Carter v. Saul, No. 2:2019cv00027 - Document 18 (E.D. Wash. 2020)

Court Description: ORDER GRANTING 16 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying ECF No. 15 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Case Administrator)

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Carter v. Saul Doc. 18 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 2 Mar 30, 2020 3 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 BRANDON C., 9 No. 2:19-CV-00027-JTR Plaintiff, 10 v. 11 12 13 14 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY,1 15 Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 15, 16. Attorney Dana Chris Madsen represents Brandon C. (Plaintiff); 19 Special Assistant United States Attorney Justin Lane Martin represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 8. After reviewing the administrative 22 record and the briefs filed by the parties, the Court GRANTS Defendant’s Motion 23 for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 24 25 1 Andrew M. Saul is now the Commissioner of the Social Security 26 Administration. Accordingly, the Court substitutes Andrew M. Saul as the 27 Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 28 25(d). ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 2 JURISDICTION Plaintiff filed an application for Supplemental Security Income on August 3 23, 2016, alleging disability since birth,2 due to persisting depressive disorder, 4 anxiety disorder, autism spectrum, and passive-dependent personality features. Tr. 5 66. The application was denied initially and upon reconsideration. Tr. 89-92, 96- 6 98. Administrative Law Judge (ALJ) R.J. Payne held a hearing on October 27, 7 2017, Tr. 33-65, and issued an unfavorable decision on February 20, 2018, Tr. 15- 8 27. Plaintiff requested review from the Appeals Council, and the Appeals Council 9 denied the request on November 26, 2018. Tr. 1-6. The ALJ’s February 2018 10 decision became the final decision of the Commissioner, which is appealable to the 11 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 12 review on January 18, 2019. ECF No. 1. STATEMENT OF FACTS 13 14 Plaintiff was born in 1989 and was 26 years old as of the filing of his 15 application. Tr. 27. He completed high school, with special education services, 16 and has no work history. Tr. 44, 251. He lives with his mother and spends most of 17 his time in his bedroom, drawing, reading comics, and playing video games. Tr. 18 50, 244-45, 251. He testified he has anxiety about leaving his bedroom. Tr. 50-51. 19 STANDARD OF REVIEW 20 The ALJ is responsible for determining credibility, resolving conflicts in 21 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 22 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 23 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 24 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 25 only if it is not supported by substantial evidence or if it is based on legal error. 26 27 28 2 Plaintiff later amended his alleged onset date to the date of the filing of his application. Tr. 35. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 2 defined as being more than a mere scintilla, but less than a preponderance. Id. at 3 1098. Put another way, substantial evidence is such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion. Richardson v. 5 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 6 rational interpretation, the Court may not substitute its judgment for that of the 7 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 8 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 9 administrative findings, or if conflicting evidence supports a finding of either 10 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 11 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 12 supported by substantial evidence will be set aside if the proper legal standards 13 were not applied in weighing the evidence and making the decision. Brawner v. 14 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 16 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 18 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 19 proof rests upon the claimant to establish a prima facie case of entitlement to 20 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 21 claimant establishes that a physical or mental impairment prevents the claimant 22 from engaging in past relevant work. 20 C.F.R. § 416.920(a)(4). If a claimant 23 cannot perform past relevant work, the ALJ proceeds to step five, and the burden 24 shifts to the Commissioner to show (1) the claimant can make an adjustment to 25 other work; and (2) the claimant can perform specific jobs that exist in the national 26 economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th 27 Cir. 2004). If a claimant cannot make an adjustment to other work in the national 28 economy, the claimant will be found disabled. 20 C.F.R. § 416.920(a)(4)(v). ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 2 3 4 5 6 ADMINISTRATIVE DECISION On February 20, 2018, 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 the application date. Tr. 17. At step two, the ALJ determined Plaintiff had the following severe 7 impairments: obesity, depressive disorder, anxiety disorder, and autism spectrum 8 disorder. Id. 9 At step three, the ALJ found 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. 18-20. 12 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 13 he could perform a range of medium exertional work, with the following specific 14 limitations: 15 16 17 18 19 20 21 22 23 24 The claimant is able to lift 50 pounds occasionally and 25 pounds frequently. In an eight-hour workday, with normal breaks, the claimant is able to sit six hours and stand and/or walk six hours, in any combination. The claimant is capable of occasional stooping, crouching, kneeling, and balancing. The claimant can never crawl. The claimant can occasionally climb ramps and stairs but never climb ladders, ropes or scaffolds. The claimant can never work at unprotected heights and should avoid concentrated exposure to hazardous moving machinery. In terms of mental abilities, the claimant can have superficial contact with the general public. Finally, the claimant can work with, or in the vicinity of, coworkers but not in a teamwork-type work setting. Tr. 20. 25 At step four, the ALJ found Plaintiff had no past relevant work. Tr. 27. 26 At step five, the ALJ determined that, based on the testimony of the 27 vocational expert, and considering Plaintiff’s age, education, work experience, and 28 RFC, Plaintiff was capable of performing jobs that existed in significant numbers ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 in the national economy, including the jobs of hand packager, small products 2 assembler, and electronics worker. Tr. 26-27. 3 The ALJ thus concluded Plaintiff was not under a disability within the 4 meaning of the Social Security Act at any time from August 23, 2016, the 5 application date, through February 20, 2018, the day of the decision. Tr. 26. 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) improperly rejecting Plaintiff’s 10 11 symptom testimony; and (2) improperly evaluating the medical opinion evidence. DISCUSSION 12 13 14 15 1. Plaintiff’s symptom statements Plaintiff alleges the ALJ erred in rejecting his symptom testimony without providing adequate reasons. ECF No. 15 at 14-17. 16 It is the province of the ALJ to make credibility determinations. Andrews v. 17 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 18 supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 19 (9th Cir. 1990). Absent affirmative evidence of malingering, the ALJ’s reasons for 20 rejecting a claimant’s testimony must be “specific, clear and convincing.” Smolen 21 v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 22 (9th Cir. 1995). 23 The ALJ found Plaintiff’s medically determinable impairments could 24 reasonably be expected to produce the alleged symptoms; however, he found 25 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 26 his symptoms were not entirely consistent with the medical evidence and other 27 evidence in the record. Tr. 21. Specifically, the ALJ found Plaintiff’s statements 28 to be inconsistent with the objective medical evidence and his activities of daily ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 living. Tr. 23. The ALJ also noted Plaintiff had received very little treatment for 2 his depression and anxiety and the medication he took provided significant 3 symptom relief. Id. 4 Plaintiff objects to the ALJ’s use of his activities to undermine the reliability 5 of his reports and challenges the ALJ’s finding of only mild impairment in 6 adapting and managing himself, arguing that the record documents minimal 7 activities and self-care and that Plaintiff rarely leaves his bedroom. ECF No. 15 at 8 14-16. Plaintiff further challenges the ALJ’s use of the normal objective findings, 9 arguing they are not an accurate representation of his longitudinal functioning. Id. 10 at 16. Plaintiff finally asserts that his allegations are supported by the findings of 11 Dr. Lontz and Dr. Arnold. Id. 16-17. 12 a. Minimal Treatment 13 The ALJ found Plaintiff’s allegations of disabling mental conditions to be 14 undermined by the fact that he had received very little treatment for his depression 15 and anxiety, noting he attended only one psychotherapy visit in May 2017 and was 16 not prescribed any medications for his mental condition until 2016. Tr. 23. 17 Unexplained or inadequately explained reasons for failing to seek medical 18 treatment can cast doubt on a claimant’s subjective complaints. Fair v. Bowen, 19 885 F.2d 597, 603 (9th Cir. 1989). While Plaintiff reported his depression and 20 anxiety symptoms to his medical providers, he repeatedly declined referrals to 21 counseling. Tr. 257, 301. He attended one session of individual psychotherapy, 22 but did not return. Tr. 421, 417-18. The record contains no explanation for 23 Plaintiff’s failure to seek treatment for his allegedly disabling conditions. The ALJ 24 reasonably relied on this factor in discounting Plaintiff’s symptom reports. 