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Monta v. Berryhill

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

August 29, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Mary Alice Theiler, United States Magistrate Judge

         Plaintiff Robin Denise Monta proceeds through counsel in her 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) 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, this matter is AFFIRMED.


         Plaintiff was born on XXXX, 1961.[1] She completed the tenth grade and previously worked as a janitor/custodian. (AR 44-45, 269.)

         Plaintiff filed SSI and DIB applications in April 2013, alleging disability beginning October 10, 2011. (AR 242-54.) Her applications were denied initially and on reconsideration.

         On June 9, 2015, ALJ Cynthia Rosa held a hearing, taking testimony from plaintiff and a vocational expert (VE). (AR 35-65.) Plaintiff amended her onset date to April 1, 2013. (AR 41.) On September 25, 2015, the ALJ found plaintiff not disabled. (AR 11-26.)

         Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on December 2, 2016 (AR 1-15), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.


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


         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 not engaged in substantial gainful activity. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found plaintiff's degenerative disc disease of the lumbar spine with stenosis, cervicalgia, and major depressive disorder severe. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found plaintiff's impairments did not meet or equal a listed impairment.

         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 plaintiff able to perform light work within the following parameters: lift twenty pounds occasionally and ten pounds frequently; stand, walk, and sit for six hours in an eight-hour workday; occasionally climb ramps and stairs; never climb ladders, ropes, and scaffolds; occasionally balance, stoop, crouch, crawl, and kneel; perform routine work with few changes over time; avoid concentrated exposure to vibrations and hazards; and alternate sitting and standing, while remaining on task, every thirty minutes. With that assessment, the ALJ found plaintiff unable to perform her past relevant work.

         If a claimant demonstrates an inability to perform past relevant work, or has no 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 performing other jobs, such as work as a package sorter and pricing marker.

         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). Accord Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported by substantial evidence in the administrative record or is based on legal error.”) 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 avers error in the consideration of medical opinions, lay witness evidence, her testimony, and at step five. She requests remand for an award of benefits or, in the alternative, for further administrative proceedings. The Commissioner argues the ALJ's decision has the support of substantial evidence and should be affirmed.

         Symptom Testimony

         Absent evidence of malingering, an ALJ must provide specific, clear, and convincing reasons to reject a claimant's testimony.[2] Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014) (citing Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). See also Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996). The ALJ may consider a claimant's “reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains.” Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

         The ALJ in this case found plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms not entirely credible. The Court finds several specific, clear, and convincing reasons provided in support of that conclusion.

         A. Medical Evidence

         “While subjective pain testimony cannot be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the medical evidence is still a relevant factor in determining the severity of the claimant's pain and its disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Social Security Ruling (SSR) 96-7p and 16-3p. An ALJ may reject a claimant's subjective testimony based on contradictory medical evidence. Carmickle v. Comm'r of SSA, 533 F.3d 1155, 1161 (9th Cir. 2008).

         The ALJ is responsible for assessing the medical evidence and resolving any conflicts or ambiguities in the record. See Treichler v. Comm'r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014); Carmickle, 533 F.3d at 1164. When evidence reasonably supports either confirming or reversing the ALJ's decision, the Court may not substitute its judgment for that of the ALJ. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). “Where the evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.” Morgan v. Commissioner of the SSA, 169 F.3d 595, 599 (9th Cir. 1999).

         The ALJ reasonably construed the objective evidence in the record as indicating plaintiff is not as limited as she alleged. (AR 17-19.) For example, in July 2013, Dr. Gary Gaffield found restricted motion of the lumbar spine with crepitus, restricted cervical motion with dorsal spams, a positive straight leg-raising test on the right, but no spasms or triggers points or pain on percussion on the thoracic spine, upper extremities free of deformities, intact grip and dexterity, and full lower extremity range of motion. He observed plaintiff rise from chairs and get on and off a table without effort, not struggle to remove footwear, walk on her heels and the balls of her feet, walk in tandem without difficulty, negative straight leg raising when sitting, full muscle strength/bulk/tone in the upper and lower extremities, and unimpaired balance. The ALJ also described, inter alia, plaintiff's July 2013 report to Dr. Jennifer Irwin of depression, no energy or motivation, paranoid ideation and auditory hallucinations, but also that she had smoked marijuana the day prior and drank about a fifth of whiskey over two days. Plaintiff was polite and cooperative with good eye contact, logical and goal directed thoughts, normal speech, and fully oriented, recalled seven digits forward and three backwards, and three of three objects after five-minutes, had intact fund of knowledge, and followed a three-step command.

         Plaintiff challenges the reliance on the evidence from Dr. Gaffield, stating he had limited information to go on and observed limited ranges of motion. (See AR 491.) However, the ALJ acknowledged the restricted range of motion and reasonably interpreted Dr. Gaffield's other findings as objective medical evidence contradictory to plaintiff's testimony as to the extent of her limitations. Even if a contrary interpretation of the ...

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