Ward v. Commissioner Social Security Administration, No. 3:2013cv00055 - Document 23 (D. Or. 2014)

Court Description: OPINION AND ORDER. For the foregoing reasons, the decision of the ALJ is AFFIRMED. IT IS SO ORDERED. Signed on 03/27/2014 by Judge Malcolm F. Marsh. (pvh)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON 3:13-cv-00055-MA AMY WARD, Plaintiff, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. BRUCE W. BREWER P.O. Box 421 West Linn, Oregon 97068 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204-2902 LISA GOLDOFTAS Office of the General Counsel Social Security Administration 701 Fifth Avenue, Suite 2900 Seattle, Washington 98104 Attorneys for Defendant 1 - OPINION AND ORDER OPINION AND ORDER MARSH, Judge Plaintiff, Amy Ward, brings this action for judicial review of a final decision Commissioner) of the Commissioner of Social Security (the denying her applications for disability insurance benefits (DIB) under Title II of the Social Security Act (the Act) and supplemental security income Title XVI of the Act. (SSI) disability benefits under See 42 U.S.C. §§ 401-434, 1381-1383f. court has jurisdiction pursuant to 42 U.S.C. reasons set forth below, I affirm the § final This 405(g). For the decision of the Commissioner. PROCEDURAL BACKGROUND Plaintiff protectively filed the applications for DIB and SSI on November 5, 2009, alleging disability due to bipolar disorder, anxiety, "violent disorder (PTSD), memory loss. behavior disorder," personality disorder, Tr. 182. upon reconsideration. Law Judge (ALJ) on Gaffney was migraines, stress stroke, and Her applications were denied initially and A hearing was held before an Administrative November represented by counsel Robert post-traumatic 3, 2011, and testified. also present at which Plaintiff Vocational Expert (VE) hearing and throughout the 'tlas testified. On January 27, 2012, the ALJ issued a decision Plaintiff not disabled within the meaning of the Act. 2 - OPINION AND ORDER finding After the Plaintiff Appeals Council declined review of the ALJ's decision, timely filed a complaint in this Court. FACTUAL BACKGROUND Born on November 29, 1974, Plaintiff was 27 years old on the alleged onset date of disability and 36 years old on the date of the hearing. Plaintiff reported completing most or all of her high but did not receive a diploma, school coursework, and has past relevant work as a Cashier, Commercial Cleaner, and Sales Clerk. Tr. 21, 178. Plaintiff alleges her conditions became disabling on August the Plaintiff testified about her limitations at Tr. 178. 16, 2002. Neuropsychological Elaine 38-59. Tr. hearing. Screening and submitted a a conducted Ph.D., Greif, Medical Source Tr. 729-39. Statement of Ability to do Work-Related Activities. THE ALJ'S DISABILITY ANALYSIS The Commissioner has a established sequential five-step Bowen v. process for determining whether a person is disabled. Yuckert, 482 U.S. 137' C.F.R. Each step §§ is Tackett v. Apfel, 180 F.3d 1094, 1098 (9th The burden shifts to the Commissioner at Step Five to Cir. 1999). that 20 The claimant bears the burden of proof at potentially dispositive. show (1987); 416.920 (a) (4) (i)- (v). 404.1520 (a) (4). (i)- (v), Steps One through Four. 140-42 a significant 3 -.OPINION AND ORDER number of jobs exist in the national See Yuckert, economy that the claimant can perform. 482 U.S. ·at 141-42; Tackett, 180 F.3d at 1098. At Step One, the ALJ determined Plaintiff has not engaged in substantial gainful activity since the alleged onset date, August See 20 C.F.R. 16, 2002. §§ 404.1571 et seq., 416.971 et seq.; Tr. 12. At Step Two, the ALJ found Plaintiff's borderline intellectual functioning, bipolar disorder, borderline personality disorder, PTSD, opiate dependence, cannabis abuse, headache complaints, and status post stroke were severe impairments. See 20 C.F.R. §§ 404.1520(c), 416.920(c); Tr. 12-13. At Step Three, the ALJ determined Plaintiff does not have an impairment or combination of impairments that meet or medically equal any listed impairment. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926; Tr. 25-26. The ALJ found Plaintiff has the residual functional capacity (RFC) to perform a full range of work at all exertional levels, but limited Plaintiff to unskilled work involving routine tasks requiring no more than superficial interactions with others and no close cooperation or coordination; and further limited Plaintiff to performing mathematical calculations involving only addition and subtraction, and only in circumstances equations to solve them. 4 - OPINION AND ORDER Tr. 15-21. in which she can write At Step Four, the ALJ found Plaintiff is unable to perform her Cashier, past relevant work as a Clerk. At See 20 C.F.R. 404.1565, 416.965; Tr. 21. the ALJ found however, Five, Step §§ or Sales Commercial Cleaner, in exist jobs that significant numbers in the national economy that Plaintiff can perform, including Laundry Sorter and Housekeeping/Room Cleaner. See 20 C.F.R. §§ 404.1569, 404.1569(a), 416.969, 416.969(a); Tr. 22. Accordingly, the ALJ found Plaintiff was not disabled within the meaning of the Act. ISSUES ON REVIEW Plaintiff argues the raises ALJ two improperly issues on review. testimony. Plaintiff's discredited Plaintiff First, Second, Plaintiff maintains the ALJ improperly partially rejected Dr. Greif's opinion. STANDARD OF REVIEW The court must if affirm the Commissioner's decision the Commissioner applied proper legal standards and the findings are 42 supported by substantial evidence in the record. 