Stipek v. Saul, No. 4:2020cv05116 - Document 21 (E.D. Wash. 2021)

Court Description: ORDER GRANTING 19 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 18 Plaintiff's Motion for Summary Judgment. Case is closed. Signed by Magistrate Judge John T. Rodgers. (AY, Case Administrator)

Download PDF

Stipek v. Saul Doc. 21 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 4 Jun 28, 2021 5 SEAN F. MCAVOY, CLERK 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 EASTERN DISTRICT OF WASHINGTON 12 13 14 SARAH S., No. 4:20-cv-05116-JTR Plaintiff, 15 16 17 18 19 20 v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 21 22 23 24 25 26 27 28 BEFORE THE COURT are cross-motions for summary judgment. ECF No. 18, 19. Attorney Chad Hatfield represents Sarah S. (Plaintiff); Special Assistant United States Attorney Leisa Wolf represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 6. After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. ORDER GRANTING DEFENDANT’S MOTION . . . - 1 Dockets.Justia.com JURISDICTION 1 2 Plaintiff filed applications for Disability Insurance Benefits and 3 Supplemental Security Income on March 23, 2017, alleging disability since March 4 1, 2012, due to depression, ADHD, PTSD, anxiety, thyroid disorder, insomnia, 5 joint pain, degenerative disc disease in the neck, bilateral knee pain, and obesity. 6 Tr. 88-89. The applications were denied initially and upon reconsideration. Tr. 7 140-48, 151-57. Administrative Law Judge (ALJ) Moira Ausems held a hearing on 8 April 19, 2019, Tr. 42-86, and issued an unfavorable decision on June 11, 2019. Tr. 9 15-28. Plaintiff requested review by the Appeals Council and the Appeals Council 10 denied the request for review on May 18, 2020. Tr. 1-5. The ALJ’s June 2019 11 decision became the final decision of the Commissioner, which is appealable to the 12 district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial 13 review on July 17, 2020. ECF No. 1. STATEMENT OF FACTS 14 15 Plaintiff was born in 1981 and was 30 years old as of the alleged onset date. 16 Tr. 27. She has a high school education and some college courses, and received her 17 certification as a pharmacy technician. Tr. 348. She worked in various positions 18 doing daycare assisting, cashiering, and storage property management until she 19 broke her leg at work and was on worker’s compensation. Tr. 51-52. She sought 20 treatment in 2014 for mental health conditions and recovery from domestic 21 violence, along with assistance in job searching. Tr. 362-63, 400. She also received 22 treatment for various physical impairments and thyroid regulation. Tr. 515, 526, 23 739-40, 753-54. 24 25 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 26 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 27 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 28 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 2 only if it is not supported by substantial evidence or if it is based on legal error. 3 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 4 defined as being more than a mere scintilla, but less than a preponderance. Id. at 5 1098. Put another way, substantial evidence is such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion. Richardson v. 7 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 8 rational interpretation, the Court may not substitute its judgment for that of the 9 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 10 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 11 administrative findings, or if conflicting evidence supports a finding of either 12 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 13 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 14 supported by substantial evidence will be set aside if the proper legal standards 15 were not applied in weighing the evidence and making the decision. Brawner v. 16 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 17 18 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 19 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 20 416.920(a); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through 21 four the claimant bears the burden of establishing a prima facie case of disability. 22 Tackett, 180 F.3d at 1098-1099. This burden is met once a claimant establishes that 23 a physical or mental impairment prevents the claimant from engaging in past 24 relevant work. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot 25 perform past relevant work, the ALJ proceeds to step five, and the burden shifts to 26 the Commissioner to show (1) the claimant can make an adjustment to other work; 27 and (2) the claimant can perform specific jobs that exist in the national economy. 