Dolan 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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ALAN D.,
Plaintiff,

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v.

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CASE NO. C18-5212-MAT

NANCY A. BERRYHILL, Deputy
Commissioner of Social Security for
Operations,

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL

Defendant.

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Plaintiff proceeds through counsel in his appeal of a final decision of the Commissioner of

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the Social Security Administration (Commissioner).

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applications for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) after

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a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ’s decision, the

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administrative record (AR), and all memoranda of record, this matter is REVERSED and

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REMANDED for further proceedings.
FACTS AND PROCEDURAL HISTORY

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The Commissioner denied Plaintiff’s

Plaintiff was born on XXXX, 1965.1 He has a high school diploma and training as a truck

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Dates of birth must be redacted to the year. Fed. R. Civ. P. 5.2(a)(2) and LCR 5.2(a)(1).

ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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driver, and has worked as a delivery driver, paper machine operator, and telephone operator. (AR

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44, 58-59, 263.)

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Plaintiff applied for SSI and DIB in March 2014 and May 2014, respectively. (AR 152-

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65.) Those applications were denied initially and upon reconsideration, and Plaintiff timely

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requested a hearing. (AR 117-19, 121-27.)

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On October 14, 2016, ALJ Linda Thomasson held a hearing in Portland, Oregon, taking

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testimony from Plaintiff and a vocational expert (VE). (AR 38-66.) On May 4, 2016, the ALJ

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issued a decision finding Plaintiff not disabled. (AR 18-31.) Plaintiff timely appealed. The

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Appeals Council denied Plaintiff’s request for review on January 12, 2018 (AR 1-6), making the

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ALJ’s decision the final decision of the Commissioner. Plaintiff appealed this final decision of

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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 August 26, 2012, the amended alleged onset date.

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(AR 20.) At step two, it must be determined whether a claimant suffers from a severe impairment.

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The ALJ found severe Plaintiff’s obesity, hypertension, sleep apnea, and spine disorder. (AR 20-

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23.) Step three asks whether a claimant’s impairments meet or equal a listed impairment. The

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ALJ found that Plaintiff’s impairments did not meet or equal the criteria of a listed impairment.

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(AR 24.)
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DISABILITY APPEAL
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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 additional limitations: he can occasionally climb ramps

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and stairs, stoop, and balance. He cannot climb ladders, ropes, or scaffolds; kneel; crouch; or

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crawl. He can have occasional exposure to extreme cold and heat, and no exposure to vibration or

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hazards such as unprotected heights or moving mechanical parts. He must be able to adjust from

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sitting to standing at will, but he does not have to leave his workstation. (AR 24.) With that

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assessment, the ALJ found Plaintiff able to perform past relevant work as a telephone operator.

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(AR 30-31.)

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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. Because the ALJ

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found Plaintiff capable of performing past relevant work, the ALJ did not proceed to step five.

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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

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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) assessing certain medical opinions, (2) discounting his
ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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subjective symptom testimony, and (3) discounting a lay opinion.2 The Commissioner argues that

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the ALJ’s decision is supported by substantial evidence and should be affirmed.
Medical opinions

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Plaintiff challenges the ALJ’s assessment of multiple medical opinions. In general, more

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weight should be given to the opinion of a treating physician than to a non-treating physician, and

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more weight to the opinion of an examining physician than to a non-examining physician. Lester

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v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted by another physician, a

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treating or examining physician’s opinion may be rejected only for “‘clear and convincing’”

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reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Where contradicted,

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a treating or examining physician’s opinion may not be rejected without “‘specific and legitimate

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reasons’ supported by substantial evidence in the record for so doing.” Id. at 830-31 (quoting

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Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

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Less weight may be assigned to the opinions of other sources. Gomez v. Chater, 74 F.3d

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967, 970 (9th Cir. 1996). However, the ALJ’s decision should reflect consideration of such

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opinions, SSR 06-3p, and the ALJ may discount the evidence by providing reasons germane to

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each source. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Turner v. Comm’r of

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Social Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) and Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir.

