Perkins v. Commissioner of Social Security, No. 2:2012cv00208 - Document 21 (W.D. Wash. 2012)
Court Description: ORDER AFFIRMING DECISION OF SSA COMMISSIONER by Hon. Mary Alice Theiler. (RS) Modified on 8/1/2012/CC Perkins (RS).
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01 02 03 04 05 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 06 07 LAURETTA PERKINS, 08 09 10 11 12 ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, Commissioner ) of Social Security, ) ) Defendant. ) ____________________________________ ) CASE NO. C12-0208-MAT ORDER RE: SOCIAL SECURITY DISABILITY APPEAL 13 Plaintiff Lauretta Perkins proceeds pro se in her appeal of a decision of the 14 Commissioner of the Social Security Administration (Commissioner). The Commissioner 15 denied plaintiff s applications for Supplemental Security Income (SSI) and Disability 16 Insurance Benefits (DIB) after a hearing before an Administrative Law Judge (ALJ). Having 17 considered the ALJ s decision, the administrative record (AR), and all memoranda of record, 18 the ALJ s decision is AFFIRMED. 19 FACTS AND PROCEDURAL HISTORY 20 Plaintiff was born on XXXX, 1975. 1 She completed high school, has a commercial 21 22 1 Plaintiff s date of birth is redacted back to the year of birth in accordance with Federal Rule of ORDER PAGE -1 01 driver s license, and, at the time of the hearing, was attending school to become a medical 02 assistant. (AR 28, 31, 158.) Plaintiff previously worked as a cashier, deliverer, school bus 03 driver, and security guard. (AR 28-33, 44, 142, 160.) 04 Plaintiff filed applications for DIB and SSI in November 2008, alleging disability 05 beginning March 24, 2008. (AR 110-23.) Her applications were denied initially and on 06 reconsideration, and she timely requested a hearing. 07 On August 17, 2010, ALJ M.J. Adams held a hearing, taking testimony from plaintiff 08 and a vocational expert. (AR 23-46.) On September 23, 2010, the ALJ issued a decision 09 finding plaintiff not disabled. (AR 10-18.) 10 Plaintiff timely appealed. The Appeals Council denied plaintiff s request for review 11 on December 6, 2011 (AR 1-5), making the ALJ s decision the final decision of the 12 Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court. 13 14 JURISDICTION The Court has jurisdiction to review the ALJ s decision pursuant to 42 U.S.C. § 405(g). 15 16 DISCUSSION The Commissioner follows a five-step sequential evaluation process for determining 17 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it 18 must be determined whether the claimant is gainfully employed. The ALJ took note of 19 plaintiff s employment in 2008 through July 2009, her receipt of unemployment benefits since 20 in or around July 2009, and her testimony that she obtained a waiver permitting her to attend 21 22 Civil Procedure 5.2(a) and the General Order of the Court regarding Public Access to Electronic Case Files, pursuant to the official policy on privacy adopted by the Judicial Conference of the United States. ORDER PAGE -2 01 school and continue to receive unemployment. (AR 12.) He determined that plaintiff had not 02 engaged in substantial gainful activity since March 24, 2008, the alleged onset date. 03 At step two, it must be determined whether a claimant suffers from a severe impairment. 04 The ALJ determined that plaintiff had medically determinable impairments, including lumbar 05 spine pain, obesity, migraine headaches, and depression. However, upon finding that plaintiff 06 did not have an impairment or combination of impairments that significantly limited, or was 07 expected to significantly limit, plaintiff s ability to perform basic work-related activities for 08 twelve consecutive months, the ALJ concluded that plaintiff did not have a severe impairment 09 or combination of impairments at step two. Given that conclusion, the ALJ did not proceed 10 with the remainder of the sequential analysis, and found plaintiff not disabled from March 24, 11 2008 through the date of the decision. See Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 12 2005) ( If a claimant is found to be disabled or not disabled at any step in the sequence, 13 there is no need to consider subsequent steps. ) (quoting Schneider v. Commissioner of the 14 SSA, 223 F.3d 968, 974 (9th Cir. 2000)). 