Steen v. Commissioner Social Security Administration, No. 3:2013cv01421 - Document 21 (D. Or. 2014)
Court Description: OPINION AND ORDER. Signed on 11/21/2014 by Judge Malcolm F. Marsh. (pvh)
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Steen v. Commissioner Social Security Administration Doc. 21 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DOUGLAS ANDREW STEEN, Plaintiff, Case No. 3:13-cv-01421-MA OPINION AND ORDER v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. SARA L. GABIN 14523 Westlake Drive Lake Oswego, OR 97035-8651 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney District of Oregon ADRIAN L. BROWN RON SILVER Assistant United States Attorneys 1000 S.W. Third Ave., Suite 600 Portland, OR 97204-2902 NANCY A. MISHALANIE Social Security Administration Office of the General Counsel 701 Fifth Ave., Suite 2900, M/S 901 Seattle, WA 98104-7075 Attorneys for Defendant 1 - OPINION AND ORDER Dockets.Justia.com MARSH, Judge Plaintiff Douglas Andrew Steen seeks judicial review of the final decision of the Commissioner of Social Security denying his application for Supplemental Security Income (SSI) disability benefits under Title XVI of the Social Security Act, 42 U.S.C. 1381-1383f. This Court has jurisdiction pursuant to 42 U.S.C. 1383(c) (3). §§ For the reasons that follow, I affirm the final § decision of the Commissioner. PROCEDURAL AND FACTUAL BACKGROUND Plaintiff protectively filed an application for SSI on April 27, 2009, memory alleging disability beginning April 27, problems, depression, anxiety, 2009, due to post-traumatic stress disorder, degenerative disc disease of the neck and back, hearing loss, numbness in both legs, and sleep apnea. Plaintiff's reconsideration. claims were denied initially and upon Plaintiff filed a request for a hearing before an administrative law judge (ALJ). An ALJ held a hearing on April 19, 2012, at which plaintiff appeared with his attorney and testified. A vocational expert, Richard M. Hincks also appeared at the April 19, 2012 hearing and testified. unfavorable decision. The On May 21, 2012, the ALJ issued an Appeals Council denied plaintiff's request for review, and therefore, the ALJ's decision became the final decision of the Commissioner for purposes of review. 2 - OPINION AND ORDER Born in 1968, plaintiff was application was filed. eleventh grade, 4 4 years old on the date his Plaintiff completed school through the and has failed several attempts to earn a GED. Plaintiff was in special education classes in school, and does not read and write proficiently. eight months in the Army. After high school, plaintiff served Plaintiff has past relevant work as a satellite installer. THE ALJ'S DISABILITY ANALYSIS The Commissioner has established a five-step sequential process for determining whether a person is disabled. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. Each step is potentially disposi ti ve. burden of proof at steps one through §§ Bowen v. 404.1520; 416.920. The claimant bears four. See Valentine the v. Commissioner Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009); Tackett v. Apfel, 180 F. 3d 1094, 1098 five, burden shifts the to the (9th Cir. Commissioner to 1999) . At step show that the claimant can do other work. which exists in the national economy. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). At step one, the ALJ found that plaintiff has not engaged in substantial gainful activity since his alleged onset of disability. At step two, the ALJ found that plaintiff had the following severe impairments: personality disorder, disease of the lumbar and cervical substance abuse; and depression. 3 - OPINION AND ORDER antisocial; degenerative disc spine/scoliosis; obesity; At step three, the ALJ found that plaintiff's impairments, or combination of impairments, did not meet or medically equal a listed impairment. The ALJ assessed plaintiff with a residual functional capacity (RFC) to perform less than a .full range of light work in that plaintiff can lift 20 pounds with his dominant arm and 10 pounds with his non-dominant arm; can sit, stand or walk six hours in an eight hour day; can occasionally rotate his neck; cannot crouch or crawl; cannot drive; cannot work around the public, but can have occasional contact with coworkers; and is limited to simple, repetitive tasks. At step four, the ALJ found plaintiff is unable to perform any past relevant considering work. At plaintiff's step age, five, the education, ALJ work concluded that experience, and residual functional capacity, jobs exist in significant numbers in the national economy that plaintiff can perform, electronics worker, food assembler, and hand packer. such as Accordingly, the ALJ concluded that plaintiff has not been under a disability under the Social Security Act from April 27, 2009 through the date of the decision. ISSUES ON REVIEW On appeal to this court, plaintiff contends the ALJ committed the following errors: (1) failed to find the diagnoses of delusional disorder, paranoid disorder, and hearing loss severe at Step Two; (2) erroneously discounted plaintiff's testimony; 4 - OPINION AND ORDER ( 3) failed to give controlling weight to the opinions of Nurse Practitioners Valerie Cecil and Marguerite Gareau; (3) erroneously rejected the Addington; and lay (4) testimony of Dominique Eckhart and Robin the RFC fails to include all of plaintiff's limitations. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if the Commissioner applied proper legal standards and the findings are supported by substantial evidence in the record. 405(g); Berry v. Astrue, 622 F.3d 1228, 1231 42 U.S.C. (9th Cir. § 2010). "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." Hill, 698 F.3d at 1159 (internal quotations omitted); Valentine, 574 F.3d at 690. The court must weigh all the evidence, whether it supports or detracts from the Commissioner's decision. 807 F.2d 771, 772 (9th Cir. 1986). Martinez v. Heckler, The Commissioner's decision must be upheld, even if the evidence is susceptible to more than one rational interpretation. Admin., 359 F.3d 1190, 1193 Batson v. (9th Cir. Commissioner Soc. 2004). Sec. If the evidence supports the Commissioner's conclusion, the Commissioner must be affirmed; "the court may not substitute its judgment for that of the Commissioner." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 5 - OPINION AND ORDER DISCUSSION I. Step Two Plaintiff argues the ALJ erred by failing to include his paranoid disorder, delusional disorder, and hearing loss as severe impairments at Step Two. inquiry, "At step two of the five-step sequential the Commissioner determines whether the claimant has a medically severe impairment or combination of impairments." v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996). "severe" for Step Two purposes if it, impairments, mental "significantly limits ability 404 .1520 (c). to do basic See also Smolen, An impairment is in combination with other [the claimant's) work Smolen activities." 80 F.3d at 1290. physical or 20 C.F.R. § A claimant can only establish a medically determinable impairment at Step Two "if the record includes signs - the results of 'medically acceptable clinical symptoms, diagnostic i.e., impairment." [the techniques,' claimant's) Ukolov v. Barnhart, such as tests representations 420 F.3d 1002, as well regarding as his 1005 (9th Cir. de minimis screening 2005) . Ultimately, device however, to dispose Step of groundless Two "is a claims," and an impairment or combination of impairments will only be found "not severe" if "the evidence establishes a slight abnormality that has 'no more than a minimal effect on an individual's ability to work.'" Smolen, 80 F.3d at 1290 (quoting Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 6 - OPINION AND ORDER 1988)). An error in failing to list a condition at Step Two is harmless if the ALJ considers the limitations allegedly omitted condition in formulating posed the RFC. by the Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Here, the ALJ did not include the diagnoses of paranoid or delusional disorder as severe impairments at Step Two, but did include the diagnosis of antisocial personality disorder and the ALJ analyzed required, plaintiff's at Step Three, mental limitations extensively, as and again when formulating plaintiff's RFC. To be sure, plaintiff does not now identify any specific functional limitations connected with his alleged paranoid and delusional disorders that the ALJ failed to consider when evaluating plaintiff's antisocial personality disorder and mental heal th limitations in the RFC. Instead, plaintiff primarily complai.ns that the ALJ erred by failing to specifically consider and discuss paranoid and delusional disorder diagnoses because they "show prima fascia (sic) disability" and were proffered by Ms. Gareau, a nurse practitioner. See Plaintiff's Reply (#20), p. 8. Plaintiff's arguments concerning Ms. Gareau's diagnoses are more properly directed at the ALJ's evaluation of her opinion in the RFC as9essment at Step Four, which. I address at length below. Thus, even assuming arguendo that the ALJ erred by failing to explicitly include plaintiff's paranoid and delusional disorders at Step Two, 7 - OPINION AND ORDER the error was harmless because Step Two was resolved in plaintiff's favor and the functional limitations caused by these impairments were considered by the ALJ in the remaining steps of the sequential evaluation. Id. Plaintiff has therefore failed to show reversible error in the consideration of his paranoid or delusional disorder at Step Two. I likewise conclude that the ALJ's determination that plaintiff's alleged hearing loss was nonsevere at Step Two is not reversible error. As the ALJ found, there is no objective testing in the record to verify that plaintiff has 50 percent hearing loss in both hears. See 20 C.F.R. § 416.908 (an impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings); Id. at§ 416.920 (at Step Two, claimant must demonstrate a medically determinable impairment). And, as the ALJ indicated, plaintiff testified at the hearing that when he wears his hearing aids, he can "hear a pin drop." Thus, plaintiff has failed to demonstrate that his hearing loss significantly limits his ability to perform basic work activities. 