Hubley v. Colvin, No. 2:2013cv00193 - Document 20 (E.D. Wash. 2014)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 15 Plaintiff's Motion for Summary Judgment; granting 16 Defendant's Motion for Summary Judgment. Case closed. Signed by Senior Judge Justin L. Quackenbush. (CV, Case Administrator)
Download PDF
<![CDATA[
Hubley v. Colvin Doc. 20 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 ASIL LEON HUBLEY, Plaintiff, 8 9 10 11 NO. 2:13-CV-0193-JLQ v. CAROLYN W. COLVIN, Commissioner of Social Security, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff appeals from the final decision of the Commissioner of the Social Security Administration ("Commissioner") which denied his application for Supplemental Security Income (SSI) benefits after a hearing before an Administrative Law Judge ("ALJ"). This case, filed on May 24, 2013, was reassigned to the undersigned on February 6, 2014. (ECF No. 18). Before the court are Cross-Motions for Summary Judgment. (ECF Nos. 15, 16). Plaintiff is represented by attorney Lora Lee Stover. Defendant is represented by Assistant United States Attorney Pamela DeRusha and Special Assistant United States Attorney Thomas Elsberry. Jurisdiction to review the Commissioner's decision exists pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). I. PROCEDURAL HISTORY Plaintiff has been pursuing Supplemental Security Income (SSI) benefits for the past six years. His two previous applications were denied. Plaintiff did not appeal the determination denying his first application filed on July 10, 2008. On April 7, 2009, he filed a second application for SSI benefits alleging disability due to a broken right ORDER - 1 Dockets.Justia.com 1 hand, deformed right hip, right knee, and right pelvis. This second application was 2 denied on July 29, 2010 after hearing by administrative law judge (ALJ) R. J. Payne. 3 ALJ Payne determined the Plaintiff had the capacity to perform sedentary work with 4 limitations despite the following severe impairments: a history of fracture injuries to 5 the right hand, Blount’s disease, a right knee torn lateral meniscus status post repair, 6 obesity, and diminished internal rotation of the right hip. Through Ms. Stover, his 7 present attorney, Plaintiff sought review of that decision in this court. E.D.WA Cause 8 No. CV-11-0299-CI. In an opinion by Magistrate Judge Cynthia Imbrogno, hearing 9 the matter by consent of the parties, the Commissioner’s decision was affirmed. See 10 Hubley v. Colvin, 2013 WL 1703365 (E.D.Wash., April 18, 2013). 11 On September 15, 2010, less than two months after ALJ Payne’s decision 12 denying his second application, Plaintiff filed a new application for SSI benefits 13 alleging disability beginning December 31, 2001 (later amended to July 30, 2010). (Tr. 14 169-179). Plaintiff’s application was denied initially and on reconsideration. He 15 requested a hearing before an ALJ. On March 12, 2013 an administrative hearing was 16 held before ALJ Marie Palachuk. Testifying at the hearing were Richard A. Hutson, 17 M.D. , a medical expert and orthopedic surgeon; Scott Whitmer, a vocational expert; 18 and Plaintiff. On March 28, 2012 the ALJ issued an order finding Plaintiff not disabled 19 since September 15, 2010, the date of his current application. (Tr. 36). Plaintiff 20 requested review of the ALJ's decision. (Tr. 19-20). The Appeals Council denied his 21 request for review on March 27, 2013 (Tr. 1-7), making the ALJ's ruling the "final 22 decision" of the Commissioner as the term is defined by 42 U.S.C. § 405(g). Plaintiff 23 commenced this action on May 29, 2013 seeking judicial review of the Commissioner's 24 final decision. (ECF No. 5). 25 II. FACTUAL BACKGROUND 26 The facts are contained in the medical records, administrative transcript (ECF 27 No. 12)(“Tr.”), and the ALJ's decision, and are only briefly summarized here. 28 ORDER - 2 1 A. 2 Plaintiff was born in 1981 and was 30 years old at the time of the ALJ’s hearing. Plaintiff’s History 3 He testified he is married and has nine children who reside in the household. (Tr. th 4 203). Plaintiff completed the tenth grade, but dropped out during 11 grade to look 5 for work to support his family. (Tr. 73). He has attended classes to complete his 6 GED, but has yet to complete it. He is left handed. 