Andrews v. Commissioner of Social Security, No. 2:2018cv00013 - Document 17 (E.D. Wash. 2019)
Court Description: ORDER DENYING ECF No. 14 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING ECF No. 15 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. FILE CLOSED. Signed by Senior Judge Robert H. Whaley. (TR, Case Administrator)
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Andrews v. Commissioner of Social Security Doc. 17 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Mar 01, 2019 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 TAMMY ANN A., 9 10 Plaintiff, No. 2:18-cv-00013-RHW v. ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 12 COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 13 14 Defendant. 15 16 Before the Court are Plaintiff’s Motion for Summary Judgment, ECF No. 17 14, and Defendant’s Cross-Motion for Summary Judgment, ECF No. 15. The 18 motions were heard without oral argument. Plaintiff is represented by Dana 19 Madsen; Defendant is represented by Assistant United States Attorney Timothy 20 Durkin and Special Assistant United States Attorney Justin L. Martin. 21 For the reasons set forth below, the Court denies Plaintiff’s motion, grants 22 Defendant’s motion, and affirms the administrative law judge (“ALJ) decision 23 denying disability benefits. 24 25 Jurisdiction On February 19, 2014, Plaintiff filed a Title XVI application for 26 supplemental security income. Plaintiff alleged an onset date of February 1, 2014. 27 Plaintiff’s application was denied initially and on reconsideration. On 28 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 May 19, 2016, Plaintiff appeared and testified at a hearing held in Spokane 2 Washington before an ALJ. Joseph A. Moisan also participated as a vocational 3 expert, as well as H.C. Alexander III, M.D., who participated as a medical expert. 4 Plaintiff was represented by Dana C. Madsen. 5 The ALJ issued a decision on June 20, 2016, finding that Plaintiff was not 6 disabled. Plaintiff timely requested review by the Appeals Council, which denied 7 the request on November 13, 2017. The Appeals Council’s denial of review 8 makes the ALJ’s decision the final decision of the Commissioner. 9 Plaintiff filed an appeal with the United States District Court for the 10 Eastern District of Washington on January 12, 2018. ECF No. 3. The matter is 11 before this Court under 42 U.S.C. § 405(g). 12 13 Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 14 substantial gainful activity by reason of any medically determinable physical or 15 mental impairment which can be expected to result in death or which has lasted 16 or can be expected to last for a continuous period of not less than twelve 17 months.” 42 U.S.C. § 1382c(a)(3)(A). A claimant shall be determined to be 18 under a disability only if her impairments are of such severity that the claimant is 19 not only unable to do his previous work, but cannot, considering claimant’s age, 20 education, and work experiences, engage in any other substantial gainful work 21 which exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). 22 The Commissioner has established a five-step sequential evaluation 23 process for determining whether a person is disabled. 20 C.F.R. § 416.920(a)(4); 24 Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). 25 Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. 26 § 416.920(b). Substantial gainful activity is work done for pay and requires 27 compensation above the statutory minimum. Id.; Keyes v. Sullivan, 894 F.2d 28 1053, 1057 (9th Cir. 1990). If the claimant is engaged in substantial activity, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 benefits are denied. 20 C.F.R. § 416.920(b). If she is not, the ALJ proceeds to 2 step two. 3 Step 2: Does the claimant have a medically-severe impairment or 4 combination of impairments? 20 C.F.R. § 416.920(c). If the claimant does not 5 have a severe impairment or combination of impairments, the disability claim is 6 denied. A severe impairment is one that lasted or must be expected to last for at 7 least 12 months and must be proven through objective medical evidence. 20 8 C.F.R. § 416.909. If the impairment is severe, the evaluation proceeds to the third 9 step. 10 Step 3: Does the claimant’s impairment meet or equal one of the listed 11 impairments acknowledged by the Commissioner to be so severe as to preclude 12 substantial gainful activity? 20 C.F.R. § 416.920(d); 20 C.F.R. § 404 Subpt. P. 13 App. 1. If the impairment meets or equals one of the listed impairments, the 14 claimant is conclusively presumed to be disabled. Id. If the impairment is not 15 one conclusively presumed to be disabling, the evaluation proceeds to the fourth 16 step. 17 Before considering Step 4, the ALJ must first determine the claimant’s 18 residual functional capacity. 20 C.F.R. § 416.920(e). An individual’s residual 19 functional capacity is her ability to do physical and mental work activities on a 20 sustained basis despite limitations from her impairments. 21 Step 4: Does the impairment prevent the claimant from performing work 22 he has performed in the past? 20 C.F.R. § 416.920(f). If the claimant is able to 23 perform her previous work, she is not disabled. Id. If the claimant cannot perform 24 this work, the evaluation proceeds to the fifth and final step. 25 Step 5: Is the claimant able to perform other work in the national economy 26 in view of her age, education, and work experience? 