Quill v. Colvin, No. 2:2013cv03097 - Document 21 (E.D. Wash. 2014)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ECF No. 19 and denying ECF No. 18 Plaintiff's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

Download PDF

1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 8 SHARON QUILL, No. 2:13-CV-3097-JTR 9 10 Plaintiff, 11 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 12 CAROLYN W. COLVIN, 13 Commissioner of Social Security, 14 Defendant. 15 16 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 17 Nos. 18, 19. Attorney D. James Tree represents Plaintiff, and Special Assistant 18 United States Attorney Nicole A. Jabaily represents the Commissioner of Social 19 Security (Defendant). The parties have consented to proceed before a magistrate 20 judge. ECF No. 8. After reviewing the administrative record and the briefs filed 21 by the parties, the court GRANTS Defendant’s Motion for Summary Judgment 22 and DENIES Plaintiff’s Motion for Summary Judgment. 23 JURISDICTION 24 On June 3, 2008, Plaintiff filed a Title II and a Title XVI application for 25 disability and supplemental security income benefits, alleging disability beginning 26 October 1, 1989. Tr. 25; 263-64. Plaintiff reported that she was unable to work 27 due to manic depression and PTSD. Tr. 268. Plaintiff’s claim was denied initially 28 and on reconsideration, and she requested a hearing before an administrative law ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 1 2 judge (ALJ). Tr. 102-192. On February 15, 2011, ALJ Marie Palachuk held a hearing, at which medical 3 expert Donna Mary Veraldi, Ph.D., vocational expert K. Diane Kramer and 4 Plaintiff, who was represented by counsel, testified. Tr. 59-100. On March 25, 5 2011, the ALJ issued a decision finding Plaintiff not disabled. Tr. 25-41. The 6 Appeals Council declined review. Tr. 1-4. The instant matter is before this court 7 pursuant to 42 U.S.C. § 405(g). 8 9 STATEMENT OF FACTS The facts have been presented in the administrative hearing transcript, the 10 ALJ’s decision, and the briefs of the parties and, thus, they are only briefly 11 summarized here. At the time of the third hearing, Plaintiff was 40 years old, and 12 had one teenage daughter. Tr. 102; 308-09. As of September, 2008, Plaintiff was 13 living with relatives. Tr. 308. 14 Plaintiff completed the ninth grade of school, and later obtained a GED. Tr. 15 76. She worked at several short-term jobs, often as a cashier, at stores such as 16 Wal-Mart and at Michael’s Arts and Crafts. Tr. 78; 254-59. She also worked as a 17 waitress and as a produce sorter. Tr. 254-59. She obtained a cosmetology license 18 and worked as a hairdresser for a few months. Tr. 79. 19 Plaintiff testified that she did not take street drugs, after her teen years. Tr. 20 89. But in October 2008, she told Jay M. Toews, Ph.D., that she has a “long 21 history” of substance abuse. Tr. 459. Plaintiff also testified that at one time, she 22 lied and claimed that she was using methamphetamine, so she could go to a 23 rehabilitation facility and get away from her mother. Tr. 89. 24 Plaintiff testified that she has had back problems since she was a teenager, 25 and she experiences increased pain when she is under stress. Tr. 92. She 26 described her daily routine as watching television, eating, and sometimes staying in 27 bed all day. Tr. 308. Plaintiff indicated that she eats frozen meals, and she can 28 perform “all chores,” but if she is too depressed she will not do anything. Tr. 310. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 1 She reported her hobbies as sewing, beading, walking, watching television and 2 reading. Tr. 312. 3 4 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 5 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 6 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 7 deference to a reasonable construction of the applicable statutes. McNatt v. Apfel, 8 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 9 only if it is not supported by substantial evidence or if it is based on legal error. 