Hornbuckle v. Commissioner of Social Security, No. 2:2017cv00239 - Document 15 (E.D. Wash. 2018)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 14 and denying 13 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)
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Hornbuckle v. Commissioner of Social Security Doc. 15 1 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 2 3 UNITED STATES DISTRICT COURT May 04, 2018 4 EASTERN DISTRICT OF WASHINGTON SEAN F. MCAVOY, CLERK 5 6 7 8 9 10 11 12 BRUCE A. HORNBUCKLE, No. 2:17-CV-0239-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 13 14 BEFORE THE COURT are cross-motions for summary judgment. ECF 15 No. 13, 14. Attorney Lora Lee Stover represents Bruce A. Hornbuckle (Plaintiff); 16 Special Assistant United States Attorney Leisa A. Wolf represents the 17 Commissioner of Social Security (Defendant). The parties have consented to 18 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 19 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 20 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 21 JURISDICTION 22 On September 10, 2013, Plaintiff filed an application for Supplemental 23 Security Income (SSI) benefits, alleging disability since September 1, 2012, due to 24 nerve damage, carpal tunnel, arthritis and osteoarthritis. Tr. 156, 175. Plaintiff’s 25 application was denied initially and upon reconsideration. 26 Administrative Law Judge (ALJ) Marie Palachuk held a hearing on March 27 16, 2016, Tr. 41-75, and issued an unfavorable decision on April 6, 2016, Tr. 20- 28 30. The Appeals Council denied review on May 19, 2017. Tr. 1-6. The ALJ’s ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com 1 April 2016 decision thus became the final decision of the Commissioner, which is 2 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 3 action for judicial review on June 29, 2017. ECF No. 1, 4. 4 STATEMENT OF FACTS The facts of the case are set forth in the administrative hearing transcript, the 5 6 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 7 here. 8 9 Plaintiff was born on April 12, 1965, and was 47 years old on the alleged onset date, September 1, 2012. Tr. 156. He had completed two years of college. 10 Tr. 176. Plaintiff’s disability report indicates he stopped working on September 1, 11 2012, because of his conditions, Tr. 175; however, as indicated by the ALJ, 12 Plaintiff’s last reported earnings were in 2006, Tr. 66. 13 Plaintiff testified at the March 2016 administrative hearing that he 14 experiences daily pain for which he takes non-narcotic medications. Tr. 58-59. He 15 stated he wore braces for his hand issues, described an inability to make a fist, 16 indicated he is not able to use his fingers to hold things, and is unable to open 17 twist-top containers. Tr. 57-58, 62-64. Plaintiff also indicated he had been 18 experiencing increased acid reflux and allergies. Tr. 59. He denied having any 19 difficulty with depression. Tr. 65-66. Plaintiff testified he was not limited in sitting, was able to walk a mile 20 21 without difficulties, and could stand one to six hours without having a problem. 22 Tr. 59-60. He specifically stated he believed he could stand for a six-hour period 23 of time in a work situation. Tr. 60-61. With respect to household chores, Plaintiff 24 indicated he struggled with the continuous aerating/raking he had to perform, was 25 able to cook but would need to use two hands when holding a gallon of milk and 26 heavy kitchen tools, and was able to do the general cleaning in the home. Tr. 61- 27 62. He testified he spends most of his day as a “couch potato” watching television. 28 Tr. 65. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 2 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 3 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 4 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 5 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 6 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 7 only if it is not supported by substantial evidence or if it is based on legal error. 