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Peterson v. Commissioner of Social Security Administration

United States District Court, D. Alaska

April 24, 2019




         This is an action for judicial review of the denial of disability benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 42 U.S.C. §§ 1381-1383f. Plaintiff John Peterson has timely filed his opening brief, [1] to which defendant, the Commissioner of the Social Security Administration, [2] has timely responded. Oral argument was not requested and is not deemed necessary.

         Procedural Background

         In March 2015, plaintiff filed applications for disability benefits under Title II and Title XVI of the Social Security Act, alleging that he became disabled on January 6, 2015. Plaintiff alleged that he was disabled because of GERD, anxiety, dysthymia, high cholesterol, tachycardia, insomnia, agoraphobia, panic disorder, angina, and low back pain. Plaintiff's applications were denied initially. Plaintiff requested a hearing. After an administrative hearing on August 28, 2017, an administrative law judge (ALJ) denied plaintiff's applications. Plaintiff sought review of the ALJ's unfavorable decision. On September 24, 2018, the Appeals Counsel denied plaintiff's request for review, thereby making the ALJ's December 5, 2017 decision the final decision of defendant. On November 5, 2018, plaintiff commenced this action in which he asks the court to review defendant's final decision.

         General Background

         Plaintiff was born on August 19, 1954. He was 60 years old on his alleged onset date and 63 years old at the time of the administrative hearing. Plaintiff has a GED. Plaintiff's past work includes work as a hospital cleaner, a steward on the Alaska Ferry System, a driver, and a cashier.

         The ALJ's Decision

         The ALJ first found that plaintiff met “the insured status requirements of the Social Security Act through December 31, 2019.”[3]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.[4]

         At step one, the ALJ found that plaintiff had “not engaged in substantial gainful activity since January 6, 2015, the alleged onset date. . . .”[5]

         At step two, the ALJ found that plaintiff had “the following severe impairments: panic with situational agoraphobia, intermittent lumbar radiculopathy with no neurological findings, status post Barrett's esophageal stricture-hiatal hernia disorder, and obesity. . . .”[6]The ALJ found plaintiff's “history of supraventricular tachycardia” and hyperlipidemia non- severe.[7] And, the ALJ found plaintiff's alleged dysthymia and insomnia were not “medically determinable impairments.”[8]

         At step three, the ALJ found that plaintiff did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. . . .”[9] The ALJ considered Listing 1.04A (disorders of the spine) and Listing 12.06 (anxiety and obsessive compulsive disorders). The ALJ noted that

[a]lthough there are no specific medical listings regarding the claimant's Barrett's esophageal stricture-hiatal hernia and obesity symptoms, the undersign has nonetheless considered their effects on each body system included in the listings, and finds that the evidence does not show that the claimant's Barrett's esophageal stricture-hiatal hernia and obesity symptoms are of listing level severity.[10]

         The ALJ considered the “paragraph B” criteria and found that plaintiff had no limitations as to understanding, remembering, or applying information; moderate limitations in interacting with others; no limitations with regard to concentration, persistence, or pace; and no limitations as to adapting or managing oneself.[11] The ALJ also found that the “paragraph C” criteria were not met.[12]

         “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC.” Bray v. Comm'r of Social Security Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found that plaintiff had “the residual capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except he can frequently climb ramps or stairs, balance, kneel, crouch, and crawl. He can occasionally stoop and climb ladders, ropes, or scaffolds. The claimant can have frequent but not constant interaction with the general public.”[13]