416.920(c). plaintiff's See 20 C.F.R. § Accordingly, I conclude the ALJ permissibly found that hearing loss impairment at Step Two. Ill/ Ill/ Ill/ 8 - OPINION AND ORDER was not a medically determinable II. Plaintiff's Credibility A. Standards Plaintiff testimony. contends that the ALJ improperly rejected his To determine whether a claimant's testimony regarding subjective pain or symptoms is credible, an ALJ must perform two 20 C.F.R. stages of analysis. § 416.929, The first stage is a threshold test in which the claimant must produce objective medical evidence of an underlying impairment that expected to produce the symptoms alleged. F.3d 1104, 1112 (9th Cir. 2012); 1035, 1039 (9th Cir. 2008). could reasonably be Molina v. Astrue, Tommasetti v. Astrue, 674 533 F.3d At the second stage of the credibility analysis, absent affirmative evidence of malingering, the ALJ must provide clear claimant's and convincing testimony Carmickle v. reasons regarding the Commissioner Soc. Sec. for severity Admin., discrediting of the the symptoms. 533 F.3d 1155, 1166 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th . Cir. 2007). The ALJ must make findings that are sufficiently specific to permit the reviewing court to conclude that arbitrarily discredit the claimant's testimony. the ALJ did not Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014); Tommasetti, 533 F.3d at 1039. Factors the determinations claimant's ALJ may consider include treatment 9 - OPINION AND ORDER the history, when objective the making such medical credibility evidence, the claimant's daily activities, inconsistencies in testimony, effectiveness or adverse side effects of any pain medication, and relevant character evidence. Ghanim, 763 F.3d at 1163; Tommasetti, 533 F.3d at 1039. B. Plaintiff's Testimony At the hearing, plaintiff testified that he was last employed full time by Dish Net in 2004. Plaintiff appeared at the hearing wearing a soft cervical collar, which he decided to wear on his own because it helps with his neck pain. that he has neck problems, Tr. 47. back problems, lost scoloiosis, and is about 110 pounds overweight. CPAP machine all day to help him breathe. described that he takes Celexa anxiety. Plaintiff testified for that Plaintiff stated a 48. depression and has has Plaintiff uses a Tr. he kidney, hearing Plaintiff Latuda loss of for 50 percent in both ears, but forgets to wear his hearing aids because he has trouble with ear wax. Tr. 51. Plaintiff stated that he stopped working installing satellite dishes because he could no longer perform the job physically. Plaintiff described having difficulty bending, kneeling, and that moving around bothers his back and neck. Tr. 53. Plaintiff testified that he could sit for 20 minutes before needing to change position due to pain, and that lying down is the only thing that gives him pain relief. 15 minutes, Plaintiff testified that he can stand for can lift and carry 10 pounds in his left arm and 15 pounds with his right, and can walk 100 yards three to four times 10 - OPINION AND ORDER a day. Tr. 55, 57. Plaintiff described that he can do household chores for 20 minutes before needing to rest. Plaintiff testified that two or three year ago, he had trouble getting along with others and experiencing paranoia, but is now on medications, with a good treatment plan, and described that "things have been going really good, "foresee any future problems." doing great" and that he did not Tr. 56. In a May 4, 2008 Function Report, plaintiff stated that after taking his dog for a walk, he needs to rest for two to three hours. Tr. 17 8. Plaintiff stated that he cannot stand long enough to prepare meals and does not handle stress or changes in routine well. In a May 2008 Pain and Fatigue Questionnaire, stated that he has pain in his back and neck all day, every day, and that the pain makes it difficult to bend, stoop or kneel. Tr. 183. In an August 10, 2009 Function Report, plaintiff stated that he was living in his car, and that his back and neck hurt so much that it wakes him three to four times a night. Plaintiff stated Tr. 190. along with that it is difficult to dress and bathe due to pain. Plaintiff described that he has difficulty getting family, friends, and neighbors, and prefers to be alone. Tr. 194. Plaintiff stated he can concentrate for 10 minutes, then loses his patience. In an August 10, 2009 Pain and Fatigue Questionnaire, plaintiff stated that he has burning, aching, and stabbing pain in 11 - OPINION AND ORDER his neck and back that lasts all day and is worse with moving. that report, plaintiff estimated he can be active for 20 to 40 minutes before needing to rest. C. In Tr. 197. The ALJ Provided Clear and Convincing Reasons to Discount Plaintiff's Testimony In the decision, the ALJ concluded that plaintiff's testimony concerning the intensity, persistence and limiting effects of his limitations reasons, is when not The ALJ cited numerous entirely credible. taken together, constitute clear and convincing reasons to reject plaintiff's testimony. First, as the ALJ discussed, there were multiple indications in the record of malingering and symptom magnification concerning plaintiff's physical and mental impairments. findings The ALJ discussed from a comprehensive examination on April 12, Robert E. Schneider, Ph.D. Tr. 305. Dr. 2006, by Schneider opined that plaintiff's presentation and the objective test results provided "definitive evidence of misrepresentation and malingering." 