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Jason F. v. Commissioner of Social Security

United States District Court, E.D. Washington

June 15, 2018

JASON F., Plaintiff,



         BEFORE THE COURT are cross-motions for summary judgment. ECF Nos. 22, 23. Attorney Cathy M. Helman represents Jason F. (Plaintiff); Special Assistant United States Attorney Justin L. Martin represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 4. After reviewing the administrative record and briefs filed by the parties, the Court GRANTS Defendant's Motion for Summary Judgment and DENIES Plaintiff's Motion for Summary Judgment.


         Plaintiff filed applications for Supplemental Security Income (SSI) and Disability Insurance Benefits (DIB) on December 3, 2013, Tr. 144-45, alleging disability since July 15, 2008, Tr. 310, 312, due to a ruptured disc, anxiety, and mental problems, Tr. 391. The applications were denied initially and upon reconsideration. Tr. 204-07, 209-12. Administrative Law Judge (ALJ) Marie Palachuk held a hearing on January 21, 2016 and heard testimony from Plaintiff, psychological expert Nancy Lynn Winfrey, Ph.D., medical expert Allan N. Levine, M.D., and vocational expert Daniel McKinney. Tr. 47-95. The ALJ issued an unfavorable decision on February 17, 2016. Tr. 23-37. The Appeals Council denied review on April 27, 2017. Tr. 1-6. The ALJ's February 17, 2016 decision became the final decision of the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. §§ 405(g), 1383(c). Plaintiff filed this action for judicial review on June 20, 2017. ECF Nos. 1, 7.


         The facts of the case are set forth in the administrative hearing transcript, the ALJ's decision, and the briefs of the parties. They are only briefly summarized here.

         Plaintiff was 31 years old at the alleged date of onset. Tr. 310. His highest level of education was the tenth grade. Tr. 392, 645. He reported his work history as cashier, cook, customer service representative, security guard, and test driver. Tr. 392, 398. Plaintiff reported that he stopped working on September 15, 2012 due to his conditions. Tr. 391.


         The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The Court reviews the ALJ's determinations of law de novo, deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the ALJ. Tackett, 180 F.3d at 1097.

         If substantial evidence supports the administrative findings, or if conflicting evidence supports a finding of either disability or non-disability, the ALJ's determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Nevertheless, a decision supported by substantial evidence will be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988).


         The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-99. This burden is met once the claimant establishes that physical or mental impairments prevent him from engaging in his previous occupations. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). If the claimant cannot do his past relevant work, the ALJ proceeds to step five, and the burden shifts to the Commissioner to show that (1) the claimant can make an adjustment to other work, and (2) specific jobs which the claimant can perform exist in the national economy. Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193-94 (9th Cir. 2004). If the claimant cannot make an adjustment to other work in the national economy, a finding of “disabled” is made. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).


         On February 17, 2016, the ALJ issued a decision finding Plaintiff was not disabled as defined in the Social Security Act.

         At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since July 15, 2008, the alleged date of onset. Tr. 25.

         At step two, the ALJ determined Plaintiff had the following severe impairments: chronic back pain secondary to multilevel degenerative disc disease; morbid obesity; major depressive disorder; and generalized anxiety disorder. Tr. 26.

         At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. Tr. 26.

         At step four, the ALJ assessed Plaintiff's residual function capacity and determined he could perform a range of light work with the following limitations:

the claimant is limited to lifting/carrying a maximum of 15 pounds and standing/walking limited to 30 minutes at a time for a total of five hours per day (requiring the ability to alternate sitting/standing at 30 minute intervals). The claimant is limited to occasional postural activities with the exception of no climbing of ladders, ropes and scaffolds; avoid concentrated exposure to extreme cold and all exposure to hazards such as dangerous moving machinery and unprotected heights. The claimant is able to maintain attention/concentration for two-hour intervals during a regular 40-hour workweek; no production rate (fast-paced assembly-type work); no high pressure/confrontation type job (e.g., customer service/disputes, collection, etc.); no crowds; only occasional interaction with coworkers/supervisors.

Tr. 28. The ALJ identified Plaintiff's past relevant work as store cashier, laborer stores, electronics tester, cook helper, hand packager, and customer-service clerk (CST) and concluded that Plaintiff was not able to perform this past relevant work. Tr. 35.

         At step five, the ALJ determined that, considering Plaintiff's age, education, work experience and residual functional capacity, and based on the testimony of the vocational expert, there were other jobs that exist in significant numbers in the national economy Plaintiff could perform, including the jobs of bagger, garment sorter, and table worker. Tr. 36. The ALJ concluded Plaintiff was not under a disability within the meaning of the Social Security Act at any time from July 15, 2008, through the date of the ALJ's decision. Tr. 37.


         The question presented is whether substantial evidence supports the ALJ's decision denying benefits and, if so, whether that decision is based on proper legal standards. Plaintiff contends the ALJ erred by (1) failing to properly weigh the opinion evidence, (2) failing to properly address Plaintiff's symptom statements, and (3) failing to make a proper step five determination.


         1. Opinion Evidence

         Plaintiff argues that the ALJ failed to properly consider and weigh the opinions expressed by William M. Shanks, M.D., Benjamin W. Simpson, M.D., Wilfred Madarang, M.D., Mahlon Dalley, Ph.D., Frank Rosekrans, Ph.D., Jay M. Toews, Ed.D., Nancy Lynn Winfrey, Ph.D., Allan N. Levine, M.D., and Helen Franklin. ECF No. 14 at 22 at 12-20.

         In weighing medical source opinions, the ALJ should distinguish between three different types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining physicians, who examine but do not treat the claimant; and, (3) nonexamining physicians who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The ALJ should give more weight to the opinion of a treating physician than to the opinion of an examining physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Likewise, the ALJ should give more weight to the opinion of an examining physician than to the opinion of a nonexamining physician. Id.

         When a treating physician's opinion is not contradicted by another physician, the ALJ may reject the opinion only for “clear and convincing” reasons. Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). When a treating physician's opinion is contradicted by another physician, the ALJ is only required to provide “specific and legitimate reasons” for rejecting the opinion. Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). Likewise, when an examining physician's opinion is not contradicted by another physician, the ALJ may reject the opinion only for “clear and convincing” reasons, and when an examining physician's opinion is contradicted by another physician, the ALJ is only required to provide “specific and legitimate reasons” to reject the opinion. Lester, 81 F.3d at 830-31.

         The specific and legitimate standard can be met by the ALJ setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating her interpretation thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The ALJ is required to do more than offer her conclusions, she “must set forth [her] interpretations and explain why they, rather than the doctors', are correct.” Embrey v. Bowen, 849 F.2d 418, 421-422 (9th Cir. 1988).

         A. William M. Shanks, M.D.

         On July 12, 2012, Dr. Shanks completed an examination of Plaintiff at the request of the Washington Department of Social and Health Services (DSHS) and diagnosed Plaintiff with widespread degenerative disk disease of the lumbar spine with facet joint arthritis and a history of left lateral disc herniation at the LS level, status post-op discectomy at this level. Tr. 582-85. Dr. Shanks completed his evaluation with the following statement:

He has no training in a sedentary level occupation, except for that which he did in a call center several years ago. He would not be able to return to the heavier types of work he has done in the past. He therefore ...

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