25 b. Objective evidence 26 The ALJ found Plaintiff’s statements about his symptoms were inconsistent 27 with the objective medical evidence, noting mental status evaluations routinely 28 showed normal mood and affect, and emphasizing providers’ assessments that ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 Plaintiff’s mental health and autism spectrum conditions have been described as 2 mild. Tr. 23. Although it cannot serve as the sole ground for rejecting a claimant’s 3 symptom statements, objective medical evidence is a “relevant factor in 4 determining the severity of the claimant’s pain and its disabling effects.” Rollins v. 5 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Plaintiff asserts the normal findings 6 cited by the ALJ are not an accurate portrayal of Plaintiff’s condition, due to the 7 cycling nature of mental health conditions. ECF No. 15 at 16. However, Plaintiff 8 points to no evidence in support of this argument that the record shows cycling, 9 other than his reports. The record reflects almost entirely normal mental status 10 exams. Tr. 257, 261, 264-65, 295, 302, 306, 418. On only a few occasions did 11 providers document anything notable about Plaintiff’s mood or affect. Tr. 245, 12 253, 291, 295, 302, 306, 418. The ALJ’s interpretation of the record is supported 13 by substantial evidence. 14 c. Improvement with treatment 15 The ALJ found once Plaintiff started mental health medication in 2016, he 16 experienced significant symptom relief, in that he was coming out of his room 17 more and seemed happier on the medication. Tr. 23. While an ALJ may consider 18 the type and efficacy of treatment in assessing a claimant’s reliability, the fact that 19 a person suffering from depression makes some improvement “does not mean that 20 the person’s impairment[ ] no longer seriously affect[s] [his] ability to function in a 21 workplace.” Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001); see 22 also Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1200-01 (9th Cir. 2008). While 23 the ALJ is correct that the record reflects improvement in Plaintiff’s condition with 24 treatment, he continued to report symptoms of anxiety, isolation, sleep disturbance, 25 and generally remaining in his home. Tr. 250, 261, 294, 301, 305, 417, 421. In 26 April 2017 he reported he was not getting significant relief from his medication 27 anymore and felt his anxiety and depression were steadily worsening. Tr. 291. 28 The ALJ’s discussion of improvement with medication cited to a single report of ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 improvement when Plaintiff had been on medication for only a few weeks. Tr. 250 2 (cited by ALJ as Ex. 2F, pg.1). The finding of improvement with medication does 3 not constitute substantial evidence to discount Plaintiff’s reports of ongoing 4 difficulties. However, because the ALJ provided other clear and convincing reasons for 5 6 discounting Plaintiff’s allegations, any such error was harmless. Batson v. Comm’r 7 of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (affirming a credibility 8 finding where one of several reasons was unsupported by the record). d. Daily activities 9 10 A claimant’s daily activities may support an adverse credibility finding if the 11 activities contradict his other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 12 2007). The ALJ found Plaintiff’s allegation that he rarely leaves his bedroom to be 13 inconsistent with his activities of daily living, noting he attended regular doctor’s 14 appointments and was able to attend movies with his friends and go out to dinner 15 with his girlfriend. Tr. 23. The record does not reflect Plaintiff engaging in the 16 above activities on a regular basis. Plaintiff testified he leaves his home to go to a 17 restaurant or movie maybe one time per week. Tr. 50. He stated he goes grocery 18 shopping with his mother less than once a month. Id. The record similarly reflects 19 social outings to be rare, with Plaintiff’s mother and girlfriend routinely reporting 20 he spends the vast majority of his time in his room. Tr. 245, 250-51, 301, 417, 21 421. The ALJ characterized Plaintiff’s doctor visits as “regular,” but the record 22 reflects no more than one or two appointments per month, with several stretches of 23 multiple months with no visits. The activities identified by the ALJ do not conflict 24 with Plaintiff’s testimony that he rarely leaves his home. 25 However, because the ALJ provided other clear and convincing reasons for 26 discounting Plaintiff’s allegations, any such error was harmless. See Batson, 359 27 F.3d at 1197. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 2. 