Powell v. Commissioner of Social Security, No. 2:2018cv00232 - Document 14 (E.D. Wash. 2019)

Court Description: ORDER Granting 13 Defendant's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (MO, Courtroom Deputy)

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Powell v. Commissioner of Social Security Doc. 14 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 May 31, 2019 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 BRIAN P., 9 No.2:18-CV-00232-JTR Plaintiff, 10 v. 11 12 13 COMMISSIONER OF SOCIAL SECURITY, 14 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 15 16 BEFORE THE COURT are cross-motions for summary judgment. ECF 17 No. 12, 13. Attorney Lora Lee Stover represents Brian P. (Plaintiff); Special 18 Assistant United States Attorney Heather L. Griffith represents the Commissioner 19 of Social Security (Defendant). The parties have consented to proceed before a 20 magistrate judge. ECF No. 6. After reviewing the administrative record and the 21 briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary 22 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. JURISDICTION 23 24 25 Plaintiff filed an application for Supplemental Security Income on December 1, 2014, alleging disability since November 5, 2013,1 due to mental health 26 27 28 1 Plaintiff later amended his alleged onset date to December 1, 2014, the date of filing. Tr. 66. ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 impairments. Tr. 139. The application was denied initially and upon 2 reconsideration. Tr. 162-65, 169-71. Administrative Law Judge (ALJ) Caroline 3 Siderius held three hearings, on December 12, 2016, July 25, 2017, and August 16, 4 2017. Tr. 63-97, 98-113, 114-138. The ALJ issued an unfavorable decision on 5 September 8, 2017. Tr. 17-29. Plaintiff requested review from the Appeals 6 Council. Tr. 284, 419-20. The Appeals Council denied Plaintiff’s request for 7 review on June 3, 2018. Tr. 1-7. The ALJ’s September 2017 decision became the 8 final decision of the Commissioner, which is appealable to the district court 9 pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on 10 July 24, 2018. ECF No. 1, 4. STATEMENT OF FACTS 11 12 Plaintiff was born in 1982 and was 32 years old as of the alleged onset date. 13 Tr. 28. He has a 12th grade education. Tr. 66. His work history consists primarily 14 of fast food service, telemarketing, and sales. Tr. 132, 331, 343, 401-03. 15 Plaintiff experienced a difficult childhood. Adopted at birth, his parents 16 moved around throughout his childhood. Tr. 657, 760. He witnessed and was the 17 victim of abuse at the hands of his father and other caretakers. Tr. 444, 657-58, 18 770. His parents divorced when he was ten years old. Tr. 657. At the age of 13, 19 he joined a gang and was a witness and perpetrator of further violence. Tr. 658, 20 751-52. 21 In his adult years, Plaintiff suffered a number of losses in a short period, 22 including the deaths of both of his parents and his best friend. Tr. 451, 489, 501, 23 517. He had numerous felony convictions and domestic violence charges and 24 spent time incarcerated. Tr. 421, 457-58. 25 In late 2014 he began treatment with Frontier Behavioral Health. Tr. 457. 26 After a few months of services, he was discharged from counseling, as he had met 27 his treatment goals. Tr. 528. At the end of 2015, he reengaged with services and 28 continued in treatment through May of 2017. Tr. 521, 749. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion. Richardson v. 12 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 13 rational interpretation, the Court may not substitute its judgment for that of the 14 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 15 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 16 administrative findings, or if conflicting evidence supports a finding of either 17 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 18 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 19 supported by substantial evidence will be set aside if the proper legal standards 20 were not applied in weighing the evidence and making the decision. Brawner v. 21 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 22 23 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 25 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 26 proof rests upon the claimant to establish a prima facie case of entitlement to 27 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 28 claimant establishes that a physical or mental impairment prevents the claimant ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 from engaging in past relevant work. 20 C.F.R. § 416.920(a)(4). If the claimant 2 cannot do her past relevant work, the ALJ proceeds to step five, and the burden 3 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 4 other work, and (2) the claimant can perform specific jobs which exist in the 5 national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 6 (9th Cir. 2004). If a claimant cannot make an adjustment to other work in the 7 national economy, the claimant will be found disabled. 20 C.F.R. § 8 416.920(a)(4)(v). ADMINISTRATIVE DECISION 9 10 11 12 13 14 On September 8, 2017, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since December 1, 2014, the application date. Tr. 19. At step two, the ALJ determined Plaintiff had the following severe 15 impairments: anxiety with posttraumatic stress disorder, depressive disorder, and 16 personality disorder. Id. 17 At step three, the ALJ found Plaintiff did not have an impairment or 18 combination of impairments that met or medically equaled the severity of one of 19 the listed impairments. Tr. 19-21. 