405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 u.s.c. (9th Cir. § 1995). "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." court must weigh all 5 - OPINION AND ORDER of the evidence, whether it Id. supports The or Martinez v. Heckler, detracts from the Commissioner's decision. If the evidence is susceptible 807 F.2d 771, 772 (9th Cir.'1986). more to than rational one interpretation, Andrews, decision must be upheld. the Commissioner's 53 F.3d at 1039-40. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for Edlund v. Massanari, that of the Commissioner." 253 F.3d 1152, 1156 (9th Cir. 2001). DISCUSSION Plaintiff's Credibility I. In deciding whether to accept subjective symptom testimony, an 20 C.F.R. ALJ must perform two stages of analysis. § 404.1529. First, the claimant must produce objective medical evidence of an underlying impairment that could reasonably be expected to produce Smolen, 80 F.3d at 1281-82. the symptoms alleged. a finding of malingering, testimony about the the ALJ can reject Second, absent the claimant's severity of her symptoms only by offering specific, clear, and convincing reasons for doing so. Id. at 1281. If an ALJ finds that the claimant's testimony regarding her subjective symptoms is unreliable, the "ALJ must make a credibility reasons why the determination citing unpersuasive." Morgan v. Comm'r Soc. Sec. Admin., 599 (9th Cir. 1999). the In doing so, testimony is 169 F.3d 595, the ALJ must identify what testimony is credible and what testimony undermines the claimant's 6 - OPINION AND ORDER complaints, and make "findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [the] Thomas v. Barnhart, 278 F.3d 947, 958 (9th claimant's testimony.'' Cir. 2002). credibility evaluation upon rely may ALJ The the in weighing ordinary techniques claimant's of credibility. Tommasetti v. Astrue, 533 F. 3d 1035, 1039 (9th Cir. 2008). Plaintiff testified her short term memory At the hearing, fail to problems cause her to immediately forget what she reads, and get lost frequently as a result of poor track conversation, Plaintiff testified she has Tr. 40-41, 50. sense of direction. Tr. 41. Plaintiff testified the headaches are "terrible," but that she headaches every day of result a as a 2005 stroke. "can't take pain medication" because she is on anxiety medication. Tr. 58. As a result of the stroke, Plaintiff testified she could no longer operate the cash registers at work because she could not remember how they worked. perform addition Tr. 43. and subtraction if Plaintiff reported she can she is able equation down, but not multiplication and division. to write Tr. 41. the Aside from her headaches, however, Plaintiff reported she does not have Tr. 57. any physical limitations. As to mental health, Plaintiff reported she has frequent nightmares as a result of her PTSD that interfere with her sleep. Tr. 44. In addition, as a result of her bipolar disorder, Plaintiff testified she cries for approximately two hours almost 7 - OPINION AND ORDER every day, and that stress about her triggers the crying spells. testified anxiety causes Tr. her living situation usually 4 5-4 6. to Plaintiff additionally suffer increased heart rate, nausea, and light-headedness when she is in an area with a lot of people, such as a store. Tr. 47-48. Plaintiff reported she experiences such spells approximately once per year. addition, Plaintiff testified she has Tr. 49. "[v) iolent behavior disorder," which causes her to become enraged when provoked. 54. In Tr. Plaintiff reported she has become angry- although not violent -at the doctor's office and at work in the past. Tr. 54-55. As to activities of daily living, Plaintiff reported she sends text messages, watches television, and cleans the house. Tr. 42. Plaintiff indicated she keeps the house "immaculate" because she has obsessive-compulsive disorder. The ALJ rejected Tr. 59. Plaintiff's testimony because Plaintiff demonstrated drug-seeking behavior that reflected poorly on her credibility, endorsed symptoms objective and clinical findings, effort on psychological testing. reasons, that are disproportionate to and did not put forth maximal Tr. 17-20. I conclude these taken together, constitute clear and convincing reasons for discrediting Plaintiff's testimony. Evidence discrediting a of drug-seeking behavior is a claimant's subjective complaints. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001). 8 - OPINION AND ORDER proper basis Edlund for v. Because the record in this case is replete with evidence of drug-seeking behavior, the rejection ALJ's Plaintiff's of affirmatively health care providers. on this basis is The record contains numerous instances of especially compelling. Plaintiff testimony seeking ~ 513, 520-21, 629, 652, 660. pain narcotic medication from Tr. 227, 228, 233, 334, 417, 494, 498, In many instances, Plaintiff refused non-narcotic treatments offered by health care providers in favor of demanding narcotics. Tr. 233, 417, 496-98, 513, 520, 629, 660. In some encounters, medical providers noted that Plaintiff became upset or uncooperative when she was denied narcotics or providers Tr. suggested she seek treatment for narcotics addiction. 494-96, 498, 500, 520-21, 629, 660. Indeed, in light of 417, the aggressiveness with which Plaintiff sought narcotic pain medication and Plaintiff's frequent refusal to undergo non-narcotic treatment, it is reasonable to question whether the full extent of Plaintiff's symptom complaints in the medical record are genuine or indicative of attempts to obtain narcotic pain medication. ALJ' s citation of drug-seeking behavior, then, is a are The compelling reason, supported by ample evidence, to reject Plaintiff's symptom testimony. The ALJ also cited Plaintiff's poor effort in testing as a reason to discredit her testimony. Notably, in her evaluation with Dr. Greif, "[m)emory skills could not be assessed validly due to impaired effort and this was judged associated at least in part 9 - OPINION AND ORDER with psychological variables other than specific intention to look Tr. 731. disabled, although the latter would not be ruled out." Specifically,. Plaintiff's effort was "inadequate" on the WMS-IV, a scale used to measure memory, as Plaintiff gave up quickly on as the Plaintiff although cited, ALJ independently and calmly for over 2 "worked ~hours," In addition, Id. questions and said the work was too difficult. on MMPI-2 the unlike her effort on the memory testing, her MMPI-2 "profile Has judged invalid . for due interpretation extremely to high F scale suggesting Id. exaggerated report of unusual symptoms and of pathology." Although Dr. Greif suggested Plaintiff's poor effort might be caused at least expressly did not in part psychological by rule out factors, the possibility that Dr. Greif Plaintiff was attempting to appear more limited than she actually is. Moreover, effort in memory it is notable that Plaintiff exhibited poor testing, one of the areas in which Plaintiff alleged she was most disabled, while putting in greater effort on other tests. As such, the ALJ reasonably cited Plaintiff's poor effort in psychological testing as a reason to discredit her testimony. Finally, the ALJ appropriately cited inconsistency between Plaintiff's allegations testimony. and clinical findings to discredit her Despite Plaintiff's allegations of significant memory impairments, memory problems are relatively sporadically mentioned throughout the extensive medical record. 10 - OPINION AND ORDER Tr. 246 (8/31/09), 584 (4/24/09; short term memory loss secondary to an "aneurysm"); 628 (5/13/11); 635 More to the point, however, there are (5/26/11). several references to Plaintiff demonstrating no memory deficits. Tr. 424 (11/24/08), 443 (10/4/10), 449 (11/8/10), 459 (12/26/10), These references to 466 (12/29/10), 505 (4/26/11), 549 (6/17/11). normal memory function are manifestly inconsistent with Plaintiff's allegations at the hearing of longstanding, problems. between the ALJ appropriately cited inconsistency Therefore, allegations Plaintiff's very serious memory and clinical findings a as compelling reason to discredit Plaintiff's testimony. In sum, I conclude the above reasons are clear and convincing reasons to discredit Plaintiff's allegations. The ALJ did not err in his consideration of Plaintiff's testimony. II. Medical Testimony Plaintiff next argues the ALJ impermissibly discredited Dr. Greif's opinion. convincing reasons The to Commissioner reject 830-31 (9th Cir. 1995) . provide and clear opinion uncontradicted the treating or examining physician. must of a Lester v. Chater, 81 F.3d 821, Where a physician's opinion is contradicted by that of another physician, the ALJ may reject the physician's opinion by providing specific and legitimate reasons supported by substantial evidence in the record. Id. "'The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately 11 - OPINION AND ORDER supported by clinical findings.'" Chaudhry v. Astrue, 688 F.3d (quoting Bray v. Comm' r Soc. Sec. Admin., 661, 671 (9th Cir. 2012) 554 F. 3d 1219, 1228 (9th Cir. 2009)). The ALJ partially credited Dr. Greif's