Kuska v. Berryhill

Filing 17


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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 8 LUCINDA SUE KUSKA, Plaintiff, 9 v. 10 11 CASE NO. C17-5135-MAT NANCY A. BERRYHILL, Acting Commissioner of Social Security, ORDER RE: SOCIAL SECURITY DISABILITY APPEAL 12 Defendant. 13 14 Plaintiff Lucinda Sue Kuska proceeds pro se in her appeal of a final decision of the 15 Commissioner of the Social Security Administration (Commissioner). The Commissioner denied 16 Plaintiff’s application for Supplemental Security Income (SSI) after a hearing before an 17 Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the administrative 18 record (AR), and all memoranda of record, this matter is AFFIRMED. 19 FACTS AND PROCEDURAL HISTORY 20 Plaintiff was born on XXXX, 1971.1 She has a seventh-grade education, and minimal work 21 22 23 1 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 PAGE - 1 1 history as a housekeeper and waitress. (AR 447.) 2 Plaintiff applied for SSI in July 2011. (AR 414-20.) That application was denied initially 3 and upon reconsideration, and Plaintiff timely requested a hearing. (AR 259-62, 265-73, 275-77.) 4 On February 26, 2013, ALJ Tom Morris held a hearing, taking testimony from Plaintiff 5 and a vocational expert (VE). (AR 47-97.) On January 29, 2016, the ALJ issued a decision finding 6 Plaintiff not disabled. (AR 229-44.) Plaintiff timely appealed. The Appeals Council granted 7 Plaintiff’s request for review, and remanded the case back to the ALJ for further proceedings. (AR 8 250-54.) 9 The ALJ held a second hearing on February 5, 2015 (AR 98-26), which was continued on 10 November 10, 2015 (AR 127-98), and he subsequently issued a decision finding Plaintiff not 11 disabled. (AR 20-37.) The Appeals Council denied Plaintiff’s request for review on January 18, 12 2017 (AR 1-5), making the ALJ’s decision the final decision of the Commissioner. Plaintiff 13 appealed this final decision of the Commissioner to this Court. JURISDICTION 14 15 The Court has jurisdiction to review the ALJ’s decision pursuant to 42 U.S.C. § 405(g). DISCUSSION 16 17 The Commissioner follows a five-step sequential evaluation process for determining 18 whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must 19 be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had not 20 engaged in substantial gainful activity since the application date. (AR 22.) At step two, it must 21 be determined whether a claimant suffers from a severe impairment. The ALJ found severe 22 Plaintiff’s “sprains and strains — all types; Essential hypertension; Fractures of lower limb; 23 Affective disorders; Somatoform disorders; Substance issues.” (AR 22-24.) Step three asks ORDER RE: SOCIAL SECURITY DISABILITY APPEAL PAGE - 2 1 whether a claimant’s impairments meet or equal a listed impairment. The ALJ found that 2 Plaintiff’s impairments did not meet or equal the criteria of a listed impairment. (AR 24-25.) 3 If a claimant’s impairments do not meet or equal a listing, the Commissioner must assess 4 residual functional capacity (RFC) and determine at step four whether the claimant has 5 demonstrated an inability to perform past relevant work. The ALJ found Plaintiff capable of 6 performing a range of sedentary work, with the following additional limitations: she can lift/carry 7 10 pounds occasionally and frequently. She can stand/walk for a total of about five hours and sit 8 for a total of about six hours in an eight-hour workday, with normal breaks. She can push/pull 9 occasionally with the right lower extremity. She can occasionally climb ramps and stairs, but 10 never climb ladders, ropes, or scaffolds. She should avoid concentrated exposure to hazards such 11 as dangerous machinery and unprotected heights, as well as “fumes, odors, dusts, gases, poor 12 ventilation, etc.” She can perform unskilled work tasks. She can maintain attendance and be 13 punctual. She is off-task about 7% of an eight-hour workday. Her work tasks should not be at a 14 production-rate pace, but be “goal-oriented work.” (AR 25-26.) With that assessment, the ALJ 15 found Plaintiff unable to perform past relevant work. (AR 36.) 