Cline v. Commissioner of Social Security, No. 1:2016cv03073 - Document 22 (E.D. Wash. 2017)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF 19 ) and denying (ECF 15 ) Plaintiff's Motion for Summary Judgment; granting Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF WASHINGTON 10 11 12 LEWIS CLINE, No. 1:16-CV-3073-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 13 14 15 16 17 v. COMMISSIONER OF SOCIAL SECURITY, Defendant. 18 19 BEFORE THE COURT are cross-motions for summary judgment. ECF 20 No. 15, 19. Attorney D. James Tree represents Lewis Cline (Plaintiff); Special 21 Assistant United States Attorney Ellinor R. Coder represents the Commissioner of 22 Social Security (Defendant). The parties have consented to proceed before a 23 magistrate judge. ECF No. 3. After reviewing the administrative record and briefs 24 filed by the parties, the Court GRANTS Defendant’s Motion for Summary 25 Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 26 JURISDICTION 27 Plaintiff filed an application for social security disability benefits in January 28 2013, alleging disability since November 1, 2003, due to anger problems, anxiety, ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 depression/suicidal thoughts, high blood pressure, insomnia, left shoulder pain, low 2 back pain, migraines, short term memory loss, and learning disabilities. Tr. 192, 3 213. Plaintiff’s application was denied initially and upon reconsideration. 4 Administrative Law Judge (ALJ) Ilene Sloan held a hearing on May 28, 5 2014, Tr. 39-78, and issued an unfavorable decision on June 26, 2014, Tr. 20-30. 6 The Appeals Council denied review on March 4, 2016. Tr. 1-6. The ALJ’s June 7 2014 decision thus became the final decision of the Commissioner, which is 8 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 9 action for judicial review on April 27, 2016. ECF No. 1, 5. 10 STATEMENT OF FACTS 11 The facts of the case are set forth in the administrative hearing transcript, the 12 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 13 here. 14 Plaintiff was born on November 7, 1966, and was 46 years old on the filing 15 date of his application, January 2013. Tr. 192. He attended school through the 9th 16 grade and later attempts at obtaining a GED have not been successful. Tr. 44. He 17 testified he has never had a driver’s license and, if necessary, will get rides from 18 his father-in-law. Tr. 46. He stated he does not take the bus, but could if required. 19 Tr. 47, 57. However, he testified that because he prefers to not be around people, 20 he would choose to walk if his father-in-law was unable to give him a ride. Tr. 58. 21 In fact, he stated he had recently lost 30 pounds from walking. Tr. 68. When 22 asked how he spends his time, Plaintiff indicated he collects rocks, tries to work 23 with wood, watches television with his wife, and goes to the library. Tr. 48-49. 24 Plaintiff stated he previously had quite a few friends, but those friends were 25 bad influences. Tr. 50. He indicated he currently has very few friends because he 26 has been trying to clean up his life. Tr. 49-50, 61. On August 30, 2010, Plaintiff 27 was released from prison following a 2007 conviction for third degree rape. Tr. 28 50, 311. He testified he also has other criminal convictions. Tr. 50-51. For ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 example, he was convicted of third degree malicious mischief in 2007 after he 2 “busted up” his friend’s car with a club. Tr. 51, 56-57. Plaintiff has a long 3 substance abuse history (methamphetamine) as well. Tr. 51-52, 318. 4 Plaintiff stated he has difficulty reading, but could read simple words. He 5 indicated he does not read the books he checks out at the library, he just looks at 6 the pictures. Tr. 49, 59. Plaintiff said he also has difficulty with learning and 7 concentration. Tr. 62-63, 65. 8 Plaintiff testified he believed he was unable to work because he has a hard 9 time being around people. Tr. 52-53. He indicated it “just takes a small little thing 10 for someone to say or do and I flip out.” Tr. 52. When asked whether he has ever 11 had a job working on his own, Plaintiff replied he did have a job working on his 12 own, but a supervisor or another employee criticized how he was performing the 13 job and he “flipped out.” Tr. 53. Plaintiff stated he had not applied for or tried to 14 find a job in the last three or four years. Tr. 53-54. 15 Plaintiff’s last job was a full time position on an assembly line with Foster 16 Farms. Tr. 52-53, 63, 70. Plaintiff’s earlier testimony related he was not required 17 to perform work release for the Department of Corrections, Tr. 51, and he quit the 18 job at Foster Farms because he injured his shoulder, Tr. 52. However, his later 19 testimony revealed he quit the work release job at Foster Farms as soon as he 20 fulfilled his requirement, despite the belief that he could have kept the position. 21 Tr. 63-64. 