308. As the ALJ noted, assess work functions." 1228, 1235 (9th. Cir. Tr. Dr. Schneider noted it was "impossible to Tr. 308. See Berry v. Astrue, 2010) (upholding negative 622 F.3d credibility assessment where affirmative evidence of malingering present). Additionally, the ALJ discussed an April 24 f 2008 psychodiagnostic evaluation by Ronald D. Duvall, Ph.D., which also found noted, numerous Dr. inconsistencies and exaggerations. As the ALJ Duvall indicated that despite complaining "loudly" of 12 - OPINION AND ORDER back pain, plaintiff sat comfortably during the entire 90 minute examination. As the ALJ accurately discussed, Dr. Duvall found plaintiff's perception of being persecuted and mistreated as a "strongly paranoid" element to his personality, along with "selfpity, somatization, and projections of his problems onto others." Tr. 30, 338. Dr. Duvall also found that plaintiff's complaints of memory loss were unsupported by clinical observations, and that plaintiff made "blatant" inconsistencies when he realized he was "claiming his long-term memory to be defective." Duvall opined persistence that were plaintiff's unaffected by his 339. Dr. concentration, attention, and limitations, Tr. and that his ability to engage in appropriate social interactions is limited, but would not exclude the type of employment plaintiff has had previously. Tr. 340. The ALJ' s unchallenged assessment of Dr. Duvall's opinion is wholly supported by substantial evidence. The supported ALJ's by finding the ALJ's of symptom discussion magnification of an is October further 8, psychodiagnostic examination from Daniel L. Scharf, Ph.D. 2009 As the ALJ noted, Dr. Scharf found numerous inconsistencies in plaintiff's examination. For example, Dr. Scharf noted that plaintiff reported having typical back pain of 12 on a 10-point scale, reported his pain level at a six. Tr. 390. but later As the ALJ noted, Dr. Scharf found plaintiff's statements about drug and alcohol use vague and evasive, stating that plaintiff indicated drinking would 13 - OPINION AND ORDER violate his probation, but later reported drinking beer and going to a party. Tr. 31, 390-91. Dr. Scharf indicted that plaintiff inconsistently reported his symptoms of paranoia, and as the ALJ noted, Dr. Scharf found that plaintiff was not psychotic, blamed others and deflected responsibility, antisocial personality disorder. Plaintiff acknowledges consider consistent with an Tr. 393. that multiple exaggeration and malingering exist, should not them because instances of symptom but contends that the court plaintiff's exaggeration instances Schneider, Duvall, of malingering and and I disagree. gradiosity are part of his anti-social disorder. multiple but The exaggeration from Drs. and Scharf readily support the ALJ's finding that plaintiff's self-reports are unreliable. Notably, plaintiff does not challenge the ALJ's evaluation of Ors. Schneider, Duvall, and Scharf. Even if I were to agree with plaintiff's characterization of the evidence, the ALJ's interpretation of the evidence is evidence, and therefore must be sustained. 1111 (ALJ' s reasonable, findings is must be wholly upheld supported if by substantial Molina, 674 F.3d at they are supported by reasonable inferences drawn from the record) . I conclude the ALJ has cited a clear and convincing reason to discount plaintiff's testimony. Second, the ALJ discounted plaintiff's subjective complaints because they are inconsistent with the objective medical evidence. 14 - OPINION AND ORDER As the ALJ correctly noted, contrary to plaintiff's allegations, physical examinations have revealed mild tenderness, negative straight leg testing, and normal gait, without deformity. And, the ALJ accurately noted that plaintiff was advised to lose weight and exercise, but that plaintiff was resistant to changing his diet, finding plaintiff non-compliant with treatment. Tr. 658, 811, 869. An "'unexplained, or inadequately explained, failure ... to follow a prescribed course of treatment'n is a proper reason to reject a claimant's testimony. Molina, 674 F.3d at 1113 (quoting Tommasetti, 533 F.3d at 1039); accord Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012). Also, plaintiff was encouraged to take his management, medications for pain but plaintiff finds the medications ineffective, and prefers to use medical marijuana for pain control. Tr. 309, 861, 864, 869. Plaintiff contends that his complaints of chronic back and neck pain, and his moderate to severe degenerative disc disease are supported by MRI findings and other records. 712-13. While I Tr. 309-11, 381, 709, agree with plaintiff that there is objective evidence in the record demonstrating degenerative disc disease, in light of the ALJ's other negative credibility findings, the ALJ reasonably determined plaintiff's back and neck pain is not as disabling as alleged. complaints of For example, as discussed above, plaintiff's intractable observations of Drs. back pain Duvall and Scharf. 