Scoville v. Commissioner of Social Security, No. 2:2016cv00180 - Document 19 (E.D. Wash. 2017)
Court Description: ORDER Granting 16 Defendant's Motion for Summary Judgment; denying 15 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)
Download PDF
<![CDATA[
Scoville v. Commissioner of Social Security Doc. 19 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 RICHARD JOHN SCOVILLE, No. 2:16-CV-00180-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 13 14 15 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 15, 16. Attorney Rosemary B. Schurman represents Richard John Scoville 19 (Plaintiff); Special Assistant United States Attorney Jennifer A. Kenney represents 20 the Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 22 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 23 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 24 JURISDICTION 25 Plaintiff filed applications for Supplemental Security Income (SSI) and 26 Disability Insurance Benefits (DIB) on May 6, 2012, Tr. 216, alleging disability 27 since October 31, 2010, Tr. 197-202, due to hepatitis C, Rocky Mountain Spotted 28 Fever with inflammation around the heart, and high blood pressure, Tr. 231. The ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 applications were denied initially and upon reconsideration. Tr. 103-111. 2 Administrative Law Judge (ALJ) Donna L. Walker held a hearing on November 3 26, 2014 and heard testimony from Plaintiff, medical expert Minh Vu, M.D., and 4 vocational expert Daniel McKinney. Tr. 48-67. At the hearing, Plaintiff, through 5 his attorney, amended his onset date to February 15, 2012. Tr. 51. The ALJ issued 6 an unfavorable decision on January 9, 2015. Tr. 12-22. The Appeals Council 7 denied review on April 28, 2016. Tr. 1-6. The ALJ’s January 9, 2015 decision 8 became the final decision of the Commissioner, which is appealable to the district 9 court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review 10 on May 30, 2016. ECF No. 1, 4. STATEMENT OF FACTS 11 The facts of the case are set forth in the administrative hearing transcript, the 12 13 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 14 here. 15 Plaintiff was 55 years old at the amended date of onset. Tr. 197. Plaintiff 16 completed four or more years of college in 1992. Tr. 232. When applying for 17 benefits, he reported that he had stopped working as of October 31, 2010. Tr. 231. 18 His work history included being a painter and working with log furniture. Tr. 232, 19 257-260. In August of 2012, Brian LaSalle, ARNP stated that Plaintiff had a 20 history of working in the construction trades and was presently working as a 21 concrete finisher. Tr. 302. In June of 2013, Plaintiff reported to the Spokane Foot 22 Clinic that he had been getting a rental property ready and had been on his feet for 23 long hours. Tr. 382. At the hearing, Plaintiff testified that he had been paid “under 24 the table” for most of his work as an adult. Tr. 61. 25 26 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 27 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 28 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 2 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 3 not supported by substantial evidence or if it is based on legal error. Tackett v. 4 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 5 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 6 another way, substantial evidence is such relevant evidence as a reasonable mind 7 might accept as adequate to support a conclusion. Richardson v. Perales, 402 8 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 9 interpretation, the court may not substitute its judgment for that of the ALJ. 10 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 11 findings, or if conflicting evidence supports a finding of either disability or non- 12 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 13 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision supported by 14 substantial evidence will be set aside if the proper legal standards were not applied 15 in weighing the evidence and making the decision. Brawner v. Secretary of Health 16 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 17 18 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 19 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 20 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 21 through four, the burden of proof rests upon the claimant to establish a prima facie 22 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 23 burden is met once the claimant establishes that physical or mental impairments 24 prevent him from engaging in his previous occupations. 