Simmons v. Colvin, No. 2:2014cv00246 - Document 19 (W.D. Wash. 2015)

Court Description: ORDER Denying Appeal and Adopting 18 Report and Recommendations by U.S. District Judge John C Coughenour. (LMK)

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Simmons v. Colvin Doc. 19 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 SHERYL R. GALLOWAY-SIMMONS, 10 Plaintiff, 11 v. 12 CASE NO. C14-0246-JCC ORDER DENYING APPEAL AND ADOPTING REPORT AND RECOMMENDATION CAROLYN W. COLVIN, Acting 13 Commissioner of Social Security, 14 Defendant. 15 This matter comes before the Court on Magistrate Judge James P. Donohue’s Report and 16 17 18 19 20 21 22 23 24 25 26 Recommendation (“R&R”) (Dkt. No. 18) addressing Plaintiff’s appeal of the final decision of the Commissioner of the Social Security Administration (“Commissioner”). Such decision denied her application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401-33 after a hearing before an administrative law judge (“ALJ”) (Dkt. No. 3). Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby ADOPTS the R&R and DENIES the appeal for the reasons explained herein. I. BACKGROUND At the time of Sheryl R. Galloway-Simmon’s (“Galloway-Simmons”) alleged disability onset date, she was a 52-year old woman with a high school education along with some college ORDER DENYING APPEAL AND ADOPTING REPORT AND RECOMMENDATION PAGE - 1 Dockets.Justia.com 1 education. Administrative Record (“AR”) at 40, 156. Her past work experience includes 2 employment as a document manager, senior document scanner, and retail sales associate. AR at 3 40–42. She was last employed in July 2012. AR at 41–42. Galloway-Simmons filed an 4 application for DIB on March 9, 2011, alleging an onset date of June 30, 2010. AR at 156–62. 5 She asserts that she is disabled due to right knee arthritis, right ankle pain, and lower back pain. 6 AR at 201. 7 The Commissioner denied Galloway-Simmons’s claim initially and on reconsideration. 8 AR at 87–89, 93–97. After an administrative hearing, the ALJ issued a decision on October 15, 9 2012 finding Galloway-Simmons not disabled and denying benefits, based on a finding that she 10 could perform her past relevant work as a document scanner. AR at 16–36. Galloway11 Simmons’s administrative appeal of the ALJ’s decision was denied by the Appeals Council, 12 thereby making the ALJ’s ruling the “final decision” of the Commissioner. AR at 1–5; 42 13 U.S.C. § 405(g). 14 A. Jurisdiction 15 The Court has jurisdiction to review the Commissioner’s decision. 42 U.S.C. § 405(g), 16 1383(c)(3). 17 B. Standard of Review 18 A reviewing court may set aside the Commissioner’s denial of social security benefits 19 only when the ALJ’s findings are based on legal error or are not supported by substantial 20 evidence in the record. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). “Substantial 21 evidence” is such relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). The ALJ is responsible for 23 determining credibility and resolving factual ambiguities that might exist. Andrews v. Shalala, 24 53 F.3d 1035, 1039 (9th Cir. 1995). A reviewing court may not reevaluate the evidence nor 25 substitute its judgment for that of the Commissioner, and must defer to the Commissioner’s 26 conclusion if multiple rational interpretations are possible. Thomas v. Barnhart, 278 F.3d 947, ORDER DENYING APPEAL AND ADOPTING REPORT AND RECOMMENDATION PAGE - 2 1 954 (9th Cir. 2002). The reviewing court may direct an award of benefits where further 2 administrative proceedings would serve no useful purpose, such as when (1) the ALJ has failed 3 to provide legally sufficient reasons for rejecting the claimant’s evidence; (2) there are no 4 outstanding issues that must be resolved before a determination of disability may be made; and 5 (3) it is clear from the record that the ALJ would be required to find the claimant disabled if the 6 claimant’s evidence was considered. McCartey v. Massanari, 298 F.3d 1072, 1076–77 (9th Cir. 7 2002) (citing Smolen v. Chater, 80 F.3d 1273, 1292 (9th Cir. 1996)). 8 C. Evaluation of Disability 9 Disability is the “inability to engage in any substantial gainful activity” due to a physical 10 or mental impairment which has lasted or is expected to last for a continuous period of not less 11 than twelve months. 42 U.S.C. § 423(d)(1)(A), 1382c(a)(3)(A). A claimant bears the burden of 12 proving that he or she is disabled within the meaning of the Social Security Act (the “Act”). 13 Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). A claimant’s impairments must be of 14 such severity that she is unable to do her previous work and cannot, considering age, education, 15 and work experience, engage in any other substantial gainful activity existing in the national 16 economy. 