Maxwell v. Commissioner of Social Security

Filing 14

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, denying 12 Motion for Summary Judgment; granting 13 Motion for Summary Judgment. Case is CLOSED. Signed by Senior Judge Robert H. Whaley. (LR, Case Administrator)

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1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Dec 04, 2017 SEAN F. MCAVOY, CLERK 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 LESLIE MARIE MAXWELL, 8 Plaintiff, 9 v. 10 11 12 13 14 15 16 17 18 19 NANCY A. BERRYHILL, Acting Commissioner of Social Security, No. 4:17-CV-05010-RHW ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. Before the Court are the parties’ cross-motions for summary judgment, ECF Nos. 12 & 13. Plaintiff Leslie Marie Maxwell brings this action seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner’s final decision, which denied her applications for Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C §§ 1381-1383F. After reviewing the administrative record and briefs filed by the parties, the Court is now fully informed. For the reasons set forth below, the Court GRANTS Defendant’s 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 1 Motion for Summary Judgment and DENIES Ms. Maxwell’s Motion for Summary 2 Judgment. 3 4 I. Jurisdiction Ms. Maxwell filed her application for supplemental security income benefits 5 on April 5, 2013. AR 194-99. Her alleged onset date is May 14, 2010. AR 194. 6 Her application was initially denied on July 24, 2013, AR 133-36, and on 7 reconsideration on October 25, 2013, AR 140-41. 8 9 Administrative Law Judge (“ALJ”) Donna L. Walker held a hearing on May 19, 2015. AR 54-90. ALJ Walker issued a decision on June 17, 2015, finding Ms. 10 Maxwell ineligible for benefits. AR 24-37. The Appeals Council denied Ms. 11 Maxwell’s request for review on December 14, 2016, AR 1-5, making the ALJ’s 12 ruling the “final decision” of the Commissioner. 13 Ms. Maxwell timely filed the present action challenging the denial of 14 benefits on February 10, 2017. ECF No. 3. Accordingly, Ms. Maxwell’s claims are 15 properly before this Court pursuant to 42 U.S.C. § 405(g). 16 17 II. Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 18 substantial gainful activity by reason of any medically determinable physical or 19 mental impairment which can be expected to result in death or which has lasted or 20 can be expected to last for a continuous period of not less than twelve months.” 42 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 2 under a disability only if the claimant’s impairments are of such severity that the 3 claimant is not only unable to do his previous work, but cannot, considering 4 claimant's age, education, and work experience, engage in any other substantial 5 gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A) & 6 1382c(a)(3)(B). 7 The Commissioner has established a five-step sequential evaluation process 8 for determining whether a claimant is disabled within the meaning of the Social 9 Security Act. 20 C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4); Lounsburry v. 10 11 Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Step one inquires whether the claimant is presently engaged in “substantial 12 gainful activity.” 20 C.F.R. §§ 404.1520(b) & 416.920(b). Substantial gainful 13 activity is defined as significant physical or mental activities done or usually done 14 for profit. 20 C.F.R. §§ 404.1572 & 416.972. If the claimant is engaged in 15 substantial activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 16 404.1571 & 416.920(b). If not, the ALJ proceeds to step two. 17 Step two asks whether the claimant has a severe impairment, or combination 18 of impairments, that significantly limits the claimant’s physical or mental ability to 19 do basic work activities. 20 C.F.R. §§ 404.1520(c) & 416.920(c). A severe 20 impairment is one that has lasted or is expected to last for at least twelve months, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09 & 2 416.908-09. If the claimant does not have a severe impairment, or combination of 3 impairments, the disability claim is denied, and no further evaluative steps are 4 required. Otherwise, the evaluation proceeds to the third step. 5 Step three involves a determination of whether any of the claimant’s severe 6 impairments “meets or equals” one of the listed impairments acknowledged by the 7 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 8 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 9 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 10 equals one of the listed impairments, the claimant is per se disabled and qualifies 11 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to 12 the fourth step. 13 Step four examines whether the claimant’s residual functional capacity 14 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f) 15 & 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant 16 is not entitled to disability benefits and the inquiry ends. Id. 17 Step five shifts the burden to the Commissioner to prove that the claimant is 18 able to perform other work in the national economy, taking into account the 19 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 20 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 burden, the Commissioner must establish that (1) the claimant is capable of 2 performing other work; and (2) such work exists in “significant numbers in the 3 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 4 676 F.3d 1203, 1206 (9th Cir. 2012). 