Grove v. Colvin, No. 2:2013cv00302 - Document 19 (E.D. Wash. 2014)

Court Description: MEMORANDUM OPINION AND ORDER RE: MOTIONS FOR SUMMARY JUDGMENT - denying 15 Motion for Summary Judgment; and granting 16 Motion for Summary Judgment. Signed by Senior Judge Justin L. Quackenbush. (CC, Case Administrator)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 6 NICOLE A. GROVE, Plaintiff, 7 8 9 10 v. CAROLYN W. COLVIN, Commissioner of Social Security, NO. CV-13-00302-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. 15 & 16). Plaintiff is represented by attorney Lora Lee Stover. Defendant is 14 represented by Assistant United States Attorney Pamela J. DeRusha and Special 15 Assistant United States Attorney Nancy A. Mishalanie. This matter was 16 previously before Magistrate Judge John T. Rodgers. The final briefing deadline 17 was March 3, 2014, and oral argument was not requested. The case was 18 reassigned to the undersigned for all further proceedings on March 5, 2014. The 19 court has reviewed the administrative record and the parties briefs. The matter 20 was taken under submission by Order of March 19, 2014. 21 This court s role on review of the decision of the Administrative Law Judge 22 (ALJ) is limited. The court reviews that decision to determine if it was supported 23 by substantial evidence and contains a correct application of the law. Valentine v. 24 Comm r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). This court is 25 obligated to affirm the ALJ s findings if they are supported by substantial 26 evidence and the reasonable inferences to be drawn therefrom. Molina v. Astrue, 27 674 F.3d 1104, 1110-11 (9th Cir. 2012). Substantial evidence is such relevant 28 evidence that a reasonable mind might accept as adequate to support the ORDER - 1 1 conclusion. I. JURISDICTION/PROCEDURAL HISTORY 2 3 Plaintiff, Nicole A. Grove, applied for supplemental security income 4 benefits on June 17, 2010, when she was 35 years-old. Plaintiff s claims were 5 denied initially and upon reconsideration. Plaintiff requested a hearing and a 6 hearing was held on December 22, 2011, before Administrative Law Judge James 7 Sherry. (Transcript of hearing at ECF No. 12-2, p. 49-84). On January 26, 2012, 8 the ALJ issued an opinion denying benefits. (ECF No. 12-2 at 24-42). Plaintiff 9 appealed that decision to the Appeals Council and on June 20, 2013, the Appeals 10 Council denied review. (Id. at 1). The decision of the ALJ became the final 11 decision of the Commissioner, which is appealable to the district court pursuant to 12 42 U.S.C. § 405(g). Plaintiff filed the instant action on August 12, 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 she is, benefits are denied. If she is not, the ORDER - 2 1 2 decision 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 she 15 has performed in the past? 20 C.F.R. §§ 404.1520(e), 416.920(e). If the claimant 16 is able to perform her previous work, she 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 her 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 III. STANDARD OF REVIEW 2 3 The [Commissioner's] determination that a claimant is not disabled will be 4 upheld if the findings of fact are supported by substantial evidence and the 5 [Commissioner] applied the proper legal standards." Delgado v. Heckler, 722 6 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial evidence is 7 more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th 8 Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 9 601-602 (9th Cir. 1989). "It means such relevant evidence as a reasonable mind 10 might accept as adequate to support a conclusion." Richardson v. Perales, 402 11 U.S. 389, 401 (1971) (citations omitted). "[S]uch inferences and conclusions as 12 the [Commissioner] may reasonably draw from the evidence" will also be upheld. 