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Waterhouse v. Berryhill

United States District Court, W.D. Washington, Seattle

August 8, 2017

JISELLE A. WATERHOUSE, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER RE: SOCIAL SECURITY DISABILITY APPEAL

          Mary Alice Theiler, United States Magistrate Judge

         Plaintiff Jiselle A. Waterhouse proceeds through counsel in her appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied in part Plaintiff's applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda of record, this matter is AFFIRMED.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff was born on XXXX, 1961.[1] She has an 11th-grade education and some community college education, and has worked as a waitress, bartender, and wine steward. (AR 49-54, 56, 59.)

         Plaintiff protectively applied for DIB and SSI February 2011. (AR 233-49, 275.) Those applications were denied initially and upon reconsideration, and Plaintiff timely requested a hearing. (AR 155-58, 168-84.)

         On November 2, 2012, ALJ Rebekah Ross held a hearing, taking testimony from Plaintiff and a vocational expert (VE). (AR 41-98.) On December 26, 2012, the ALJ issued a decision finding Plaintiff not disabled. (AR 21-34.) Plaintiff timely appealed. After reviewing additional evidence, the Appeals Council denied Plaintiff's request for review on August 22, 2014 (AR 1-6), making the ALJ's decision the final decision of the Commissioner.

         Plaintiff appealed this final decision of the Commissioner to this Court, which granted the parties' stipulation to reverse the ALJ's decision and remand for further proceedings. (AR 964-66.) On March 9, 2016, ALJ Cynthia Rosa held a hearing, taking testimony from Plaintiff and a VE. (AR 869-97.) On August 3, 2016, the ALJ found Plaintiff not disabled from July 31, 2009, through March 11, 2014, but disabled thereafter.[2] (AR 780-803.) Plaintiff now seeks judicial review.

         JURISDICTION

         The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         DISCUSSION

         The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found Plaintiff had worked since her alleged onset date, but that work did not constitute substantial gainful activity. (AR 783.) At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found that from July 31, 2009, through August 30, 2014, Plaintiff's asthma, lumbago, mild osteoarthritis of the right hip, post-traumatic stress disorder, and generalized anxiety disorder were severe. (AR 783-84.) Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that from July 31, 2009, through August 30, 2014, Plaintiff's impairments did not meet or equal the criteria of a listed impairment. (AR 784-86.)

         If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found that before March 12, 2014, Plaintiff was capable of performing a range of light work, with the following limitations. She could lift no more than 20 pounds at any time, and could lift/carry up to 10 pounds frequently. She could stand/walk for six hours and sit for six hours in an eight-hour workday. She could occasionally crawl, stoop, kneel, crouch, and climb ramps or stairs. She could not climb ladders, ropes, or scaffolds. She could frequently handle and finger bilaterally. She could not have concentrated exposure to wetness/humidity, hazards, and pulmonary irritants like fumes, gases, and dust. She could perform simple, routine tasks. She could have superficial contact with co-workers, and no public contact. (AR 786.) Her RFC was reduced on March 12, 2014, such that she could only occasionally handle and finger bilaterally from that time forward. (AR 799-800.)

         From July 31, 2009, through August 30, 2014, Plaintiff was unable to perform her past relevant work. (AR 800.) If a claimant demonstrates an inability to perform past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to make an adjustment to work that exists in significant levels in the national economy. The ALJ found Plaintiff capable of transitioning to other representative occupations, from July 31, 2009, through March 11, 2014, such as marker, garment sorter, and mail sorter. (AR 801-02.) On March 12, 2014, and thereafter, Plaintiff could not perform any job that existed in significant numbers in the national economy. (AR 802.)

         This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         Plaintiff argues the ALJ erred in (1) assessing the medical evidence related to Plaintiff's physical and mental complaints, (2) discounting her subjective testimony, and (3) erred in discounting lay statements.[3] The Commissioner argues that the ALJ's decision is supported by substantial evidence and should be affirmed.

         Medical evidence

         Plaintiff raises two issues related to the medical evidence. First, she argues that the ALJ erred in finding some of her impairments to be not severe. Dkt. 11 at 3-4. She goes on to argue that the ALJ erred in assessing various medical treatment notes and opinion evidence, contending that the ALJ erred in either discounting the evidence or failing to acknowledge an aspect of the evidence. The Court will address Plaintiff's arguments in turn.

         A. Legal standards

         In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Where not contradicted by another physician, a treating or examining physician's opinion may be rejected only for “‘clear and convincing'” reasons. Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). Where contradicted, a treating or examining physician's opinion may not be rejected without “‘specific and legitimate reasons' supported by substantial evidence in the record for so doing.” Id. at 830-31 (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)).

         An ALJ may also consider lay medical sources, such as testimony by nurse practitioners, physicians' assistants, and counselors. See 20 C.F.R. § 404.1513(d). Such testimony regarding a claimant's symptoms or how an impairment affects his/her ability to work is competent evidence, and cannot be disregarded without comment. Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). An ALU must provide “reasons that are germane to each witness” in order to discount a lay medical opinion, and may not simply categorically discredit the testimony. Dodrill, 12 F.3d at 919.

         B. Severe impairments

         Plaintiff argues that the ALJ erred in finding some of her conditions to be non-severe, and in failing to account for all of her symptoms, even those caused by conditions that are not severe. Dkt. 11 at 3-4. Plaintiff makes no effort to identify which limitations were omitted as a result of the alleged error, or to cite any evidence identifying limitations caused by the conditions in question. Id. Plaintiff's bare assertion of an error is insufficient. See generally Carmickle v. Comm'r of Social Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (declining to address issues not argued with any specificity).

         C. Mark Layton, M.D.

         Dr. Layton, Plaintiff's treating physician, wrote a letter in February 2013 to Plaintiff's counsel that reads in its entirety:

I have treated Ms. Waterhouse for about one year for her joint pains as well as a diffuse pain syndrome referred to as fibromyalgia. Even though her condition is not marked by visible evidence of disease effects, I have found her presentation to be consistent over time. In responding to the questions in your letter of January 28, 2013, I do not believe Ms. Waterhouse to have been able to work on a regular and sustained basis at a light or medium level. Her joint symptoms have not sufficiently responded to treatment with antiinflammatory medications and prednisone to enable a consistent work pattern. Her symptoms are consistent with the diagnosis of fibromyalgia and a nonspecific syndrome of arthralgias. Even though her symptoms are not accompanied by ...

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