Granados v. Colvin

Filing 19

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 18 ) and denying Plaintiff's Motion for Summary Judgment (ECF No. 13 ). CLOSE FILE. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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9 SARA N. GRANADOS,
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No. 2:14-CV-0195-JTR

Plaintiff,

ORDER GRANTING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

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v.

13 CAROLYN W. COLVIN,
14 Commissioner of Social Security,
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Defendant.

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BEFORE THE COURT are cross-Motions for Summary Judgment. ECF

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No. 13, 18. Attorney Lora Lee Stover represents Sara N. Granados (Plaintiff);

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Special Assistant United States Attorney Terrye E. Shea represents the

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Commissioner of Social Security (Defendant). The parties have consented to

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proceed before a magistrate judge. ECF No. 6. After reviewing the administrative

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record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for

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Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment.

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JURISDICTION
Plaintiff filed applications for a period of disability, Disability Insurance

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Benefits and Supplemental Security Income (SSI) on December 15, 2010, alleging

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disability since March 31, 2007, due to diabetes, high cholesterol, high blood

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pressure, macular edema and mental disorders. Tr. 291. The applications were

ORDER GRANTING DEFENDANT’S MOTION . . . - 1

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denied initially and upon reconsideration. Administrative Law Judge (ALJ) R. J.

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Payne held a hearing on March 20, 2013, Tr. 48-97, and issued an unfavorable

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decision on April 4, 2013, Tr. 24-40. The Appeals Council denied review on May

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23, 2014. Tr. 1-6. The ALJ’s April 2013 decision became the final decision of the

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Commissioner, which is appealable to the district court pursuant to 42 U.S.C. §

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405(g). Plaintiff filed this action for judicial review on June 17, 2014. ECF No. 1.

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STATEMENT OF FACTS

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The facts of the case are set forth in the administrative hearing transcript, the
ALJ’s decision, and the briefs of the parties. They are only briefly summarized
here.

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Plaintiff was born in El Salvador on January 25, 1960, and was 47 years old

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on the March 31, 2007, alleged onset date. Tr. 287. Plaintiff graduated from high

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school in the United States and last worked in June 2008. Tr. 75, 291-292.

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Plaintiff reported she stopped working when her documents were stolen, and she

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has not worked since that time. Tr. 291. As noted above, Plaintiff alleges

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disability due to diabetes, high cholesterol, high blood pressure, macular edema

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and mental disorders. Tr. 291. Plaintiff’s function report indicates “mental

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disorder, medication and [poor] vision” limit her ability to work. Tr. 298. At the

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administrative hearing, Plaintiff testified she has emotional problems and is

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depressed. Tr. 76. She also described her main physical problem as right shoulder

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pain. Tr. 81, 90.

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Alexander B. White, M.D., an internal medicine physician, testified as a

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medical expert at the administrative hearing. Tr. 52-60. He stated Plaintiff has

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type 2 diabetes and a history of back aches, problems with her left shoulder, a right

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clavicle fracture, and a left knee patella fracture. Tr. 53-56. He also noted the

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record reflected Plaintiff had macular edema and depression. Tr. 56.

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Margaret Moore, Ph.D., also testified as a medical expert at the
administrative hearing. Tr. 60-72. Dr. Moore indicated that in 2010 Plaintiff’s

ORDER GRANTING DEFENDANT’S MOTION . . . - 2

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perceived limitations and complaints were very minimal and then “we start to see a

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much more significant complaint and sometimes surprisingly so.” Tr. 61. Dr.

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Moore stated the record was not clear as to why that happened, but noted “a

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number of indicators that there may well be some symptom exaggeration . . . and

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some less than ideal effort presented for these various evaluations.” Tr. 61. Dr.

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Moore testified the record reflected Plaintiff was very organized, well prepared

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with her documents and working toward some reasonable goals in 2010, but then a

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change occurred and Plaintiff adopted “a disability mindset” with a stated goal of

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receiving SSI. Tr. 62.

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Dr. Moore also discussed the psychotic features noted in the record. Tr. 62-

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63. Dr. Moore mentioned the possibility of cultural issues at play and opined that

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the record did not reflect psychosis. Tr. 63. She testified that Plaintiff had a

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“somewhat dependent personality style with some mixed depression and anxiety,

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and . . . some motivational issues.” Tr. 64. Dr. Moore opined that Plaintiff, if

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motivated, would be able to maintain full-time work on a regular and continuous

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basis in a competitive work environment. Tr. 67.