13 Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court 14 considers the record as a whole, not just the evidence supporting the decision of 15 the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989). This 16 court may set aside a denial of benefits only if the basis for denial is not supported 17 by substantial evidence or if it is based on legal error. Thomas v. Barnhart, 278 18 F.3d 947, 954 (9th Cir. 2002). It is the role of the trier of fact, not this court, to 19 resolve conflicts in the evidence. Richardson, 402 U.S. at 400. If the evidence 20 supports more than one rational interpretation, the court must uphold the decision th 21 of the ALJ. Thomas, 278 F.3d at 954 (9 Cir. 2002). IV. STATEMENT OF FACTS 22 23 The facts are contained in the medical records, administrative transcript, and 24 the ALJ's decision, and are only briefly summarized here. At the time the ALJ 25 issued his decision in 2012, Plaintiff was 37 years-old. Plaintiff was married at the 26 time she applied, although the record indicates she may have separated from her 27 husband after he spent some time in jail. She has three children. Plaintiff quit 28 school after the ninth grade, and did not obtain a GED. (ECF No. 12-2, p. 56). ORDER - 4 1 Plaintiff s past work experience is limited. She worked primarily as a daycare 2 provider/babysitter and in the past did some laundry work. Her 14-year earnings 3 history reflects six years with no income. Plaintiff described her work as 4 sometimes full-time for a few months, then part time. (ECF No. 12-2, p. 58). 5 Plaintiff claimed disability based primarily on knee pain, irritable bowel 6 syndrome, depression, and anxiety. Plaintiff testified she has no problems with 7 drugs or alcohol. 8 V. COMMISSIONER S FINDINGS 9 The ALJ found at Step 1 that Plaintiff had not engaged in substantial 10 gainful activity since June 17, 2010, the application date. (ECF No. 12-2, p. 29). 11 The Plaintiff agreed it was appropriate to utilize the June 17, 2010 date, rather 12 than the alleged onset date of October 31, 2009, in evaluating her application for 13 SSI benefits. (ECF No. 12-2, p. 53-54). 14 At Step 2, the ALJ found the medical evidence established the following 15 severe impairments: bilateral knee osteoarthritis and chondromalacia, obesity, 16 functional bowel disease, asthma, plantar fasciitis, major depressive disorder, 17 anxiety, and personality disorder (ECF No. 12-2, p. 29). 18 At Step 3, the ALJ found that Plaintiff did not have an impairment or 19 combination of impairments that meets or medically equals the Listings as 20 described in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d)) . 21 The ALJ specifically considered sections 1.02 concerning Plaintiff s knee 22 impairment. The ALJ found Plaintiff s irritable bowel syndrome did not meet any 23 listing in 5.01 for the digestive system. The ALJ further found Plaintiff s asthma 24 did not meet listing 3.03. The ALJ specifically considered Plaintiff s mental 25 impairments and found they did not meet Listings 12.04, 12.06, or 12.08. 26 At Step 4, the ALJ evaluated Plaintiff s residual functional capacity (RFC) 27 and found Plaintiff had the RFC to perform sedentary work. The RFC also 28 contained additional limitations to account for Plaintiff s physical and mental ORDER - 5 1 impairments. (ECF No. 12-2, p. 32). The ALJ then concluded that Plaintiff was 2 not capable of performing her past relevant work as a child monitor.(Id. at 35). 3 At Step 5 the ALJ concluded, relying on the testimony of a vocational 4 expert, that Plaintiff was capable of performing other work that exists in 5 significant numbers in the national economy. Specifically, the vocational expert 6 identified the jobs of hand packager, final assembler, and micro film preparer. 7 (ECF No. 12-2, p. 36). 8 The ALJ concluded that Plaintiff had not been under a disability, as defined 9 in the Social Security Act, from the application date of June 17, 2010, through the 10 date of the decision, January 26, 2012. VI. ISSUES 11 12 Plaintiff identifies five issues for review: 1) the ALJ erred in disregarding 13 the opinions of Plaintiff s providers; 2) the ALJ erred in assessing Plaintiff s RFC; 14 3) the ALJ posed an improper hypothetical; 4) the ALJ erred in assessing 15 Plaintiff s credibility; and 5) the record as a whole does not support the non16 disability determination. (ECF No. 15, p. 6). Defendant s framing of the issues 17 differs slightly, and also includes the question of new evidence submitted to the 18 Appeals Council. The court will address the arguments that have been properly 19 briefed. Plaintiff s framing of the issues is rather generic, and the issues are inter20 related. For example, Plaintiff argues the assessment of her residual functional 21 capacities is flawed [issue #2] due to the lack of weight placed on her testimony 22 [issue #4]. This in turn resulted in an incomplete hypothetical being presented to 23 the vocational expert [issue #3] (ECF No. 15, p. 11)(internal citations omitted). 24 Plaintiff's claims concerning RFC and incomplete hypothetical are derivative of 25 the claim that the ALJ erroneously found her only partially credible. 