5 6 III. Standard of Review A district court's review of a final decision of the Commissioner is governed 7 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 8 Commissioner's decision will be disturbed “only if it is not supported by 9 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 10 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than 11 a mere scintilla but less than a preponderance; it is such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. 13 Chater, 108 F.3d 978, 980 (9th Cir.1997) (quoting Andrews v. Shalala, 53 F.3d 14 1035, 1039 (9th Cir. 1995)) (internal quotation marks omitted). In determining 15 whether the Commissioner’s findings are supported by substantial evidence, “a 16 reviewing court must consider the entire record as a whole and may not affirm 17 simply by isolating a specific quantum of supporting evidence.” Robbins v. Soc. 18 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting Hammock v. Bowen, 879 19 F.2d 498, 501 (9th Cir. 1989)). 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 In reviewing a denial of benefits, a district court may not substitute its 2 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 3 1992). If the evidence in the record “is susceptible to more than one rational 4 interpretation, [the court] must uphold the ALJ's findings if they are supported by 5 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 6 1111 (9th Cir. 2012); see also Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 7 2002) (if the “evidence is susceptible to more than one rational interpretation, one 8 of which supports the ALJ’s decision, the conclusion must be upheld”). Moreover, 9 a district court “may not reverse an ALJ's decision on account of an error that is 10 harmless.” Molina, 674 F.3d at 1111. An error is harmless “where it is 11 inconsequential to the [ALJ's] ultimate nondisability determination.” Id. at 1115. 12 The burden of showing that an error is harmful generally falls upon the party 13 appealing the ALJ's decision. Shinseki v. Sanders, 556 U.S. 396, 409–10 (2009). 14 15 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings, 16 and accordingly, are only briefly summarized here. Ms. Maxwell was born in 17 1987. AR 35. She has a GED and has attended some college. AR 772. While she 18 does have a variety of past jobs, none of these rise to the level of past relevant 19 work under the Act. AR 35. Ms. Maxwell suffers from both physical and mental 20 impairments. AR 26. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 2 3 4 V. The ALJ’s Findings The ALJ determined that Ms. Maxwell was not under a disability within the meaning of the Act since April 5, 2013, the date of her application. AR 24-37. At step one, the ALJ found that Ms. Maxwell had not engaged in substantial 5 gainful activity since April 5, 2013 (citing 20 C.F.R. §§ 416.971 et seq.). AR 26. 6 At step two, the ALJ found Ms. Maxwell had the following severe 7 impairments: degenerative disc disease at L5-S1, lumbar spondylosis, cervical 8 spondylosis, chronic back pain, bipolar disorder, mood disorder, panic disorder 9 with agoraphobia, and generalized anxiety disorder (citing 20 C.F.R. § 10 11 416.920(c)). AR 26. At step three, the ALJ found that Ms. Maxwell did not have an impairment 12 or combination of impairments that meets or medically equals the severity of one 13 of the listed impairments in 20 C.F.R. §§ 404, Subpt. P, App. 1. AR 26-28. 14 At step four, the ALJ found Ms. Maxwell had the following residual 15 functional capacity: she can perform light work as defined in 20 C.F.R. § 16 416.967(b) including: (1) lift and/or carry up to 20 pounds occasionally and 10 17 pounds frequently; (2) sit, stand, and walk for 6 hours in an 8-hour workday; (3) 18 frequently climb ramps, stairs, ladders and scaffolds, kneel, crouch, and crawl; (4) 19 avoid concentrated exposure to unprotected heights, moving mechanical parts, and 20 extreme cold; (5) limit to performing simple, routine, and repetitive tasks and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 simple work-related decisions; (6) capable of appropriate responses to supervisors; 2 (7) limit to superficial contact with coworkers and supervisors and no contact with 3 the general public; (8) limit to simple work related decisions regarding dealing 4 with changes in the work setting; and (9) time off tasks can be accommodated by 5 normal breaks. AR 28. 6 7 8 The ALJ determined that Ms. Maxwell is unable to perform any past relevant work. AR 34-35. At step five, the ALJ also found that in light of her age, education, work 9 experience, and residual functional capacity, there are jobs that exist in significant 10 numbers in the national economy that Ms. Maxwell can perform. AR 35-36. These 11 include: (1) assembler, production; (2) packing, line worker; and (3) cleaner, 12 housekeeping. AR 36. The ALJ consulted a vocational expert and the Dictionary of 13 Occupational Titles in making this determination. Id. 14 15 VI. Issues for Review Ms. Maxwell argues that the Commissioner’s decision is not free of legal 16 error and not supported by substantial evidence. Specifically, she argues the ALJ 17 erred by: (1) improperly rejecting the opinions of some of Ms. Maxwell’s medical 18 providers; (2) rejecting Ms. Maxwell’s subjective complaints; and (3) failing to 19 meet her burden at step five to identify specific jobs available in significant 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 number which Ms. Maxwell could perform in light of her specific functional 2 limitations. ECF No. 12 at 6. 