Buck v. Colvin
Filing
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IT IS ORDERED that Judge Strong's Findings and Recommendations are adopted. IT IS ALSO ORDERED that, 1. Bucks motion for summary judgment, Doc. 11, is DENIED; 2. The Commissioners motion for summary judgment, Doc. 15, is GRANTED; 3. The Clerk shall enter judgment in favor of the defendant, the Commissioner. Signed by Judge Brian Morris on 6/23/2014. (SLL, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
CV 13-55-GF-BMM
WANDA E. BUCK,
Plaintiff,
ORDER ADOPTING FINDINGS
AND RECOMMENDATIONS
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
This action concerns the decision of Defendant Carolyn Colvin, the acting
Commissioner of Social Security (Commissioner), to deny Wanda E. Buck’s
(Buck) application.
FACTUAL BACKGROUND
Buck resides in Great Falls, Montana.
Doc. 1 at 1.
Buck filed an
application for disability in January 2010. Tr. at 130-39. She sought to establish a
period of disability and disability insurance benefits under the Social Security Act.
Id.
Buck alleged that her disability began on December 10, 2009. Id. The
Social Security Administration initially denied Buck’s application on April 19,
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2010, and again denied it upon reconsideration on July 27, 2010. Tr. at 82, 90-91.
Buck requested an administrative hearing. Tr. at 30-79.
The Administrative Law Judge (ALJ) affirmed the Commissioner’s denial of
Buck’s application on January 25, 2012, after a hearing. Tr. at 18-26. Buck
appealed to the Social Security Administration Appeals Council (SSAAC). Tr. at
1-3. The SSAAC denied a review in May 2013. Id.
Buck sought judicial review of the ALJ’s and SSAC’s decisions. Buck
contended that neither decision accorded with the purpose and intent of the Social
Security Act, that neither decision accorded with the law, and that neither decision
is supported by the evidence in the record. Doc. 1 at 2. United States Magistrate
Judge Keith Strong entered his findings and recommendation on May 15, 2014.
Doc. 21.
Judge Strong recommended that the Court deny Buck’s motion for summary
judgment, Doc. 11, and grant the Commissioner’s motion for summary judgment,
Doc. 15. Buck objected to Judge Strong’s findings and recommendations. Doc.
22. Title 28, Section 636(b)(1) of the United States Code entitles an objecting
party to de novo review of the findings and recommendations to which they object.
The Court will review for clear error all other findings and recommendations.
McDonnell Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d 1309, 1313
(9th Cir. 1981).
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JURISDICTION
Great Falls, Montana is in Cascade County and lies within the Great Falls
Division of the District of Montana. Buck correctly brought suit in this District.
42 U.S.C. § 405(g).
ANALYSIS
The Court adopts by reference the factual background as enumerated in
Judge Strong’s findings and recommendations.
Buck
makes
two
objections
to
Judge
Strong’s
findings
and
recommendations. Buck objects first to Judge Strong’s analysis of “boilerplate
language” used by the ALJ in his decision. Doc. 22 at 9. Buck also objects to the
standard of review that Judge Strong applied to the ALJ’s determinations. Id. at 2.
I.
Boilerplate Language
Buck contends that this case should be remanded because the ALJ included
the following language in his decision:
After careful consideration of the evidence, the
undersigned finds that the claimant’s medically
determinable impairments could reasonably be expected
to cause the alleged symptoms; however, the claimant’s
statement concerning the intensity, persistence and
limiting effect of these symptoms are not credible to the
extent that they are inconsistent with the above residual
functional capacity assessment.
Doc. 12 at 6 (citing Tr. at 23).
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Buck provides no Ninth Circuit authority to support her conclusion that
inclusion of this boilerplate language automatically renders invalid an ALJ’s
decision. Buck relies on the Seventh Circuit’s decision in Bjornson v. Astrue, 671
F.3d 640, 645-646 (7th Cir. 2012), in which the Court dismissed this boilerplate
language as meaningless. Id. The Seventh Circuit did not determine, however,
that the ALJ’s inclusion of this language necessitates remand. Id.
The ALJ’s analysis would be inadequate if he only relied upon this
boilerplate language. The ALJ’s inclusion of this language as part of a longer
analysis, however, does not render invalid the ALJ’s decision.
II.
Standard of Review
Judge Strong recognized that the ALJ provided “specific and legitimate”
reasons for discrediting Buck rather than “clear and convincing” reasons. Doc. 21
at 11. Judge Strong determined that the ALJ only needed to supply “specific and
legitimate” reasons pursuant to the Ninth Circuit’s en banc decision in Bunnell v.
Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991), Doc. 21 at 14. Buck argues that
both Bunnell’s “specific and legitimate” standard and subsequent Ninth Circuit
decisions that articulate a “clear and convincing” standard should apply. Doc. 22
at 4-6.
The Ninth Circuit addressed, en banc, in Bunnell, 947 F.2d at 345-46, the
standard that the ALJ should apply when evaluating a claimant’s testimony. The
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ALJ must provide reasons “properly supported by the record [and] must be
sufficiently specific to allow a reviewing court to conclude the adjudicator rejected
the claimant’s testimony on permissible grounds and did not arbitrarily discredit a
claimant’s testimony.”
(citation omitted).
Some subsequent Ninth Circuit
decisions admittedly have announced that the ALJ must provide “clear and
convincing” reasons when the ALJ determines that a claimant lacks credibility.
See e.g., Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); Smolen v. Chater, 80
F.3d 1273, 1281 (9th Cir. 1996).
The en banc decision controls when a Ninth Circuit decision decided en
banc conflicts with a panel decision. United States v. Camper, 66 F.3d 229, 232
(9th Cir. 1995).
