United States District Court, E.D. Washington
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
JOHN T. RODGERS, Magistrate Judge.
BEFORE THE COURT are cross-Motions for Summary Judgment. ECF Nos. 15, 16. Attorney Dana C. Madsen represents Plaintiff; Special Assistant United States Attorney Summer Stinson represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 8. 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.
On November 29, 2010, Plaintiff filed a Title II and a Title XVI application for a period of disability and disability insurance benefits, alleging in both applications disability beginning December 31, 2004. Tr. 17; 235. Plaintiff indicated that he was unable to work due to back and hip problems, headaches, depression, anxiety, skin condition, knee problems and high blood pressure. Tr. 228. The claim was denied initially, denied upon reconsideration, and Plaintiff subsequently requested a hearing. Tr. 147-66. On July 11, 2012, ALJ Marie Palachuk presided over an administrative hearing, at which medical expert Samuel Landau, M.D., Jay Toews, Ph.D., vocational expert Jinnie Lawson, and Plaintiff, who was represented by counsel, testified. Tr. 36-91. The ALJ denied Plaintiff's claim on August 17, 2010. Tr. 17-30. The Appeals Council declined review. Tr. 1-3. The instant matter is before this court pursuant to 42 U.S.C. § 405(g).
STATEMENT OF FACTS
The facts have been presented in the administrative hearing transcript, the ALJ's decision, and the briefs of the parties and thus, they are only briefly summarized here. At the time of the hearing, Plaintiff was 52 years old, lived alone and twice-divorced. Tr. 367. Plaintiff graduated from high school, and his last job was working part-time, recovering refrigerant. Tr. 62-63.
Plaintiff testified that his hip and back caused him pain along his sciatic nerve. Tr. 64. He also said he experiences headaches daily. Tr. 66-67. Plaintiff explained that if his leg is throbbing, he takes codeine which reduces his pain to a "one" on a scale of one to ten. Tr. 69. Plaintiff added that the codeine tends to put him in a stupor, and makes it hard for him to sleep at night. Tr. 69. Plaintiff also reported that he is depressed, and he cannot separate out his depression symptoms from his physical pain symptoms. Tr. 68.
Plaintiff also testified that he spends much of his day lying down, but he also washes dishes and clothing, listens to the radio, watches television and cooks dinner. Tr. 71. He said he has no hobbies. Tr. 72. Plaintiff said he shops for groceries once per week. Tr. 74. He reported that he can walk for about 50 yards before he has to stop and rest. Tr. 75.
STANDARD OF REVIEW
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ's determinations of law are reviewed de novo, with deference to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, 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) . If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). Nevertheless, a decision supported by substantial evidence will be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence supports the administrative findings, or if conflicting evidence supports a finding of either disability or non-disability, the ALJ's determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).
The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once a claimant establishes that a physical or mental impairment prevents him from engaging in his previous occupation. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the ALJ proceeds to step five, and the burden shifts to the Commissioner to show that (1) the claimant can make an adjustment to other work; and (2) specific jobs exist in the national economy which claimant can perform. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193-94 (2004). If a claimant cannot make an adjustment to other work in the national economy, a finding of "disabled" is made. 20 C.F.R. §§ 404.1520(a)(4)(I-v), 416.920(a)(4)(I-v).
At step one of the sequential evaluation process, the ALJ found Plaintiff had not engaged in substantial gainful activity since December 31, 2004, the alleged onset date. Tr. 19. At step two, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease of the lumbosacral spine, right hip labral fraying, history of broad-based tear of the posterior horn and medial meniscus of the right knee and history of left knee torn meniscus, status post arthroscopic surgery bilateral knees, headaches; and adjustment disorder with anxiety and depression secondary to chronic pain. Tr. 19-20. The ALJ concluded that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, (20 C.F.R. §§ 416.929(d), 416.925 and 416.926). Tr. 20. The ALJ concluded that Plaintiff has the residual functional capacity to perform light work, with some exertional and non-exertional limitations that included:
The claimant is able to understand, remember, and carry out simple, routine, and repetitive tasks and instructions. Although his concentration, persistence, and pace might wax and wane, he would be able to maintain such for two hour intervals between regularly scheduled breaks. His interaction with the general public should be limited to occasional and he can have superficial (non-collaborative) interaction with co-workers.
Tr. 21. The ALJ found that Plaintiff is incapable of performing past relevant work. Tr. 28. The ALJ concluded that considering Plaintiff's age, education, work experience and residual functional capacity, jobs exist in significant numbers in the national economy that Plaintiff can perform, such as storage rental clerk, bakery conveyor-line worker, and fruit sorter. Tr. 29. As a result, the ALJ concluded Plaintiff was not disabled as defined by the Social Security Act. Tr. 30.
Plaintiff contends that the ALJ erred by (1) finding he was not credible; (2) improperly weighing the medical evidence; and (3) rejecting GAF scores from multiple providers. ECF No. 15 at 11-15.
Plaintiff attacks several of the reasons the ALJ used in finding Plaintiff was not credible. ECF No. 15 at 11-12.
In deciding whether to admit a claimant's subjective symptom testimony, the ALJ must engage in a two-step analysis. Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). First, the claimant must produce objective medical evidence of an underlying "impairment, " and show that the impairment, or a combination of impairments, could reasonably be expected to produce pain or other symptoms. Smolen, 80 F.3d at 1281-82; see Cotton v. Bowen, 799 F.2d 1403, 1405 (9th Cir. 1986). If this test is satisfied, and if no evidence exists of malingering, then the ALJ, under the second step, may reject the claimant's testimony about severity of symptoms with "specific findings stating clear and convincing reasons for doing so." Smolen, 80 F.3d at 1284. "[Q]uestions of credibility and resolutions of conflicts in the testimony are functions solely of the Secretary." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) ( quoting Waters v. Gardner, 452 F.2d 855 n.7 (9th Cir. 1971). However, if malingering is established, the adjudicator is not bound by the "clear and convincing standard. See, e.g., Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).
In determining a claimant's credibility, an ALJ may consider, among other factors, inconsistencies between the claimant's testimony and the claimant's daily activities, conduct and/or work record. Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). "If the ALJ's credibility finding is supported by substantial evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
In this case, the ALJ found that Plaintiff had little credibility. The ALJ provided an extensive discussion of the reasons supporting the negative credibility conclusion. Tr. 23-25.
1. Lack of Treatment
Plaintiff complains that the ALJ failed to examine Plaintiff's reasons for not obtaining treatment, and erred by simply inferring that the lack of treatment meant Plaintiff's symptoms were not as severe as he claimed. ECF No. 15 at 11. In assessing a claimant's credibility, the ALJ may properly rely on "unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment.'" Tommasetti v. Astrue, 533 F.3d 1035, 1039 (quoting Smolen, 80 F.3d at 1284). Moreover, a claimant's failure to assert a good reason for not seeking treatment, "or a finding by the ALJ that the proffered reason is not believable, can cast doubt on the sincerity of the claimant's pain testimony." Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989).
One of the bases for the negative credibility finding was Plaintiff's failure to seek "the type of treatment [for] his physical impairments one would expect for a totally disabled individual." Tr. 23. Plaintiff argues that the ALJ should have considered that Plaintiff's mental impairments caused him to isolate himself and ...