7 Plaintiff has a limited work history with jobs of short duration including a fast 8 food worker and construction worker. He has earned over $1,000/year in just two 9 jobs: a laundry laborer at Superior Linen in 2000 and a book sorter at a library in 2001. 10 At Superior Linen he lifted carpets onto and operated a “carpet roller machine.” (Tr. 11 74). He was injured on the job when his right hand was trapped in the machine. Id. 12 In 2001, he left the book sorting position through the Tacoma-Pierce County 13 Employment and Training Consortium to move to Spokane. (Tr. 76). Plaintiff has not 14 worked steadily since moving to Spokane. 15 Plaintiff claims his ability to work is limited by worsening pain secondary to his 16 impairments impacting his feet, calves, knees, pelvis, hips, low back, and his 17 non-dominant, right hand. 18 B. Medical Evidence 19 The medical record includes treatment notes and records reviewed previously 20 pursuant to Plaintiff's prior disability applications. Plaintiff’s medical history is 21 thoroughly discussed in ALJ Payne’s 2010 decision and ALJ Palachuk’s decision in 22 this case. ALJ Payne's decision discusses that Plaintiff was diagnosed with Blount's 23 Disease, an unusual bone disorder which causes the lower leg to turn inward 24 ("intoeing"), at age 3 or 4 at Madigan Army Medical Center (Tr. 204). Plaintiff wears 25 valgus unloading knee braces. (Tr. 419). Dr. Hutson testified at the administrative 26 hearing that at 5 feet 9 inches in height and approximately 240 pounds, Plaintiff is 27 considered obese. (Tr. 58). 28 Plaintiff was seen for his general health care needs at Group Health and ORDER - 3 1 Spokane Falls Family Clinic. In 2009 and again in 2011, Plaintiff underwent surgery 2 on his right knee. (Tr. 254; 514-515, Operative Report of Miguel Schmitz, M.D.). 3 The record also includes clinical records from Spokane Occupational & Hand 4 Therapy, Summit Rehabilitation Associates, Northwest Orthopaedic Specialist, 5 Schindler’s Orthotic and Prosthetic Services, Providence Orthopedic Specialties, Star 6 Physical Therapy and Rehabilitation, Alpine Orthopedic and Spine, and Houk 7 Chiropractic Clinic. Plaintiff sought emergency room treatment at Deaconess Medical 8 Center on 12/16/09 (pain), 1/8/2010 (pain), and 5/10/2011 (bleeding post knee 9 surgery). A consultative psychological evaluation was conducted on December 7, 2010 10 11 by Joyce Everhart, Ph.D. (Tr. 284-289). A consultative physical examination was 12 performed by A. Peter Weir, M.D. on December 16, 2010 (Tr. 291-296). The record also contains the reviews of non-examining state agency medical 13 14 professionals, Jerry Gardner, Ph.D. (January 7, 2011, Tr. 305-317), Patricia Kraft, 15 Ph.D. (March 8, 2011, Tr. 345), and Alfred Scottolini, M.D. (Tr. 346). 16 C. Commissioner’s Findings 17 The ALJ found at Step 1 that Plaintiff had not engaged in substantial gainful 18 activity since September 15, 2010, the date of Plaintiff’s most recent SSI application. 19 (Tr. 27). At Step 2, the ALJ determined that Plaintiff had the following severe 20 21 impairments: juvenile osteochondrosis (Blount’s disease), obesity, and 22 Legg-Calvé-Perthes Disease (20 CFR 416.920(c)). She found Plaintiff’s diagnosed 23 “Pain Condition Associated with Both Psychological Factors and General Medical 24 Conditions,” as well as depression and hand impairments, were non-severe. (Tr. 2825 39). 26 At Step 3, considering the effects of obesity, the ALJ determined that the 27 Plaintiff’s impairments, alone or in combination, did not meet or medically equal one 28 of the listed impairments in 20 CFR Pt. 404 Subpt. P App 1 (Listings). ORDER - 4 1 At Step 4, the ALJ determined the Plaintiff had the residual functional capacity 2 (“RFC”) to perform light work as defined in 20 CFR 416.967(b) with certain 3 exertional and non-exertional limitations. The claimant can occasionally perform postural movements, except he can never crawl, kneel, or climb ladders, ropes, or scaffolds. The claimant should avoid concentrated exposure to extreme temperatures, wetness, humidity, 5 vibration, and all exposure to hazards. 