28 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 a claimant cannot make an adjustment to other work in the national economy, the 2 claimant will be found disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 3 ADMINISTRATIVE FINDINGS 4 On June 11, 2019, the ALJ issued a decision finding Plaintiff was not 5 6 7 8 disabled as defined in the Social Security Act. At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 17-18. At step two, the ALJ determined Plaintiff had the following severe 9 impairments: morbid obesity, left lateral tibia fracture status post ORIF and 10 hardware removal in 2012, minimal degenerative changes of the knees, mild 11 asthma with obstructive and restrictive lung disease, cranial nerve palsy with ptosis 12 of right eyelid resulting in decreased right eye vision, mild right carpal tunnel 13 syndrome, hypertension, hypothyroidism, migraine headaches, major depressive 14 disorder, generalized anxiety disorder with self-reported panic symptoms, post- 15 traumatic stress disorder, and attention-deficit hyperactivity disorder. Tr. 18. 16 At step three, the ALJ found Plaintiff did not have an impairment or 17 combination of impairments that met or medically equaled the severity of one of 18 the listed impairments. Tr. 18-20. 19 20 21 22 23 24 25 26 27 28 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and found she could perform light work, with additional limitations: She can stand and walk for no more than thirty minutes at a time and no more than four hours total in an eight-hour work day; she can never crawl or climb ladders, ropes, or scaffolds; she can occasionally stoop, kneel, and crouch; she must avoid exposure to temperature extremes of cold and heat; she must avoid concentrated exposure to pulmonary irritants such as fumes, odors, dusts, and gases and settings with poor ventilation; she cannot tolerate any exposure to unprotected heights, dangerous moving machinery, or commercial driving; she can perform simple, routine tasks, as well as more detailed tasks provided those tasks are fairly predictable in nature and would not involve more ORDER GRANTING DEFENDANT’S MOTION . . . - 4 than infrequent adaptation to unforeseen changes to the work duties; she can tolerate no more than superficial interaction with the general public and coworkers; and she cannot perform tasks that are inconsistent with right-sided peripheral field visual limitations or that would present a safety hazard for an individual with left-sided monocular vision only. 1 2 3 4 5 6 Tr. 20-21. At step four, the ALJ found Plaintiff was capable of performing her past 7 8 relevant work as a storage facility rental clerk. Tr. 26. At step five, the ALJ alternatively found that, based on the testimony of the 9 10 vocational expert, and considering Plaintiff’s age, education, work experience, and 11 RFC, there were jobs that existed in significant numbers in the national economy 12 that Plaintiff was capable of performing, including the jobs of production 13 assembler, furniture rental consultant, and outside deliverer. Tr. 27. 14 The ALJ thus concluded Plaintiff was not under a disability within the 15 meaning of the Social Security Act at any time from the alleged onset date through 16 the date of the decision. Tr. 28. ISSUES 17 The question presented is whether substantial evidence supports the ALJ’s 18 19 decision denying benefits and, if so, whether that decision is based on proper legal 20 standards. Plaintiff contends the ALJ erred by (1) conducting an inadequate analysis at 21 22 step three; (2) improperly rejecting Plaintiff’s subjective complaints; and (3) 23 making job findings based on an RFC that did not account for all of Plaintiff’s 24 limitations. 25 /// 26 /// 27 /// 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 5 DISCUSSION 1 2 3 1. Step three Plaintiff argues the ALJ erred at step three by failing to find Plaintiff’s 4 conditions met or equaled Listing 3.02 for chronic respiratory disorders. ECF No. 5 18 at 10-16. 6 At step three of the sequential evaluation process, the ALJ considers whether 7 one or more of the claimant’s impairments meets or equals an impairment listed in 8 Appendix 1 to Subpart P of the regulations. 20 C.F.R. §§ 404.15920(a)(4)(iii), 9 416.920(a)(4)(iii). Each Listing sets forth the “symptoms, signs, and laboratory 10 findings” which must be established for a claimant’s impairment to meet the 11 Listing. Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999). If a claimant’s 12 condition meets or equals a Listing, the claimant is considered disabled without 13 further inquiry. 20 C.F.R. §§ 404.1520(d), 416.920(d). 14 Listing 3.02, concerning chronic respiratory disorders, requires a showing of 15 spirometry testing with FEV1 or FVC levels less than or equal to values in 16 particular tables, based on the claimant’s age, height, and sex. 20 C.F.R. Part 404, 17 Subpart P, Appendix 1, §3.02A, 3.02B. The introduction to the listing explains the 18 various requirements for the spirometry testing, including that the claimant must be 19 medically stable at the time of the test and that testing must be repeated after 20 bronchodilator inhalation if the FEV1 is less than 70 percent of predicted normal 21 value, and requires the spirometry report to include the claimant’s name, age or 22 date of birth, gender, and height; any factors that can affect the interpretation of the 23 test results, such as cooperation; and legible tracing of the forced expiratory 24 maneuvers. 