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Dr. Moore further commented about the potential effect of Plaintiff’s

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language skills on her examination test scores in the record. Tr. 69-70. She

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indicated that while English is not Plaintiff’s first language, the records dating back

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to 1996 reflect that Plaintiff finished school, has been in the United States for a

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long time, and has been able to negotiate the community. Tr. 69. It appears Dr.

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Moore found the reliability of Plaintiff’s psychological examinations was not

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undermined by her English language abilities. Tr. 69-71.

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STANDARD OF REVIEW
The ALJ is responsible for determining credibility, resolving conflicts in

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medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,

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1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo,

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deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d

ORDER GRANTING DEFENDANT’S MOTION . . . - 3

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1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is

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not supported by substantial evidence or if it is based on legal error. Tackett v.

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Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as

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being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put

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another way, substantial evidence is such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion. Richardson v. Perales, 402

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U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational

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interpretation, the court may not substitute its judgment for that of the ALJ.

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Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169

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F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by substantial

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evidence will still be set aside if the proper legal standards were not applied in

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weighing the evidence and making the decision. Brawner v. Secretary of Health

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and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence

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supports the administrative findings, or if conflicting evidence exists that will

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support a finding of either disability or non-disability, the ALJ’s determination is

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conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).

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SEQUENTIAL EVALUATION PROCESS
The Commissioner has established a five-step sequential evaluation process

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for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a),

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416.920(a); see, Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one

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through four, the burden of proof rests upon the claimant to establish a prima facie

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case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This

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burden is met once a claimant establishes that a physical or mental impairment

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prevents him from engaging in his previous occupation. 20 C.F.R. §§

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404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the

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ALJ proceeds to step five, and the burden shifts to the Commissioner to show that

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(1) the claimant can make an adjustment to other work; and (2) specific jobs exist

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in the national economy which claimant can perform. Batson v. Commissioner of

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Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make

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an adjustment to other work in the national economy, a finding of “disabled” is

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made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v).

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ADMINISTRATIVE DECISION
On April 4, 2013, the ALJ issued a decision finding Plaintiff was not

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disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff

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had not engaged in substantial gainful activity since March 31, 2007, the alleged

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onset date. Tr. 26. At step two, the ALJ determined Plaintiff had the following

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severe impairments: diabetes mellitus, type 2; right shoulder osteoarthritis of the

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acromioclavicular (AC) joint; status post left knee patella fracture; mild macular

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edema; depression, not otherwise specified (NOS); adjustment disorder; dysthymic

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disorder; and personality disorder, NOS. Tr. 26. At step three, the ALJ found

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Plaintiff did not have an impairment or combination of impairments that met or

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medically equaled the severity of one of the listed impairments. Tr. 27.

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The ALJ assessed Plaintiff’s residual function capacity (RFC) and

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determined she could perform a range of light exertion level work (lift and carry 20

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pounds occasionally and 10 pounds frequently and stand and/or walk and sit for 6

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hours total in an 8-hour workday), except that she can only frequently climb ramps

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or stairs; she can never climb ladders, ropes, or scaffolds; she can only

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occasionally crawl and reach overhead with the right shoulder; her near acuity, far

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acuity, depth perception, accommodation, color vision and field of vision

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bilaterally is limited to frequent; she must avoid concentrated exposure to extreme

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heat, extreme cold, humidity, and hazards (machinery, heights, etc.); and she is

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mildly to moderately limited in working in coordination with or proximity to

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others without being distracted by them, in responding appropriately to changes in

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the work setting, and in setting realistic goals or making plans independently of

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others. Tr. 29. Given this RFC, the ALJ concluded at step four that Plaintiff was

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able to perform her past relevant work as an apartment manager as the job was

ORDER GRANTING DEFENDANT’S MOTION . . . - 5

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actually performed. Tr. 40. Accordingly, the ALJ found Plaintiff was not under a

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disability from March 31, 2007, the alleged onset date, through the date of the

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ALJ’s decision, April 4, 2013. Tr. 40.

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ISSUES
The question presented is whether substantial evidence exists to support the

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ALJ’s decision denying benefits and, if so, whether that decision is based on

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proper legal standards.

