Weed v. Berryhill

Filing 13

ORDER AFFIRMING DEFENDANTS DECISION TO DENY BENEFITS by Judge David W. Christel. (SH)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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CAROL MARIE WEED,

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Plaintiff,

CASE NO. 3:17-CV-05712-DWC
ORDER AFFIRMING DEFENDANT’S
DECISION TO DENY BENEFITS

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.
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Plaintiff Carol Marie Weed filed this action, pursuant to 42 U.S.C. § 405(g), for judicial

17 review of Defendant’s denial of her application for disability insurance benefits (“DIB”). Pursuant
18 to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have
19 consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 2.
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After considering the record, the Court concludes Plaintiff has failed to show the

21 Administrative Law Judge (“ALJ”) erred when he found Plaintiff did not have a severe mental
22 impairment and was not disabled under Listing 1.04. Further, the ALJ gave a clear and convincing
23 reason for discounting Plaintiff’s subjective symptom testimony. Accordingly, the decision of the
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ORDER AFFIRMING DEFENDANT’S DECISION
TO DENY BENEFITS - 1

1 Acting Commissioner of Social Security (“Commissioner”) is affirmed pursuant to sentence four
2 of 42 U.S.C. § 405(g).
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FACTUAL AND PROCEDURAL HISTORY

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On February 11, 2013, Plaintiff filed an application for DIB, alleging disability as of

5 January 25, 2008. See Dkt. 7, Administrative Record (“AR”) 14. The application was denied upon
6 initial administrative review and on reconsideration. See AR 14. A hearing was held before ALJ
7 Gene Duncan and a decision denying benefits was issued on April 24, 2014. See AR 75-82, 878 133. Plaintiff appealed to the Appeals Council and, on September 18, 2015, the Appeals Council
9 remanded the case to the ALJ. AR 69-70. In the remand order, the Appeals Council directed the
10 ALJ to further evaluate whether Plaintiff could perform her past relevant work. See id. The
11 Appeals Council also directed the ALJ to expand the record, if warranted, and offer Plaintiff an
12 opportunity for a hearing. See id.
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Following the Appeals Council remand, the ALJ held a hearing on March 17, 2016. AR 29-

14 66. In a decision dated April 11, 2016, the ALJ again found Plaintiff not disabled. AR 14-23.
15 Plaintiff’s request for review of the ALJ’s decision was denied by the Appeals Council, making the
16 ALJ’s April 11, 2016 decision the final decision of the Commissioner. See AR 1-5, 20 C.F.R. §
17 404.981, § 416.1481. 1
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In the Opening Brief, Plaintiff maintains the ALJ erred by failing to properly consider: (1)

19 Plaintiff’s mental impairments; (2) whether Plaintiff met Listing 1.04; and (3) Plaintiff’s subjective
20 symptom testimony. Dkt. 11, p. 2.
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The Court notes that the April 11, 2016 decision is the final decision of the Commissioner. However, as

23 the Appeals Council did not disturb the majority of the ALJ’s findings in the April 24, 2014 decision, the ALJ

adopted much of the 2014 decision. Therefore, in determining if the ALJ erred, the Court has referred to the 2014

24 decision when that analysis was adopted by the ALJ in the 2016 decision.
ORDER AFFIRMING DEFENDANT’S DECISION
TO DENY BENEFITS - 2

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STANDARD OF REVIEW

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Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of

3 social security benefits if the ALJ’s findings are based on legal error or not supported by
4 substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th
5 Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
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DISCUSSION
I.

Whether the ALJ erred at Step Two by failing to find Plaintiff suffers from a
severe mental impairment.