26 The two primary issues are whether the ALJ properly assessed Plaintiff s 27 credibility, and the ALJ s consideration of the medical evidence. 28 ORDER - 6 1 VII. DISCUSSION 2 A. Did the ALJ Err in Assessing Plaintiff s Credibility? 3 In deciding whether to accept a claimant s subjective symptom testimony, 4 the ALJ must perform two stages of analysis: the Cotton analysis and an analysis 5 of the credibility of the claimant s testimony regarding the severity of her th 6 symptoms. Smolen v. Chater, 80 F.3d 1273, 1281 (9 Cir. 1996). The Cotton 7 analysis comes from the Ninth Circuit s opinion in Cotton v. Bowen, 799 F.2d th 8 1403 (9 Cir. 1986), and thereunder the claimant must: 1) produce objective 9 medical evidence of an impairment or impairments; and 2) show that the 10 impairment or combination of impairments could reasonably be expected to 11 produce some degree of symptom. Smolen, 80 F.3d at 1281-82. If a claimant 12 meets the Cotton test, then the ALJ may reject the claimant s testimony regarding 13 the severity of symptoms only based on specific, clear, and convincing reasons. Id. 14 at 1284. 15 The ALJ found that Grove's medically determinable impairments could be 16 expected to produce some of alleged symptoms, but the ALJ did not find all of 17 the claimant s symptom allegations to be credible. (ECF No. 12-2, p. 33). The 18 ALJ then gave numerous reasons for his credibility determination. He found that 19 objective medical findings did not support the degree of restriction alleged . 20 (Id.). He noted that the medical records demonstrated her asthma was under 21 control and stable. The ALJ observed that Dr. Jacob Deakins had noted Plaintiff 22 was doing well and doing well overall and that Plaintiff planned to join a gym, 23 which Deakin viewed favorably. (Id. at 34). 24 The ALJ also found some degree of exaggeration by the claimant is 25 suggested in the medical record. (Id. at 34). This conclusion is supported by the 26 record. For example, on several routine office visits, Plaintiff described her pain 27 as being at a 9 or 10 on a scale where 0 is pain free and 10 is being the worst pain 28 the patient has ever felt. On August 4, 2011, Plaintiff described her pain as a 10, ORDER - 7 1 but the doctor s note does not indicate that she appeared to be in extreme pain, 2 rather he wrote that Plaintiff s pain is fairly stable on the Lortab. She simply 3 needs a refill. (Id. at 440). 4 The ALJ also found that her testimony regarding limitations was 5 inconsistent with her activities of daily living. Plaintiff takes care of three minor 6 children. (Id.). Plaintiff described her daily activities to Dr. Scott Mabee, Ph.D., as 7 getting up at 7:30 a.m. and making breakfast for children. (ECF No. 12, p. 264). 8 She then does some cleaning, makes lunch, plays outside with her children, and 9 does laundry and grocery shopping as needed. (Id.). The fact that Plaintiff can 10 partake in daily activities is not determinative of disability. Magallanes v. Bowen, th 11 881 F.2d 747, 756 (9 Cir. 1989). However, the ability to participate in such 12 activities is relevant to Plaintiff s credibility to the extent that the level of activity 13 is in fact inconsistent with the claimed limitations. See also Curry v. Sullivan, 925 th 14 F.2d 1127, 1130 (9 Cir. 1990)(claimant's ability "to take care of her personal 15 needs, prepare easy meals, do light housework, and shop for some groceries...may 16 be seen as inconsistent with the presence of a condition which would preclude all 17 work activity.") 18 Regarding irritable bowel syndrome/functional bowel disease, the ALJ noted 19 that the medical records from November 2011 showed that the condition was 20 stable and had improved with medication. (Id.). The claimant has the burden of 21 producing objective medical evidence of impairment. To establish the existence 22 of a medically determinable impairment, the claimant must provide medical 23 evidence consisting of signs the results of medically acceptable clinical 24 diagnostic techniques, such as tests as well as symptoms. Ukolov v. Barnhart, th 25 420 F.3d 1002, 1005 (9 Cir. 2005). A claimant s own statement of symptoms 26 alone is not enough to establish a medically determinable impairment. Id. See also 27 20 C.F.R. §§ 404.1508, 416.908. 