20 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 21 he could perform work at all exertional levels, but that he had the following non- 22 exertional limitations: 23 24 25 26 27 28 He is limited to simple repetitive and routine tasks and occasional detailed work with no more than ordinary production requirements, and superficial and brief contact with the general public; no independent decision-making; no working in large crowds (defined as 10 or more people); and only brief occasional contact with coworkers and supervisors and would work best independently. Tr. 21. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 At step four, the ALJ found Plaintiff was unable to perform his past relevant 2 work as a survey worker, telephone solicitor, or fast food worker. Tr. 28. 3 At step five, the ALJ determined that, based on the testimony of the 4 vocational expert, and considering Plaintiff’s age, education, work experience, and 5 RFC, Plaintiff was capable of making a successful adjustment to other work that 6 existed in significant numbers in the national economy, including the jobs of field 7 crop farm worker, kitchen helper, and small parts assembler. Tr. 28-29. The ALJ thus concluded Plaintiff was not under a disability within the 8 9 meaning of the Social Security Act at any time from December 1, 2014, the 10 application date, through September 8, 2017, the day of the decision. Tr. 29. ISSUES 11 The question presented is whether substantial evidence supports the ALJ’s 12 13 decision denying benefits and, if so, whether that decision is based on proper legal 14 standards. Plaintiff contends the ALJ erred by (1) improperly rejecting Plaintiff’s 15 symptom statements; and (2) improperly formulating the RFC.2 DISCUSSION3 16 17 1. Plaintiff’s symptom statements 18 19 2 Though Plaintiff lists three issues in his statement of issues, ECF No. 12 at 20 9, issues (2) and (3) were briefed together under a single heading. ECF No. 12 at 21 13-14. 22 3 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 2 3 Plaintiff alleges the ALJ should not have rejected his testimony regarding his functional limitations. ECF No. 12 at 11-13. It is the province of the ALJ to make credibility determinations. Andrews, 4 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 5 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 6 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 7 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 8 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 9 “General findings are insufficient: rather the ALJ must identify what testimony is 10 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 11 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 12 The ALJ found Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause some of the alleged symptoms; however, she 14 found Plaintiff’s “statements concerning the intensity, persistence and limiting 15 effects of these symptoms are not entirely consistent with the medical evidence and 16 other evidence in the record.” Tr. 22. Specifically, the ALJ found Plaintiff’s 17 testimony regarding his mental limitations to be unsupported by: (1) his lack of 18 treatment for the bulk of the adjudication period; (2) his improvement upon 19 engaging in treatment; (3) his caretaking of his young children and other household 20 responsibilities; (4) the efficacy of his medication; (5) being unable to explain why 21 he would not be able to maintain a job as a cleaner, given his regular cleaning of 22 his home; (6) his consistent and active participation in treatment; and (7) three 23 experts’ testimony that Plaintiff was not disabled for 12 consecutive months. Id. 24 The ALJ additionally found Plaintiff’s allegations at the third hearing of limitations 25 from headaches, vision disturbance, and medication side-effects to be unsupported 26 by the lack of evidence of any severe physical or neurological impairment. Id. 27 Plaintiff does not specifically challenge any of the ALJ’s stated reasons. 28 ECF No. 12 at 11-13. Plaintiff alleges only that, because he has presented ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 evidence of his severe mental impairments, the ALJ should not have rejected his 2 testimony. Nonetheless, the court has considered all reasons offered by the ALJ on 3 this subject, and finds that, even though not all of the factors relied on by the ALJ 4 were relevant, the ALJ offered sufficient rationale to meet the clear and convincing 5 standard. An ALJ is not "required to believe every allegation of disabling pain, or 6 else disability benefits would be available for the asking.” Molina v. Astrue, 674 7 F.3d 1104, 1112 (9th Cir. 2012). 