McVay v. Commissioner of Social Security, No. 2:2017cv00184 - Document 21 (E.D. Wash. 2018)
Court Description: ORDER Granting 20 Defendant's Motion for Summary Judgment; denying 15 Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (PL, Case Administrator)
Download PDF
<![CDATA[
McVay v. Commissioner of Social Security Doc. 21 1 2 3 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 4 Jun 04, 2018 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 8 9 10 CHAD M., No. 2:17-CV-0184-JTR Plaintiff, 11 v. 12 13 14 15 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 No. 15, 20. Attorney Jeffrey Schwab represents Chad M. (Plaintiff); Special 19 Assistant United States Attorney Nancy A. Mishalanie represents the 20 Commissioner of Social Security (Defendant). The parties have consented to 21 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 22 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 23 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 24 JURISDICTION 25 On July 30, 2013, Plaintiff filed an application for disability insurance 26 benefits, alleging disability since August 16, 2010, due to a back injury and 27 depression. Tr. 152, 176. Plaintiff’s application was denied initially and upon 28 reconsideration. ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 Administrative Law Judge (ALJ) Moira Ausems held a hearing on June 23, 2 2015, Tr. 51-84, and issued an unfavorable decision on September 20, 2015, Tr. 3 20-36. The Appeals Council denied review on April 7, 2017. Tr. 1-6. The ALJ’s 4 September 2015 decision thus became the final decision of the Commissioner, 5 which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff 6 filed this action for judicial review on May 30, 2017. ECF No. 1, 4. STATEMENT OF FACTS 7 The facts of the case are set forth in the administrative hearing transcript, the 8 9 10 11 ALJ’s decision, and the briefs of the parties. They are only briefly summarized here. Plaintiff was born on November 29, 1976, and was 33 years old on the 12 alleged onset date, August 16, 2010. Tr. 152. He completed the ninth grade in 13 school, attending special education classes, and had not completed any type of 14 specialized job training, trade or vocational school. Tr. 68, 177. Plaintiff’s 15 disability report indicates he stopped working in 2010, because of his condition(s). 16 Tr. 176. Plaintiff testified at the June 23, 2015, administrative hearing that back 17 pain as a result of an injury and the need for rest breaks prevented him from being 18 able to perform work. Tr. 81-82. He stated he experienced back pain “pretty much 19 all day,” and could lift only about five pounds without pain. Tr. 58. Plaintiff 20 further indicated he did not believe he could walk a mile at one stretch. Tr. 62. He 21 did not describe any mental health limitations at the administrative hearing. 22 Plaintiff stated his wife worked during the day, and he was responsible for 23 caring for their twin two-year-old boys during that time. Tr. 59-60. Plaintiff 24 testified he tried to help his wife as much as possible (e.g., grocery shopping), Tr. 25 64; however, he hired someone to take care of his yard, Tr. 65, his wife did the 26 cooking, Tr. 66, and his teenage daughter was responsible for the housework and 27 laundry, Tr. 66. He described his typical day as waking up at 6:00 a.m. with his 28 twin toddlers, making them breakfast, and then spending the day ensuring his sons ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 were entertained (e.g., watching television or playing in the backyard). Tr. 66-67. 2 He had been responsible for the daily care of his twin sons since their birth. Tr. 60. 3 STANDARD OF REVIEW 4 The ALJ is responsible for determining credibility, resolving conflicts in 5 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 6 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 7 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 8 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 9 only if it is not supported by substantial evidence or if it is based on legal error. 10 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 11 defined as being more than a mere scintilla, but less than a preponderance. Id. at 12 1098. Put another way, substantial evidence is such relevant evidence as a 13 reasonable mind might accept as adequate to support a conclusion. Richardson v. 14 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 15 rational interpretation, the Court may not substitute its judgment for that of the 16 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 17 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 18 administrative findings, or if conflicting evidence supports a finding of either 19 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 20 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 21 supported by substantial evidence will be set aside if the proper legal standards 22 were not applied in weighing the evidence and making the decision. Brawner v. 23 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 24 SEQUENTIAL EVALUATION PROCESS 25 The Commissioner has established a five-step sequential evaluation process 26 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 27 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 28 proof rests upon the claimant to establish a prima facie case of entitlement to ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 2 claimant establishes that physical or mental impairments prevent him from 3 engaging in his previous occupation. 