The opinion
1
2
3
FILED IN THE
4 U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON
5 Aug 11, 2022
6 SEAN F. MCAVOY, CLERK
7
8
9 UNITED STATES DISTRICT COURT
10 EASTERN DISTRICT OF WASHINGTON
11
12 DAVID B., No. 1:21-cv-03009-SMJ
13
Plaintiff,
14
v. ORDER GRANTING DEFENDANT’S
15
MOTION FOR SUMMARY
16 KILOLO KAJAKAZI, JUDGMENT
17 COMMISSIONER OF SOCIAL
SECURITY,
18
19 Defendant.
20
21
Before the Court are the parties’ cross-motions for summary judgment. ECF
22
23 Nos. 13, 14. Attorney D. James Tree represents David B. (Plaintiff); Special
24
Assistant United States Attorney David Burdett represents the Commissioner of
25
26 Social Security (Defendant). After reviewing the administrative record and the briefs
27
28
filed by the parties, the Court grants Defendant’s Motion for Summary Judgment
1
2 and denies Plaintiff’s Motion for Summary Judgment.
3
JURISDICTION
4
5 Plaintiff filed an application for Disability Insurance Benefits on March 21,
6
2016, alleging disability since August 1, 2014, due to back pain, bilateral shoulder
7
injury/pain, bilateral hip injury/pain, neck pain, and obesity. Tr. 243-44. The
8
9 application was denied initially and upon reconsideration. Tr. 298-300, 302-07. An
10
Administrative Law Judge (ALJ) held a hearing on December 19, 2017, Tr. 45-
11
12 74171-96, and issued an unfavorable decision on June 20, 2018, Tr. 270-84. The
13
Appeals Council remanded the claim for correction of technical errors on November
14
5, 2019. Tr. 290-93.
15
16 A different ALJ held a remand hearing on August 13, 2020, Tr. 197-222, and
17
issued an unfavorable decision on September 2, 2020. Tr. 15-28. Plaintiff requested
18
19 review from the Appeals Council and the Appeals Council denied the request for
20
review on December 7, 2020. Tr. 1-5. The ALJ’s September 2020 decision became
21
the final decision of the Commissioner, which is appealable to the district court
22
23 pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on
24
January 20, 2021. ECF No. 1.
25
26 //
27
//
28
STATEMENT OF FACTS
1
2 Plaintiff was born in 1971 and was 43 years old as of his date last insured in
3
March 2015. Tr. 26. He dropped out of high school and was never able to complete
4
5 his GED requirements. Tr. 701. He worked for over a decade as a truck driver until
6
September 2009, when he was in a work-related motor vehicle accident that resulted
7
in injuries to Plaintiff and the death of another motorist. Tr. 580-81. He briefly
8
9 returned to work at light duty but was unable to sustain the job. Tr. 592. Following
10
the accident, Plaintiff was treated conservatively for back, neck, and hip pain. Tr.
11
12 571-80. He has not worked since 2009. He previously applied for disability benefits
13
in 2012 and was denied in a 2014 ALJ unfavorable decision. Tr. 226-37.
14
STANDARD OF REVIEW
15
16 The ALJ is responsible for determining credibility, resolving conflicts in
17
medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035,
18
19 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with
20
deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel,
21
201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only
22
23 if it is not supported by substantial evidence or if it is based on legal error. Tackett
24
v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as
25
26 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put
27
another way, substantial evidence is such relevant evidence as a reasonable mind
28
might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S.
1
2 389, 401 (1971). If the evidence is susceptible to more than one rational
3
interpretation, the Court may not substitute its judgment for that of the ALJ. Tackett,
4
5 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595,
6
599 (9th Cir. 1999). If substantial evidence supports the administrative findings, or
7
if conflicting evidence supports a finding of either disability or non-disability, the
8
9 ALJ’s determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230
10
(9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be
11
12 set aside if the proper legal standards were not applied in weighing the evidence and
13
making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d
14
432, 433 (9th Cir. 1988).
15
16 SEQUENTIAL EVALUATION PROCESS
17
The Commissioner has established a five-step sequential evaluation process
18
19 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a); Bowen v.