10 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 11 defined as being more than a mere scintilla, but less than a preponderance. Id. at 12 1098. Put another way, substantial evidence is such relevant evidence as a 13 reasonable mind might accept as adequate to support a conclusion. Richardson v. 14 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 15 rational interpretation, the court may not substitute its judgment for that of the 16 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 17 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by 18 substantial evidence will still be set aside if the proper legal standards were not 19 applied in weighing the evidence and making the decision. Brawner v. Secretary 20 of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial 21 evidence exists to support the administrative findings, or if conflicting evidence 22 exists that will support a finding of either disability or non-disability, the ALJ’s 23 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 24 Cir. 1987). 25 26 SEQUENTIAL PROCESS The Commissioner has established a five-step sequential evaluation process 27 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 28 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 1 through four, the burden of proof rests upon the claimant to establish a prima facie 2 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This 3 burden is met once a claimant establishes that a physical or mental impairment 4 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 5 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 6 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 7 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 8 in the national economy which claimant can perform. Batson v. Commissioner of 9 Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an 10 adjustment to other work in the national economy, a finding of “disabled” is made. 11 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v). 12 If the individual succeeds in proving disability when there is evidence of 13 drug and alcohol addiction (DAA), the Commissioner must then determine 14 whether the DAA is material to the determination of disability. 20 C.F.R. §§ 15 404.1535 and 416.935. The ALJ must determine whether the claimant would be 16 disabled if he or she stopped using alcohol or drugs. The Social Security Act bars 17 payment of benefits when drug addiction and/or alcoholism is a contributing factor 18 material to a disability claim. 42 U.S.C. §§ 423(d)(2)(C) and 1382(a)(3)(J); Sousa 19 v. Callahan, 143 F. 3d 1240, 1245 (9th Cir. 1998). Plaintiff has the burden of 20 showing that drug and alcohol addiction (DAA) is not a contributing factor 21 material to disability. Ball v. Massanari, 254 F. 3d 817, 823 (9th Cir. 2001). 22 If evidence exists of DAA and the individual succeeds in proving disability, 23 the Commissioner must determine whether the DAA is material to the 24 determination of disability. 20 C.F.R. §§ 404.1535 and 416.935. If an ALJ finds 25 that the claimant is not disabled, then the claimant is not entitled to benefits and 26 there is no need to proceed with the analysis to determine whether substance abuse 27 is a contributing factor material to disability. However, if the ALJ finds that the 28 claimant is disabled, then the ALJ must proceed to determine if the claimant would ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 1 be disabled if he or she stopped using alcohol or drugs. ALJ’S FINDINGS 2 3 At step one of the sequential evaluation process, the ALJ found Plaintiff has 4 not engaged in substantial gainful activity October 1, 1989, her application date. 5 Tr. 28. At step two, the ALJ found Plaintiff suffered from the severe impairments 6 of major depressive disorder, anxiety disorder, and polysubstance (cocaine, 7 methamphetamine, and alcohol) abuse disorder. Tr. 28. At step three, the ALJ 8 found Plaintiff’s impairments, including the substance abuse disorders, medically 9 equal sections 12.04, 12.06 and 12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 10 1 (20 C.F.R. 404.1520(d) and 416.920(d). Tr. 34. The ALJ also found that if 11 Plaintiff stopped the substance abuse, the remaining limitations would cause more 12 than a minimal impact on the claimant’s ability to perform basic work activities; 13 therefore the claimant would continue to have a severe impairment or combination 14 of impairments. Tr. 34. The ALJ concluded that if the “claimant stopped the 15 substance use, the claimant would not have an impairment or combination of 16 impairments that meets or medically equals any of the impairments listed in of 20 17 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d) and 416.920(d)).” 18 Tr. 35. 