2 Medical opinion evidence Plaintiff argues the ALJ improperly weighed the opinion evidence, giving 3 undue weight to the medical expert who testified at the hearing, despite her lack of 4 understanding of Plaintiff’s condition and her endorsement of Plaintiff’s need for a 5 companion animal. ECF No. 15 at 17-18. Plaintiff further asserts the fact that 6 Plaintiff was not provided vocational rehabilitation services is evidence that the 7 Department of Vocational Rehabilitation did not believe he could be trained or 8 rehabilitated. ECF No. 15 at 18.3 9 In weighing medical source opinions, the ALJ should distinguish between 10 three different types of physicians: (1) treating physicians, who actually treat the 11 claimant; (2) examining physicians, who examine but do not treat the claimant; and 12 (3) nonexamining physicians who neither treat nor examine the claimant. Lester, 13 81 F.3d at 830. The ALJ should generally give more weight to the opinion of a 14 treating physician than to the opinion of an examining physician, and more weight 15 to an examining source than a non-examining source. Orn v. Astrue, 495 F.3d 625, 16 631 (9th Cir. 2007). In evaluating the weight owed to opinions the ALJ should 17 consider the nature of the relationship, the supportability and consistency of the 18 opinion, any specialization of the source, and other factors, such as the 19 /// 20 21 3 Plaintiff makes vague allusions to Dr. Lontz’s and Dr. Arnold’s opinions as 22 supportive of Plaintiff’s claim for disability but does not discuss or assign error to 23 the ALJ’s treatment of these opinions until his reply brief. ECF No. 17 at 4-8. 24 Generally, the Court will not consider arguments that were not actually argued in 25 the opening briefing. Independent Towers of Wash. v. Wash., 350 F.3d 925, 929 26 (9th Cir. 2003); Greenwood v. Fed. Aviation Admin., 28 F.3d 971, 977 (9th Cir. 27 1994). Because Plaintiff failed to raise these issues in his opening brief, the Court 28 declines to consider them. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 understanding of the disability programs and the source’s familiarity with the case 2 record. 20 C.F.R. § 416.927(c). 3 a. Dr. Winfrey, medical expert 4 Plaintiff argues the ALJ was wrong to afford great weight to the opinion of 5 Dr. Nancy Winfrey, the medical expert who testified at the hearing. ECF No. 15 at 6 18. Specifically, Plaintiff alleges Dr. Winfrey did not understand that Plaintiff 7 spent most of his time in his room and that the occasional social outings he did do 8 were only with his mother and girlfriend. Id. Plaintiff’s allegation that Dr. 9 Winfrey did not understand the nature of Plaintiff’s condition is supported by no 10 evidence. Dr. Winfrey reviewed the record, testified as to Plaintiff’s conditions 11 and limitations, and specifically acknowledged in her testimony that she was aware 12 of Plaintiff’s habits. Tr. 42. Plaintiff has advanced no legal basis for rejecting the 13 expert’s conclusions or questioning her comprehension of the record. 14 As to Plaintiff’s argument that Dr. Winfrey endorsed his use of a companion 15 animal, her actual testimony was that it was a good idea and helpful to Plaintiff, 16 but she specifically referenced the letter regarding the animals, which clarified the 17 dogs were not service animals and were only for use in the home. Tr. 42, 427. Dr. 18 Winfrey did not state that Plaintiff would need his dogs to accompany him to the 19 workplace. 20 21 The Court finds the ALJ did not err in giving great weight to Dr. Winfrey’s opinion. 22 b. Vocational rehabilitation 23 Plaintiff asserts, with no evidence, that because he was not provided 24 vocational training, this means the Department of Vocational Rehabilitation (DVR) 25 did not believe he could be trained or rehabilitated for gainful employment. ECF 26 No. 15 at 18. It is not established in the record that DVR actually made such a 27 determination. Plaintiff testified vaguely that vocational services with DVR “kind 28 of fell through,” and that there was some discrepancy regarding the report and that ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 the counselor thought he was able to work. Tr. 45. The only evidence from DVR 2 is a single certification of disability, noting Plaintiff had “most significant 3 disabilities” and would require multiple services over an extended period of time to 4 become employed. Tr. 276. Plaintiff’s assertion that he was deemed unable to 5 work is not supported by the record. Plaintiff makes no further argument regarding 6 any actions on the part of the ALJ or errors in the assessment, and thus has waived 7 the right to do so. 8 CONCLUSION 9 Having reviewed the record and the ALJ’s findings, the Court finds the 10 ALJ’s decision is supported by substantial evidence and free of legal error. 11 Therefore, IT IS HEREBY ORDERED: 12 13 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 14 2. 15 The District Court Executive is directed to file this Order and provide a copy 16 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 17 and the file shall be CLOSED. 18 DATED March 30, 2020. 19 20 21 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 11

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