28 The ALJ did find the functional bowel disease to be a severe impairment, ORDER - 8 1 despite the evidence of record being minimal and arguably containing no clear 2 medical diagnosis of functional bowel disease. At a gastroenterology referral in 3 April 2011, Stacee Anderson, PA, stated she suspect[ed] irritable bowel 4 syndrome and that was a probable diagnosis, however further tests were needed 5 and Plaintiff declined a colonoscopy. (ECF No. 12, p. 308). In November 2011, 6 Clinton Hedges, PA-C, stated that Plaintiff has what appears to be irritable bowel 7 syndrome . (Id. at 573). He further stated her condition was improving rather 8 significantly and that stool studies were entirely unremarkable . (Id.). 9 An important component of Plaintiff s credibility argument is that if the 10 ALJ had credited her testimony regarding the severity of her functional bowel 11 disease, then her need for frequent rest breaks would have prohibited her from 12 working. (ECF No. 15, p.10). At the hearing Plaintiff testified that she did not 13 have any further appointments scheduled for her bowel condition. (ECF No. 12, p. 14 67). Plaintiff testified that over the last couple of years, generally twice per week 15 her stomach problems were such that she did not leave the house. (Id.). As stated 16 supra, the ALJ did not find all of Plaintiff s symptom allegations to be credible, 17 and he further found them unsupported by objective medical evidence. That 18 conclusion applies to Plaintiff s bowel condition. It was not conclusively 19 diagnosed, rather doctors referred to it as probable , suspected and appears to 20 be irritable bowel syndrome. The record further reflects it was being successfully 21 treated. The record does not demonstrate that Plaintiff had been informing her 22 health care providers that she could not leave the house twice per week due to the 23 severity of her symptoms. 24 The ALJ s primary reason for finding Plaintiff not entirely credible was a 25 finding that Plaintiff's subjective testimony was not consistent with the objective 26 medical findings. This determination is supported by substantial evidence. The 27 ALJ gave specific examples of where the record demonstrated that Plaintiff s 28 impairments were not as severe as she claimed and/or were being successfully ORDER - 9 1 treated. The ALJ s reasons are specific, clear and convincing reasons supported 2 by the record. It is the role of the ALJ to assess credibility and weigh the 3 evidence, [w]here the evidence is susceptible to more than one rational 4 interpretation, it is the ALJ s conclusion that must be upheld. Burch v. Barnhart, th 5 400 F.3d 676, 679 (9 Cir. 2005). 6 B. Did the ALJ Err in Assessing the Medical Evidence? 7 Plaintiff argues that the ALJ did not properly consider the opinions of Dr. 8 Paul Piper and Dr. Jacob Deakins, and cites to five pages of the over 700-page 9 record. (ECF No. 15, citing to pages 268-272). Dr. Deakins completed a largely 10 checkbox form for the Washington State Department of Social and Health 11 Services. He stated on that form that Plaintiff had limitations of, Depression may 12 impair concentration and knee pain-no prolonged standing . (ECF No. 12, p. 13 268). There is a check box concerning how many hours per week the person was 14 capable of work, and the 0 hrs box is checked, stating unable to participate. Dr. 15 Deakins also checked a box as yes , stating that Plaintiff could not look for or 16 prepare for work. Lastly, Dr. Deakins wrote that Plaintiff would likely have such 17 limitations for 6 months, and that there were no issues needing further evaluation 18 or treatment. This evaluation is dated September 2, 2010. (Id. at 269). 19 Dr. Piper completed a Documentation Request for Medical or Disability 20 Condition from the Department of Social & Health Services in November 2009. 21 Dr. Piper stated Plaintiff had reactive depression and that such would limit her 22 ability to work, but he did not check a box for the number of hours limited. (Id. at 23 270). Dr. Piper did also indicate, via check box, that Plaintiff would be unable to 24 participate in preparing for or looking for work. (Id.). As to duration, Dr. Piper 25 stated that Plaintiff s limitations should last only three months. 