19 The ALJ next found that if Plaintiff stopped the substance use, she would 20 have the residual functional capacity to perform a full range of work at all 21 exertional levels but with the following nonexertional limitations: 22 23 24 25 26 27 28 She is able to understand, remember, and carry out simple routine and repetitive tasks involving up to 3-step commands. She should have minimal contact with the public and only occasional superficial interactions with coworkers and supervisors. It would be best if the claimant dealt with things rather than people; therefore, a more isolated work environment would be appropriate. She would need additional time to adapt to changes in the work routine or work setting, and there may be occasions where she may need an additional 5 or 10 minute break during the workday. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 1 Tr. 36. The ALJ also found that if Plaintiff stopped the substance use, she would 2 be able to perform past relevant work as a sorter. Tr. 40. The ALJ concluded that 3 because Plaintiff would not be disabled if she stopped the substance use, her 4 substance use disorder is a contributing factor material to the determination of 5 disability, and thus she is not disabled within the meaning of the Social Security 6 Act. Tr. 40. 7 ISSUES 8 Plaintiff contends that the ALJ erred by: (1) finding Plaintiff had little 9 credibility; (2) weighing the medical evidence; (3) positing an incomplete 10 hypothetical to the vocational expert; and (4) failing to follow the requirements of 11 SSR 13-2p. ECF No. 18 at 9-10. 12 1. Credibility 13 Plaintiff contends that the ALJ erred by improperly rejecting Plaintiff’s 14 credibility on the basis that the medical record did not adequately support her 15 subjective statements. ECF No. 18 at 14-15. 16 The ALJ is responsible for determining credibility. Andrews, 53 F.3d at 17 1039. Unless affirmative evidence exists indicating that the claimant is 18 malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear 19 and convincing." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). The ALJ's 20 findings must be supported by specific, cogent reasons. Rashad v. Sullivan, 903 21 F.2d 1229, 1231 (9th Cir. 1990). "General findings are insufficient; rather, the 22 ALJ must identify what testimony is not credible and what evidence undermines 23 the claimant's complaints." Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998), 24 quoting Lester, 81 F.3d at 834. 25 The ALJ found that Plaintiff was not credible, based upon a lack of objective 26 medical evidence to support the severity of her claimed symptoms, her inconsistent 27 statements about substance abuse, and her sporadic work history prior to the 28 alleged onset of her disabling conditions. Tr. 38. Plaintiff does not challenge the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 1 ALJ’s findings regarding inconsistent statements and her sporadic work history 2 prior to her alleged onset date. Instead, Plaintiff argues that medical evidence 3 supports Plaintiff’s claims, and specifically argues that medical records from Mr. 4 Whiteshirt and Dr. Thompson support her credibility. ECF No. 18 at 14. 5 Plaintiff’s argument is cursory, and contains few citations to the record. ECF No. 6 18 at 14-15.1 7 Upon review of the record, Plaintiff’s argument that the ALJ erred in 8 determining Plaintiff lacked credibility is not persuasive. First, Plaintiff fails to 9 specify the alleged records from “Whiteshirt, M.S.W.” that support her argument. 10 ECF No. 18 at 14. Nila Whiteshirt, M.S.W., completed multiple “WorkFirst 11 Participation Verification Form[s]” indicating that Plaintiff attended, or failed to 12 attend, workshops between April 2008 and January 2009. Tr. 644-59. However, 13 Plaintiff failed to specify which opinions support her credibility. Also lacking is 14 analysis related to records authored by Ms. Whiteshirt that provide objective 15 medical evidence to support Plaintiff’s claims of severe symptoms. The Ninth 16 Circuit has repeatedly admonished that the court will not "manufacture arguments 17 for an appellant and, therefore, will not consider claims that were not actually 18 argued in appellant's opening brief.” Greenwood v. Fed. Aviation Admin., 28 F.3d 19 971, 977 (9th Cir. 1994). Because Plaintiff failed to provide meaningful analysis 20 21 1 Plaintiff’s argument also is devoid of relevant standards for determining 22 credibility under the regulations, and instead cites to Corpus Juris Secundum, 23 while urging the court to review the record regarding Plaintiff’s credibility in “the 24 light most favorable to the Claimant.” ECF No. 18 at 15-16. We decline 25 Plaintiff’s invitation to employ a novel standard of review, and instead the court 26 adheres to Ninth Circuit precedent that prohibits second-guessing of the ALJ 27 credibility determination when the ALJ’s findings are supported by substantial 28 evidence. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 1 2 and argument, the court is unable to review this portion of Plaintiff’s issue.2 The second prong of Plaintiff’s argument relies upon a record she 3 erroneously attributes to “Thompson, M.D.,” which is a brief questionnaire 4 completed by Thomas S. Walker, M.D. Tr. 517. The form, dated July 9, 2009, 5 reveals that Plaintiff was a new patient, and she was first seen by this doctor less 6 than four weeks earlier on June 12, 2009. Tr. 517-18. Dr. Walker indicated he had 7 seen Plaintiff twice, for abdominal pain related to gallstones. Tr. 517. In response 8 to the question, “does your patient have to lie down during the day?” Dr. Walker 9 responded “yes.” Tr. 517. Dr. Walker answered that full time work would likely 10 cause Plaintiff’s pain and depression to increase, yet Plaintiff was not likely to 11 miss work due to medical impairments. Tr. 518. 12 Dr. Walker’s brief answers on a single form do not provide objective 13 medical evidence that supports Plaintiff’s assertions of the alleged severity of her 14 symptoms. In the corresponding chart notes, Dr. Walker acknowledged that since 15 he had only seen Plaintiff twice for her abdominal pain which were gallstones, he 16 was “only able to provide limited info[rmation] for her long standing back pain.” 17 Tr. 538. As such, Dr. Walker’s cursory answers on the July 9, 2009, form do not 18 provide objective medical evidence that supports Plaintiff’s credibility. 19 Moreover, the ALJ provided valid reasons for finding Plaintiff’s credibility 20 lacking. Specifically, the ALJ relied upon the lack of objective medical evidence, 21 Plaintiff’s inconsistent statements about her substance abuse, and her sporadic 22 work history prior to the alleged onset of her disabling conditions. Tr. 38; see 23 Morgan, 169 F.3d at 600 (conflicts between a Plaintiff’s testimony of subjective 24 25 2 The ALJ gave little weight to Ms. Whiteshirt’s opinion that Plaintiff was 26 unable to work more than ten hours per week because that assessment was 27 “admittedly based on the claimant’s self-statements.” Tr. 39. The record supports 28 this finding. Tr. 652. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 1 complaints and the objective medical evidence in the record can constitute specific 2 and substantial reasons that undermine credibility); Thomas, 278 F.3d at 959 (in 3 finding claimant had little credibility, ALJ relied on claimant’s inconsistent 4 statements regarding drug and alcohol use and spotty work history prior to onset 5 date); Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) ("A lack of 6 work history may indicate a lack of motivation instead of a lack of ability"). Moreover, the ALJ’s valid reasons are supported by substantial evidence. 7 8 For example, the evidence reveals that Plaintiff admitted she lied to her counselor 9 in order to get admitted to a rehabilitation facility. Tr. 89. She also gave 10 inconsistent answers about her abuse of drugs and alcohol. Tr. 459-60; 555. 11 Several objective medical tests of Plaintiff’s back revealed normal anatomy, and 12 she exhibited normal gait, strength and sensation. Tr. 486, 520, 524, 718. Also, 13 the record establishes that Plaintiff’s work history was sporadic, prior to her onset 14 date. Tr. 254-58; 275. 15 The ALJ provided clear and convincing reasons, supported by substantial 16 evidence, in determining that Plaintiff’s complaints had little credibility. 17 2. Medical Evidence 18 Plaintiff argues that the ALJ erred by “dismissing the numerous ‘moderate’ 19 functional limitations of the Claimant.” ECF No. 18 at 16-17. Plaintiff states that 20 Patricia Kraft, Ph.D., and non-examining medical expert Donna Veraldi, Ph.D., 21 both assessed Plaintiff with several moderate functional limitations, and the ALJ 22 erred by “dismissing” these assessments. 23 Again, Plaintiff’s vague statement of the issue lacks meaningful argument. 