6 (Tr. 30). In her Step 4 findings, the ALJ devoted a lengthy discussion to the medical 4 7 evidence and Plaintiff’s testimony, and concluded that Plaintiff’s physical limitations 8 “were not as significant as alleged.” (Tr. 35). The ALJ also considered the fact that 9 Plaintiff is a “younger individual” as defined by 20 C.F.R. 416.963 and has a limited 10 education. (Tr. 35). Based upon this determination of Plaintiff’s RFC, the ALJ 11 concluded Plaintiff could not perform his past relevant work. (Tr. 35). At Step 5, the ALJ found transferability of job skills not an issue because 12 13 Plaintiff’s past relevant work was unskilled. (Tr. 35). Relying upon the testimony of 14 vocational expert, Scott Whitmer, the ALJ concluded that there are jobs that exist in 15 significant numbers in the national economy that the claimant can perform, including 16 weight tester (SVP 2, sedentary), mail clerk (SVP 2, light), and bottling line attendant 17 (SVP 1, light). (Tr. 36). Accordingly, the ALJ concluded that Plaintiff was not 18 disabled, as defined by the Social Security Act, from September 15, 2010 to March 28, 19 2012. 20 III. LEGAL STANDARDS 21 A. Sequential Evaluation 22 The Social Security Act defines "disability" as the "inability to engage in any 23 substantial gainful activity by reason of a medically determinable physical or mental 24 impairment which can be expected to result in death or which has lasted or can be 25 expected to last for a continuous period of not less than twelve months." 42 U.S.C. 26 §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a claimant shall be 27 determined to be under a disability only if the impairments are of such severity that 28 the claimant is not only unable to do his previous work but cannot, considering ORDER - 5 1 claimant's age, education and work experiences, engage in any other substantial 2 gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 3 1382c(a)(3)(B). 4 The Commissioner has established a five-step sequential evaluation process for 5 determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920; Bowen 6 v. Yuckert, 482 U.S. 137, 140-42 (1987): 7 Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. §§ 8 404.1520(b), 416.920(b). If he is, benefits are denied. If he is not, the decision maker 9 proceeds to Step 2. 10 Step 2: Does the claimant have a medically severe impairment or combination 11 of impairments? 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have 12 a severe impairment or combination of impairments, the disability claim is denied. If 13 the impairment is severe, the evaluation proceeds to the third step. 14 Step 3: Does the claimant's impairment meet or equal one of the listed 15 impairments acknowledged by the Commissioner to be so severe as to preclude 16 substantial gainful activity? 20 C.F.R. §§ 404.1520(d), 416.920(d); 20 C.F.R. Pt. 404 17 Subpt. P App. 1. If the impairment meets or equals one of the listed impairments, the 18 claimant is conclusively presumed to be disabled. If the impairment is not one 19 conclusively presumed to be disabling, the evaluation proceeds to Step 4. 20 Step 4: Does the impairment prevent the claimant from performing work he has 21 performed in the past? 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant is able 22 to perform his previous work, he is not disabled. If the claimant cannot perform this 23 work, the inquiry proceeds to the Fifth and final Step. 24 Step 5: Is the claimant able to perform other work in the national economy in 25 view of his age, education and work experience? 20 C.F.R. §§ 404.1520(f), 26 416.920(f). 27 The initial burden of proof rests upon the Plaintiff to establish a prima facie 28 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th ORDER - 6 1 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 2 mental impairment prevents him from engaging in his previous occupation. The 3 burden then shifts to the Commissioner to show (1) that the claimant can perform 4 other substantial gainful activity and (2) that a "significant number of jobs exist in the 5 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 6 (9th Cir. 1984). 