opinion, accepting Dr. Greif's findings Plaintiff's to as ability to carry out and understand instructions, but partially rejecting the severity of Dr. findings Greif's to as Plaintiff's ability to interact appropriately with the public and respond appropriately to usual work situations and to changes in a routine work setting. Tr. 21. The ALJ found that Plaintiff's limitations in this respect were adequately accommodated by the RFC' s limitation of Plaintiff to "unskilled work involving routine tasks requiring no more than superficial interaction with others and no close cooperation or coordination." Tr. 15. As an uncontradicted evaluative opinion, the ALJ was required to provide clear and convincing reasons for rejecting Dr. Greif's opinion. Dr. Lester, 81 F.3d at 830-31. Greif noted that Plaintiff was markedly limited in her abilities to interact appropriately with the public and respond appropriately to usual work situations and to changes in a routine work setting. Tr. 738. Additionally, Dr. Greif found Plaintiff moderately limited in her abilities to interact appropriately with supervisors and co-workers related decisions. Tr. and make 737-38. judgments on simple work- As to Plaintiff's abilities to carry out instructions and make work-related judgments, Dr. Greif 12 - OPINION AND ORDER wrote, "She understands. importantly, control, psychological factors impair [and] ability to persist on work." original) but, Memory may be impaired somewhat, behavioral judgment, Tr. 7 37 (emphasis in As to Plaintiff's abilities to interact with others and respond appropriately to usual work situations, "low frustration tolerance, doesn't persist. Dr. Greif wrote In my setting, as a person of authority, claimant had trouble [and] showed variability Tr. 738. in cooperation." The ALJ partially rejected Dr. Greif's opinion because the medical evidence as a whole, as well as Plaintiff's activities of daily living, supported the limitations in the RFC. Tr. 21. At the outset, I note Dr. Greif's opined limitations are largely- if The limitations to perhaps completely - accommodated by the RFC. only superficial cooperation or interaction coordination, with are others, including significant no limitations close that directly address Dr. Greif's concerns about Plaintiff's ability to interact with, and control her behavior in relation to, others at work. With respect to Dr. Greif's opinion as to Plaintiff's ability to make work-related judgments, respond to usual work situations, and persist in work, I find the ALJ's limitation of Plaintiff to only unskilled, routine work accommodates many, if not all, of Dr. Greif's opined limitations. Nonetheless, to the extent Dr. Greif opined that Plaintiff could not complete unskilled, routine work 13 - OPINION AND ORDER even when her interaction with others was significantly limited, the ALJ reasonably found that such a limitation is inconsistent with Plaintiff's activities of daily living and the medical record, including Dr. Greif's own examination. In Dr. Greif's examination, Plaintiff "worked on the MMPI-2 independently and calmly for over 2 ~ hours." Plaintiff Tr. reported television, and As 731. that cleans. to her activities of daily living, text watches she Tr. sends 42. Asked messages, what she can clean, Plaintiff answered "everything," and that her alleged obsessive compulsive disorder compels her to keep the house "immaculate[ly] clean." Tr. 42, 59. While, as the ALJ acknowledged, these alleged activities of daily living are not especially extensive, the fact that Plaintiff testified she devotes a significant amount of time and energy to cleaning belies Dr. Greif's opinion that Plaintiff is unable to persist in work activities and make simple work-related judgments, especially considering the two jobs the ALJ found available to Plaintiff - Housekeeping/Room Cleaner and Laundry Sorter - are jobs that involve cleaning. Moreover, Plaintiff's ability to work on a personality questionnaire independently for two-and-one-half hours further undercuts Dr. Greif's opinion to the extent interpreted to indicate Plaintiff cannot persist in unskilled, routine work tasks that do not require more than superficial contact with others. 14 - OPINION AND ORDER In sum, I conclude the RFC is largely consistent with Dr. Greif's opinion. to preclude To the extent Dr. Greif's opinion is interpreted Plaintiff from work involving the performance of unskilled, routine tasks with no more than superficial contact with others, I find that the ALJ cited clear and convincing reasons to partially discredit Dr. Greif's opinion. The ALJ appropriately weighed the medical testimony. CONCLUSION For the foregoing reasons, the decision of the ALJ AFFIRMED. IT IS SO ORDERED. DATED this~ day of March, 2014. Malcolm F. Marsh United States District Judge 15 - OPINION AND ORDER is

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