Nicolai v. Saul, No. 2:2020cv00120 - Document 21 (E.D. Wash. 2021)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ECF No. 18 and denying ECF No. 16 Plaintiff's Motion for Summary Judgment. File closed. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

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Nicolai v. Saul Doc. 21 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 2 May 27, 2021 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 5 6 7 8 9 10 11 12 13 PAUL N., No. 2:20-CV-0120-JTR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Plaintiff, v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant. 14 15 BEFORE THE COURT are cross-motions for summary judgment. ECF 16 No. 16, 18. Attorney Dana C. Madsen represents Paul N. (Plaintiff); Special 17 Assistant United States Attorney Benjamin J. Groebner represents the 18 Commissioner of Social Security (Defendant). The parties have consented to 19 proceed before a magistrate judge. ECF No. 8. After reviewing the administrative 20 record and the briefs filed by the parties, the Court GRANTS Defendant’s Motion 21 for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 22 23 JURISDICTION Plaintiff filed an application for Supplemental Security Income in July 2017, 24 alleging disability since August 1, 2014, due to “Herniated disc–L5” and “Hole in 25 left eye–around optical nerve.” Tr. 187, 215. Plaintiff’s disability onset date was 26 amended to July 10, 2017 at the administrative hearings. Tr. 36, 606, 608. The 27 application was denied initially and upon reconsideration. Administrative Law 28 Judge (ALJ) Donna L. Walker held hearings on October 10, 2018, Tr. 604-619, ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 and March 13, 2019, Tr. 34-53, and issued an unfavorable decision on April 1, 2 2019, Tr. 16-27. The Appeals Council denied Plaintiff’s request for review on 3 February 6, 2020. Tr. 1-6. The ALJ’s April 2019 decision thus became the final 4 decision of the Commissioner, which is appealable to the district court pursuant to 5 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on March 25, 6 2020. ECF No. 1. 7 STATEMENT OF FACTS 8 Plaintiff was born on September 10, 1979, Tr. 187, and was 37 years old on 9 the amended alleged disability onset date, July 10, 2017, Tr. 36. He finished high 10 school and completed an aerospace manufacturing program at Spokane 11 Community College in 2015. Tr. 38, 216. Plaintiff’s disability report indicates he 12 stopped working on August 1, 2014 because of his conditions. Tr. 215. 13 Plaintiff testified at the administrative hearing on October 10, 2018, that he 14 was not capable of working because of back pain, and the medications he took for 15 his pain caused him to be sleepy, dizzy, tired, and groggy. Tr. 616. He stated he 16 had to lie down and rest five hours a day. Tr. 616. At the March 13, 2019 17 administrative hearing, Plaintiff testified his condition was “getting a little worse,” 18 and he was now experiencing numbness in his right leg. Tr. 41. He stated he had 19 to lie down five times a day, for a total of four hours. Tr. 41. Plaintiff testified 20 back surgery was an option, but he had to first lose 30 pounds. Tr. 41-42. He 21 indicated he could walk three-fourths of a mile, stand for about four hours, sit for 22 about four hours, and lift and carry only one pound. Tr. 42-43. Plaintiff stated he 23 lived with his parents and did not grocery shop, vacuum or do the laundry. Tr. 43. 24 He testified he could cook, but could not stand very long, and was able to drive, 25 but not very far before his foot and leg would go numb. Tr. 43. 26 27 28 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 2 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 3 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 4 only if it is not supported by substantial evidence or if it is based on legal error. 