20 C.F.R. Part 404, Subpart P, Appendix 1, §3.00E. 25 The ALJ found Plaintiff’s conditions did not meet or equal the criteria of 26 Listing 3.02, noting that the pulmonary function study did not provide any 27 background information as to whether the claimant was experiencing any 28 exacerbation of her asthma symptoms at the time of testing, and noting that three ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 months after the testing Plaintiff was noted to have normal lung sounds and did not 2 report any respiratory symptoms. Tr. 18-19. 3 Plaintiff argues the ALJ erred in failing to even mention the FEV 1 and FVC 4 values, noting that the pulmonary function report from September 2018 includes a 5 listing-level FEV1 level and an FVC level that is one one-hundredth of a point 6 away from meeting 3.02B. ECF No. 18 at 10-14. She further argues the ALJ’s 7 rationale about background information was not clear, and asserts the evidence 8 shows Plaintiff was medically stable. Id. at 14. Finally, she asserts that the ALJ 9 should have at a minimum called on a medical expert to assist in making the listing 10 determination. Id. at 15-16.1 Defendant argues the ALJ reasonably addressed 11 Listing 3.02 and legitimately found that all elements of the listing were not met. 12 ECF No. 19 at 4-8. 13 The Court finds the ALJ did not err. The record documents a pulmonary 14 function test in September 2018 where Plaintiff’s FEV1 was measured at 1.00L 15 initially and 1.02L after a bronchodilator inhalation. Tr. 1034. The Listing requires 16 a showing of equal to or less than 1.25L for someone of Plaintiff’s age and height. 17 20 C.F.R. Part 404, Subpart P, Appendix 1, §3.02, Table I. Therefore, the FEV1 18 was below listing level for Listing 3.02A. Plaintiff’s FVC was 1.50L and 1.51L 19 before and after the bronchodilator. Tr. 1034. Listing-level FVC levels are equal to 20 or less than 1.50L. 20 C.F.R. Part 404, Subpart P, Appendix 1, §3.02, Table II. 21 22 1 The Court regrets to note some extraordinarily unprofessional comments 23 by Plaintiff’s counsel directed at the ALJ hearing this matter. ECF No. 18 at 13 and 24 again at ECF No. 20 at 3. Administrative Law Judges are currently making 25 difficult decisions involving sensitive issues, under crushing caseloads. Counsel is 26 reminded that attorneys are bound by their oath to maintain the respect due to the 27 courts and judicial officers, whether or not they personally agree with them. 28 Further lapses will be dealt with appropriately. ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 Using the highest measure as required by the Listing, Plaintiff’s FVC level was 2 slightly above listing level for Listing 3.02B. 3 However, the record contains no indications of whether Plaintiff was 4 medically stable at the time of the pulmonary function test. The introduction to the 5 listing notes examples of when a claimant would not be considered to be medically 6 stable, including being within two weeks of a change in medications or if they are 7 experiencing or within 30 days of treatment for a lower respiratory tract infection 8 or acute exacerbation of a chronic disorder. 20 C.F.R. Part 404, Subpart P, 9 Appendix 1, §3.00E(2)(a). The most contemporaneous records from Plaintiff’s 10 vocational rehabilitation file in the months preceding the test indicate Plaintiff was 11 having difficulty with pain and her nervous system and was being tested for 12 multiple sclerosis, and that she was no longer interested in working at that time and 13 was considering returning to school. Tr. 834-36. There was no mention of 14 breathing problems.2 In December 2018, three months after her pulmonary 15 function test, Plaintiff was noted to have no complaints with her respiratory system 16 and her breathing was noted as normal. Tr. 1023-26. Therefore, the ALJ 17 reasonably concluded that the listing was not met as there was no information as to 18 whether Plaintiff was experiencing any exacerbation of her asthma symptoms at 19 the time of testing. Tr. 19. 20 2. 21 22 23 24 Plaintiff’s subjective statements Plaintiff alleges the ALJ improperly disregarded her subjective symptom reports. ECF No. 18 at 10-16. It is the province of the ALJ to make determinations regarding a claimant’s subjective complaints. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 25 26 2 The record does not contain any medical records from this time period, 27 only Plaintiff’s reports to the Department of Vocational Rehabilitation about her 28 medical problems and treatment. ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 However, the ALJ’s findings must be supported by specific, cogent reasons. 2 Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Once the claimant 3 produces medical evidence of an underlying medical impairment, the ALJ may not 4 discredit testimony as to the severity of an impairment merely because it is 5 unsupported by medical evidence. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 6 1998). Absent affirmative evidence of malingering, the ALJ’s reasons for rejecting 7 the claimant’s testimony must be “specific, clear and convincing.” Smolen v. 8 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 9 (9th Cir. 1996). “General findings are insufficient: rather the ALJ must identify 10 what testimony is not credible and what evidence undermines the claimant’s 11 complaints.” Lester, 81 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 12 1993). 13 The ALJ found Plaintiff’s medically determinable impairments could 14 reasonably be expected to cause the alleged symptoms; however, she found 15 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 16 her symptoms to be not entirely consistent with the medical evidence and other 17 evidence in the record. Tr. 22. The ALJ found Plaintiff’s allegations were 18 unsupported by the objective evidence, at odds with various comments Plaintiff 19 had made regarding work, inconsistent with her activities of daily living, and 20 unsupported by her inconsistent engagement in mental health treatment. Tr. 22-25. 21 Plaintiff argues the ALJ took her statements out of context, drew incorrect 22 conclusions about her desire to work, overstated her daily activities without 23 identifying anything inconsistent with her allegations, and failed to recognize the 24 nature of mental health impairments, including their cyclical nature and the 25 possibility that her mental conditions interfered with her compliance with 26 treatment. ECF No. 18 at 16-20. Defendant argues the ALJ reasonably interpreted 27 the record and offered clear and convincing reasons for discounting Plaintiff’s 28 allegations of disability. ECF No. 19 at 8-16. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 The Court finds no error. In evaluating a claimant’s reports, an ALJ may 1 2 consider inconsistent statements by a claimant in assessing her credibility. 3 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). The ALJ reasonably 4 considered Plaintiff’s statements throughout the record regarding her desire and 5 ability to work, while also alleging disability during the same periods. Tr. 22-23. 6 Such inconsistencies are a reasonable factor for an ALJ to take into account in 7 evaluating the reliability of a claimant’s allegations. Unexplained or inadequately explained reasons for failing to seek medical 8 9 treatment or follow a prescribed course of treatment can cast doubt on a claimant’s 10 subjective complaints. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The ALJ 11 considered Plaintiff’s failure to appear for mental health appointments or follow up 12 with care providers. Tr. 25. This was a reasonable interpretation of the record. 13 Plaintiff argues her noncompliance with medication at times was related to the side 14 effects from the medications, but does not address her frequent no-shows to 15 treatment or lack of follow through with appointments. Tr. 443, 446, 449, 459-60, 16 462, 502, 505, 614, 616, 715-16; ECF No. 18 at 18-19. Although it cannot serve as the sole ground for rejecting a claimant’s 17 18 symptom statements, objective medical evidence is a “relevant factor in 19 determining the severity of the claimant’s pain and its disabling effects.” Rollins v. 20 Massanari, 261 F.3d 853, 857 (9th Cir. 2001). The ALJ pointed to the generally 21 unremarkable physical and mental status exams throughout the record that fail to 22 support limitations to the extent alleged by Plaintiff. Tr. 24-25. The ALJ’s 23 interpretation of the record is reasonable. While Plaintiff identifies some objective 24 findings that are supportive of her allegations, when the evidence can reasonably 25 support either affirming or reversing a decision, the Court may not substitute its 26 judgment for that of the Commissioner. Lingenfelter v. Astrue, 504 F.3d 1028, 27 1035 (9th Cir. 2007). 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 The Court therefore finds the ALJ offered clear and convincing reasons for 2 her assessment of Plaintiff’s subjective reports. 3 3. 4 Steps four and five Plaintiff argues that the job findings are insufficient, as the hypothetical 5 posed to the vocational expert failed to account for all of Plaintiff’s limitations. 6 ECF No. 18 at 20. Plaintiff’s argument is based on successfully showing that the 7 ALJ erred in her treatment of the evidence. Id. Because the Court finds that the 8 ALJ did not harmfully err, Plaintiff’s argument is without merit. 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 and is 12 affirmed. Therefore, IT IS HEREBY ORDERED: 13 14 1. Defendant’s Motion for Summary Judgment, ECF No. 19, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 18, 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 IT IS SO ORDERED. 20 DATED June 28, 2021. 21 22 23 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 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.