7 B. Standard of Review 8 This court’s role on review of the decision of the ALJ is limited. The court 9 reviews that decision to determine if it was supported by substantial evidence and 10 contains a correct application of the law. Valentine v. Comm’r. Soc. Sec. Admin, 574 th 11 F. 3d 685,690 (9 Cir. 2009). This court is obligated to affirm the ALJ’s findings if 12 they are supported by substantial evidence and the reasonable inferences to be drawn th 13 therefrom. Molina v. Astrue, 674 F. 3d 1104, 1110-11 (9 Cir. 2012). Substantial 14 evidence is such relevant evidence that a reasonable mind might accept as adequate 15 to support the conclusion. 16 "The [Commissioner's] determination that a claimant is not disabled will be 17 upheld if the findings of fact are supported by substantial evidence and the 18 [Commissioner] applied the proper legal standards." Delgado v. Heckler, 722 F.2d 19 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is more 20 than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 21 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 22 (9th Cir. 1989). "It means such relevant evidence as a reasonable mind might accept 23 as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 24 (1971) (citations omitted). "[S]uch inferences and conclusions as the [Commissioner] 25 may reasonably draw from the evidence" will also be upheld. Mark v. Celebrezze, 348 26 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the record as a whole, 27 not just the evidence supporting the decision of the Commissioner. Weetman v. 28 Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). ORDER - 7 This court may set aside a denial of 1 benefits only if the basis for denial is not supported by substantial evidence or if it is 2 based on legal error. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is the 3 role of the trier of fact, the ALJ, not this court, to resolve conflicts in the evidence. 4 Richardson, 402 U.S. at 400. If the evidence supports more than one rational 5 interpretation, the court must uphold the decision of the ALJ. Thomas, 278 F.3d at 6 954 (9th Cir. 2002). 7 IV. ISSUES Plaintiff contends the ALJ’s decision was not supported by substantial evidence 8 9 and identifies three specific issues for review: 1. Whether the ALJ erred at Step 2 finding non-severe Plaintiff’s medically 10 11 determinable impairment of status post fracture of the right non-dominant hand; 2. Whether the ALJ erred in assessing Plaintiff’s credibility and “disregarded” 12 13 Plaintiff’s pain complaints; and 3. Whether the ALJ erred at Step 4 in determining Plaintiff’s RFC. 14 15 (ECF No. 15 at 9). Plaintiff asks the court to reverse the ALJ and remand for the award of benefits, 16 17 or alternatively, to remand for further consideration. The Commissioner contends the 18 ALJ’s decision is supported by substantial evidence. 19 V. DISCUSSION 20 A. 21 The record reflects Plaintiff has a remote history of non-dominant, right hand Step 2 22 fractures, one associated with an on the job injury in 2000 or 2001. The medical 23 record evidences Plaintiff has a mild deformity associated with his hand condition, 24 status post fractures of the third, fourth and fifth metacarpals, right hand. Plaintiff 25 asserts the ALJ erred at Step 2 in determining Plaintiff’s hand impairments were 26 non-severe. 27 At Step 2, a claimant must make a threshold showing that his medically 28 determinable impairments significantly limit his ability to perform basic work ORDER - 8 1 activities. See Bowen v. Yuckert, 482 U.S. 137, 145 (1987) and 20 C.F.R. §§ 2 404.1520(c), 416.920(c). “Basic work activities” refers to “the abilities and aptitudes 3 necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). “An impairment 4 or combination of impairments can be found ‘not severe’ only if the evidence 5 establishes a slight abnormality that has ‘no more than a minimal effect on an 6 individual's ability to work.’ ” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.1996) 7 (quoting Social Security Ruling (SSR) 85–28). “[T]he step two inquiry is a de minimis 8 screening device to dispose of groundless claims.” Id. (citing Bowen v. Yuckert, 482 9 U.S. 137, 153–54(1987)). 