United States District Court, E.D. Washington
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
H. WHALEY SENIOR UNITED STATES DISTRICT JUDGE
the Court are the parties' cross-motions for summary
judgment, ECF Nos. 16 & 22. Mr. Delegans brings this
action seeking judicial review, pursuant to 42 U.S.C. §
405(g), of the Commissioner's final decision, which
denied his application for Disability Insurance Benefits
under Title II and his application for Supplemental Security
Income under Title XVI of the Social Security Act, 42 U.S.C
§§ 401-434, 1381-1383F. After reviewing the
administrative record and briefs filed by the parties, the
Court is now fully informed. For the reasons set forth below,
the Court GRANTS Defendant's Motion for
Summary Judgment and DENIES Mr.
Delegans' Motion for Summary Judgment.
Delegans filed his applications for Disability Insurance
Benefits and Supplemental Security Income on February 4,
2009. AR 21, 164-73, 576. His alleged onset date in his
applications is January 1, 2009 (AR 21, 164-73); the amended
alleged onset date is December 1, 2007 (AR 21, 54, 577, 700).
Mr. Delegans' applications were initially denied on April
30, 2009, AR 85-88, and on reconsideration on August 7, 2009,
AR 93-104. A hearing with Administrative Law Judge
(“ALJ”) Stephanie Martz occurred on September 8,
2010. AR 43-79. On October 12, 2010, the ALJ issued a
decision finding Mr. Delegans ineligible for disability
benefits. AR 18-34. The Appeals Council denied Mr.
Delegans' request for review on November 21, 2011, AR
the Appeals Council denied his request for review, Mr.
Delegans filed a Complaint in Federal District Court, and the
Court affirmed the ALJ decision.Mr. Delegans filed a Notice
of Appeal, and on July 10, 2014, the Ninth Circuit issued a
memorandum decision remanding the claims for a new hearing.
AR 800-11. The Ninth Circuit determined that the ALJ's
decision failed to provide clear and convincing reasons to
discredit Mr. Delegans regarding only his mental limitations,
and failed to provide specific and legitimate reasons to
discredit the contradicted opinions of Drs. Halley,
Kenderdine, and Widlan only regarding Mr. Delegans'
mental limitations. Id.
the appeal of the first ALJ decision was pending, Mr.
Delegans filed a subsequent application for Disability
Insurance Benefits on August 10, 2011 (AR 1161-67, 576), and
a subsequent application for Supplemental Security Income on
June 10, 2011 (AR 1155-60, 576). On May 21, 2013, ALJ
Virginia M. Robinson issued a decision finding Mr. Delegans
ineligible for disability benefits. AR 776-94. On February
10, 2015, the Appeals Council determined that the prior ALJ
mistakenly found that the October 2010 decision was
administratively final. AR 821-24. The Appeals Council found
“good cause” to reopen the subsequent
applications, vacated the May 21, 2013 ALJ decision, and
consolidated the 2009 and 2011 claims. Id.
hearing with ALJ Marie Palachuk occurred on October 21, 2015.
AR 695-747. On November 20, 2015, the ALJ issued a decision
finding Mr. Delegans ineligible for disability benefits. AR
573-96. Because the Appeals Council did not assume
jurisdiction, the decision of the ALJ became final,
see 20 C.F.R. § 404.984(d), and Mr. Delegans
filed his current Complaint in District Court on March 22,
2016 (ECF No. 5), pursuant to 42 U.S.C. § 405(g).
Sequential Evaluation Process
Social Security Act defines disability as the
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than twelve months.” 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall
be determined to be under a disability only if the
claimant's impairments are of such severity that the
claimant is not only unable to do his previous work, but
cannot, considering claimant's age, education, and work
experience, engage in any other substantial gainful work that
exists in the national economy. 42 U.S.C. §§
423(d)(2)(A) & 1382c(a)(3)(B).
Commissioner has established a five-step sequential
evaluation process for determining whether a claimant is
disabled within the meaning of the Social Security Act. 20
C.F.R. §§ 404.1520(a)(4) & 416.920(a)(4);
Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th
one inquires whether the claimant is presently engaged in
“substantial gainful activity.” 20 C.F.R.
§§ 404.1520(b) & 416.920(b). Substantial
gainful activity is defined as significant physical or mental
activities done or usually done for profit. 20 C.F.R.