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In the Opening Brief, Plaintiff argues the ALJ erred when he failed to find Plaintiff suffers
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from mental impairments. Dkt. 11, pp. 6-7. While unclear, it appears Plaintiff is asserting the ALJ
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erred at Step Two of the sequential evaluation process when he found Plaintiff did not suffer from
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any severe mental impairment. See id. 2
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Step Two of the administration’s evaluation process requires the ALJ to determine whether
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the claimant “has a medically severe impairment or combination of impairments.” Smolen v.
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Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citation omitted); 20 C.F.R. §§ 404.1520(a)(4)(ii),
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416.920(a)(4)(ii) (1996). An impairment is “not severe” if it does not “significantly limit” the
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ability to conduct basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Regarding mental
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impairments, the ALJ will consider four broad functional areas: activities of daily living; social
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functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §
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404.1520a(c)(3). 3 If the ALJ rates the degree of a claimant’s limitation “in the first three functional
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Based on Plaintiff’s briefing, Defendant argued the ALJ properly followed the Appeals Council’s remand

22 order. See Dkt. 12. The Court has reviewed Plaintiff’s Opening Brief and does not find Plaintiff is asserting the ALJ
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erred by failing to follow the remand order. See Dkt. 11, pp. 6-7. Rather, it appears Plaintiff is asserting the ALJ
adopted the 2014 decision in his 2016 decision and neither decision considered Plaintiff’s mental impairments.
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On March 27, 2017, the four areas of functioning changed to: Understand, remember, or apply
information; interact with others; concentrate, persist, or maintain pace; and adapt or manage oneself. 20 C.F.R. §
404.1520a(c)(3). The Court, however, applies the regulations which were in effect on the date of the ALJ decision.
ORDER AFFIRMING DEFENDANT’S DECISION
TO DENY BENEFITS - 3

1 areas as ‘none’ or ‘mild’ and ‘none’ in the fourth area, [the ALJ] will generally conclude that [the
2 claimant’s] impairment(s) is not severe, unless the evidence otherwise indicates that there is more
3 than a minimal limitation in [the claimant’s] ability to do basic work activities.” Id. at (d)(1). “An
4 impairment or combination of impairments can be found ‘not severe’ only if the evidence
5 establishes a slight abnormality having ‘no more than a minimal effect on an individual[’]s ability
6 to work.’” Smolen, 80 F.3d at 1290 (quoting Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)
7 (adopting Social Security Ruling “SSR” 85-28)).
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Here, the ALJ found Plaintiff suffered from the following severe impairments: sciatica,

9 chronic pain syndrome, opioid dependence, and use of marijuana. AR 17. The ALJ did not find
10 Plaintiff had any severe mental impairments. See AR 17-18, 77-78.
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Plaintiff argues she suffers from depression. Dkt. 11, p. 7. For her depression to constitute a

12 medically severe impairment, Plaintiff must establish a diagnosis of depression through objective
13 medical evidence (i.e., signs and laboratory findings). See SSR 96-3p; Ukolov v. Barnhart, 420
14 F.3d 1002, 1006 (9th Cir. 2005) (finding the plaintiff failed to establish an impairment at Step Two
15 when “none of the medical opinions included a finding of impairment, a diagnosis, or objective test
16 results”). Plaintiff provides no record citations showing she has been diagnosed with depression.
17 See Dkt. 11, pp. 6-7. Plaintiff cites only to her testimony, wherein she testified that she thought she
18 had depression. Dkt. 11, p. 7; AR 42. As Plaintiff failed to cite to any medical evidence showing
19 she has been diagnosed with depression and that it limits her ability to perform basic work
20 activities, the Court finds Plaintiff has not shown the ALJ erred at Step Two. See Shinseki v.
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23 See Rose v. Berryhill, 256 F.Supp.3d 1079, 1083 n. 3 (C.D. Cal. June 13, 2017) (“the reviewing court generally
applies the law in effect at the time of the ALJ’s decision”).

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ORDER AFFIRMING DEFENDANT’S DECISION
TO DENY BENEFITS - 4

1 Sanders, 556 U.S. 396, 410 (2009) (finding the plaintiff has the burden of demonstrating there are
2 harmful errors in the ALJ’s decision).
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II.

Whether the ALJ erred in failing to properly consider Plaintiff’s sciatica at Step
Three.