5 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 6 defined as being more than a mere scintilla, but less than a preponderance. Id. at 7 1098. Put another way, substantial evidence is such relevant evidence as a 8 reasonable mind might accept as adequate to support a conclusion. Richardson v. 9 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 10 rational interpretation, the Court may not substitute its judgment for that of the 11 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 12 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 13 administrative findings, or if conflicting evidence supports a finding of either 14 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 15 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 16 supported by substantial evidence will be set aside if the proper legal standards 17 were not applied in weighing the evidence and making the decision. Brawner v. 18 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 19 20 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 21 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); Bowen v. 22 Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the claimant 23 bears the burden of establishing a prima facie case of disability benefits. Tackett, 24 180 F.3d at 1098-1099. This burden is met once a claimant establishes that a 25 physical or mental impairment prevents the claimant from engaging in past 26 relevant work. 20 C.F.R. § 416.920(a)(4). If a claimant cannot perform past 27 relevant work, the ALJ proceeds to step five, and the burden shifts to the 28 Commissioner to show (1) the claimant can make an adjustment to other work; and ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 (2) the claimant can perform specific jobs that exist in the national economy. 2 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-1194 (9th Cir. 2004). 3 If a claimant cannot make an adjustment to other work in the national economy, 4 the claimant will be found disabled. 20 C.F.R. § 416.920(a)(4)(v). ADMINISTRATIVE DECISION 5 6 7 8 9 10 11 On April 1, 2019, 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 July 10, 2017, the amended alleged onset date. Tr. 18. At step two, the ALJ determined Plaintiff had the severe impairments of degenerative disc disease of the lumbar spine and obesity. Tr. 18. 12 At step three, the ALJ found Plaintiff did not have an impairment or 13 combination of impairments that meets or medically equals the severity of one of 14 the listed impairments. Tr. 19. 15 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found 16 Plaintiff could perform light exertion level work with the following limitations: 17 his ability to stand and/or walk is limited to no more than 4 hours in an 8-hour day 18 with an accommodation for a sit/stand option; he has the ability to use his feet 19 continuously (defined as over 2/3 of the workday); he has the ability to 20 occasionally (defined as up to 2/3 of the workday) stoop, and continuously climb 21 ramps or stairs, crawl, stoop (i.e., bend at the waist), kneel, crouch (i.e., bend at the 22 knees), or climb ladders, ropes or scaffolds; he has no limitations regarding the use 23 of his hands and reaching in all directions, including overhead; and he has no 24 limitations regarding the ability to see, hear or communicate or regarding the 25 environment. Tr. 21. 26 At step four, the ALJ found Plaintiff has no past relevant work. Tr. 25. 27 At step five, the ALJ determined that, based on the testimony of the 28 vocational expert, and considering Plaintiff’s age, education, work experience, and ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 RFC, Plaintiff was capable of making a successful adjustment to other work that 2 exists in significant numbers in the national economy, including the jobs of 3 merchandise marker, grain picker, and labeler. Tr. 25-26. The ALJ indicated that 4 even if she had found Plaintiff limited to sedentary work, instead of light, he would 5 still be capable of performing the jobs of toy stuffer and telemarketer. Tr. 26. The ALJ thus concluded Plaintiff was not under a disability within the 6 7 meaning of the Social Security Act at any time from July 10, 2017, the amended 8 alleged onset date, through the date of the ALJ’s decision, April 1, 2019. Tr. 26- 9 27. ISSUES 10 The question presented is whether substantial evidence supports the ALJ’s 11 12 decision denying benefits and, if so, whether that decision is based on proper legal 13 standards. Plaintiff raises the following issues for the Court’s review: (1) Did the ALJ 14 15 err by not finding that Plaintiff equaled the listings according to Social Security 16 regulations and according to judicial precedent?; (2) Are the errors harmless?; and 17 (3) What is the proper remedy? ECF No. 16 at 14. 