Fritts v. Colvin, No. 2:2014cv00123 - Document 15 (E.D. Wash. 2014)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT, INTER ALIA; denying 12 Plaintiff's Motion for Summary Judgment; granting 14 Defendant's Motion for Summary Judgment. Case closed. Signed by Senior Judge Lonny R. Suko. (CV, Case Administrator)
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Fritts v. Colvin Doc. 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ) ) ) Plaintiff, ) ) vs. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ______________________________ ) TAMMY JO FRITTS, No. 2:14-CV-00123-LRS ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 12) and the Defendant's Motion For Summary Judgment (ECF No. 14). JURISDICTION Tammy Jo Fritts, Plaintiff, applied for Title XVI Supplemental Security Income benefits (SSI) on July 13, 2010, and for Title II Widow’s Disability Insurance Benefits (DIB) on May 10, 2012. The applications were denied initially and on reconsideration. Plaintiff timely requested a hearing and a hearing was held on June 26, 2012, before Administrative Law Judge (ALJ) Caroline Siderius. Plaintiff, represented by counsel, testified at the hearing as did Thomas Polsin, a Vocational Expert (VE). On July 23, 2012, the ALJ issued a decision denying benefits. The Appeals Council denied a request for review and the ALJ's decision became the final decision of the Commissioner. This decision is appealable to district court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 2 STATEMENT OF FACTS The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. 4 At the time of the administrative hearing, Plaintiff was 50 years old. She has a 5 high school education and no past relevant work experience. Plaintiff alleges 6 disability since January 1, 1997. 7 8 STANDARD OF REVIEW 9 "The [Commissioner's] determination that a claimant is not disabled will be 10 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 11 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a 12 mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), 13 but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th 14 Cir. 1989); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 15 576 (9th Cir. 1988). "It means such relevant evidence as a reasonable mind might 16 accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 17 401, 91 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the 18 [Commissioner] may reasonably draw from the evidence" will also be upheld. 19 Beane v. Richardson, 457 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 20 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the record as a 21 whole, not just the evidence supporting the decision of the Commissioner. 22 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Thompson v. Schweiker, 665 23 F.2d 936, 939 (9th Cir. 1982). 24 It is the role of the trier of fact, not this court to resolve conflicts in 25 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 26 rational interpretation, the court must uphold the decision of the ALJ. Allen v. 27 Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 28 A decision supported by substantial evidence will still be set aside if the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 2 1 proper legal standards were not applied in weighing the evidence and making the 2 decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 3 (9th Cir. 1987). 4 5 6 ISSUES Plaintiff argues the ALJ erred: 1) by failing to find that Plaintiff’s left hand 7 condition, depression and anxiety are severe impairments; 2) in disregarding the 8 opinions of Plaintiff’s providers and consultative examiners; 3) in assessing 9 Plaintiff’s physical and mental residual functional capacities; 4) in failing to pose 10 a proper hypothetical to the VE; and 5) in assessing Plaintiff’s credibility. 11 12 13 14 DISCUSSION SEQUENTIAL EVALUATION PROCESS 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) and 1382c(a)(3)(A). The Act also provides that a 19 claimant shall be determined to be under a disability only if her impairments are of 20 such severity that the claimant is not only unable to do her previous work but 21 cannot, considering her age, education and work experiences, engage in any other 22 substantial gainful work which exists in the national economy. Id. 23 The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520 and 416.920; 25 Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one 26 determines if she is engaged in substantial gainful activities. If she is, benefits are 27 denied. 