20
Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the claimant bears
21
the burden establishing a prima facie case of disability. Tackett, 180 F.3d at 1098-
22
23 1099. This burden is met once a claimant establishes that a physical or mental
24
impairment prevents the claimant from engaging in past relevant work. 20 C.F.R. §
25
26 404.1520(a)(4). If a claimant cannot perform past relevant work, the ALJ proceeds
27
to step five, and the burden shifts to the Commissioner to show (1) the claimant can
28
make an adjustment to other work; and (2) the claimant can perform specific jobs
1
2 that exist in the national economy. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d
3
1190, 1193-94 (9th Cir. 2004). If a claimant cannot make an adjustment to other
4
5 work in the national economy, the claimant will be found disabled. 20 C.F.R. §
6
404.1520(a)(4)(v).
7
ADMINISTRATIVE FINDINGS
8
9 On September 2, 2020 the ALJ issued a decision finding Plaintiff was not
10
disabled as defined in the Social Security Act.
11
12 At step one, the ALJ found Plaintiff had not engaged in substantial gainful
13
activity from the alleged onset date through the date last insured of March 31, 2015.
14
Tr. 18.
15
16 At step two, the ALJ determined Plaintiff had the following severe
17
impairments: degenerative disc disease vs. cervical, thoracic, and lumbar strain,
18
19 affective disorder, somatoform disorder, and borderline intellectual functioning. Id.
20
At step three, the ALJ found Plaintiff did not have an impairment or
21
combination of impairments that met or medically equaled the severity of one of the
22
23 listed impairments. Tr. 19-20
24
The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found
25
26 he could perform work at the light exertional level, except:
27
The claimant could occasionally climb ladders, ropes, or
28 scaffolds. The claimant could occasionally stoop, kneel, crouch,
or crawl. The claimant needed to avoid concentrated exposure to
1
hazards.
2
3 The claimant could carry out simple, routine tasks. The claimant
could work in proximity to coworkers, but no tandem tasks
4
requiring cooperative effort. The claimant could perform work
5 that did not require interaction with the general public.
6
7 Tr. 20.
8
At step four, the ALJ found Plaintiff was unable to perform his past relevant
9
10 work as a sales route driver. Tr. 26.
11
At step five, the ALJ determined that, based on the testimony of the vocational
12
expert, and considering Plaintiff’s age, education, work experience, and RFC,
13
14 Plaintiff was capable of performing jobs that existed in significant numbers in the
15
national economy, including the jobs of cleaner housekeeping, marker, and cafeteria
16
17 attendant. Tr. 26-27.
18
The ALJ thus concluded Plaintiff was not under a disability within the
19
meaning of the Social Security Act at any time from the alleged onset date through
20
21 the date last insured. Tr. 27-28.
22
ISSUES
23
24 The question presented is whether substantial evidence supports the ALJ’s
25
decision denying benefits and, if so, whether that decision is based on proper legal
26
standards.
27
28
Plaintiff contends the ALJ erred by (1) improperly discounting Plaintiff’s
1
2 subjective complaints; and (2) improperly evaluating medical opinion evidence.
3
4
5 DISCUSSION
6
1. Plaintiff’s Symptom Statements
7
Plaintiff alleges the ALJ erred in rejecting his symptom testimony without
8
9 providing adequate reasons. ECF No. 13 at 6-10.
10
It is the province of the ALJ to make determinations regarding a claimant’s
11
12 subjective statements. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
13
However, the ALJ’s findings must be supported by specific cogent reasons. Rashad
14
v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of
15
16 malingering, the ALJ’s reasons for rejecting a claimant’s testimony must be
17
“specific, clear and convincing.” Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir.
18
19 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General findings are
20
insufficient: rather the ALJ must identify what testimony is not credible and what
21
evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; Dodrill v.
22
23 Shalala, 12 F.3d 915, 918 (9th Cir. 1993).
24
The ALJ found Plaintiff’s medically determinable impairments could
25
26 reasonably be expected to cause the alleged symptoms; however, he found Plaintiff’s
27
statements concerning the intensity, persistence and limiting effects of his symptoms
28
were not entirely consistent with the medical evidence and other evidence in the
1
2 record. Tr. 21. The ALJ found Plaintiff’s allegations regarding his physical condition
3
were out of proportion to the imaging and exams and the opinions of his treating
4
5 provider releasing him to light duty work. Tr. 21-22. The ALJ further found
6
Plaintiff’s mental allegations to be inconsistent with mild exam findings and his lack
7
of treatment for mental health complaints, and that his low intellectual functioning
8
9 was a life-long condition that had not prevented him from working prior to his
10
accident. Tr. 22-23. Finally, the ALJ noted evidence of symptom magnification and
11
12 providers opining Plaintiff’s subjective reports were in excess of the objective
13
findings. Tr. 23.
