Sweeney v. Commissioner of Social Security, No. 2:2018cv00132 - Document 15 (E.D. Wash. 2019)

Court Description: ORDER Granting 14 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Sweeney v. Commissioner of Social Security Doc. 15 1 2 3 4 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 5 Apr 22, 2019 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 8 9 10 PAUL S., No. 2:18-CV-00132-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 Nos. 13, 14. Attorney Lora Lee Stover represents Paul S. (Plaintiff); Special 19 Assistant United States Attorney Justin Lane Martin represents the Commissioner 20 of Social Security (Defendant). The parties have consented to proceed before a 21 magistrate judge. ECF No. 7. After reviewing the administrative record and briefs 22 filed by the parties, the Court DENIES Plaintiff’s motion for summary judgment 23 and GRANTS Defendant’s motion for summary judgment. 24 JURISDICTION 25 Plaintiff filed applications for Supplemental Security Income (SSI) and 26 Disability Insurance Benefits (DIB) on October 22, 2014, Tr. 201, 209, alleging 27 disability since January 1, 2000, Tr. 315, 324, due to multiple mental health issues, 28 depression, anxiety, posttraumatic stress disorder (PTSD), and a back disorder, Tr. ORDER GRANTING DEFENDANT’S MOTION - 1 Dockets.Justia.com 1 361. The applications were denied initially and upon reconsideration. Tr. 243-50, 2 253-59. Administrative Law Judge (ALJ) Stewart Stallings held a hearing on 3 August 18, 2016 and heard testimony from Plaintiff, medical expert Stephen 4 Rubin, Ph.D., and vocational expert K. Diane Kramer. Tr. 162-200, 429. At the 5 hearing, Plaintiff amended his alleged date of onset to October 22, 2014 and 6 withdrew his request for a hearing on the DIB application. Tr. 165-66. The ALJ 7 issued an unfavorable decision on October 17, 2016. Tr. 93-105. The Appeals 8 Council denied review on March 9, 2018. Tr. 1-6. The ALJ’s October 17, 2016 9 decision became the final decision of the Commissioner, which is appealable to the 10 district court pursuant to 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed this action 11 for judicial review on April 24, 2014. ECF Nos. 1, 4. STATEMENT OF FACTS 12 The facts of the case are set forth in the administrative hearing transcript, the 13 14 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 15 here. 16 Plaintiff was 47 years old at the date of application and amended date of 17 onset. Tr. 324. He completed high school and one year of college. Tr. 362, 412. 18 His reported work history includes building cabinets. Tr. 362-63. When applying 19 for benefits Plaintiff reported that he stopped working on January 1, 2000 because 20 of his conditions. Tr. 361-62. 21 22 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 23 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 24 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 25 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 26 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 27 not supported by substantial evidence or if it is based on legal error. Tackett v. 28 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as ORDER GRANTING DEFENDANT’S MOTION - 2 1 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 2 another way, substantial evidence is such relevant evidence as a reasonable mind 3 might accept as adequate to support a conclusion. Richardson v. Perales, 402 4 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 5 interpretation, the court may not substitute its judgment for that of the ALJ. 6 Tackett, 180 F.3d at 1097. If substantial evidence supports the administrative 7 findings, or if conflicting evidence supports a finding of either disability or non- 8 disability, the ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 9 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial 10 evidence will be set aside if the proper legal standards were not applied in 11 weighing the evidence and making the decision. Brawner v. Secretary of Health 12 and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 13 14 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §416.920(a); see Bowen v. 16 Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of 17 proof rests upon the claimant to establish a prima facie case of entitlement to 18 disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the 19 claimant establishes that physical or mental impairments prevent him from 20 engaging in his previous occupations. 20 C.F.R. § 416.920(a)(4). If the claimant 21 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 22 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 23 other work, and (2) the claimant can perform specific jobs which exist in the 24 national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 25 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the 26 national economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(v). 27 28 ADMINISTRATIVE DECISION On October 17, 2016, the ALJ issued a decision finding Plaintiff was not ORDER GRANTING DEFENDANT’S MOTION - 3 1 disabled as defined in the Social Security Act from October 22, 2014 through the 2 date of the decision. 3 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 4 activity since October 22, 2014, the date of application and the amended date of 5 onset. Tr. 95. 6 At step two, the ALJ determined that Plaintiff had the following severe 7 impairments: depression; anxiety-PTSD; substance abuse disorder; diabetes; 8 personality disorder; and shoulder dysfunction. Tr. 95. 