20 C.F.R. §§ 404.1520(a)(4)(i) and 416.920(a)(4)(i). If she is not, the 28 decision-maker proceeds to step two, which determines whether the claimant has a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 3 1 medically severe impairment or combination of impairments. 20 C.F.R. §§ 2 404.1520(a)(4)(ii) and 416.920(a)(4)(ii). If the claimant does not have a severe 3 impairment or combination of impairments, the disability claim is denied. If the 4 impairment is severe, the evaluation proceeds to the third step, which compares 5 the claimant's impairment with a number of listed impairments acknowledged by 6 the Commissioner to be so severe as to preclude substantial gainful activity. 20 7 C.F.R. §§ 404.1520(a)(4)(iii) and 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, 8 App. 1. If the impairment meets or equals one of the listed impairments, the 9 claimant is conclusively presumed to be disabled. If the impairment is not one 10 conclusively presumed to be disabling, the evaluation proceeds to the fourth step 11 which determines whether the impairment prevents the claimant from performing 12 work she has performed in the past. If the claimant is able to perform her previous 13 work, she is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv) and 416.920(a)(4)(iv). 14 If the claimant cannot perform this work, the fifth and final step in the process 15 determines whether she is able to perform other work in the national economy in 16 view of her age, education and work experience. 20 C.F.R. §§ 404.1520(a)(4)(v) 17 and 416.920(a)(4)(v). 18 The initial burden of proof rests upon the claimant to establish a prima facie 19 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 20 (9th Cir. 1971). The initial burden is met once a claimant establishes that a 21 physical or mental impairment prevents her from engaging in her previous 22 occupation. The burden then shifts to the Commissioner to show (1) that the 23 claimant can perform other substantial gainful activity and (2) that a "significant 24 number of jobs exist in the national economy" which claimant can perform. Kail 25 v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 26 27 28 ALJ'S FINDINGS The ALJ found the following: 1) Plaintiff met the non-disability ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 4 1 requirements for disabled widow’s benefits in that she is the unmarried widow of a 2 deceased worker who previously qualified for Social Security benefits and she had 3 attained the age of 50 (20 C.F.R. §404.335); 2) Plaintiff has “severe” impairments 4 which include chronic obstructive pulmonary disease (COPD); mild right carpal 5 tunnel syndrome; somatoform disorder; personality disorder and drug and alcohol 6 abuse; 3) Plaintiff does not have an impairment or combination of impairments 7 that meets or equals any of the impairments listed in 20 C.F.R. § 404 Subpart P, 8 App. 1; 4) Plaintiff has the residual functional capacity (RFC) to perform light 9 exertional activity that does not require her to lift more than 20 pounds 10 occasionally and 10 pounds frequently; does not require her to sit more than six 11 hours a day and stand/walk more than six hours a day1; allows her to change 12 positions once an hour; does not require more than occasional crawling, 13 crouching, kneeling, stooping, climbing of ladders, ropes, scaffolds, stairs and 14 ramps; does not subject her to concentrated exposure to dust, gases, fumes, 15 hazards and unprotected heights; does not require more than occasional contact 16 with the general public; and does not require more than frequent handling and 17 manipulating with the right dominant hand; 5) Plaintiff’s RFC allows her to 18 perform jobs existing in significant numbers in the national economy, as identified 19 by the VE, including garment inspector, small parts assembler, and photocopy 20 machine operator. Accordingly, the ALJ concluded the Plaintiff is not disabled. 21 22 23 24 1 “Light” work involves lifting no more than 20 pounds at a time with 25 frequent lifting or carrying of objects weighing up to 10 pounds. It requires a 26 good deal of walking or standing, or involves sitting most of the time with some 27 pushing and pulling of arm or leg controls. 20 C.F.R. §§ 404.1567(b) and 28 416.967(b). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 5 1 RESIDUAL FUNCTIONAL CAPACITY (RFC) 2 A. Mental RFC 3 Plaintiff contends there is no substantial evidence contrary to the opinion of 4 5 Dr. Rosekrans. Plaintiff was seen a number of times at Psychological Services of Spokane. 