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Sisk v. Berryhill

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

July 6, 2018

KENNETH R. SISK, SR., Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Social Security for Operations, Defendant.

          ORDER RE: SOCIAL SECURITY DISABILITY APPEAL

          Mary Alice Theiler, United States Magistrate Judge.

         Plaintiff Kenneth Sisk proceeds through counsel in his appeal of a final decision of the Commissioner of the Social Security Administration (Commissioner). The Commissioner denied plaintiff's applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) after a hearing before an Administrative Law Judge (ALJ). Having considered the ALJ's decision, the administrative record (AR), and all memoranda, this matter is AFFIRMED.

         FACTS AND PROCEDURAL HISTORY

         Plaintiff was born on XXXX, 1974.[1] He has a GED and previously worked as a short order cook, motor vehicle and supply sales representative, security guard, and tractor trailer truck driver. (AR 30, 46, 77-78.)

         Plaintiff protectively filed his applications in January 2014, alleging disability beginning March 6, 2013. (AR 207-20.) The applications were denied initially and on reconsideration.

         On September 16, 2015, ALJ Joanne Dantonio held a hearing, taking testimony from plaintiff and a vocational expert (VE). (AR 38-86.) On February 5, 2016, the ALJ issued a decision finding plaintiff not disabled. (AR 16-32.)

         Plaintiff timely appealed. The Appeals Council denied plaintiff's request for review on June 23, 2017 (AR 1-6), making the ALJ's decision the final decision of the Commissioner. Plaintiff appealed this final decision of the Commissioner to this Court.

         JURISDICTION

         The Court has jurisdiction to review the ALJ's decision pursuant to 42 U.S.C. § 405(g).

         DISCUSSION

         The Commissioner follows a five-step sequential evaluation process for determining whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920 (2000). At step one, it must be determined whether the claimant is gainfully employed. The ALJ found plaintiff had not engaged in substantial gainful activity since the alleged onset date. At step two, it must be determined whether a claimant suffers from a severe impairment. The ALJ found the following impairments severe: lumbar degenerative disc disease; obesity; chronic obstructive pulmonary disease with tobacco dependence; left shoulder rotator cuff dysfunction; and adjustment disorder with mixed anxiety and depression. Step three asks whether a claimant's impairments meet or equal a listed impairment. The ALJ found plaintiff's impairments did not meet or equal the criteria of a listing.

         If a claimant's impairments do not meet or equal a listing, the Commissioner must assess residual functional capacity (RFC) and determine at step four whether the claimant has demonstrated an inability to perform past relevant work. The ALJ found plaintiff able to perform sedentary work, with additional limitations: can sit for one hour increments, stand and/or walk for no more than fifteen minute increments, and stand for one-to-five minutes after sitting one hour while remaining on task; never climb ladders/ropes/scaffolds, less than occasional ramps and stairs, occasional stoop, kneel, and crouch, and never crawl or balance; no overhead reaching on the left and occasional push/pull on the left at sedentary weight limits; avoid concentrated exposure to high impact vibrations and avoid even moderate exposure to hazards; capable of performing known semi-skilled work; occasional co-worker contact and superficial interaction with the public (requires no interaction); no requirement to set work goals or plans; and less than occasional changes in work tasks. With that assessment, the ALJ found plaintiff unable to perform past relevant work.

         If a claimant demonstrates inability to perform past relevant work, or has no past relevant work, the burden shifts to the Commissioner to demonstrate at step five that the claimant retains the capacity to adjust to work existing in significant levels in the national economy. With the assistance of the VE, the ALJ found plaintiff capable of performing other jobs, such as work as a semi-conductor dye loader, semi-conductor wafer breaker, and table worker.

         This Court's review of the ALJ's decision is limited to whether the decision is in accordance with the law and the findings supported by substantial evidence in the record as a whole. See Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). Accord Marsh v. Colvin, 792 F.3d 1170, 1172 (9th Cir. 2015) (“We will set aside a denial of benefits only if the denial is unsupported by substantial evidence in the administrative record or is based on legal error.”) Substantial evidence means more than a scintilla, but less than a preponderance; it means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). If there is more than one rational interpretation, one of which supports the ALJ's decision, the Court must uphold that decision. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

         Plaintiff argues the ALJ erred in evaluating the medical evidence, his testimony, lay evidence, and, as a result, in formulating the RFC and reaching the conclusion at step five. He requests remand for further administrative proceedings. The Commissioner argues the ALJ's decision has the support of substantial evidence and should be affirmed.

         Symptom Evaluation

         Absent evidence of malingering, an ALJ must provide specific, clear, and convincing reasons to reject a claimant's testimony. Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014) (citing Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)). “General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996).[2] The ALJ may consider a claimant's “reputation for truthfulness, inconsistencies either in his testimony or between his testimony and his conduct, his daily activities, his work record, and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which he complains.” Light v. Social Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997).

         The parties here disagree as to whether the ALJ found evidence of malingering. As discussed below, the ALJ provided specific, clear, and convincing reasons for not fully accepting plaintiff's testimony. The Court, as such, finds no need to address malingering.

         A. Evidence of Exaggeration

         An ALJ properly considers inconsistency with the evidence and a tendency to exaggerate. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001), as well as self-limiting behavior, failure to give maximum or consistent effort on examination, and efforts to impede accurate testing, Thomas, 278 F.3d at 959. In this case, whether or not amounting to affirmative evidence of malingering, [3] the ALJ properly relied on evidence in the record raising serious questions as to the extent of plaintiff's limitations.