24 Plaintiff provides little more than a recitation of the number of moderate 25 limitations assessed by two medical providers and the definition of “moderate” as 26 it relates to the assessed impairments. In other words, Plaintiff fails to provide a 27 basic legal analysis. 28 On review, a Mental Residual Functional Capacity Assessment was ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 1 completed on November 5, 2008, by Patricia Kraft, Ph.D. Tr. 478-80. Dr. Kraft 2 assessed Plaintiff with six moderate limitations in the ability to: (1) understand and 3 remember detailed instructions; (2) carry out detailed instructions; (3) maintain 4 attention and concentration for extended periods; (4) work in coordination with or 5 proximity to others without being distracted by them; (5) interact appropriately 6 with the general public; and (6) accept instructions and respond appropriately to 7 criticism from supervisors. Tr. 477-78. 8 9 Dr. Kraft’s assessed moderate limitations are incorporated into Plaintiff’s RFC. Compare, Tr. 478-80 and Tr. 36. For example, Dr. Kraft indicated that 10 Plaintiff would be moderately limited in understanding, remembering and carrying 11 out detailed instructions, and the RFC provides that Plaintiff is limited to simple, 12 routine and repetitive tasks. Tr. 478; 36. Similarly, Dr. Kraft opined that Plaintiff 13 would be moderately limited in working near others, interacting with the public 14 and supervisors, and the RFC limits Plaintiff to jobs that have little to no contact 15 with coworkers and the public, is more isolated, and requires working with things, 16 not people. Tr. 478-80; 36. Plaintiff fails to identify a moderate limitation 17 assessed by Dr. Kraft that was not incorporated into Plaintiff’s RFC. The court 18 finds none. 19 Similarly, the RFC incorporated Dr. Veraldi’s assessed limitations. During 20 the hearing, Donna Veraldi, Ph.D., opined that if Plaintiff stopped substance abuse 21 and consistently took medications and was treated, she would experience only 22 moderate functional limitations. Tr. 70-72. The ALJ synthesized Dr. Veraldi’s 23 assessed limitations in a narrative form: 24 25 26 27 28 Q. Okay. So, if I were to place those limitations in a narrative form; trying to cover all the areas that you indicated had moderate limitations. If I were to indicate that she would be able to understand, remember and follow simple, routine, repetitive type tasks involving up to three step commands that she would – have minimal contact with the general public and only superficial occasional contact with ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 1 coworkers and supervisors? 2 A. I believe so. Q. That she would be best dealing with things rather than people? A. I believe so. 3 4 5 6 7 8 9 10 11 Q. That she should be provided additional time to adapt to any changes in the work routine or work setting. A. I think that’d be [inaudible]. Q. And that she may upon occasion need an additional break in the work day over and above the regular two breaks that people get every day. 12 13 14 A. That to be [inaudible], yes. 15 Q. Are there any other limitations along those lines that you could think of that might be appropriate? 16 A. I don’t think so. 17 18 Tr. 72-73. The ALJ incorporated the limitations, as opined by Dr. Veraldi, into 19 Plaintiff’s RFC: 20 21 22 23 24 25 26 27 28 If the claimant stopped substance use, the claimant would have the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: She is able to understand, remember, and carry out simple routine and repetitive tasks involving up to 3-step commands. She should have minimal contact with the public and only occasional superficial interactions with coworkers and supervisors. It would be best if the claimant dealt with things rather than people; therefore, a more isolated work environment would be appropriate. She would need additional time to adapt to changes in the work routine or work setting, and there may be occasions where she may need an additional 5 or 10 minute break during the workday. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 1 Tr. 36. 2 Because the ALJ incorporated the moderate limitations as opined by Dr. 3 Kraft and Dr. Veraldi into Plaintiff’s RFC, the Plaintiff failed to establish error. 4 3. 5 Hypothetical Plaintiff also argues that the ALJ erred by failing to incorporate all of the 6 limitations opined by Dr. Veraldi into the hypothetical posed to the vocational 7 expert. ECF No. 18 at 10-13. 