20 C.F.R. § 416.920(a)(4). If a claimant 4 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 5 shifts to the Commissioner to show that the claimant can perform other jobs 6 present in significant numbers in the national economy. Batson v. Commissioner 7 of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot 8 make an adjustment to other work in the national economy, a finding of “disabled” 9 is made. 20 C.F.R. § 416.920(a)(4)(v). 10 11 12 13 ADMINISTRATIVE DECISION On September 20, 2015, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful 14 activity since the alleged onset date, August 16, 2010. Tr. 22. At step two, the 15 ALJ determined Plaintiff had the following severe impairments: lumbar 16 degenerative disc disease; borderline intellectual functioning; learning disorders of 17 reading and written expression; depressive disorder, NOS; and somatic symptom 18 disorder. Tr. 22. At step three, the ALJ found Plaintiff did not have an impairment 19 or combination of impairments that meets or medically equals the severity of one 20 of the listed impairments. Tr. 23. 21 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 22 determined he could perform light exertion level work with the following 23 limitations: he is limited to occasional postural activities; he cannot climb ladders, 24 ropes, or scaffolds due to the exposure to hazards; he should avoid concentrated 25 exposure to extreme cold and vibration; he should avoid exposure to unprotected 26 heights, dangerous moving machinery, and commercial driving due to side effects 27 of medication; he is capable of understanding, remembering and carrying out 28 simple, routine tasks that do not require reading for the purpose of learning work- ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 related tasks; and he can have no more than superficial contact with the general 2 public. Tr. 25. 3 At step four, the ALJ determined Plaintiff could not perform his past 4 relevant work as a pipe layer or machine molder. Tr. 34. However, at step five, 5 the ALJ determined that based on the testimony of the vocational expert, and 6 considering Plaintiff’s age, education, work experience and RFC, Plaintiff could 7 perform other jobs present in significant numbers in the national economy, 8 including the jobs of production assembler; cleaner, housekeeping; and sorter. Tr. 9 34-35. The ALJ additionally noted that if Plaintiff was further limited to standing 10 and walking for no more than two out of eight hours, needing a sit/stand option for 11 up to five minutes per hour without leaving the work station, being unable to lift or 12 carry more than five pounds occasionally, and seldom (rarely) bending from the 13 waist, he would still be capable of performing jobs in the assembly occupational 14 base (with an erosion to 500,000 jobs) and hand packagers/packers occupation 15 base (with an erosion to 175,000 jobs), as well as the jobs of graders and sorters of 16 agricultural products with a representative job being mail sorter. Tr. 35. The ALJ 17 thus concluded Plaintiff was not under a disability within the meaning of the Social 18 Security Act at any time from August 16, 2010, the alleged onset date, through the 19 date of the ALJ’s decision, September 20, 2015. Tr. 36. ISSUES 20 Plaintiff merely lists the issue before the Court as the ALJ’s decision is not 21 22 supported by substantial evidence, nor was the proper legal standard applied. ECF 23 No. 15 at 3. The Court agrees that the question before the Court is whether 24 substantial evidence supports the ALJ’s decision denying benefits and, if so, 25 whether that decision is based on proper legal standards. However, Plaintiff’s 26 opening brief fails to adequately delineate specific issues he requests the Court to 27 address. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 5 After examining Plaintiff’s briefing, the Court construes Plaintiff’s argument 1 2 as the ALJ erred in this case by (1) failing to give greater weight to the physical 3 capacity evaluation reports of two physical therapists; and (2) determining at step 4 five of the sequential evaluation process that Plaintiff had the physical and mental 5 capacity to perform the jobs identified by the vocational expert. ECF No. 15 at 4- 6 13. DISCUSSION 7 8 A. Plaintiff’s Symptom Testimony 9 While Plaintiff does not challenge the ALJ’s finding that Plaintiff’s 10 symptom testimony was not entirely credible, the Court finds the ALJ’s adverse 11 credibility determination significant in this case. 12 The ALJ indicated