22 23 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 24 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 25 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 26 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, 27 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 28 only if it is not supported by substantial evidence or if it is based on legal error. ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 2 defined as being more than a mere scintilla, but less than a preponderance. Id. at 3 1098. Put another way, substantial evidence is such relevant evidence as a 4 reasonable mind might accept as adequate to support a conclusion. Richardson v. 5 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 6 rational interpretation, the Court may not substitute its judgment for that of the 7 ALJ. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 8 169 F.3d 595, 599 (9th Cir. 1999). If substantial evidence supports the 9 administrative findings, or if conflicting evidence supports a finding of either 10 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 11 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). Nevertheless, a decision 12 supported by substantial evidence will be set aside if the proper legal standards 13 were not applied in weighing the evidence and making the decision. Brawner v. 14 Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). 15 SEQUENTIAL EVALUATION PROCESS 16 The Commissioner has established a five-step sequential evaluation process 17 for determining whether a person is disabled. 20 C.F.R. § 416.920(a); see Bowen 18 v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one through four, the burden of 19 proof rests upon the claimant to establish a prima facie case of entitlement to 20 disability benefits. Tackett, 180 F.3d at 1098-1099. This burden is met once a 21 claimant establishes that physical or mental impairments prevent him from 22 engaging in his previous occupation. 20 C.F.R. § 416.920(a)(4). If a claimant 23 cannot do his past relevant work, the ALJ proceeds to step five, and the burden 24 shifts to the Commissioner to show that (1) the claimant can make an adjustment to 25 other work; and (2) specific jobs exist in the national economy which claimant can 26 perform. Batson v. Commissioner of Social Sec. Admin., 359 F.3d 1190, 1193- 27 1194 (2004). If a claimant cannot make an adjustment to other work in the 28 national economy, a finding of “disabled” is made. 20 C.F.R. § 416.920(a)(4)(v). ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 ADMINISTRATIVE DECISION 2 On June 26, 2014, the ALJ issued a decision finding Plaintiff was not 3 disabled as defined in the Social Security Act. 4 At step one, the ALJ found Plaintiff had not engaged in substantial gainful 5 activity since the application date, January 8, 2013. Tr. 22. At step two, the ALJ 6 determined Plaintiff had the following severe impairments: cognitive disorders 7 variously diagnosed as borderline intellectual functioning and learning disorder; 8 depression; anxiety; and a personality disorder. Tr. 22. At step three, the ALJ 9 found Plaintiff did not have an impairment or combination of impairments that 10 meets or medically equals the severity of one of the listed impairments. Tr. 23. 11 The ALJ assessed Plaintiff’s Residual Functional Capacity (RFC) and 12 determined he could perform a full range of work at all exertional levels with the 13 following nonexertional limitations: he can understand, remember and carry out 14 simple, routine, and repetitive tasks; he can have occasional, brief, and superficial 15 contact with the general public, coworkers, and supervisors, but cannot perform 16 tandem tasks or tasks involving a cooperative team effort; and he can adapt to 17 routine changes to the workplace environment. Tr. 25. 18 At step four, the ALJ noted Plaintiff has no past relevant work. Tr. 28. At 19 step five, the ALJ determined that based on the testimony of the vocational expert, 20 and considering Plaintiff’s age, education, work experience and RFC, Plaintiff 21 could perform other jobs present in significant numbers in the national economy, 22 including the jobs of janitor, agricultural sorter and airplane cleaner. Tr. 29-30. 23 The ALJ thus concluded Plaintiff was not under a disability within the meaning of 24 the Social Security Act at any time from January 8, 2013, the date the application 25 was filed, through the date of the ALJ’s decision, June 26, 2014. Id. 26 27 28 ISSUES The question presented is whether substantial evidence supports the ALJ’s decision denying benefits and, if so, whether that decision is based on proper legal ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 standards. Plaintiff contends the ALJ erred in this case by (1) failing to give 2 appropriate weight to the examining opinions of Thomas Genthe, Ph.D., Maria 3 Malcolm, Ph.D., and Charles Quinci, Ph.D.; (2) failing to develop the record by 4 ordering a consultative examination that included IQ testing and to obtain 5 clarification from Dr. Genthe; and (3) improperly discrediting Plaintiff’s testimony 6 regarding the severity and limiting effects of his impairments. ECF No. 15 at 6-20. 