3 4 VII. Discussion A. The ALJ did not err in evaluation of the opinions of Ms. Maxwell’s 5 medical providers. 6 The Ninth Circuit has distinguished between three classes of medical 7 providers in defining the weight to be given to their opinions: (1) treating 8 providers, those who actually treat the claimant; (2) examining providers, those 9 who examine but do not treat the claimant; and (3) non-examining providers, those 10 who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th 11 Cir. 1996) (as amended). 12 A treating provider’s opinion is given the most weight, followed by an 13 examining provider, and finally a non-examining provider. Id. at 830-31. In the 14 absence of a contrary opinion, a treating or examining provider’s opinion may not 15 be rejected unless “clear and convincing” reasons are provided. Id. at 830. If a 16 treating or examining provider’s opinion is contradicted, it may only be discounted 17 for “specific and legitimate reasons that are supported by substantial evidence in 18 the record.” Id. at 830-31. The ALJ may meet the specific and legitimate standard 19 by “setting out a detailed and thorough summary of the facts and conflicting 20 clinical evidence, stating [his or her] interpretation thereof, and making findings.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal citation 2 omitted). 3 4 a. Dr. N. K. Marks, PhD Dr. Marks completed a psychological evaluation of Ms. Maxwell on January 5 23, 2015. AR 771-76. The ALJ gave great weight to Dr. Marks’ opinion, with the 6 exception of the recommendation that Ms. Maxwell would require a coach or a 7 mentor to help her keep a job. AR 32-33, 776. 8 The ALJ noted that Ms. Maxwell’s treatment notes indicate that her 9 symptoms are generally controlled with medication. AR 33. Ms. Maxwell argues 10 that the citation to her treatment notes was insufficient to support this 11 determination because it did not pinpoint within the 30 pages of records which the 12 ALJ relied on. ECF No. 12 at 10. A review of the records cited, however, supports 13 the ALJ’s determination, even absent a pinpoint citation. On March 12, 2013, Ms. 14 Maxwell informed her provider that “[w]hen she was taking Seroquel, she felt as 15 though she had more restful sleep and then she was ready to face the day.” AR 16 740. Moreover, throughout these records broadly cited by the ALJ, most of which 17 Ms. Maxwell was actively on medication, generally she had benign mental status 18 examinations. See, e.g. AR 735, 738, 739, 741. 19 20 In addition, even if the ALJ’s interpretation of the records was in error, which the Court does not find, it would be harmless error. Dr. Marks opined that ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 coaching would be beneficial in interpersonal relationships specifically. AR 776. 2 The ALJ accounted for Ms. Maxwell’s limitations with interpersonal skills in her 3 residual functional capacity. AR 28. The ALJ limits her to no more than superficial 4 contact with coworkers and supervisors, and no contact with the general public. Id. 5 b. Judith Fredrickson 6 Mental health case manager Judith Fredrickson provided medical source 7 statements on October 23, 2014, and November 25, 2014. AR 763-69. Despite 8 being a non-medical opinion, the ALJ considered Ms. Fredrickson’s opinion and 9 assigned great weight to it because of her opportunity to observe and interact with 10 Ms. Maxwell on numerous occasions. AR 33-34. Ms. Maxwell challenges that the 11 restriction to 11-20 hours of recommended by Ms. Fredrickson was not properly 12 included in the ALJ’s calculation of Ms. Maxwell’s residual functional capacity. 13 ECF No. 12 at 10-11, AR 767. 14 As a mental health case manager, Ms. Fredrickson is considered an “other 15 source.” “Other sources” for opinions include nurse practitioners, physicians' 16 assistants, therapists, teachers, social workers, spouses, and other non-medical 17 sources. 20 C.F.R. §§ 404.1513(d), 416.913(d). An ALJ is required to “consider 18 observations by non-medical sources as to how an impairment affects a claimant's 19 ability to work.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir.1987). Non- 20 medical testimony can never establish a diagnosis or disability absent ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 corroborating competent medical evidence. Nguyen v. Chater, 100 F.3d 1462, 1467 2 (9th Cir.1996). An ALJ is obligated to give reasons germane to “other source” 3 testimony before discounting it. Dodrill v. Shalala, 12 F.3d 915 (9th Cir.1993). 4 Thus, the ALJ was not required to accept the limitations opined by Ms. 5 Fredrickson as medical evidence. Moreover, they were contradicted by an 6 acceptable medical source. Impartial medical expert Dr. Marian F. Martin, PhD, 7 that Ms. Maxwell could complete a forty-hour workweek. AR 68. This opinion 8 would be given more weight than a contradictory other source. See generally 9 Nguyen, 100 F.3d at 1467. 