Gray v. Colvin, No. 2:2013cv00187 - Document 23 (E.D. Wash. 2014)

Court Description: MEMORANDUM OPINION AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT denying 18 Plaintiff's Motion for Summary Judgment; granting 20 Defendant's Motion for Summary Judgment Signed by Senior Judge Justin L. Quackenbush. (VR, Courtroom Deputy)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 6 DONALD W. GRAY, Plaintiff, 7 8 9 10 v. CAROLYN W. COLVIN, Commissioner of Social Security, NO. CV-13-00187-JLQ MEMORANDUM OPINION AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT Defendant. 11 12 BEFORE THE COURT are Cross-Motions for Summary Judgment. (ECF 13 NO. 18 & 20). Plaintiff is represented by attorney Dana C. Madsen. Defendant 14 is represented by Assistant United States Attorney Pamela J. DeRusha and 15 Special Assistant United States Attorney Nancy A. Mishalanie. This matter was 16 previously before Magistrate Judge John T. Rodgers. It was reassigned to the 17 undersigned for all further proceedings on January 3, 2014. The court has 18 reviewed the administrative record and the parties briefs. The case was submitted 19 for decision without oral argument via Order of this court on February 4, 2014. 20 This court s role on review of the decision of the Administrative Law Judge 21 (ALJ) is limited. The court reviews that decision to determine if it was supported 22 by substantial evidence and contains a correct application of the law. Valentine v. 23 Comm r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). This court is 24 obligated to affirm the ALJ s findings if they are supported by substantial 25 evidence and the reasonable inferences to be drawn therefrom. Molina v. Astrue, 26 674 F.3d 1104, 1110-11 (9th Cir. 2012). Substantial evidence is such relevant 27 evidence that a reasonable mind might accept as adequate to support the 28 conclusion. ORDER - 1 1 I. JURISDICTION/PROCEDURAL HISTORY 2 Plaintiff, Donald W. Gray, applied for disability insurance benefits and 3 supplemental security income on October 28, 2010, when he was 46 years-old. 4 Plaintiff s claims were denied initially and upon reconsideration. Plaintiff 5 requested a hearing and a hearing was held on April 24, 2012, before 6 Administrative Law Judge Moira Ausems. (Transcript of hearing at ECF No. 12-2, 7 p. 47-78). On June 21, 2012, the ALJ issued an opinion denying benefits. (ECF 8 No. 12-2 at 25). Plaintiff appealed that decision to the Appeals Council and on 9 March 26, 2013, the Appeals Council denied review. (Id. at 1). The decision of the 10 ALJ became the final decision of the Commissioner, which is appealable to the 11 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed the instant action on 12 May 20, 2013. II. SEQUENTIAL EVALUATION PROCESS 13 14 The Social Security Act defines "disability" as the "inability to engage in 15 any substantial gainful activity by reason of any medically determinable physical 16 or mental impairment which can be expected to result in death or which has lasted 17 or can be expected to last for a continuous period of not less than twelve months." 18 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a claimant 19 shall be determined to be under a disability only if the impairments are of such 20 severity that the claimant is not only unable to do his previous work but cannot, 21 considering claimant's age, education and work experiences, engage in any other 22 substantial gainful work which exists in the national economy. 42 U.S.C. §§ 23 423(d)(2)(A), 1382c(a)(3)(B). 24 The Commissioner has established a five-step sequential evaluation process 25 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920; 26 Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987): 27 Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. 28 §§ 404.1520(b), 416.920(b). If he is, benefits are denied. If he is not, the decision ORDER - 2 1 2 maker proceeds to step two. Step 2: Does the claimant have a medically severe impairment or 3 combination of impairments? 20 C.F.R. §§ 404.1520(c), 416.920(c). If the 4 claimant does not have a severe impairment or combination of impairments, the 5 disability claim is denied. If the impairment is severe, the evaluation proceeds to 6 the third step. 7 Step 3: Does the claimant's impairment meet or equal one of the listed 8 impairments acknowledged by the Commissioner to be so severe as to preclude 9 substantial gainful activity? 20 C.F.R. §§ 404.1520(d), 416.920(d); 20 C.F.R. Pt. 10 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 11 impairments, the claimant is conclusively presumed to be disabled. If the 12 impairment is not one conclusively presumed to be disabling, the evaluation 13 proceeds to the fourth step. 14 Step 4: Does the impairment prevent the claimant from performing work he 15 has performed in the past? 