Devaney v. Colvin, No. 2:2013cv00278 - Document 27 (E.D. Wash. 2014)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ECF No. 25 and denying ECF No. 23 Plaintiff's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge James P. Hutton. (PH, Case Administrator)

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Devaney v. Colvin Doc. 27 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 JASON L. DEVANEY, No. CV- 13-278-JPH 8 ORDER GRANTING Plaintiff, DEFENDANT’S MOTION FOR 9 vs. SUMMARY JUDGMENT 10 CAROLYN W. COLVIN, Acting 11 Commissioner of Social Security, Defendant. 12 13 BEFORE THE COURT are cross-motions for summary judgment. ECF 14 Nos. 23 and 25. On May 19, 2014 Plaintiff filed a reply. ECF No. 26. The parties 15 have consented to proceed before a magistrate judge. ECF No. 7. After reviewing 16 the administrative record and the parties’ briefs, the court grants defendant’s 17 motion for summary judgment, ECF No. 25. JURISDICTION 18 19 Devaney applied for disability insurance benefits (DIB) and supplemental ORDER - 1 Dockets.Justia.com 1 security income (SSI) benefits on August 3, 2010, alleging onset beginning March 2 10, 2006 (Tr. 194-212). Benefits were denied initially and on reconsideration (Tr. 3 139-42, 145-58). ALJ James W. Sherry held a hearing April 10, 2012. Devaney 4 and a vocational expert testified (Tr. 52-84). The ALJ issued an unfavorable 5 6 7 decision May 16, 2012 (Tr. 26-39). The Appeals Council denied review June 4, 2013 (Tr. 1-3). The matter is now before the Court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on July 31, 2013. ECF No. 1, 5. STATEMENT OF FACTS 8 The facts have been presented in the administrative hearing transcript, the 9 ALJ’s decision and the parties’ briefs. They are briefly summarized here and as 10 necessary to explain the court’s decision. 11 Devaney was 32 years old at onset and 38 at the first hearing. He quit school 12 13 in the twelfth grade but earned a GED. He worked as a custodian. He has not worked since 2007 because he suffers stomach problems, neck, back and shoulder 14 pain, headaches, breathing and sleep problems, and depression. Five days a week 15 he naps for two to three hours because of pain. He can sit for two hours and stand 16 for an hour (Tr. 59, 62-67, 69, 71-77, 226, 278). 17 SEQUENTIAL EVALUATION PROCESS 18 The Social Security Act (the Act) defines disability as the “inability to 19 engage in any substantial gainful activity by reason of any medically determinable ORDER - 2 1 physical or mental impairment which can be expected to result in death or which 2 has lasted or can be expected to last for a continuous period of not less than twelve 3 months.” 42 U.S.C. §§ 423 (d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 4 plaintiff shall be determined to be under a disability only if any impairments are of 5 6 7 such severity that a plaintiff is not only unable to do previous work but cannot, considering plaintiff’s age, education and work experiences, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423 (d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both 8 medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 9 (9th Cir. 2001). 10 The Commissioner has established a five-step sequential evaluation process 11 or determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 12 13 one determines if the person is engaged in substantial gainful activities. If so, benefits are denied. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If not, the 14 decision maker proceeds to step two, which determines whether plaintiff has a 15 medically severe impairment or combination of impairments. 20 C.F.R. §§ 16 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If plaintiff does not have a severe impairment 17 or combination of impairments, the disability claim is denied. 18 19 If the impairment is severe, the evaluation proceeds to the third step, which compares plaintiff’s impairment with a number of listed impairments ORDER - 3 1 acknowledged by the Commissioner to be so severe as to preclude substantial 2 gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 C.F.R. 3 §404 Subpt. P App. 1. If the impairment meets or equals one of the listed 4 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 5 6 7 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents plaintiff from performing work which was performed in the past. If a plaintiff is able to perform previous work, that plaintiff is deemed not disabled. 