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2001)). See also SSR 06-03p (ALJ should explain weight given to other source opinions or

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otherwise ensure that discussion of the evidence allows for following the ALJ’s reasoning “when

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such opinions may have an effect on the outcome of the case”).

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Plaintiff’s opening brief also challenges the ALJ’s RFC assessment and step-five findings, but in
doing so only reiterates arguments made elsewhere. Dkt. 13 at 16-17. Accordingly, these issues will not
be analyzed separately.

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DISABILITY APPEAL
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Zane Smith, MPT

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The ALJ gave partial weight to a 2009 opinion of Mr. Smith, an examining physical

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therapist. (AR 298.) The ALJ found that some of Mr. Smith’s opinions were consistent with the

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record, specifically regarding Plaintiff’s need to frequently change positions, but found that other

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limitations described by Mr. Smith either over- or underestimated Plaintiff’s abilities. (AR 29.)

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Plaintiff asserts that the ALJ’s reasoning is not supported by substantial evidence, and thus

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the ALJ erred in discounting Mr. Smith’s opinion. Dkt. 13 at 3-4. Plaintiff’s brief mentions other

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medical evidence in the subsection devoted to challenging the ALJ’s assessment of Mr. Smith’s

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opinion, but Plaintiff does not explain how that evidence relates to his argument regarding Mr.

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Smith’s opinion. Instead, the brief simply describes certain medical findings without any analysis

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of why those findings are relevant. Plaintiff’s bare assertion that the ALJ’s assessment of Mr.

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Smith’s opinion is not supported by substantial evidence is insufficient to establish error in the

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ALJ’s decision. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)

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(declining to address assertions unaccompanied by legal arguments: “We require contentions to

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be accompanied by reasons.”). Because Plaintiff has provided no legal analysis of the ALJ’s

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assessment of Mr. Smith’s opinion, his challenge to this portion of the decision fails.

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Brigitte Engelhardt, M.D.

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Dr. Engelhardt conducted a consultative examination of Plaintiff in October 2014, and

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found that Plaintiff could stand/walk for two hours per day and sit for “[a]bout six hours.” (AR

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354-59.) Dr. Engelhardt noted that Plaintiff used a cane, and she said that this device is

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“recommended for long distances and uneven terrain.” (AR 358.) She opined that Plaintiff could

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not climb or balance, but could occasionally stoop, kneel, crouch, and crawl. (Id.) She also limited

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Plaintiff to frequent reaching, handling, fingering, and feeling, but did not explain the reason for
ORDER RE: SOCIAL SECURITY
DISABILITY APPEAL
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these limitations. (Id.) Lastly, Dr. Engelhardt indicated that Plaintiff could not work at heights or

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around heavy machinery. (AR 358-59.)

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The ALJ gave partial weight to Dr. Engelhardt’s opinion, because it is “in part inconsistent

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with the record of medical evidence as a whole as thoroughly described previously in this decision,

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and she did not provide relevant evidence to support some of her opinions.” (AR 29-30.) The

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ALJ went on to discuss specific limitations mentioned in Dr. Engelhardt’s opinion, but did not

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explicitly identify which portions of the opinions she was crediting and which portions she was

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rejecting, or which parts were inconsistent with what evidence or were overstated. (AR 30.) As a

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result, the ALJ’s reasoning is not sufficiently specific and the ALJ should provide more specificity

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on remand.

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Wayne Hurley, M.D.

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Dr. Hurley conducted a State agency review of Plaintiff’s file and described Plaintiff’s

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workplace limitations. (AR 108-12.) The ALJ found that the limitations described by Dr. Hurley

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were consistent with the record, but that he did not provide for a sit-stand option, which the ALJ

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found was warranted by the record as a whole. (AR 30.)

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Plaintiff contends that Dr. Hurley “erroneously failed” to find that he would require extra

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breaks and could not perform a full-time job due to pain. Dkt. 13 at 6. This contention fails to

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identify an error in the ALJ’s decision, and neither does Plaintiff’s subsequent selective citation to

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various medical findings. Dkt. 13 at 6-7. Because Plaintiff failed to identify an error in the ALJ’s

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assessment of Dr. Hurley’s opinion, his challenge to this portion of the decision fails.

