Weller v. Colvin

Filing 18

ORDER GRANTING DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Plaintiffs Motion for Summary Judgment ECF No. 15 is DENIED. Defendants Motion for Summary Judgment ECF No. 16 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 ELIZABETH LEE WELLER, No. 2:16-CV-0331-TOR Plaintiff, 8 9 10 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, 11 12 13 Defendant. BEFORE THE COURT are the parties’ cross-motions for summary 14 judgment (ECF Nos. 15; 16). 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 for Summary Judgment (ECF No. 16) and 18 DENIES Plaintiff’s Motion for Summary Judgment (ECF No. 15). 19 JURISDICTION 20 The Court has jurisdiction pursuant to 42 U.S.C. §§ 405(g); 1383(c)(3). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 1 2 ISSUES Plaintiff seeks judicial review of the Commissioner’s final decision denying 3 her disability insurance benefits and supplemental security income under Title II 4 and XVI of the Social Security Act. Plaintiff raises two issues for this Court’s 5 review: 6 (1) Whether the ALJ improperly discredited Plaintiff’s symptom claims. 7 (2) Whether the ALJ improperly weighed medical opinion evidence. 8 9 10 ECF No. 15 at 12. The Court evaluates each issue in turn. STANDARD OF REVIEW A district court’s review of a final decision of the Commissioner of Social 11 Security is governed by 42 U.S.C. § 405(g). The scope of review under §405(g) is 12 limited: the Commissioner’s decision will be disturbed “only if it is not supported 13 by substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1153, 14 1158 (9th Cir. 2012). “Substantial evidence” means relevant evidence that “a 15 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159 16 (quotation and citation omitted). This requires “more than a mere scintilla[,] but 17 less than a preponderance.” Id. (quotation and citation omitted). “An ALJ can 18 satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed and 19 thorough summary of the facts and conflicting clinical evidence, stating his 20 interpretation thereof, and making findings.’” Garrison, 759 F.3d at 1012) ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 (quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). In determining 2 whether this standard has been satisfied, a reviewing court must consider the entire 3 record as a whole rather than searching for supporting evidence in isolation. Id. 4 In reviewing a denial of benefits, a district court may not substitute its 5 judgment for that of the Commissioner. If the evidence in the record “is 6 susceptible to more than one rational interpretation, [the court] must uphold the 7 ALJ’s findings if they are supported by inferences reasonably drawn from the 8 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Further, a district 9 court “may not reverse an ALJ’s decision on account of an error that is harmless.” 10 Id. An error is harmless “where it is inconsequential to the [ALJ’s] ultimate 11 nondisability determination.” Id. at 1115 (quotation and citation omitted). The 12 party appealing the ALJ’s decision generally bears the burden of establishing that 13 it was harmed. Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009). We review 14 only the reasons provided by the ALJ in the disability determination and may not 15 affirm the ALJ on a ground upon which the ALJ did not rely. Orn v. Astrue, 495 16 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th 17 Cir. 2003)). 18 19 20 FIVE-STEP SEQUENTIAL EVALUATION PROCESS A claimant must satisfy two conditions to be considered “disabled” within the meaning of the Social Security Act. First, the claimant must be “unable to ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 engage in any substantial gainful activity by reason of any medically determinable 2 physical or mental impairment which can be expected to result in death or which 3 has lasted or can be expected to last for a continuous period of not less than twelve 4 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Second, the claimant’s 5 impairment must be “of such severity that he is not only unable to do his previous 6 work[,] but cannot, considering his age, education, and work experience, engage in 7 any other kind of substantial gainful work which exists in the national economy.” 8 Id. §§ 423(d)(2)(A), 1382c(a)(3)(B). 9 The Commissioner has established a five-step sequential analysis to 10 determine whether a claimant satisfies the above criteria. See id. §§ 11 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v). At step one, the Commissioner 12 considers the claimant’s work activity. Id. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 13 If the claimant is engaged in “substantial gainful activity,” the Commissioner must 14 find that the claimant is not disabled. Id. §§ 404.1520(b), 416.920(b). 