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Plaintiff’s opening brief mentions the following three issues for review:
(1) the ALJ erred in assessing Plaintiff’s RFC; (2) the ALJ erred in finding

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Plaintiff was capable of performing past work as an apartment manager; and

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(3) the evidence of record does not support the decision that Plaintiff is not

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disabled. ECF No. 13 at 8. However, the three-page argument section of

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Plaintiff’s opening brief fails to specifically address how the ALJ erred in

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assessing Plaintiff’s RFC (issue 1) or how the weight of the evidence of record

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fails to support the ALJ’s ultimate disability determination (issue 3). ECF No. 13

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at 10-12. Plaintiff’s only supported argument in her opening brief is her assertion

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that the ALJ’s RFC assessment is incompatible with the capacities required of an

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individual to perform work as an apartment manager. ECF No. 13 at 10-12; see

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Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994) (“We review only issues

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which are argued specifically and distinctly in a party’s opening brief. We will not

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manufacture arguments for an appellant, and a bare assertion does not preserve a

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claim.” (citations omitted)); Brownfield v. City of Yakima, 612 F.3d 1140, 1149

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(9th Cir. 2010) (refusing to address claims that were only “argue[d] in passing”);

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Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008)

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(“issues not argued with specificity in briefing will not be addressed”).

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The only issue argued with specificity in Plaintiff’s opening brief is the

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assertion that the ALJ erred at step four of the sequential evaluation process

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because the RFC assessment by the ALJ was incompatible with the capacities

ORDER GRANTING DEFENDANT’S MOTION . . . - 6

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required of an individual to be employed as an apartment manager. ECF No. 13 at

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10. This challenge of the ALJ’s step four determination is the only issue properly

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before the Court in this case.

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DISCUSSION
A.

Residual Functional Capacity Determination

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As indicated above, the ALJ found that Plaintiff retained the residual

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functional capacity to perform light exertion level work with certain restrictions.

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Tr. 29. Residual functional capacity is defined as “the most you can still do despite

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your limitations.” 20 C.F.R. § 404.1545(a)(1). The ALJ must base his RFC

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determination on the entire record, including medical records, physicians’

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opinions, and the claimant’s description of her limitations.
Plaintiff’s Credibility

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1.

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The ALJ determined that Plaintiff’s medically determinable impairments

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could reasonably be expected to cause her alleged symptoms; however, her

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statements concerning the intensity, persistence and limiting effects of these

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symptoms were not entirely credible. Tr. 36. Plaintiff has not challenged this

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adverse credibility determination.1

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The ALJ indicated the following reasons for why he found Plaintiff was not

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entirely credible: the weight of the evidence fails to document clinical

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abnormalities that could reasonably be expected to have produced symptoms or

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limitations consistent with Plaintiff’s allegations; no doctor has stated Plaintiff

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could not work at the light exertion level; the record reveals medications have been

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While Plaintiff avers in one sentence of the argument section of her opening

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brief that the ALJ erred by “ignor[ing] the effects of pain from her physical

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impairments,” ECF No. 13 at 11, the ALJ did not ignore evidence of Plaintiff’s

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alleged pain, he merely found it was not credible, Tr. 39. Plaintiff does not allege

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that the ALJ’s adverse credibility determination is erroneous.

ORDER GRANTING DEFENDANT’S MOTION . . . - 7

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relatively effective in controlling Plaintiff’s symptoms; there are indications

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Plaintiff has not been entirely compliant with recommended treatment; evidence

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reflects Plaintiff’s exaggeration; there are many inconsistencies between Plaintiff’s

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statements and the objective medical evidence; there is evidence of Plaintiff’s

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motivation for secondary gain; there is evidence Plaintiff stopped working for

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reasons not related to her allegedly disabling conditions; Plaintiff described daily

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activities that are not limited to the extent one would expect given her complaints

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of disabling symptoms and limitations; and the objective medical findings do not

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support Plaintiff’s allegations/self-reports of functioning. Tr. 36-39.

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The rationale provided by the ALJ for finding Plaintiff not entirely credible

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is fully supported by the evidence of record, and the ALJ’s determination that

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Plaintiff’s statements were not fully credible is uncontested by Plaintiff. See

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Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003)

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(issues not specifically and distinctly contested in a party’s opening brief are

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considered waived). The ALJ’s finding that Plaintiff lacks credibility is a

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significant component of the ALJ’s conclusion that she was not disabled under the

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Social Security Act.

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2.

Medical Evidence

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Although the first sentence of the argument section of Plaintiff’s opening

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brief asserts “the evidence from the providers and the opinions expressed by Dr.