6 In November 2006, Kathy Jamieson-Turner, MS, diagnosed the Plaintiff on Axis I 7 with “Alcohol Dependence, Sustained Full Remission by Client Report,” 8 “Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic,” and 9 on Axis II with “Personality Disorder NOS with Antisocial and Borderline 10 Features.” Ms. Jamieson-Turner assigned Plaintiff a Global Assessment of 11 Functioning (GAF) score of 60. (Tr. at p. 291). A GAF score between 51and 60 12 indicates “moderate symptoms” or “moderate” difficulty in social, occupational, or 13 school functioning. American Psychiatric Ass’n, Diagnostic & Statistical Manual 14 of Mental Disorders, (4th ed. Text Revision 2000)(DSM-IV-TR at p. 34). Frank 15 Rosekrans, Ph.D., a licensed psychologist, signed Shearer’s report, adopting as his 16 own “the accuracy, objectivity, validity, findings and conclusions” of the report, 17 and “accept[ing] accountability for the contents.” (Tr. at p. 292). 18 Consistent therewith, Ms. Jamieson-Turner completed a Washington 19 Department of Social and Health Services (DSHS) “Psychological/Psychiatric 20 Evaluation” in November 2006, indicating that Plaintiff was mildly limited in her 21 ability to learn new tasks and perform new tasks, moderately limited in her ability 22 to exercise judgment and make decisions, mildly limited in her ability to care for 23 self, including personal hygiene and appearance, and moderately limited in her 24 abilities to relate appropriately to co-workers and supervisors, to interact 25 appropriately in public contacts, to respond appropriately to and tolerate the 26 pressures and expectations of a normal work setting, and to control physical or 27 motor movements and maintain appropriate behavior. Dr. Rosekrans also signed 28 this evaluation. (Tr. at pp. 293-96). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 6 In October 2007, Kevin Shearer, a Licensed Mental Health Counselor 1 2 (LMHC), diagnosed the Plaintiff on Axis I with “Major Depressive Disorder, 3 Recurrent, Moderate,” “Anxiety Disorder NOS w/ features of social phobia,” 4 “Alcohol Abuse, Sustained Full Remission (Per Client Report),” and “Adjustment 5 Disorder, Unspecified Type.” Mr. Shearer assigned Plaintiff a GAF score of 60. 6 (Tr. at p. 284). Among Mr. Shearer’s recommendations were that Plaintiff be 7 referred for job training and job placement assistance. (Id.). Dr. Rosekrans signed 8 Shearer’s report, adopting as his own “the accuracy, objectivity, validity, findings 9 and conclusions” of the report, and “accept[ing] accountability for the contents.” 10 11 (Id.). Consistent therewith, Mr. Shearer completed a DSHS evaluation in October 12 2007, indicating that Plaintiff was moderately limited in her abilities to exercise 13 judgment and make decisions and to perform routine tasks, and moderately limited 14 in her abilities to relate appropriately to co-workers and supervisors, to interact 15 appropriately in public contacts, to respond appropriately to and tolerate the 16 pressures and expectations of a normal work setting, to care for self, including 17 personal hygiene and appearance, and to control physical or motor movements and 18 maintain appropriate behavior. Dr. Rosekrans also signed this evaluation. (Tr. at 19 pp. 285-87). 20 In April 2008, Mr. Shearer diagnosed the Plaintiff on Axis I with “Major 21 Depressive Disorder, Recurrent, Mild,” “Anxiety Disorder NOS w/ Features of 22 Social Avoidance, Mild,” “Alcohol Abuse, Sustained Full Remission (Per Client 23 Report),” and “Adult Antisocial Behavior.” He diagnosed her on Axis II with 24 “Personality Disorder NOS (Mixed Personality Disorder with Borderline and 25 Passive-Aggressive Features).” Mr. Shearer assigned Plaintiff a GAF score of 65. 26 (Tr. at p. 273). A GAF score between 61and 70 indicates “mild symptoms” or 27 “some” difficulty in social, occupational, or school functioning, “but generally 28 functioning pretty well” and “has some meaningful interpersonal relationships.