18 DISCUSSION 19 Plaintiff argues the ALJ erred by finding his impairments did not equal 20 Listing 1.04A despite the testimony of the medical expert in this case. ECF No. 16 21 at 14-18. Defendant responds that the ALJ reasonably discounted the medical 22 expert’s testimony and concluded that Plaintiff’s impairments did not equal the 23 requirements of Listing 1.04A. ECF No. 18 at 2-9. 24 Listing 1.04A (Disorders of the spine) requires “[e]vidence of nerve root 25 compression characterized by neuro-anatomic distribution of pain, limitation of 26 motion of the spine, motor loss (atrophy with associated muscle weakness or 27 muscle weakness) accompanied by sensory or reflex loss and, if there is 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 involvement of the lower back, positive straight-leg raising test (sitting and 2 supine).” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A. 3 For claims filed on or after March 27, 2017, new regulations apply that 4 change the framework for how an ALJ must weigh medical opinion evidence. 5 Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 6 168819, 82 Fed. Reg. 5844 (Jan. 18, 2017); 20 C.F.R. § 416.920c. The new 7 regulations provide the ALJ will no longer give any specific evidentiary weight to 8 medical opinions or prior administrative medical findings, including those from 9 treating medical sources. 20 C.F.R. § 416.920c(a). Instead, the ALJ will consider 10 the persuasiveness of each medical opinion and prior administrative medical 11 finding, regardless of whether the medical source is an acceptable medical source. 12 20 C.F.R. § 416.920c(c). The ALJ is required to consider multiple factors, 13 including supportability, consistency, the source’s relationship with the claimant, 14 any specialization of the source, and other factors (such as the source’s familiarity 15 with other evidence in the file or an understanding of Social Security’s disability 16 program). Id. The regulations make clear that the supportability and consistency 17 of the opinion are the most important factors, and the ALJ must articulate how she 18 considered those factors in determining the persuasiveness of each medical opinion 19 or prior administrative medical finding. 20 C.F.R. § 416.920a(b). The ALJ may 20 explain how she considered the other factors, but the ALJ is not required to, except 21 in cases where two or more opinions are equally well-supported and consistent 22 with the record. Id. 23 24 25 26 27 Supportability and consistency are further explained in the regulations as follows: (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 2 3 4 5 6 7 8 9 finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 20 C.F.R. § 416.920c(c). Robert Thompson, M.D., an orthopedic surgeon testifying as a medical expert at the October 10, 2018 administrative hearing opined “the evidence 10 probably does equal [Listing] 1.04, paragraph A from the July 2017 date,” given 11 “the objective evidence of the definite herniated disc with ongoing nerve root 12 irritation sufficient to weaken the leg [and the] reduced range of motion.” Tr. 613. 13 Dr. Thompson testified “it’s more probable than not that he will deteriorate in the 14 future, not get better.” Tr. 615. 15 The ALJ indicated at the March 13, 2019 administrative hearing that she did 16 not agree with Dr. Thompson’s testimony, so she sent Plaintiff for a consultative 17 evaluation. Tr. 36. The ALJ’s decision indicates that two examinations performed 18 after the hearing suggested Plaintiff had some functional limitations; however, 19 when considering the record as a whole, including straight leg raise test results and 20 Plaintiff’s activities of daily living, she did not find Dr. Thompson’s opinion 21 persuasive. Tr. 20. 22 The ALJ indicated Dr. Thompson’s opinion was not consistent with the 23 evidence of record. The ALJ mentioned that while there were records of positive 24 straight leg raise tests, Tr. 454, 463, 466, 473, the longitudinal record was replete 25 with negative straight leg raise test results, Tr. 396, 401, 403, 406, 409, 412, 413, 26 415, 485, 493, 520, 536, 580. Tr. 20. Furthermore, the ALJ indicated Plaintiff’s 27 activities of daily living were not consistent with Dr. Thompson’s equivalence 28 opinion. Tr. 20, 22-23 (noting Plaintiff has reported no problems with personal ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 care, the ability to prepare simple meals, laundry, some cleaning, drive (even 2 though he states he cannot legally drive because of pain medications), shop, handle 3 his own finances, build plastic models, get along with others, use the computer, 4 cook for his daughter (although it hurts to stand for long periods), vacuum and 5 mow the lawn (although it is difficult for him), and do wood working). 