§§ 404.1572 & 416.972. If the claimant is
engaged in substantial activity, he or she is not entitled to
disability benefits. 20 C.F.R. §§ 404.1571 &
416.920(b). If not, the ALJ proceeds to step two.
two asks whether the claimant has a severe impairment, or
combination of impairments, that significantly limits the
claimant's physical or mental ability to do basic work
activities. 20 C.F.R. §§ 404.1520(c) &
416.920(c). A severe impairment is one that has lasted or is
expected to last for at least twelve months, and must be
proven by objective medical evidence. 20 C.F.R. §§
404.1508-09 & 416.908-09. If the claimant does not have a
severe impairment, or combination of impairments, the
disability claim is denied, and no further evaluative steps
are required. Otherwise, the evaluation proceeds to the third
three involves a determination of whether any of the
claimant's severe impairments “meets or
equals” one of the listed impairments acknowledged by
the Commissioner to be sufficiently severe as to preclude
substantial gainful activity. 20 C.F.R. §§
404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925,
416.926; 20 C.F.R. § 404 Subpt. P. App. 1 (“the
Listings”). If the impairment meets or equals one of
the listed impairments, the claimant is per se
disabled and qualifies for benefits. Id. If the
claimant is not per se disabled, the evaluation
proceeds to the fourth step.
four examines whether the claimant's residual functional
capacity enables the claimant to perform past relevant work.
20 C.F.R. §§ 404.1520(e)-(f) & 416.920(e)-(f).
If the claimant can still perform past relevant work, the
claimant is not entitled to disability benefits and the
inquiry ends. Id.
five shifts the burden to the Commissioner to prove that the
claimant is able to perform other work in the national
economy, taking into account the claimant's age,
education, and work experience. See 20 C.F.R.
§§ 404.1512(f), 404.1520(g), 404.1560(c) &
416.912(f), 416.920(g), 416.960(c). To meet this burden, the
Commissioner must establish that (1) the claimant is capable
of performing other work; and (2) such work exists in
“significant numbers in the national economy.” 20
C.F.R. §§ 404.1560(c)(2); 416.960(c)(2);
Beltran v. Astrue, 676 F.3d 1203, 1206 (9th Cir.
Standard of Review
district court's review of a final decision of the
Commissioner is governed by 42 U.S.C. § 405(g). The
scope of review under § 405(g) is limited, and the
Commissioner's decision will be disturbed “only if
it is not supported by substantial evidence or is based on
legal error.” Hill v. Astrue, 698 F.3d 1144,
1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial
evidence means “more than a mere scintilla but less
than a preponderance; it is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Sandgathe v. Chater, 108 F.3d
978, 980 (9th Cir.1997) (quoting Andrews v. Shalala,
53 F.3d 1035, 1039 (9th Cir. 1995)) (internal quotation marks
omitted). In determining whether the Commissioner's
findings are supported by substantial evidence, “a
reviewing court must consider the entire record as a whole
and may not affirm simply by isolating a specific quantum of
supporting evidence.” Robbins v. Soc. Sec.
Admin., 466 F.3d 880, 882 (9th Cir. 2006) (quoting
Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir.
reviewing a denial of benefits, a district court may not
substitute its judgment for that of the ALJ. Matney v.
Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). If the
evidence in the record “is susceptible to more than one
rational interpretation, [the court] must uphold the
ALJ's findings if they are supported by inferences
reasonably drawn from the record.” Molina v.
Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); see
also Thomas v. Barnhart, 278 F.3d 947, 954
(9th Cir. 2002) (if the “evidence is
susceptible to more than one rational interpretation, one of
which supports the ALJ's decision, the conclusion must be
upheld”). Moreover, a district court “may not
reverse an ALJ's decision on account of an error that is
harmless.” Molina, 674 F.3d at 1111. An error
is harmless “where it is inconsequential to the
[ALJ's] ultimate nondisability determination.”
Id. at 1115. The burden of showing that an error is
harmful generally falls upon the party appealing the
ALJ's decision. Shinseki v. Sanders, 556 U.S.
396, 409-10 (2009).
Statement of Facts
facts of the case are set forth in detail in the transcript
of proceedings and only briefly summarized here. Mr. Delegans
was 35 years old at the amended alleged date of onset. AR 21,
164, 167, 595. He has at least a high school education. AR
33, 595. Mr. Delegans is able to communicate in English. AR
33, 595. Mr. Delegans previously worked as a household
appliance installer, auto parts deliverer, and automobile
wrecker. AR 32, 196, 595. Mr. Delegans has a history of
cannabis abuse. AR 579.
The ALJ's Findings
determined that Mr. Delegans was not under a disability
within the meaning of the Act from the amended alleged onset
date of December 1, 2007, through the date of the ALJ's
decision. AR 577, 596.
step one, the ALJ found that Mr. Delegans had not
engaged in substantial gainful activity since December 1,
2007 (citing 20 C.F.R. §§ 404.1571 et seq. &
416.971 et seq.). AR 579.
step two, the ALJ found Mr. Delegans had the
following severe impairments: ulcerative colitis, disorder of
parathyroid gland, pancreatitis with pseudo cyst, affective
disorder, personality disorder, pain disorder due to general
medical condition, anxiety disorder, and cannabis abuse
(citing 20 C.F.R. §§ 404.1520(c) & 416.920(c)).