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 7 1 American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental 2 Disorders, (4th ed. Text Revision 2000)(DSM-IV-TR at p. 34). Among Mr. 3 Shearer’s recommendations were that Plaintiff be referred for job training and job 4 placement assistance, and be referred “to an occupational medicine physician for 5 an evaluation of her work capabilities from a physical functioning basis, as she is 6 insistent that she cannot work due to her physical complaints.” (Tr. at p. 274). Dr. 7 Rosekrans signed Shearer’s report, adopting as his own “the accuracy, objectivity, 8 validity, findings and conclusions” of the report, and “accept[ing] accountability 9 for the contents.” (Id.). Largely consistent therewith, Mr. Shearer completed a DSHS evaluation in 10 11 April 2008, indicating Plaintiff was moderately limited in her ability to exercise 12 judgment and make decisions, moderately limited in her ability to relate 13 appropriately to co-workers and supervisors and in her ability to respond 14 appropriately to and tolerate the pressures and expectations of a normal work 15 setting, and mildly limited in her ability to control physical or motor movements 16 and maintain appropriate behavior. Dr. Rosekrans also signed this evaluation. 17 (Tr. at pp. 275-78). In December 2008, Mr. Shearer repeated his diagnoses of April 2008, and 18 19 continued to assign Plaintiff a GAF score of 65. He also reiterated his 20 recommendations that Plaintiff be referred for job training and job assistance, and 21 that she be referred to an occupational medicine physician for evaluation of her 22 physical work capabilities because of her insistence that she was unable to work 23 because of her physical complaints. (Tr. at pp. 323-24). Dr. Rosekrans signed this 24 report, just like all the previous reports. In an accompanying DSHS evaluation, 25 Mr. Shearer repeated the limitations he noted in his April 2008 evaluation. Just 26 like all the previous evaluations, Dr. Rosekrans signed the January 2009 27 evaluation. (Tr. at pp. 325-28). 28 \\\ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 8 1 In May 2009, Mr. Shearer repeated the diagnoses he made in April and 2 December 2008, although this time, the depressive order was “NOS, Mild,” and 3 there was no indication that the alcohol abuse was “Sustained Full Remission (Per 4 Client Report).” Mr. Shearer continued to assign the Plaintiff a GAF of 65 and 5 continued to recommend referral for job training and job placement assistance, and 6 referral to an occupational medicine physician, although this time he also 7 recommended referral to a program for immediate treatment for alcohol abuse. Dr. 8 Rosekrans signed off on this report. (Tr. at p. 312). An accompanying DSHS 9 evaluation by Mr. Shearer repeated the same limitations set forth in the two 10 previous DSHS evaluations completed by him. Dr. Rosekrans signed off on this 11 evaluation. (Tr. at pp. 313-16). 12 In April 2010, Dr. Rosekrans completed a DSHS evaluation in which he 13 diagnosed the Plaintiff on Axis I with “Major Depressive Disorder, Single 14 Episode, Moderate Adult Antisocial Behavior,” but with no diagnosis on Axis II. 15 He assigned the Plaintiff a GAF of 55. (Tr. at p. 300). He indicated no limitations 16 regarding Plaintiff’s cognitive abilities, but indicated that concerning social 17 factors, Plaintiff was markedly limited in her ability to relate appropriately to co- 18 workers and supervisors, to respond appropriately and tolerate the pressures and 19 expectations of a normal work setting, and to maintain appropriate behavior in a 20 work setting. He further indicated that Plaintiff was moderately limited in her 21 ability to tolerate the pressures and expectations of a normal work setting and in 22 her ability to care for self, including personal hygiene and appearance. (Tr. at p. 23 301). He also, however, acknowledged the following: 24 25 26 27 28 I have nothing on which to base my evaluation on except her self-report, 18 pages of medical records from Sacred Heart from 05.03.2009 to 6/3/2009, and previous evaluations. There are many inconsistencies in her reports from our evaluations for the past five years. It is clear, however, that she has not worked and is extremely unlikely to go back to work . . . . Although there seem to be some problems with her credibility, her life has had many problems and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 9 1 2 3 4 misfortunes, she has reason to be depressed, and reports depression. I have diagnosed major depressive disorder. (Tr. at p. 303). In April 2011, Dr. Rosekrans completed another DSHS evaluation. This 5 time he added a diagnosis of somatization disorder. Although the form had 6 changed somewhat, the limitations noted by Dr. Rosekrans were largely consistent 7 with what he had indicated in his 2010 evaluation: marked limitations in her 8 abilities to be aware of normal hazards and take appropriate precautions, 9 communicate and perform effectively in a work setting with public contact, 10 communicate and perform effectively in a work setting with limited public contact, 11 and maintain appropriate behavior in a work setting. (Tr. at pp. 413-14). 