15 - OPINION AND ORDER were And, inconsistent with as the ALJ noted, there marijuana for pain control, but was using it "pretty much the whole day." Tr. 425, 549, is evidence 609, 755. acknowledging admitted to plaintiff Furthermore, that drinking consuming medical as the violates alcohol treatment in August of 2010. whole, uses Tr. and ALJ his discussed, probation, declined 425. drug despite plaintiff or alcohol Viewing the record as a I conclude that the ALJ reasonably discounted plaintiff's testimony on this basis. Additionally, as discussed above, the ALJ properly determined that plaintiff's complaints of memory loss were undermined by clinical findings and objective testing. completely In addition to the contrary findings by Ors. Schneider, Duvall and Scharf, the ALJ discussed normal mental status findings with intact memory and concentration during other medical visits. Tr. 283, 310. As the ALJ correctly indicated, plaintiff testified that his mental heal th has significantly improved on medication. The longitudinal medical evidence also indicates that when plaintiff consistently takes his medications, he is psychiatrically stable. The ALJ discounted plaintiff's allegations of significant mental health symptoms and limitations because plaintiff's depression and anxiety were controlled with medications and his alleged memory loss is contrary to the objective medical evidence. These are compelling reasons, supported by substantial evidence, to reject plaintiff's testimony. 16 - OPINION AND ORDER Third, the ALJ appropriately discounted plaintiff's testimony on the basis that he may have been exaggerating symptoms in order to gain access to benefits. The ALJ detailed that plaintiff was periodically homeless, . received support from his mother, history of bankruptcy, ALJ's findings reasonable, 1040 are had a and was being hounded by creditors. supported by substantial and will not be disturbed. evidence, Tomassetti, The are 533 F. 3d at (ALJ properly inferred that claimant was seeking benefits because financial reserve had run out) . Fourth, the ALJ appropriately discounted plaintiff's testimony based on his reasons he was terminated from his last employment as a satellite installer. As the ALJ inconsistent correctly statements about indicated, plaintiff the provided inconsistent reports about how he lost his job: multiple (1) that he lost his job because business slowed down, but his stepfather forgot to tell him that he had been laid off, continued to report for work; back pain; and (3) plaintiff (2) he lost his job due to neck and he was fired from his job at the time he was using methamphetamine. that and he was fired when he Tr. 45, 305, 884. offered inconsistent The ALJ's determination statements concerning his termination is supported by substantial evidence, and is another convincing reason to discredit his 278 F.3d 947, 959 (9th Cir. testimony. 2002) (poor Thomas v. Barnhart, work history is an appropriate credibility factor to consider); Tommasetti, 533 F.3d 17 - OPINION AND ORDER at 1039-40 (inconsistent statements about why claimant stopped working a valid adverse credibility consideration) . I conclude the above reasons, taken together, constitute specific, clear, and convincing reasons to discredit plaintiff's testimony. Plaintiff argues that the ALJ selectively relies upon the evidence supporting nondisability, indicating that plaintiff does not realize overlooked he is paranoid evidence community support that and delusional, plaintiff and relies to meet his basic needs. that upon the ALJ significant Plaintiff correctly indicates that he appears to have support from various community providers who assist with housing and medications, and ensure that plaintiff reports to his probation officer. However, plaintiff's efforts to explain away his lack of credibility is Numerous examining providers found blatant inconsistencies in plaintiff's reporting of his physical and mental symptoms that are supported by substantial evidence. ALJ's interpretation of this I cannot conclude that the evidence is unreasonable irrational, even if I would conclude differently. Molina, court must uphold the ALJ's findings. This court may Commissioner. not substitute its judgment or Therefore, the 674 F.3d at 1111. for that of the Edlund, 253 F.3d at 1156. Finally, in the decision, the ALJ also discounted plaintiff's credibility because his activities of inconsistent with his subjective limitations. 18 - OPINION AND ORDER daily living were I conclude .that this reason is not supported by substantial evidence. ALJ discredited furniture. plaintiff noting that he For example, the was able This finding is not supported by the record. to move While the record does disclose that plaintiff frequently walks his dog, is able to do laundry, shop, prepare simple meals, and drive himself to appointments, these activities are not so extensive that they are inconsistent with his alleged capabilities. ALJ erred in discounting seeking _behavior. plaintiff's Additionally, the testimony based on drug- While plaintiff has sought emergency room care, no emergency room provider has indicated that plaintiff was, fact, drug seeking. Tr. 312, 315, 368, 379-88. is not supported by substantial evidence. in Thus, this finding Accordingly, I conclude the ALJ erred in discounting