Kuska v. Berryhill

Filing 17

ORDER RE: SOCIAL SECURITY DISABILITY APPEAL by Hon. Mary Alice Theiler. (KMP)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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LUCINDA SUE KUSKA,
Plaintiff,

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v.

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CASE NO. C17-5135-MAT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL

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Defendant.
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Plaintiff Lucinda Sue Kuska proceeds pro se in her appeal of a final decision of the

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Commissioner of the Social Security Administration (Commissioner). The Commissioner denied

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Plaintiff’s application for Supplemental Security Income (SSI) after a hearing before an

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Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the administrative

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record (AR), and all memoranda of record, this matter is AFFIRMED.

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FACTS AND PROCEDURAL HISTORY

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Plaintiff was born on XXXX, 1971.1 She has a seventh-grade education, and minimal work

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Plaintiff’s date of birth is redacted back to the year of birth in accordance with Federal Rule of
Civil Procedure 5.2(a) and the General Order of the Court regarding Public Access to Electronic Case Files,
pursuant to the official policy on privacy adopted by the Judicial Conference of the United States.

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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history as a housekeeper and waitress. (AR 447.)

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Plaintiff applied for SSI in July 2011. (AR 414-20.) That application was denied initially

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and upon reconsideration, and Plaintiff timely requested a hearing. (AR 259-62, 265-73, 275-77.)

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On February 26, 2013, ALJ Tom Morris held a hearing, taking testimony from Plaintiff

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and a vocational expert (VE). (AR 47-97.) On January 29, 2016, the ALJ issued a decision finding

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Plaintiff not disabled. (AR 229-44.) Plaintiff timely appealed. The Appeals Council granted

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Plaintiff’s request for review, and remanded the case back to the ALJ for further proceedings. (AR

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250-54.)

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The ALJ held a second hearing on February 5, 2015 (AR 98-26), which was continued on

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November 10, 2015 (AR 127-98), and he subsequently issued a decision finding Plaintiff not

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disabled. (AR 20-37.) The Appeals Council denied Plaintiff’s request for review on January 18,

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2017 (AR 1-5), making the ALJ’s decision the final decision of the Commissioner. Plaintiff

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appealed this final decision of the Commissioner to this Court.
JURISDICTION

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The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
DISCUSSION

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The Commissioner follows a five-step sequential evaluation process for determining

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whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must

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be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had not

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engaged in substantial gainful activity since the application date. (AR 22.) At step two, it must

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be determined whether a claimant suffers from a severe impairment. The ALJ found severe

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Plaintiff’s “sprains and strains — all types; Essential hypertension; Fractures of lower limb;

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Affective disorders; Somatoform disorders; Substance issues.” (AR 22-24.) Step three asks
ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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whether a claimant’s impairments meet or equal a listed impairment. The ALJ found that

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Plaintiff’s impairments did not meet or equal the criteria of a listed impairment. (AR 24-25.)

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If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess

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residual functional capacity (RFC) and determine at step four whether the claimant has

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demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of

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performing a range of sedentary work, with the following additional limitations: she can lift/carry

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10 pounds occasionally and frequently. She can stand/walk for a total of about five hours and sit

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for a total of about six hours in an eight-hour workday, with normal breaks. She can push/pull

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occasionally with the right lower extremity. She can occasionally climb ramps and stairs, but

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never climb ladders, ropes, or scaffolds. She should avoid concentrated exposure to hazards such

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as dangerous machinery and unprotected heights, as well as “fumes, odors, dusts, gases, poor

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ventilation, etc.” She can perform unskilled work tasks. She can maintain attendance and be

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punctual. She is off-task about 7% of an eight-hour workday. Her work tasks should not be at a

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production-rate pace, but be “goal-oriented work.” (AR 25-26.) With that assessment, the ALJ

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found Plaintiff unable to perform past relevant work. (AR 36.)

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If a claimant demonstrates an inability to perform past relevant work, the burden shifts to

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the Commissioner to demonstrate at step five that the claimant retains the capacity to make an

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adjustment to work that exists in significant levels in the national economy. The ALJ found

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Plaintiff capable of transitioning to other representative occupations, including small products

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assembler, parking lot cashier, and electronic accessory assembler. (AR 36-37.)

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This Court’s review of the ALJ’s decision is limited to whether the decision is in

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accordance with the law and the findings supported by substantial evidence in the record as a

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whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more
ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750

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(9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s

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decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.

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2002).

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Plaintiff argues the ALJ erred in (1) discounting favorable medical opinions as well as her

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own subjective testimony, particularly related to her physical limitations; and (2) crediting the

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Cooperative Disability Investigation Unit’s (CDIU) report, even though the investigation was

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based on a ruse and the ALJ did not give Plaintiff a chance to explain her statements to the

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investigator.

Plaintiff also contends that her administrative hearings were cut short.

The

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Commissioner argues that the ALJ’s decision is supported by substantial evidence and should be

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affirmed.
Medical opinions

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Plaintiff contends that the ALJ erred in failing to assess her physical RFC. Dkt. 15 at 4-5.

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This argument overlooks the ALJ’s RFC assessment, which finds Plaintiff capable of performing

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sedentary work with additional limitations. (AR 25-26.) Plaintiff notes that some providers opined

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that Plaintiff had certain limitations that the ALJ did not incorporate (see AR 615-21), but the ALJ

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discussed the opinion evidence and explained why he discounted some of it. (AR 29-33.) The

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ALJ is entitled to resolve the ambiguities in the medical evidence. See Tommasetti v. Astrue, 533

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F.3d 1035, 1041 (9th Cir. 2008) (“[T]he ALJ is the final arbiter with respect to resolving

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ambiguities in the medical evidence.”). Plaintiff has not addressed any of the reasons provided by

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the ALJ for discounting the opinion evidence, or shown that those reasons were erroneous.

