Hess v. Colvin (previously Astrue), No. 2:2012cv00487 - Document 22 (E.D. Wash. 2013)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (ECF No. 18 ) and denying ECF No. 16 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge James P. Hutton Magistrate Judge John T. Rodgers. (PH, Case Administrator) Modified on 11/5/2013 TO REFLECT CORRECT JUDGE SIGNATURE IN DOCKET TEXT. (PH, Case Administrator).
Download PDF
<![CDATA[
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF WASHINGTON 9 10 ALISHA L. HESS, 11 12 13 No. CV-12-0487-JTR Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. 14 CAROLYN W. COLVIN, 15 Commissioner of Social Security, 16 Defendant. 17 18 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 19 Nos. 16, 18. Attorney Maureen J. Rosette represents Alisha Lynne Hess 20 (Plaintiff); Special Assistant United States Attorney Willy M. Le represents the 21 Commissioner of Social Security (Defendant). The parties have consented to 22 proceed before a magistrate judge. ECF No. 6. After reviewing the administrative 23 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 24 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 25 JURISDICTION 26 Plaintiff filed an application for a period of disability and Disability 27 Insurance Benefits on September 10, 2009, alleging disability since January 26, 28 2009, due to her “bipolar condition.” Tr. 165. The application was denied initially ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 and upon reconsideration. Administrative Law Judge (ALJ) Caroline Siderius held 2 a hearing on January 11, 2011, Tr. 59-83, and issued an unfavorable decision on 3 January 27, 2011, Tr. 43-55. The Appeals Council denied review on June 5, 2012. 4 Tr. 1-6. The ALJ’s January 2011 decision became the final decision of the 5 Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 6 405(g). Plaintiff filed this action for judicial review on July 26, 2012. ECF No. 1, 7 5. 8 STATEMENT OF FACTS 9 The facts of the case are set forth in the administrative hearing transcript, the 10 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 11 here. 12 Plaintiff was born on March 27, 1980, and was 28 years old on the alleged 13 onset date, January 26, 2009. Tr. 160. Plaintiff indicated she completed the 12th 14 grade in high school, but has taken no college classes. Tr. 71-72, 169. She 15 reported that, while in school, she was constantly in trouble for “acting out and 16 mouthing off.” Tr. 67. She testified at the administrative hearing she last worked 17 as a data entry clerk in January 2009 and stopped working because she went on 18 long-term disability due to symptoms stemming from a bi-polar disorder. Tr. 63- 19 64. She stated she cannot hold a job because she is anxious and does not handle 20 stress well. Tr. 65. She indicated the longest job she has had lasted for a year and 21 a half and it ended with her getting fired for insubordination, following an 22 argument with her manager. Tr. 66. She testified she is unable to go back to work 23 because she cannot handle stress. Tr. 72. 24 Plaintiff indicated she does not get along well with others because she comes 25 across as abrasive. Tr. 72. She stated she takes criticism personally and tends to 26 get angry and lash out. Tr. 72. She also stated she misses an excessive amount of 27 work due to days she stays in bed because she does not feel well. Tr. 72. Upon 28 questioning by her attorney, Plaintiff indicated she does not maintain focus well. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 Tr. 73. As a result, she is able to read, but does not retain the information well. Tr. 2 74. 3 Plaintiff testified she started seeing a psychologist, Dr. Neils, in 2009. Tr. 4 69. She first saw him every week, it then moved to every month, and she currently 5 sees him on an “as needed” basis. Tr. 69. Plaintiff testified at the administrative 6 hearing that when she first started seeing Dr. Neils, he diagnosed her as bi-polar: 7 “with my history that I explained to him . . . . [H]e told me that everything that I 8 had described to him, he figured [it] was . . . bi-polar disorder.” Tr. 64. 9 Plaintiff stated that, on a typical day, if she wakes up feeling “okay,” she 10 will get up, take a shower, eat something, and pick up her apartment a little. Tr. 11 71. If she does not wake up feeling well, she will stay in bed all day. Tr. 71. She 12 indicated she did not really have friends, but, once or twice a week, she would visit 13 her brother and/or go to her parent’s home. Tr. 71, 74. She testified that if she 14 feels like doing household chores, she can do them, including vacuuming, doing 15 the laundry and cleaning. Tr. 74. She stated it was “just a matter of whether or not 16 I feel like doing it.” Tr. 74. 