8 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 9 defined as being more than a mere scintilla, but less than a preponderance. Id. at 10 1098. Put another way, substantial evidence is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion. Richardson v. 12 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 13 rational interpretation, the Court may not substitute its judgment for that of the 14 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 15 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 16 administrative findings, or if conflicting evidence supports a finding of either 17 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 18 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 19 supported by substantial evidence will be set aside if the proper legal standards 20 were not applied in weighing the evidence and making the decision. Brawner v. 21 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 22 SEQUENTIAL EVALUATION PROCESS 23 The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 25 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 26 proof rests upon the claimant to establish a prima facie case of entitlement to 27 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 28 claimant establishes that physical or mental impairments prevent him from ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 engaging in his previous occupation. 20 C.F.R. § 416.920(a)(4). If a claimant 2 cannot perform past relevant work, the ALJ proceeds to step five, and the burden 3 shifts to the Commissioner to show that the claimant can perform other jobs 4 present in significant numbers in the national economy. Batson v. Commissioner 5 of Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot 6 make an adjustment to other work in the national economy, a finding of “disabled” 7 is made. 20 C.F.R. § 416.920(a)(4)(v). 8 9 10 ADMINISTRATIVE DECISION On April 6, 2016, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act. 11 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 12 activity since the application date, September 10, 2013. Tr. 22. At step two, the 13 ALJ determined Plaintiff had the following severe impairments: mixed arthritis 14 bilateral hand (combination of osteoarthritis and zero negative rheumatoid arthritis) 15 present since June 2013; history of bilateral carpal tunnel syndrome, status post 16 release surgery on the left in November 2013; and mild osteoarthritis right hip and 17 low back. Tr. 22. At step three, the ALJ found Plaintiff did not have an 18 impairment or combination of impairments that meets or medically equals the 19 severity of one of the listed impairments. Tr. 23. 20 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 21 determined he could perform light exertion level work with the following 22 limitations: he is able to perform postural activities frequently, except no climbing 23 of ladders, ropes or scaffolds; he can frequently handle, finger and feel with 24 bilateral hands; he should avoid concentrated exposure to industrial vibrations and 25 hazards; and he can have no unsupervised interactions with children. Tr. 24. 26 At step four, the ALJ determined Plaintiff could not perform his past 27 relevant work as a construction worker. Tr. 29. At step five, the ALJ determined 28 that based on the testimony of the vocational expert, and considering Plaintiff’s ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 age, education, work experience and RFC, Plaintiff could perform other jobs 2 present in significant numbers in the national economy, including the jobs of 3 cleaner housekeeping, cafeteria attendant, and marker price. Tr. 29-30. The ALJ 4 thus concluded Plaintiff was not under a disability within the meaning of the Social 5 Security Act at any time from September 10, 2013, the application date, through 6 the date of the ALJ’s decision, April 6, 2016. Tr. 30. ISSUES 7 The question presented is whether substantial evidence supports the ALJ’s 8 9 10 decision denying benefits and, if so, whether that decision is based on proper legal standards. Plaintiff contends the ALJ erred in assessing Plaintiff’s credibility and 11 12 residual functional capacity and by finding Plaintiff was capable of substantial 13 gainful activity at step five of the sequential evaluation process. ECF No. 13 at 6. DISCUSSION 14 15 16 17 18 A. Plaintiff’s Symptom Testimony Plaintiff first contends the ALJ erred in assessing Plaintiff’s credibility. ECF No. 13 at 8-10. It is the province of the ALJ to make credibility determinations. Andrews, 19 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 20 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 21 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 22 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 23 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 24 “General findings are insufficient: rather the ALJ must identify what testimony is 25 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 26 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 27 In this case, the ALJ found Plaintiff’s medically determinable impairments 28 could reasonably be expected to cause the alleged symptoms; however, Plaintiff’s ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 statements concerning the intensity, persistence and limiting effects of these 2 symptoms were not entirely consistent with the evidence of record. Tr. 25, 28. 