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Plaintiff argues the ALJ erred by failing to consider whether Plaintiff’s sciatica met Listing
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1.04. Dkt. 11, pp. 7-8. At Step Three of the sequential evaluation process, the ALJ considers
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whether one or more of the claimant’s impairments meets or equals an impairment listed in
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Appendix 1 to Subpart P of the regulations. 20 C.F.R. § 404.1520(a)(4)(iii). Each Listing sets forth
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the “symptoms, signs, and laboratory findings” which must be established in order for a claimant’s
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impairment to meet the Listing. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). If a claimant
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meets or equals a Listing, the claimant is considered disabled without further inquiry. See 20
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C.F.R. § 416.920(d).
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The burden of proof is on the claimant to establish she meets or equals any of the
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impairments in the Listings. See Tacket, 180 F.3d at 1098. “A generalized assertion of functional
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problems,” however, “is not enough to establish disability at step three.” Id. at 1100 (citing 20
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C.F.R. § 404.1526). A mental or physical impairment “must result from anatomical, physiological,
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or psychological abnormalities which can be shown by medically acceptable clinical and
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laboratory diagnostic techniques.” 20 C.F.R. § 404.1508. It must be established by medical
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evidence “consisting of signs, symptoms, and laboratory findings.” Id.; see also Social Security
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Ruling (“SSR”) 96–8p, 1996 WL 374184 *2 (a step three determination must be made on basis of
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medical factors alone). An impairment meets a listed impairment “only when it manifests the
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specific findings described in the set of medical criteria for that listed impairment.” SSR 83–19,
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1983 WL 31248 *2. The ALJ “is not required to discuss the combined effects of a claimant’s
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impairments or compare them to any listing in an equivalency determination, unless the claimant
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ORDER AFFIRMING DEFENDANT’S DECISION
TO DENY BENEFITS - 5

1 presents evidence in an effort to establish equivalence.” Burch v. Barnhart, 400 F.3d 676, 683 (9th
2 Cir. 2005).
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In considering Step Three, the ALJ found Plaintiff’s “impairments, when considered either

4 singly or in combination, do not meet or medically equal any of the listed impairments found in 20
5 CFR Part 404, Subpart P, Appendix 1.” AR 78; see AR 18 (referring to findings in the 2014 ALJ
6 decision). The ALJ also provided specific discussion finding the evidence failed to show Plaintiff
7 met the requirements of Listing 1.00, impairments related to the musculoskeletal system. AR 78;
8 see AR 18.
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Plaintiff argues sciatica is typically analyzed under Listing 1.04A or 1.04C. 4 Dkt. 11, pp. 7-

10 8. Plaintiff asserts neither Listing 1.04A nor 1.04C requires an inability to perform fine and gross
11 movements effectively or an inability to ambulate effectively. Id. Because the ALJ only discussed
12 whether Plaintiff had an inability to perform fine and gross movements effectively or an inability
13 to ambulate effectively when determining if Plaintiff met a Listing, Plaintiff contends the ALJ did
14 not properly consider Listing 1.04 and, therefore, erred as a matter of law. See id. Id.
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Here, the ALJ generally considered musculoskeletal impairments under Listing 1.00; but,

16 did not specifically identify Listings 1.04A or 1.04C in his discussion. See AR 18, 78. However,
17 “[i]t is unnecessary to require the [ALJ], as a matter of law, to state why a claimant failed to satisfy
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The Social Security Administration states a claimant’s impairments meet Listing 1.04 when a claimant
has a disorder of the spine, (“e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, vertebral fracture”) with:
A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain,
limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle
weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine); or
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C. Lumbar spinal stenosis resulting in pseudoclaudication, established by findings on appropriate
medically acceptable imaging, manifested by chronic nonradicular pain and weakness, and
resulting in inability to ambulate effectively, as defined in 1.00B2b.
20 C.F.R. pt. 404, Subpart P, app. 1, § 1.04.
ORDER AFFIRMING DEFENDANT’S DECISION
TO DENY BENEFITS - 6

1 every different section of the listing of impairments.” Gonzalez v. Sullivan, 914 F.2d 1197, 1201
2 (9th Cir. 1990). Plaintiff has not provided any evidence or explanation showing she meets Listings
3 1.04A or 1.04C. See Dkt. 11. Thus, Plaintiff has not shown the ALJ erred simply because he failed
4 to specifically discuss Listing 1.04.
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Furthermore, while Plaintiff contends neither Listing 1.04A nor Listing 1.04C requires the

