Bedeski v. Colvin

Filing 22

ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 15 is DENIED. Defendants Motion for Summary Judgment ECF No. 20 is GRANTED. The file is CLOSED. Signed by Chief Judge Thomas O. Rice. (LLH, Courtroom Deputy)

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1 2 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 EZRA LAWRENCE BEDESKI, NO: 2:16-CV-0163-TOR Plaintiff, 8 v. 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment (ECF Nos. 15; 20). This matter was submitted for consideration without 15 oral argument. The Court has reviewed the administrative record and the parties’ 16 completed briefing and is fully informed. For the reasons discussed below, the 17 Court GRANTS Defendant’s motion and DENIES Plaintiff’s motion. 18 // 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 1 2 3 4 5 JURISDICTION The Court has jurisdiction over this case pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3). STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 6 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 7 limited: the Commissioner’s decision will be disturbed “only if it is not supported 8 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 9 1158-59 (9th Cir. 2012) (citing 42 U.S.C. § 405(g)). “Substantial evidence” means 10 relevant evidence that “a reasonable mind might accept as adequate to support a 11 conclusion.” Id. at 1159 (quotation and citation omitted). Stated differently, 12 substantial evidence equates to “more than a mere scintilla[,] but less than a 13 preponderance.” Id. (quotation and citation omitted). In determining whether this 14 standard has been satisfied, a reviewing court must consider the entire record as a 15 whole rather than searching for supporting evidence in isolation. Id. 16 In reviewing a denial of benefits, a district court may not substitute its 17 judgment for that of the Commissioner. If the evidence in the record “is 18 susceptible to more than one rational interpretation, [the court] must uphold the 19 ALJ’s findings if they are supported by inferences reasonably drawn from the 20 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 2 Id. at 1111. An error is harmless “where it is inconsequential to the [ALJ’s] 3 ultimate nondisability determination.” Id. at 1115 (quotation and citation omitted). 4 The party appealing the ALJ’s decision generally bears the burden of establishing 5 that it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). 6 FIVE-STEP SEQUENTIAL EVALUATION PROCESS 7 A claimant must satisfy two conditions to be considered “disabled” within 8 the meaning of the Social Security Act. First, the claimant must be “unable to 9 engage in any substantial gainful activity by reason of any medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of not less than twelve 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 13 impairment must be “of such severity that he is not only unable to do his previous 14 work[,] but cannot, considering his age, education, and work experience, engage in 15 any other kind of substantial gainful work which exists in the national economy.” 16 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). 17 The Commissioner has established a five-step sequential analysis to 18 determine whether a claimant satisfies the above criteria. See 20 C.F.R. §§ 19 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 20 considers the claimant’s work activity. 20 C.F.R. §§ 404.1520(a)(4)(i), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 416.920(a)(4)(i). If the claimant is engaged in “substantial gainful activity,” the 2 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 3 404.1520(b), 416.920(b). 4 If the claimant is not engaged in substantial gainful activities, the analysis 5 proceeds to step two. At this step, the Commissioner considers the severity of the 6 claimant’s impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 7 claimant suffers from “any impairment or combination of impairments which 8 significantly limits [his or her] physical or mental ability to do basic work 9 activities,” the analysis proceeds to step three. 20 C.F.R. §§ 404.1520(c), 10 416.920(c). If the claimant’s impairment does not satisfy this severity threshold, 11 however, the Commissioner must find that the claimant is not disabled. Id. 12 At step three, the Commissioner compares the claimant’s impairment to 13 several impairments recognized by the Commissioner to be so severe as to 14 preclude a person from engaging in substantial gainful activity. 20 C.F.R. §§ 15 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe as or more 16 severe than one of the enumerated impairments, the Commissioner must find the 17 claimant disabled and award benefits. 