20 C.F.R. § 416.920(g). 27 The initial burden of proof rests upon the claimant to establish a prima 28 facie case of entitlement to disability benefits. Tackett v. Apfel, 180 F.3d 1094, ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 1098 (9th Cir. 1999). This burden is met once a claimant establishes that a 2 physical or mental impairment prevents him from engaging in his previous 3 occupation. Id. At step five, the burden shifts to the Commissioner to show that 4 the claimant can perform other substantial gainful activity. Id. 5 6 Standard of Review The Commissioner’s determination will be set aside only when the ALJ’s 7 findings are based on legal error or are not supported by substantial evidence in 8 the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992) 9 (citing 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 10 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a 11 preponderance.” Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 12 1975). Substantial evidence is “such relevant evidence as a reasonable mind 13 might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401. 14 The Court must uphold the ALJ’s denial of benefits if the evidence is susceptible 15 to more than one rational interpretation, one of which supports the decision of the 16 administrative law judge. Batson v. Barnhart, 359 F.3d 1190, 1193 (9th Cir. 17 2004). The Court reviews the entire record. Jones v. Heckler, 760 F.2d 993, 995 18 (9th Cir. 1985). “If the evidence can support either outcome, the court may not 19 substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019. 20 A decision supported by substantial evidence will be set aside if the proper 21 legal standards were not applied in weighing the evidence and making the 22 decision. Brawner v. Secr’y of Health & Human Servs., 839 F.2d 432, 433 (9th 23 Cir. 1988). An ALJ is allowed “inconsequential” errors as long as they are 24 immaterial to the ultimate nondisability determination. Stout v. Comm’r, Soc. Sec. 25 Admin., 454 F.3d 1050, 1055 (9th Cir. 2006). 26 27 Statement of Facts The facts have been presented in the administrative transcript, the ALJ’s 28 decision, and the briefs to this Court; only the most relevant facts are summarized ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 here. At the time of the hearing, Plaintiff was 50 years old. She was a homemaker 2 and took care of her four kids. She does not have any work history. In 2013, she had surgery on her back due to associated low back pain and 3 4 radicular pain/numbness in her lower extremities. Although it was a long 5 recovery, the pain in her left leg improved. In 2015, she had an acute episode 6 causing her pain on the right side and leg. Due to a moderate disk bulge, she had 7 emergency surgery, which alleviated the sharp shooting pain down her leg. 8 Plaintiff declined to engage in physical therapy following her surgeries. She continues to complain of leg pain. She also experiences heart 9 10 palpitations, fatigue, and migraine headaches, and she complains of hearing loss. The ALJ’s Findings 11 At step one, the ALJ found that Plaintiff has not engaged in substantial 12 13 gainful activity since February19, 2014, which is the application date. AR 54. At step two, the ALJ found Plaintiff has the following severe impairments: 14 15 lumbar degenerative disc disease, status-post two surgeries. AR 56. At step three, the ALJ found that Plaintiff’s impairments or combination of 16 17 impairments do not meet or medically equal any Listing. AR 58. Specifically, the 18 ALJ considered Listing 1.04 (Disorders of the Spine). The ALJ concluded that Plaintiff has the residual functional capacity to 19 20 perform: medium work as defined in 20 C.F.R. 416.967(c) except: she is limited to 21 walking 30 minutes at a time; she cannot climb ladders, ropes, or scaffolds, 22 and can only occasionally perform all other postural activities; she can have only occasional exposure to extreme cold/heat and vibration, and can 23 have no exposure to hazards such as unprotected heights and moving 24 mechanical parts. 25 AR 58. At step four, the ALJ found that Plaintiff has no past relevant work. AR 26 61. 27 /// 28 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 Because Plaintiff’s ability to perform all or substantially all the 2 requirements of medium work has been impeded by additional limitations, the 3 ALJ asked the vocational expert whether jobs existed in the national economy for 4 an individual with Plaintiff’s age, education, work experience, and residual 5 functional capacity. The vocational expert identified the following representative 6 occupations: (1) airplane cleaner; (2) advertising material distributor; (3) floor 7 waxer; and (4) grocery bagger. The vocational expert also testified that 8 representative occupations existed in the national economy even if Plaintiff was 9 limited to light level work: (1) parking lot attendant; (2) maid, housekeeper; and 10 (3) marker. Issues for Review 11 12 1. Whether the ALJ properly assessed Plaintiff’s subjective symptom claims. 13 An ALJ engages in a two-step analysis to determine whether to discount a 14 claimant’s testimony regarding subjective symptoms. SSR 16-3p, 2016 WL 15 1119029, at *2. “First, the ALJ must determine whether there is objective 16 medical evidence of an underlying impairment which could reasonably be 17 expected to produce the pain or other symptoms alleged.” Molina v. Astrue, 674 18 F.3d 1104, 1112 (9th Cir. 2012) (quotations marks omitted). “The claimant is not 19 required to show that her impairment could reasonably be expected to cause the 20 severity of the symptom she has alleged; she need only show that it could 21 reasonably have caused some degree of the symptom.” Vasquez v. Astrue, 572 22 F.3d 586, 591 (9th Cir. 2009). 