20 C.F.R. §§ 8 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, plaintiff’s residual capacity 9 (RFC) is considered. If plaintiff cannot perform past relevant work, the fifth and 10 final step in the process determines whether plaintiff is able to perform other work 11 in the national economy in view of plaintiff’s residual functional capacity, age, 12 13 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 14 The initial burden of proof rests upon plaintiff to establish a prima facie case 15 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 16 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 17 met once plaintiff establishes that a physical or mental impairment prevents the 18 performance of previous work. The burden then shifts, at step five, to the 19 Commissioner to show that (1) plaintiff can perform other substantial gainful ORDER - 4 1 activity and (2) a “significant number of jobs exist in the national economy” which 2 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). STANDARD OF REVIEW 3 4 5 6 7 Congress has provided a limited scope of judicial review of a Commissioner’s decision. 42 U.S.C. § 405(g). A Court must uphold the Commissioner’s decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 8 1999). “The [Commissioner’s] determination that a plaintiff is not disabled will be 9 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 10 Heckler, 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g). Substantial 11 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 12 1119 n. 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 13 888 F.2d 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence 14 as a reasonable mind might accept as adequate to support a conclusion.” 15 Richardson v. Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch 16 inferences and conclusions as the [Commissioner] may reasonably draw from the 17 evidence” will also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 18 1965). On review, the Court considers the record as a whole, not just the evidence 19 supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, ORDER - 5 1 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980). 2 It is the role of the trier of fact, not this Court, to resolve conflicts in 3 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 4 interpretation, the Court may not substitute its judgment for that of the 5 6 7 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 8 F.2d 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 9 administrative findings, or if there is conflicting evidence that will support a 10 finding of either disability or nondisability, the finding of the Commissioner is 11 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 12 13 ALJ’S FINDINGS ALJ Sherry found Devaney was insured through December 31, 2013 (Tr. 26, 14 28). At step one, the ALJ found Devaney did not work at SGA levels after onset 15 (Tr. 28). At steps two and three, the ALJ found he suffers from lumbar 16 degenerative disc disease (DDD) with stenosis; bilateral shoulder 17 acromioclavicular (AC) joint and glenohumeral joint degeneration, right more than 18 left; lumbago and minor cervical degenerative changes, impairments that are 19 severe but do not meet or medically equal a listed impairment (Tr. 28-29). The ORDER - 6 1 ALJ found Devaney less than fully credible (Tr. 31). He found Plaintiff is able to 2 perform a range of light work (Tr. 29). At step four, relying on a vocational 3 expert’s testimony, the ALJ found Devaney is unable to perform his past relevant 4 work (Tr. 37, 77-79). At step five, again relying on the VE, the ALJ found 5 6 7 Devaney can perform other jobs such as laundry worker, parking lot attendant and housekeeper/cleaner (Tr. 37-38, 79). The ALJ concluded Devaney was not disabled from onset through date of the decision (Tr. 38). ISSUES 8 Devaney alleges the ALJ erred when he assessed credibility and the medical 9 evidence. ECF No. 23 at 10-11. The Commissioner asks the court to affirm, 10 alleging the ALJ applied the correct legal standards and the decision is supported 11 by substantial evidence. ECF No. 25 at 2. 12 13 DISCUSSION A. Credibility 14 Devaney challenges the ALJ’s credibility assessment. ECF No. 23 at 10-11. 15 To aid in weighing the conflicting medical evidence, the ALJ evaluated 16 Devaney’s credibility. Credibility determinations bear on evaluations of medical 17 evidence when an ALJ is presented with conflicting medical opinions or 18 inconsistency between a claimant’s subjective complaints and diagnosed condition. 