7 DISCUSSION 8 A. 9 10 Plaintiff’s Symptom Testimony Plaintiff asserts the ALJ erred by failing to provide valid reasons for finding him not fully credible in this case. ECF No. 15 at 16-20. 11 It is the province of the ALJ to make credibility determinations. Andrews, 12 53 F.3d at 1039. However, the ALJ’s findings must be supported by specific 13 cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent 14 affirmative evidence of malingering, the ALJ’s reasons for rejecting the claimant’s 15 testimony must be “specific, clear and convincing.” Smolen v. Chater, 80 F.3d 16 1273, 1281 (9th Cir. 1996); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). 17 “General findings are insufficient: rather the ALJ must identify what testimony is 18 not credible and what evidence undermines the claimant’s complaints.” Lester, 81 19 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). In this case, the ALJ found Plaintiff’s medically determinable impairments 20 21 could reasonably be expected to cause some of the alleged symptoms; however, 22 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 23 these symptoms were not entirely credible. Tr. 25. The ALJ first determined Plaintiff’s daily activities and social interaction 24 25 were inconsistent with his assertion of disabling functional limitations. Tr. 25. It 26 is well-established that the nature of daily activities may be considered when 27 evaluating credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 The ALJ indicated records show Plaintiff has consistently been cooperative 2 with his providers and that he is capable of visiting others, going shopping and 3 going to the pet store and library. Tr. 25. The ALJ further cited Section 3 of her 4 decision, Tr. 23-24, which more fully described Plaintiff activities of daily living 5 as follows: he and his wife shared household chores including housecleaning, 6 cooking, and grocery shopping; he would walk with his wife; he played computer 7 games and watched television during the day; he enjoyed going to the pet store and 8 visiting family; he made dinner and could perform most daily activities; he enjoyed 9 working on cars on his own; his hobbies included collecting rocks; he was 10 independent in his daily activities in December 2013, scheduling his own 11 appointments and doing his own cooking, cleaning and shopping; he visited his 12 wife’s father; and he would sometimes go to the library and check out books on 13 rocks. Section 3 of the ALJ’s decision also described Plaintiff’s social functioning, 14 indicating Plaintiff socialized with his wife’s father and was capable of shopping 15 and going to the library; he was housed in general population when incarcerated 16 with no indication of any significant issues getting along with other inmates or 17 staff; and he has consistently had productive and appropriate interactions with 18 medical providers. Tr. 24. As noted by the Commissioner, ECF No. 19 at 17, such 19 activities (ability to appropriately interact with medical providers, visit and get 20 along with people socially, go out in the public to the grocery and pet store or to 21 the library, etc.) contradict Plaintiff’s allegation that he was unable to work 22 because he could not be around other people. Tr. 25, 52-53. It was proper for the 23 ALJ to consider this level of activity as inconsistent with Plaintiff’s claim of totally 24 disabling limitations. See Molina v. Astrue, 674 F.3d 1104, 1112-1113 (9th Cir. 25 2012). 26 /// 27 /// 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 The ALJ next held that the objective medical evidence of record did not 2 substantiate Plaintiff’s allegations of disabling limitations. Tr. 26. Plaintiff did not 3 challenge this finding in his opening brief.1 ECF No. 15 at 16-20. 4 A lack of supporting objective medical evidence is a factor which may be 5 considered in evaluating an individual’s credibility, provided it is not the sole 6 factor. Bunnell v. Sullivan, 347 F.2d 341, 345 (9th Cir. 1991); see also Carmickle 7 v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (“Contradiction 8 with the medical record is a sufficient basis for rejecting the claimant’s subjective 9 testimony.”); Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 2007) (in 10 determining credibility, the ALJ may consider “whether the alleged symptoms are 11 consistent with the medical evidence”). 