23 Second, “[i]f the claimant meets the first test and there is no evidence of 24 malingering, the ALJ can only reject the claimant’s testimony about the severity 25 of the symptoms if [the ALJ] gives ‘specific, clear, and convincing reasons’ for 26 the rejection.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citations 27 omitted). General findings are insufficient; rather, the ALJ must identify what 28 symptom claims are being discounted and what evidence undermines these ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 claims. Id. (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)); Thomas 2 v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (requiring the ALJ to sufficiently 3 explain why it discounted claimant’s symptom claims). “The clear and 4 convincing [evidence] standard is the most demanding required in Social 5 Security cases. Garrison, 759 F3d at 1015 (quoting Moore v. Comm’r of Soc. Sec. 6 Admin., 278 F.3d 920, 924 (9th Cir. 2002)). 7 Factors to be considered in evaluating the intensity, persistence, and 8 limiting effects of a claimant’s symptoms include: 1) daily activities; 2) the 9 location, duration, frequency, and intensity of pain or other symptoms; 3) factors 10 that precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, 11 and side effects of any medication an individual takes or has taken to alleviate 12 pain or other symptoms; 5) treatment, other than medication, an individual 13 receives or has received for relief of pain or other symptoms; 6) any measures 14 other than treatment an individual uses or has used to relieve pain or other 15 symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every 16 hour, or sleeping on a board); and 7) any other factors concerning an individual’s 17 functional limitations and restrictions due to pain or other symptoms. SSR16-3p, 18 2016 WL 1119029, at *7; 20 C.F.R. §§ 404.1529(c)(3); 416.929(c)(3). 19 Daily activities may be grounds for an adverse credibility finding if (1) 20 Plaintiff’s activities contradict her other testimony, or (2) Plaintiff “is able to 21 spend a substantial part of his day engaged in pursuits involving the performance 22 of physical functions that are transferable to a work setting.” Orn, 495 F.3d at 23 639 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). 24 Plaintiff argues the ALJ improperly discredited her symptom claims. The 25 ALJ identified the following reasons for concluding that Plaintiff’s statements 26 concerning the intensity, persistence, and limiting effects of her symptoms are 27 not entirely consistent with the medical evidence and other evidence in the record: 28 (1) the objective evidence does not support the level of limitation claimed; (2) ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 her allegations of ongoing pain are contradicted by her reports to the pain clinic 2 that her functional level is 7-8/10 much of the time; (3) Plaintiff has reasonably 3 high functioning activities of daily living that are inconsistent with her 4 allegations of disabling pain; (4) Plaintiff has no work history; (5) Plaintiff failed 5 to engage in treatment commensurate with her alleged disability and (6) no 6 medical provider has imposed significant work-related limitations. 7 The ALJ’s conclusions regarding Plaintiff’s symptom testimony are 8 reasonable and supported by substantial evidence in the record. The ALJ 9 provided specific, clear and convincing reasons to find Plaintiff not disabled. 10 Notably, Plaintiff reported that the “medication regiment is working well and 11 enables her to live a productive life.” The record indicates that her surgeries were 12 successful in reducing her leg pain. Her reports of fatigue are not supported by 13 any objective findings and/or diagnoses. Plaintiff was able to prepare a full 14 Thanksgiving dinner in 2015. She has never attempted to work, suggesting that it 15 is not her medical condition that is the reason for her current unemployment. 16 Finally, Plaintiff has not provided an adequate justification for failing to attempt 17 or complete physical therapy. 18 Plaintiff has not argued, or shown, that the ALJ erred in not giving proper 19 weight to the medical opinions in the record. Moreover, because the hypothetical 20 posed by the ALJ contained all of Plaintiff’s limitations that the ALJ found to be 21 supported by the record, the ALJ reasonably relied on the vocational expert’s 22 testimony to find that Plaintiff was not disabled. 23 Accordingly, IT IS HEREBY ORDERED: 24 1. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 25 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is 26 GRANTED. 27 28 3. The decision of the Commissioner denying benefits is affirmed. /// ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 4. The District Court Executive is directed to enter judgment in favor of 2 Defendant and against Plaintiff. 3 IT IS SO ORDERED. The District Court Executive is hereby directed to 4 file this Order, provide copies to counsel, and close the file. 5 DATED this 1st day of March 2019. 6 7 8 9 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9
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