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Valdez v. Berryhill

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

October 17, 2017

JORGE VALDEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER AFFIRMING THE COMMISSIONER

          BRIAN A. TSUCHIDA United States Magistrate Judge.

         INTRODUCTION

         Jorge Valdez appeals the ALJ's October 5, 2016, decision finding him not disabled. The ALJ found Mr. Valdez last worked in December 2011; that degenerative disc disease with neuroforaminal stenosis at ¶ 4-5 and L5-S1, HIV/AIDS, posttraumatic stress disorder, major depressive disorder, and neurocognitive disorder are severe impairments; that with these impairments Mr. Valdez has the Residual Functional Capacity (“RFC”) to perform medium work with additional physical, and environmental limitations. The ALJ also found Mr. Valdez can perform simple and complex tasks, work in two-hour intervals before needing a 15-minute break to refocus; perform work that does not include tandem tasks or tasks involving a cooperative team effort; perform work that does not require contact with the public as an essential element of any task, but incidental public contact is not precluded; perform work in a low-stress environment, meaning he can have only occasional and routine changes in the workplace setting.

         Based on this RFC, the ALJ concluded Mr. Valdez is not disabled because he can perform his past work as an office helper, bagger, and mail clerk, and other jobs in the national economy. Tr. 19-33. The ALJ's decision is the Commissioner's final decision because the Appeals Council denied review. Tr. 1-4.

         Mr. Valdez's challenge to the ALJ's decision is problematic. His opening brief violates the Court's scheduling order. Dkt. 9. The order requires claimants to list all assignments of error starting on page one of the opening brief. Dkt. 9. But, Mr. Valdez's opening brief has no list on the first page or anywhere else. Dkt. 10. The Commissioner argues the Court should therefore disregards all of Mr. Valdez's claims. Dkt. 11 at 2. The Court provides counsel a one-time pass; counsel shall ensure that all future briefs comply with the Court's scheduling order.

         Additionally, the opening brief discusses Mr. Valdez's view of the evidence, and how based upon that view, the Court should find he is disabled and issue an order granting benefits. Dkt. 10. This approach misses the mark because it fails to set forth specifically how and why the ALJ erred. Accordingly, for the reasons below, the Court AFFIRMS the Commissioner's final decision and DISMISSES the case with prejudice.

         DISCUSSION

         A. Evaluation of the Medical Evidence

         Mr. Valdez argues substantial evidence does not support the ALJ's disability determination. Dkt. 10 at 2. Mr. Valdez bears the burden of showing the ALJ harmfully erred. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009). He falls far short of meeting this burden. First, Mr. Valdez's opening briefs sets forth his views of the medical records and opinions of John Hickman, M.D., Peggy Wood, Ph.D., Linda Luster, M.D., David White Ph.D., John Pauk, M.D., Russell Vandenbelt, M.D., and Richard Schneider, M.D. Id. at 3-15. Essentially, the opening brief summarizes portions of the medical evidence, and contends the ALJ should have found him disabled based upon the summarized evidence. Dkt. 10 at 3-15.

         But this provides the Court with no reasoned explanation as to how or why the ALJ erred in rejecting the portions of the medical record to which Mr. Valdez outlines. Additionally, claims that are unsupported by explanation or authority may be deemed waived. See Avila v. Astrue, No. C07-1331, 2008 WL 4104300 (E.D. Cal. Sept. 2, 2008) at * 2 (unpublished opinion) (citing Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 923-24 (9th Cir. 1996) (party who presents no explanation in support of claim of error waives issue); Independent Towers of Washington v. Washington, 350 F.3d 925, 929 (9th Cir. 2003)).

         Here, Mr. Valdez's recites the medical evidence, but provides not much else. It is not enough merely to present an argument in the skimpiest way (i.e., listing the evidence), and leave the Court to do counsel's work-framing the argument, and putting flesh on its bones through a discussion of the applicable law and facts. See e.g. Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005) (rejecting out of hand conclusory assertion that ALJ failed to consider whether claimant met Listings because claimant provided no analysis of relevant law or facts regarding Listings); Perez v. Barnhart, 415 F.3d 457, 462 n. 4 (5th Cir. 2005) (argument waived by inadequate briefing); Murrell v. Shalala, 43 F.3d 1388, 1389 n. 2 (10th Cir. 1994) (perfunctory complaint fails to frame and develop issue sufficiently to invoke appellate review).

         In short, Mr. Valdez lists medical evidence he believes shows he is disabled. The ALJ assessed the medical evidence differently and concluded Mr. Valdez is not disabled. While Mr. Valdez has set forth the medical evidence, he has failed to set forth why the ALJ's assessment of that evidence is erroneous. He has therefore failed to establish the ALJ harmfully erred in assessing the medical evidence, and the ALJ is affirmed.

         Although Mr. Valdez has failed to explain how the ALJ harmfully erred, the Court has reviewed the entire record. The Court notes the ALJ found surveillance of Mr. Valdez showed he was more functional than Drs. Wood, Luster and White opined. Tr. 25-30. The Court also notes the ALJ discounted Dr. Wood's opinions based upon Dr. Schneider's opinion that Mr. Valdez was less impaired. Tr. 25. The ALJ accepted Dr. Vanderbilt's opinion that Mr. Valdez should not work in a setting that requires repetitive contact with the public. Tr. 30. Dr. Vanderbilt also opined that Mr. Valdez “can engage in full-time gainful employment.” Tr. 943. In short, the record shows the ALJ considered the medical opinions discussed by Mr. Valdez and gave valid reasons to discount some of the opinions.

         In the section devoted to the surveillance videos, Mr. Valdez argues the surveillance of his activities cannot possible undermine the opinions of his treating doctors, or his testimony. Dkt. 10 at 16. But an ALJ may discount an opinion that is inconsistent with other evidence in the record. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). A material inconsistency between a treating physician's opinion and a claimant's admitted level of daily activities can furnish a specific, legitimate reason for rejecting the treating physician's ...


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