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Subjective symptom testimony

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The ALJ discounted Plaintiff’s subjective testimony for a number of reasons, including (1)

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inconsistency between his allegations and the objective medical evidence, (2) his failure to
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DISABILITY APPEAL
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consistently seek treatment for allegedly disabling symptoms, (3) the conservative nature of the

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treatment he did obtain and the improvement he experienced with that treatment, and (4)

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inconsistencies between his daily activities and the severity of his allegations. (AR 25-28.)

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Plaintiff argues that these reasons are not clear and convincing, as required in the Ninth Circuit.

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Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014).

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The Court agrees with Plaintiff that the ALJ’s discussion of his daily activities is

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insufficiently specific: the ALJ described Plaintiff’s activities, but did not explain how those

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activities were either inconsistent with his allegations or demonstrated transferable work skills.

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(AR 28.) Accordingly, the ALJ erred in relying on Plaintiff’s activities as a reason to discount his

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subjective statements. See Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (activities may

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undermine credibility where they (1) contradict the claimant’s testimony or (2) “meet the threshold

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for transferable work skills”).

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The ALJ’s other reasons, however, are legally sufficient.

The ALJ pointed out

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inconsistencies between Plaintiff’s allegations and the objective medical evidence. (AR 25-26.)

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Specifically, the ALJ noted that although Plaintiff traced his limitations to his workplace injury,

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many of Plaintiff’s physical examinations showed only mild changes after his workplace injury.

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(AR 25-27.) The ALJ also noted that there were many periods during which Plaintiff did not seek

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any medical treatment (February 2010-June 2012, April 2013-February 2014, and May 2014-

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February 2015), which undermined his allegation of disability since 2012. (AR 27.) The ALJ

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further found that the treatment and recommendations Plaintiff did receive were conservative, and

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that some of Plaintiff’s symptoms resolved with that conservative treatment, such as medication

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and physical therapy. (AR 27-28.) The ALJ emphasized that the main treatment recommendation

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was weight loss, and that Plaintiff’s treatment provider believed that physical therapy would not
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DISABILITY APPEAL
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be beneficial until Plaintiff lost weight. (AR 28 (referencing AR 682).)

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The ALJ’s specific references to the medical record constitute clear and convincing reasons

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to discount Plaintiff’s subjective allegations. See Social Security Ruling (SSR) 16-3p, 2017 WL

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5180304, at *5 (Oct. 25, 2017) (“We must consider whether an individual’s statements about the

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intensity, persistence, and limiting effects of his or her symptoms are consistent with the medical

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signs and laboratory findings of record.”); Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005)

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(“The ALJ is permitted to consider lack of treatment in his credibility determination.”); Parra v.

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Astrue, 481 F.3d 742, 750-51 (9th Cir. 2007) (stating that “evidence of ‘conservative treatment’ is

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sufficient to discount a claimant’s testimony regarding severity of an impairment”); Warre v.

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Comm’r of Social Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be

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controlled effectively with medication are not disabling for the purpose of determining eligibility

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for SSI benefits.”).

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Plaintiff disputes the ALJ’s characterization of his objective findings as “mild” (Dkt. 13 at

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9), but has not shown that the ALJ was unreasonable in finding that the objective evidence post-

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dating the injury represented a “rather mild” change when compared the evidence pre-dating the

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injury. (AR 25 (referencing AR 736).)

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Plaintiff also argues that the ALJ erred in failing to ask him to explain his gaps in treatment,

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and that she should not have found the gaps to undermine his testimony without first seeking that

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explanation. Dkt. 13 at 10. Plaintiff cites no authority requiring the ALJ to ask for an explanation.