Bunnell’s standard does not conflict directly, however, with
subsequent Ninth Circuit decisions cited by Buck. Bunnell’s “properly supported”
and “sufficiently specific” standard comports with the “clear and convincing”
standard of the subsequent Ninth Circuit decisions. Further, the ALJ’s reasons to
deem Buck’s testimony not credible satisfy both the “specific and legitimate”
standard and the “clear and convincing” standard.
The ALJ provided three reasons to explain why he discounted Buck’s
credibility: (1) Buck’s interest in returning to work; (2) Buck’s daily activities;
and (3) Buck’s failure to tell her doctor that headaches forced her to lie down two
to three days a week. Tr. at 23. Buck underwent neck surgery in October 2009.
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Tr. 334-35. The ALJ explained that Buck’s pain levels had stabilized a few
months after her surgery when she expressed an interest in returning to work. Tr.
at 23.
The record supports the ALJ’s assessment. Buck reported to Dr. Patrick E.
Galvas (Galvas) in May 2010, that her pain had been stable and that she wanted to
work part time. Tr. at 410. Dr. Galvas released her to work part time with certain
restrictions. Tr. at 409. Buck contacted a mental health center about a part time
position in the spring of 2010. Tr. at 409; 59.
Buck’s willingness to resume working indicates that her pain had not been
so debilitating as to prevent her from continuing to work. See Bray v. Comm’r of
Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009) (finding that ALJ properly
had discounted claimant’s credibility when the claimant had worked and sought
other work since claimant’s disability onset date). The ALJ assesses whether a
claimant is capable of engaging in substantial, gainful employment. Schneider v.
Commr. of Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000) (citing 42 U.S.C.
§1382c(a)(3)(A)-(B)). The fact that Buck had been seeking work after her alleged
onset date of December 10, 2009, indicates that she was capable of performing
work in some capacity. The ALJ properly considered Buck’s efforts to obtain
employment when considering her credibility.
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The ALJ also can consider the nature of a claimant’s daily activities when
assessing the claimant’s credibility. Smolen, 80 F.3d at 1284. The ALJ noted that
Buck had engaged in daily activities that included performing household chores,
completing puzzles, visiting family, and going to church. Tr. at 23. The ALJ
emphasized that Buck had performed these activities despite her claim that she had
difficulty using and moving her neck. Id.
A claimant need not be “utterly incapacitated” in order to have a disability.
Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). A person can experience daily
pain and still engage in certain daily activities. Id. The ALJ did not question
whether Buck experienced pain. Tr. at 23. The ALJ questioned, though, whether
she experienced pain as debilitating and severe as she had claimed. Id.
Buck testified that her neck hurt when she turned it. Tr. at 43-44. She
claimed that this pain forced her to hold her neck in a neutral position. Id. Buck’s
performance of chores, her completion of puzzles, her visits to family, and her
going to church all involve bending and moving her neck. The ALJ properly noted
that Buck’s performance of these activities undermined her testimony.
Finally, Buck testified she suffered headaches two to three days a week that
were so severe that she had to lie down. Tr. at 23. The ALJ focused on Buck’s
failure to inform her doctor at the time that these headaches incapacitated her for
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two to three days a week. Id. The ALJ determined that this omission further
undermined Buck’s credibility. Id.
Buck’s medical records do not state specifically that her severe headaches
forced her to lie down two to three times a week. Her medical records do reflect,
however, that she suffered from severe headaches. See, e.g., Tr. at 425. The ALJ
provided an insufficient explanation for why this omission undermined Buck’s
credibility.
A claimant’s production of medical evidence of an underlying impairment
that reasonably likely would cause the alleged pain generally proves sufficient.
Bunnell, 947 F.2d at 347-48. The ALJ cannot discredit a claimant’s allegations
based solely on the fact that objective medical evidence fails to support the degree
of pain alleged by the claimant. Id. The ALJ’s error proves harmless, however,
because the ALJ provided other reasons to explain sufficiently why he questioned
Buck’s credibility. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197
(9th Cir.2004) (even if the record does not support one of the ALJ's stated reasons
for disbelieving a claimant's testimony, the error is harmless as long as the ALJ
stated other valid reasons).
The Court’s review of the entire record demonstrates that the ALJ provided
sufficient “specific and legitimate” and “clear and convincing” reasons for why he
did not find Buck credible. The ALJ properly supported his reasons with sufficient
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specificity to allow the Court to conclude that he did not arbitrarily discredit
Buck’s testimony. Bunnell, 947 F.2d at 345-46. The ALJ properly evaluated
Buck’s residual functional capacity.
III.
Findings and Recommendations
The Court reviews for clear error the remainder of Judge Strong’s findings
and recommendations. McDonnell, 656 F.2d at 1313. Clear error exists if the
Court’s review leaves it with a “definite and firm conviction that a mistake has
been committed.” United States v. Syrax, 235 F.3d 422, 427 (9th Cir. 2000). No
clear error exists in the portions of Judge Strong’s findings or recommendations to
which Buck did not object.
CONCLUSION
Judge Strong correctly noted this Court's limited review of a decision of the
Commissioner of Social Security. Doc. 21 at 3. Judge Strong also addressed the
five-step sequential evaluation process that the Commissioner uses to determine
whether a claimant qualifies as disabled. Id. at 4-5. Judge Strong concluded that
the ALJ based his decision on substantial evidence and that the decision was free
of legal error. Id. at 17-18. This Court agrees. Therefore,
IT IS HEREBY ORDERED,
1. Buck’s motion for summary judgment, Doc. 11, is DENIED;
2. The Commissioner’s motion for summary judgment, Doc. 15, is
GRANTED;
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3. The Clerk shall enter judgment in favor of the defendant, the
Commissioner.
DATED this 23rd day of June, 2014.
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