19 See Webb v. Barnhart, 433 F.3d 683, 688 (9th Cir. 2005). It is the province of the ORDER - 7 1 ALJ to make credibility determinations. Andrews v. Shalala, 53 F.3d 1035, 1039 2 (9th Cir. 1995). However, the ALJ’s findings must be supported by specific cogent 3 reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 4 affirmative evidence of malingering, the ALJ’s reason for rejecting the claimant’s 5 6 7 testimony must be “clear and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). The ALJ’s reasons are clear and convincing. The ALJ notes Devaney’s allegations exceeded objective findings during 8 examinations and on radiology reports (Tr. 31-33; Tr. 272-73, 282, 284, 289, 293, 9 297-98, 305, 309, 323, 329, 346, 374, 383, 415 (MRI of right shoulder and exam of 10 both shoulders “quite benign”); 436, 473)). Statements have been inconsistent (Tr. 11 33). Devaney testified headaches cause significant problems, but this is not well 12 13 documented in the medical record. The ALJ states Devaney did not mention headaches to providers until January 2012 (Tr. 34, citing Tr. 472). This is error, but 14 harmless. The record shows Devaney complained of headaches once in January 15 2011(said neck pain seems to trigger headaches) and once in May 2011 (complains 16 of migraines) (Tr. 339, 415). He testified he suffers headaches daily and they last 17 all day even with taking pain medication (Tr. 66-67). The ALJ’s reasoning is 18 correct: the record does not support Devaney’s testimony he suffers severe 19 headaches daily since he did not report this to his treatment providers. ORDER - 8 1 Devaney testified he was not helped and was actually made worse by 2 physical therapy, but records contradict this (Tr. 33, 65, 75, 302, 335, 339). 3 Devaney testified he sometimes blacks out yet he has also failed to report syncope 4 or dizziness to providers (Tr. 34, 68, see generally Ex. 3F; Tr. 304, 323, 328, 382, 5 6 7 388, 396, 434). He testified he requires daily naps lasting several hours; similarly, he never mentioned this to treatment providers (Tr. 35, 64). Devaney denied problems with drugs or alcohol. The record clearly shows he smokes marijuana. There is a reference to a medical marijuana card, but Devaney failed to state in his 8 testimony that he has one. There is evidence of drug seeking behavior (Tr. 35, 74, 9 271-72, 278, 281-82, 285-86, 288, 292, 296, 322, 370-72, 434, 472). There is some 10 evidence Devaney has not always consistently followed through with medical 11 treatment, including taking prescribed medication (Tr. 34, 271, 273, 277, 279, 28812 13 289, 296, 339, 388, 396). At the hearing Devaney did not mention activities such as walking for exercise five times a week but repeatedly reported this activity to 14 providers. He told a doctor he fell off of a deck while directing traffic at his 15 residence (Tr. 35, referring to Tr. 272, 278, 285-86, 293, 297). 16 The ALJ’s reasons are clear, convincing and supported by the record. Burch 17 v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005)(lack of medical evidence is properly 18 considered as long as it is not the sole basis for discounting pain testimony, daily 19 activities are properly considered); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th ORDER - 9 1 Cir. 2002)(proper factors include inconsistencies in claimant’s statements and 2 inconsistencies between statements and conduct); Fair v. Bowen, 885 F.2d 597, 3 603 (9th Cir. 1989)(unexplained noncompliance with medical treatment is properly 4 considered). 5 6 7 B. Weighing opinion evidence Devaney alleges the ALJ should have given more credit to the opinions of Drs. Candelaria and Barrett. ECF No. 23 at 10-12, referring to Tr. 266-70, 430-33. The Commissioner answers that the ALJ’s reasons for rejecting these contradicted 8 opinions are specific and legitimate. ECF No. 25 at 11-17. 9 Treating physician Gary M. Candelaria, D.O., assessed Devaney’s condition 10 on April 23, 2010, about four years after onset. Dr. Candelaria opined he was 11 unable to work even at a sedentary level due to problems with a learning disability, 12 13 lumbar stenosis and lumbar degenerative joint disease (DJD)(ability to work is zero hours per week). Dr. Candelaria opined Devaney would have difficulty with 14 comprehension and following instructions. Back pain limits lifting to less than ten 15 to fifteen pounds (Tr. 266-67). He expected back problems to last six months, 16 noted Devaney awaited a neurosurgery evaluation and may benefit from physical 17 therapy or injections. He opined further assessment of Devaney’s learning 18 disability was needed (Tr. 36, 266-270, 271-301). 19 The ALJ rejected this contradicted opinion because it was inconsistent with ORDER - 10 1 the medical evidence, including treatment notes from Candelaria’s own clinic, the 2 Whitman Medical Group. Exams showed that objective findings were largely 3 benign, with no range of motion limitations, no motor strength deficits, no gait 4 impairment and normal straight leg raises when tested (see e.g., Tr. 283-84, 289). 