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Delegans v. Commissioner of Social Security

United States District Court, E.D. Washington

October 23, 2017

MICHAEL J DELEGANS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          ROBERT H. WHALEY SENIOR UNITED STATES DISTRICT JUDGE

         Before 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.

         I. Jurisdiction

         Mr. 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 1-4.

         After the Appeals Council denied his request for review, Mr. Delegans filed a Complaint in Federal District Court, and the Court affirmed the ALJ decision.[1]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.

         While 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.

         A new 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).

         II. Sequential Evaluation Process

         The 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).

         The 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 Cir. 2006).

         Step 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.

         Step 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 step.

         Step 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.

         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.

         Step 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. 2012).

         III. Standard of Review

         A 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. 1989)).

         In 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).

         IV. Statement of Facts

         The 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.

         V. The ALJ's Findings

         The ALJ 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.

         At 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.

         At 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)). AR 579.

         At 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 582.

         At 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.

         The ALJ determined that Mr. Delegans is unable to perform any past relevant work. AR 595.

         At 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.

         VI. Issues for Review

         Mr. 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.

         VII. Discussion

         A. The ALJ Properly Discounted Mr. Delegans' Credibility.

         An ALJ 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.

         In 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.

         First, 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.

         In 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.

         Throughout 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.

         Mr. 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 ...


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