Brown v. Kijakazi

[3] FILED IN THE 4 U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 5 Aug 11, 2022 6 SEAN F. MCAVOY, CLERK [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. [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 [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. 4511 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, [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. [28] Plaintiff contends the ALJ erred by (1) improperly discounting Plaintiff’s [1] 2 subjective complaints; and (2) improperly evaluating medical opinion evidence. [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 620 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 325 26 11. [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. 70915 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). [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, [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). [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 [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. [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 1810 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