Kelly v. Colvin (previously Astrue), No. 2:2013cv00071 - Document 20 (E.D. Wash. 2014)

Court Description: ORDER Granting (ECF No 18 ) Defendant's Motion for Summary Judgment (Denying (ECF No 14 ) Plaintiff's Motion for Summary Judgment) Signed by Magistrate Judge John T. Rodgers. (LS, Courtroom Deputy)

Download PDF

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 LORI A. KELLY, 8 No. 2:13-CV-0071-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 10 v. 11 CAROLYN W. COLVIN, 12 Commissioner of Social Security, 13 Defendant. 14 15 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 16 No. 14, 18. Attorney Joseph Linehan represents Lori A. Kelly (Plaintiff); Special 17 Assistant United States Attorney Daphne Banay represents the Commissioner of 18 Social Security (Defendant). The parties have consented to proceed before a 19 magistrate judge. ECF No. 4. After reviewing the administrative record and briefs 20 filed by the parties, the Court GRANTS Defendant’s Motion for Summary 21 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 22 JURISDICTION 23 Plaintiff filed an application for Supplemental Security Income (SSI) on 24 October 15, 2010, alleging disability since October 8, 2008. Tr. 171. Plaintiff 25 filed an application for Disability Insurance Benefits on November 10, 2010, 26 alleging disability since October 22, 2008. Tr. 164. Plaintiff alleges disability due 27 to fibromyalgia, back pain, high blood pressure and depression. Tr. 187. The 28 applications were denied initially and upon reconsideration. Administrative Law ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 Judge (ALJ) R.J. Payne held hearings on August 15, 2011, and November 10, 2 2011, Tr. 41-86, and issued an unfavorable decision on December 1, 2011, Tr. 28- 3 35. The Appeals Council denied review on December 17, 2012. Tr. 1-7. The 4 ALJ’s December 2011 decision became the final decision of the Commissioner, 5 which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff 6 filed this action for judicial review on February 14, 2013. ECF No. 1, 6. 7 STATEMENT OF FACTS 8 9 10 11 The facts of the case are set forth in the administrative hearing transcript, the ALJ’s decision, and the briefs of the parties. They are only briefly summarized here. Plaintiff was born on November 17, 1959, and was 50 years old on the 12 October 2010 alleged onset dates. Tr. 171. Plaintiff obtained a general 13 equivalency diploma (GED) in the 1980’s and last worked as a cook in 2008. Tr. 14 188, 192. Plaintiff reported she was fired from her job as a cook for taking pain 15 medication at work when the company had a policy of “no tolerance for controlled 16 substances.” Tr. 285. She testified at the second administrative hearing that the 17 main thing keeping her from currently being able to work is back pain. Tr. 66. 18 Plaintiff stated she has stabbing pain in her lower back and pain that radiates to her 19 legs. Tr. 66-67. She indicated she experiences numbness in both her hands and 20 feet, her neck had been bothering her, she has experienced daily “massive 21 headaches” her whole life, and she has had high blood pressure since her 20’s. Tr. 22 67-68, 71, 74. With respect to activities of daily living, Plaintiff stated she went to 23 bed between 9:00 and 11:00 p.m., slept four or five hours at night, and got up 24 around 6:00 or 7:00 a.m. Tr. 80. During the day, she will slowly do things around 25 the house, like laundry, cooking and other housework. Tr. 80-81. She also enjoys 26 reading and watching television during the day. Tr. 80-81. 27 28 Plaintiff testified she “had a problem with prescription drugs” but had not taken them for a year and a half. Tr. 75. She expressed fear that if she went back ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 to work, the prescription drug problem would resurface. Tr. 75. She indicated she 2 also previously had a problem with alcohol (drinking up to a pint of vodka or 3 whiskey a day), but now will only have a drink every couple of weeks. Tr. 83-84. 4 Minh Vu, M.D., testified as a medical expert at both administrative hearings. 5 Tr. 43-50, 55-66. Dr. Vu opined that Plaintiff had lumbar spondylosis, cervical 6 spondylosis and thoracic spondylosis, confirmed by imaging. Tr. 44-45. He also 7 indicated the record reflected a notation of fibromyalgia, a seizure thought to be 8 due to alcoholism, hypertension without complications, and obesity. Tr. 46. Dr. 9 Vu opined that Plaintiff could do more than light exertion work. Tr. 47. He 10 proposed that Plaintiff could perform medium exertion level work, with the 11 additional limitations of only occasional use of ladders, ropes and scaffolds and the 12 need to avoid concentrated exposure to hazardous machinery and unprotected 13 heights. Tr. 48-49. At the second administrative hearing, Dr. Vu indicated he 14 would change Plaintiff’s RFC from “occasional” to “no” use of ladders, ropes and 15 scaffolds. Tr. 64. 16 17 ADMINISTRATIVE DECISION The ALJ found that Plaintiff had not engaged in substantial gainful activity 18 since October 22, 2008, the alleged onset date. Tr. 30. The ALJ determined, at 19 step two, that Plaintiff had the severe impairment of “significant degenerative 20 changes of the lumbar spine.” Tr. 30. At step three, the ALJ found Plaintiff’s 21 impairments, alone and in combination, did not meet or medically equal one of the 22 listed impairments. Tr. 32. The ALJ assessed Plaintiff’s RFC and determined that 23 she could perform light work with the following limitations: no unprotected 24 heights, no hazardous or moving machinery, and only occasional postural 25 manipulations such as bending, stooping and crouching. Tr. 32. 