Racz v. Colvin, No. 2:2013cv00096 - Document 16 (E.D. Wash. 2014)

Court Description: ORDER DENYING 13 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING 15 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. Judgment is entered in favor of Defendant. The file is CLOSED. Signed by Judge Thomas O. Rice. (BF, Judicial Assistant)

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Racz v. Colvin Doc. 16 1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 MIHALY RACZ, NO: 13-CV-0096-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. 13 and 15). Plaintiff is represented by Rebecca M. Coufal. 16 Defendant is represented by Nicole Jabaily. 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 (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 7 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 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 ALJ’S FINDINGS Plaintiff filed applications for disability insurance benefits and supplemental 9 security income disability benefits on May 6, 2010, alleging an onset date of July 10 1, 2008. Tr. 125-30. His claims were denied initially and on reconsideration. Tr. 11 77-82, 84-87. Plaintiff appeared for a hearing before an Administrative Law Judge 12 on August 30, 2011. Tr. 23, 46-72. The ALJ issued a decision on October 12, 13 2011, finding that Plaintiff was not disabled under the Act. Tr. 20-35. 14 At step one, the ALJ found that Plaintiff had not engaged in substantial 15 gainful activity since July 1, 2008, the alleged onset date. Tr. 25. At step two, the 16 ALJ found that Plaintiff had severe impairments, Tr. 25-26, but at step three, the 17 ALJ found that these impairments did not meet or medically equal a listed 18 impairment. Tr. 26-28. The ALJ then determined that Plaintiff had the residual 19 functional capacity to: 20 perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except he is limited to performing simple, routine and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 2 3 repetitive tasks; he is limited to low stress jobs with only occasional decision making, occasional changes in work settings, and he should be shown changes in work settings rather than learn them otherwise; he should avoid jobs with fast-paced production requirements; and he should avoid interacting with the general public. 4 Tr. 28-32. At step four, the ALJ found that Plaintiff was able to perform 5 past relevant work as an agricultural produce packer, industrial truck 6 operator, farm worker, or kitchen helper, and concluded on that basis that 7 Plaintiff was not disabled. Tr. 32-33. As an alternative finding, the ALJ 8 proceeded to step five and determined that if Plaintiff’s RFC were adjusted 9 from a “medium” to a “light” exertional level, and considering the Plaintiff’s 10 age, education, work experience, and residual functional capacity, Plaintiff 11 could perform the representative occupations of small parts assembler, 12 photocopy machine operator, and hand packager, and that such jobs existed 13 in significant numbers in the national economy. Tr. 33. Thus, the ALJ 14 concluded on this alternative basis that Plaintiff was not disabled and denied 15 his claims. Tr. 34. 16 On December 1, 2011, Plaintiff requested review of the ALJ’s decision by 17 the Appeals Council. Tr. 14-19, 197-201. The Appeals Council denied Plaintiff’s 18 request for review on January 18, 2013, making the ALJ’s decision the 19 Commissioner’s final decision for purposes of judicial review. Tr. 1-5, 20 C.F.R. 20 §§ 404.981, 416.1484, and 422.210. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 him disability insurance benefits and supplemental security income disability 4 benefits under Title II and Title XVI of the Social Security Act. Plaintiff has 5 identified two issues for review: 6 1. Whether the ALJ properly evaluated and weighed the medical opinion of William Errico, D.O.; and 7 8 9 10 2. Whether the ALJ had a duty to order a consultative psychological examination to further develop the record. DISCUSSION A. Opinion of Dr. William Errico, D.O. 11 A treating physician’s opinions are entitled to substantial weight in social 12 security proceedings. Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 13 (9th Cir.2009). If a treating or examining physician’s opinion is uncontradicted, an 14 ALJ may reject it only by offering “clear and convincing reasons that are supported 15 by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 16 2005). “If a treating or examining doctor's opinion is contradicted by another 17 doctor's opinion, an ALJ may only reject it by providing specific and legitimate 18 reasons that are supported by substantial evidence.” Id. (citing Lester v. Chater, 81 19 F.3d 821, 830-831 (9th Cir. 1995)). However, the ALJ need not accept a 20 physician’s opinion that is “brief, conclusory and inadequately supported by ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 clinical findings.” Bray, 554 F.3d at 1228 (quotation and citation omitted). An 2 ALJ may also reject a treating physician’s opinion which is “based to a large extent 3 on a claimant’s self-reports that have been properly discounted as incredible.” 4 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (internal and quotation 5 and citation omitted). 6 Plaintiff contends that the ALJ erred in rejecting the opinions of treating 7 physician Dr. William Errico and that the ALJ had a duty to inquire further into the 8 nature of those opinions. ECF No. 13 at 14-15. Because Dr. Errico’s opinions 9 were contradicted, see Tr. 222-23, 238-42, 263, 265, the ALJ need only have given 10 specific and legitimate reasons supported by substantial evidence to reject them. 11 Bayless, 427 F.3d at 1216. 12 The ALJ gave two specific and legitimate reasons for rejecting Dr. Errico’s 13 opinions. First, the ALJ noted that Dr. Errico’s standard-form evaluation of 14 Plaintiff’s limitations was inconsistent with his own objective findings. Tr. 31. 