5 6 7 The ALJ points out Dr. Candelaria had no documentation of a learning disorder. The doctor’s notes indicate there is a “[k]nown learning disability. This has been documented by full comprehensive psychological and mental capacity testing.” The ALJ is correct that Dr. Candelaria’s records do not contain any documentation, 8 and he (Dr. Candelaria) opined further testing should be done (Tr. 36, 267, 288). 9 Test results elsewhere in the record show average IQ scores (Tr. 34, 452). 10 More importantly, a lifelong learning disorder causing difficulty with 11 comprehension and following instructions is inconsistent with Devaney’s ability to 12 13 work for many years, as the ALJ points out. Devaney worked fulltime as a janitor at a college for 13 years (Tr. 227). The VE testified limitations associated with 14 such a disorder would not preclude other work at step five (Tr. 34-35, 38, 62, 212- 15 19, 223 (noting no perceived reading difficulties during a 48 minute telephone 16 interview; claimant was on time, and prepared with application and medical 17 information), Tr. 266). Any error is harmless because Delaney fails to identify any 18 more restrictive limitations caused by a learning disorder that the ALJ should have 19 included. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)(error at step two ORDER - 11 1 2 harmless when ALJ considers limitations caused by nonsevere impairments). The ALJ observes Dr. Candelaria’s assessed limitation of “walking only for 3 brief periods” is inconsistent with Devaney’s reported functioning, including 4 reports he walked for exercise five days a week (Tr. 31, 36, 267, 272, 282, 289, 5 6 7 293-94, 296-98). The ALJ’s reasons are specific, legitimate and supported by substantial evidence. Devaney alleges the ALJ should have credited the limitations assessed by Andrea J. Barrett, M.D. On January 7, 2011. ECF No. 23 at 11-12. She opined 8 Devaney is unable to perform even sedentary work due to back problems and 9 bilateral shoulder instability. 10 The ALJ notes Dr. Barrett admitted she does not treat Devaney for back 11 problems. Her opinion is also inconsistent with other evidence, such as Devaney’s 12 13 14 reported activities. She observed his demonstration of physical therapy exercises was “very exaggerated and broad” (Tr. 36, 336-66, 430-33). The ALJ may properly reject a physician’s contradicted opinion that is 15 inconsistent with the record as a whole. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 16 2007)(citation omitted). Opinions premised on Plaintiff’s subjective complaints 17 and testing within Plaintiff’s control is properly given the same weight as 18 Plaintiff’s own credibility. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 19 2001). ORDER - 12 1 Devaney alleges the ALJ should have found at step two he suffers from the 2 severe impairment of a learning disorder. He is incorrect. The ALJ properly found 3 a learning disorder did not significantly limit Delaney’s ability to perform basic 4 work activities, the appropriate analysis for finding an impairment severe at step 5 6 7 two. See Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001). As noted the ALJ observed Devaney was able to work for many years despite an alleged learning disability, and the VE testified limitations associated with such a disorder would not preclude other work at step five (Tr. 38). There was no harmful error. 8 It is the ALJ’s province to resolve ambiguity in the record, such as the 9 contradicted medical opinions Devaney cannot perform even sedentary work. 10 Although Devaney alleges the ALJ should have weighed the evidence differently, 11 the ALJ is responsible for reviewing the evidence and resolving conflicts or 12 13 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ’s reasons for rejecting more dire limitations are specific, legitimate 14 and supported by substantial evidence. The ALJ assessed an RFC that is consistent 15 with the record as a whole. There was no harmful error. 16 17 CONCLUSION After review the Court finds the ALJ’s decision is supported by substantial 18 evidence and free of legal error. 19 IT IS ORDERED: ORDER - 13 1 1. Defendant’s motion for summary judgment, ECF No. 25, is granted. 2 2. Plaintiff’s motion for summary judgment, ECF No. 23, is denied. 3 The District Executive is directed to file this Order, provide copies to 4 5 counsel, enter judgment in favor of defendant, and CLOSE the file. DATED this 9th day of June, 2014. 6 s/James P. Hutton 7 JAMES P. HUTTON 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 ORDER - 14

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