26 At step four, the ALJ found that Plaintiff is capable of performing her past 27 relevant work as a medical records clerk. Tr. 33-34. In the alternative, at step five, 28 the ALJ concluded that, considering Plaintiff’s age, education, work experience ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 and RFC, and based on the Medical-Vocational Guidelines, there are jobs that exist 2 in significant numbers in the national economy that Plaintiff can perform. Tr. 34. 3 The ALJ thus determined that Plaintiff was not under a disability within the 4 meaning of the Social Security Act at any time from October 22, 2008, the alleged 5 onset date, through the date of the ALJ’s decision, December 1, 2011. Tr. 34-35. 6 7 8 9 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 10 reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The 11 decision of the Commissioner may be reversed only if it is not supported by 12 substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 13 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a 14 mere scintilla, but less than a preponderance. Id. at 1098. Put another way, 15 substantial evidence is such relevant evidence as a reasonable mind might accept 16 as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 17 (1971). If the evidence is susceptible to more than one rational interpretation, the 18 Court may not substitute its judgment for that of the Commissioner. Tackett, 180 19 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 20 (9th Cir. 1999). 21 The ALJ is responsible for determining credibility, resolving conflicts in 22 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 23 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 24 although deference is owed to a reasonable construction of the applicable statutes. 25 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 26 It is the role of the trier of fact, not this Court, to resolve conflicts in 27 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 28 rational interpretation, the Court may not substitute its judgment for that of the ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 2 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 3 still be set aside if the proper legal standards were not applied in weighing the 4 evidence and making the decision. Brawner v. Secretary of Health and Human 5 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to 6 support the administrative findings, or if conflicting evidence exists that will 7 support a finding of either disability or non-disability, the Commissioner’s 8 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 9 Cir. 1987). 10 11 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 12 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 13 416.920(a); see, Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 14 through four, the burden of proof rests upon the claimant to establish a prima facie 15 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 16 burden is met once a claimant establishes that a physical or mental impairment 17 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 18 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 19 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 20 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 21 in the national economy which claimant can perform. Batson v. Commissioner of 22 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 23 an adjustment to other work in the national economy, a finding of “disabled” is 24 made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). 25 26 ISSUES The question presented is whether substantial evidence exists to support the 27 ALJ’s decision denying benefits and, if so, whether that decision is based on 28 proper legal standards. Plaintiff contends that the ALJ erred because she is more ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 limited from a physical standpoint than what was determined by the ALJ. ECF 2 No. 14 at 7. Plaintiff additionally provides a brief argument that the ALJ failed to 3 properly consider and reject her testimony regarding the limitations from her 4 impairments. ECF No. 14 at 9-10. 5 6 7 DISCUSSION A. Physical Limitations Plaintiff asserts that the ALJ improperly rejected the opinion of Stacy Jarvis, 8 PA-C, regarding her physical limitations. ECF No. 14 at 8-11. Plaintiff 9 specifically argues that Ms. Jarvis’ October 20, 2011 letter, Tr. 647, demonstrates 10 she is more limited from a physical standpoint than what was determined by the 11 ALJ in this case. Id. 12 As noted above, the ALJ determined that Plaintiff retained the RFC to 13 perform light work1 with the following limitations: no unprotected heights, no 14 hazardous or moving machinery, and only occasional postural manipulations such 15 as bending, stooping, crouching, etc. Tr. 32. Ms. Jarvis, however, noted in a letter 16 dated October 20, 2011, that “based on her review of the claimant’s recent medical 17 records and current diagnosis, it was her opinion that working in a traditional 18 setting for more than 3-4 hours a day would be inadvisable and would exacerbate 19 her pain and symptoms.” Tr. 647. The ALJ rejected Ms. Jarvis’ opinion in this 20 case. Tr. 33. 