         The ALJ first contrasted plaintiff's testimony that orthopedic surgeon Dr. Jos Cove told him his back was inoperable and “‘too far gone'”, with Dr. Cove's actual findings. (AR 23.) In a May 2013 examination, plaintiff got up very slowly, with significant groaning and moaning, had no extension, forward flexion just to upper thigh, and widespread nonfocal pain to palpation throughout the thoracic and lumbar spine, was unable to toe and heel walk, had normal motor strength on motor and sensory exam and nondermatomal hypesthesia throughout both legs, had no sensation in thigh, shin, and calf regions, negative straight leg raising, and good and nonpainful hip range of motion. (AR 384-85.) A prior CT scan showed mild degenerative changes, good alignment of spine, mild spinal stenosis, a large disc herniation at L4-5, and no significant abnormalities. (AR 385.) Dr. Cove's impression was a very deconditioned and overweight 38-year-old patient with back pain of significant chronicity, Waddell's signs of 5/5, indicating a significant nonorganic contribution, and entirely nondermatomal leg symptoms. (AR 23, 385.) Dr. Cove found plaintiff's alleged disability excessive, concluded he would not benefit from surgery, was hesitant to try an injection given that intervention could increase the disability conviction, recommended physical therapy and weight loss, and told plaintiff “this is not a surgical problem and that as a surgeon I have nothing to offer.” (AR 385; see also AR 23-24.) He also told plaintiff “it would be hard to maintain that he cannot function even in a sedentary job.” (AR 385.) Dr. Cove arranged for an injection, but no further follow up, and opined: “Again, there may well be some degree of stenosis, but in a patient with this presentation and widespread nonorganic and nondermatomal pattern of pain, surgical intervention is clearly contraindicated.” (Id.) Considering this and other evidence, the ALJ reasoned plaintiff “consistently reported to providers that his back was ‘inoperable' in an effort to show he was more limited than he was, without explaining the doctor simply did not find any surgery was necessary.” (AR 24 (citing AR 634).)

         Examining neurosurgeon Dr. Yoshihiro Yamamoto also raised questions about plaintiff. In August 2013, Dr. Yamamoto found giveaway weakness of both legs, straight leg raise test positive on both sides with significant exaggeration, paresthesia in the legs that did not follow a particular dermatome, and severely antalgic gait. (AR 508-09.) He reviewed updated images, confirmed degenerative disc disease, and opined the symptoms did not correlate with particular nerve root compression and were “significantly magnified disproportional to x-ray and CT findings.” (Id.) He recommended immediate smoking cessation and aggressive weight reduction, and deemed plaintiff a poor surgical candidate. The ALJ found no objective evidence to explain plaintiff's claim his legs go out or will not lift to go upstairs. (AR 24-25.)

         The ALJ found numerous other examples of exaggeration. (AR 25.) A month after he saw Dr. Yamamoto, plaintiff walked with a limp and no assistive device. (AR 531.) On one occasion, a provider noted “‘exquisite tenderness' to light touch diffusely, ” guarding, and exaggerated pain behavior. (AR 544.) On another occasion, plaintiff refused gabapentin and wanted “‘something'” for his pain, but the provider refused to prescribe narcotics. (AR 546-47.) Plaintiff stopped going to the provider for back pain and sought a referral to a pain clinic.

         Despite normal findings at some examinations, plaintiff continued to pursue a pain clinic referral and reported significant limitations to providers. (AR 25 (citing AR 634).) In September 2014, a nurse practitioner prescribed a walker after plaintiff reported physical therapy thought he needed one. (AR 665). The following month, plaintiff fell while hunting, but did not disclose this activity to his treating provider when he appeared for appointments with his wheeled walker. (AR 649, 667.) The ALJ found it “unclear how one hunts in the woods with a walker” and observed that plaintiff continued to exhibit exaggerated symptoms at physical therapy, with one therapist noting he used the wrong arm for his cane. (AR 25 (citing AR 760).)

         At a pain clinic in February 2015, an examiner noted symptom amplification and exaggeration and deemed plaintiff a moderate risk for opioid abuse and/or diversion. (Id.; AR 723-24.) While plaintiff testified to near inability to function, he reported the ability to function at 9/10 with opioids, but 3/10 without medications, and that the medications improved his ability to walk, perform household chores, sleep, and interact with others. (AR 25, 725-27.) He was prescribed opioids and soon requested an increase in dosage. (AR 730.)

         In a March 2014 psychological examination, plaintiff told Dr. Lucretia Krebs he had no feelings in his legs, found it difficult to walk, and fell three or four times a day, but did not bring an assistive device to the examination. (AR 26, 596, 598.) He reported significant mental health symptoms of anxiety and depression, but no mental health treatment, and extreme back symptoms such as screaming in pain and toppling over when he bends. (AR 26, 597.)

         Plaintiff unsuccessfully attempts to minimize and undercut the evidence relied upon by the ALJ. For example, he denies any evidence he understood Dr. Cove's medical opinion. However, in addition to informing plaintiff the issue was not a surgical problem, Dr. Cove specifically responded to an inquiry as to whether plaintiff should apply for disability by telling him it would be hard to maintain he could not function even in a sedentary job. (AR 385.) Three months later, Dr. Yamamoto opined similarly and engaged plaintiff in a “detailed discussion of treatment options and risks.” (AR 509.) While it is possible plaintiff did not understand these opinions, the ALJ's contrary interpretation of this and other evidence was rational and properly relied upon in the assessment of plaintiff's subjective symptom ...


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