9 At step three, the ALJ found that Plaintiff did not have an impairment or 10 combination of impairments that met or medically equaled the severity of one of 11 the listed impairments. Tr. 96. 12 13 14 At step four, the ALJ assessed Plaintiff’s residual function capacity and determined he could perform light work with the following limitations: 23 he can lift or carry 20 pounds occasionally and 10 pounds frequently; stand or walk for up to 6 hours in an 8-hour workday; sit for 6 hours in an 9-hour workday; he can occasionally reach overhead with right upper extremities; he should avoid exposure to unprotected heights and no more than frequent exposure to moving, dangerous machinery; he can tolerate low-stress work, but avoid task[s] involving dangerous situations; he can perform tasks requiring occasional and routine judgment and normal work decisions; he can maintain attention for 2 hours at a time with normal work breaks; he can perform simple, routine tasks, but no production rate or pace work and no tasks requiring critical concentration; he can tolerate brief, superficial interaction with the public, occasional supervisor contact and occasional interaction with coworkers, but no tandem work. 24 Tr. 98. The ALJ identified Plaintiff’s past relevant work as cabinet assembly 25 laborer and found that he could not perform this past relevant work. Tr. 103. 15 16 17 18 19 20 21 22 26 At step five, the ALJ determined that, considering Plaintiff’s age, education, 27 work experience and residual functional capacity, and based on the testimony of 28 the vocational expert, there were other jobs that exist in significant numbers in the ORDER GRANTING DEFENDANT’S MOTION - 4 1 national economy Plaintiff could perform, including the jobs of office cleaner I, II, 2 III, electric assembler, and advertising material distributer. Tr. 104. The ALJ 3 concluded that Plaintiff was not under a disability within the meaning of the Social 4 Security Act from October 22, 2014, through the date of the ALJ’s decision. Tr. 5 104-05. ISSUES 6 The question presented is whether substantial evidence supports the ALJ’s 7 8 decision denying benefits and, if so, whether that decision is based on proper legal 9 standards. Plaintiff contends the ALJ erred by (1) failing to properly consider his 10 symptom statements, (2) failing to make a proper residual functional capacity 11 determination, and (3) failing to make a proper step five determination. ECF No. 12 13 at 9. DISCUSSION1 13 14 15 1. Plaintiff’s Symptom Statements Plaintiff contests the ALJ’s determination that his statements concerning the 16 intensity, persistence and limiting effects of his symptoms were not entirely 17 consistent with the medical evidence and other evidence in the record. ECF No. 13 18 at 11-15. 19 20 It is generally the province of the ALJ to make determinations regarding the reliability of Plaintiff’s symptom statements, Andrews, 53 F.3d at 1039, but the 21 22 1 In Lucia v. S.E.C., 138 S.Ct. 2044 (2018), the Supreme Court recently held 23 that ALJs of the Securities and Exchange Commission are “Officers of the United 24 States” and thus subject to the Appointments Clause. To the extent Lucia applies 25 to Social Security ALJs, the parties have forfeited the issue by failing to raise it in 26 their briefing. See Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 27 n.2 (9th Cir. 2008) (the Court will not consider matters on appeal that were not 28 specifically addressed in an appellant’s opening brief). ORDER GRANTING DEFENDANT’S MOTION - 5 1 ALJ’s findings must be supported by specific cogent reasons, Rashad v. Sullivan, 2 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of malingering, 3 the ALJ’s reasons for rejecting the claimant’s testimony must be “specific, clear 4 and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. 5 Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are insufficient: 6 rather the ALJ must identify what testimony is not credible and what evidence 7 undermines the claimant’s complaints.” Lester, 81 F.3d at 834. 8 9 The ALJ supported his decision that Plaintiff’s symptom statements were not supported by the record by finding that (1) the statements were not supported 10 by the objective medical evidence, (2) the statements were inconsistent with 11 Plaintiff’s reported activities, (3) the statements were inconsistent with the lack of 12 substantiated treating or examining medical source opinion, and (4) the statements 13 were not supported by the minimal and conservative treatment Plaintiff received. 14 Tr. 100-01, 103. 15 Plaintiff challenged the ALJ’s decision by asserting that no providers 16 doubted Plaintiff’s veracity. ECF No. 13 at 11-15. However, this failed to address 17 the reasons the ALJ provided for rejecting his statements. By failing to challenge 18 the reasons the ALJ gave for rejecting Plaintiff’s symptom statements, Plaintiff 19 essentially waived the argument before this Court. See Carmickle, 533 F.3d at 20 1161 n.2. The Ninth Circuit explained the necessity for providing specific 21 argument: 22 23 24 25 26 27 28 The art of advocacy is not one of mystery. Our adversarial system relies on the advocates to inform the discussion and raise the issues to the court. Particularly on appeal, we have held firm against considering arguments that are not briefed. But the term “brief” in the appellate context does not mean opaque nor is it an exercise in issue spotting. However much we may importune lawyers to be brief and to get to the point, we have never suggested that they skip the substance of their argument in order to do so. It is no accident that the Federal Rules of Appellate Procedure require the opening brief to contain the ORDER GRANTING DEFENDANT’S MOTION - 6 “appellant’s contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies.” Fed. R. App. P. 28(a)(9)(A). We require contentions to be accompanied by reasons. 