the following reasons for finding Plaintiff not fully 13 credible: the objective medical evidence of record did not support the level of 14 impairment alleged by Plaintiff (Bunnell v. Sullivan, 347 F.2d 341, 345 (9th Cir. 15 1991) (A lack of supporting objective medical evidence is a factor which may be 16 considered in evaluating an individual’s credibility, provided it is not the sole 17 factor)); Plaintiff’s subjective allegations regarding symptoms and limitations were 18 inconsistent with other evidence of record (Nyman v. Heckler, 779 F.2d 528, 531 19 (9th Cir. 1986) (inconsistencies in a disability claimant’s testimony supports a 20 decision by the ALJ that a claimant lacks credibility with respect to a claim of 21 disabling pain)); Plaintiff’s activities of daily living indicate he is not as limited as 22 alleged (Fair, 885 F.2d at 603 (it is well-established that the nature of daily 23 activities may be considered when evaluating credibility)); and there was evidence 24 Plaintiff embellished his symptoms (Tonapetyan v. Halter, 242 F.3d 1144, 1148 25 (9th Cir. 2001) (finding that the ALJ’s decision to discredit the claimant’s 26 statements was supported by the claimant’s tendency to exaggerate)). Tr. 26-28. 27 The rationale provided by the ALJ is fully supported by the record, and the 28 ALJ’s determination that Plaintiff’s statements were not fully credible is ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 uncontested by Plaintiff. See Paladin Assocs., Inc. v. Mont. Power Co., 328 F.3d 2 1145, 1164 (9th Cir. 2003) (issues not specifically and distinctly contested in a 3 party’s opening brief are considered waived). Since Plaintiff was properly found 4 by the ALJ to be not entirely credible, the ALJ appropriately accorded little weight 5 to Plaintiff’s subjective complaints and description of disabling limitations. 6 B. 7 Physical Therapist Opinions Plaintiff asserts the ALJ erred by failing to accord greater weight to the 8 functional capacity evaluations administered by physical therapist Steven 9 Mongeon on October 25, 2012, Tr. 447-461, and physical therapist Douglas K. 10 11 Harris on October 1, 2013, Tr. 573-580. ECF No. 15 at 4-7. Physical therapists are considered “other sources.” Ghanim v. Colvin, 763 12 F.3d 1154, 1161 (9th Cir. 2014); Gomez v. Chater, 74 F.3d 967, 970-971 (9th Cir. 13 1996); 20 C.F.R. §§ 404.1527(f), 416.927(f). The opinion of an acceptable 14 medical source is given more weight than that of an “other source.” Id. However, 15 the ALJ must still provide germane reasons for discounting the opinions of “other 16 sources.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); see also Molina v. 17 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); Turner v. Comm’r of Soc. Sec. 18 Admin., 613 F.3d 1217, 1224 (9th Cir. 2010). 19 The ALJ accorded “no significant weight” to the physical therapists’ 20 assessments and instead accorded weight to independent medical examinations 21 conducted by acceptable medical sources William Pace, M.D., on April 26, 2011, 22 Tr. 235-242, Daniel Seltzer, M.D., on March 31, 2012, Tr. 293-303, and Richard 23 Marks, M.D., James Champoux, M.D., and Roy Clark, M.D., on February 14, 24 2013, Tr. 308-332, and to reviewing physician Dennis Stumpp, M.D., Tr. 685-688. 25 Tr. 31-33. 26 While Plaintiff contends that the other source opinions of the physical 27 therapists should have been accorded greater weight, Plaintiff fails to discuss or 28 challenge the opinions of the acceptable medical sources of record, Drs. Stumpp, ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 Pace, Seltzer, Marks, Champoux and Clark. Arguments not specifically and 2 distinctly made in an opening brief are waived. Carmickle v. Comm’r Soc. Sec. 3 Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008); Paladin Assocs., Inc., 328 F.3d at 4 1164 (issues not specifically and distinctly contested in a party’s opening brief are 5 considered waived). Consequently, the ALJ’s reliance on the opinions of the 6 above acceptable medical sources was proper. These medical professionals 7 restricted Plaintiff to no greater than a reduced range of light exertion level work. 8 The ALJ also provided germane reasons for discounting the opinions of the 9 two physical therapists that Plaintiff had a physical capacity at the sedentary 10 demand level. The ALJ noted the opinion of Dr. Stumpp that the physical 11 therapists’ physical capacities evaluations should be considered invalid due to 12 Plaintiff’s demonstrated self-limiting behavior (Plaintiff “demonstrated symptom 13 exaggeration behavior by Blankenship’s criteria”) and additionally that the 14 assessments were internally inconsistent at times (limited Plaintiff to sedentary 15 work, yet finding Plaintiff could stand and walk for three hours in an eight-hour 16 day and noting Plaintiff reported he spent nine hours standing or walking in a 17 typical 24-hour period). Tr. 32. The Court finds the ALJ properly considered and 18 articulated germane reasons for discounting the opinions of the physical therapists. The restriction to a limited range of sedentary work as opined by the two 19 20 physical therapists is not supported by the weight of the record evidence. 