15 If the claimant is not engaged in substantial gainful activities, the analysis 16 proceeds to step two. At this step, the Commissioner considers the severity of the 17 claimant’s impairment. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the 18 claimant suffers from “any impairment or combination of impairments which 19 significantly limits [his or her] physical or mental ability to do basic work 20 activities,” the analysis proceeds to step three. Id. §§ 404.1520(c), 416.920(c). If ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 the claimant’s impairment does not satisfy this severity threshold, however, the 2 Commissioner must find that the claimant is not disabled. Id. 3 At step three, the Commissioner compares the claimant’s impairment to 4 several impairments recognized by the Commissioner to be so severe as to 5 preclude a person from engaging in substantial gainful activity. Id. §§ 6 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the impairment is as severe or more 7 severe than one of the enumerated impairments, the Commissioner must find the 8 claimant disabled and award benefits. Id. §§ 404.1520(d), 416.920(d). 9 If the severity of the claimant’s impairment does meet or exceed the severity 10 of the enumerated impairments, the Commissioner must pause to assess the 11 claimant’s “residual functional capacity.” Residual functional capacity (“RFC”), 12 defined generally as the claimant’s ability to perform physical and mental work 13 activities on a sustained basis despite his or her limitations (id. §§ 404.1545(a)(1), 14 416.945(a)(1)), is relevant to both the fourth and fifth steps of the analysis. 15 At step four, the Commissioner considers whether, in view of the claimant’s 16 RFC, the claimant is capable of performing work that he or she has performed in 17 the past (“past relevant work”). Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If 18 the claimant is capable of performing past relevant work, the Commissioner must 19 find that the claimant is not disabled. Id. §§ 404.1520(f), 416.920(f). If the 20 claimant is incapable of performing such work, the analysis proceeds to step five. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 At step five, the Commissioner considers whether, in view of the claimant’s 2 RFC, the claimant is capable of performing other work in the national economy. 3 Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). In making this determination, the 4 Commissioner must also consider vocational factors such as the claimant’s age, 5 education and work experience. Id. If the claimant is capable of adjusting to other 6 work, the Commissioner must find that the claimant is not disabled. Id. §§ 7 404.1520(g)(1), 416.920(g)(1). If the claimant is not capable of adjusting to other 8 work, the analysis concludes with a finding that the claimant is disabled and is 9 therefore entitled to benefits. Id. 10 The claimant bears the burden of proof at steps one through four above. 11 Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009). If the 12 analysis proceeds to step five, the burden shifts to the Commissioner to establish 13 that (1) the claimant is capable of performing other work; and (2) such work 14 “exists in significant numbers in the national economy.” 20 C.F.R. §§ 15 404.1560(c); 416.960(c)(2); Bray, 554 F.3d at 1222. 16 17 ADMINISTRATIVE PROCEEDINGS Plaintiff filed applications for disability insurance benefits and supplemental 18 security income disability benefits on October 15, 2012, alleging disability 19 beginning on October 15, 2012. Tr. 13. Plaintiff’s application was denied initially 20 and upon reconsideration. Tr. 13. Plaintiff thereafter filed a written request for ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 hearing. Tr. 13. A hearing was held before an Administrative Law Judge (ALJ) 2 on March 4, 2015. Tr. 13. In a decision filed on April 15, 2015, the ALJ denied 3 Plaintiff’s application for benefits. Tr. 26. 4 At step one, the ALJ found that Plaintiff met the insured status requirement 5 through December 31, 2012 and that Plaintiff had not engaged in substantial 6 gainful activity since October 5, 2012. Tr. 15. At step two, the ALJ found that 7 Plaintiff had the following severe impairments: neck and low back pain secondary 8 to degenerative disc disease; right hip tendonitis; and depression and anxiety. Tr. 9 15. At step three, the ALJ found that Plaintiff does not have an impairment or 10 combination of impairments that meets or medically equals a listed impairment. 