6 loss of the ability to perform fine and gross movements or ambulate effectively, Listing 1.04C does
7 require an inability to ambulate effectively. See 20 C.F.R. pt. 404, Subpart P, app. 1, § 1.04C. In
8 his decision, the ALJ found the evidence failed to show Plaintiff was unable to ambulate
9 effectively. See AR 78. While the ALJ did not specifically discuss Listing 1.04C, he found Plaintiff
10 did not meet one of the requirements found in Listing 1.04C. See AR 78. Plaintiff does not
11 challenge the ALJ’s finding that the evidence fails to show Plaintiff unable to ambulate effectively.
12 See Dkt. 11, pp. 7-8. Therefore, the Court is not persuaded by Plaintiff’s argument that the ALJ
13 erred as a matter of law because the inability to ambulate effectively is not found in Listings 1.04A
14 or 1.04C.
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In summation, Plaintiff has not offered a plausible theory, with record citations, explaining

16 how Plaintiff meets Listing 1.04A or Listing 1.04C. Thus, Plaintiff has failed to demonstrate the
17 ALJ erred, “as a matter of law,” simply because he did not specifically identify Listings 1.04A and
18 1.04C when determining Plaintiff did not meet a listed impairment at Step Three. See Burch v.
19 Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (affirming the district court’s finding that the claimant
20 “bears the burden of proving that ... she has an impairment that meets or equals the criteria of an
21 impairment listed in Appendix 1 of the Commissioner’s regulations”); Lewis v. Apfel, 236 F.3d
22 503, 514 (9th Cir. 2001) (finding the ALJ did not err at Step Three when the plaintiff offered no
23 theory, plausible or otherwise, as to how his impairments combined to equal a listed impairment or
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ORDER AFFIRMING DEFENDANT’S DECISION
TO DENY BENEFITS - 7

1 pointed to evidence showing his combined impairments equal a listed impairment); Scott v. Colvin,
2 2013 WL 1562009, *5-6 (W.D. Wash. March 20, 2013) (finding the plaintiff failed to show the
3 ALJ erred at Step Three when the plaintiff did not proffer any plausible theory as to how his
4 combined impairments equaled a listed impairment). Therefore, the Court concludes Plaintiff has
5 failed to show the ALJ erred at Step Three of the sequential evaluation process.
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III.

Whether the ALJ provided sufficient reasons for discounting Plaintiff’s pain
complaints.

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Plaintiff contends the ALJ erred by failing to properly analyze Plaintiff’s complaints that
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her pain was not “well-controlled.” Dkt. 11, pp. 8-9. To reject a claimant’s subjective complaints,
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the ALJ must provide “specific, cogent reasons for the disbelief.” Lester v. Chater, 81 F.3d 821,
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834 (9th Cir. 1996) (citation omitted). The ALJ “must identify what testimony is not credible and
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what evidence undermines the claimant’s complaints.” Id.; Dodrill v. Shalala, 12 F.3d 915, 918
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(9th Cir. 1993). Unless affirmative evidence shows the claimant is malingering, the ALJ’s reasons
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for rejecting the claimant’s testimony must be “clear and convincing.” Lester, 81 F.2d at 834.
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Determinations regarding a claimant’s subjective symptom testimony are solely within the control
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of the ALJ. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The Court should not
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“second-guess” this determination. Allen v. Heckler, 749 F.2d 577, 580 (9th Cir. 1984). In addition,
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the Court may not reverse a determination regarding a claimant’s subjective symptom testimony
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where the determination is based on contradictory or ambiguous evidence. Id. at 579.
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Plaintiff testified she is unable to work due to chronic back and neck pain. AR 34, 36. She
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uses marijuana and methadone for pain. AR 34, 92-93. At the first ALJ hearing, Plaintiff testified
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her back pain is normally a five on a one to ten pain scale. AR 95. At the second hearing, Plaintiff
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testified that in 2008 her pain was an eight, nine, or ten on a ten point pain scale. AR 36. Plaintiff
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ORDER AFFIRMING DEFENDANT’S DECISION
TO DENY BENEFITS - 8