20 C.F.R. §§ 25 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work, 26 the ALJ proceeds to step five, and the burden shifts to the Commissioner to show 27 that (1) the claimant can make an adjustment to other work, and (2) specific jobs 28 exist in the national economy which the claimant can perform. Batson v. Comm’r ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (9th Cir. 2004). If the claimant 2 cannot make an adjustment to other work in the national economy, a finding of 3 “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 4 ADMINISTRATIVE DECISION 5 On January 9, 2015, the ALJ issued a decision finding Plaintiff was not 6 7 8 9 10 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since February 15, 2012, the amended date of onset. Tr. 14. At step two, the ALJ determined Plaintiff had the following severe impairments: hepatitis C; liver cirrhosis; and polyarthralgias. Tr. 14. 11 At step three, the ALJ found Plaintiff did not have an impairment or 12 combination of impairments that met or medically equaled the severity of one of 13 the listed impairments. Tr. 16. 14 At step four, the ALJ assessed Plaintiff’s residual function capacity and 15 determined he could perform a full range of medium work, stating “[h]e can lift 16 and/or carry up to 50 pounds occasionally (1/3 of the workday) and 25 pounds 17 frequently (2/3 of the workday). He can stand and/or walk up to 6 hours and sit up 18 to 6 hours in an 8-hour workday.” Tr. 17. The ALJ identified Plaintiff’s past 19 relevant work as furniture assembler, painter, and sign painter. Tr. 20. The ALJ 20 concluded that Plaintiff was able to perform his past relevant work. Id. 21 In the alternative to a step four determination, at step five, the ALJ 22 determined that, considering Plaintiff’s age, education, work experience and 23 residual functional capacity, and based on the testimony of the vocational expert, 24 there were other jobs that exist in significant numbers in the national economy 25 Plaintiff could perform, including the jobs of janitor/cleaner and machine 26 packager. Tr. 21. The ALJ concluded Plaintiff was not under a disability within 27 the meaning of the Social Security Act at any time from February 15, 2012 through 28 the date of the ALJ’s decision, January 9, 2015. Tr. 21. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 ISSUES The question presented is whether substantial evidence supports the ALJ’s 2 3 decision denying benefits and, if so, whether that decision is based on proper legal 4 standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh 5 medical source opinions in the file; (2) failing to form an accurate residual 6 functional capacity determination, and (3) failing to properly consider the 7 testimony of a lay witness.1 8 9 10 DISCUSSION A. Medical Source Opinions Plaintiff argues the ALJ failed to properly consider and weigh the medical 11 opinion expressed by James Pittman, Ph.D., ARNP, Minh Vu, M.D., Brian 12 LaSalle, ARNP, and Howard Platter, M.D. ECF No. 15 at 3-17. 13 In weighing medical source opinions, the ALJ should distinguish between 14 three different types of physicians: (1) treating physicians, who actually treat the 15 claimant; (2) examining physicians, who examine but do not treat the claimant; 16 and, (3) nonexamining physicians who neither treat nor examine the claimant. 17 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more 18 weight to the opinion of a treating physician than to the opinion of an examining 19 physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ 20 should give more weight to the opinion of an examining physician than to the 21 opinion of a nonexamining physician. Id. 22 23 When a treating physician’s opinion is not contradicted by another physician, the ALJ may reject the opinion only for “clear and convincing” reasons. 24 25 1 Plaintiff addressed issues one and two as major headings in his briefing. 26 ECF No. 15. However, he referenced issue three as part of his residual functional 27 capacity argument. Id. at 19. Therefore, for clarity, the Court has separated the 28 residual functional capacity argument from the lay witness testimony argument. ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating 2 physician’s opinion is contradicted by another physician, the ALJ is only required 3 to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. 