15 This Court s review of the ALJ s decision is limited to whether the decision is in 16 accordance with the law and the findings supported by substantial evidence in the record as a 17 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means 18 more than a scintilla, but less than a preponderance; it means such relevant evidence as a 19 reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 20 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which 21 supports the ALJ s decision, the Court must uphold that decision. Thomas v. Barnhart, 278 22 F.3d 947, 954 (9th Cir. 2002). ORDER PAGE -3 01 As construed by the Commissioner, plaintiff appears to challenge the ALJ s step two 02 determination in this matter. She asserts a lack of substantial evidence support for the decision 03 and the ALJ s failure to properly evaluate the medical records. 2 The Commissioner argues 04 that the ALJ s decision is supported by substantial evidence and should be affirmed. For the 05 reasons described below, the Court agrees with the Commissioner. 06 Plaintiff bears the burden of proving an impairment is disabling. Miller v. Heckler, 770 07 F.2d 845, 849 (9th Cir. 1985). To meet the definition of disability, a claimant must have a 08 severe impairment preventing work, and the impairment must have lasted or be expected to last 09 at least twelve months. 20 C.F.R. §§ 404.1505, 404.1509, 416.905, 416.909. Accord 42 10 U.S.C. § 423 (d)(1)(A) (disability means inability to engage in any substantial gainful 11 activity by reason of any medically determinable physical or mental impairment . . . which has 12 lasted or can be expected to last for a continuous period of not less than 12 months[] ). 13 At step two of the sequential evaluation process, a claimant must make a threshold 14 showing that her medically determinable impairments significantly limit her ability to perform 15 basic work activities. See Bowen v. Yuckert, 482 U.S. 137, 145 (1987) and 20 C.F.R. §§ 16 404.1520(c), 416.920(c). Basic work activities refers to the abilities and aptitudes 17 necessary to do most jobs. §§ 404.1521(b), 416.921(b). An impairment or combination of 18 impairments can be found not severe only if the evidence establishes a slight abnormality that 19 2 To the extent plaintiff s briefing could be read to contain other arguments (see Dkts. 18 & 20), 20 none of the arguments are raised with any specificity and, as such, do not warrant scrutiny. See Carmickle v. Commissioner, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (declining to address issues not 21 argued with any specificity) (citing Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003) (the court ordinarily will not consider matters on appeal that are not specifically and 22 distinctly argued in an appellant's opening brief ).) For instance, while plaintiff implies the existence of new and material evidence, she does not point to or provide any such evidence. ORDER PAGE -4 01 has no more than a minimal effect on an individual s ability to work. See Smolen v. Chater, 02 80 F.3d 1273, 1288-89 (9th Cir. 1996 (quoting Social Security Ruling (SSR) 85-28). [T]he 03 step two inquiry is a de minimis screening device to dispose of groundless claims. Id. (citing 04 Bowen, 482 U.S. at 153-54). An ALJ is also required to consider the combined effect of an 05 individual s impairments in considering severity. Id. 06 A diagnosis alone is not sufficient to establish a severe impairment. Instead, a claimant 07 must show that her medically determinable impairments are severe. 20 C.F.R. §§ 404.1520(c), 08 416.920(c). Also, a medical impairment must be established by medical evidence consisting 09 of signs, symptoms, and laboratory findings, not only by [a] statement of symptoms. §§ 10 404.1508, 416.908. Accord Ukolov, 420 F.3d at 1005 (same); SSR 96-4p (same). 