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant 16 is able to perform his previous work, he is not disabled. If the claimant cannot 17 perform this work, the inquiry proceeds to the fifth and final step. 18 Step 5: Is the claimant able to perform other work in the national economy 19 in view of his age, education and work experience? 20 C.F.R. §§ 404.1520(f), 20 416.920(f). 21 The initial burden of proof rests upon the Plaintiff to establish a prima facie 22 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 23 (9th Cir. 1971). The initial burden is met once a claimant establishes that a 24 physical or mental impairment prevents her from engaging in her previous 25 occupation. The burden then shifts to the Commissioner to show (1) that the 26 claimant can perform other substantial gainful activity and (2) that a "significant 27 number of jobs exist in the national economy" which claimant can perform. Kail 28 v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). ORDER - 3 1 2 III. STANDARD OF REVIEW The [Commissioner's] determination that a claimant is not disabled will be 3 upheld if the findings of fact are supported by substantial evidence and the 4 [Commissioner] applied the proper legal standards." Delgado v. Heckler, 722 5 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is 6 more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th 7 Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 8 601-602 (9th Cir. 1989). "It means such relevant evidence as a reasonable mind 9 might accept as adequate to support a conclusion." Richardson v. Perales, 402 10 U.S. 389, 401 (1971) (citations omitted). "[S]uch inferences and conclusions as 11 the [Commissioner] may reasonably draw from the evidence" will also be upheld. 12 Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court 13 considers the record as a whole, not just the evidence supporting the decision of 14 the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). This 15 court may set aside a denial of benefits only if the basis for denial is not supported 16 by substantial evidence or if it is based on legal error. Thomas v. Barnhart, 278 17 F.3d 947, 954 (9th Cir. 2002). It is the role of the trier of fact, not this court, to 18 resolve conflicts in the evidence. Richardson, 402 U.S. at 400. If the evidence 19 supports more than one rational interpretation, the court must uphold the decision th 20 of the ALJ. Thomas, 278 F.3d at 954 (9 Cir. 2002). IV. STATEMENT OF FACTS 21 22 The facts are contained in the medical records, administrative transcript, and 23 the ALJ's decision, and are only briefly summarized here. At the time the ALJ 24 issued her decision in 2012, Plaintiff was 47 years-old. Plaintiff has a high school 25 education. Plaintiff has past work history as a home attendant/caregiver, janitor, 26 cleaner/housekeeper, and delivery route truck driver. Plaintiff claimed disability 27 based primarily on lower back pain and depression. Plaintiffs' most recent work 28 history was as a caregiver to his wife after she had a stroke in 2002. (ECF No. 12, ORDER - 4 1 p. 52). She passed away in 2008 (Id. at 61), and Plaintiff understandably alleged 2 this contributed to his depression. Plaintiff has two children, both in their late3 teens, one who was still residing with Plaintiff at the time of the hearing. (Id. at 4 57-58). 5 V. COMMISSIONER S FINDINGS 6 The ALJ found at Step 1 that Plaintiff had not engaged in substantial 7 gainful activity since August 21, 2007, the alleged onset date. (ECF No. 12-2, p. 8 27). The ALJ noted that the medical records mentioned some intermittent work 9 activity between December 2008 and August 2010, but that work did not amount 10 to substantial gainful activity. 11 At Step 2, the ALJ found the medical evidence established the following 12 severe impairments: history of remote lumbar injury with reports of low back pain; 13 right upper extremity ulnar neuropathy, obesity, headaches, hypertension, and 14 depression (ECF No. 12-2, p. 28). 15 At Step 3, the ALJ found that Plaintiff did not have an impairment or 16 combination of impairments that meets or medically equals the Listings as 17 described in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d)) . 18 The ALJ specifically considered sections 1.00, 11.00, and 12.00 pertaining to the 19 musculoskeletal system, neurological, and mental disorders. The ALJ further 20 specifically considered Plaintiff s mental impairment and found it did not meet 21 Listing 12.04 (affective disorders). 