4 Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining 5 physician’s opinion is not contradicted by another physician, the ALJ may reject 6 the opinion only for “clear and convincing” reasons, and when an examining 7 physician’s opinion is contradicted by another physician, the ALJ is only required 8 to provide “specific and legitimate reasons” to reject the opinion. Lester, 81 F.3d 9 at 830-831. 10 The specific and legitimate standard can be met by the ALJ setting out a 11 detailed and thorough summary of the facts and conflicting clinical evidence, 12 stating her interpretation thereof, and making findings. Magallanes v. Bowen, 881 13 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer her 14 conclusions, she “must set forth [her] interpretations and explain why they, rather 15 than the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 16 1988). 17 1. James Pittman, Ph.D., ARNP 18 On October 15, 2014, Dr. Pittman completed a mini-mental status 19 examination and completed written questions submitted by Plaintiff’s attorney. Tr. 20 368-381. In these questions, Dr. Pittman opined that Plaintiff could occasionally 21 lift and carry 50 pounds, frequently lift and carry 25 pounds, stand and walk for a 22 total of 3 hours in an 8 hour work day, sit for a total of 3 hours in an 8 hour work 23 day, sit at one time for 30 minutes, stand at one time for 30 minutes, frequently 24 twist, handle, finger, and feel, and occasionally, stoop, crouch, climb stairs, climb 25 ladders, reach, and push/pull. Tr. 372-376. Additionally, he would need to walk 26 every 20 minutes for relief from sitting, need to shift at will between sitting or 27 standing/walking, need to lie down up to two times in an eight hour period, and 28 occasionally need to use a cane. Id. He opined that Plaintiff’s pain would reduce ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 concentration or attention significantly and produce emotional stress or reduce the 2 ability to cope with stress 50 percent of the time. Tr. 377. Dr. Pittman also 3 completed a medical source opinion on Plaintiff’s mental functioning, in which he 4 opined Plaintiff would have difficulty in several areas. Tr. 379-380. 5 The ALJ gave this opinion no weight because it was inconsistent with his 6 treatment notes in 2013 and the treatment note completed with the opinion, 7 specifically noting that the treatment note found Plaintiff’s gait was unremarkable 8 with no mention of sensation testing, Tr. 349, and this was inconsistent with the 9 opinion, which noted Plaintiff had decreased vibratory and monofilament 10 sensation, an abnormal gain, and occasionally needed the use of a cane, Tr. 375- 11 376. Additionally, the ALJ noted that the mini-mental status exam was within 12 normal limitations, which did not support the later opinion that Plaintiff’s pain 13 would reduce his concentration or cause emotional stress or result in a limited 14 mental functioning. Tr. 19-20. 15 As Defendant argues, despite Dr. Pittman’s Ph.D., he is not considered an 16 acceptable medical source. See ECF No. 16 at 7-8. Acceptable medical sources 17 are licensed physicians, licensed or certified psychologists, licensed optometrists, 18 licensed podiatrists, and qualified speech-language pathologists. 20 C.F.R. §§ 19 404.1502, 416.902. Dr. Pittman’s Ph.D. is in nursing. See Country Homes Nurse 20 Practitioners, http://www.countryhomesnursepractitioners.com/The-Nurse- 21 Practitioners.html (last accessed December 6, 2016). He qualifies as a nurse 22 practitioner, which for claims filed with the agency prior to March 27, 2017 is not 23 considered an acceptable medical source. 20 C.F.R. §§ 404.1502, 416.902. 24 An ALJ is required to consider evidence from non-acceptable medical 25 sources and non-medical sources. 20 C.F.R. §§ 404.1527(f), 416.927(f). An ALJ 26 must give “germane” reasons to discount evidence from non-acceptable medical 27 sources and non-medical sources. Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th 28 Cir. 2014). ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 Here, the ALJ provides examples supported by substantial evidence of how 2 Dr. Pittman’s records do not support his opinion. As such, the ALJ has provided 3 legally sufficient reasons for rejecting Dr. Pitman’s opinion. 4 2. Minh Vu, M.D., F.C.C.P. 5 At the November 26, 2014 hearing, Dr. Vu testified that he had reviewed the 6 record through exhibit 13F and he asked Plaintiff multiple questions regarding his 7 medical history. Tr. 53-55. Dr. Vu testified that Plaintiff had hepatitis C, 8 hypertension without any complications, a history of Rocky Mountain Spotted 9 Fever, and an undocumented mention of anxiety. Tr. 55-56. Dr. Vu testified that 10 based on the fact that Plaintiff still had a liver problem as evidenced in 2013 testing 11 and a lack of evidence showing that his liver returned to normal functioning after 12 his hepatitis C treatment, he was limited to a full range of light work. Tr. 56. 