16 If a claimant demonstrates an inability to perform past relevant work, the burden shifts to 17 the Commissioner to demonstrate at step five that the claimant retains the capacity to make an 18 adjustment to work that exists in significant levels in the national economy. The ALJ found 19 Plaintiff capable of transitioning to other representative occupations, including small products 20 assembler, parking lot cashier, and electronic accessory assembler. (AR 36-37.) 21 This Court’s review of the ALJ’s decision is limited to whether the decision is in 22 accordance with the law and the findings supported by substantial evidence in the record as a 23 whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more ORDER RE: SOCIAL SECURITY DISABILITY APPEAL PAGE - 3 1 than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable 2 mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 3 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ’s 4 decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 5 2002). 6 Plaintiff argues the ALJ erred in (1) discounting favorable medical opinions as well as her 7 own subjective testimony, particularly related to her physical limitations; and (2) crediting the 8 Cooperative Disability Investigation Unit’s (CDIU) report, even though the investigation was 9 based on a ruse and the ALJ did not give Plaintiff a chance to explain her statements to the 10 investigator. Plaintiff also contends that her administrative hearings were cut short. The 11 Commissioner argues that the ALJ’s decision is supported by substantial evidence and should be 12 affirmed. Medical opinions 13 14 Plaintiff contends that the ALJ erred in failing to assess her physical RFC. Dkt. 15 at 4-5. 15 This argument overlooks the ALJ’s RFC assessment, which finds Plaintiff capable of performing 16 sedentary work with additional limitations. (AR 25-26.) Plaintiff notes that some providers opined 17 that Plaintiff had certain limitations that the ALJ did not incorporate (see AR 615-21), but the ALJ 18 discussed the opinion evidence and explained why he discounted some of it. (AR 29-33.) The 19 ALJ is entitled to resolve the ambiguities in the medical evidence. See Tommasetti v. Astrue, 533 20 F.3d 1035, 1041 (9th Cir. 2008) (“[T]he ALJ is the final arbiter with respect to resolving 21 ambiguities in the medical evidence.”). Plaintiff has not addressed any of the reasons provided by 22 the ALJ for discounting the opinion evidence, or shown that those reasons were erroneous. 23 The ALJ’s written RFC assessment does, however, fail to address Plaintiff’s need to change ORDER RE: SOCIAL SECURITY DISABILITY APPEAL PAGE - 4 1 positions, a limitation which the ALJ elsewhere purportedly credited. Compare AR 25-26 with 2 AR 29 (“In reaching the RFC finding, I have incorporated both Dr. Distad’s and Dr. Heilbrunn’s 3 opinions for sedentary exertional limitation with a need to change positions on the job.”). The 4 Commissioner contends that this “scrivener’s error” is harmless, because the ALJ addressed 5 Plaintiff’s need to alternate between sitting and standing in the VE hypothetical. Dkt. 16 at 15. 6 Plaintiff did not file a reply brief to respond to this argument. 7 The Commissioner’s argument misstates the content of the VE colloquy, but the Court 8 agrees that the ALJ’s error is nonetheless harmless. In the vocational hypothetical that elicited the 9 jobs relied upon at step five, the ALJ did not include a limitation regarding changing positions, but 10 the VE volunteered sua sponte that those jobs would allow for a sit/stand option. (AR 190-91.) 11 Thus, even though the ALJ erroneously excluded a limitation regarding Plaintiff’s need to change 12 positions, the VE testimony makes clear that the jobs identified at step five would allow Plaintiff 13 to change positions. Plaintiff’s statements 14 15 The ALJ discounted Plaintiff’s subjective statements for a number of reasons, including 16 (1) inconsistency between the medical record and Plaintiff’s allegations; (2) inconsistency between 17 Plaintiff’s activities and her allegations; (3) inconsistencies within Plaintiff’s hearing testimony 18 and between other statements of record; (4) misrepresentations regarding alcohol use; and (5) 19 Plaintiff’s poor work history. (AR 28-32.) 20 Plaintiff contends that she had problems understanding all of the questions the ALJ asked, 21 and the ALJ did not appreciate her difficulty with that process. Dkt. 15 at 3-4. She also contends 22 that the ALJ erred in crediting the CDIU report, because she believes the investigating officer 23 misrepresented some of her statements to make it appear that she was currently performing ORDER RE: SOCIAL SECURITY DISABILITY APPEAL PAGE - 5 1 activities she had actually performed in the past. Dkt. 15 at 7-11. She also asserts that the veracity 2 of the CDIU report is tainted by the officer’s use of a ruse to engage Plaintiff in conversation. Dkt. 3 15 at 11. 