step three, the ALJ found that Mr. Delegans did not
have an impairment or combination of impairments that meets
or medically equals the severity of one of the listed
impairments in 20 C.F.R. § 404, Subpt. P, App. 1. AR
step four, the ALJ found Mr. Delegans had the
residual functional capacity to perform light work with these
limitations: (1) he can perform postural activities
frequently except he should never climb ladders, or ropes, or
scaffolds; (2) he can frequently handle and finger
bilaterally; (3) he should avoid concentrated exposure to
extreme temperatures, vibrations, and hazards; (4) he needs
ready access to a bathroom, yet even with these unscheduled
breaks, he would not be off task over 10 percent of the day;
(5) he is able to understand, remember, and carry out simple
routine tasks in a predictable routine environment with
minimal changes in routine; (6) he is able to perform work
requiring minimal and simple judgment and decision making;
and (7) he can have only brief and minimal interactions with
the public. AR 583.
determined that Mr. Delegans is unable to perform any past
relevant work. AR 595.
step five, the ALJ found that, in light of his age,
education, work experience, and residual functional capacity,
in conjunction with the Medical-Vocational Guidelines, there
are jobs that exist in significant numbers in the national
economy that he can perform. AR 595.
Issues for Review
Delegans argues that the Commissioner's decision is not
free of legal error and not supported by substantial
evidence. Specifically, he argues the ALJ erred by: (1)
improperly assessing Mr. Delegans' subjective complaint
testimony credibility; (2) improperly evaluating the lay
witness evidence; (3); improperly considering and weighing
the medical opinion evidence; and (4) improperly assessing
Mr. Delegans' residual functional capacity, and failing
to identify jobs, available in significant numbers, that Mr.
Delegans could perform despite his functional limitations.
The ALJ Properly Discounted Mr. Delegans'
engages in a two-step analysis to determine whether a
claimant's testimony regarding subjective symptoms is
credible. Tommasetti v. Astrue, 533 F.3d 1035, 1039
(9th Cir. 2008). First, the claimant must produce objective
medical evidence of an underlying impairment or impairments
that could reasonably be expected to produce some degree of
the symptoms alleged. Id. Second, if the claimant
meets this threshold, and there is no affirmative evidence
suggesting malingering, “the ALJ can reject the
claimant's testimony about the severity of [his] symptoms
only by offering specific, clear, and convincing reasons for
doing so.” Id.
weighing a claimant's credibility, the ALJ may consider
many factors, including, “(1) ordinary techniques of
credibility evaluation, such as the claimant's reputation
for lying, prior inconsistent statements concerning the
symptoms, and other testimony by the claimant that appears
less than candid; (2) unexplained or inadequately explained
failure to seek treatment or to follow a prescribed course of
treatment; and (3) the claimant's daily
activities.” Smolen, 80 F.3d at 1284. 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). Here, the ALJ found that the
medically determinable impairments could reasonably be
expected to produce the symptoms Mr. Delegans alleges;
however, the ALJ determined that Mr. Delegans' statements
regarding intensity, persistence, and limiting effects of the
symptoms were not entirely credible. AR 584. The ALJ provided
multiple reasons for discrediting Mr. Delegans'
subjective complaint testimony. AR 584-88.
the record supports the ALJ's determination that Mr.
Delegans' ulcerative colitis and abdominal pain is not as
limiting as he claims. Mr. Delegans alleges abdominal
problems, monthly ulcerative colitis flare-ups, and he
reports that he would use the bathroom 12 times per day. AR
331, 584, 618-19, 661, 670-71, 725. However, the ALJ provides
a detailed analysis of the record which is replete with
inconsistent statements, inconsistency with the medical
evidence, and improvement with treatment. AR 585-86.
October 2008, Mr. Delegans was encouraged to participate in a
biological therapy study to treat his ulcerative colitis but
did not follow through with the referral. AR 585. In 2009,
Mr. Delegans was evaluated for a Centocor ulcerative colitis
study but was turned away because objective imaging showed
his “mild” colitis was “not severe
enough.” AR 374, 489, 585. Mr. Delegans, in November
2009, reported one to two bowel movements per day without
issue, and denied abdominal discomfort. AR 481.
2010, Mr. Delegans reported he was doing quite well and
denied any ulcerative colitis flares, he had at most two to
three bowel movements per day without issues, he stated he
was quite happy with his lack of ulcerative colitis symptoms,
objective imaging showed no signs of active ulcerative
colitis, and it was noted that his ulcerative colitis was in
remission with medications. AR 471, 477, 585, 1996.
Delegans received treatment for pancreatitis in October 2010,
which was resolved by December 2010, and his abdominal
examination follow up in March 2011 was normal. AR 586, 1996,
2471. The ALJ noted that Mr. Delegans had abdominal pain due
to acute pancreatitis in December 2012, which was shown to
have improved in follow up exams, and the ALJ accounted for