14
Plaintiff argues the ALJ erred in evaluating his reports, asserting that the
15
16 nature of his somatic disorder is that he experiences pain that cannot be explained
17
by objective medical findings, thus undermining the ALJ’s analysis with respect to
18
19 the exam results and Plaintiff’s exaggerated symptom complaints. ECF No. 13 at 6-
20
10. Defendant argues the ALJ offered numerous valid bases for disregarding the
21
extent of Plaintiff’s symptom allegations, including a lack of support from the
22
23 objective findings, contrary medical source opinions, a lack of treatment for mental
24
health problems, and evidence of Plaintiff’s disability conviction. ECF No. 14 at 3-
25
26 11.
27
28
The Court finds the ALJ did not err. The ALJ reasonably found the record to
1
2 be unsupportive of the extent of Plaintiff’s physical allegations. Although it cannot
3
serve as the sole ground for rejecting a claimant’s symptom statements, objective
4
5 medical evidence is a “relevant factor in determining the severity of the claimant’s
6
pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.
7
2001). The record contains ample evidence from various medical sources that
8
9 Plaintiff was capable of performing light-level work and was claiming physical
10
limitations in excess of the findings on exams. Tr. 21-22, 572-74, 589, 3727-28.
11
12 While some sources attributed this behavior to Plaintiff’s somatic symptom disorder,
13
the ALJ had substantial evidence to support his conclusion that Plaintiff’s reports
14
were unreliable, even if this did not indicate any conscious intent to deceive. Tr. 709-
15
16 10, 589, 611-12, 3727-28, 3749-51.
17
The ALJ reasonably found that the lack of psychiatric treatment or
18
19 medication, or reports of any emotional or cognitive problems during the relevant
20
period further undermined any claims of disability based on mental health or
21
cognitive impairment. “If a claimant complains about disabling pain but fails to seek
22
23 treatment, or fails to follow prescribed treatment, for the pain, an ALJ may use such
24
failure as a basis for finding the complaint unjustified or exaggerated....” Orn v.
25
26 Astrue, 495 F.3d 625, 638 (9th Cir.2007).
27
28
Finally, the ALJ noted that multiple examining doctors felt Plaintiff had a
1
2 disability conviction or lacked motivation or belief that he could return to work. This
3
was a relevant factor for the ALJ to consider in assessing the reliability of Plaintiff’s
4
5 complaints. For purposes of Social Security disability, a claimant’s inability to work
6
must stem from a medically determinable physical or mental impairment, not simply
7
from their own beliefs. 20 C.F.R. § 404.1505.
8
9 The Court finds the ALJ offered clear and convincing reasons for discounting
10
the extent of Plaintiff’s alleged limitations.
11
12 2. Medical Opinion Evidence
13
Plaintiff argues the ALJ improperly rejected the opinion from consultative
14
examiner Donald Williams and afforded undue weight to the independent medical
15
16 examiner Rebecca Fischer. ECF No. 13 at 10-16.
17
When an examining physician’s opinion is contradicted by another physician,
18
19 the ALJ is required to provide “specific and legitimate reasons,” based on substantial
20
evidence, to reject the opinion. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).
21
The specific and legitimate standard can be met by the ALJ setting out a detailed and
22
23 thorough summary of the facts and conflicting clinical evidence, stating their
24
interpretation thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747,
25
26 751 (9th Cir. 1989). The ALJ is required to do more than offer their conclusions,
27
28
they “must set forth [their] interpretations and explain why they, rather than the
1
2 doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988).
3
a. Dr. Williams
4
5 In May 2014, Plaintiff attended a consultative psychological exam with Dr.
6
Donald Williams, in connection with his prior application for Social Security
7
disability benefits. Tr. 696. Dr. Williams reviewed some records and conducted a
8
9 clinical interview and objective testing, and diagnosed Plaintiff with somatic
10
symptom disorder, unspecified depressive disorder, unspecified anxiety disorder,
11
12 and borderline intellectual functioning. Tr. 709. He opined Plaintiff was most limited
13
by his intellectual functioning and his pain disorder associated with psychological
14
factors and a general medical condition, and noted that his lack of sophistication and
15
16 cognitive limitations resulted in him channeling much of his emotional distress into
17
pain complaints. Tr. 710. Dr. Williams found Plaintiff to be markedly limited in his
18
19 ability to understand and remember detailed instructions, maintain attention and
20
concentration for extended periods, respond to change, set realistic goals, perform
21
within a schedule, maintain regular attendance, complete a normal workday or work
22
23 week without interruption from psychiatric symptoms, and perform at a consistent
24
pace without an unreasonable number and length of breaks. 710.