22 At Step 4, the ALJ evaluated Plaintiff s residual functional capacity (RFC) 23 and found Plaintiff had the RFC to perform light work. The RFC also contained 24 additional limitations to account for Plaintiff s physical and mental impairments. 25 (ECF No. 12-2, p. 32). The ALJ then concluded that Plaintiff was capable of 26 performing his past relevant work as a cleaner/housekeeper. 27 At Step 5 the ALJ concluded, relying on the testimony of a vocational 28 expert, that Plaintiff was capable of performing other work that exists in ORDER - 5 1 significant numbers in the national economy. Specifically, the vocational expert 2 identified the jobs of mail clerk, office helper, and production assembler. (ECF 3 No. 12-2, p. 35). 4 The ALJ concluded that Plaintiff had not been under a disability, as defined 5 in the Social Security Act, from the alleged onset date of August 21, 2007, through 6 the date of the decision, June 21, 2012. VI. ISSUES 7 8 Plaintiff identifies only one primary issue for review: 1) did the ALJ err in 9 assessing Plaintiff s credibility? Plaintiff claims that the ALJ gave insufficient 10 reasons for discrediting his testimony, and if such testimony was credited, it would 11 establish that he was more limited from a physical and psychological standpoint 12 than the ALJ determined . (ECF No. 18, p. 7). The Defendant s brief identifies 13 two issues for review: 1) Plaintiff s credibility assessment; and 2) new evidence in 14 the form of the opinion of Dr. Pollack. (ECF No. 20). Plaintiff s brief suggested, 15 in the alternative and without much discussion, that Dr. Pollack s post-hearing 16 evaluation could merit remand. (ECF No. 18, p. 10). Therefore, the court will 17 address these two issues. VII. DISCUSSION 18 19 A. Did the ALJ Err in Assessing Plaintiff s Credibility? 20 The ALJ found that Gray's medically determinable impairments could be 21 expected to produce the alleged symptoms, but that he was not entirely credible 22 due to the paucity of findings to support the claimant s claim of total disability. 23 (ECF No. 12-2, p. 34). The ALJ then gave numerous reasons for her credibility 24 determination. 25 In deciding whether to accept a claimant s subjective symptom testimony, 26 the ALJ must perform two stages of analysis: the Cotton analysis and an analysis 27 of the credibility of the claimant s testimony regarding the severity of her th 28 symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9 Cir. 1996). The Cotton ORDER - 6 1 analysis comes from the Ninth Circuit s opinion in Cotton v. Bowen, 799 F.2d th 2 1403 (9 Cir. 1986), and thereunder the claimant must: 1) produce objective 3 medical evidence of an impairment or impairments; and 2) show that the 4 impairment or combination of impairments could reasonably be expected to 5 produce some degree of symptom. Smolen, 80 F.3d at 1281-82. If a claimant 6 meets the Cotton test, then the ALJ may reject the claimant s testimony regarding 7 the severity of symptoms only based on specific, clear, and convincing reasons. Id. 8 at 1284. The ALJ stated that the evidence of record lacked diagnostic studies 9 10 objectively confirming lumbar degenerative disc disease, and that Plaintiff s 11 treatment history was not significant, other than an ongoing prescription for 12 narcotics. (ECF No. 12-2, p. 34). The ALJ noted that no nerve conduction studies 13 were performed for the right ulnar neuropathy. (Id.). The ALJ noted that as to his 14 depression, Plaintiff had not sought mental health counseling and that he appeared 15 to be having no significant problems with his activities of daily living. (Id.). The ALJ also stated she "suspects a deep disability conviction and possible 16 17 motivation by secondary gain in light of his family's income about to be coming to 18 a halt as his son turns 18." (Id. at 34). The ALJ also noted Plaintiff s testimony concerning his positive urinalysis 19 20 for marijuana, which was in violation of his pain contract. Plaintiff testified he 21 did not smoke marijuana, but had a neighbor who blew smoke in his face and his 22 urinalysis came up positive because of that. (Id. at 33). The ALJ also noted that 23 Dr. Akpamgbo had written that Plaintiff had not been completely honest with her 24 and had not divulged that he broke a pain contract with a prior physician. (Id. at 25 30). 