10 Nevertheless, Ms. Maxwell is incorrect her assertion that Ms. Fredrickson’s 11 opinion was discounted. The 11-20 hour limitation the Ms. Fredrickson placed on 12 Ms. Maxwell was “unless it is a job that involves no people around her and with 13 very little stress.” AR 767. When addressing Ms. Fredrickson’s opinion, after 14 qualifying it as another source, the ALJ specifically referenced the “limitation to 15 superficial public contact and her ability to remember short and simple 16 instructions,” which were “supported by the mental status examinations.” AR 34. 17 Those considerations posed by Ms. Fredrickson were then reflected in Ms. 18 Maxwell’s residual functional capacity. The fact the ALJ did not repeat precisely 19 the same language as Ms. Fredrickson does not indicate the restrictions did not 20 factor into her decision. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 2 B. The ALJ did not err in the determination of Ms. Maxwell’s credibility. An ALJ engages in a two-step analysis to determine whether a claimant’s 3 testimony regarding subjective symptoms is credible. Tommasetti, 533 F.3d at 4 1039. First, the claimant must produce objective medical evidence of an underlying 5 impairment or impairments that could reasonably be expected to produce some 6 degree of the symptoms alleged. Id. Second, if the claimant meets this threshold, 7 and there is no affirmative evidence suggesting malingering, “the ALJ can reject 8 the claimant’s testimony about the severity of [his] symptoms only by offering 9 specific, clear, and convincing reasons for doing so.” Id. 10 In weighing a claimant's credibility, the ALJ may consider many factors, 11 including, “(1) ordinary techniques of credibility evaluation, such as the claimant's 12 reputation for lying, prior inconsistent statements concerning the symptoms, and 13 other testimony by the claimant that appears less than candid; (2) unexplained or 14 inadequately explained failure to seek treatment or to follow a prescribed course of 15 treatment; and (3) the claimant's daily activities.” Smolen v. Chater, 80 F.3d 1273, 16 1284 (9th Cir. 1996). 17 The ALJ found that “[d]espite [Ms. Maxwell’s] impairment, [she] has 18 engaged in a somewhat normal level of daily activity and interaction.” AR 32. The 19 ALJ cited to a variety of activities of daily living that do not support her allegations 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 of total disability. These include housework, cooking, grocery shopping, numerous 2 social engagements, college courses, and caring for her child. AR 32. 3 This is supported by the record. Ms. Maxwell informed Dr. Marks on 4 January 23, 2015, that she had completed 32 credits of college credits and was still 5 enrolled. AR 772. She also reported that she could take care of all of her activities 6 of daily living, that she does drive and has a valid license, that she spends her days 7 on the internet job-searching and on Facebook, that she takes her son to and from 8 school, and that she likes to clean house. Id. A mental health evaluation on March 9 20, 2014, stated that she and her son had been “getting out quite a bit exploring 10 new parks and doing various activities.” AR 736. The record also includes multiple 11 references to “indiscriminate” sexual activity, which is contradictory to her 12 assertions that she cannot be around people. AR 735-36. Further, Ms. Maxwell 13 herself stated that she attends church, family barbecues, birthday parties, sporting 14 practices and events for her son, and works closely with her son’s speech therapist 15 on a regular basis. AR 248. 16 The ALJ’s finding that Ms. Maxwell’s activities of daily living was 17 inconsistent with her subjective symptom testimony is strongly supported by 18 substantial evidence in the record. The Court finds no error. 19 // 20 // ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 C. The ALJ did not fail to meet her burden at step five. Ms. Maxwell argues that the ALJ erred at step five because the hypothetical 2 3 posed to the vocational expert was incomplete. To reach this conclusion, Ms. 4 Maxwell attempts to reargue the same issues in her challenge to the ALJ’s 5 treatment of the opinions of Dr. Marks and Ms. Frederickson. The Court has 6 already found no error in the ALJ’s weight assigned to these opinions. See supra at 7 9-12. The Court will uphold the ALJ’s findings when a claimant attempts to restate 8 the argument that the residual functional capacity finding, on which the 9 hypothetical was based, did not account for all limitations. Stubbs-Danielson v. 10 Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). Thus, the Court finds no error at 11 step five. 12 VIII. Conclusion 13 Having reviewed the record and the ALJ’s findings, the Court finds the 14 ALJ’s decision is supported by substantial evidence and free from legal error. 15 Accordingly, IT IS ORDERED: 16 1. Plaintiff’s Motion for Summary Judgment, ECF No. 12, is DENIED. 17 2. Defendant’s Motion for Summary Judgment, ECF No. 13, is 18 GRANTED. 19 /// 20 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 2 3. The District Court Executive is directed to enter judgment in favor of Defendant and against Plaintiff. IT IS SO ORDERED. The District Court Executive is directed to enter this 3 Order, forward copies to counsel and close the file. 4 DATED this 4th day of December, 2017. 5 6 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16

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