25
26 The ALJ gave this opinion little weight, noting it predated the relevant period,
27
was issued during a period that was already adjudicated, and was contrary to the
28
opinion of Dr. Fischer. Tr. 24-25. The ALJ further found the opinion inconsistent
1
2 with treatment notes showing only mild mental status findings, and documenting no
3
significant mental complaints during the relevant period. Id. Finally, the ALJ found
4
5 the opinion relied on Plaintiff’s self-reports, which were not reliable. Id.
6
Plaintiff argues the ALJ erred, as the opinion was offered only a couple of
7
months prior to the current relevant period, and reflected Plaintiff’s long-standing
8
9 impairments, and thus was still relevant a few months after the exam was completed.
10
ECF No. 13 at 12. Plaintiff further argues Dr. Fischer’s opinion only discussed
11
12 PTSD, which was the only condition accepted for Plaintiff’s worker’s compensation
13
claim, and thus the opinion did not contradict Dr. Williams’ opinion. Id. at 13.
14
Finally, Plaintiff argues the mild objective findings the ALJ identified did not relate
15
16 to the somatic symptom disorder that Dr. Williams found was the primary factor
17
limiting Plaintiff’s abilities and that Dr. Williams did not unduly rely on Plaintiff’s
18
19 subjective reports. Id. at 14-16. Defendant argues the ALJ reasonably found Dr.
20
Williams’ opinion to be of minimal value based on the fact that it was from prior to
21
the relevant period, had already been considered by the previous ALJ, was
22
23 inconsistent with unremarkable mental health records, and was based in part on
24
Plaintiff’s unreliable self-reports. ECF No. 14 at 11-16.
25
26 The Court finds the ALJ did not err. An ALJ may reasonably consider a
27
medical opinion’s consistency with the record as a whole. 20 C.F.R. §
28
404.1528(c)(4). The ALJ noted the lack of significant mental health findings
1
2 throughout the relevant period, and found Dr. Williams’ opinion to be inconsistent
3
with the lack of complaints regarding mental health. Tr. 24. A doctor’s opinion may
4
5 also be discounted if it is “based to a large extent on a claimant’s self-reports that
6
have been properly discounted as incredible.” Tommasetti v. Astrue, 533 F.3d 1035,
7
1041 (9th Cir. 2008). As discussed above, the ALJ gave sufficient reasons for finding
8
9 Plaintiff’s subjective allegations to be unreliable. The ALJ’s interpretation of Dr.
10
Williams’ opinion as relying in part of Plaintiff’s self-reported symptoms and
11
12 limitations is a reasonable interpretation of the record. While Plaintiff offers a
13
different explanation regarding the nature of his somatic disorder, the Court finds
14
the ALJ’s interpretation is supported by substantial evidence.
15
16 Finally, the Court notes that Dr. Williams’ report was submitted to and
17
discussed by the prior ALJ in connection with Plaintiff’s previous application for
18
19 SSD benefits. Tr. 234. That ALJ assigned very little weight to Dr. Williams’ opinion
20
as it conflicted with other evidence of record and Plaintiff’s daily activities. Id. The
21
Court acknowledges that the previous adjudication has become final and has res
22
23 judicata effect for the previously adjudicated period. Lester v. Chater, 81 F.3d 821
24
(9th Cir. 1995).
25
26
27
28
b. Dr. Fischer
1
2 In September 2014 Plaintiff attended a psychological independent medical
3
exam with Dr. Rebecca Fischer for his worker’s compensation claim. Tr. 591-612.
4
5 Dr. Fischer noted the only accepted psychological condition for purposes of the
6
worker’s compensation claim was PTSD. Tr. 591. She found additional diagnoses
7
of unspecified depressive disorder and somatic symptom disorder with predominant
8
9 pain, but noted that they were not caused or exacerbated by the work-related injury.