11 In this case, the ALJ first described the medical record and rendered his conclusion as to 12 the existence of medically determinable impairments. (AR 13.) The discussion of the 13 medical record included, inter alia, the following descriptions: unremarkable/normal imaging 14 results of cervical and lumbar spines, and the diagnosis of mild back sprain; an emergency 15 room record describing the cause of reported migraines as not determined and unspecified ; 16 records confirming plaintiff s mood as depressed and affect as constricted, with a prescription 17 for Celexa; and the absence of any imaging or treatment relating to alleged knee pain. (Id.) 18 The ALJ next engaged in a credibility analysis. See Lingenfelter v. Astrue, 504 F.3d 19 1028, 1036 (9th Cir. 2007) (in assessing credibility, an ALJ must first determine whether a 20 claimant presents objective medical evidence of an underlying impairment which could 21 reasonably be expected to produce the pain or other symptoms alleged. ; given presentation of 22 such evidence, and absent evidence of malingering, an ALJ must provide clear and convincing ORDER PAGE -5 01 reasons to reject a claimant s testimony) (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th 02 Cir. 1991)). He found plaintiff s statements concerning the intensity, persistence, and limiting 03 effects of her symptoms not credible to the extent inconsistent with the finding that plaintiff had 04 no severe impairment or combination of impairments. (AR 15.) 05 In finding plaintiff less than fully credible, the ALJ first found plaintiff s subjective 06 complaints not reasonably consistent with the medical evidence: 07 08 09 10 11 On a number of occasions the claimant s provider noted no unusual anxiety of evidence of depression with a stable mood. Her memory was intact and her judgment, thought processes/content, attention and intellect were all normal. Once the claimant returned to part time work, discussed below, her provider noted a positive increased affect. As of April 2010, the claimant stated her depression improved and was stable while taking medication; she verified at her hearing that medication was a great help. She mentioned that vacation helped her symptoms too. The record notes, however, that at times the claimant discontinued her medication because she disliked taking medication, contributing to any ongoing symptoms. 12 13 14 15 16 17 18 19 20 Concerning the claimant s back pain, she explicitly denied radiating pain to her lower extremities. Examinations were generally unremarkable. The claimant s treating provider deemed the claimant s back pain mild and advised conservative treatment, such as Tylenol and ibuprofen along with heat/ice, stretching and physical therapy. As stated above, imaging did not identify any significant abnormalities and no surgical intervention was advised. According to the record, the claimant s back pain improved with physical therapy. Likewise, despite complaints of migraine headaches a CT scan of the claimant s head was normal. A neurological examination while at the emergency department was unremarkable. According to the record, the claimant was sent home from the emergency department without any medication to treat her migraine headache, indicating her symptoms are not to the degree she is alleging. Her provider thought stress triggered these headaches and counseling as well as smoking cessation was the recommended treatment. 21 (Id., internal citations to record omitted.) While subjective pain testimony cannot be rejected 22 on the sole ground that it is not fully corroborated by objective medical evidence, the medical ORDER PAGE -6 01 evidence is still a relevant factor in determining the severity of the claimant s pain and its 02 disabling effects. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 96-7p 03 (same). Also, [c]ontradiction with the medical record is a sufficient basis for rejecting the 04 claimant s subjective testimony. Carmickle v. Comm r of SSA, 533 F.3d 1155, 1161 (9th Cir. 05 2008) (citing Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995)). As such, the ALJ here 06 appropriately relied on inconsistency with the medical record. 07 The ALJ next pointed to the fact that plaintiff has worked and sought work with her 08 allegedly disabling impairments, inconsistent statements regarding her employment record, and 09 other facts showing the impairments did not prevent her from working and seemed to alleviate 10 her symptoms as strongly suggest[ing] [her] symptoms would not currently prevent work. 11 (AR 15-16.) In so doing, the ALJ appropriately considered inconsistencies between plaintiff s 12 testimony and both her conduct and work record. Light v. Social Sec. Admin., 119 F.3d 789, 13 792 (9th Cir. 1997). 