Romanyuk v. Colvin

Filing 12


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1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 VALERIY ROMANYUK, 9 10 11 12 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE Defendant. 13 14 NO. C17-0030RSL Plaintiff Valeriy Romanyuk appeals the final decision of the Commissioner of the 15 Social Security Administration (“Commissioner”), which denied his application for 16 Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. 17 §§ 1381-83f, after a hearing before an administrative law judge (“ALJ”). For the reasons set 18 forth below, the Commissioner’s decision is AFFIRMED. 19 20 I. FACTS AND PROCEDURAL HISTORY Plaintiff is a 67-year-old man with a 10th-grade education. Administrative Record 21 (“AR”) at 218, 230. His past work experience was as an assembler at a warehouse. AR at 231. 22 Plaintiff was last gainfully employed in December of 2009. AR at 230. 23 24 ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 1 1 Plaintiff protectively filed an application for SSI on July 31, 2012. AR at 13. Plaintiff 2 asserted that he was disabled due to heart failure, unstable blood pressure, and difficulty 3 breathing. AR at 229. 4 The Commissioner denied plaintiff’s claims initially and on reconsideration. AR at 13. 5 Plaintiff requested a hearing, which took place on April 7, 2015. Id. On June 17, 2015, the ALJ 6 issued a decision finding that plaintiff was not disabled based on his finding that plaintiff could 7 perform past relevant work. AR at 13-20. Plaintiff’s request for review by the Appeals Council 8 was denied on December 8, 2016 (AR at 1-7), making the ALJ’s ruling the “final decision” of 9 the Commissioner as that term is defined by 42 U.S.C. § 405(g). On January 11, 2017, plaintiff 10 timely filed the present action challenging the Commissioner’s decision. Dkt. 3. II. 11 12 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of 13 social security benefits when the ALJ’s findings are based on legal error or not supported by 14 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th 15 Cir. 2005). “Substantial evidence” is more than a scintilla, less than a preponderance, and is 16 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 17 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 18 (9th Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in 19 medical testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 20 53 F.3d 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a 21 whole, it may neither reweigh the evidence nor substitute its judgment for that of the 22 Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is 23 susceptible to more than one rational interpretation, it is the Commissioner’s conclusion that 24 must be upheld. Id. ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 2 III. 1 2 EVALUATING DISABILITY As the claimant, Mr. Romanyuk bears the burden of proving that he is disabled within 3 the meaning of the Social Security Act (the “Act”). Meanel v. Apfel, 172 F.3d 1111, 1113 (9th 4 Cir. 1999). The Act defines disability as the “inability to engage in any substantial gainful 5 activity” due to a physical or mental impairment which has lasted, or is expected to last, for a 6 continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). A claimant is 7 disabled under the Act only if his impairments are of such severity that he is unable to do his 8 previous work, and cannot, considering his age, education, and work experience, engage in any 9 other substantial gainful activity existing in the national economy. 42 U.S.C. § 423(d)(2)(A); 10 11 see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999). The Commissioner has established a five-step sequential evaluation process for 12 determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. 13 § 416.920. The claimant bears the burden of proof during steps one through four. At step five, 14 the burden shifts to the Commissioner. Id. If a claimant is found to be disabled at any step in 15 the sequence, the inquiry ends without the need to consider subsequent steps. Step one asks 16 whether the claimant is presently engaged in “substantial gainful activity.” 20 C.F.R. 17 § 416.920(b). 1 If he is, disability benefits are denied. If he is not, the Commissioner proceeds 18 to step two. At step two, the claimant must establish that he has one or more medically severe 19 impairments, or combination of impairments, that limit his physical or mental ability to do 20 basic work activities. If the claimant does not have such impairments, he is not disabled. 20 21 C.F.R. § 416.920(c). If the claimant does have a severe impairment, the Commissioner moves 22 23 1 Substantial gainful activity is work activity that is both substantial, i.e., involves significant physical and/or mental activities, and gainful, i.e., performed for profit. 