21 The ALJ first indicated that Ms. Jarvis, a certified physician assistant, is not 22 an acceptable medical source. Tr. 33. Only acceptable medical sources can give 23 medical opinions. 20 C.F.R. § 416.927(a)(2). Ms. Jarvis’ testimony and opinions 24 do not qualify as “medical evidence . . . from an acceptable medical source” as 25 26 1 Light level work involves lifting no more than 20 pounds at a time with 27 frequent lifting or carrying of objects weighting up to 10 pounds. 20 C.F.R. §§ 28 404.1567(b), 416.967(b). ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 required by the Social Security Regulations. 20 C.F.R. §§ 404.1513, 416.913. 2 Plaintiff concedes that Ms. Jarvis is not an acceptable medical source, but argues 3 that Ms. Jarvis’ “other source” opinion should have been given weight by the ALJ 4 as evidence demonstrating how Plaintiff’s symptoms affect her ability to work. 5 ECF No. 14 at 10. To reject “other source” evidence, an ALJ must provide 6 germane reasons for doing so. Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 7 1224 (9th Cir. 2010). 8 9 The ALJ relied on the opinions of acceptable medical sources of record which consistently contradict the opinion of Ms. Jarvis. As noted by the ALJ, a 10 February 26, 2010, psychological consultative examination with Samantha 11 Chandler, Psy.D., revealed Plaintiff was “completely and totally independent.” Tr. 12 31, 288. Plaintiff “described normal and common activities of daily living,” Tr. 13 31, 286-287, and indicated she only had difficulty lifting more than 30 pounds, Tr. 14 284. Furthermore, a March 13, 2010, physical examination with Robert Bray, 15 M.D., indicated that Plaintiff reported low back pain, but her examination was 16 entirely unremarkable. Tr. 31, 289-293. Dr. Bray opined that Plaintiff would be 17 limited to light exertion level work with no postural, manipulative or 18 environmental restrictions. Tr. 31, 292-293. State agency reviewing consultant 19 Tony Bingaman opined on March 25, 2010, that Plaintiff should be limited to light 20 exertion level work, but should avoid concentrated exposure to hazards 21 (machinery, heights, etc.) and should only occasionally climb ramps/stairs and 22 ladders/ropes/scaffolds. Tr. 308-315. Finally, the medical expert, Dr. Vu, testified 23 that, consistent with Dr. Bray and the state agency consultant, Plaintiff could 24 perform at least light exertion level work, with the additional limitations of no use 25 of ladders, ropes and scaffolds and no concentrated exposure to hazardous 26 machinery and unprotected heights. Tr. 47-49, 64. The ALJ did not err by relying 27 on the opinions of the foregoing acceptable medical sources over the opinion of 28 Ms. Jarvis, a non-acceptable medical source. ORDER GRANTING DEFENDANT’S MOTION . . . - 7 The ALJ also indicated Ms. Jarvis’ assessment was based solely on a review 1 2 of Plaintiff’s “very limited medical records.” Tr. 33. An ALJ may discredit 3 physicians’ opinions that are conclusory, brief, and unsupported by the record as a 4 whole, Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992), or by objective 5 medical findings, Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Ms. 6 Jarvis wrote that her opinion was only based on Plaintiff’s “recent medical records 7 and current diagnoses.” Tr. 647. Consequently, Ms. Jarvis’ opinion in the October 8 20, 2011, letter was, as indicated by the ALJ, based on “limited medical records,” 9 as opposed to a thorough review of the entirety of Plaintiff’s medical history. 10 Moreover, Ms. Jarvis’ letter offered no objective medical findings to support the 11 opinion of significant work related limitations noted in the letter. Tonapetyan, 242 12 F.3d at 1149. 13 Based on the foregoing, the ALJ provided germane reasons for rejecting Ms. 14 Jarvis’ “other source” opinion that if Plaintiff worked more than three to four hours 15 a day, it would exacerbate her pain and symptoms. Tr. 647. The record does not 16 support a more restrictive finding than Plaintiff being limited to a range of light 17 exertion level work. Accordingly, the undersigned finds the ALJ’s physical RFC 18 determination is in accord with the weight of the record evidence and free of legal 19 error. 20 B. Plaintiff’s Credibility 21 Plaintiff also provides a brief argument that the ALJ erred by failing to 22 properly consider her subjective complaints. ECF No. 14 at 9-10. Plaintiff argues 23 that the ALJ failed to state specific reasons to reject her testimony regarding “her 24 limited ability to sit, stand, walk, as well as lift and carry, and her need for breaks 25 frequently throughout the day.” ECF No. 14 at 9. 