1 stated she could only walk a quarter of a mile before she had to stop, could only sit or stand for five
2 to ten minutes before changing positions, and could comfortably lift five to ten pounds. AR 37-38.
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The ALJ discussed Plaintiff’s subjective symptom testimony and found Plaintiff’s

4 impairments could be expected to cause some of her symptoms. AR 19. However, the ALJ
5 determined Plaintiff’s “statements concerning the intensity, persistence, and limiting effects of
6 these symptoms during the relevant time period are not entirely consistent with the overall
7 evidence of record.” AR 19.
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The ALJ specifically found Plaintiff’s statements were inconsistent with statements she

9 made to medical providers. See AR 19-21, 80. An ALJ may consider prior inconsistent statements
10 concerning symptoms and “other testimony by [plaintiff] that appears less than candid in weighing
11 plaintiff’s credibility.” Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). Here, the
12 medical records cited by the ALJ show that Plaintiff reported to her medical providers that her pain
13 was well-controlled. See AR 19-21, 80. For example, on May 22, 2008, treatment notes state
14 Plaintiff’s chronic abdominal pain is well-controlled on methadone and Vicodin. AR 520. Plaintiff
15 reported her pain was about a three on a scale of one to ten. AR 520. In July 2008, Plaintiff again
16 reported her chronic back and abdominal pain were under fair control. AR 518. Further, on
17 November 7, 2008 Plaintiff reported to her doctor that her chronic pain is usually one to three on a
18 scale of one to ten. AR 514. She also denied any medication side effects. AR 514. The doctor
19 noted Plaintiff’s chronic pain was well-controlled on the current doses of methadone and Vicodin.
20 AR 515. In March of 2009, Plaintiff again reported that her chronic pain is “under good control”
21 with her medication and is usually a three or less on the pain scale. AR 506. Thus, the evidence
22 cited by the ALJ shows Plaintiff’s statements made to her medical providers were inconsistent with
23 her subjective symptom testimony regarding her uncontrolled pain.
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ORDER AFFIRMING DEFENDANT’S DECISION
TO DENY BENEFITS - 9

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The Court notes Plaintiff does not challenge the ALJ’s specific findings. See Dkt. 11, pp. 8-

2 9. Rather, Plaintiff argues the ALJ incorrectly discounted Plaintiff’s testimony that the medical
3 providers inaccurately recorded her pain. See id. at p. 9; AR 53-54. Plaintiff asserts she is part of
4 the national opioid epidemic. Id. at p. 9. As stated above, the Court may not reverse a
5 determination as to a claimant’s subjective symptom testimony where the determination is based
6 on contradictory or ambiguous evidence. Allen, 749 F.2d at 579. Here, Plaintiff has not shown the
7 ALJ erred. Instead, Plaintiff argues the ALJ gave weight to the treatment notes despite statements
8 made by Plaintiff contradicting the validity of the treatment notes. Plaintiff has not shown her
9 single statement alleging the treatment notes are inaccurate is sufficient for the Court to conclude
10 the ALJ erred in discounting Plaintiff’s subjective symptom testimony.
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In conclusion, there is evidence in the record which supports the ALJ’s finding that

12 Plaintiff’s testimony was inconsistent with her statements to medical providers. Therefore, the ALJ
13 has provided a clear and convincing reason, supported by substantial evidence for discounting
14 Plaintiff’s subjective symptom testimony. Accordingly, the ALJ did not error in assessing
15 Plaintiff’s complaints of pain.
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CONCLUSION

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Based on the foregoing reasons, the Court hereby finds the ALJ properly concluded

18 Plaintiff was not disabled. Accordingly, Defendant’s decision to deny benefits is affirmed pursuant
19 to sentence four of 42 U.S.C. § 405(g).
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Dated this 22nd day of February, 2018.

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David W. Christel
United States Magistrate Judge

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ORDER AFFIRMING DEFENDANT’S DECISION
TO DENY BENEFITS - 10