20 C.F.R. §§ 404.1520(d), 416.920(d). 18 If the severity of the claimant’s impairment does meet or exceed the severity 19 of the enumerated impairments, the Commissioner must pause to assess the 20 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 defined generally as the claimant’s ability to perform physical and mental work 2 activities on a sustained basis despite his or her limitations (20 C.F.R. §§ 3 404.1545(a)(1), 416.945(a)(1)), is relevant to both the fourth and fifth steps of the 4 analysis. 5 At step four, the Commissioner considers whether, in view of the claimant’s 6 RFC, the claimant is capable of performing work that he or she has performed in 7 the past (“past relevant work”). 20 C.F.R. §§ 404.1520(a)(4)(iv), 8 416.920(a)(4)(iv). If the claimant is capable of performing past relevant work, the 9 Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 10 404.1520(f), 416.920(f). If the claimant is incapable of performing such work, the 11 analysis proceeds to step five. 12 At step five, the Commissioner considers whether, in view of the claimant’s 13 RFC, the claimant is capable of performing other work in the national economy. 14 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, 15 the Commissioner must also consider vocational factors such as the claimant’s age, 16 education and work experience. Id. If the claimant is capable of adjusting to other 17 work, the Commissioner must find that the claimant is not disabled. 20 C.F.R. §§ 18 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 19 work, the analysis concludes with a finding that the claimant is disabled and is 20 therefore entitled to benefits. Id. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 The claimant bears the burden of proof at steps one through four above. 2 Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). If the 3 analysis proceeds to step five, the burden shifts to the Commissioner to establish 4 that (1) the claimant is capable of performing other work; and (2) such work 5 “exists in significant numbers in the national economy.” 20 C.F.R. §§ 6 404.1560(c); 416.960(c)(2); Bray, 554 F.3d at 1222. 7 ALJ’S FINDINGS 8 Plaintiff filed applications for disability insurance benefits and supplemental 9 security income disability benefits on October 12, 2012, alleging a disability onset 10 date of October 12, 2007, but the Administrative Law Judge found a past denial of 11 benefits only allowed for consideration of an onset date of December 5, 2009. Tr. 12 11. These applications were denied initially and upon reconsideration, and 13 Plaintiff requested a hearing. Tr. 11. A hearing was held before an ALJ on 14 October 1, 2014. Tr. 11. The ALJ rendered a decision denying Plaintiff benefits 15 on November 14, 2014. Tr. 28. 16 The ALJ found that Plaintiff met the insured status requirements of Title II 17 of the Social Security Act through September 30, 2011. Tr. 14. At step one, the 18 ALJ found that Plaintiff had not engaged in substantial gainful activity since 19 December 5, 2009, the relevant, alleged onset date. Tr. 14. At step two, the ALJ 20 found that Plaintiff had the following severe impairments: back and neck pain; ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 tremors; irritable bowel syndrome; mild obesity; depressive disorder; generalized 2 anxiety disorder; and personality disorder not otherwise specified. Tr. 14. At step 3 three, the ALJ found that Plaintiff’s severe impairments did not meet or medically 4 equal a listed impairment. Tr. 21. The ALJ then determined that Plaintiff had the 5 residual functional capacity to: 6 7 8 9 10 11 12 13 to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) He can frequently climb ramps and stairs, balance, stoop, kneel, and crouch; occasionally crawl; and never climb ladders, ropes, or scaffolds. He can frequently push and pull bilaterally, and frequently use foot pedals bilaterally. He is capable of frequent handling, fingering, and feeling with the bilateral upper extremities. He should avoid more than moderate exposure to vibration and all exposure to hazards, such as unprotected heights and dangerous moving machinery. He is able to understand, remember, and carry out simple, routine, and repetitive tasks and instructions. He is able to maintain attention and concentration and a steady pace for the 2-hour intervals between regularly scheduled breaks for 40-hour workweek. He is capable of no more than brief and superficial (defined as non-collaborative) interaction with the public and coworkers. Instructions should be verbal or demonstrated and reading /writing should not be an essential job function. 