15 This observation is supported by substantial evidence. Although Dr. Errico’s 16 medical source statement dated July 26, 2011, indicates that Plaintiff could stand 17 or walk for no more than two hours and sit for no more than six hours in an eight- 18 hour workday, and that he could lift no more than 20 pounds occasionally and no 19 more than 10 pounds frequently, see Tr. 318-19, his objective medical findings 20 indicate that Plaintiff’s gait is normal, that he rises from a seated position normally, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 and that Plaintiff claimed to be able to lift 30 pounds occasionally and 20 pounds 2 regularly. Tr. 299, 307. Dr. Errico’s physician assistant, Deborah Fisher, also 3 observed in March 2011 that Plaintiff had “full range of motion of his back and . . . 4 is able to fully squat and rise to an upright position without holding on.” Tr. 301. 5 The ALJ did not err in rejecting Dr. Errico’s opinions based upon these 6 discrepancies. Bayless, 427 F.3d at 1216. 7 Second, the ALJ noted that Dr. Errico’s opinions were based on Plaintiff’s 8 subjective assessment of his symptoms and limitations. The ALJ found Plaintiff’s 9 statements concerning the intensity, persistence and limiting effects of his alleged 10 symptoms were not credible, Tr. 29, 265, 282, and Plaintiff has not challenged that 11 credibility finding on appeal. Thus, the ALJ did not err in rejecting Dr. Errico’s 12 opinions which relied almost exclusively on Plaintiff’s subjective complaints. See 13 Tommasetti, 533 F.3d at 1041 (“An ALJ may reject a treating physician’s opinion 14 if it is based to a large extent’ on a claimant’s self-reports that have been properly 15 discounted as incredible.”) (citations omitted). 16 B. ALJ Duty to Develop the Record and Order a Consultative 17 Psychological Examination 18 While a claimant ultimately bears the burden of establishing his disability, 19 the ALJ has an affirmative duty to supplement the medical record to the extent it is 20 incomplete. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The ALJ has a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 special duty to fully and fairly develop the record and to assure that the claimant's 2 interests are considered. Id. (quotation and citation omitted). The ALJ's duty to 3 develop the record is triggered by ambiguous evidence, the ALJ's own finding that 4 the record is inadequate, or the ALJ's reliance on an expert's conclusion that the 5 evidence is ambiguous. Id. The ALJ may supplement an inadequate medical 6 record by ordering a consultative examination. Reed v. Massanari, 270 F.3d 838, 7 843 (9th Cir. 2001). 8 Plaintiff contends the ALJ failed to fully develop the record by failing to 9 order a consultative psychological examination as requested by DSHS, Plaintiff’s 10 representative, and Dr. Richard Beukema. ECF No. 13 at 10-12. Plaintiff asserts 11 the ALJ’s failure to order a psychological examination was not harmless error as 12 evidenced by Plaintiff’s subsequent detainment at Eastern State Hospital. ECF No. 13 13 at 12. Plaintiff offers no other evidence or support as to why a psychological 14 examination was needed to develop the record. 15 Substantial evidence in the record supports the ALJ’s findings. After the 16 recommendation by Dr. Beukema for a “psych evaluation,” in December 2009, 17 Plaintiff, in fact, underwent a psychological evaluation performed by Dr. Rebecca 18 McDougall in February 2010. Tr. 31, 290. Dr. McDougall assessed Plaintiff’s 19 cognitive limitations as “moderate” in his capacity to understand/remember/follow 20 complex or simple instructions, learn new tasks, exercise judgment/make ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 decisions, perform routine tasks, relate appropriately to co-workers/supervisors, 2 interact with the public, tolerate a normal work setting and maintain appropriate 3 behavior in a work setting. Tr. 31. Dr. McDougall opined Plaintiff’s thought form 4 and content were unremarkable and his reasoning skills were concrete, but he 5 displayed some difficulty in processing that might relate to lack of education. 6 Tr.31, 286. Dr. McDougall recommended follow-up testing related to Plaintiff’s 7 learning disabilities and intellectual abilities, but because the ALJ accommodated 8 for Plaintiff’s learning disabilities in his residual functional capacity the record was 9 sufficient for the ALJ to make a determination. Tr. 28-32, 286. 10 Plaintiff received further testing by Dr. James Bailey in June 2010, and Dr. 11 Edward Beaty in September 2010. Tr. 32. Dr. Bailey assessed Plaintiff as 12 functionally capable of understanding, remembering and carrying out basic, routine 13 work instructions. Id. Dr. Bailey concluded Plaintiff was capable of appropriate 14 workplace social interactions with supervisors and coworkers, but he would need 15 to be shown changes in the workplace and would do best working away from the 16 demands of the general public. Tr. 32, 247. Dr. Beaty evaluated the medical 17 evidence and affirmed Dr. Bailey’s assessment. Tr. 32, 274. The psychological 18 and medical examinations by Dr. McDougall, Dr. Bailey, and Dr. Beaty support 19 the ALJ’s finding that Plaintiff has a residual functional capacity to perform 20 medium work. Because the ALJ’s finding is supported by substantial evidence, the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 Court need not evaluate the relevance of Plaintiff’s subsequent detainment at 2 Eastern State Hospital. Defendant is entitled to summary judgment. 3 IT IS HEREBY ORDERED: 4 1. Plaintiff’s Motion for Summary Judgment (ECF No. 13) is DENIED 5 2. Defendant’s Motion for Summary Judgment (ECF No. 15) is 6 GRANTED. 7 The District Court Executive is hereby directed to file this Order, enter 8 JUDGMENT for Defendant, provide copies to counsel, and CLOSE the file. 9 DATED March 24, 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 ~ 13

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