12 The ALJ noted Plaintiff completed chemical dependency and sex offender 13 treatment while incarcerated, but did not have a prolonged history of mental health 14 treatment during his incarceration. Tr. 26. Moreover, records from 2009 indicate 15 Plaintiff was functioning relatively well, his major depressive disorder was in 16 remission in July 2010, and his mental status examination remained mostly normal 17 prior to his release. Tr. 26. A January 2012 psychological evaluation completed 18 by C. Kirk Johnson, Ph.D., opined that although Plaintiff should avoid work 19 environments requiring ongoing interactions with others, Plaintiff was not 20 incapacitated due to his mental health symptoms, Tr. 26, 289, and a May 2012 21 psychological evaluation completed by Charles Quinci, Ph.D., noted Plaintiff may 22 have been malingering but Plaintiff was still found capable of performing entry- 23 level tasks in a low social environment, Tr. 26, 270-271. A June 2012 office visit 24 with Phillip Dove, M.D., related Plaintiff felt well on antidepressant medication. 25 26 1 See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 27 2008) (the Court will not ordinarily consider matters on appeal that were not 28 specifically and distinctly argued in a party’s opening brief). ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 Tr. 26, 281-284. As noted by the ALJ, from that point, there is no indication in the 2 record of any change or deterioration in Plaintiff’s mental health. Tr. 26. 3 As determined by the ALJ, the objective medical evidence of record does 4 not support the disabling symptoms and limitations alleged by Plaintiff in this case. 5 It was proper for the ALJ to conclude Plaintiff’s was not entirely credible because 6 Plaintiff’s alleged level of limitation was not consistent with the medical evidence 7 which reflects Plaintiff’s mental health impairments did not cause completely 8 disabling functional limitations. Tr. 26. 9 The ALJ next described a number of inconsistencies in Plaintiff’s 10 statements. Tr. 26-27. In determining credibility, an ALJ may engage in ordinary 11 techniques of credibility evaluation, such as considering claimant’s reputation for 12 truthfulness and inconsistencies in claimant’s testimony. Burch v. Barnhart, 400 13 F.3d 676, 680 (9th Cir. 2005); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 14 2001). When a claimant fails to be a reliable historian, “this lack of candor carries 15 over” to other portions of his testimony. Thomas v. Barnhart, 278 F.3d 947, 959 16 (9th Cir. 2002). 17 The ALJ noted Plaintiff denied any history of illicit substance abuse in 18 December 2013, Tr. 372, which is not accurate given his lengthy history of 19 methamphetamine dependence, Tr. 26, and that Plaintiff testified he had no adult 20 convictions other than malicious mischief and rape, contrary to the record which 21 shows convictions for burglaries and theft, Tr. 27, 268, 318. Plaintiff did not 22 contest these noted inconsistencies. See Carmickle, 533 F.3d at 1161. 23 The ALJ additionally indicated that contrary to Plaintiff’s reports that he 24 walked as needed to get around, went on morning walks with his wife, Tr. 267, got 25 around by walking if his father-in-law was not available to give him a ride, Tr. 58, 26 and had lost 30 pounds from his walking, Tr. 68, Plaintiff alleged he could stand 27 for only 15 to 20 minutes at a time, Tr. 224. Tr. 26. While the Court agrees with 28 Plaintiff that there are physical dissimilarities between walking and standing, the ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 volume of walking professed by Plaintiff throughout the record appears to 2 contradict an assertion that he could stand for only 15 to 20 minutes at a time. The 3 Court finds the ALJ’s view and interpretation of the record reasonable with respect 4 to this finding. 5 The Court does find that the ALJ erred as to the final two noted 6 inconsistencies. See infra. The ALJ found that Plaintiff testified he had never had 7 a job working alone, but the record reflected this was not true. Tr. 26. However, a 8 review of the hearing testimony reveals Plaintiff actually testified he did have a job 9 working on his own, but a supervisor or another employee criticized how he was 10 performing the job and he “flipped out.” Tr. 53. Plaintiff did not say he has never 11 had a job working alone. 12 The ALJ also found Plaintiff’s statement the he has never taken the bus to be 13 untrue. Tr. 26. However, Plaintiff actually testified that while he does not take the 14 bus, he could if required, Tr. 47, 57, and that because he prefers to not be around 15 people, he would choose to walk as opposed to taking the bus, Tr. 58. Plaintiff did 16 not state that he has never taken the bus. 17 The ALJ erred by finding these “inconsistences” reduced Plaintiff’s 18 credibility. Nevertheless, given the ALJ’s other reasons for finding Plaintiff less 19 than fully credible, as indicated above, including three other supported 20 inconsistencies, the Court finds these two errors harmless. See Carmickle, 533 21 F.3d at 1163 (upholding adverse credibility finding where ALJ provided four 22 reasons to discredit claimant, two of which were invalid); Batson, 359 F.3d at 1197 23 (affirming credibility finding where one of several reasons was unsupported by the 24 record); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (An error is 25 harmless when “it is clear from the record that the . . . error was inconsequential to 26 the ultimate nondisability determination.”). 