17 18 ADMINISTRATIVE DECISION The ALJ found that Plaintiff had not engaged in substantial gainful activity 19 since January 26, 2009, the alleged onset date. Tr. 45. The ALJ determined, at 20 step two, that Plaintiff had a severe impairment of bipolar disorder. Tr. 45. At 21 step three, the ALJ found Plaintiff’s mental impairment did not meet or medically 22 equal a listed impairment. Tr. 47. The ALJ assessed Plaintiff’s RFC and 23 determined that she could perform a full range of work at all exertional levels but 24 with the following nonexertional limitations: she can perform simple, repetitive 1 25 to 3 step tasks, but no detailed work and she is capable of tolerating only 26 occasional changes in the work setting and superficial contact with the public and 27 co-workers. Tr. 49. 28 At step four, the ALJ concluded that, considering Plaintiff’s RFC, and based ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 on the testimony of the vocational expert, Plaintiff was able to perform her past 2 relevant work as a machine operator II, data entry clerk, and wire harness 3 assembler. Tr. 54-55. The ALJ thus determined that Plaintiff was not under a 4 disability within the meaning of the Social Security Act at any time from January 5 26, 2009, the alleged onset date, through the date of the ALJ’s decision, January 6 27, 2011. Tr. 55. 7 8 9 10 STANDARD OF REVIEW In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the Court set out the standard of review: A district court’s order upholding the Commissioner’s denial of benefits is 11 reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The 12 decision of the Commissioner may be reversed only if it is not supported by 13 substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 14 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a 15 mere scintilla, but less than a preponderance. Id. at 1098. Put another way, 16 substantial evidence is such relevant evidence as a reasonable mind might accept 17 as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 18 (1971). If the evidence is susceptible to more than one rational interpretation, the 19 Court may not substitute its judgment for that of the Commissioner. Tackett, 180 20 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 21 (9th Cir. 1999). 22 The ALJ is responsible for determining credibility, resolving conflicts in 23 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 24 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 25 although deference is owed to a reasonable construction of the applicable statutes. 26 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 27 28 It is the role of the trier of fact, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 rational interpretation, the Court may not substitute its judgment for that of the 2 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 3 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 4 still be set aside if the proper legal standards were not applied in weighing the 5 evidence and making the decision. Brawner v. Secretary of Health and Human 6 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to 7 support the administrative findings, or if conflicting evidence exists that will 8 support a finding of either disability or non-disability, the Commissioner’s 9 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 10 11 12 Cir. 1987). SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 13 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 14 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 15 through four, the burden of proof rests upon the claimant to establish a prima facie 16 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 17 burden is met once a claimant establishes that a physical or mental impairment 18 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 19 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 20 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 21 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 22 in the national economy which claimant can perform. Batson v. Commissioner of 23 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 24 an adjustment to other work in the national economy, a finding of “disabled” is 25 made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). 26 27 28 ISSUES The question presented is whether substantial evidence exists to support the ALJ’s decision denying benefits and, if so, whether that decision is based on ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 proper legal standards. Plaintiff contends the ALJ erred because she is more 2 limited from a psychological standpoint than what was determined by the ALJ. 3 ECF No. 16 at 9. Plaintiff specifically argues that the ALJ failed to properly 4 consider the opinion of treating psychologist Rob Neils, Ph.D., and that new 5 evidence submitted to the Appeals Council, a report completed by Debra D. 6 Brown, Ph.D., more than seven months after the ALJ’s decision in this case, 7 further evidences she is more limited from a psychological standpoint than what 8 was determined by the ALJ. ECF No. 16 at 9-15. 