8 9 Opinions from medical sources regarding diagnoses, prognoses, and other information regarding the limiting effects of an individual’s symptoms is relevant 10 evidence for an ALJ to consider in evaluating the reliability of a claimant’s 11 symptom statements. See Social Security Ruling 16-3p. In her evaluation of 12 Plaintiff’s subjective reports, the ALJ noted that three separate medical experts 13 found there was no 12-month period of disability. Tr. 22. At the first hearing, Dr. 14 Margaret Moore noted Plaintiff to be “a young man who is indeed capable of doing 15 some kind of work.” Tr. 72. She opined the primary limitation he would face 16 would be in interacting with supervisors, and that certainly routine work was well 17 within his abilities. Tr. 73-74. At the second hearing, Dr. Diana Cook testified 18 Plaintiff’s conditions did not meet or equal a listing and were not severe 19 impairments. Tr. 103.4 Dr. John Nance testified at the third hearing and gave 20 similar testimony to Dr. Moore, finding Plaintiff’s primary limitation would be 21 needing supervision that was not terribly confrontational, and that he would do best 22 working independently, but was otherwise able to obtain and maintain gainful 23 24 4 Dr. Cook’s testimony was somewhat unhelpful, as it appeared to conflate 25 the question of listings and severe impairments. Tr. 107-08. Plaintiff’s 26 representative objected to the testimony, and the ALJ agreed the testimony had 27 been “a waste of time,” and scheduled another hearing with a different expert. Tr. 28 111-12. ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 employment. Tr. 120-21. Notably, Dr. Nance testified there was nothing in the 2 record that indicated significant concerns with respect to Plaintiff’s ability to 3 maintain attendance or productivity. Tr. 123. This non-disabling testimony from 4 multiple medical experts who reviewed the entire record was a relevant, clear and 5 convincing factor for the ALJ to have considered in assessing the reliability of 6 Plaintiff’s symptom statements. 7 A claimant’s daily activities may support an adverse credibility finding if the 8 claimant’s activities contradict his other testimony. Orn v. Astrue, 495 F.3d 625, 9 639 (9th Cir. 2007). The ALJ found Plaintiff’s documented responsibilities with 10 respect to caring for his children and tending to household chores and shopping 11 were inconsistent with his reports of just isolating and doing nothing all day. Tr. 12 22. She also noted Plaintiff’s ability to attend counseling and other group classes 13 through Frontier Behavioral Health on a regular basis demonstrated his ability to 14 leave his home. The ALJ’s interpretation of the record is rational, particularly in 15 noting the inconsistency with Plaintiff’s allegation of extreme limitations. 16 The fact that a person suffering from mental impairments makes some 17 improvement, or experiences a benefit from medication, “does not mean the 18 person’s impairments no longer seriously affect [his] ability to function in a 19 workplace.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001). Without 20 further analysis, the ALJ’s reliance on the fact that Plaintiff saw some benefit from 21 treatment and medication use does not render his symptoms testimony unreliable— 22 improvement is not the same as the elimination of symptoms. However, the ALJ 23 gave other clear and convincing reasons for discounting Plaintiff’s statements. See 24 Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1163 (9th Cir. 2008) 25 (upholding an adverse credibility finding where the ALJ provided four reasons to 26 discredit the claimant, two of which were invalid); Batson v. Comm’r of Soc. Sec. 27 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (affirming a credibility finding where 28 one of several reasons was unsupported by the record); Tommasetti v. Astrue, 533 ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 F.3d 1035, 1038 (9th Cir. 2008) (an error is harmless when “it is clear from the 2 record that the . . . error was inconsequential to the ultimate nondisability 3 determination”). 4 2. RFC determination and step five findings Plaintiff argues the ALJ erred in formulating the RFC because she did not 5 6 include all limitations that stem from Plaintiff’s mental conditions. ECF No. 12 at 7 13-15. Specifically, he alleges that, had the ALJ included limitations to account 8 for Plaintiff’s difficulty leaving his home, she would have found Plaintiff disabled 9 based on absenteeism. Id. Plaintiff’s argument relies on successfully showing the ALJ erred in her 10 11 treatment of Plaintiff’s symptom testimony. Notably, Plaintiff makes no allegation 12 that the ALJ improperly rejected any medical opinion evidence stating Plaintiff 13 would have difficulty maintaining regular attendance. ECF No. 12 at 13-15. 14 Because the Court found that the ALJ did not harmfully err in her treatment of 15 Plaintiff’s symptom statements, Plaintiff’s argument is without merit. The RFC is 16 formulated based on all the relevant evidence in the case record, as required by the 17 regulations. 20 C.F.R. § 416.945(a). The ALJ posed a complete hypothetical to 18 the vocational expert including all limitations that were supported by substantial 19 evidence. Tr. 132-33. Therefore, the ALJ did not err in finding there were jobs 20 that existed in significant numbers that Plaintiff was capable of performing. 21 CONCLUSION 22 Having reviewed the record and the ALJ’s findings, the Court finds the 23 ALJ’s decision should be affirmed. Therefore, IT IS HEREBY ORDERED: 1. 24 25 Defendant’s Motion for Summary Judgment, ECF No. 13, is GRANTED. 2. 26 27 /// 28 /// Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 The District Court Executive is directed to file this Order and provide a copy 2 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 3 and the file shall be CLOSED. 4 IT IS SO ORDERED. 5 DATED May 31, 2019. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE 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 . . . - 10

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