11 Tr. 19. The ALJ then concluded that Plaintiff had the RFC to perform light work: 12 13 14 15 16 17 18 19 20 She has the ability, in an 8-hour day with normal breaks, to sit up to 6 hours and stand and/or walk up to 6 hours each. She can lift and/or carry up to 20 pounds occasionally (up to 1/3 of the workday) and 10 pounds frequently (up to 2/3 of the workday). She is with unlimited ability to push or pull (other than as defined for lift and carry). She is with unlimited ability to balance with the ability to occasionally climb ramps or stairs, stoop (including bending at the waist), kneel, crouch (including bending at the knees), and crawl. She can never climb ladders, ropes or scaffolds. She has the ability to remember locations and work-like procedures; understand, remember, and carry out very short and simple instructions; maintain attention and concentration for periods between legally required breaks; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and sustain an ordinary routine without special supervision. She has the ability to get along with co-workers or peers without being distracted by them; make simple work-related decisions; ask simple questions or request assistance; complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 2 3 4 5 6 consistent pace without an unreasonable number and length of rest periods. She would work best with no contact with the general public; in proximity to hut not close cooperation with co-workers; in proximity to but not close cooperation with supervisors, although she could accept instructions and respond appropriately; and in a routine, predictable work environment. She has the ability to maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. She has the ability to respond to changes in the work setting; be aware of normal hazards and take appropriate precautions; travel in unfamiliar places or use public transportation (such as buses); and set realistic goals or make plans independently of others. 7 Tr. 20-21. At step four, the ALJ found Plaintiff is not capable of performing past 8 relevant work. Tr. 24. The ALJ proceeded to step five and found that, considering 9 Plaintiff’s age, education, work experience, and RFC, there are jobs in significant 10 numbers in the national economy that Plaintiff could perform, such as small parts 11 assembly, bottle packer/caser, and housekeeper/cleaner. Tr. 25. On that basis, the 12 ALJ concluded that Plaintiff was not disabled as defined in the Social Security Act. 13 Tr. 26. 14 Plaintiff thereafter filed a request for review with the Appeal’s Council, 15 which was denied. Tr. 1. The ALJ’s decision became the final decision of the 16 Commissioner. 20 C.F.R. §§ 404.981, 422.201. 17 DISCUSSION 18 A. Adverse Credibility Determination 19 In social security proceedings, a claimant must prove the existence of 20 physical or mental impairment with “medical evidence consisting of signs, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 symptoms, and laboratory findings.” 20 C.F.R. §§ 416.908; 416.927. As long as 2 the impairment “could reasonably be expected to produce [the] symptoms,” the 3 claimant may offer a subjective evaluation as to the severity of the impairment. 4 Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc). If an ALJ finds 5 the claimant’s subjective assessment unreliable, “the ALJ must make a credibility 6 determination with findings sufficiently specific to permit [a reviewing] court to 7 conclude that the ALJ did not arbitrarily discredit claimant's testimony.” Thomas 8 v. Barnhart, 278 F .3 d 947, 958 (9th Cir. 2002). 9 If there is no evidence of malingering, the ALJ’s reasons for discrediting the 10 claimant’s testimony must be “specific, clear and convincing.” Chaudhry v. Astrue, 11 688 F.3d 661, 672 (9th Cir. 2012) (quotation and citation omitted). In making this 12 determination, the ALJ may consider, inter alia: (1) the claimant’s reputation for 13 truthfulness; (2) inconsistencies in the claimant’s testimony or between his 14 testimony and his conduct; (3) the claimant’s daily living activities; (4) the 15 claimant’s work record; and (5) testimony from physicians or third parties 16 concerning the nature, severity, and effect of the claimant’s condition. Id. The 17 ALJ “must specifically identify the testimony she or he finds not to be credible and 18 must explain what evidence undermines the testimony.” Holohan v. Massanari, 19 246 F.3d 1195, 1208 (9th Cir. 2001). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 The ALJ gave clear and convincing reasons for discounting Plaintiff’s 2 subjective complaints. Plaintiff concedes there is positive evidence of malingering 3 given Dr. Dalley’s finding that the MMPI was consistent with malingering. 4 Plaintiff attempts to soften the blow by noting the result was likely a plea for help 5 rather than a “fake bad” for secondary gain, ECF No. 15 at 14-15, but this is of no 6 help for Plaintiff. Evidence of malingering undercuts Plaintiff’s credibility, 7 irrespective of the end-goal for such mistruth. Beside this, the ALJ reasonably 8 found numerous, significant inconsistencies with Plaintiff’s representations 9 throughout the medical records. Tr. 22-23. Further the ALJ reasonably found 10 Plaintiff’s activities were inconsistent with her reported limitations. Tr. 22-23. 