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Greene, Dr. Arnold and Dr. Moore have allowed her to meet her burden at Step

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Four,” ECF No. 13 at 10, Plaintiff does not explain how the ALJ erred with respect

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to his assessment of these medical professionals. Plaintiff additionally fails to

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accompany this assertion with an analysis or discussion of applicable law and

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facts. As previously discussed, issues not argued with specificity in an opening

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brief will not be addressed. Carmickle, 533 F.3d at 1161 n.2. The Court thus finds

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that Plaintiff has waived any argument regarding the ALJ’s assessment of the

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medical evidence of record in this case.

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In any event, the ALJ considered and addressed the evidence of record from

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Community Health Association of Spokane (CHAS), William Greene, Ph.D.,

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Jason H. Jones, M.D., John Arnold, Ph.D., Brian Mitchell, M.D., Spokane Mental

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Health, Frontier Behavioral Health, medical expert White, and medical expert

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Moore; properly evaluated this evidence; and provided adequate rationale,

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supported by substantial evidence, for the weight accorded to each medical

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professional. Tr. 30-39. The Court finds the ALJ did not err in his assessment of

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the medical evidence of record.
The ALJ’s RFC determination is supported by substantial evidence and free

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of error.

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B.

Step Four Determination
Plaintiff’s opening brief contests the ALJ’s determination at step four of the

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sequential evaluation process. Plaintiff, citing the Dictionary of Occupational

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Titles (DOT), argues that, given her RFC, she is not capable of performing her past

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relevant work as an apartment manager as the position is generally performed.

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ECF No. 13 at 10-12.

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“At Step Four, claimants have the burden of showing that they can no longer

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perform their past relevant work.” Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir.

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2001); Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). “To determine

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whether a claimant has the [RFC] to perform h[er] past relevant work, the [ALJ]

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must ascertain the demands of the claimant’s former work and then compare the

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demands with h[er] present capacity.” Villa v. Heckler, 797 F.2d 794, 797-798

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(9th Cir. 1986); Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990). A

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claimant is not disabled under the Social Security Act if she can perform (1) a

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specific prior job as “actually performed”; or (2) the same kind of work as it is

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“generally performed” in the national economy. Pinto, 249 F.3d at 845 (citing

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Social Security Ruling (SSR) 82-612). A claimant’s ability to do either is

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sufficient to deny the claim at step four, and the ALJ is not required to address

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both. Pinto, 249 F.3d at 845. A claimant’s testimony and/or a properly completed

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vocational report are appropriate sources for defining past work as actually

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performed. Pinto, 249 F.3d at 845; SSR 82-41; SSR 82-61.

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The “Work History Report” Plaintiff completed as part of her application for

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benefits indicated her apartment manager job consisted of supervising, renting

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apartments, showing apartments, reporting repairs, cleaning apartments when

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vacant, watering plants and vacuuming. Tr. 314. She indicated she was the lead

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worker and supervised two employees, but she was not involved with hiring and

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firing decisions. Tr. 314. The job required lifting no more than 10 pounds,

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standing for 6 hours, walking for 6 hours, and sitting for 2 hours. Tr. 314. At the

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administrative hearing, Plaintiff indicated her apartment manager job consisted of

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taking applications for apartments and showing the apartments to potential tenants.

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Tr. 79-81. She testified she would help tenant applicants by giving them

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applications for the apartment, which they would fill out and return to her. Tr. 80.

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She would then give the applications to the owners who were responsible for

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interviewing the applicants and finalizing the process. Tr. 80. Nothing was

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Although they do not carry the “force of law,” Social Security Rulings are

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binding on ALJs. See 20 C.F.R. § 402.35(b)(1); Bray v. Commissioner of Social

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Security Administration, 554 F.3d 1219, 1224 (9th Cir. 2009). Such rulings

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“reflect the official interpretation of the [Social Security Administration] and are

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entitled to some deference as long as they are consistent with the Social Security

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Act and regulations.” Molina v. Astrue, 674 F.3d 1104, 1113 n.5 (9th Cir. 2012)

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(citations and internal quotation marks omitted); see also Heckler v. Edwards, 465

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U.S. 870, 873 n.3 (1984) (discussing weight and function of Social Security

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Rulings).