26 The ALJ s primary reason for finding Plaintiff not entirely credible was a 27 finding that Plaintiff's subjective testimony was not consistent with the objective 28 findings. This finding is amply supported by substantial evidence. Plaintiff saw ORDER - 7 1 Dr. Jane Akpamgbo in November 2010, and reported that he had been using a U- 2 Haul to help his girlfriend move and had hurt his lower back. Dr. Akpamgbo 3 discussed with him that he had not been cooperative on prior visits, and she 4 emphasized the importance of him quitting smoking if the pain medication was 5 going to be effective. Dr. Akpamgbo noted at an exam in October 2010, that 6 Plaintiff reported his pain level as an 8 or 9 however, Donald was quite 7 comfortable and did not appear to be in that much pain at all. (ECF No. 12, p. 8 433). 9 Dr. Chandler, who examined Plaintiff in January 2011, for purposes of a 10 psychological diagnosis, wrote that no pain behaviors were observed during the 11 session. (ECF No. 12, p. 439). Plaintiff informed Dr. Chandler that he was not 12 currently taking any medication for depression and he had never received inpatient 13 or outpatient mental health treatment. (Id. at 440). Dr. Chandler did not diagnose 14 Plaintiff with depression. In fact, she concluded: Evidence suggests a cognitive 15 ability to adapt and function appropriately within a work setting and sustain 16 concentration and attention over the course of a traditional 8-hour/5-day 17 workweek. (Id. at 442). 18 Plaintiff also underwent a physical exam with Dr. Peter Weir on January 18, 19 2011. Dr. Weir noted that Plaintiff did not appear in discomfort during the 20 exam, and did not exhibit pain behavior during the exam. (Id. at 446-447). Dr. 21 Weir s range of motion exam concluded that Plaintiff s hip, knee, ankle, and 22 shoulder joints were all within normal limits. Dr. Weir concluded: 23 24 25 26 The claimant s complaints are subjective in nature. His physical examination is unremarkable and there are not objective findings in support of his subjective complaints. On the basis of my examination today, I am unable to justify limiting the claimant s ability to function in the workplace. In my opinion, there are no functional limitations. 27 (Id. at 448). 28 The ALJ's conclusion that Plaintiff's subjective complaints were not ORDER - 8 1 supported by the objective medical findings is supported by the record. The ALJ 2 also expressed concern that Plaintiff was motivated by secondary gain. In certain 3 circumstances such motivation can be an independent basis for discounting a 4 claimant's credibility. See Coleman v. Colvin, 524 Fed.Appx. 325 (9th Cir. 5 2013)("an independent reason exists for rejecting [claimant's] testimony (i.e., that 6 Ms. Coleman may be motivated by secondary gain), and Ms. Coleman offers no 7 argument to reject this reason."). Here, Plaintiff had testified that his primary 8 income was social security benefits that his minor son received after his wife's 9 death and that his son was going to be turning 18 a few months after the hearing. 10 (ECF No. 12, p. 67). That reason, standing alone, would not be sufficient to 11 support the ALJ's credibility determination. 12 However, the ALJ s credibility determination was based primarily on an 13 assessment that Plaintiff s subjective reporting was not consistent with the 14 objective medical findings. The ALJ also noted Plaintiff's odd testimony about 15 his positive test for marijuana use, and Dr. Akpamgbo's note that he had not been 16 forthright about violating his pain contract. The foregoing are specific, clear and 17 convincing reasons supported by the record. It is the role of the ALJ to assess 18 credibility and weigh the evidence, [w]here the evidence is susceptible to more 19 than one rational interpretation, it is the ALJ s conclusion that must be upheld. th 20 Burch v. Barnhart, 400 F.3d 676, 679 (9 Cir. 2005). 21 B. Does Dr. Pollack s Post-Hearing Evaluation Merit Remand? 22 Plaintiff saw Dr. Dennis Pollack, a clinical psychologist, for an examination 23 twice in October 2012. This was approximately six months after the hearing 24 before the ALJ, and four months after the ALJ s decision. Plaintiff submitted Dr. 25 Pollack s evaluation to the Appeals Council. The Appeals Council acknowledged 26 receipt of Dr. Pollack s November 13, 2012 report, and it was made part of the 27 record. (ECF No. 12, p. 5). Therefore, this court may consider Dr. Pollack s report th 28 as part of the record. Brewes v. Commissioner, 682 F.3d 1157 (9 Cir. 2012). ORDER - 9 1 However, the Appeals Council may consider new and material evidence only 2 where it relates to the period on or before the date of the administrative law judge 3 hearing decision. 20 CFR § 416.1470. 4 Dr. Pollack did not diagnose Plaintiff with depression. However, he did 5 diagnose him with a pain disorder and a learning disorder. (ECF No. 12, p. 458). 6 Dr. Pollack s report appears to be based largely on Plaintiff s subjective reporting. 