12 Furthermore, Dr. Rosekrans repeated verbatim the statements from the 2010 13 evaluation which are quoted above. (Tr. at pp. 415-16). 14 Finally, in January 2012, Dr. Rosekrans completed a final DSHS evaluation 15 repeating the diagnoses of major depressive disorder and somatization disorder. 16 (Tr. at p. 620). His prognosis was as follows: “I do not believe that she will return 17 to any work. She says that she has an SSI hearing next month, and expects to be 18 approved. She has been having evaluations here since April 2006, with no signs 19 of change or improvement.” (Tr. at p. 621)(emphasis added). 20 What Dr. Rosekrans did not explain, however, is the reason for the 21 significant increase in the severity of the limitations in Plaintiff’s social 22 functioning in 2010 and 2011 as compared to what had been reported over the 23 previous five years of evaluations. The “marked” limitations in social functioning 24 reported by Dr. Rosekrans in 2010 and 2011 were contradicted by all of these 25 previous evaluations, prompting the ALJ to give little weight to those reported 26 limitations and Dr. Rosekrans’s opinion that Plaintiff could not return to work. 27 The ALJ correctly pointed out that “[i]n his earlier evaluations [Dr. Rosekrans] 28 even noted inconsistencies in [Plaintiff’s] reports and some problems with ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 10 1 credibility” and “also apparently relied quite heavily on the subjective report of 2 symptoms and limitations provided by the claimant, and seemed to uncritically 3 accept as true most, if not all, of what the claimant reported.” (Tr. at p. 42). 4 Moreover, as recognized by the ALJ (Id.) and Dr. Rosekrans, and as discussed 5 below, there are valid reasons to question Plaintiff’s credibility regarding her 6 subjective complaints. 7 The ALJ offered specific and legitimate reasons to reject Dr. Rosekrans’s 8 opinion regarding “marked” limitations and the Plaintiff’s ability to return to 9 work. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) Those reasons are 10 supported by substantial evidence as is the mental RFC found by the ALJ, that 11 being no more than occasional contact with the general public. 12 Finally, although the ALJ did not find that Plaintiff suffers from “severe” 13 depression and anxiety, notwithstanding the repeated diagnoses of the same by 14 those at Psychological Service of Spokane, this is harmless error because the 15 omission does not alter the mental RFC determined by the ALJ which, as noted, is 16 supported by substantial evidence. Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 17 2007). 18 19 B. Physical RFC 20 Plaintiff contends there is no substantial evidence contrary to the opinion of 21 22 Dr. Margraf. In December 2008, Robert Margraf, M.D., completed a DSHS “Physical 23 Evaluation” form in which he indicated that Plaintiff’s COPD and carpal tunnel 24 syndrome were “moderate” impairments, significantly interfering with the ability 25 to perform one or more basic work-related activities. He indicated Plaintiff was 26 limited to sedentary work activity. (Tr. at p. 372). He recommended the Plaintiff 27 quit smoking and that carpal tunnel release surgery would improve her 28 “employability.” (Tr. at p. 373). In June 2009, Dr. Margraf completed another ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 11 1 DSHS evaluation, this time indicating that Plaintiff’s COPD constituted a 2 “moderate” impairment, but that her carpal tunnel syndrome was a “mild” 3 impairment which would not significantly interfere with her ability to perform 4 basic work-related activities. He now indicated the Plaintiff was limited to “light” 5 work. (Tr. at p. 331). Dr. Margraf said he was awaiting EMG (electromyography) 6 results to confirm the diagnosis of carpal tunnel and that smoking cessation and 7 possible surgery, if necessary, for carpal tunnel syndrome would improve the 8 Plaintiff’s “employability.” (Tr. at p. 332). 9 In May 2010, Dr. Margraf saw Plaintiff for a GAU2 evaluation. As to 10 Plaintiff’s COPD, Dr. Margraf thought it “likely that she does not have an 11 impairing severity of disease at this time.” And as to Plaintiff’s carpal tunnel 12 syndrome, he suspected there was a “secondary gain issue” and was not willing to 13 “assign disability based upon this complaint unless there is EMG data to support 14 that there is in fact neuropathy.” (Tr. at p. 352). Dr. Margraf wrote: 15 I am concerned that there is strong motivation in the patient to not return to the work force. The above evaluation is indicated, but if there is not clear evidence of disability based upon the studies discussed abovefrom a medical perspective she should be returning to work. Apart from her acute ankle injury, I do not find her physical exam to suggest she truly is disabled. 