United States District Court, W.D. Washington Seattle.
STEVE C. EDGECOMB, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
JOHN C. COUGHENOUR, District Judge.
This matter comes before the Court on Plaintiff Steven Edgecomb's objections (Dkt. No. 28) to the Report and Recommendation (Dkt. No. 27) of the Honorable Brian A. Tsuchida, which recommends affirming the Social Security Commissioner's denial of benefits. Having thoroughly considered the parties' briefing and the relevant record, the Court finds oral argument unnecessary and hereby ADOPTS the Report and Recommendation in full.
Plaintiff's applications for disability insurance benefits were denied at the initial level and on reconsideration. Following a hearing on February 22, 2012, the administrative law judge ("ALJ") found Plaintiff not disabled and denied benefits. (Dkt. No. 9-2 at 13-29.) The Appeals Council thereafter denied Plaintiff's request for review. ( Id. at 1-6.) Plaintiff timely sought review of the Commissioner's decision in this Court. In a Report and Recommendation ("R&R"), Magistrate Judge Brian A. Tsuchida recommends affirming the decision of the ALJ. (Dkt. No. 27.) Plaintiff timely submitted objections to Judge Tsuchida's R&R.
The Court must make a de novo determination of those portions of a magistrate judge's report or recommendations to which a party properly objects. 28 U.S.C. § 636(b)(1). Plaintiff, in his objections, primarily reiterates the arguments made to Judge Tsuchida. Specifically, Plaintiff argues that contrary to Judge Tsuchida's conclusions, the ALJ: (1) improperly evaluated the medical evidence in multiple ways; (2) failed to properly evaluate Plaintiff's own testimony; (3) failed to properly evaluate the lay witness testimony of Mr. Jay Berglund; (4) improperly determined Plaintiff's Residual Functional Capacity ("RFC"); (5) erred by basing his Step Four and alternate Step Five findings on an erroneous RFC finding; and (6) erred in declining to remand in light of new evidence provided to the Appeal's Council. (Dkt. No. 28 at 2-13.)
A court must uphold the Commissioner's determination that a plaintiff is not disabled if the Commissioner applied the proper legal standard and there is substantial evidence in the record as a whole to support the decision. Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Fife v. Heckler, 767 F.2d 1427, 1429 (9th Cir. 1985). It is more than a scintilla but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir.1975); Carr v. Sullivan, 772 F.Supp. 522, 524-25 (E.D. Wash.1991). If the evidence admits of more than one rational interpretation, the Court must uphold the Commissioner's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The Court considers each objection in turn.
A. Medical Evidence
Plaintiff firsts objects to Judge Tsuchida's conclusion that the ALJ did not err in considering the medical evidence. As Judge Tsuchida explained, a treating or examining physician's opinion that is contradicted may not be rejected without "2017specific and legitimate reasons' supported by substantial evidence in the record for so doing." Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995) (quotation omitted). The ALJ may discount non-acceptable medical sources for "germane" reasons. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).
1. Mr. Edgecomb's 2011 Cervical Spine MRI
Mr. Edgecomb argued before Judge Tsuchida that that November 2011 cervical spine MRI results ( see Dkt. No. 9-11 at 43) are the "most significant objective medical evidence of record, " and that the ALJ erred in failing to discuss this report. (Dkt. No. 27 at 3.) Judge Tsuchida disagreed, explaining that the results and Nurse Armstrong's report (to which they were attached) "contain no opinion regarding any functional limitations caused by the degenerative disc disease and facet joint arthropathy documented by the MRI test." ( Id. ) He also recognized that the 2011 MRI report was consistent with the ALJ's step-two analysis, which found Plaintiff's degenerative disc disease of the cervical spine to be a severe impairment based on earlier MRI results that were materially the same. ( Id. ) Plaintiff now objects to this conclusion, arguing that an "ALJ is not permitted to simply disregard without explanation any medical evidence that does not include an opinion regarding functional limitations." ( Id. )
The Court is not persuaded. An ALJ's opinion should be as "comprehensive and analytical as feasible, " Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990), though it need not discuss all the evidence presented, Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir.1984). The ALJ must instead explain why significant probative evidence has been rejected. Id. at 1395. Here, notwithstanding Plaintiff's unsupported assertions, the ALJ was not required to discuss this cumulative MRI report in determining Plaintiff's RFC because it highlights only the fact of Mr. Edgecomb's degenerative disc disease rather than the effect and any limitations that result from his impairments that were not previously established. See, e.g., Sutton v. Astrue, C11-4048, 2013 WL 1192949, at *22 (N.D. Cal. March 22, 2013). The fact of Mr. Edgecomb's impairment was already established, as the ALJ found in his step-two determination that Plaintiff's degenerative disc disease was severe. Further, to the extent that that MRI is "objective evidence that shows that he has impairments that can reasonably be expected to cause the symptoms and limitations he described in his testimony, " the 2011 MRI report was materially the same as the 2006 and 2007 MRI reports that the ALJ explicitly discussed. Finally, the ALJ discussed Nurse Armstrong's report, which had the 2011 MRI report attached. In light of these facts, the ALJ did not improperly reject without discussion the 2011 MRI report and was not required to explicitly discuss the same. Finally, even if he was so required, his failure to do so is harmless given the fact that it contains the materially similar results as the 2006 and 2007 MRI reports.
2. Terry Mertens, ORT/L and Lisa Tang, P.T.
The ALJ gave the opinions of examining therapists Terry Mertens and Lisa Tang only "some weight" due to the internal unreliability of the test findings. As the ALJ and Judge Tsuchida both noted, the therapists explained that Mr. Edgecomb gave only a moderate to low level of effort on the testing and, as a result, concluded that "the full extent of his ability is not known and the documented test results are representative of what the client did perform, but cannot be confirmed to be the client's maximum capacities." (Dkt. No. 27 at 4.) Judge Tsuchida concluded that internal indication of unreliability is a germane reason to discount a medical opinion. See Oviatt v. Comm'r of Social Sec. Admin., ...