7 The report does not indicate that Dr. Pollack reviewed past medical records. Dr. 8 Pollack did administer three tests: intelligence, personality, and 9 neuropsychological. Dr. Pollack s assessment of Plaintiff s condition was after 10 the ALJ s decision, and nearly three years after the expiration of his last insured 11 status date for disability insurance benefits under Title II, which occurred in 1 12 December 2009. The ALJ s conclusion was that Plaintiff had not been under a 13 disability, as defined in the Social Security Act, from the alleged onset date of 14 August 21, 2007, through the date of the decision, June 21, 2012. 15 Dr. Pollack s later assessment does not impact and is not relevant to the 16 ALJ s assessment. Dr. Pollack s report reflects that Plaintiff was referred to him 17 by Plaintiff s attorney. A brief review of relevant case law reflects that it is not 18 uncommon for a claimant to be referred to Dr. Pollack after receiving an 19 unfavorable decision from the ALJ. In Stokely v. Colvin, 2013 WL 1819688 20 (E.D. Wash. 2013), Plaintiff saw Dr. Pollack nearly a year after the ALJ s adverse 21 decision and the court, per Judge Imbrogno, stated: Because this evidence was 22 acquired almost a year after the ALJ rendered her decision, it is neither relevant 23 nor probative to Plaintiff s mental condition for purposes of this review. 24 Similarly, in Merriweather v. Colvin, 2013 WL 4498748 (E.D. Wash. 2013), 25 26 27 28 1 Plaintiff was also seeking supplemental security income (SSI) under Title XVI. There is no onset date requirement for his SSI application. Waggoner v. Barnhart, 49 Fed.Appx. 708 (9th Cir. 2002). ORDER - 10 1 Plaintiff was examined by Dr. Pollack four to six months after the ALJ s decision. 2 That court stated: Dr. Pollack s findings and conclusions are not relevant to the 3 period at issue and are tainted significantly by Plaintiff s unreliable self-report. 4 In yet another case, the court, per Judge Nielsen, found that the ALJ s conclusion 5 that marked limitations are a consistent factor in Dr. Pollack s reports and are 6 inconsistent with his own narrative as well as with the longitudinal records, was 7 supported by substantial evidence. Stearns v. Colvin, 2013 WL 3244805 (E.D. 8 Wash. 2013). 9 Even if Dr. Pollack s evaluation was relevant, it is not of much assistance to 10 Plaintiff. Dr. Pollack assessed 20 different areas of potential mental functional 11 limitation on a check box form. In 13 of those categories, he found no limitation. 12 In another 5 categories, he found only mild limitation. In only two categories: 1) 13 ability to perform activities within a schedule, maintain attendance and 14 punctuality, and 2) ability to complete a normal workday and work week without 15 limitations, did Dr. Pollack find marked limitations . (ECF No. 12, p. 459-462). 16 Ultimately, Dr. Pollack s conclusions are based almost exclusively on 17 Plaintiff s subjective reporting, which the ALJ found not entirely credible. A 18 physician s opinion may be discounted if it relies on a claimant s unreliable selfth 19 report. Bayliss v. Barnhart. 427 F.3d 1211, 1217 (9 Cir. 2005) see also Buckner- 20 Larkin v. Astrue, 450 Fed.Appx. 626 (9th Cir. 2011)("if the ALJ determines that 21 the subjective complaints of the claimant are not credible, that is sufficient reason 22 for discounting a physician's opinion that is based on these complaints.") citing 23 Bray v. Commissioner, 554 F.3d 1219 (9th Cir. 2009). 24 The post-hearing evaluation and report do not merit remand. See Quesada v. 25 Colvin, 525 Fed.Appx. 627 (9th Cir. 2013)("the district court properly concluded 26 that the additional evidence [claimant] submitted to the Appeals Council would 27 not have changed the outcome in the case because it post-dated the ALJ's decision 28 and therefore was not relevant."). ORDER - 11 1 2 VIII. CONCLUSION The Commissioner s and ALJ s decision is supported by substantial 3 evidence in the record and is based on proper legal standards. It must therefore be 4 affirmed. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 5 IT IS HEREBY ORDERED: 6 1. Plaintiff s Motion for Summary Judgment (ECF No. 18) is DENIED. 7 2. Defendant s Motion for Summary Judgment (ECF No. 20) is 8 9 10 11 12 13 GRANTED. 3. The Clerk is directed to enter Judgment dismissing the Complaint and the claims therein with prejudice. IT IS SO ORDERED. The District Court Executive is directed to file this Order, enter Judgment as directed above, and close this file. DATED this 18th day of February, 2014. 14 s/ Justin L. Quackenbush JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER - 12

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