14 Tr. 22-23. At step four, the ALJ found that Plaintiff was capable of performing 15 past relevant work as a fast food worker and cashier II. Tr. 27. The ALJ 16 concluded that the claimant has not been under a disability from December 5, 2009 17 through the date of the decision. Tr. 27. 18 The Appeals Council denied Plaintiff’s request for review on April 5, 2016, 19 making the ALJ’s decision the Commissioner’s final decision for purposes of 20 judicial review. Tr. 1-3; 20 C.F.R. §§ 404.981, 416.1484, and 422.210. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 3 4 5 ISSUES Plaintiff raises one issue for review: “Did the ALJ fail to properly consider and weigh the opinion evidence?” ECF No. 15 at 12. DISCUSSION There are three types of physicians: “(1) those who treat the claimant 6 (treating physicians); (2) those who examine but do not treat the claimant 7 (examining physicians); and (3) those who neither examine nor treat the claimant 8 [but who review the claimant’s file] (nonexamining [or reviewing] physicians).” 9 Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001) (citations omitted). 10 Generally, the opinion of a treating physician carries more weight than the opinion 11 of an examining physician, and the opinion of an examining physician carries more 12 weight than the opinion of a reviewing physician. Id. In addition, the 13 Commissioner’s regulations give more weight to opinions that are explained than 14 to opinions that are not, and to the opinions of specialists on matters relating to 15 their area of expertise over the opinions of non-specialists. Id. (citations omitted). 16 If a treating or examining physician’s opinion is uncontradicted, an ALJ may 17 reject it only by offering “clear and convincing reasons that are supported by 18 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 19 “If a treating or examining doctor’s opinion is contradicted by another doctor’s 20 opinion, an ALJ may only reject it by providing specific and legitimate reasons ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 that are supported by substantial evidence.” Id. (citing Lester v. Chater, 81 F.3d 2 821, 830-831 (9th Cir. 1995)). Regardless of the source, an ALJ need not accept a 3 physician’s opinion that is “brief, conclusory and inadequately supported by 4 clinical findings.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th 5 Cir. 2009) (quotation and citation omitted). 6 Opinion of Dr. Arnold 7 As noted by Plaintiff: 8 Mr. Bedeski was evaluated by John Arnold, Ph.D. on July 3, 2014. (TR 819-23) Dr. Arnold diagnosed: bipolar disorder, NOS with psychotic features; PTSD, delayed onset, chronic; and personality disorder with ASPD and borderline features. The GAF rating was 52. Dr. Arnold concluded that Mr. Bedeski would have a severe limitation (inability to perform the particular activity in regular competitive employment or outside of a sheltered environment) in two work-related areas, i.e., the ability to: (1) communicate and perform effectively in a work setting; and (2) maintain appropriate behavior in a work setting. There were five other areas where Mr. Bedeski would have marked limitations (very significant limitation on the ability to perform one or more basic work activity), i.e., the ability to: (1) understand, remember, and persist in tasks by following detailed instructions; (2) perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances without special supervision; (3) learn new tasks; ( 4) adapt to changes in a routine work setting; and ( 5) complete a normal workday and work week without interruptions from psychologically based symptoms. (TR 821) 9 10 11 12 13 14 15 16 17 18 ECF No. 15 at 8-9 (citations in original). Plaintiff argues that the ALJ erred in according little weight to the opinion of 19 Dr. Arnold, reasoning that the ALJ’s given rationale, on its face, does not 20 constitute a specific and legitimate reason for rejecting the opinion. ECF No. 15 at ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 13-14. Plaintiff contends that the ALJ failed to consider that Dr. Arnold had the 2 benefit of a clinical interview, mental status exam, and review of records. ECF 3 No. 15 at 14 4 Because Dr. Arnold’s opinion was contradicted, the ALJ only needed to 5 provide specific and legitimate reasons that are supported by substantial evidence. 6 The ALJ easily met this standard. 7 The ALJ accorded little weight to the DSHS opinion of Dr. Arnold. Tr. 26. 