8 The hypothetical that ultimately served as the basis for the ALJ's 9 determination, i.e., the hypothetical that is predicated on the ALJ's final RFC 10 assessment, must account for all of the limitations and restrictions of the particular 11 claimant. Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 12 2009). "If an ALJ's hypothetical does not reflect all of the claimant's limitations, 13 then the expert's testimony has no evidentiary value to support a finding that the 14 claimant can perform jobs in the national economy." Id. However, the ALJ "is 15 free to accept or reject restrictions in a hypothetical question that are not supported 16 by substantial evidence." Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006). 17 An ALJ may synthesize and translate assessed limitations into an RFC 18 assessment (and subsequently into a hypothetical to the vocational expert) without 19 repeating each functional limitation verbatim in the RFC assessment or 20 hypothetical.3 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) 21 (holding that an ALJ's RFC assessment that a claimant could perform simple tasks 22 adequately captured restrictions related to concentration, persistence, or pace, 23 because the assessment was consistent with the medical evidence). 24 25 3 The law contradicts Plaintiff’s assertion: “This is why it is so important to 26 present hypotheticals word for word from the medical expert and not get caught up 27 in making up your own interpretations or demanding counsel to make up new 28 interpretations so that they are ‘vocationally relevant.’” ECF No. 20 at 4. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 1 Plaintiff argues that the ALJ failed to incorporate into the hypothetical 2 Plaintiff’s requirement of extra breaks as opined by Dr. Veraldi. ECF No. 18 at 11. 3 During the hearing, Dr. Veraldi assessed Plaintiff with several “moderate” 4 limitations. Tr. 71-72. The ALJ synthesized the limitations and in relevant part, 5 articulated one of the limitations as: “And that she may on occasion need an 6 additional break in the work day over and above the regular two breaks that people 7 get every day.” Tr. 73. Dr. Veraldi affirmed that summary. Tr. 73. 8 9 Next, the ALJ posed several questions to the vocational expert, Diane Kramer, to determine if Plaintiff could perform her prior work. In particular, the 10 ALJ asked Ms. Kramer to assume a hypothetical worker that included the 11 limitations: 12 13 14 Q. … Additional time would be needed to adapt to changes in the work routine or work setting, and there may be occasions where the individual would need an additional break during the day to just kind of get away from the work setting. … 15 16 17 18 19 20 21 22 23 A. Where I’m stumped is trying to sort out the last two additional time to adapt to changes, and then break over and above the normal breaks. I feel that she could do the position of sorter. That would fall within all the rest of the hypothetical. Additional time to – really, it’s the same thing over and over again, so they really don’t – that wouldn’t fall into consideration. Q. But, what you’re saying, because you didn’t finish your sentence. You’re referring to the additional time to adapt to change stipulation? A. Yes. 25 Q. Okay. 26 A. I’m sorry. So that wouldn’t be an issue, but the issue of additional break; the – wow. If the individual could use that break as on a lunch time, that could be factored in. I don’t know if, you know, 24 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 it might come down to specific accommodations. What I’m thinking about, if an individual worked on a sorting line and they got their two breaks; mid-morning and midafternoon instead of taking say like for example, a ten minute break, if they took a five minute break and then we’re able to factor that in throughout another time; that might be accommodated. If, you know, that was worked out with the line supervisors. So, I’m having a hard time. Q. So, if they had, let’s say, one day during the week where they just felt like a need to get away, and asked can I go to the bathroom for five minutes; would that be some sort of a special accommodation that would need to be accommodated? A. Not really. I’ve seen that happen. No, not really. I’ve seen that happen and I’ve experienced that. Q. Okay. That’s the type [of] thing I am referring to. If they just felt like they needed – … [examination of vocational expert by claimant’s attorney] Q. … if the break could be something like a lunchtime, or somebody could excuse themself [sic] to a bathroom break; so you said just on a once a week basis, then it could be accommodated fine? 19 20 21 22 23 A. Yes. Q. Okay. And then, Ms. Kramer, this was something that was more than just like a once a week thing, but irregular times; could happen at any time. Would that be something that an individual could maintain competitive employment? 