13 The ALJ gave Dr. Vu’s opinion no weight because it was based on a lack of 14 follow up laboratory studies that indicated Plaintiff’s hepatitis C was in sustained 15 remission. Tr. 20. The ALJ noted that testing at week four of treatment and again 16 in June of 2014 had shown undetectable viral loads and Plaintiff’s failure to 17 perform the requested laboratory studies in early treatment and at 12 weeks post 18 treatment did not negate the negative findings. Tr. 20 citing Tr. 425, 435, 444, 19 446. The ALJ deemed that these test results showed that Plaintiff’s hepatitis C was 20 in sustained remission. Id. 21 The record is void of any provider stating that Plaintiff’s disease was in 22 sustained remission, only that Plaintiff had failed to obtain the testing necessary to 23 establish whether or not had “achieve[d] a sustained viral response.” Tr. 446, 459. 24 However, in the evidence not reviewed by Dr. Vu was an August 4, 2014 Viral 25 Load test that showed no virus was detected. 2 Tr. 482. Considering his viral load 26 27 28 2 On April 3, 2014, Plaintiff was 8 weeks into his 12 week course. Tr. 435. Therefore, he had 4 weeks remaining in treatment plus the 12 week post treatment ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 was undetectable after 12 weeks post treatment, he had achieved a sustained viral 2 response. While the ALJ is not a physician and cannot determine if a claimant has 3 reached “sustained remission,” the substantial evidence supports the notion that 4 Plaintiff’s treatment was a success, which supports the ALJ’s rejection of Dr. Vu’s 5 opinion. While the ALJ did not specifically cite to the August 4, 2014 testing to 6 support his determination, it further supports his rationale for rejecting Dr. Vu’s 7 opinion. See Tackett, 180 F.3d at 1098 (“a court must consider the record as a 8 whole” when determining if the ALJ errored). As such, the ALJ’s determination is 9 supported by substantial evidence. 10 Further, the ALJ noted that Plaintiff was found to be asymptomatic prior to 11 treatment. Tr. 20 citing Tr. 405. The full statement in Dr. Ferrin’s report was 12 “[h]e is feeling fatigued lately but is otherwise asymptomatic from his liver 13 disease.” ECF No. 15 at Tr. 405. Additionally, the ALJ found Plaintiff to have no 14 significant side effects from the Interferon that required treatment. Tr. 20 citing 15 Tr. 425. Dr. Ferrin’s statement regarding Plaintiff’s fatigue was Plaintiff’s 16 subjective report, which the ALJ found less than fully credible and Plaintiff did not 17 challenge. As such, these statements support the ALJ’s determination that Dr. 18 Vu’s opinion was inconsistent with Plaintiff being asymptomatic prior to treatment 19 and having no significant side effects from the treatment itself. As such, the ALJ 20 did not error in his treatment of Dr. Vu’s opinion. 21 3. 22 On August 29, 2012, Nurse LaSalle completed a Physical Functional Brian LaSalle, ARNP 23 Evaluation form for the Washington Department of Social and Health Services. 24 Tr. 297-299. Nurse LaSalle limited Plaintiff to medium work, defined as “[a]ble to 25 lift 50 pounds maximum and frequently lift and/or carry up to 25 pounds.” Tr. 26 27 wait would place the appropriate testing any time after July 24, 2014. Therefore, 28 the August 4, 2014 test is more than twelve weeks post treatment ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 299. The ALJ gave this opinion significant weight, citing S.S.R. 06-03p. Tr. 19. 2 3 Social Security Ruling 06-03p sets forth factors for an ALJ to consider when 4 addressing evidence from an other source and allows an ALJ to give more weight 5 to non-acceptable medical sources than to acceptable medical sources. Tr. 19. 