26 It is the province of the ALJ to make credibility determinations. Andrews v. 27 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 28 supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 2 medical impairment, the ALJ may not discredit testimony as to the severity of an 3 impairment because it is unsupported by medical evidence. Reddick v. Chater, 157 4 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of malingering, the 5 ALJ’s reasons for rejecting the claimant’s testimony must be “clear and 6 convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 7 findings are insufficient: rather the ALJ must identify what testimony is not 8 credible and what evidence undermines the claimant’s complaints.” Lester, 81 9 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 10 In this case, the ALJ found Plaintiff’s medically determinable impairments 11 could reasonably be expected to cause the alleged symptoms; however, Plaintiff’s 12 statements concerning the intensity, persistence and limiting effects of the 13 symptoms “are only supported by recent imaging and not particularly supported by 14 her limited treating records.” Tr. 33. The ALJ thus indicated that the objective medical evidence did not support 15 16 her allegations of total disability. A lack of supporting objective medical evidence 17 is a factor which may be considered in evaluating a claimant’s credibility, provided 18 it is not the sole factor. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). As 19 discussed above, the ALJ properly assessed the medical records in this case. 20 Plaintiff’s allegations of significant limitations on her ability to sit, stand, walk, lift 21 and carry, and need for frequent breaks throughout the day are not consistent with 22 the opinions of the acceptable medical sources of record which demonstrate 23 Plaintiff is capable of performing at least light exertion level work, with certain 24 postural and environmental restrictions. Supra. The credible medical evidence of 25 record does not support Plaintiff’s claim of disabling limitations. It was 26 appropriate for the ALJ to conclude that the objective medical evidence does not 27 support the level of limitation Plaintiff has alleged in this case. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 The ALJ also noted that Plaintiff’s “own estimated/assessed functional 2 capacity was not inconsistent with the [ALJ’s RFC] assessment.” Tr. 33. Plaintiff 3 wrote in her December 9, 2009, function report that she was capable of lifting 4 approximately 20 to 30 pounds. Tr. 203. She also reported she could walk two 5 miles before needing to stop and rest for about five to 10 minutes and then could 6 resume walking.2 Tr. 203. At that time, Plaintiff also indicated she was 7 babysitting her grandchildren when her daughter was at work. Tr. 198. This 8 involved walking to the bus stop, making dinner, doing baths and helping with 9 homework. Tr. 198. She further reported cleaning her house twice a week for two 10 to three hours and shopping for groceries on a weekly basis. Tr. 200. On 11 examination with Dr. Chandler, Plaintiff indicated she does the dishes, makes her 12 bed daily, cleans the bathroom once a week, takes the trash out as needed, does 13 both her and her mother’s laundry two times a week, and goes grocery shopping at 14 least once a week. Tr. 287. On examination with Dr. Bray, she reported she took 15 16 17 18 19 20 21 22 23 24 25 care of her own personal needs and all of her own household chores. Tr. 290. At the administrative hearing, Plaintiff testified she was capable of driving her manual transmission vehicle and had driven the fifty-minute drive to the hearing that day, without stopping to rest. Tr. 70. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (it is well-established that the nature of daily activities may be considered when evaluating credibility). The level of functioning reported by Plaintiff throughout the record is not necessarily inconsistent with the ALJ’s physical RFC assessment in this case. The ALJ is responsible for reviewing the evidence and resolving conflicts or ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 2 At the administrative hearing, Plaintiff testified she could only walk one 26 block before needing to stop and rest. Tr. 73. On examination with Dr. Chandler, 27 she reported her average day consisted of morning walks of two blocks to the store 28 and two blocks back home. Tr. 286. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 2 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 3 determining whether the ALJ’s decision is supported by substantial evidence and 4 may not substitute its own judgment for that of the ALJ even if it might justifiably 5 have reached a different result upon de novo review. 42 U.S.C. § 405(g). 6 After reviewing the record, the undersigned finds the reasons provided by 7 the ALJ for discounting Plaintiff’s subjective complaints are clear, convincing, and 8 fully supported by the record. Accordingly, the ALJ did not err by concluding that 9 Plaintiff’s assertions of disabling functional limitations were not fully credible in 10 this case. CONCLUSION 11 12 Having reviewed the record and the ALJ’s findings, the Court concludes the 13 ALJ’s decision is supported by substantial evidence and free of legal error. 14 Accordingly, 15 IT IS ORDERED: 16 1. 17 Defendant’s Motion for Summary Judgment, ECF No. 18, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 18 2. 19 The District Court Executive is directed to file this Order and provide a copy 20 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 21 and the file shall be CLOSED. 22 DATED February 3, 2014. 23 24 25 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 11

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.