16 17 18 19 (Tr. at p. 352).3 20 21 2 General Assistance Unemployable (GAU) is a Washington state program 22 that provides cash and medical benefits for persons who are physically and/or 23 mentally incapacitated and unemployable for 90 days from the date of application. 24 It is funded by DSHS. 25 3 Dr. Margraf ordered an x-ray to rule out a distal fibula fracture, but 26 suspected that even if there was an ankle fracture, this would result in no longer 27 than six weeks of disability, and if it were merely a sprain, four to six weeks 28 recovery would be necessary. (Tr. at p. 352). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 12 In a DSHS evaluation which he completed in June 2010, Dr. Margraf rated 1 2 both Plaintiff’s COPD and carpal tunnel syndrome as “mild” impairments, and 3 indicated Plaintiff had the exertional capacity for “medium” work (ability to lift 50 4 pounds maximum and frequently lift and/or carry up to 25 pounds). (Tr. at p. 5 347). Dr. Margraf wrote that “no gross medical disability [was] apparent,” that 6 “job training, smoking cessation” would improve Plaintiff’s “employability,” and 7 indicated Plaintiff was “able to participate in pre-employment activities such as 8 job search or employment classes.” (Id.). Based on the foregoing, the court concludes the ALJ’s physical RFC 9 10 determination is not inconsistent with Dr. Margraf’s assessments. To the contrary, 11 it constitutes substantial evidence in support of the ALJ’s physical RFC 12 determination. Plaintiff had right carpal tunnel release surgery in May 2011. (Tr. at p. 13 14 455). In July 2011, her physical therapist reported that “[s]he has gained 15 significant relief from her symptoms of severe pain, especially in the middle of the 16 night and tingling and numbness in the right wrist and hand that extended 17 proximal to the right elbow and into the shoulder.” (Tr. at p. 456). In September 18 2011, she was discharged from physical therapy due to lack of attendance: 19 “Tammy was seen for one visit on 08-04-11 and then has no showed for the past 20 three visits and now cancelled her last visit.” (Tr. at p. 460). In October 2011, 21 Plaintiff returned to Alpine Orthopaedic and Spine PC where Miguel A. Schmitz, 22 M.D, noted as follows: “Ms. Fritts returns to the clinic indicating the right upper 23 extremity carpal tunnel release is doing quite well for her. She has diminished 24 pain and numbness in her fingers and she is very happy with that. The patient also 25 has lesser symptomatology in her thumb. On the other hand, the patient has 26 developed pain about the radial aspect of her hand. The patient has more pain in 27 this regard when she is utilizing her hand more and more.” (Tr. at p. 467). 28 \\\ ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 13 1 Plaintiff underwent a left carpal tunnel release on October 31, 2011. (Tr. at 2 p. 472). On December 6, 2011, Dr. Schmitz wrote: “At this time she is doing very 3 well . . . She denies any symptoms of infection and she states that her left hand 4 symptoms are greatly diminished at this point.” (Tr. at p. 474). 5 On January 18, 2012, Plaintiff underwent a right long finger DIP joint 6 arthrodesis and palmar mass excision. This surgery was performed by William 7 Page, M.D., of Orthopaedic Specialty Clinic of Spokane, PLLC. Subsequently, 8 Plaintiff underwent an Occupational Therapy Initial Evaluation. On January 30, 9 the therapist reported that Plaintiff’s pain was “well-controlled,” her wounds were 10 “healing nicely,” and that he “did not anticipate any additional outpatient therapy 11 needs.” (Tr. at p. 586). On May 24, 2014, Dr. Page performed a follow-up 12 examination of the Plaintiff. (Tr. at p. 615). The Plaintiff advised Dr. Page she 13 was still having pain, but it was diminishing, (Tr. at p. 616), the same as she 14 advised during previous examinations on February 13, 2012 (Tr. at p. 668), and 15 March 19, 2012 (Tr. at p. 670). According to Dr. Page: 16 17 18 19 20 21 22 Healed long finger DIP joint arthrodesis. Persistent hypersensitivity over excisional biopsy site in the palm. I cannot explain this. The scar is nearly invisible with no mass. Tammy was