10 The fact that a medically determinable condition exists does not automatically 11 mean the symptoms are "severe," or "disabling" as defined by the Social Security 12 regulations. See, e.g., Edlund, 253 F.3d at 1159–60; Fair v. Bowen, 885 F.2d 597, 13 602–03 (9th Cir.1989); Key v. Heckler, 754 F.2d 1545, 1549–50 (9th Cir. 1985). To 14 establish the existence of a medically determinable impairment, the claimant must 15 provide medical evidence consisting of “signs—the results of ‘medically acceptable 16 clinical diagnostic techniques,’ such as tests—as well as symptoms,” a claimant's own 17 perception or description of his physical or mental impairment. Ukolov v. Barnhart, 18 420 F.3d 1002, 1005 (9th Cir. 2005). A claimant's own statement of symptoms alone 19 is not enough to establish a medically determinable impairment. See 20 C.F.R. §§ 20 404.1508, 416.908. In addition, the impairment must last, or be expected to last, for 21 a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509, 416.909 (durational 22 requirement). 23 The court notes ALJ Palachuk's Step 2 analysis differed from ALJ Payne's 2010 24 decision as ALJ Payne included a finding of "history of fracture injuries to right hand" 25 in the list of severe impairments. (Tr. 191). However, ALJ Palachuk was not 26 required to adopt this finding where there was new and material evidence relating to 27 Plaintiff’s hand impairment and this sequential step. SSR 97-4(9), 1997 WL 742759, 28 at *1-3 (Dec. 3, 1997). The ALJ’s decision explicitly addressed this evidence. The ORDER - 9 1 ALJ’s decision notes the fact that Plaintiff sought treatment at Spokane Occupational 2 & Hand Therapy in February 2009 “several years” after his injury requesting a splint 3 for his hand, reporting that he “mostly wanted to wear the splint on an as needed basis 4 when he was experiencing pain.” (Tr. 28, Tr. 327). The clinic note from the visit 5 reflected that he was able to make a full fist. (Tr. 327). Plaintiff was provided a splint 6 and as the ALJ states, “no additional occupational therapy was ordered.” Several 7 months later, the office declined Plaintiff’s request to provide a statement of “what he 8 can and cannot do.” (Tr. 325). In his consultative evaluation on December 16, 2010, 9 Dr. Weir noted a mild deformity of the right third, fourth, and fifth metacarpals post 10 fractures, but rated Plaintiff’s grip strength as 5/5. He concluded that no functional 11 limitations resulted therefrom. Finally, the ALJ accorded significant weight to the 12 testimony of the testifying medical expert, Dr. Hutson, who did not find support in the 13 record of claimed vocational limitations associated with Plaintiff’s use of his hands. 14 Id. The ALJ ultimately concluded that treatment notes “do not support ongoing 15 complaints of hand problems” or a hand impairment “which results in significant 16 vocational limitations.” (Tr. 28). 17 Plaintiff disputes these findings on two grounds, arguing the evidence 18 demonstrates Plaintiff’s hand impairment is more than a slight abnormality. Plaintiff 19 directs the court to 1) the use of a “prescribed” splint and 2) evidence of decreased 20 right hand grip strength contained in the 6/8/2010 Summit Rehabilitation physical 21 therapy record for back, hip and knee pain. (Tr 388) (noting 35 pound right hand grip 22 and 120 pound left hand). 23 The ALJ's nonseverity findings are supported by substantial evidence. The 24 record affirmatively demonstrates Plaintiff has a remote history of right hand fracture 25 injuries. Plaintiff's alleged intermittent pain, treated with the use of a splint on an as 26 needed basis, does not evidence that the condition affects his ability to perform basic 27 work activities. See Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th 28 Cir. 2006) (holding that an impairment that can be controlled effectively is not ORDER - 10 1 disabling for social security purposes). The record also reflects Plaintiff returned to 2 work at Superior Linen and continued employment after his injury to his hand. The 3 unexplained Summit Rehabilitation notation regarding grip from a single day in 2010, 4 is insufficient to support a finding of severe hand impairments. Even if the ALJ erred 5 in not finding Plaintiff’s hand impairment severe, the error is harmless because none 6 of the treating, examining, or reviewing providers assessed any functional limitations 7 associated with the impairment. As the ALJ also concluded, the record does not 8 support the conclusion that Plaintiff is an individual “not capable of using [his] non9 dominant hand on a frequent basis,” (Tr. 88) as in Plaintiff’s counsel’s question posed 10 to the vocational expert at the administrative hearing. (Tr. 35). 