14 The ALJ also appropriately considered inconsistencies or contradictions between 15 plaintiff s statements and her activities of daily living. Tonapetyan v. Halter, 242 F.3d 1144, 16 1148 (9th Cir. 2001); Thomas, 278 F.3d at 958-59. The ALJ noted evidence that plaintiff 17 walked for exercise, was taking a test to become a metro bus driver, and sought out many 18 hard-to-find resources to prevent rent/energy, crisis. (AR 16.) The function report plaintiff 19 completed included the following descriptions: getting her children up in the morning, 20 completing her personal hygiene, preparing meals, and helping her children with homework; 21 caring for her five children, including cooking and washing clothes; light cleaning and laundry; 22 getting outside at least once a week; talking with and occasionally having lunch with friends; ORDER PAGE -7 01 sometimes attending church; being able to pay attention for a fairly good amount of time 02 and follow spoken instructions; and no use of any prescribed assistive devices. (AR 16 (citing 03 AR 168-75).) At hearing, plaintiff testified she was attending school, four days a week, seven 04 hours a day, and that she did not find school stressful. (Id.) The ALJ additionally considered, 05 with notation to several examples as support, the possibility of secondary gain. (Id.) 06 The ALJ also took into consideration a lay report from plaintiff s friend. (AR 16.) 07 The lay witness indicated, inter alia, that she saw plaintiff twice a week to grocery shop and 08 chat, that plaintiff attended church and watched television, but socialized mostly on the phone, 09 and that, while any physical tasks elicited pain, discomfort, and limited walking, plaintiff did 10 not have a problem paying attention and following spoken instructions, and could handle stress 11 and changes in routine pretty well. (Id. (citing AR 176-83).) The ALJ found plaintiff s 12 activities relatively unlimited[,] and took note of the lay witness s repeated statements that 13 she was unaware of [plaintiff s] daily activities[] to reduce[] the validity of the overall 14 report. (Id.) The ALJ sufficiently assessed the lay testimony. See Van Nguyen v. Chater, 15 100 F.3d 1462, 1467 (9th Cir. 1996) (lay witness testimony as to a claimant s symptoms or how 16 an impairment affects ability to work is competent evidence and cannot be disregarded without 17 comment) and Smolen v. Chater, 80 F.3d 1273, 1288-89 (9th Cir. 1996) (the ALJ can reject the 18 testimony of lay witnesses only upon giving germane reasons). 19 The ALJ likewise properly considered the medical record. In addition to the earlier 20 outline of medical records (AR 13), the ALJ considered medical opinion evidence. He first 21 took note of an April 2007 letter from plaintiff s treating physician, Dr. Janelle Walhout, stating 22 plaintiff could resume full duty work after a car accident. (AR 17 (citing AR 239).) The ORDER PAGE -8 01 ALJ weighed the assessment heavily given Dr. Walhout s treatment of plaintiff, and the 02 opinion that plaintiff could return to work as of 2007, which is supported by the record. (Id.) 03 The ALJ appropriately assigned weight to the opinion of this treating physician. Lester v. 04 Chater, 81 F.3d 821, 830 (9th Cir. 1996) (an ALJ must, as a general matter, give more weight to 05 the opinions of treating physicians than to non-treating physicians, and more weight to the 06 opinion of an examining physician than to a non-examining physician). 07 The ALJ next considered evidence from non-examining state agency physicians. Dr. 08 Christy Ulleland, in June 2009, found plaintiff s allegations of back problems and headaches 09 non-severe due to testing showing plaintiff was neurologically intact, normal April 2009 x-rays 10 of cervical and lumbar spines, and improvement in her migraines with medication. (AR 17; 11 AR 340.) Dr. Diane Fligstein, in a March 2009 psychiatric review, found plaintiff s activities 12 of daily living unlimited, noting her ability to care for her five children, her cooking and 13 laundry responsibilities, and her ability to shop and spend time with others, including going to 14 lunch. (AR 17 (citing AR 310-22).) 