pain. Specifically, the ALJ wrote 16 that Plaintiff “reported no problems with personal care or hygiene; preparing her 17 own meals daily; daily and weekly chores around the home; and managing her own 18 money.” Tr. 27. The ALJ further noted that Plaintiff was able to run cross country 19 and play basketball while in high school and had more recently been employed as 20 an assistant cross country coach at her former high school. Tr. 29-30. The ALJ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 did not err in relying upon Plaintiff’s reported activities of daily living as a reason 2 for discounting her credibility. 3 Plaintiff has also challenged the ALJ’s rejection of lay witness statements 4 concerning the severity of her impairments. ECF No. 12 at 12-13. As Plaintiff 5 acknowledges, the ALJ rejected these statements on the ground that they were 6 based in large part upon Plaintiff’s subjective complaints. Tr. 32. Because the 7 ALJ properly rejected Plaintiff’s subjective complaints, there was no error in his 8 rejection of the lay witness statements. See Valentine v. Comm’r of Soc. Sec. 9 Admin., 574 F.3d 685, 694 (9th Cir. 2009) (“In light of our conclusion that the ALJ 10 provided clear and convincing reasons for rejecting [the claimant’s] own subjective 11 complaints, and because [the lay witness’s] testimony was similar to such 12 complaints, it follows that the ALJ also gave germane reasons for rejecting her 13 testimony.”). 14 15 B. Opinions of Dr. Quackenbush and Dr. Wylie Plaintiff asserts that the ALJ failed to fully incorporate the opinions of Dr. 16 Quackenbush and Dr. Wylie into the residual functional capacity assessment. This 17 assertion is belied by the ALJ’s opinion. The ALJ afforded “great weight” to the 18 opinions of both doctors. Dr. Quackenbush performed a psychological evaluation 19 of Plaintiff in November 2010. In his examination report, Dr. Quackenbush noted: 20 The prognosis for Claimant appears good, although she will likely require some accommodations in the workforce due to physical ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 2 3 4 limitations (e.g., fatigue and pain impeding pace and persistence) and mild learning disabilities (i.e., slow reading speed and limited writing facility). Cognitively, Claimant exhibits generally average abilities. She can understand and follow simple to detailed instructions, and her reasoning and abstraction skills appeared near average as well. Socially, Claimant was pleasant and friendly, albeit some hesitance to engage with others was noted (possibly due to difficult developmental experiences as a child and adolescent). 5 6 Tr. 413. As Defendant correctly notes, the ALJ properly accounted for this 7 opinion by limiting Plaintiff to “simple, routine, and repetitive tasks.” Tr. 28. 8 Dr. Wylie administered a visual performance evaluation of Plaintiff in 9 March 2010. Dr. Wylie diagnosed Plaintiff with left exotropia (an outward turning 10 of the eye), significant visual field constriction, and visual disturbances. Tr. 409. 11 With regard to work-related limitations, Dr. Wylie concluded: 12 13 14 [Plaintiff] has no visual acuity related limitations. With her reduction in peripheral awareness it would not be wise having doing [sic] a job with lots of driving or around heavy equipment. With the reduced peripheral awareness it would also be decrease [sic] a person’s efficiency and increase fatigue. If she was allowed a 5 to 10 minute break every two hours of work that would give great assistance to her. 15 16 Tr. 409. The ALJ properly accounted for this opinion by limiting Plaintiff to work 17 that (1) does not involve climbing of ladders, ropes or scaffolds; (2) involves only 18 occasional climbing of ramps or stairs; (3) requires only occasional balancing, 19 stooping, crouching, kneeling or crawling; and (4) does not involve concentrated 20 exposure to unprotected heights or the use of moving machinery. Tr. 28. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 Plaintiff appears to suggest that the ALJ should have included a requirement 2 that Plaintiff be allowed a 5 to 10 minute break every two hours as suggested by 3 Dr. Wylie. ECF No. 12 at 11. As Defendant correctly notes, however, there was 4 no need for the ALJ to include such a requirement in the RFC because employees 5 are typically granted breaks of this duration and frequency as a matter of course in 6 most workplaces. The vocational expert specifically addressed this issue at the 7 hearing: 8 9 10 11 Q: If you were to consider a hypothetical worker, in general, that would require a break after two hours of work up to at least ten minutes, does that speak to the issue of sustainability of employment? A: Well, in general, most employers offer at least a ten minute break every hour. In fact in some states, it’s regulation that that happen. So a ten-minute break every two hours is not at all out of the norm. 12 Tr. 84. The ALJ did not err in declining to include a greater rest break restriction 13 in Plaintiff’s RFC. 14 C. Step Five Challenge 15 Plaintiff argues that the ALJ erred in finding that she was capable of 16 performing other work at step five of the sequential evaluation process. ECF No. 17 12 at 13. While Plaintiff has styled her argument as a challenge to the adequacy of 18 the hypothetical question posed to the vocational expert, her analysis focuses on 19 the ALJ’s omission of the same limitations discussed above from Plaintiff’s RFC. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 This argument fails for the same reasons discussed above. Defendant is entitled to 2 summary judgment. 3 IT IS HEREBY ORDERED: 4 5 1. Defendant’s Motion for Summary Judgment (ECF No. 13) is GRANTED. 6 2. Plaintiff’s Motion for Summary Judgment (ECF No. 12) is DENIED. 7 The District Court Executive is hereby directed to file this Order, enter 8 9 Judgment for Defendant, provide copies to counsel, and CLOSE the file. DATED November 27, 2013. 10 11 THOMAS O. RICE United States District Judge 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15

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