8 The ALJ reasoned that the Dr. Arnold’s diagnoses are (1) not supported by the 9 record and (2) that his assessment of moderate, marked, and severe limitations in 10 the ability to perform basic work activity appears to be based on the claimant’s 11 self-reports. Tr. 26. Notably, the ALJ preceded this finding by discussing several 12 tests that suggest malingering, Tr. 25, Dr. Dalley’s initial diagnosis of malingering, 13 Tr. 26, the claimants self-admitted issues with lying, Tr. 24, Nurse Martin’s report 14 on two occasions that he suspected malingering, Tr. 25, and the claimant’s 15 statements that he thought he could work and that people around him wanted him 16 to apply for SSI and DSHS because most of them were on these benefits, Tr. 24- 17 25.1 Notably, the record is otherwise replete with inconsistencies in the claimant’s 18 19 20 1 Plaintiff did not attempt to counter the claims of malingering. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 reports.2 The ALJ also noted that the evaluation was based on DSHS agency rules, 2 which are “much more relaxed than those used for Social Security disability 3 purposes, and are not binding on the Social Security Administration.” Tr. 26. 4 Moreover, the report provided by Dr. Arnold demonstrates claimant’s 5 statements to Dr. Arnold are inconsistent with other statements in the record: 6 claiming he had hallucinations since age 15-16, Tr. 819, despite a previous 7 statement that he does not have hallucinations, Tr. 456, denying illegal drug use, 8 despite previous use of methamphetamine, Tr. 523; and special education in all 9 subjects for the most part, despite school records indicating he was only in special 10 education for reading, Tr. 684. Further, Dr. Arnold’s opinion states that the 11 claimant will be impaired for a duration of 18 months and that the claimant was 12 within normal limits for thought process and content, orientation, perception, 13 memory, fund of knowledge, concentration, abstract thought, and insight and 14 judgment. Tr. 821-23. 15 16 17 2 18 he has had them since age 15-16; and stated he was in special education for “all” 19 subjects but the school records indicate he was in special education only for 20 reading. Tr. 24. For example, the claimant denied having hallucinations but then later stated ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 The ALJ specifically noted that mental status exams “are significant for 2 being attentive, cooperative, pleasant, oriented and alert, good insight and 3 judgment, and good impulse control with normal memory and attention span.” Tr. 4 24. The ALJ also recognized the opinion of Dr. Dalley that “he did not observe 5 any manic behaviors, anxiety, depression, anger, or manic behaviors or difficulty 6 concentrating, no indication of loosened association, tangentially, or 7 circumstantiality in his thought process, and in the later evaluation reported a 8 borderline valid PAI.” Tr. 26. 9 10 These are specific, legitimate reasons for discounting the opinion and are supported by substantial evidence. 11 Opinion of Dr. Vassey 12 Although Plaintiff’s Motion for Summary Judgment (ECF No. 15) argues 13 that “[h]ad Dr. Arnold’s and Dr. Vassey’s opinions been properly considered, at a 14 minimum, Mr. Bedeski’s residual functional capacity determination would be 15 assessed differently,” ECF No. 15 at 16, the Motion only directly addresses the 16 ALJ’s decision with respect to Dr. Arnold and only briefly mentions in passing that 17 Dr. Vassey is more qualified than Dr. Martin and is thus entitled to controlling 18 weight, ECF No. 15 at 14. This argument is notably lacking in substance and is 19 insufficient to support Plaintiff’s Motion. Maldonado v. Morales, 556 F.3d 1037, 20 1048, n.4 (9th Cir. 2009) (“Arguments made in passing and inadequately briefed ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 are waived.”) (citing Halicki Films, L.L.C. v. Sanderson Sales & Mktg., 547 F.3d 2 1213, 1229–30 (9th Cir. 2008)). Regardless, documentation from Dr. Vassey is 3 limited and conclusory, Tr. 783, and otherwise indicates the claimant was able to 4 control his thoughts and behavior with medication, TR. 569. The records provided 5 by Dr. Vassey are otherwise unremarkable, and Plaintiff’s motion only notes that 6 Dr. Vassey prepared a report dated June 17, 2014, stating: “I am Ezra Bedeski's 7 current treating psychiatrist. He is being treated for diagnoses including bipolar I 8 disorder with psychotic features, generalized anxiety disorder, posttraumatic stress 9 disorder.” ECF No. 15 at 8. This is conclusory at best. 10 Defendant is entitled to summary judgment. 11 IT IS HEREBY ORDERED: 12 1. Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. 13 2. Defendant’s Motion for Summary Judgment (ECF No. 20) is 14 15 16 17 GRANTED. The District Court Executive is directed to file this Order, enter Judgment for Defendant, provide copies to counsel, and CLOSE the file. DATED April 28, 2017. 18 19 THOMAS O. RICE United States District Judge 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13

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