20 C.F.R. § 404.1572. 24 ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 3 1 to step three to determine whether the impairment meets or equals any of the listed 2 impairments described in the regulations. 20 C.F.R. § 416.920(d). A claimant whose 3 impairment meets or equals one of the listings for the required 12-month duration requirement 4 is disabled. Id. 5 When the claimant’s impairment neither meets nor equals one of the impairments listed 6 in the regulations, the Commissioner must proceed to step four and evaluate the claimant’s 7 residual functional capacity (“RFC”). 20 C.F.R. § 416.920(e). Here, the Commissioner 8 evaluates the physical and mental demands of the claimant’s past relevant work to determine 9 whether he can still perform that work. 20 C.F.R. § 416.920(f). If the claimant is able to 10 perform his past relevant work, he is not disabled; if the opposite is true, then the burden shifts 11 to the Commissioner at step five to show that the claimant can perform other work that exists 12 in significant numbers in the national economy, taking into consideration the claimant’s RFC, 13 age, education, and work experience. 20 C.F.R. § 416.920(g); Tackett, 180 F.3d at 1099, 1100. 14 If the Commissioner finds the claimant is unable to perform other work, then the claimant is 15 found disabled and benefits may be awarded. IV. 16 DECISION BELOW 17 On June 17, 2015, the ALJ issued a decision finding the following: 18 1. The claimant has not engaged in substantial gainful activity since July 31, 2012, the application date (20 C.F.R. §§ 416.971 et seq.). 2. The claimant has the severe impairment of cardiomyopathy (20 C.F.R. § 416.920(c)). 3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). 4. The claimant has the residual functional capacity to perform light work as defined in 20 C.F.R. § 416.967(b) with the following 19 20 21 22 23 24 ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 4 limitations: he can frequently balance; he can occasionally climb ramps and stairs, stoop, kneel, crouch, and crawl; and he can never climb ladders, ropes, or scaffolds. 1 2 5. 4 The claimant is capable of performing past relevant work as a production assembler (20 C.F.R. § 416.965). 6. 3 The claimant has not been under a disability, as defined in the Social Security Act, since July 31, 2012, the date the application was filed (20 C.F.R. § 416.920(g)). 5 6 AR at 13-20. 7 V. ISSUES ON APPEAL 8 The issues on appeal are: 9 A. Whether the ALJ erred in evaluating plaintiff’s severe impairments. 10 B. Whether the ALJ erred in evaluating the medical evidence in the record. 11 C. Whether the ALJ erred in evaluating plaintiff’s testimony. 12 D. Whether the ALJ erred by finding at step four that plaintiff could perform past relevant work and failing to continue to step five and to find plaintiff disabled. 13 Dkt. 9 at 1. 14 VI. DISCUSSION 15 A. Evaluation of Plaintiff’s Severe Impairments 16 Plaintiff argues that the ALJ erred by failing to find plaintiff’s hypertension to be a 17 severe impairment. See Dkt. 9 at 4-6. The Court finds no harmful error. 18 At step two of the sequential evaluation process, the ALJ must determine if an 19 impairment is “severe.” 20 C.F.R. § 416.920. An impairment is “not severe” if it does not 20 “significantly limit” a claimant’s mental or physical abilities to do basic work activities. 20 21 C.F.R. § 416.920(a)(4)(iii), (c); see also Social Security Ruling (“SSR”) 96-3p, 1996 WL 22 374181, at *1. Basic work activities are those “abilities and aptitudes necessary to do most 23 jobs.” 20 C.F.R. § 416.921(b); SSR 85-28, 1985 WL 56856, at *3. The claimant has the 24 ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 5 1 burden of proving that his “impairments or their symptoms affect [his] ability to perform basic 2 work activities.” Edlund v. Massanari, 253 F.3d 1152, 1159-60 (9th Cir. 2001); Tidwell v. 3 Apfel, 161 F.3d 599, 601 (9th Cir. 1998). 4 The step-two inquiry, however, is a de minimis screening device used to dispose of 5 groundless claims. See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An ALJ must 6 still consider all medically determinable impairments, not just those determined to be severe, 7 when assessing a claimant’s RFC. See SSR 96-8p, 1996 WL 374184, at *2. Therefore, where 8 an ALJ finds in a claimant’s favor at step two, any error in failing to determine other 9 impairments to be severe is harmless so long as the ALJ considered the limitations stemming 10 from those impairments throughout the remainder of the analysis. See Lewis v. Astrue, 498 11 F.3d 909, 911 (9th Cir. 2007); Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (finding 12 that an ALJ’s error is harmless where it is inconsequential to the ultimate disability 13 determination). 