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SSR 16-3p indicates that an ALJ may ask a claimant to explain why he or she has not sought

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treatment, but does not require the ALJ to do so. 2017 WL 5180304, at *9-10. Plaintiff did not

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assert any reason for his lack of treatment at the hearing or to his providers, and this undermines

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his allegations of disabling symptoms. See Molina v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir.
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DISABILITY APPEAL
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2012) (“Moreover, a claimant’s failure to assert a good reason for not seeking treatment, ‘or a

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finding by the ALJ that the proffered reason is not believable, can cast doubt on the sincerity of

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the claimant’s pain testimony.’”).

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Plaintiff goes on to argue that the ALJ erred in finding that his conservative treatment

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undermined his allegations, because there is no evidence that he could afford more intensive

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treatment. Dkt. 13 at 10. But the ALJ emphasized that more intensive treatment was not even

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recommended: Plaintiff’s providers recommended conservative treatment, and this treatment was

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beneficial. (AR 27-28 (discussing medications and physical therapy for his back pain, medication

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for hypertension, and CPAP machine for his sleep apnea).) Thus, the ALJ reasoned that because

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Plaintiff’s symptoms were treated in a conservative manner, and many of those symptoms resolved

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with treatment, the course of Plaintiff’s treatment undermined his allegations of disabling

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limitations. This rationale is reasonable.

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Plaintiff goes on to summarize his subjective statements at length. Dkt. 13 at 11-15. This

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summary does not advance Plaintiff’s legal arguments, and fails to identify error in the ALJ’s

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decision. Because the ALJ provided multiple legally sufficient reasons to discount Plaintiff’s

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subjective statements, the error with regard to Plaintiff’s activities (discussed supra) is harmless.

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See Carmickle v. Comm’r of Social Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008). Because

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this case must be remanded for a reconsideration of Dr. Engelhardt’s opinion, however, the ALJ

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shall also reconsider her findings regarding Plaintiff’s activities on remand.
Lay statement

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In July 2014, a human resources manager for Plaintiff’s most recent employer completed

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a form opinion regarding Plaintiff’s work performance. (AR 204-05.) This document indicates

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that Plaintiff received no special accommodations at work and was not frequently absent, but was
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DISABILITY APPEAL
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only 60% as productive as other employees. (Id.) The form also indicates both that Plaintiff

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completed his work in the same amount of time as employees in similar positions, and that he

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could not complete his work without special assistance. (AR 204.)

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The ALJ gave little weight to this form opinion because it contained no explanations and

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was internally inconsistent. (AR 28-29.) An ALJ can reject the testimony of lay witnesses only

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upon giving germane reasons. Smolen v. Chater, 80 F.3d 1273, 1288-89 (9th Cir. 1996). Plaintiff

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argues that the ALJ’s reasoning was not germane because the form supports his testimony that he

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was not productive in his job and required special accommodations. Dkt. 13 at 15. This argument

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does not identify an error in the ALJ’s decision, however, and not wholly accurate: the form

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opinion is equivocal as to whether Plaintiff received accommodations, and contradicts Plaintiff’s

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testimony that he was often absent from work. (AR 204-05.)

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Furthermore, whether the form opinion is consistent with Plaintiff’s testimony is not

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relevant to whether the ALJ erred in assessing the opinion, because the ALJ did not discount the

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opinion as inconsistent with Plaintiff’s testimony. Instead, the ALJ discounted the opinion as

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unexplained and internally inconsistent, and these are legally valid reasons to discount an opinion.

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See Morgan v. Comm’r of Social Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (ALJ

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appropriately considers internal inconsistencies within and between physicians’ reports); Molina,

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674 F.3d at 1111 (finding no error in an ALJ’s rejection of a checkbox report as unexplained).

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Plaintiff has failed to establish error in the ALJ’s assessment of the lay opinion.
CONCLUSION

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For the reasons set forth above, this matter is REVERSED and REMANDED for further

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administrative proceedings. On remand, the ALJ shall reconsider Dr. Engelhardt’s opinion and

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either credit it or provide specific, legitimate reasons to discount it. The ALJ shall also reconsider
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DISABILITY APPEAL
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her reliance on Plaintiff’s activities as a basis for discounting his subjective symptom testimony.
DATED this 26th day of February, 2019.

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Mary Alice Theiler
United States Magistrate Judge

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