United States District Court, W.D. Washington, Seattle
ORDER AFFIRMING THE COMMISSIONER
A. TSUCHIDA United States Magistrate Judge.
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
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.
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.
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.
Evaluation of the Medical Evidence
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
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)).
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).
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.
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.
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 ...