6 Here, Nurse LaSalle was Plaintiff’s treating source and his opinion was consistent 7 with that of Dr. Platter. Considering the ALJ provided legally sufficient reasons 8 for rejecting the opinions contrary to Nurse LaSalle, the Court will not disturb the 9 weight given to it by the ALJ. 10 4. Howard Platter, M.D. 11 On December 13, 2012, Dr. Platter reviewed Plaintiff’s available records 12 and opined Plaintiff could occasionally lift and/or carry 50 pounds, frequently 13 lifting and/carry 25 pounds, stand and/or walk six hours, sit more than six hours, 14 and push and/or pull unlimited. Tr. 100. The ALJ gave this opinion significant weight, stating that it was supported 15 16 by the longitudinal medical record, which showed primarily a diagnosis of 17 hepatitis C with liver cirrhosis that had been treated. Tr. 18-19. As discussed 18 above, August 4, 2014 testing showed that Plaintiff had a non-detected viral load 19 after 12 weeks post treatment. Tr. 482. Therefore, the ALJ’s conclusion is 20 supported by substantial evidence. Considering the ALJ provided legally sufficient 21 reasons for rejecting the opinions of other providers whose opinions varied in the 22 record, the Court will not disturb the weight given to Dr. Platter and Nurse LaSalle. 23 B. 24 Residual Functional Capacity Plaintiff argues the ALJ’s residual functional capacity determination is in 25 error because it failed to consider limitations resulting from fatigue from cirrhosis, 26 hepatitis, and Rocky Mountain Spotted Fever and pain from Plaintiff’s 27 polyarthralgias. ECF No. 15 at 19-20. 28 A claimant’s residual functional capacity is “the most [a claimant] can still ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 do despite [his] limitations.” 20 C.F.R. § 416.945(a)(1); see also 20 C.F.R. Part 2 404, Subpart P, Appendix 2, § 200.00(c) (defining residual functional capacity as 3 the “maximum degree to which the individual retains the capacity for sustained 4 performance of the physical-mental requirements of jobs.”). In formulating a 5 residual functional capacity determination, the ALJ weighs medical and other 6 source opinions and also considers the claimant’s credibility and ability to perform 7 daily activities. See, e.g., Bray v. Comm’r, Soc. Sec. Admin., 554 F.3d 1219, 1226 8 (9th Cir. 2009). 9 The ALJ addressed Plaintiff’s complaints of fatigue and pain when 10 discussing Plaintiff’s testimony. Tr. 17-18. The ALJ found the intensity, 11 persistence, and limiting effects of the fatigue and pain as Plaintiff alleged to be 12 unreliable. Tr. 18. Plaintiff did not challenge the ALJ’s determination regarding 13 the credibility of his symptom statements in briefing. Therefore, the Court will not 14 consider a challenge to Plaintiff’s credibility. See Carmickle v. Comm’r, Soc. Sec. 15 Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (The court ordinarily will not 16 consider matters on appeal that are not specifically and distinctly argued in an 17 appellant’s opening brief). As such, the ALJ considered limitations from 18 Plaintiff’s fatigue and pain as she saw appropriate and this Court will not disturb 19 her determination. 20 C. 21 22 23 Lay Witness Testimony Plaintiff challenges the treatment of a written statement from Plaintiff’s roommate, Nadine Van Stone. ECF No. 15 at 19. An ALJ is required to consider evidence from non-medical sources 24 including the evidence from family and friends “as to how an impairment affects a 25 claimant’s ability to work,” Sprague, 812 F.2d at 1232; 20 C.F.R. §§ 404.1527(f), 26 416.927(f). An ALJ must give reasons that are “germane” to each whiteness to 27 discount the testimony of each lay witness. Dodrill v. Shalala, 12 F.3d 915, 919 28 (9th Cir. 1993). ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 The ALJ considered Ms. Van Stone’s written statement, finding that the 2 statement was “well written, and certainly supportive of the claimant; however, it 3 does not overcome the objective evidence contained in this record that references 4 being ‘asymptomatic’ prior to treatment at 13F/23, and having no significant side 5 effects from the Interferon requiring treatment (13F/43), or the references to 6 significant activities of daily living.” Tr. 18. The ALJ’s statement demonstrates 7 that she considered the statement and provided reasons germane to Ms. Van Stone 8 in concluding that it was due little weight. 9 CONCLUSION 10 Having reviewed the record and the ALJ’s findings, the Court finds the 11 ALJ’s decision is supported by substantial evidence and free of harmful legal error. 12 Accordingly, IT IS ORDERED: 13 14 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. 15 2. 16 The District Court Executive is directed to file this Order and provide a copy 17 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 18 and the file shall be CLOSED. 19 Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. DATED August 22, 2017. 20 21 22 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 12
]]>
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.