         The ALJ gave significant weight to the opinion of Dr. Valette[14] because she “had the opportunity to review [the] complete medical record[.]”[15] The ALJ gave little weight to the opinion of ANP Workman[16] because “the degree of impairment Ms. Workman opines . . . is too extreme to be persuasive and is not supported by her treatment notes” and because “the determination of disability is one reserved for the Commissioner.”[17] The ALJ gave little weight to Mr. Merrifield's opinion[18] “because [his] report is incomplete and the missed days of work estimate is excessive and unsupported by the record[.]”[19] The ALJ gave little weight to Dr. Kesselring's opinion[20] because “it is vague and does not describe the specific functional limitations the claimant would have as a result of his panic/anxiety symptoms.”[21]The ALJ gave significant weight to Dr. Kidder's opinion[22] because he “is a specialist and is familiar with Agency listings and regulations” and “had the opportunity to review the entire evidentiary record[.]”[23] The ALJ gave significant weight to Dr. Bronstein's opinion[24]because “it is consistent with other opinions in the record as well as the medical evidence as a whole.”[25] The ALJ gave significant weight to the Dr. Hunter's opinion[26] that plaintiff “was able to lift, carry, and handle objects of light weight regularly and moderate weight on occasion” but no weight to his opinion that plaintiff's “ability to make occupational, social and personal adjustments was impaired by his anxiety and agoraphobia.”[27] The ALJ only gave partial weight to Dr. Anderson's opinion[28] because it was internally inconsistent as Dr. Anderson “noted that all of claimant's conditions were chronic and unlikely to improve, but then indicated that the claimant's symptoms might improve with ongoing treatment.”[29] The ALJ considered the lay testimony of plaintiff's sister[30] and gave it little weight because “the limitations she opines are not consistent with the medical evidence.”[31]

         The ALJ found plaintiff's pain and symptom statements less than credible because plaintiff's mental impairments were responding to treatment, he did not follow through with treatment recommendations, his daily activities were inconsistent with disability, he obtained unemployment benefits, and he had a sporadic work history prior to his alleged onset date.[32]

         At step four, the ALJ found that plaintiff “is capable of performing past relevant work as a hospital cleaner.”[33]

         Thus, the ALJ found that plaintiff “has not been under a disability, as defined in the Social Security Act, from January 6, 2015, through the date of this decision. . . .”[34]

         Standard of Review

         Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner. . . .” The court “properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “Substantial evidence is ‘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.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed “‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).


         Plaintiff argues that the ALJ erred because the ALJ failed to consider Dr. Wilson's treatment notes and her determination that plaintiff needed surgery to repair the Nissen fundoplication.[35] Dr. Wilson treated plaintiff in 2016 and 2017 for his gastric impairment.

On January 7, 2016, Dr. Wilson noted that
[y]ears ago, [plaintiff] had a Nissen fundoplication that was done in Southeast and he fairly quickly developed a slippage of the fundoplication and had to go back on PPI. Unbeknownst to me, I see that Dr. William Bowers performed an upper endos-copy on Mr. Peterson just about 6 months ago and found a slipped Nissen fundoplication and large hiatal hernia with a short area of Barrett's esophagus. Biopsies are showing intestinal metaplasia but no dysplasia, and his plan was for followup EGD in 5 years. I discussed this with Mr. Peterson, but he is quite adamant that we proceed tomorrow [with the] EGD which was already scheduled and in place. He has been having quite a bit of reflux symptoms, which happened kind of out of the blue, even with very minimal provocation. He describes 1 event of gross regurgitation of some tea that he drank that just came right out after having settled down for the night to sleep, but it refluxed out and he vomited back in to a bucket. This seems to be happening more frequently and John is quite concerned about it. He denies any dysplasia. Food is traveling down quite well. Unfortunately, he has been eating a little too much and has gained quite a bit of weight since I had last seen him. Weight today is 102.9, up from 94.7 kg 6 months ago.[36]

         Dr. Wilson

explained to [plaintiff] that it probably is not necessary to repeat this EGD, but he was quite adamant so we will proceed. . . .
Regarding the plan for the slipped Nissen fundoplication, he may need to have a redo Nissen, but I would like to see him lose about 20 to 30 pounds because operating on him at this state is probably contraindicated.[37]

         On January 8, 2016, plaintiff had an upper endoscopy.[38] Dr. Wilson's assessment was:

Slipped Nissen fundoplication, short segment Barrett's, and sliding hiatal hernia. No. evidence of recurrent squamous papilloma. John has active bile reflux. This may respond favorably to Liquid Carafate, which I will prescribe for him. He may need a redo Nissen; however with his 30-pound weight gain, I think it is not a good idea to plan on surgery at this time. If he can lose 20-30 pounds, he may be a candidate for redo Nissen, which I think should probably be done in Seattle. . . .[39]

         On January 17, 2017, Dr. Wilson noted that plaintiff

has been doing well. The liquid Carafate helps to control his symptoms pretty well, though he still has quite a bit of nocturnal reflux and regurgitation. He has not had any success in losing weight. He was about 30 pounds overweight last time and he still may be 30 or 40 pounds overweight now. He has not been doing exercise, but is enthusiastic about taking it up again. He definitely feels a little bad about ...

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