14 Here, the ALJ found in plaintiff’s favor at step two, determining that he had the severe 15 impairment of cardiomyopathy. See AR at 15. Plaintiff argues that the medical evidence 16 demonstrates that his hypertension was also a severe impairment. See Dkt. 9 at 4-6. However, 17 the only functional limitation stemming from his hypertension that plaintiff identifies is slowed 18 pace, to which he and his daughter testified. 2 See id. However, the ALJ considered both 19 plaintiff’s and his daughter’s testimony in assessing the RFC and gave reasons to discount their 20 opinions. See AR at 17-19. As described below, the ALJ gave a sufficient reason to discount 21 plaintiff’s testimony. See infra § VI.C. Plaintiff did not challenge the ALJ’s reasons for 22 23 24 2 Plaintiff also argues that state agency physicians stated that plaintiff would have limited exertional capacity on a permanent basis. See Dkt. 9 at 6. However, the limited “exertional capacity” to which the state agency physicians were referring was the ability to sit, stand, lift, carry, push, and pull according to the requirements of light work, which the ALJ incorporated into the RFC. See AR at 65-66, 76. ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 6 1 discounting plaintiff’s daughter’s testimony. See Dkt. 9. Therefore, plaintiff does not meet his 2 burden of establishing that any error by the ALJ in evaluating his severe impairments was 3 harmful. 4 B. Evaluation of the Medical Evidence Plaintiff argues that the ALJ erred in his analysis of the medical evidence in the record. 5 6 See Dkt. 9 at 7-14. The ALJ is responsible for determining credibility and resolving 7 ambiguities and conflicts in the medical evidence. See Reddick v. Chater, 157 F.3d 715, 722 8 (9th Cir. 1998). Where the medical evidence in the record is not conclusive, “questions of 9 credibility and resolution of conflicts” are solely the functions of the ALJ. Sample v. 10 Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). In such cases, “the ALJ’s conclusion must be 11 upheld.” Morgan v. Comm’r, Soc. Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1999). 12 Determining whether inconsistencies in the medical evidence “are material (or are in fact 13 inconsistencies at all) and whether certain factors are relevant to discount” the opinions of 14 medical experts “falls within this responsibility.” Id. at 603. 15 In resolving questions of credibility and conflicts in the evidence, an ALJ’s findings 16 “must be supported by specific, cogent reasons.” Reddick, 157 F.3d at 725. The ALJ can do 17 this “by setting out a detailed and thorough summary of the facts and conflicting clinical 18 evidence, stating his interpretation thereof, and making findings.” Id. The ALJ must provide 19 “clear and convincing” reasons for rejecting the uncontradicted opinion of a physician. Lester 20 v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Even when a physician’s opinion is contradicted, 21 that opinion “can only be rejected for specific and legitimate reasons that are supported by 22 substantial evidence in the record.” Id. at 830-31. 23 // 24 // ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 7 1 1. Irina Milman, M.D. 2 Plaintiff argues that the ALJ erred by failing to give a specific and legitimate reason 3 supported by substantial evidence to discount the opinion treating physician Irina Milman, 4 M.D. See Dkt. 9 at 9-12. The Court disagrees. On June 13, 2011, Dr. Milman authored a DSHS functional assessment form and found 5 6 that plaintiff could stand for one hour and sit for two hours in an eight-hour day, could lift ten 7 pounds occasionally and two pounds frequently, had postural restrictions, and he had gross or 8 fine motor skill restrictions. See AR at 402-03. The ALJ gave Dr. Milman’s opinion little 9 weight because it predated plaintiff’s application date by more than a year and because plaintiff 10 “made substantial progess” shortly after the opinion was offered. See AR at 19. First, when reviewing an application for SSI, the agency only develops the record for 11 12 the 12 months prior to the application date unless there is a reason to believe that development 13 of an earlier period is necessary. See 20 C.F.R. § 416.912(d). Therefore, the Ninth Circuit has 14 stated that, while not prohibited from consideration, “[m]edical opinions that predate the 15 alleged onset of disability are of limited relevance.” See Carmickle v. Comm’r, Soc. Sec. 16 Admin., 533 F.3d 1155, 1165 (9th Cir. 2008). The ALJ noted that Dr. Milman’s opinion was 17 formed outside of the relevant period and found that plaintiff’s condition had progressed by the 18 time the relevant period began. See AR at 19. The ALJ, earlier in his decision, discussed 19 multiple exams in which plaintiff reported significant improvement since the time Dr. Milman 20 offered her opinion. See AR at 17-18, 328, 331, 346, 364, 371, 373, 380, 384. Therefore, 21 substantial evidence supports the ALJ’s specific and legitimate reasons for discounting Dr. 22 Milman’s opinion in assessing plaintiff’s RFC during the relevant period. 