adamant about a Norco prescription refill today. I told her we will not do this for her as we have filled her Rx far more than we normally do. However, she was relentless therefore; I gave her a prescription for 20 Norco 5/325. This will be the very last narcotic prescription . . . she receives from this office. (Tr. at p. 616). Nothing in the medical records relating to Plaintiff’s hands is contrary to the 23 ALJ’s determination that Plaintiff remains capable of frequent handling and 24 manipulating with the right dominant hand. Substantial evidence- more than a 25 scintilla, less than a preponderance- supports that determination, particularly so 26 because of the clear and convincing reasons the ALJ provided for discounting 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 14 1 Plaintiff’s credibility. Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996).4 2 These reasons are set forth in the ALJ’s decision (Tr. at pp. 38-41), and include 3 several items discussed above, including Dr. Margraf suspecting a secondary gain 4 issue with regard to Plaintiff’s carpal tunnel symptoms, as well as her failure to 5 attend physical therapy following her right carpal tunnel release. The ALJ also 6 noted that when Plaintiff first reported problems with her right middle finger in 7 April 2011, she indicated it was due to being struck on that finger by her grandson 8 (Tr. at p. 425), yet in her subsequent visits with Dr. Page and her occupational 9 therapist, she indicated the injury occurred when she either struck her finger on the 10 refrigerator while taking out a beer (Tr. at p. 590), or while she was reaching into 11 the refrigerator to get out a six-pack of beer and caught the tip of her finger in the 12 “carrier” (Tr. at p. 604). 13 It is true the ALJ did not find that Plaintiff had a “severe” impairment with 14 regard to her left hand, but it was not error to do so in light of the medical record 15 discussed above and the clear and convincing reasons given for discounting 16 17 18 19 4 "In assessing the claimant's credibility, the ALJ may use ordinary 20 techniques of credibility evaluation, such as considering the claimant's reputation 21 for truthfulness and any inconsistent statements in her testimony." Tonapeytan v. 22 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). See also Thomas v. Barnhart, 278 23 F.3d 947, 958 (9th Cir.2002)(following factors may be considered: 1) claimant's 24 reputation for truthfulness; 2) inconsistencies in the claimant's testimony or 25 between her testimony and her conduct; 3) claimant’s daily living activities; 4) 26 claimant's work record; and 5) testimony from physicians or third parties 27 concerning the nature, severity, and effect of claimant's condition). 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 15 1 Plaintiff’s credibility. 5 Furthermore, at the administrative hearing, Plaintiff 2 testified her left hand is better than her right hand, and noted her dominant hand is 3 her right hand. (Tr. at pp. 65-66). 4 5 VE HYPOTHETICAL 6 Pursuant to hypothetical questioning by the ALJ based on his RFC 7 determination which is supported by substantial evidence, the VE identified jobs 8 existing in substantial numbers in the national economy which the Plaintiff is 9 capable of performing. (Tr. at pp. 89-90). Accordingly, the ALJ properly 10 concluded the Plaintiff is not disabled. 11 CONCLUSION 12 Defendant’s Motion For Summary Judgment (ECF No. 14) is GRANTED 13 14 and Plaintiff’s Motion For Summary Judgment (ECF No. 12) is DENIED. The 15 Commissioner's decision denying benefits is AFFIRMED. 16 /// 17 /// 18 /// 19 /// 20 21 5 A “severe” impairment is one which significantly limits physical or mental 22 ability to do basic work-related activities. 20 C.F.R. §§ 404.1520(c) and 23 416.920(c). It must result from anatomical, physiological, or psychological 24 abnormalities which can be shown by medically acceptable clinical and laboratory 25 diagnostic techniques. It must be established by medical evidence consisting of 26 signs, symptoms, and laboratory findings, not just the claimant's statement of 27 symptoms. 20 C.F.R. §§ 404.1508 and 416.908. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 16 1 IT IS SO ORDERED. The District Executive shall enter judgment 2 accordingly and forward copies of the judgment and this order to counsel of 3 record. 4 DATED this 13th of November, 2014. 5 6 7 8 s/Lonny R. Suko LONNY R. SUKO Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 17
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