27 /// 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 The ALJ is responsible for reviewing the evidence and resolving conflicts or 2 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 3 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 4 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 5 determining whether the ALJ’s decision is supported by substantial evidence and 6 may not substitute its own judgment for that of the ALJ even if it might justifiably 7 have reached a different result upon de novo review. 42 U.S.C. § 405(g). After 8 reviewing the record, the Court finds that the ALJ provided clear and convincing 9 reasons, which are fully supported by the record, for discounting Plaintiff’s 10 subjective complaints. Accordingly, the ALJ did not err by finding Plaintiff’s 11 allegations were not entirely credible in this case. 12 B. 13 Medical Source Opinions Plaintiff contends that the ALJ erred by failing to accord proper weight to 14 the opinions of certain medical sources of record. Plaintiff specifically argues the 15 ALJ erred by discounting the examining opinions of Thomas Genthe, Ph.D., Maria 16 Malcolm, Ph.D. and Charles Quinci, Ph.D. ECF No. 15 at 6-12. 17 In this case, the ALJ found that although Plaintiff had severe mental 18 impairments (cognitive disorders variously diagnosed as borderline intellectual 19 functioning and learning disorder, depression, anxiety, and a personality disorder), 20 the medical evidence did not support the degree of limitation alleged by Plaintiff. 21 Instead, the ALJ determined Plaintiff retained the RFC to perform a full range of 22 work at all exertional levels with the following nonexertional limitations: he can 23 understand, remember and carry out simple, routine, and repetitive tasks; he can 24 have occasional, brief, and superficial contact with the general public, coworkers, 25 and supervisors, but cannot perform tandem tasks or tasks involving a cooperative 26 team effort; and he can adapt to routine changes to the workplace environment. Tr. 27 25. The Court finds the ALJ’s interpretation of the medical evidence of record is 28 supported by substantial evidence. See infra. ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 1. 2 Plaintiff asserts the ALJ erred by according “little weight” to the opinions 3 4 Thomas Genthe, Ph.D. and GAF scores of Dr. Genthe. ECF No. 15 at 6-12. If the opinion of an examining medical professional is not contradicted, it 5 can only be rejected with clear and convincing reasons. Lester, 81 F.3d at 830. If 6 contradicted, the opinion can only be rejected for “specific” and “legitimate” 7 reasons that are supported by substantial evidence in the record. Andrews, 53 F.3d 8 at 1043. Historically, the courts have recognized conflicting medical evidence, the 9 absence of regular medical treatment during the alleged period of disability, and 10 the lack of medical support for doctors’ reports based substantially on a claimant’s 11 subjective complaints of pain as specific, legitimate reasons for disregarding an 12 examining physician’s opinion. Flaten v. Secretary of Health and Human Servs., 13 44 F.3d 1453, 1463-1464 (9th Cir. 1995); Fair, 885 F.2d at 604. 14 Here, Dr. Genthe’s opinion was contradicted by other medical sources, 15 including state agency reviewing physicians,2 Dr. Johnson’s January 2012 16 evaluation and Dr. Quinci’s May 2012 report; therefore, the ALJ needed to only 17 provide specific and legitimate reasons for rejecting Dr. Genthe’s report. 18 Dr. Genthe completed a psychological evaluation on December 5, 2013. Tr. 19 371-376. It was noted that Plaintiff had never received mental health counseling 20 and was not taking prescribed psychotropic medication at the time of the 21 examination. Tr. 371. Plaintiff reported current symptoms of depression and a 22 23 2 State agency consultants, Patricia Kraft, Ph.D., and Steven Haney, M.D., 24 indicated Plaintiff was capable of performing unskilled work involving limited 25 social contact. Tr. 27, 88-90, 103-105. On January 8, 2014, Eugene Kester, M.D., 26 opined Plaintiff had no physical restrictions and was limited to simple, isolated 27 work secondary to his mental health impairments. Tr. 378. The ALJ accorded 28 these state agency assessments significant weight. Tr. 27. ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 history of anxiety problems. Tr. 372. As indicated in Section A, above, Plaintiff 2 denied any history of substance abuse. Tr. 372. Plaintiff presented as “generally 3 open, cooperative and friendly.” Tr. 373. 4 Dr. Genthe opined that Plaintiff was unlikely to function adequately in a 5 work setting until his psychological symptoms were managed more effectively. 