24 25 26 27 28 A. Well. I would think after a while that no, that an individual would be written up for taking too many breaks, and most likely it would lead to termination. Tr. 96-99. Plaintiff charges that the ALJ “distorts the testimony of ME Veraldi, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 1 whose testimony implies that those additional breaks for [Plaintiff] were not 2 merely a possibility, but a probability,” and “those additional breaks, taken on a 3 daily basis,” meant Plaintiff could not sustain employment. ECF No. 18 at 12. 4 Plaintiff provides no citation to the record to support this charge. Upon review, the 5 court arrives at the opposite conclusion. 6 Dr. Veraldi agreed with the ALJ’s summary of the limitation “And that she 7 may upon occasion need an additional break in the work day.” Tr. 73 (emphasis 8 added). Plaintiff’s attempt to equate the equivocal “may,” qualifier with the 9 inevitable “will,” is simply not supported by the record. Equally doomed is 10 Plaintiff’s attempt to equate the sporadic possibility of “upon occasion,” with the 11 consistent routine of “daily.” Contrary to Plaintiff’s contention, Dr. Veraldi did 12 not opine that Plaintiff would require daily, additional breaks from work. Thus, 13 the hypothetical was sufficient, and Plaintiff’s argument fails. 14 4. 15 SSR 13-2p Plaintiff argues that the ALJ erred by failing to follow SSR 13-2p. ECF No. 16 18 at 17. Social Security Rulings ("SSR") do not have the force of law. 17 Nevertheless, they "constitute Social Security Administration interpretations of the 18 statute it administers and of its own regulations," and are given deference "unless 19 they are plainly erroneous or inconsistent with the Act or regulations." Han v. 20 Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 21 In this case, as the Defendant points out, SSR 13-2p became effective March 22 22, 2013, and, thus was not available for the ALJ to consult in 2011. 78 Fed. Reg. 23 11939 (2013). As a result, Plaintiff’s contention that the ALJ committed reversible 24 error by failing to follow SSR 13-2p fails. 25 Moreover, Plaintiff misunderstands the process set forth in SSR 13-2p. 26 Plaintiff argues that because the record does not clearly delineate a period of 27 abstinence from drugs and alcohol, the ALJ erred by “simply assum[ing] that if 28 Plaintiff stopped all substance abuse, she would be able to work.” ECF No. 18 at ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 1 19-20. 2 3 Plaintiff has the burden of proving disability throughout the sequential evaluation process and establishing a period of abstinence is not necessary: 4 it is our longstanding policy that the claimant continues to have the burden of proving disability throughout the DAA materiality analysis. There does not have to be evidence from a period of abstinence for the claimant to meet his or her burden of proving disability. 5 6 7 8 SSR 13-2p at 5. Additionally, the determination of materiality – that is, whether 9 Plaintiff’s use of drugs and alcohol materially contributes to her alleged disability - 10 - is an issue specially reserved to the Commissioner. SSR 13-2p at n.19. As such, 11 Plaintiff’s contention that the ALJ incorrectly analyzed the DAA determination 12 because no evidence exists of a period of abstinence is not well taken. This issue 13 fails. CONCLUSION 14 15 Having reviewed the record and the ALJ’s conclusions, this court finds that 16 the ALJ’s decision is supported by substantial evidence and free of legal error. 17 Accordingly, 18 IT IS ORDERED: 19 1. 20 Defendant’s Motion for Summary Judgment, ECF No. 19, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 18, is DENIED. 21 2. 22 The District Court Executive is directed to file this Order, provide copies to 23 24 the parties, enter judgment in favor of Defendant, and CLOSE this file. DATED July 22, 2014. 25 26 27 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16

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.