4 The hearing transcripts are consistent with Plaintiff’s description of difficulties in 5 understanding; she required redirection and rephrasing on several occasions. (See, e.g., AR 57- 6 58, 68-69, 81-85, 88, 105-09, 111-19, 157, 160-64, 177-85.) The ALJ did mention that Plaintiff 7 either could not provide examples of various symptoms or provided incomplete examples (AR 31- 8 32), and this characterization of Plaintiff’s testimony is reasonable. (See AR 83-87.) The ALJ 9 accommodated Plaintiff’s need for additional explanation and rephrasing, and did not cite her 10 difficulty as a reason to discount her testimony. 11 The ALJ also went on to point out specific inconsistencies within Plaintiff’s testimony, and 12 between Plaintiff’s testimony and other evidence in the record. (AR 32.) These findings were not 13 connected to questions that Plaintiff had difficulty answering, but referenced testimony that was 14 explicitly inconsistent with other evidence, such as Plaintiff’s inconsistent statements and 15 testimony regarding her alcohol use, and statements regarding her ability to sit, stand, and lift a 16 gallon of milk. (AR 32.) The ALJ did not err in considering whether Plaintiff’s hearing testimony 17 was consistent with the remainder of the record. See SSR 96-7p (“One strong indication of the 18 credibility of an individual’s statements is their consistency, both internally and with other 19 information in the case record.”); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (holding 20 that inconsistent statements regarding alcohol use may be considered as a reason to reject a 21 claimant’s testimony). The ALJ cited multiple inconsistencies in Plaintiff’s statements, most of 22 which are unchallenged and all of which support the ALJ’s determination. 23 Plaintiff’s challenges to the CDIU report also fail to demonstrate error in the ALJ’s ORDER RE: SOCIAL SECURITY DISABILITY APPEAL PAGE - 6 1 decision. Although the investigator’s use of a ruse was understandably troubling to Plaintiff (Dkt. 2 15 at 7-8), this technique does not render the report without validity. See Elmore v. Colvin, 617 3 Fed. Appx. 755, 757 (9th Cir. Jul. 15, 2015). Furthermore, Plaintiff had an opportunity to testify 4 about the CDIU report at the hearing, and contended that the investigator saw her on a good day, 5 but did not contradict anything written in the report. (AR 146-47.) Furthermore, Plaintiff fails to 6 address the investigator’s report of Plaintiff’s current and upcoming travels in their motorhome to 7 attend concerts. (AR 1102.) Even if, as Plaintiff contends, the investigator confused some of 8 Plaintiff’s historical activities for current activities, the report also details undisputedly current 9 activities that are inconsistent with her allegations and those portions of the report are 10 unchallenged. Accordingly, Plaintiff has not established error in connection with the CDIU report. 11 Administrative hearings 12 Plaintiff asserts that her administrative hearings were cut short. Dkt. 15 at 5. The record 13 does not support this assertion. The first hearing was allotted for about an hour, according to the 14 ALJ’s schedule (AR 53), the ALJ ensured that Plaintiff had an opportunity at the end of the hearing 15 to tell him anything she felt had been omitted. (AR 96.) Plaintiff’s subsequent hearing was again 16 scheduled for about an hour (AR 131), and Plaintiff again had an opportunity to say anything 17 additional, and instead indicated that everything had been covered. (AR 196-97.) It does not 18 appear that the ALJ prevented Plaintiff from presenting any testimony. 19 established error in this regard. 20 /// 21 /// 22 /// 23 /// ORDER RE: SOCIAL SECURITY DISABILITY APPEAL PAGE - 7 Plaintiff has not CONCLUSION 1 2 For the reasons set forth above, this matter is AFFIRMED. 3 DATED this 4th day of October, 2017. 4 A 5 Mary Alice Theiler United States Magistrate Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 ORDER RE: SOCIAL SECURITY DISABILITY APPEAL PAGE - 8

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