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introduced into the record to contradict Plaintiff’s description of her past relevant

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work as an apartment manager, and the ALJ did not make any adverse findings

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regarding Plaintiff’s description of this past work.
The ALJ compared Plaintiff’s RFC with the physical and mental demands of

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Plaintiff’s past relevant work as an apartment manager as it was “actually

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performed” and concluded Plaintiff was capable of performing this past relevant

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work. Tr. 40. This determination is fully supported. Since the ALJ’s conclusion

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regarding Plaintiff’s previous work as “actually performed” is supported by

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substantial evidence in the record, the Court need not address Plaintiff’s argument

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regarding the DOT, which relates to the determination of how a job is generally

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performed in the national economy.3 See SSR 82-61 (“The [DOT] descriptions can

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be relied upon -- for jobs that are listed in the DOT -- to define the job as it is

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usually performed in the national economy.”).

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Based on the foregoing, the ALJ did not err at step four of the sequential

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evaluation process by finding Plaintiff, given her RFC, could perform her past

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relevant work as an apartment manager as she actually performed the job. See

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Pinto, 249 F.3d at 845; SSR 82-61.

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C.

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Plaintiff’s English Language Skills
Without citing relevant law or facts, one sentence in the argument section of

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Plaintiff’s opening brief asserts “the ALJ failed to address how Plaintiff’s limited

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knowledge of the English language affects employability.” ECF No. 13 at 11.

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The Ninth Circuit has recognized that a person’s ability to communicate

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must be considered when evaluating whether a claimant can perform past relevant

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work. Pinto, 249 F.3d at 846 (stating “[t]he ability to communicate is an important

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skill to be considered when determining what jobs are available to a claimant.

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Indeed, the ALJ did not make any conclusions regarding Plaintiff’s past

relevant work as generally performed in the national economy.

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Illiteracy seriously impacts an individual’s ability to perform work-related

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functions, such as understanding and following instructions, communicating in the

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workplace, and responding appropriately to supervision.”). In Pinto, the Ninth

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Circuit declined to reach the question of whether language skills may properly be

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considered at step four of the disability evaluation process. See Pinto, 249 F.3d at

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846 n.5 (citing conflicting authority). However, because the ALJ in Pinto

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acknowledged the plaintiff’s illiteracy but failed to take the next step in the

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analysis, i.e., to actually address “the impact of [the plaintiff’s] illiteracy” on her

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ability to perform her past relevant work, the court of appeals remanded the case

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for further consideration. Id. at 846 n.5, 847.

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Unlike Pinto, the ALJ in this case, consistent with the evidence of record,

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did not find that Plaintiff was illiterate. See, e.g., Esquivias v. Astrue, 2012 WL

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2458116, at *8 (C.D. Cal. 2012) (holding that “because the ALJ’s RFC assessment

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of plaintiff did not include illiteracy, the ALJ was not required to consider

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illiteracy at step four of the disability determination.” (citing Pinto, 249 F.3d at

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847)). Dr. Moore testified at the administrative hearing that while English is not

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Plaintiff’s first language, the records dating back to 1996 show that Plaintiff

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finished school, has been in the United States for a long time, and has been able to

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negotiate the community. Tr. 69. The ALJ noted, and the record reflects, that

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Plaintiff completed high school in the United States and had also passed a course

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for naturalization in the United States. Tr. 31-32. Although a language barrier is

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noted throughout the record, Dr. Greene indicated Plaintiff was able to read the

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PAI with minimal help which demonstrates she is able to understand and read

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simple instructions in English. Tr. 38-39. Moreover, at the administrative hearing,

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a Spanish language interpreter was available, but Plaintiff did not rely on the

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interpreter to translate nearly all of the questions asked and was able to respond to

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the questions in English. Tr. 38.

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ORDER GRANTING DEFENDANT’S MOTION . . . - 12

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The ALJ did not ignore evidence regarding Plaintiff’s ability to

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communicate in English; he merely determined the record did not support a finding

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that Plaintiff’s English language skills had an impact on her ability to perform her

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past relevant work as an apartment manager as she had actually performed that job.

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The ALJ did not err in this regard.

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CONCLUSION

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Having reviewed the record and the ALJ’s findings, the Court finds the

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ALJ’s decision is supported by substantial evidence and free of legal error.

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Accordingly, IT IS ORDERED:

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1.

Defendant’s Motion for Summary Judgment, ECF No. 18, is

GRANTED.
Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED.

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2.

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The District Court Executive is directed to file this Order and provide a copy

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to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant

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and the file shall be CLOSED.

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DATED March 3, 2015.

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_____________________________________
JOHN T. RODGERS
UNITED STATES MAGISTRATE JUDGE

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ORDER GRANTING DEFENDANT’S MOTION . . . - 13