26 The relevant period for disability determination in this case is June 17, 27 2010, through the date of the ALJ s decision, January 26, 2012. Therefore, Dr. 28 Piper s evaluation in November 2009, is largely irrelevant. To the extent it is ORDER - 10 1 relevant, it would tend to support the ALJ s determination of non-disability. Dr. 2 Piper expected Plaintiff s condition to improve in three months, or by February 3 2010. Dr. Deakin s report is during the relevant period. The ALJ specifically 4 addressed Dr. Deakin s report and afforded it little weight due to the fact it was 5 not supported by objective medical findings. (ECF 12-2, p. 35). Although a 6 treating physician s opinion is generally afforded the greatest weight in disability 7 cases, it is not binding on an ALJ with respect to the existence of an impairment or 8 the ultimate determination of disability. Batson v. Commissioner of Social th 9 Security, 359 F.3d 1190, 1195 (9 Cir. 2004). The ALJ may disregard the treating 10 physician s opinion as to the ultimate determination of disability whether or not 11 that opinion is contradicted. Id. The ALJ need not accept a treating physician s 12 opinion which is brief and conclusory in form with little in the way of clinical th 13 findings to support its conclusion. Magallanes v. Bowen, 881 F.2d 747, 751 (9 th 14 Cir. 1989); see also Bell-Shier v. Astrue, 312 Fed.Appx. 45, 48 n.3 (9 Cir. 15 2009)( Medical reports presented in such summary check-box format without 16 additional explanation are not entitled to significant weight. ). 17 Neither Dr. Deakin's or Dr. Piper's brief check box evaluations of Plaintiff 18 indicate that she met the requirements for a disability finding. Both physicians 19 indicated that her limitations would last three to six months. Plaintiff has the 20 burden of demonstrating that her impairments/limitations "can be expected to last 21 for a continuous period of not less than twelve months." 42 U.S.C. §§ th 22 423(d)(1)(A), 1382c(a)(3)(A); see also Roberts v. Shalala, 66 F.3d 179 (9 Cir. 23 1995)(Claimant in her mid-thirties suffered from obesity, knee pain and 24 depression. Court found she had not established the duration requirement because 25 she had only presented evidence of impairment for a 7-month period). The ALJ s 26 decision to afford Dr. Deakin s report little weight is supported by the record. Dr. 27 Piper's evaluation was performed outside the applicable time period and is largely 28 irrelevant. ORDER - 11 1 C. New Evidence After the ALJ s Determination 2 Plaintiff submitted medical records for treatment that was provided after the 3 ALJ s decision. Concerning this new evidence, the Appeals Council stated: 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 We also looked at records from Valley Physical Therapy dated February 6, 2012 through June 5, 2012 ... The Administrative Law Judge decided your case through January 26, 2012. This new information is about a later time. Therefore, it does not affect the decision about whether you were disabled beginning on or before January 26, 2012. (ECF No. 12, p. 2). As the records were considered by the Appeals Council, this court may consider them as part of the record. Brewes v. Commissioner, 682 F.3d 1157 (9th Cir. 2012). However, the Appeals Council may consider new and material evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. 20 CFR § 416.1470. This is precisely what the Appeals Council did considered the records, but determined they were irrelevant because they pertained to a period after the ALJ s determination. The submission of this new evidence to the Appeals Council does not merit remand. See Quesada v. Colvin, 525 Fed.Appx. 627 (9th Cir. 2013)("the district court properly concluded that the additional evidence [claimant] submitted to the Appeals Council would not have changed the outcome in the case because it postdated the ALJ's decision and therefore was not relevant."). 19 VIII. CONCLUSION 20 As stated. supra, this court s role is limited. In this case, the 21 22 23 Commissioner s and ALJ s decision is supported by substantial evidence in the record and is based on proper legal standards. It must therefore be affirmed. Lewis th 24 v. Astrue, 498 F.3d 909, 911 (9 Cir. 2007). 25 IT IS HEREBY ORDERED: 26 1. Plaintiff s Motion for Summary Judgment (ECF No. 15) is DENIED. 27 2. Defendant s Motion for Summary Judgment (ECF No. 16) is 28 GRANTED. ORDER - 12 1 3. The Clerk is directed to enter Judgment dismissing the Complaint and 2 the claims therein with prejudice. 3 IT IS SO ORDERED. The District Court Executive is directed to file this 4 Order, enter Judgment as directed above, and close this file. 5 DATED this 16th day of April, 2014. s/ Justin L. Quackenbush JUSTIN L. QUACKENBUSH SENIOR UNITED STATES DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER - 13

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