10
Tr. 611-12. Dr. Fischer found Plaintiff did not endorse any current symptoms of
11
12 PTSD, and was able to work on a full-time basis with respect to that condition. Tr.
13
612.
14
The ALJ gave this opinion partial weight, noting it was consistent with the
15
16 overall evidence, including the lack of mental health treatment or complaints during
17
the relevant period, but noted that Dr. Fischer did not offer an opinion about
18
19 Plaintiff’s residual functional capacity. Tr. 25.
20
Plaintiff argues this opinion was not entitled to any weight because it was
21
limited to the effects of PTSD, a condition that was in remission and that the ALJ
22
23 found to be non-severe, and did not comment on any of Plaintiff’s actual severe
24
impairments. ECF No. 13 at 16. The Court finds no error, as the ALJ acknowledged
25
26 that Dr. Fischer did not offer any functional limitations, and thus her opinion was
27
28
not entitled to more weight. Tr. 25. There is no harm in the ALJ acknowledging the
1
2 opinion with respect to Plaintiff’s lack of PTSD symptoms.
3
3. Vocational Counselor
4
5 Plaintiff argues the ALJ erred in disregarding the opinions from Plaintiff’s
6
vocational counselor, Kaethe Long. ECF No. 13 at 16-19.
7
An ALJ may discount the opinion of an “other source,” such as a vocational
8
9 counselor or other lay witness, if they provide “reasons germane to each witness for
10
doing so.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
11
12 In July 2014, Ms. Long issued a report regarding closing Plaintiff’s vocational
13
services due to his lack of employability. Tr. 2075. She noted that given his physical
14
and mental limitations and his inability to obtain his GED, there were no occupations
15
16 he could be placed in. 2075-83.
17
The ALJ gave little weight to Ms. Long’s report, noting she was not a medical
18
19 source, the assessed physical limits were based on a physical capacity evaluation
20
performed in 2011, and that the mental functional opinion relied on Dr. Williams’
21
report, which the ALJ had assigned little weight to. Tr. 25. The ALJ further noted
22
23 that Plaintiff’s lack of a GED was a vocational issue, not a medical factor, and that
24
the issue of whether there are jobs an individual can perform is an issue reserved to
25
26 the Commissioner. Id.
27
28
Plaintiff argues the ALJ erred in rejecting this opinion, asserting the 2011
1
2 physical capacity assessment was largely consistent with the RFC the ALJ found,
3
the ALJ improperly rejected Dr. Williams’ opinion, and that Plaintiff’s inability to
4
5 obtain a GED was a part of his intellectual and psychological symptoms. ECF No.
6
13 at 16-19. Defendant argues the ALJ’s rationale easily met the germane standard,
7
as Ms. Long relied on evidence with minimal relevance to Plaintiff’s functioning
8
9 and she relied on non-medical factors in reaching her conclusion. ECF No. 14 at 18-
10
20.
11
12 The Court finds the ALJ offered germane reasons for discounting Ms. Long’s
13
opinion. As discussed above, the ALJ gave sufficient reasons for discounting Dr.
14
Williams’ opinion, and thus reasonably also discounted Ms. Long’s opinion for
15
16 being based on the limitations assessed by Dr. Williams. The ALJ also accurately
17
found that the issue of the application of vocational factors, including whether there
18
19 are any jobs a claimant can perform, is an issue reserved to the Commissioner. 20
20
C.F.R. § 404.1527(d). The ALJ offered germane reasons for discounting Ms. Long’s
21
opinion.
22
23 CONCLUSION
24
Having reviewed the record and the ALJ’s findings, the Court finds the ALJ’s
25
26 decision is supported by substantial evidence and free of legal error and is affirmed.
27
Accordingly, IT IS HEREBY ORDERED:
28
1 1. Defendant’s Motion for Summary Judgment, ECF No. 14, is
2 GRANTED.
2. Plaintiff's Motion for Summary Judgment, ECF No. 13, is DENIED.
5 3. The Clerk’s Office is directed to ENTER JUDGMENT and CLOSE
6 this file.
7
8 IT IS SO ORDERED. The Clerk’s Office shall enter this Order and provide
9 || copies to all counsel.
10
11 DATED this 11" day of August 2022.
12 paab henge
13 SALVADOR MENDOZAMIR.
14 United States District Judge
15
16
17
18
19
20
21
22
23
24
25
26
27
28