6 Tr. 375. He assessed many of Plaintiff’s functional abilities as “poor” and 7 indicated Plaintiff’s cognitive limitations would likely hinder his acquisition of 8 many important skills in a reasonable amount of time. Tr. 375. Dr. Genthe 9 believed Plaintiff would likely perform best on tasks that are relatively simple, 10 repetitive and do not demand cognitive flexibility (i.e. entry-level labor positions); 11 would likely function best in environments that do not offer significant 12 distractions; and would likely function best in settings that would not require his 13 having to deal with a large number of coworkers and/or consumers. Tr. 375. Dr. 14 Genthe noted Plaintiff may find it difficult to work independently or sustain 15 attention and concentration on tasks without a fair amount of supervision. Tr. 375. 16 Dr. Genthe concluded by indicating Plaintiff’s prognosis would likely improve if 17 he obtained appropriate treatment. Tr. 376. 18 The ALJ first accorded Dr. Genthe’s report “little weight” because it was 19 inconsistent with Plaintiff’s treatment history, performance on mental status 20 examination and independent daily activities and social functioning. Tr. 27. As 21 previously discussed, Plaintiff did not have a prolonged history of mental health 22 treatment during his incarceration, records from 2009 indicate Plaintiff was 23 functioning relatively well, his major depressive disorder was in remission in July 24 2010, and his mental status examination remained mostly normal prior to his 25 release. Tr. 26. In January 2012, Dr. Johnson opined that Plaintiff was not 26 incapacitated due to his mental health symptoms, Tr. 289, in May 2012, Dr. Quinci 27 found Plaintiff capable of performing entry-level tasks in a low social 28 environment, Tr. 270-271, and in June 2012 Dr. Dove indicated Plaintiff was ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 feeling well on antidepressant medication. Tr. 281-284. In fact, at the time of Dr. 2 Genthe’s evaluation, Plaintiff was not taking psychotropic medications and 3 indicated he had never received mental health counseling. Tr. 371. Furthermore, 4 Plaintiff’s activities of interacting appropriately with medical providers, visiting 5 and getting along with people socially, and going out in the public to shop or visit 6 the library contradict the opinion that Plaintiff is unable to work because he is not 7 able to be around others. 8 9 The ALJ additionally indicated the social limitations assessed by Dr. Genthe were entitled to little weight because they were internally inconsistent with 10 Plaintiff’s open, cooperative and friendly presentation. Tr. 28. Dr. Genthe’s found 11 Plaintiff presented as generally open, cooperative and friendly with fair eye contact 12 and no psychomotor agitation or retardation. Tr. 373. As determined by the ALJ, 13 this is not consistent with the workplace social limitations assessed by Dr. Genthe. 14 Finally, the ALJ indicated the opinion of Dr. Genthe was accorded little 15 weight because the assessed limitations were based, at least in part, on Plaintiff’s 16 non-credible self-report. Tr. 28. As discussed above, the ALJ’s adverse credibility 17 determination is supported by clear and convincing reasons. A physician’s opinion 18 may be disregarded when it is premised on the properly rejected subjective 19 complaints of a claimant. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 20 2001); see also Morgan, 169 F.3d at 602 (the opinion of a physician premised to a 21 large extent on a claimant’s own account of symptoms and limitations may be 22 disregarded where they have been properly discounted). A review of Dr. Genthe’s 23 report reveals Dr. Genthe relied on Plaintiff’s self-reported symptoms to a great 24 extent. See Tr. 371 (“Mr. Cline stated ‘I don’t get along with people. I have a big 25 issue with people. I don’t like being around them.’”); Tr. 372 (“Mr. Cline reported 26 current symptoms of depression, which he described as . . . . Mr. Cline reported 27 history of anxiety problems, which he described as . . . .”); Tr. 374 (“Mr. Cline 28 reported his mood as ‘pretty good’”.). Since Plaintiff was properly found by the ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 ALJ to be not entirely credible, see supra, the ALJ appropriately discounted Dr. 2 Genthe’s report on the basis that it was based, at least in part, on Plaintiff’s self- 3 reported complaints. 4 Based on the foregoing, the Court finds that the ALJ provided specific, 5 legitimate reasons that are supported by substantial evidence for according little 6 weight to the evaluation of Dr. Genthe. Accordingly, the ALJ did not err with 7 respect to his findings regarding Dr. Genthe’s report. 8 2. 9 Plaintiff contends the ALJ erred by giving “little weight” to the July 2011 10 DSHS psychological evaluation completed by Dr. Malcolm. ECF No. 15 at 6-8. 11 Maria Malcolm, Ph.D. Dr. Malcolm assessed marked limitations with Plaintiff’s ability to learn new 12 tasks, perform routine tasks without undue supervision and communicate and 13 perform effectively in a work setting with public contact. Tr. 265. She indicated 14 Plaintiff presented with borderline intellectual functioning and depressive 15 symptoms and opined Plaintiff’s capacity to learn vocational tasks and complete 16 them at a competitive rate and capacity for stress management “may be limited.” 