plaintiff's testimony on these bases. In sum, although the ALJ's credibility reasoning does contain two errors, the errors credibility finding. amount to clear do not invalidate the overall adverse Because the ALJ's remaining reasons still and convincing support and are backed by substantial evidence, the errors in the ALJ's credibility rationale are harmless. II. See Carmickle, 533 F.3d at 1162-63. Medical Evidence A. To Standards reject the examining physician, reasons. uncontroverted opinion of a treating or the ALJ must present clear and convincing Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 19 - OPINION AND ORDER If a treating or examining doctor's opinion is contradicted by another doctor's opinion, legitimate reasons. it may be rejected by specific and Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). When evaluating conflicting opinions, an ALJ is not required to accept an opinion that is not supported by clinical findings, or is brief or conclusory. Id. Under the social security regulations governing the weight to be accorded to medical opinions, "acceptable medical include licensed physicians and licensed psychologists, nurse practitioners. See 20 C.F.R. §§ sources" but not 416.913(a), (d) (1). practitioners are deemed to be "other sources." Nurse "Other" Id. medical sources may not establish the existence of a medically determinabJe impairment, but, the information from other sources may provide insight into the severity of a claimant's impairments and ability to work, especially where the evidence is complete and 20 C.F.R. detailed. § 416.913(d); 995, 1014 (9th Cir. 2014). Garrison v. Astrue, 557 F.3d 1113, 759 F.3d An ALJ must provide a germane reason for rejecting the opinion from an "other source." v. Colvin, 1115-16 (9th Cir. See, e.g., Bruce 2009) (explaining standard for lay witness testimony); Turner v. Commissioner of Soc. Sec. Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). B. Ms. Gareau, PMHNP Plaintiff complains that the ALJ erred in failing to give controlling weight to 20 - OPINION AND ORDER the opinion of Marguerite Gareau, a psychiatric mental health nurse practitioner (PMHNP). argues that Ms. Gareau was plaintiff's Plaintiff primary mental health provider, treating him for over two years, and that Ms. Gareau's opinion could only be discounted for clear and convincing reasons. Ms. Gareau was plaintiff's primary mental health provider at Sequoia Mental Health Services, Inc. (which plaintiff describes as a "community care" team) and treated plaintiff from approximately September 8, 2009 to April 12, 2012. Ms. Gareau met with medications, and appears Tr. 622, 824. plaintiff, to have prescribed assisted In that role, mental with health plaintiff's coordination of care among various social workers and probation officers. In her treatment notes, Ms. Gareau consistently diagnosed delusional disorder, depressive disorder, and a rule out schizoaffective disorder. Tr. 625. As the ALJ accurately detailed in the decision, Ms. Gareau responded to questions provided by plaintiff's attorney for use in plaintiff's pursuit of social security benefits. Tr. 738. In the June 15, 2011 questionnaire, Ms. Gareau opined that plaintiff has schizoaffecti ve disorder, bipolar type. Tr. 738. Ms. Gareau stated that plaintiff is aware of being depressed, but generally presents in a mixed state, with pressured speech, grandiosity, and anger. Ms. Gareau stated that plaintiff has no insight into his illness, believing he has only depression and anxiety. Ms. Gareau opined that plaintiff has great difficulty with concentration, 21 - OPINION AND ORDER persistence and pace, eight hours, difficulty with simple, and would require mental illness. Tr. 739. special routine tasks for supervision due to his Ms. Gareau also opined that plaintiff's marijuana use was not responsible for his psychiatric symptoms. Tr. 740. In the decision, the ALJ thoroughly discussed the medical evidence from various treatment providers, and assigned some weight Dr. Schneider's opinion, opinion, . substantial significant weight to Dr. weight to Scharf's Dr. Duvall's opinion, and significant weight to the opinions of the state agency reviewing physician's opinions. Plaintiff does assessment of any of these opinions. not challenge the ALJ' s Even if the ALJ were to treat Ms. Gareau as an acceptable medical source, because her opinions are contradicted, the ALJ was required only to provide specific and legitimate reasons to discount them. The weight," ALJ gave providing discounted Ms. Ms. Gareau' s several Gareau' s June germane 15, 2011 reasons. June 2011 diagnosis of opinion First, "little the ALJ schizoaffective disorder because she is not an acceptable medical source, and under the regulations, her observations and opinion cannot establish an impairment. 