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Denison v. Berryhill

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

August 21, 2017

SCOTT VERNON DENISON, 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 Scott Vernon Denison proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied Plaintiff's application for Disability Insurance Benefits (DIB) 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, 1967.[1] He has a high school diploma and one year of college education, along with additional training in the U.S. Army. (AR 260.) He previously worked as a non-commissioned officer in the U.S. Army for more than 20 years, and upon his retirement from the Army worked a few short-term odd jobs for no longer than two weeks at a time. (AR 260-61.)

         Plaintiff applied for DIB in December 2014. (AR 213-14.) That application was denied initially and upon reconsideration and Plaintiff timely requested a hearing. (AR 125-27, 132-38.)

         On October 28, 2015, ALJ Joanne Dantonio held a hearing, taking testimony from Plaintiff and a vocational expert (VE). (AR 64-97.) On March 24, 2016, the ALJ issued a decision finding Plaintiff not disabled. (AR 44-56.) Plaintiff timely appealed. The Appeals Council denied Plaintiff's request for review on October 19, 2016. (AR 2-7.) Plaintiff filed additional evidence, asking the Appeals Council to reconsider its decision to deny review and extend his deadline to file in federal court. (AR 98-100.) On the same day that Plaintiff requested reconsideration of the Appeals Council's denial of his request for review, he filed a complaint in this court, appealing the ALJ's decision. Dkt. 1.

         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 did not engage in substantial gainful activity between the alleged onset date (September 14, 2007) and the date last insured (DLI), December 31, 2011. (AR 46.) At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found severe Plaintiff's asthma, lumbar degenerative disk disease, cervical degenerative disk disease and post-traumatic stress disorder (PTSD). (AR 46-47.) Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found that Plaintiff's impairments did not meet or equal the criteria of a listed impairment. (AR 47-48.)

         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 through the DLI, Plaintiff was capable of performing light work as defined in 20 C.F.R. § 404.1567(b), with additional limitations. He could lift/carry 10 pounds frequently and 20 pounds occasionally. He could never climb ladders, ropes, or scaffolds. He could occasionally climb ladders, stoop, kneel, crawl, and balance. He could never crawl.[2] He could frequently finger. He must avoid concentrated exposure to extreme temperatures, humidity, pulmonary irritants, and hazards. He could perform simple, routine tasks that do not require teamwork or public contact. He could have less than occasional changes to work tasks within a one-month period. (AR 49.) With that assessment, the ALJ found Plaintiff unable to perform any of his past relevant work. (AR 54.)

         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. With the assistance of the VE, the ALJ found Plaintiff capable of transitioning to other representative occupations, including addresser, router clerk, and bottle packer. (AR 55-56.)

         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) discounting opinions provided by examining psychiatrist James Hopfenbeck, M.D.; treating psychologist Brad Powell, Ph.D.; and treating counselor April Godsey, MA, NCC; and (2) discounting Plaintiff's subjective testimony. Plaintiff argues that these errors should be remedied by a remand for a finding of disability, or, in the alternative, a remand for further proceedings. The Commissioner argues that the ALJ's decision is supported by substantial evidence and should be affirmed, and that if it is remanded, it should be remanded for further proceedings.

         Medical opinion evidence

         Plaintiff argues that the ALJ erred in discounting opinions provided by Drs. Hopfenbeck and Powell, and Ms. Godsey, and the Court will address each disputed opinion 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)). The ALJ may reject physicians' opinions “by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) ...


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