11 B. Credibility 12 Questions of credibility and resolutions of conflicts in the testimony are 13 functions solely of the Commissioner, not this court. Greger v. Barnhart, 464 F.3d 14 968, 972 (9th Cir. 2006). If the ALJ's interpretation of the claimant's testimony is 15 reasonable and is supported by substantial evidence, it is not the court's role to 16 “secondguess” it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 17 An ALJ is not required to believe every allegation of disabling pain or other 18 non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) (citing 19 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes the 20 existence of a medically determinable impairment that could reasonably give rise to 21 symptoms assertedly suffered by a claimant, an ALJ must make a finding as to the 22 credibility of the claimant's statements about the symptoms and their functional effect. 23 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir.2006)(citations omitted). 24 Where the record includes objective medical evidence that the claimant suffers from 25 an impairment that could reasonably produce the symptoms of which the claimant 26 complains, an adverse credibility finding must be based on clear and convincing 27 reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 1155, 28 1160 (9th Cir.2008) (citations omitted). The only time this standard does not apply is ORDER - 11 1 when there is affirmative evidence of malingering. Id. The ALJ's credibility findings 2 “must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected 3 the claimant's testimony on permissible grounds and did not arbitrarily discredit the 4 claimant's testimony.” Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir.2004). 5 Plaintiff contends the ALJ “improperly rejected [his] testimony,”“failed to give 6 convincing rationale for discounting Plaintiff’s allegations” and committed “harmful 7 error...in rejecting his pain complaints.” (ECF No. 15 at 14). Plaintiff claims the 8 Plaintiff’s credibility is “bolstered” by the diagnosis made by Joyce Everhardt, Ph.D. 9 of “Pain Condition Associated with Both Psychological Factors and General Medical 10 Conditions.” ECF No. 15 at 14. This is the whole of Plaintiff’s argument on this 11 issue. Plaintiff has not identified any specific error or challenged the grounds on 12 which the ALJ discounted the claimed severity of Plaintiff’s symptoms, including 13 pain. As noted by Defendant, claims that are unsupported by explanation or authority 14 may be deemed waived. Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 15 F.2d 918, 923–24 (9th Cir. 1996) ; Independent Towers of Washington v. Washington, 16 350 F.3d 925, 929 (9th Cir. 2003)(holding that courts cannot manufacture arguments 17 for parties and should not consider claims not fully argued). 18 A claimant's assertion of pain must be given serious consideration, as pain in 19 and of itself can be disabling. Courts have cautioned, however, that severity in pain 20 disorders varies widely, and the claimant's subjective complaints need not be accepted 21 insofar as they clash with other evidence in the record. See Dunahoo v. Apfel, 241 F.3d 22 1033, 1038 (8th Cir. 2001). Notably, Plaintiff has not challenged the ALJ’s evaluation 23 of Dr. Everhardt’s opinion and Step 2 finding that Plaintiff had no severe mental 24 impairment. 