23 // 24 // ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 8 1 2. Nancy Bartholomew, ARNP 2 Plaintiff argues that the ALJ erred by failing to give a germane reason supported by 3 substantial evidence to discount the opinion of nurse practitioner Nancy Bartholomew, ARNP. 4 See Dkt. 9 at 12-13. The Court disagrees. 5 On May 30, 2012, Ms. Bartholomew completed a check-box form and found that 6 plaintiff was incapable of performing even sedentary work. See AR at 400-01. The ALJ gave 7 Ms. Bartholomew’s opinion no weight because, among other reasons, the check-box form did 8 not contain any explanation for the limitations found. See AR at 19. The testimony of “other 9 [medical] sources,” such as nurse practitioners, may be discounted if the ALJ “gives reasons 10 germane to each [source] for doing so.” See Molina, 674 F.3d at 1111. An ALJ may reject 11 check-box reports that do not contain any explanation of the bases of their conclusions. See id. 12 Here, the check-box report provided no such explanation. See AR at 400-01. Therefore, the 13 ALJ provided a germane reason supported by substantial evidence for discounting Ms. 14 Bartholomew’s opinion. 15 3. 16 Plaintiff argues that the ALJ erred in his evaluation of the opinions of the state agency 17 18 State Agency Physicians physicians for several reasons. See Dkt. 9 at 8-9, 13-14. The Court disagrees. The state agency physicians found in October of 2012 and May of 2013 that plaintiff 19 had the RFC to perform light work with additional postural and environmental limitations. See 20 AR at 66-67, 76-77. The ALJ gave these opinions significant weight and assessed plaintiff’s 21 RFC accordingly. See AR at 16, 18-19. 22 First, plaintiff argues that the ALJ erred by giving significant weight only to the state 23 agency physicians’ opinions because non-examining physicians’ opinions alone cannot 24 constitute the substantial evidence required to support an RFC. See Dkt. 9 at 8-9. However, a ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 9 1 non-examining physician’s opinion may constitute substantial evidence if “it is consistent with 2 other independent evidence in the record.” See Lester, 81 F.3d at 830-31. Here, the ALJ 3 explained that the state agency physicians’ opinions were consistent with medical evidence in 4 the record indicating improvement after treatment and consistent with plaintiff’s activities. See 5 AR at 18. Still, plaintiff argues that an ALJ has a duty to develop the record whenever no 6 treating or examining physician provided an RFC assessment. See Dkt. 9 at 8. Ninth Circuit 7 precedent does not support this proposition. An ALJ’s duty to develop the record “is triggered 8 only when there is ambiguous evidence or when the record is inadequate to allow for proper 9 evaluation of the evidence.” See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001). Here, 10 the ALJ found that the state agency physicians’ opinions, which were supported by the medical 11 record and plaintiff’s reported activities, allowed for a proper evaluation of plaintiff’s 12 functional capacity. Plaintiff does not establish harmful error in that finding. Next, plaintiff argues that the ALJ erred by giving significant weight to the state agency 13 14 physicians’ opinions when those physicians did not have the full medical record available to 15 them. See Dkt. 9 at 13-14. However, that other medical evidence was produced after the date 16 of the physicians’ opinions does not alone render them stale. Instead, the ALJ must evaluate 17 their consistency with the entire record, including any evidence produced after the physicians’ 18 opinions were issued. See SSR 96-6p, 1996 WL 374188, at *2. Here, the ALJ found the state 19 agency physicians’ opinions to be consistent with the longitudinal record and plaintiff’s 20 activities. See AR at 18. Therefore, the ALJ did not err by giving the physicians’ opinions 21 significant weight simply because evidence was produced after their opinions were issued. 22 Plaintiff shows no harmful error in the ALJ’s evaluation of the medical evidence as a whole. 