21 Substantial evidence supports the ALJ’s determination that Plaintiff retained the 22 capacity to perform light exertion level work with certain postural and 23 environmental limitations; no acceptable medical source has assessed greater 24 physical limitations. Accordingly, the ALJ did not err with respect to his findings 25 regarding Plaintiff’s physical functioning capacity. 26 /// 27 /// 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 2 C. Step Five Plaintiff next contends the ALJ erred at step five of the sequential evaluation 3 process. ECF No. 15 at 7-13. Plaintiff asserts the mental limitations established 4 by the objective testing of Thomas Rowe, Ph.D., and the physical limitations 5 expressed in the opinions of the two physical therapists exceed the physical and 6 mental requirements of the jobs identified by the vocational expert. Id. 7 As determined above, the ALJ did not err by rejecting the opinions of the 8 physical therapists pertaining to Plaintiff’s physical functioning and instead relying 9 on the opinions of acceptable medical sources. Supra. As such, the ALJ’s RFC 10 determination with respect to Plaintiff’s physical functioning capacity is supported 11 by substantial evidence and free of error. 12 With regard to Plaintiff’s mental functional capacity, the ALJ indicated 13 Plaintiff alleged disabling depression, but failed to describe any mental health 14 limitations at the administrative hearing, Tr. 29, and had not sought or received any 15 mental health counseling, Tr. 30. The ALJ credited the psychological assessment 16 conducted by Dr. Rowe on August 27, 2014, Tr. 581-588, and the February 14, 17 2013 observations of psychiatrist Dr. Clark, Tr. 325-327, to conclude Plaintiff 18 retained the mental capacity to understand, remember and carry out simple routine 19 tasks that did not require reading for the purpose of learning work-related tasks and 20 could have no more than superficial contact with the general public. Tr. 25, 29-30, 21 33-34. 22 Plaintiff argues that based on the examination results of Dr. Rowe, he is not 23 able to meet the mental demand, or General Educational Development (GED), of 24 the jobs identified by the vocational expert in this case. ECF No. 15 at 9-13. With 25 specific regard to the results of Dr. Rowe’s mental examination, the ALJ stated it 26 showed significant deficits in intellectual functioning; however, Plaintiff was able 27 to comprehend test instructions, had logical, goal-directed thought processes, 28 earned 27/30 on the Mini-Mental State exam in 2013, Tr. 326 (a performance ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 about one standard deviation below the mean for his peers by years of schooling 2 and by years of age), and had a work history indicative of a high level of adaptive 3 functioning notwithstanding any intellectual deficits. Tr. 33. The ALJ thus limited 4 Plaintiff to work that only included “simple routine tasks that do not require 5 reading for the purpose of learning work-related tasks.” Tr. 25. Plaintiff does not 6 specifically challenge this mental RFC determination. See Paladin Assocs., Inc., 7 328 F.3d at 1164. Given the ALJ’s RFC determination, based in part on the 8 assessments of Drs. Rowe and Clark, the vocational expert testified that a 9 significant number of jobs existing in the national economy that Plaintiff could 10 perform.1 Tr. 76-80. Since the vocational expert’s testimony was based on a 11 proper RFC determination by the ALJ, the Court finds the ALJ did not err at step 12 five of the sequential evaluation process. 13 CONCLUSION 14 Having reviewed the record and the ALJ’s findings, the Court finds the 15 ALJ’s decision is supported by substantial evidence and free of legal error. 16 Accordingly, IT IS ORDERED: 1. 17 Defendant’s Motion for Summary Judgment, ECF No. 20, is 18 GRANTED. 19 /// 20 21 1 Even if the jobs identified by the ALJ were inconsistent with the mental 22 limitations defined in the Dictionary of Occupational Titles (DOT), as seemingly 23 alleged by Plaintiff, the vocational expert indicated his testimony was based on 24 over 30 years’ experience as a vocational specialist and on sources such as labor 25 market surveys and job analyses. Tr. 79; see Johnson v. Shalala, 60 F.3d 1428, 26 1435 (9th Cir. 1995) (an ALJ may rely on vocational expert testimony that 27 contradicts the DOT when the record contains persuasive evidence to support the 28 deviation). ORDER GRANTING DEFENDANT’S MOTION . . . - 10 Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 1 2. 2 The District Court Executive is directed to file this Order and provide a copy 3 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 4 and the file shall be CLOSED. 5 DATED June 4, 2018. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 11
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