25 The ALJ’s 5-page evaluation of the evidence and credibility findings were 26 sufficiently specific and based upon clear and convincing reasons. First, the ALJ 27 found that Plaintiff’s disabling chronic pain complaints were not fully corroborated 28 by the objective medical evidence. For example, the ALJ noted that Dr. Howlett was ORDER - 12 1 unable to determine an exact cause of the Plaintiff’s pain or discomfort, questioned the 2 Plaintiff’s use of assistive devices, and recommended conservative management. (Tr. 3 32). The ALJ also noted that Dr. Weir observed Plaintiff ambulating in the parking 4 lot both before and after his examination without limp and without obvious 5 discomfort. (Tr. 33). Second, the ALJ considered the internal conflicts with the 6 Plaintiff’s own statements, conduct and testimony. The ALJ noted his “wide range of 7 activities,” which demonstrated Plaintiff was capable of maintaining a household, 8 caring for nine children, walking his children to school two and half to three blocks 9 away, occasionally driving, attending classes four days a week, and tending to 10 homework. Finally, the ALJ observed the Plaintiff’s limited work history raised a 11 question as to whether the Plaintiff’s unemployment “is actually due to medical 12 impairments.” (Tr. 35). All of the reasons discussed by the ALJ were valid reasons 13 and convince the court Plaintiff’s pain complaints were not arbitrarily discredited. (Tr. 14 35). 15 C. Residual Functional Capacity (RFC) 16 Finally, in disputing the ALJ’s credibility findings, Plaintiff argues the ALJ’s 17 RFC determination is erroneous claiming it does not take into consideration Plaintiff’s 18 “pain complaints, his limited education, and his hand impairments.” (ECF No. 15 at 19 14). As discussed above, the ALJ gave specific, legally sufficient reasons for 20 concluding Plaintiff’s hand impairment was non-severe, that it imposed no functional 21 restrictions, and for discounting Plaintiff's allegations of disabling chronic pain. 22 Plaintiff's argument that the ALJ failed to consider his limited education is without 23 merit, as the ALJ made specific findings concerning Plaintiff’s limited education, 24 asked the vocational expert to consider an individual “within the limited educational 25 regulatory category,” and adopted the unskilled work identified by the vocational 26 expert as within the Plaintiff’s RFC. (Tr. 36, 85). Moreover, Plaintiff has failed to 27 show that his mental abilities would prevent him from being able to perform the jobs 28 identified by the ALJ. ORDER - 13 1 Plaintiff also contends the RFC “would have been even more restrictive, if the 2 limitations were based upon the opinions of Plaintiff’s orthopedic surgeon Migueal 3 Schmitz [M.D.] - See Tr 509...” (ECF No. 15 at 15). On October 20, 2011, Dr. 4 Schmitz completed a form regarding Plaintiff’s functional capacity and stated Plaintiff 5 could seldom lift/carry twenty pounds, occasionally lift/carry ten pounds, frequently 6 sit, seldom stand/walk, or bend/stoop, and never climb, twist, squat/kneel, crawl, 7 operate foot controls, or vibratory tasks. The ALJ specifically considered Dr. 8 Schmitz’s opinion and accorded it little weight, due to its inconsistency with the 9 totality of the evidence in the record and noting it was completed “only about five 10 months after his [knee] surgery, and “thus this opinion would not support limitations 11 for a twelve-month duration.” (Tr. 34). 12 Plaintiff has not challenged the ALJ’s evaluation of Dr. Schmitz’s opinion or 13 argued that the ALJ failed to apply the correct legal standards in weighing any of the 14 medical evidence. Absent legal error or an obviously erroneous decision, the court 15 will not remand the case simply in hopes that a new ALJ will view the same evidence 16 in a different light. In determining Plaintiff’s RFC, the ALJ analyzed numerous 17 medical opinions of the record to resolve conflicts. The ALJ's findings are supported 18 by the record and constitute a rational interpretation of the evidence. 19 VI. CONCLUSION 20 IT IS SO ORDERED: 21 1. Plaintiff's Motion For Summary Judgment (ECF No. 15) is DENIED; 22 2. Defendant's Motion For Summary Judgment (ECF No. 16) is GRANTED. 23 The Clerk of Court is directed to file this Order, enter judgment dismissing the 24 Complaint and the claims therein with prejudice, provide copies to counsel, and 25 CLOSE THE FILE. 26 DATED this 20th day of March, 2014. s/ Justin L. Quackenbush JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE 27 28 ORDER - 14
]]>
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.