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The ALJ’s written RFC assessment does, however, fail to address Plaintiff’s need to change
ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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positions, a limitation which the ALJ elsewhere purportedly credited. Compare AR 25-26 with

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AR 29 (“In reaching the RFC finding, I have incorporated both Dr. Distad’s and Dr. Heilbrunn’s

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opinions for sedentary exertional limitation with a need to change positions on the job.”). The

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Commissioner contends that this “scrivener’s error” is harmless, because the ALJ addressed

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Plaintiff’s need to alternate between sitting and standing in the VE hypothetical. Dkt. 16 at 15.

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Plaintiff did not file a reply brief to respond to this argument.

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The Commissioner’s argument misstates the content of the VE colloquy, but the Court

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agrees that the ALJ’s error is nonetheless harmless. In the vocational hypothetical that elicited the

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jobs relied upon at step five, the ALJ did not include a limitation regarding changing positions, but

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the VE volunteered sua sponte that those jobs would allow for a sit/stand option. (AR 190-91.)

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Thus, even though the ALJ erroneously excluded a limitation regarding Plaintiff’s need to change

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positions, the VE testimony makes clear that the jobs identified at step five would allow Plaintiff

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to change positions.
Plaintiff’s statements

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The ALJ discounted Plaintiff’s subjective statements for a number of reasons, including

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(1) inconsistency between the medical record and Plaintiff’s allegations; (2) inconsistency between

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Plaintiff’s activities and her allegations; (3) inconsistencies within Plaintiff’s hearing testimony

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and between other statements of record; (4) misrepresentations regarding alcohol use; and (5)

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Plaintiff’s poor work history. (AR 28-32.)

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Plaintiff contends that she had problems understanding all of the questions the ALJ asked,

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and the ALJ did not appreciate her difficulty with that process. Dkt. 15 at 3-4. She also contends

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that the ALJ erred in crediting the CDIU report, because she believes the investigating officer

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misrepresented some of her statements to make it appear that she was currently performing
ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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activities she had actually performed in the past. Dkt. 15 at 7-11. She also asserts that the veracity

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of the CDIU report is tainted by the officer’s use of a ruse to engage Plaintiff in conversation. Dkt.

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15 at 11.

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The hearing transcripts are consistent with Plaintiff’s description of difficulties in

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understanding; she required redirection and rephrasing on several occasions. (See, e.g., AR 57-

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58, 68-69, 81-85, 88, 105-09, 111-19, 157, 160-64, 177-85.) The ALJ did mention that Plaintiff

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either could not provide examples of various symptoms or provided incomplete examples (AR 31-

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32), and this characterization of Plaintiff’s testimony is reasonable. (See AR 83-87.) The ALJ

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accommodated Plaintiff’s need for additional explanation and rephrasing, and did not cite her

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difficulty as a reason to discount her testimony.

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The ALJ also went on to point out specific inconsistencies within Plaintiff’s testimony, and

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between Plaintiff’s testimony and other evidence in the record. (AR 32.) These findings were not

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connected to questions that Plaintiff had difficulty answering, but referenced testimony that was

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explicitly inconsistent with other evidence, such as Plaintiff’s inconsistent statements and

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testimony regarding her alcohol use, and statements regarding her ability to sit, stand, and lift a

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gallon of milk. (AR 32.) The ALJ did not err in considering whether Plaintiff’s hearing testimony

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was consistent with the remainder of the record. See SSR 96-7p (“One strong indication of the

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credibility of an individual’s statements is their consistency, both internally and with other

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information in the case record.”); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (holding

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that inconsistent statements regarding alcohol use may be considered as a reason to reject a

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claimant’s testimony). The ALJ cited multiple inconsistencies in Plaintiff’s statements, most of

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which are unchallenged and all of which support the ALJ’s determination.

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Plaintiff’s challenges to the CDIU report also fail to demonstrate error in the ALJ’s
ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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decision. Although the investigator’s use of a ruse was understandably troubling to Plaintiff (Dkt.

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15 at 7-8), this technique does not render the report without validity. See Elmore v. Colvin, 617

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Fed. Appx. 755, 757 (9th Cir. Jul. 15, 2015). Furthermore, Plaintiff had an opportunity to testify

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about the CDIU report at the hearing, and contended that the investigator saw her on a good day,

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but did not contradict anything written in the report. (AR 146-47.) Furthermore, Plaintiff fails to

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address the investigator’s report of Plaintiff’s current and upcoming travels in their motorhome to

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attend concerts. (AR 1102.) Even if, as Plaintiff contends, the investigator confused some of

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Plaintiff’s historical activities for current activities, the report also details undisputedly current

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activities that are inconsistent with her allegations and those portions of the report are

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unchallenged. Accordingly, Plaintiff has not established error in connection with the CDIU report.

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Administrative hearings

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Plaintiff asserts that her administrative hearings were cut short. Dkt. 15 at 5. The record

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does not support this assertion. The first hearing was allotted for about an hour, according to the

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ALJ’s schedule (AR 53), the ALJ ensured that Plaintiff had an opportunity at the end of the hearing

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to tell him anything she felt had been omitted. (AR 96.) Plaintiff’s subsequent hearing was again

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scheduled for about an hour (AR 131), and Plaintiff again had an opportunity to say anything

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additional, and instead indicated that everything had been covered. (AR 196-97.) It does not

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appear that the ALJ prevented Plaintiff from presenting any testimony.

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established error in this regard.

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ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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Plaintiff has not

CONCLUSION

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For the reasons set forth above, this matter is AFFIRMED.

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DATED this 4th day of October, 2017.

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A

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Mary Alice Theiler
United States Magistrate Judge

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ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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