20 C.F.R. § 416.913 (a), (d) (only acceptable medical sources may establish a medically determinable impairment, but "other sources" may provide evidence to show the severity of that impairment) . The record does not show that Ms. Gareau worked under 22 - OPINION AND ORDER a physician's close supervision. Molina, 674 F.3d at 1111. Thus, contrary to plaintiff's suggestion, the ALJ accurately noted that Ms. Gareau's opinion could not establish the impairment of schizoaffective disorder. Second, as the ALJ noted, no acceptable medical source has diagnosed plaintiff with schizoaffecti ve disorder, and thus the ALJ found Ms. Gareau's opinion inconsistent with the other objective evidence in the record, and appropriately discounted her opinion on that basis. Tr. 305, 335, 389; see also Molina, 674 F.3d at 1111 (ALJ appropriately discounted physician assistant's opinion where it conflicted with psychiatrist's opinion); Bayliss, 427 F.3d 1218 at (inconsistency with objective medical evidence is a germane basis to for discounting a lay opinion) . To be sure, plaintiff does not challenge the ALJ's evaluation of the opinions of Drs. Schneider, Scharf, schizoaffective and disorder, Duvall, but none instead of whom found diagnosed plaintiff was exaggerating mental health symptoms. Third, as the ALJ discussed, in Ms. Gareau's treatment notes, she lists schizoaffective disorder solely as a rule out diagnosis, indicating the diagnosis was not definitive. The ALJ determined Ms. Gareau's June 15, 2011 opinion listing schizoaffective disorder as plaintiff's primary diagnosis is therefore inconsistent with her own treatment notes, and discounted it on that basis. 674 F.3d at 1111-12 See Molina, (recognizing that a conflict with treatment 23 - OPINION AND ORDER notes is a germane reason to reject a treating physician's assistant's opinion). The ALJ also gave little weight to an October 22, 2009 mental In that report, Ms. Gareau status report authored. by Ms. Gareau. noted that plaintiff reported a history of depression, plaintiff presented with significant paranoid and and that grandiose delusions with significant homicidal and suicidal ideation. 396. Tr. Ms. Gareau opined that plaintiff has difficulties with social functioning, and has significant deficits in recall and memory and difficulty concentrating. Tr. 398. 2009 reasons: report for numerous The ALJ discounted the October it was based on solely ( 1) plaintiff's unreliable self-reports; was (2) other objective evidence in the record; inconsistent with (3) Ms. Gareau failed to consider substance abuse; and (4) Ms. Gareau is not an acceptable The ALJ' s medical source. reasoning readily supplies multiple germane reasons, backed by substantial evidence, Ms. Gareau's October 2009 report. In short, I conclude that Turner, the ALJ for discounting 613 F.3d at 1224. has provided multiple germane reasons, supported by substantial evidence, to discount Ms. Gareau's opinions. Alternatively, I also conclude that when these reasons together, are taken the ALJ has provided specific legitimate reasons to discounting Ms. Gareau's opinions. did not err. Ill/ 24 - OPINION AND ORDER and The ALJ C. Valerie Cecil, FNP Plaintiff little also complains weight to the that opinion of the ALJ erred Valerie Cecil, in assigning Family Nurse Practitioner (FNP) On July 27, 2011, plaintiff appeared at Ms. Cecil's a office complete attorney. with necessary Tr. 764, support disability person and paperwork and In that opinion, 741. asked Ms. return Ms. Cecil it to to his Cecil diagnosed plaintiff with cervical spine stenosis, degenerative disk disease, scoliosis, depression, carcinoma. Tr. 741. and a history of renal cell Ms. Cecil indicated that plaintiff's pain, as reported by plaintiff, scale daily. sleep apnea, is between four and eight on a 10-point Additionally, with respect to plaintiff's physical functional limitations, Ms. Cecil noted that plaintiff assessed his own limitations as follows: he can occasionally lift 20 pounds, frequently lift five to 10 pounds; can stand or walk for less than two hours total in an eight hour day, with customary breaks, and could stand or walk for 15 minutes at a time before needing a break; he could sit for less than two total hours, and would need to change from sitting, standing, and' walking every 20 minutes; he would need to rest every 45 to 60 minutes; and cannot maintain concentration, persistence, and pace at either light or sedentary exertion due to pain. Tr. 743-45. Ms. Cecil's contradicted by the state agency reviewing physicians. 25 - OPINION AND ORDER opinion is In the decision, the ALJ gave little weight to Ms. Cecil's opinion because the physical limitations were admittedly based on plaintiff's self-reports, no objective testing was performed at the time of the assessment, and Ms. Cecil is not an acceptable medical source. Tr. 32. findings record. are Having carefully reviewed the record, the ALJ's wholly supported by substantial evidence in the As discussed above with respect to Ms. Gareau, the reasons cited by the ALJ are germane reasons, or alternatively, specific and legitimate reasons, sufficient to discount her opinion. The ALJ did not err. III. Lay Testimony Lay witness testimony as to a claimant's symptoms or how an impairment affects his ability to work is competent evidence, which the ALJ must take into account. v. Commissioner, Soc. See Bruce, 557 F.3d at 1115; Stout Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). The ALJ is required to account for competent lay witness testimony, and if it is rejected, germane reasons for doing so. in failing 574 F.3d at 