3 The ALJ first held that the objective medical evidence of record did not 4 substantiate Plaintiff’s allegations of disabling functional limitations in this case. 5 Tr. 25-28. 6 A lack of supporting objective medical evidence is a factor which may be 7 considered in evaluating an individual’s credibility, provided it is not the sole 8 factor. Bunnell v. Sullivan, 347 F.2d 341, 345 (9th Cir. 1991) (holding that once a 9 claimant produces objective medical evidence of an underlying impairment, an 10 adjudicator may not reject the claimant’s subjective complaints based solely on a 11 lack of objective medical evidence to fully corroborate the alleged severity of 12 pain); see also Robbins v. Soc. Sec. Admin., 466 F3d 880, 883 (9th Cir. 2006) 13 (finding an ALJ may not make a negative credibility finding “solely because” the 14 claimant’s symptom testimony “is not substantiated affirmatively by objective 15 medical evidence”). 16 The ALJ stated that although Plaintiff alleged an inability to work, no 17 accepted treating or examining medical professional had opined that Plaintiff’s 18 impairments would completely preclude work functioning. Tr. 26. The ALJ 19 indicated that examining and treating medical sources noted generally stable 20 conditions during the relevant time period: no evidence of hand or wrist atrophy, 21 no crepitus or edema, and negative Tinel’s sign on examination throughout the 22 summer of 2013, Tr. 308, 317; and full range of motion of his upper and lower 23 extremities with some pain and mild limitation in his right hip on examination by 24 May 27, 2014, Tr. 362. Tr. 26. On May 30, 2013, Arthur M. A. Flores, PA-C, 25 examined Plaintiff and determined he was capable of performing light exertion 26 level work. Tr. 26, 266. On June 3, 2014, Dennis Koukol, M.D., a reviewing state 27 agency physician, also found Plaintiff was able to perform light exertion level 28 work. Tr. 27, 96-97. In February 2016, Teona Muntean, M.D., noted much ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 improvement, with full range of motion in all joints, normal neurologic exam and 2 the observation that Plaintiff could now make a fist bilaterally. Tr. 26, 538-539. 3 John Morse, M.D., the medical expert, testified at the administrative hearing, that 4 Plaintiff’s condition improved considerably after surgery and with treatment. Tr. 5 27, 49. Dr. Morse opined that Plaintiff was capable of performing a restricted 6 range of light exertion level work. Tr. 27, 50-51. The ALJ further identified 7 radiology imaging of May 30, 2013 as revealing only mild osteoarthritis of 8 Plaintiff’s left hip, Tr. 278; EMG nerve conduction studies of July 5, 2013 as 9 revealing carpal tunnel syndrome, Tr. 316, for which Plaintiff underwent 10 successful release surgery, Tr. 344; and July 30, 2014 x-rays of the bilateral hands 11 as revealing stable osteoarthritis on the left hand and only slight progression of the 12 right hand, Tr. 576. Tr. 26. 13 Based on the foregoing, and as indicated by the ALJ, the objective medical 14 evidence of record does not support the disabling symptoms and limitations alleged 15 by Plaintiff in this case. This was a proper basis for the ALJ to conclude Plaintiff 16 was not entirely credible. 17 The ALJ also described an inconsistency with Plaintiff’s testimony. Tr. 28. 18 Plaintiff has offered no argument with respect to this reason by the ALJ for finding 19 Plaintiff less than fully credible.1 In assessing the weight accorded to a claimant’s statements, an ALJ may 20 21 engage in ordinary techniques of credibility evaluation, such as considering 22 claimant’s reputation for truthfulness and inconsistencies in claimant’s testimony. 23 24 1 The Ninth Circuit has repeatedly admonished that the Court should not 25 consider claims not actually argued in a party’s opening brief. Greenwood v. Fed. 26 Aviation Admin., 28 F.3d 971, 977 (9th Cir. 1994). Rather, the Court should 27 “review only issues which are argued specifically and distinctly in a party’s 28 opening brief.” Id. ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005); Tonapetyan v. Halter, 242 2 F.3d 1144, 1148 (9th Cir. 2001). When a claimant fails to be a reliable historian, 3 “this lack of candor carries over” to other portions of his testimony. Thomas v. 4 Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 5 The ALJ noted Plaintiff’s statements about difficulty using his hands and an 6 inability to make a fist were not consistent with the record. Tr. 28. Medical 7 providers reported improved symptoms with treatment, Tr. 49, 538-539, and Dr. 8 Muntean specifically observed that Plaintiff could make a fist bilaterally in 9 February 2016. Tr. 538. It was proper for the ALJ to note the foregoing 10 inconsistency in finding Plaintiff’s subjective complaints less than fully credible in 11 this case. 12 The ALJ next noted there was evidence of record that Plaintiff embellished 13 his symptoms. Tr. 30. Plaintiff again failed to provide an argument with respect to 14 this reason by the ALJ for finding Plaintiff not entirely credible. See Paladin 15 Assocs., Inc. v. Mont. Power Co., 328 F.3d 1145, 1164 (9th Cir. 2003) (issues not 16 specifically and distinctly contested in a party’s opening brief are considered 17 waived). 18 An ALJ’s decision to discredit a claimant’s statements may be supported 19 by the claimant’s tendency to exaggerate. Tonapetyan, 242 F.3d at 1148. The ALJ 20 indicated Physician Assistant Flores described Plaintiff’s response to palpation as 21 “exaggerated and not consistent with PE findings” on examination in May 2013. 22 Tr. 28, 268-269. The ALJ did not error by finding Plaintiff’s embellishment of 23 symptoms relevant to her credibility determination. 24 25 26 The ALJ also noted Plaintiff has not always been forthcoming about his drug use. Tr. 28. Untruthfulness or inconsistencies regarding alcohol or substance abuse has 27 been held to support an ALJ’s decision that a claimant’s testimony lacks 28 credibility. Thomas, 278 F.3d at 959 (ALJ’s finding that claimant was not a ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 reliable historian regarding drug and alcohol usage supports negative credibility 2 determination); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 3 (conflicting or inconsistent testimony concerning alcohol or drug use can 4 contribute to an adverse credibility finding). 5 The ALJ indicated Plaintiff reported to medical providers at Eastern State 6 Hospital that he relapsed on methamphetamine; however, he later admitted he 7 started using methamphetamine five years ago and had been using consistently 8 since that time, which is confirmed by positive drug screen tests. Tr. 28. The 9 Court, having reviewed the record, is not able to clearly ascertain whether the ALJ 10 determined Plaintiff’s statements were inconsistent with each other or whether his 11 statements regarding drug use were inconsistent with other evidence of record (i.e., 12 positive urinalyses). In any event, Plaintiff again did not offer an argument with 13 respect to this reason by the ALJ for discounting Plaintiff’s credibility. See 14 Greenwood, 28 F.3d at 977. Consequently, the Court finds the noted inconsistency 15 regarding Plaintiff’s drug use reporting is a valid reason to discount Plaintiff’s 16 credibility. 17 Finally, the ALJ indicated Plaintiff’s reported level of activity was 18 inconsistent with his assertions of totally disabling symptoms. Tr. 28. Plaintiff 19 again offered no argument with respect to this reason by the ALJ for finding 20 Plaintiff less than fully credible. 21 It is well-established that the nature of daily activities may be considered 22 when evaluating credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 23 While one does not need to be “utterly incapacitated” to be disabled, id., it was 24 entirely proper for the ALJ to find Plaintiff’s reports of activities such as working 25 “side jobs,” Tr. 599, holding and using yard tools including a lawn mower and 26 rake, Tr. 61, 221, and performing household tasks like cooking, cleaning and 27 grocery shopping, Tr. 61-62, 221-223, were inconsistent with Plaintiff’s alleged 28 limitations and thus detracted from his overall credibility. Tr. 28. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 The ALJ is responsible for reviewing the evidence and resolving conflicts or 2 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 3 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 4 evidence. Richardson v. Perales, 402 U.S. 389, 400 (1971). The Court has a 5 limited role in determining whether the ALJ’s decision is supported by substantial 6 evidence and may not substitute its own judgment for that of the ALJ even if it 7 might justifiably have reached a different result upon de novo review. 