1 2 3 4 Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 (9th Cir. 2003).2 5 Moreover, the Ninth Circuit has repeatedly admonished that the court will not 6 “manufacture arguments for an appellant” and therefore will not consider claims 7 that were not actually argued in appellant’s opening brief. Greenwood v. Fed. 8 Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). 9 2. 10 11 Residual Functional Capacity Plaintiff challenged the ALJ’s residual functional capacity determination by challenging his treatment of the medical expert’s opinion. ECF No. 9 at 15-17. 12 At the August 18, 2016 hearing, Stephen Rubin, Ph.D. testified that Plaintiff 13 had “depressive disorder, probably mild to moderate,” “an anxiety disorder, at least 14 moderate,” “a personality disorder and certain characteristics which make it 15 difficult for him to interact with others,” and “in the past, he’s had a drug problem 16 which he says now he’s been clean and sober for about seven years.” Tr. 185. He 17 considered listings 12.04, 12.06, 12.08, and 12.09 and found that Plaintiff did not 18 meet or equal any of the listings. Tr. 186. He addressed the B Criteria and ranked 19 Plaintiff as mild in terms of activities of daily living, moderate in terms of social 20 functioning, and moderate in terms of concentration, persistence, and pace and 21 there were no episodes of prolonged decompensation. Tr. 186-87. In terms of a 22 residual functional capacity opinion, Dr. Rubin opined that Plaintiff had a mild 23 limitation with simple instructions and a moderate limitation in complex 24 instructions. Tr. 188. He opined marked difficulties with the public, moderate 25 difficulties with supervisors, and moderate difficulties with peers. Id. Upon cross- 26 27 28 2 Under the current version of the Federal Rules of Appellate Procedure, the appropriate citation would be to FED. R. APP. P. 28(a)(8)(A). ORDER GRANTING DEFENDANT’S MOTION - 7 1 examination, Dr. Rubin testified that production-paced work would not be a good 2 situation for Plaintiff. Tr. 190. He also estimated that based on Plaintiff’s mental 3 health concerns he would more probably be absent from work two days a month. 4 Id. 5 The ALJ gave “great weight to most of the opinions of Dr. Rubin,” but then 6 gave no weight to the opinion that Plaintiff would miss one or two days a month. 7 Tr. 102. The ALJ rejected this portion of the opinion because the medical 8 evidence did not show consistent psychological symptomology, examining sources 9 noted only mild psychological symptoms, and Plaintiff remained independent in 10 11 performing activities of daily living. Id. Plaintiff argues that in rejecting this portion of Dr. Rubin’s opinion the ALJ 12 failed to consider “that Plaintiff was in therapy and on medications for years and 13 that he and his youngest daughter lived with his mother until her death and that he 14 required help from his oldest daughter not only while he was living with his 15 mother, but after his mother expired.” ECF No. 13 at 16. However, Plaintiff’s 16 allegations are premised on his symptom statements. Tr. 174-75 (Plaintiff’s 17 testimony that prior to therapy he did not leave his home, and that he experienced 18 improvement in the last two years, but he still took his daughter with him.). As 19 addressed above, Plaintiff failed to mount a proper challenge to the ALJ’s 20 treatment of his symptom statements. The only citation to the record Plaintiff 21 provided in support of his argument was a January 5, 2017 counseling record that 22 post-dates the ALJ’s decision.3 ECF No. 13 at 16 citing Tr. 88. Therefore, 23 Plaintiff’s argument cannot prevail. 24 25 3 While this new evidence has been made a part of the administrative record, 26 it does not pertain to Plaintiff’s condition during the relevant period and, therefore, 27 could not change the outcome of the proceedings below. As such, remand for 28 review by the ALJ is not required. Mayes v. Massanari, 276 F.3d 453, 462 (9th ORDER GRANTING DEFENDANT’S MOTION - 8 1 Plaintiff failed to specifically address the individual reasons the ALJ 2 provided for rejecting the absenteeism portion of the opinion. ECF No. 13 at 16. 3 Therefore, the Court is not required to address the issue more in depth. See 4 Carmickle, 533 F.3d at 1161 n.2. 5 3. Step Five Plaintiff raised a challenge to the ALJ’s step five determination in the list of 6 7 issues preceding the discussion section of his briefing. ECF No. 13 at 9. However, 8 Plaintiff failed to provide any challenge in the body of his briefing. ECF No. 13. 9 Therefore, the Court will not address this issue. See Carmickle, 533 F.3d at 1161 10 n.2. CONCLUSION 11 12 Accordingly, IT IS ORDERED: 13 1. 14 Defendant’s Motion for Summary Judgment, ECF No. 14, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 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 DATED April 22, 2019. 20 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 Cir. 2001) (remand not required if new evidence would not change hearing 28 decision). ORDER GRANTING DEFENDANT’S MOTION - 9

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