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Tina S. v. Commissioner of Social Security

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

January 14, 2020

TINA S., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER AFFIRMING THE COMMISSIONER AND DISMISSING THE CASE

          BRIAN A. TSUCHIDA, CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff appeals the ALJ's decision finding her not disabled. Dkt. 13. The ALJ found depression, bipolar disorder, anxiety disorder, osteoarthritis and obesity are severe impairments; plaintiff has the residual functional capacity (RFC) to perform light work with additional limitations; and plaintiff is not disabled because she can perform past relevant work as a billing clerk and telemarketer and alternatively other jobs in the national economy. Tr. 11-22.

         Plaintiff contends the ALJ misevaluated her testimony and that the evidence she submitted post-hearing require the Court to remand the matter either for an award of benefits or for further administrative proceedings. For the reasons below, the Court AFFIRMS the Commissioner's final decision and DISMISSES the case with prejudice.

         DISCUSSION

         A. Plaintiff's Testimony

         The ALJ discounted plaintiff's testimony about her limitations first finding plaintiff's testimony about her physical limitations is inconsistent with the medical record. Tr. 17. Plaintiff contends the ALJ erred arguing the medical record shows plaintiff consistently suffers from foot, knee, and leg pain, that she is treated with pain medications, braces and injections, and that she has been diagnosed with chronic pain syndrome. Dkt. 10 at 4-6. The ALJ acknowledged the medical records shows plaintiff suffers from pain but found the record did not support the limitations plaintiff claimed.

         The Court cannot say the ALJ's assessment is unreasonable. During the relevant time period, plaintiff was primarily treated with pain medications, wore a brace and had injections. Surgery was not indicated. Tr. 300. Plaintiff's treating doctor did not opine during the relevant period plaintiff could not walk or work; if she walked or stood she needed to rest for days; or there was some type of medical problem preventing plaintiff from working. Rather, by and large, Donald Dillinger, M.D., reported plaintiff was doing fairly well pain-wise; plaintiff was either working or attending classes full time, and that she walked for one hour every other day. Given the record, even assuming the evidence is susceptible to more than one rational interpretation, the Court is required to uphold the ALJ's findings. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). The Court accordingly affirms the ALJ's determination as to plaintiff's physical and pain complaints.

         The ALJ also rejected plaintiff's testimony about her mental limitations. The ALJ noted the record showed plaintiff appeared at the Everett Clinic “visibly shaking and tearful, ” expressed increased suicidal thoughts and was diagnosed with depression and anxiety disorder. Tr. 17. The ALJ noted when plaintiff went to the Clinic she was not participating in any mental health counseling. Id. The ALJ found in some instances plaintiff endorsed depressed mood and a lack of motivation but in other instances showed normal mood and affect. Id. at 17-18. The ALJ further found plaintiff's mental conditions do not “appear to affect her ability to engage in social settings, ” and plaintiff's condition improved while “on Cymbalta and Wellbutrin.” Tr. 18. The ALJ concluded an RFC that does not require production pace work and allows for being off task 10 percent accounts for limitations caused by plaintiff's mental conditions. Id.

         Plaintiff argues the record shows on July 13, 2015, plaintiff was visibly shaking and tearful denied suicidal thoughts, that mental health treatment stopped, and then resumed after the relevant period. Tr. 279-280. Plaintiff argues the ALJ erred in rejecting plaintiff's mental health testimony on the grounds the record lacked any opinions from any mental health treating source and should have developed the record further. Dkt. 10 at 6.

         These arguments fail. Plaintiff argues the ALJ's rationale is erroneous citing to a portion of the ALJ's decision not directed to plaintiff's testimony but to the ALJ's assessment of the medical evidence. Id. citing to Tr. 19 (“Under Social Security Regulations, medical opinions are statements from Physicians and psychologists . . . . In the present case the undersigned found no treating source opinions . . .”). Plaintiff has not assigned error to the ALJ's assessment of the medical evidence and thus plaintiff's citation to the portion of the decision regarding the medical opinions do not establish reversible error.

         Turning to plaintiff's argument about the adequacy of the record, the ALJ's duty to develop the record is triggered only if there is ambiguous evidence or if the record is inadequate to allow for proper evaluation of the evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). The record shows, as plaintiff acknowledges, she was seen in July 2015, and did not receive much mental health treatment until after the relevant period. There is no ambiguity in the record that during the relevant period, there is virtually no evidence supporting plaintiff's mental health claims. The ALJ thus had no duty to further develop the medical record and the Court accordingly rejects the argument the ALJ erred in failing to develop the record to essentially support plaintiff's testimony that her depression caused fatigue, loss of focus, the need to lie down and going off task. Dkt. 10 at 9.

         B. Evidence Presented to the Appeals Council

         Plaintiff also contends the Court should remand the case for further proceedings or benefits because she submitted a letter to the Appeals Council that undermines the ALJ's decision. Dkt. 10 at 10. In this letter dated February 1, 2019, Jessica Lund DPM, TEC Podiatry stated:

[Plaintiff] was seen at the Everett Clinic for bilateral foot pain. She has been diagnosed with chronic pain from plantar fasciitis of both feet and arthritis of the right foot. Even with custom ankle-foot-orthotics she is not able to tolerate prolonged standing for work. She notes that prolonged standing cause swelling of her lower extremities and at time this can prevent her from wearing the braces. The braces do help, but not enough to allow her to work without pain. Since 2012 she has failed numerous treatment options including injections, custom foot orthotics, exercises, change ...

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