6 With respect to supportability, the ALJ indicated the consultative examiner 7 described poor effort on range of motion testing in November 2018, Tr. 581, which 8 seemed to contradict the findings of significantly reduced range of motion noted on 9 the DSHS exam, Tr. 502, which Dr. Thompson used as a point of reference, Tr. 10 612. Tr. 20. In addition, the ALJ noted that although Dr. Thompson testified the 11 disc bulge at L1-2 was a sign of increasing pathology, Tr. 614, it was described as 12 “mild” and the most significant finding at L5-S1 had improved, Tr. 451. Tr. 20. 13 Furthermore, medical professionals A. Peter Weir, M.D. (discussed below), 14 Tr. 578-589, Greg Saue, M.D., Tr. 76-78, and Rogelio Cantu, PAC, Tr. 501, found 15 Plaintiff’s impairments did not prevent him from performing work. Tr. 23-25. 16 The ALJ’s findings with respect to the supportability and consistency of Dr. 17 Thompson’s opinions are supported by substantial evidence. The Court thus finds 18 the ALJ’s conclusion that Dr. Thompson’s equivalence opinion was not persuasive 19 is properly supported. 20 On November 11, 2018, Dr. Weir completed an evaluation of Plaintiff. Tr. 21 578-589. Dr. Weir noted the straight leg raising test was negative bilaterally both 22 seated and supine, Tr. 580, Plaintiff was able to sit comfortably throughout the 23 interview and examination, and he was easily able to remove and replace his shoes 24 and socks, arise from a chair, and return to a sitting position, Tr. 581. Plaintiff was 25 observed to move about easily without obvious discomfort and ambulate at an 26 average pace with a limp favoring the right leg. Tr. 581. Dr. Weir indicated 27 Plaintiff exhibited poor effort during the range of motion testing. Tr. 581. While 28 he found Plaintiff’s postural activities were restricted (occasionally), Dr. Weir ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 opined Plaintiff could stand and/or walk for about four hours in an eight hour day, 2 sit for about six hours in an eight hour day, and lift and/or carry 20 pounds 3 occasionally and 10 pounds frequently. Tr. 581-582. 4 The ALJ determined Dr. Weir’s report was “persuasive.” Tr. 23. 5 Plaintiff argues Dr. Weir’s report does not constitute substantial evidence 6 because Dr. Weir did not review all of the medical evidence and did not give an 7 opinion as to whether Plaintiff met or equaled a listing. ECF No. 16 at 18. Defendant responds that Plaintiff did not explain how additional records 8 9 might have changed Dr. Weir’s opinion, and, in any event, the ALJ reviewed the 10 record as a whole, compared Dr. Weir’s findings on examination, and found Dr. 11 Weir’s opinion persuasive. ECF No. 18 at 7-8. 12 There is no requirement that the ALJ provide “sufficient reasons” for 13 according weight to a medical professional, rather the Court reviews whether the 14 ALJ has failed to provide legally sufficient reasons for rejecting evidence. 15 Garrison v. Colvin, 759 F.3d 995, 1020 (9th Cir. 2014). The Court nonetheless 16 finds the ALJ properly assessed the persuasiveness of Dr. Weir and did not err by 17 crediting his opinions. 18 Based on the foregoing, the ALJ’s evaluation of the medical opinion 19 evidence is supported by substantial evidence, and the evidence of record supports 20 the ALJ’s finding at step three with respect to Listing 1.04A. There has been no 21 showing that Plaintiff meets or equals the requirements of Listing 1.04A. 22 CONCLUSION 23 Having reviewed the record and the ALJ’s findings, the Court finds the 24 ALJ’s decision is supported by substantial evidence and free of error. 25 Accordingly, IT IS HEREBY ORDERED: 1. 26 Defendant’s Motion for Summary Judgment, ECF No. 18, is 27 GRANTED. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 9 Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED. 1 2. 2 IT IS SO ORDERED. The District Court Executive is directed to file this 3 Order and provide a copy to counsel for Plaintiff and Defendant. Judgment shall 4 be entered for Defendant and the file shall be CLOSED. 5 DATED May 27, 2021. 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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