42 U.S.C. § 423(d)(2)(A); see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 17 1999). 18 There is a five-step sequential test to determine whether a claimant is disabled within the 19 meaning of the Act; if a claimant is found to be disabled at any step, the inquiry ends. See 20 20 C.F.R. § 404.1520, 416.920. The claimant bears the burden of proving: (1) whether the claimant 21 is presently engaged in “substantial gainful activity” (if yes, disability benefits are denied); (2) 22 that the claimant has one or more medically severe impairments, or combination of impairments, 23 that limit the claimant’s physical or mental ability to do basic work activities (if yes, claimant is 24 disabled); (3) whether the impairment meets or equals any of the impairments described in the 25 regulations (if yes, claimant is disabled); (4) whether the physical and mental demands of the 26 claimant’s past relevant work are such that they can no longer perform that work (if yes, ORDER DENYING APPEAL AND ADOPTING REPORT AND RECOMMENDATION PAGE - 3 1 claimant is disabled). 20 C.F.R. § 404.1520(b)-(c), 416.920(b)-(c). If all prior steps are 2 satisfied, the Commissioner bears the burden of proof to show that (5) the claimant can perform 3 other work that exists in significant numbers in the national economy, taking into account the 4 claimant’s residual functional capacity (“RFC”), age, education, and work experience. 20 C.F.R. 5 § 404.1520(g), 416.920(g); Tackett, 180 F.3d at 1100. If the Commissioner finds the claimant is 6 unable to perform other work, then the claimant is found disabled and benefits may be awarded. 7 D. Decision Below 8 The ALJ found that: (1) Galloway-Simmons met the insured status requirements of the 9 Social Security Act through June 30, 2016; (2) Galloway-Simmons had not engaged in 10 substantial gainful activity since June 30, 2010, the alleged onset date; (3) Galloway-Simmons 11 had the severe impairments of degenerative disk disease of the spine, osteoarthrosis of the knees, 12 right ankle strain, and obesity; (4) Galloway-Simmons did not have an impairment or 13 combination of impairments that met or medically equaled the severity of one of the listed 14 impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) Galloway-Simmons had 15 sufficient RFC to perform light work as defined in 20 C.F.R. 404, 1567(b); (6) Galloway16 Simmons was capable of performing past relevant work as a senior scanner; and (7) Galloway17 Simmons had not had a disability, as defined in the Social Security Act, from June 30, 2012 18 through the date of issuance of the ALJ’s decision. Dkt. No. 18 at 5. 19 E. Issues on Appeal 20 Whether: (1) the ALJ provided specific and legitimate reasons for rejecting the opinion of 21 Dr. Lisa Oswald, Galloway-Simmons’s treating physician; (2) the ALJ provided clear and 22 convincing reasons to find Galloway-Simmons not credible; and (3) the ALJ properly 23 determined Galloway-Simmons could return to past relevant work. 24 25 26 ORDER DENYING APPEAL AND ADOPTING REPORT AND RECOMMENDATION PAGE - 4 1 II. 2 DISCUSSION A. The ALJ’s Assessment of the Medical Evidence 3 4 Galloway-Simmons asserts that the ALJ improperly discounted the opinion of Dr. 5 Oswald, her treating physician, that Galloway-Simmons could only work 16 to 25 hours per 6 week. Dkt. No. 12 at 10. Galloway-Simmons argues that insufficient weight was given to Dr. 7 Oswald’s opinion as an examining physician, and the ALJ improperly accorded greater weight to 8 9 the opinions of Dr. James Symonds, an examining physician, and Dr. Elizabeth St. Louis, a nonexamining physician. Id. at 12–14. The ALJ rejected Dr. Oswald’s opinion because: (1) Dr. 10 11 12 Oswald did not submit supporting evidence to show that Galloway-Simmons could not work more than part-time; (2) Dr. Oswald’s opinion was based solely on a diagnosis and Galloway- 13 Simmons’s subjective complaints; (3) Dr. Oswald’s findings were not supported by the evidence; 14 and (4) because Dr. Oswald’s findings were inconsistent with the opinion of examining 15 physician Dr. Symonds and Dr. Oswald’s own opinion that Galloway-Simmons “needs to work.” 16 17 AR at 25–29. As a matter of law, more weight is given to a treating physician’s opinion than to that of a 18 19 non-treating physician, because a treating physician has a greater opportunity to know and 20 observe the patient as an individual. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). If 21 an ALJ rejects the opinion of a treating or examining physician, the ALJ must give clear and 22 convincing reasons for doing so absent other contradictory evidence, and must give specific and 23 legitimate reasons if contradictory evidence exists. Reddick v. Chater, 157 F.3d 715, 725 (9th 24 Cir. 1988); Bayliss, 427 F.3d at 1216 (9th Cir. 2005). The ALJ must explain his conclusions and 25 provide substantial supporting evidence. Embrey v. Bowen, 849 F.2d 418, 421–22 (9th Cir. 26 ORDER DENYING APPEAL AND ADOPTING REPORT AND RECOMMENDATION PAGE - 5 1 1988); Reddick, 157 F.3d at 725. An ALJ need not accept the opinion of a treating physician if 2 that opinion is brief, conclusory, and inadequately supported by clinical findings or by the record 3 as a whole. Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 4 The decision of the ALJ to reject Dr. Oswald’s opinion is supported by substantial 5 evidence in the record and is therefore free of legal error. Dr. Oswald provided little objective 6 support or explanation for her opinion that Galloway-Simmons was limited to less than full-time 7 work. AR at 499, 527. For example, the x-rays upon which Dr. Oswald relied in diagnosing 8 Galloway-Simmons with osteoarthritis of the knees were “relatively mild.” AR at 506, 527–30; 9 10 AR at 29. Also, Galloway-Simmons’s self- reports of improvement due to therapy and of her 11 relatively unrestricted ability to perform daily activities (e.g., continuing to work after her 12 alleged disability onset date, caring for her grandchildren, and performing household chores) 13 14 undermine Dr. Oswald’s opinion of Galloway-Simmons’s limited ability to work. AR at 26–29. In addition, Dr. Oswald’s opinion was contradicted by the opinion of Dr. Symonds, another 15 16 examining physician, who indicated that Galloway-Simmons could perform a range of light 17 work activities on a full-time basis. AR at 488–92. The evidence in the record indicates that the 18 ALJ’s rejection of Dr. Oswald’s opinion was supported by clear and convincing evidence. 19 Therefore, the first issue on appeal is insufficient to overturn the decision of the Commissioner. 20 21 B. Plaintiff’s Credibility Galloway-Simmons argues that the ALJ erroneously failed to provide clear and 22 convincing reasons supported by substantial evidence to reject her testimony regarding her 23 24 symptoms. Dkt. No. 12 at 3–10. The ALJ rejected Galloway-Simmons’s testimony because her 25 subjective complaints were not consistent with medical evidence documenting: (1) availability of 26 non-invasive treatment; (2) Galloway-Simmons’s lack of motivation in treatment; (3) ORDER DENYING APPEAL AND ADOPTING REPORT AND RECOMMENDATION PAGE - 6 1 improvement in Galloway-Simmons’s symptoms and functional ability with treatment; and (4) 2 Galloway-Simmons’s daily activities, including working part-time while caring for her 3 grandchildren, maintaining a household, and engaging in a range of social activities. AR at 26– 4 27. 5 6 7 The ALJ is responsible for determining the credibility of claimants. Andrews, 53 F.3d at 1039. A reviewing court may not reevaluate the evidence nor substitute its judgment for that of the Commissioner, and must defer to the Commissioner’s conclusion if multiple rational 8 9 interpretations are possible. Thomas, 278 F.3d at 954. To determine whether to accept a 10 claimant’s subjective symptom testimony, the ALJ must: (1) determine whether there is a 11 medically-determinable impairment that could reasonably be expected to cause the claimant’s 12 symptoms; and (2) evaluate the intensity and persistence of the claimant’s symptoms, 13 14 considering evidence of the claimant’s own testimony. C.F.R. § 404.1529(a)-(b); see Cotton v. Bowen, 799 F.2d 1403; Smolen, 80 F.3d at 1281 n.1. Absent affirmative evidence showing that 15 16 the claimant is malingering, the ALJ must provide clear and convincing reasons for rejecting the 17 claimant’s testimony. Smolen, 80 F.3d at 1281. The ALJ may consider (1) ordinary techniques 18 of credibility evaluation, including prior inconsistent statements concerning the symptoms, (2) 19 unexplained or inadequately explained failure to seek treatment or to follow a prescribed course 20 of treatment, and (3) the claimant’s daily activities. Smolen, 80 F.3d at 1284. The claimant’s 21 22 failure to assert a good reason for failing to seek or failing to follow through with a prescribed course of treatment “[may] cast doubt on the sincerity of the claimant’s pain testimony.” Fair v. 23 24 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). A court may use daily activities to form the basis of 25 an adverse credibility determination if they meet the threshold for transferable work skills or if 26 they contradict the claimant’s other testimony. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). ORDER DENYING APPEAL AND ADOPTING REPORT AND RECOMMENDATION PAGE - 7 1 Even if several of the reasons for discrediting a claimant’s testimony should be discounted, the 2 ALJ’s determination is not rendered invalid as long as that determination is supported by 3 substantial evidence. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 4 The ALJ’s determination that Galloway-Simmons’s symptom testimony was not credible 5 was based on clear and convincing reasons that are supported by the relevant record. The ALJ 6 rejected Galloway-Simmons’s testimony in part because her subjective complaints were 7 inconsistent with medical evidence showing that relatively mild treatment measures improved 8 her condition. AR at 26. This was supplemented by the ALJ’s finding that Galloway-Simmons 9 10 lacked motivation to follow through with even the conservative treatment measures that may 11 have improved her condition. AR at 26, 554. Galloway-Simmons’s daily activities, including 12 her working part-time and performing household chores during the relevant period, were 13 14 inconsistent with her alleged disabling impairments. AR at 26–29. The evidence in the record contains clear and convincing reasons supporting the ALJ’s conclusion that Galloway- 15 16 Simmons’s symptom testimony was not credible. Therefore, the second issue on appeal is 17 insufficient to overturn the decision of the Commissioner. 18 C. The ALJ’s Findings That Galloway-Simmons’s Ability to Perform Past Work 19 Galloway-Simmons asserts that the ALJ erred in determining that she could return to past 20 relevant work due to a lack of substantial evidence. Dkt. No. 12 at 18–19. First, Galloway21 Simmons argues that the ALJ erred in finding that she could perform past work that is precluded 22 by her RFC, such as lifting 30 pounds of weight, because there is no evidence in the record to 23 24 support this finding. Dkt. No. 12 at 19; AR at 30. Galloway-Simmons also argues that the ALJ 25 erred in failing to rely on testimony of a vocational expert. Dkt. No. 12 at 20. The Defendant 26 argues that any error by the ALJ in this determination is harmless because a subset of her past ORDER DENYING APPEAL AND ADOPTING REPORT AND RECOMMENDATION PAGE - 8 1 work (at T-scan) does not require physical or mental abilities in excess of Galloway-Simmons’s 2 RFC, and because the ALJ properly rejected Dr. Oswald’s opinion regarding Galloway3 Simmons’s neck limitations. Dkt. No. 16 at 13–14. The ALJ’s duty is to make factual findings to support his conclusion. Pinto v. Massanari, 4 5 249 F.3d 840, 844–45 (9th Cir. 2001). The claimant must be able to perform (1) the actual 6 functional demands and job duties of a particular past relevant job, and (2) the functional 7 demands and job duties of the occupation as generally required by employers throughout the 8 national economy. Social Security Ruling (“SSR”) 82-61. This must supported by specific 9 10 findings regarding the claimant’s current work activity or medical facts, or the claimant’s RFC 11 and the physical and mental demands of the work performed in the past. SSR 82-62. A claimant 12 may be found not disabled based on a determination that she can perform past relevant work as it 13 was actually performed or as it is generally performed in the national economy. Id.; SSR 96-8p. 14 The ALJ did not err in determining that Galloway-Simmons could return to her past 15 16 relevant work because the work Galloway-Simmons performed at T-scan is not in excess of her 17 RFC. AR at 25, 227. In addition, this Court has already determined that the ALJ did not err in 18 rejecting the medical opinion of Dr. Oswald, and therefore the ALJ did not err by omitting neck19 related limitations from the RFC and declining testimony from a vocational expert regarding the 20 impact of those neck limitations. Based on the present record, the ALJ’s finding that Galloway21 Simmons was capable of performing past relevant work was not in error. Therefore, the third 22 issue on appeal is insufficient to overturn the decision of the Commissioner. 23 24 III. CONCLUSION 25 For the foregoing reasons, the R&R is ADOPTED (Dkt. No. 18) and the Plaintiff’s 26 appeal of the final decision of the Commissioner of the Social Security Administration (Dkt. No. ORDER DENYING APPEAL AND ADOPTING REPORT AND RECOMMENDATION PAGE - 9 1 3) is DENIED. 2 DATED this 9th day of February 2015. 3 4 5 A 6 7 8 John C. Coughenour UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ORDER DENYING APPEAL AND ADOPTING REPORT AND RECOMMENDATION PAGE - 10

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