11 Plaintiff complains that the ALJ erred in relying on the Plaintiff’s failure to 12 seek medical care. ECF No. 17 at 3. Even if improper, the ALJ provided ample, 13 clear, and convincing reasons for finding Plaintiff was not credible, and these 14 findings are supported by substantial evidence. Accordingly, even if the ALJ erred 15 on this point, it was harmless. Molina v. Astrue, 674 F.3d at 1111. 16 B. Medical Opinion of Dr. Dalley 17 A treating physician’s opinions are generally entitled to substantial weight in 18 social security proceedings. Bray, 554 F.3d at 1228 (citation omitted); Orn, 495 19 F.3d at 631 (“By rule, the Social Security Administration favors the opinion of a 20 treating physician over non-treating physicians.”) (citing 20 C.F.R. § 404.1527)). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 “[I]f a treating physician’s opinion is ‘well-supported by medically acceptable 2 clinical and laboratory diagnostic techniques and is not inconsistent with the other 3 substantial evidence in the case record, it will be given controlling weight.’” Orn, 4 495 F.3d at 631 (quoting 20 C.F.R. § 404.1527(d)(2)) (brackets omitted). 5 “To reject an uncontradicted opinion of a treating or examining doctor, an 6 ALJ must state clear and convincing reasons that are supported by substantial 7 evidence. If a treating or examining doctor's opinion is contradicted by another 8 doctor's opinion, an ALJ may only reject it by providing specific and legitimate 9 reasons that are supported by substantial evidence. Also, when evaluating 10 conflicting medical opinions, an ALJ need not accept the opinion of a doctor if that 11 opinion is brief, conclusory, and inadequately supported by clinical findings.” 12 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citation omitted). 13 Further, an ALJ may discount a medical opinion if that opinion is based “‘to a 14 large extent’ on an applicant’s self-reports and not on clinical evidence” and the 15 ALJ properly finds the applicant to be not credible. Ghanim v. Colvin, 763 F.3d 16 1154, 1162 (9th Cir. 2014) (quoting Tommasetti v. Astrue, 533 F.3d 1035, 1041 17 (9th Cir. 2008)). 18 The ALJ assigned no weight to the opinion of Dr. Dalley that Plaintiff had 19 marked and severe limitations in the ability to perform basic work activity. Tr. 24. 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 The ALJ explained: 2 Dr. Dalley gave little support for his opinion in his evaluation, admitting that with a rule out for malingering, it was difficult to determine the severity and frequency of the claimant’s reported anxiety and depression and even recommended revaluation when she was “more motivated” to give more realistic and valid responses. Likewise, Dr. Veraldi testified that it was “tough” to assess how well the claimant was doing given the invalid MMPI. Additionally, Dr. Veraldi testified there was no support for several of the diagnoses given by Dr. Dalley, which were instead based on her reported symptoms and not on valid diagnostic criteria. 3 4 5 6 7 Tr. 24. Dr. Veraldi testified that there was no support for several of the diagnoses 8 given by Dr. Dalley, so the ALJ may discredit Dr. Dalley’s opinion by providing a 9 specific and legitimate reason. See Bayliss v. Barnhart, 427 F.3d at 1216. 10 Plaintiff’s general lack of credibility, the positive finding of malingering in the 11 tests given by Dr. Dalley, Dr. Dalley’s limited explanation for the opinion and the 12 fact that Dr. Dalley’s evaluation heavily depended on Plaintiff’s reports all provide 13 specific and legitimate reasons for not relying on Dr. Dalley’s evaluation and these 14 underlying findings are supported by substantial evidence.1 See Bayliss v. 15 Barnhart, 427 F.3d at 1216; see also Ghanim v. Colvin, 763 F.3d at 1162. 16 // 17 18 1 19 ECF No. 17 at 1. Even if correct, the reasons provided meet the higher standard— 20 i.e., clear and convincing. Plaintiff disputes the standard applied to reviewing Dr. Dalley’s opinion. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 ACCORDINGLY, IT IS HEREBY ORDERED: 2 1. Plaintiff’s Motion for Summary Judgment (ECF No. 15) is DENIED. 3 2. Defendant’s Motion for Summary Judgment (ECF No. 16) is 4 5 6 7 GRANTED. The District Court Executive is directed to enter this Order and judgment accordingly, furnish copies to counsel, and close the file. DATED August 8, 2017. 8 9 10 THOMAS O. RICE Chief United States District Judge 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13

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