17 Tr. 269. She noted that Plaintiff’s symptoms at the time of the one-hour interview 18 presented a barrier to immediate vocational functioning. Tr. 269. 19 Dr. Malcolm’s opinion was contradicted by other medical sources, including 20 state agency reviewing physicians, Dr. Johnson’s January 2012 evaluation and Dr. 21 Quinci’s May 2012 report; therefore, the ALJ needed to only provide specific and 22 legitimate reasons for rejecting her report. 23 As with Dr. Genthe, the ALJ first accorded the report “little weight” because 24 it was inconsistent with Plaintiff’s treatment history, performance on mental status 25 examination and independent daily activities and social functioning. Tr. 27. As 26 discussed above, this was a specific and legitimate reason to discount assessed 27 significant vocational limitations. See supra. The ALJ additionally indicated the 28 opinion of Dr. Malcolm was accorded little weight because it was based, at least in ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 part, on Plaintiff’s non-credible self-report. Tr. 28. A review of the report reveals 2 Dr. Malcolm apparently relied on Plaintiff’s self-report to a significant extent as 3 the mental status and psychological testing was fairly normal and she primarily 4 relied on Plaintiff’s presentation of symptoms and history in formulating her 5 opinions. Tr. 268-269. 6 The Court finds the ALJ provided specific, legitimate reasons that are 7 supported by substantial evidence for according little weight to Dr. Malcolm’s July 8 2011 assessment. 9 10 3. Charles Quinci, Ph.D. Plaintiff also contends the ALJ erred by not including all of the limitations 11 cited in Dr. Quinci’s January 2011 and May 2012 psychological/psychiatric 12 evaluation reports in the ultimate RFC determination. ECF No. 15 at 8-12. 13 In January 2011, Dr. Quinci marked that Plaintiff had a severe limitation in 14 his ability to communicate and perform effectively in a work setting with public 15 contact and a marked limitation in his ability to maintain appropriate behavior in a 16 work setting, indicating that Plaintiff’s social functioning was poor. Tr. 346. 17 However, it was noted that Plaintiff was pleasant and cooperative, his affect with 18 appropriate, he maintained good eye contact and his social contact was interactive, 19 his thought process was logical and connected, his thought content was 20 appropriate, his memory was intact, there were no cognitive functioning 21 impairments noted, his judgment was good, and his insight was fair. Tr. 348. In 22 May 2012, Dr. Quinci opined that Plaintiff could perform routine tasks if given 23 basic/simple instructions and appeared able to perform entry level tasks in a low 24 social environment. Tr. 271. 25 The ALJ accorded weight to Dr. Quinci’s opinion that Plaintiff could 26 perform entry level tasks in a low social environment, but “little weight” to the 27 opinion that Plaintiff was unable to sustain the mental requirements of work 28 secondary to marked to severe limitations in social and/or cognitive functioning. ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 Tr. 27. The ALJ is not required to adopt in full the opinion of any particular 2 medical source. See Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (“It 3 is not necessary to agree with everything an expert witness says in order to hold 4 that his testimony contains ‘substantial evidence.’” (quoting Russell v. Bowen, 856 5 F.2d 81, 83 (9th Cir. 1988))). An ALJ may properly rely upon only selected 6 portions of a medical opinion while ignoring other parts, but such reliance must be 7 consistent with the medical record as a whole. Edlund v. Massanari, 253 F.3d 8 1152, 1159 (9th Cir. 2001). 9 As with Dr. Genthe and Dr. Malcolm, the ALJ properly determined Dr. 10 Quinci’s January 2011 marked/severe social restriction was not consistent with 11 Plaintiff’s treatment history, performance on mental status examination and 12 independent daily activities and social functioning. Tr. 27. This was a specific and 13 legitimate reason to discount the assessed significant limitations. See supra. The 14 ALJ also noted an internal inconsistency, the finding that Plaintiff could perform 15 entry level work in a low social environment versus the assessment that Plaintiff 16 was unable to sustain work secondary to marked to severe limitations in social 17 functioning. Tr. 28. Finally, the ALJ determined Dr. Quinci’s significant 18 limitations were accorded little weight because it was based, at least in part, on 19 Plaintiff’s non-credible self-report. Tr. 28; see Tr. 345 (notations which indicate 20 Dr. Quinci did not observe symptoms of low energy, low self-esteem or anger 21 problems). 