23 // 24 // ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 10 1 C. Evaluation of Plaintiff’s Testimony Plaintiff argues that the ALJ erred by discounting plaintiff’s subjective complaints. See 2 3 Dkt. 9 at 14-17. The Court disagrees. Questions of credibility are solely within the control of the ALJ. See Sample, 694 F.2d 4 5 at 642. The Court should not “second-guess” this credibility determination. Allen v. Heckler, 6 749 F.2d 577, 580 (9th Cir. 1984). In addition, the Court may not reverse a credibility 7 determination where that determination is based on contradictory or ambiguous evidence. See 8 id. at 579. To reject a claimant’s subjective complaints, the ALJ must provide “specific, cogent 9 reasons for the disbelief.” Lester, 81 F.3d at 834 (citation omitted). The ALJ “must identify 10 what testimony is not credible and what evidence undermines the claimant’s complaints.” Id.; 11 see also Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). Unless affirmative evidence 12 shows the claimant is malingering, the ALJ’s reasons for rejecting the claimant’s testimony 13 must be “clear and convincing.” Lester, 81 F.2d at 834. That some of the reasons for 14 discrediting a claimant’s testimony should properly be discounted does not render the ALJ’s 15 determination invalid, as long as that determination is supported by substantial evidence. See 16 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). Here, plaintiff testified that he breathed poorly and experienced fatigue, resulting in a 17 18 slowed pace to all of his activities. See AR at 42-45, 246-47, 284-85. The ALJ found that 19 plaintiff was limited due to his impairments but not to the degree that plaintiff described 20 because, among other reasons, plaintiff had reported improvement to his physicians. See AR at 21 17-18. 22 An ALJ may discount a claimant’s subjective complaints on the basis of medical 23 improvement in the record following treatment. See Morgan, 169 F.3d at 599. Furthermore, an 24 ALJ may consider prior inconsistent statements concerning symptoms when evaluating a ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 11 1 claimant’s testimony. See Smolen, 80 F.3d at 1284. Plaintiff had a cardiac event in May of 2 2011, over a year before his application date, but by July of 2011 plaintiff reported feeling 3 “much better than he [had] in a long time” and walking hills without shortness of breath. See 4 AR at 360-61, 364. Throughout 2012, plaintiff continued to report to physicians that he was 5 feeling well and denied chest pain or excessive shortness of breath. See AR 328, 331, 373. In 6 December of 2013, plaintiff sought treatment for a possible cardiac event, but his symptoms 7 resolved without treatment and he was released from the hospital. See AR at 408-13. In 2014 8 and 2015, plaintiff continued to deny chest pain and shortness of breath or report that they only 9 occurred with overexertion. See AR at 438-39, 458-59. Therefore, though plaintiff argues for a 10 different interpretation of the medical record, substantial evidence supports the ALJ’s clear and 11 convincing reason to discount the severity of the limitations to which plaintiff testified. 12 D. 13 The ALJ’s Finding at Step Four Plaintiff argues that the ALJ erred at step four in finding plaintiff capable of performing 14 past relevant work. See Dkt. 9 at 17-18. Plaintiff argues that the step-four finding is not 15 supported by substantial evidence because the RFC was deficient due to the ALJ’s alleged 16 errors in evaluating the medical evidence. See id. However, as described above, the Court finds 17 no harmful error in the ALJ’s evaluation of plaintiff’s severe impairment, the medical evidence 18 in the record, or plaintiff’s testimony, and therefore finds no error in the RFC assessment or the 19 ALJ’s finding at step four. See supra §§ VI.A-C. 20 Plaintiff also argues that the ALJ erred by failing to address plaintiff’s illiteracy at step 21 four. See Dkt. 9 at 17-18. However, plaintiff’s education becomes a factor at step five of the 22 sequential evaluation process. See 20 C.FR. §§ 416.920(g)(1), 416.960(c)(1). The ALJ, based 23 on vocational expert testimony, found at step four that plaintiff could perform his past relevant 24 ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 12 1 work as a production assembler both as it is generally performed and as it was actually 2 performed by plaintiff. See AR at 20. Therefore, plaintiff demonstrates no harmful error. 3 Finally, plaintiff argues that the ALJ should have found him disabled according to the 4 Medical Vocational Guidelines. See Dkt. 9 at 3-4. However, as conceded in the reply brief, that 5 determination is only relevant at step five, and plaintiff was found not to be disabled at step 6 four. See Dkt. 11 at 9. 7 8 9 10 VII. CONCLUSION For the foregoing reasons, the decision of the Commissioner is AFFIRMED. The Clerk of Court is directed to enter judgment in favor of defendant and against plaintiff. Dated this 8th day of August, 2017. 11 A 12 Robert S. Lasnik United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 ORDER AFFIRMING COMMISSIONER’S DECISION AND DISMISSING CASE - 13

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