42 U.S.C. § 8 405(g). After reviewing the record, the Court finds that the ALJ provided clear 9 and convincing reasons, which are fully supported by the record, for discounting 10 Plaintiff’s subjective complaints. Accordingly, the ALJ did not err by finding 11 Plaintiff’s symptom allegations were not entirely credible in this case. 12 B. Residual Functional Capacity Plaintiff next contends his physical conditions pose limitations which affect 13 14 his employability which the ALJ ignored when she found Plaintiff capable of a 15 restricted range of light exertion level work. ECF No. 13 at 10-11. Plaintiff 16 specifically asserts the ALJ erred by failing to develop the record with respect to 17 his ability to use his hands. Id. In Social Security cases, the ALJ has a special duty to develop the record 18 19 fully and fairly and to ensure that the claimant’s interests are considered. 20 Tonapetyan, 242 F.3d at 1150. The ALJ must scrupulously and conscientiously 21 probe into, inquire of, and explore all the relevant facts, being especially diligent to 22 ensure favorable as well as unfavorable facts are elicited. Higbee v. Sullivan, 975 23 F.2d 558, 561 (9th Cir. 1992). However, an ALJ’s duty to develop the record 24 further is triggered only when there is ambiguous evidence or when the record is 25 inadequate to allow for proper evaluation of the evidence. Tonapetyan, 242 F.3d at 26 1150. 27 28 Here, Plaintiff fails to specify any particular ambiguity with respect to the entirety of the evidence of record. ECF No. 13 at 10-11. Instead, Plaintiff merely ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 asserts that the testimony of the medical expert, Dr. Morse, was equivocal. ECF 2 No. 13 at 10. 3 Dr. Morse testified that a review of the record showed a variant of bilateral 4 hand rheumatoid arthritis since June or July of 2013, Tr. 48-49, but noted there was 5 “considerable improvement on the physical examination” of February 2016, Tr. 49. 6 Dr. Morse opined that Plaintiff would be limited to frequent gross handling with 7 his right upper extremity and limited to frequent fine handling with both 8 extremities. Tr. 51. Dr. Morse mentioned he did not have a current independent 9 orthopedic consultative examination to review, but found the restrictions to 10 “frequent” handling based on the improvement noted in February 2016. Tr. 51. 11 Dr. Morse explained that Plaintiff had a carpal tunnel release and was on a better 12 medical program which, in his opinion, improved Plaintiff’s handling to 13 “frequent.” Tr. 52. The Court finds that the testimony of Dr. Morse regarding 14 Plaintiff’s hand limitations was not ambiguous. 15 Moreover, the record as a whole was adequate to allow for a proper 16 evaluation of the evidence. As discussed above, examining and treating medical 17 sources noted generally stable conditions during the relevant time period: no 18 evidence of hand or wrist atrophy, no crepitus or edema, and negative Tinel’s sign 19 on examination throughout the summer of 2013, Tr. 308, 317; and full range of 20 motion on examination by May 27, 2014, Tr. 362. On May 30, 2013, Mr. Flores 21 examined Plaintiff and determined he was capable of performing light exertion 22 level work, Tr. 266, on June 3, 2014, Dr. Koukol found Plaintiff was able to 23 perform light exertion level work, Tr. 96-97, in February 2016, Dr. Muntean noted 24 much improvement, with full range of motion in all joints, normal neurologic exam 25 and the observation that Plaintiff could now make a fist bilaterally, Tr. 538-539, 26 and Dr. Morse opined that Plaintiff was capable of performing a restricted range of 27 light exertion level work, Tr. 50-51. EMG nerve conduction studies of July 5, 28 2013 revealed carpal tunnel syndrome, Tr. 316, for which Plaintiff underwent ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 successful release surgery, Tr. 344; and July 30, 2014 x-rays of the bilateral hands 2 revealed stable osteoarthritis on the left hand and only slight progression of the 3 right hand, Tr. 576. Accordingly, even if Dr. Morse’s testimony regarding 4 Plaintiff’s hand limitations was deemed equivocal, Plaintiff has not demonstrated 5 that the evidence of record as a whole was inadequate for the ALJ to assess 6 Plaintiff’s hand usage capacity. 7 8 The Court finds that the record before the ALJ was neither ambiguous nor inadequate to allow for a proper evaluation of the evidence. 9 CONCLUSION 10 Having reviewed the record and the ALJ’s findings, the Court finds the 11 ALJ’s decision is supported by substantial evidence and free of legal error. 12 Accordingly, IT IS ORDERED: 13 14 1. Defendant’s Motion for Summary Judgment, ECF No. 14, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 13, is DENIED. 15 2. 16 The District Court Executive is directed to file this Order and provide a copy 17 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 18 and the file shall be CLOSED. 19 DATED May 4, 2018. 20 21 22 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 12
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