22 Here, the ALJ properly evaluated the opinions of Dr. Quinci, interpreted and 23 resolved ambiguities from the entirety of the medical evidence, and adopted the 24 limitations she found credible and supported by the overall record. The ALJ did 25 not err by giving weight to the opinion of Dr. Quinci that Plaintiff was capable of 26 performing entry level tasks in a low social environment, while also discounting 27 Dr. Quinci’s early opinion assessing marked/severe social limitations. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 17 1 It is the responsibility of the ALJ to determine credibility, resolve conflicts 2 in medical testimony and resolve ambiguities, Saelee v. Chater, 94 F.3d 520, 522 3 (9th Cir. 1996), and this Court may not substitute its own judgment for that of the 4 ALJ, 42 U.S.C. § 405(g). Where, as here, the ALJ has made specific findings 5 justifying a decision, and those findings are supported by substantial evidence in 6 the record, this Court’s role is not to second-guess that decision. Fair, 885 F.2d at 7 604. Based on the foregoing, the Court finds the ALJ’s interpretation of the 8 medical record is supported by the weight of the evidence of record. The ALJ 9 provided specific and legitimate reasons for giving little weight to the December 10 2013 opinions of Dr. Genthe; little weigh to the January 2011 opinions of Dr. 11 Malcolm; weight to the May 2012 opinion of Dr. Quinci, while also rejecting his 12 early opinion; and significant weight to the opinions of the state agency 13 assessments and Dr. Johnson’s opinion. 14 C. 15 Develop the Record Plaintiff also contends the ALJ committed reversible error by denying 16 Plaintiff’s request to fully and fairly develop the record. ECF No. 15 at 13-16. 17 Plaintiff argues the ALJ should have ordered a consultative exam that included IQ 18 testing and should have re-contacted Dr. Genthe for clarifying information. Id. 19 In Social Security cases, the ALJ has a special duty to develop the record 20 fully and fairly and to ensure that the claimant’s interests are considered, even 21 when the claimant is represented by counsel. Tonapetyan, 242 F.3d at 1150; 22 Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). However, it is Plaintiff’s 23 burden to prove he is disabled. 42 U.S.C. § 423(d)(5) (“An individual shall not be 24 considered to be under a disability unless he furnishes such medical and other 25 evidence of the existence thereof as the Secretary may require.”). The Code of 26 Federal Regulations explains: 27 28 [y]ou have to prove to us that you are blind or disabled. You must inform us about or submit all evidence known to you that relates to whether or not you ORDER GRANTING DEFENDANT’S MOTION . . . - 18 are blind or disabled. This duty is ongoing and requires you to disclose any additional related evidence about which you become aware. This duty applies at each level of the administrative review process . . . . We will consider only impairment(s) you say you have or about which we receive evidence. 1 2 3 4 5 20 C.F.R. § 404.1512(a); see also 20 C.F.R. § 404.1512(c) (“You must provide 6 medical evidence showing that you have impairment(s) and how severe it is during 7 the time you say you are disabled.”). An ALJ’s duty to develop the record is triggered only when there is 8 9 ambiguous evidence or when the record is inadequate to allow for proper 10 evaluation of the evidence. Tonapetyan, 242 F.3d at 1150. As discussed above, 11 the record does not support a more restrictive RFC determination in this case. The 12 ALJ’s RFC determination is in accord with the weight of the record evidence and 13 free of legal error. The record before the ALJ was neither ambiguous nor 14 inadequate to allow for proper evaluation of the evidence. Accordingly, the ALJ 15 did not err by failing to order a consultative examination that included IQ testing or 16 by refusing to further develop the record by re-contacting Dr. Genthe for clarifying 17 information.3 18 CONCLUSION 19 Having reviewed the record and the ALJ’s findings, the Court finds the 20 ALJ’s decision is supported by substantial evidence and free of legal error. 21 Accordingly, IT IS ORDERED: 22 /// 23 24 3 The Court finds it significant to note that Plaintiff’s request that the ALJ 25 issue a subpoena to Dr. Genthe to define his medical opinion in vocationally 26 relevant terms was made orally at the time of the administrative hearing, not by a 27 written request “at least five days before the hearing date” as required by 20 C.F.R. 28 § 404.950(d)(2). Tr. 20, 74-75. ORDER GRANTING DEFENDANT’S MOTION . . . - 19 1 2 1. Defendant’s Motion for Summary Judgment, ECF No. 19, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 15, is DENIED. 3 2. 4 The District Court Executive is directed to file this Order and provide a copy 5 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 6 and the file shall be CLOSED. 7 DATED July 31, 2017. 8 9 10 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 20

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