694. Valentine, A. provide Dominique Eckard Plaintiff complains that the ALJ erred incorporate limitations described by his mother. plaintiff's mother, Function report. Dominique Tr. 26 - OPINION AND ORDER 184. to On March 6, 2008, Eckard, completed a In that report, Ms. Third Party Eckard indicated that she sees plaintiff once a month, and that plaintiff is able to take care of all the things he needs to get through including walking his dog two to three times a day. reported that plaintiff needs reminders to a day, Ms. Eckard groom and take medication, and that plaintiff eats prepared food that he warms in the microwave. laundry, afterward. Ms. Eckard indicated that plaintiff does his own chores, Tr. and 186. goes Ms. to the store, but needs to rest Eckard described that plaintiff was fired from his job at Dish Net because he missed more time than allowable, and does not handle stress. Ms. Eckard reported that plaintiff sometimes gets so depressed that he wants to die. 187. Tr. Ms. Eckard noted that plaintiff uses a walking cane and neck brace, uses hearing aids and wears glasses. The ALJ gave some weight to Ms. Tr. 187. Eckard' s testimony plaintiff can perform his activities of daily living, walking his dog, that such as laundry, household chores, and preparing simple meals because her report is consistent with plaintiff's hearing testimony. about Tr. 29. plaintiff's However, the ALJ found Ms. Eckard's testimony pain complaints to be based on plaintiff's subjective complaints and not supported by the objective evidence in the record. The ALJ's observations are sufficiently germane reasons for discounting Ms. Eckard's testimony. See Bayliss, 427 F.3d at 1218 (ALJ provided germane reasons for rejecting portions 27 - OPINION AND ORDER of lay testimony that was inconsistent with claimant's activities and objective evidence). B. Robin Addington On September 11, 2009, Robin Addington, a housing counselor at Open Door Counseling Center, Inc., completed a Third Party Function Report. Tr. 218. Ms. Addington reported that she sees plaintiff only periodically, when plaintiff comes to the homeless shelter two or three times per week. Ms. Addington reported that plaintiff is homeless his and sleeps in car. Ms. Addington stated plaintiff reports that he walks his dog three times a day, otherwise rests in his car and finds food. that and Ms. Addington states that plaintiff uses a CPAP machine to help him breathe at night, and that sleeping in his car exacerbates his pain. She explained that plaintiff does not have any trouble with personal care, can prepare his own meals and can do his own laundry. Ms. Addington says that plaintiff is antisocial and prefers to be left alone, and described him as paranoid, distrustful and argumentative. Tr. 223. The ALJ gave some weight to Ms. Addington's descriptions of plaintiff's meals, activities, such as his ability to prepare simple take his dog for a walk, drive a car, and shop in stores because those limits were based on her observations at the homeless shelter and were consistent with other evidence in the record. The ALJ discounted Ms. Addington's statements about plaintiff's pain because those limitations 28 - OPINION AND ORDER were likely based on plaintiff's previously discounted subjective statements. The ALJ's partial rejection of Ms. Addington's testimony is supported by substantial evidence and was not error. V. Bayliss, 427 F.3d at 1218. The ALJ did not Err in Assessing Plaintiff's RFC The RFC is the most a claimant can do despite his limitations. 20 C. F.R. 416. 945 (a). § In assessing the RFC, the ALJ must consider limitations imposed by all of a claimant's impairments, even those that are not severe; the ALJ must also evaluate "all of the relevant medical and other evidence." An ALJ' s supported RFC by need substantial the only Id. incorporate evidence restrictions in consistent with testimony. Stubbs-Danielson v. Astrue, the credible record identified in limitations and the must be medical 539 F.3d 1169, 1174 (9th Cir. 2008); see Bayliss, 427 F.3d at 1217 (the ALJ is only required to identify specific, credible limitations in the RFC; "[p] reparing a function-by-function analysis for medical conditions or impairments that the ALJ found neither credible nor supported by the record is unnecessary") . I have not identified any error by the ALJ in assessing plaintiff's credibility or evaluating the medical or lay testimony, and therefore limitations. conclude that the RFC included all credible Because this determination is reasonable in light of the entire record and is supported by substantial evidence, ALJ' s RFC and Step Five finding are affirmed. 29 - OPINION AND ORDER the See Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001); see also Burch v. Barnhart, 400 F. 3d 676, 680-81 (9th Cir. 2005) (the court "must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretationn) . CONCLUSION For the reasons set forth above, the Commissioner's decision denying benefits to plaintiff is AFFIRMED. finil.l This action is DISMISSED. IT IS SO ORDERED. DATED this· ,:Z {day of NOVEMBER, 2014. Malcolm F. Marsh United States District Judge 30 - OPINION AND ORDER
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