3 As observed by the ALJ, Dr. Fligstein took note of the 15 fact that, on the daily activities form completed, plaintiff checked no boxes indicating mental 16 limitations and stated she followed instructions well and was able to get along with authority 17 figures. (Id.) The ALJ further noted: Regarding the evidence of financial stress, 18 physical/back pain and being unemployed, resulting in depression, Dr. Fligstein opined these 19 feelings seemed normal in this context. Overall, the evidence did not establish significant 20 3 While the narrative portion of this Psychiatric Review Technique form was written by an 21 agency adjudicator, the ALJ properly considered the information as Dr. Fligstein s opinion given that she signed the form and edited the narrative content. (AR 310, 322.) See Lawrence v. Astrue, 22 C09-1368Z, 2010 U.S. Dist. LEXIS 75529 at *2-3 (W.D. Wash. July 27, 2010) (where form affirmed by physician in its entirety, ALJ obligated to consider it as opinion evidence). ORDER PAGE -9 01 psychiatric limitations; therefore, the mood disorder was rated as nonsevere. (Id.) Dr. R. 02 Eisenhauer, in June 2009, affirmed Dr. Fligstein s assessment. (Id. (citing AR 341).) 03 The ALJ gave the state assessments significant weight because they were based on a 04 review of the record, had the support of the evidence, and given the assessors familiarity with 05 Social Security Regulations, and agreed that plaintiff s impairments are nonsevere. (Id.) 06 Again, the ALJ properly afforded weight to the opinions of these physicians. See 20 C.F.R. §§ 07 404.1527(f)(2)(i), 416.927(f)(2)(i) ( State agency medical and psychological consultants and 08 other program physicians, psychologists, and other medical specialists are highly qualified 09 physicians, psychologists, and other medical specialists who are also experts in Social Security 10 disability evaluation. Therefore, [ALJs] must consider findings and other opinions of State 11 agency medical and psychological consultants and other program physicians, psychologists, 12 and other medical specialists as opinion evidence, except for the ultimate determination about 13 whether you are disabled (see § 404.1512(b)(8)). ); SSR 96-6p (same). 14 Finally, the ALJ performed the required functional assessment for evaluating mental 15 disorders. See 20 C.F.R. part 404, Subpt. P, Appx. 1. He concluded plaintiff had mild 16 limitations in activities of daily living, in social functioning, and in concentration persistence 17 and pace, and no episodes of decompensation. (AR 17-18.) 18 In summarizing his conclusion that plaintiff s impairments are nonsevere, the ALJ 19 pointed to the lack of objective medical evidence support in the record and the absence of 20 evidence showing a sufficient durational requirement of twelve months. (AR 17-18.) He also 21 deemed his conclusion as to an absence of impairments or combination of impairments 22 significantly limiting plaintiff s ability to perform basic work activities as supported by the ORDER PAGE -10 01 evidence in the record and the testimony. (Id.) 02 Plaintiff fails to raise any arguments undermining the ALJ s conclusion. She does not 03 identify any ambiguity that would have triggered the duty of the ALJ to develop the record 04 further, and no such ambiguity is apparent from review of the record. Cf. Webb v. Barnhart, 05 433 F.3d 683, 687 (9th Cir. 2005) ( The ALJ s duty to supplement a claimant s record is 06 triggered by ambiguous evidence, the ALJ s own finding that the record is inadequate or the 07 ALJ s reliance on an expert s conclusion that the evidence is ambiguous. Here, the medical 08 evidence was sufficiently ambiguous to trigger the ALJ s duty because of the obvious 09 vicissitudes in Webb s health, particularly the ways in which his conditions improved and 10 worsened as a result of the afflictions and their treatments. ; also finding the ALJ s reasons for 11 rejecting the claim at step two not substantial enough to meet the clear and convincing 12 standard when balanced against Webb s doctors contemporaneous observations, some 13 objective tests and Webb s subjective complaints. ) (internal citation to Tonapetyan, 242 F.3d 14 at 1150). Instead, as argued by the Commissioner, the ALJ s decision has the support of 15 substantial evidence. 16 CONCLUSION 17 For the reasons set forth above, this matter is AFFIRMED. 18 DATED this 31st day of July, 2012. 19 20 A 21 Mary Alice Theiler United States Magistrate Judge 22 ORDER PAGE -11
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