9 DISCUSSION 10 11 A. Dr. Neils Plaintiff argues that the ALJ should have accorded greater weight to the 12 opinions of treating psychologist Dr. Neils when assessing Plaintiff’s mental RFC. 13 The undersigned determines that the ALJ provided specific and legitimate reasons, 14 supported by substantial evidence, for not according significant weight to Dr. Neils 15 opinions. See infra. 16 In disability proceedings, a treating physician’s opinion carries more weight 17 than an examining physician’s opinion, and an examining physician’s opinion is 18 given more weight than that of a non-examining physician. Benecke v. Barnhart, 19 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 20 1995). If the treating or examining physician’s opinions are not contradicted, they 21 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 22 contradicted, the opinion can only be rejected for “specific” and “legitimate” 23 reasons that are supported by substantial evidence in the record. Andrews v. 24 Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Historically, the courts have 25 recognized conflicting medical evidence, the absence of regular medical treatment 26 during the alleged period of disability, and the lack of medical support for doctors’ 27 reports based substantially on a claimant’s subjective complaints of pain as 28 specific, legitimate reasons for disregarding a treating or examining physician’s ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 opinion. Flaten v. Secretary of Health and Human Servs., 44 F.3d 1453, 1463-64 2 (9th Cir. 1995). 3 Plaintiff began seeing Dr. Neils on February 4, 2009. Tr. 252. On January 4 20, 2010, Dr. Neils reported he had seen Plaintiff on two dozen separate occasions 5 since he first began treating her in February 2009.1 Tr. 252. In February 2009, Dr. 6 Neils diagnosed Plaintiff with mood disorder, NOS, and rule out provisional 7 bipolar disorder “[g]iven her description of symptoms,” which she described as 8 “extreme mood swings from ‘really happy’ to severely depressed, cycling back and 9 forth through ‘every few days.’” Tr. 255. On March 4, 2009, Dr. Neils reported 10 that “[g]iven her description of symptoms,” a diagnosis of bipolar disorder, most 11 recent episode depressed, severe, with mood congruent psychotic features, was 12 appropriate. Tr. 254. It was again noted that Plaintiff described “extreme mood 13 swings from ‘really happy’ to severely depressed, cycling back and forth though 14 ‘every few days.’” Tr. 254. Dr. Neils indicated Plaintiff was on temporary 15 disability at the time, but was scheduled to return to work on March 22, 2009. Tr. 16 254. 17 On January 20, 2010, Dr. Neils diagnosed Plaintiff with bipolar disorder, 18 most recent episode depressed, severe, with mood congruent psychotic features; 19 panic disorder with moderate agoraphobia; and personality disorder, NOS with 20 borderline traits. Tr. 252. Dr. Neils indicated Plaintiff described symptoms of 21 extreme mood swings, pressured speech, flight of ideas, over-spending on useless 22 items, delusions, fear that others can invade her thoughts, daily episodes of being 23 unable to concentrate or remember things, unprovoked agitation, insomnia and 24 hypersomnia, hearing unintelligible sounds, and panic attacks with moderate 25 26 1 As noted by the ALJ, although Dr. Neils stated on January 20, 2010, that he 27 had seen Plaintiff 24 times since he first began seeing her in February 2009, chart 28 notes were not included to substantiate the claim. Tr. 53. ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 agoraphobia. Tr. 252. It was noted that a Millon Clinical Multiaxial Inventory-III 2 test revealed extreme elevations across Personality Patterns and Clinical 3 Syndromes. Tr. 252. Dr. Neils also indicated Plaintiff had lost many jobs due to 4 her multiple cognitive impairments, her inability to relate adequately with co- 5 workers and supervisors and her unreliability to show up and get her assigned tasks 6 done correctly and efficiently.2 Tr. 253. 7 On December 20, 2010, Dr. Neils reported he had seen Plaintiff on an “as 8 needed basis” since January 22, 2009. Tr. 291. Dr. Neils indicated Plaintiff had a 9 moderate to marked limitation in her ability to understand and remember detailed 10 instructions and does not sustain routine without special supervision and, even with 11 special supervision, has to be monitored closely. Tr. 291. He noted that Plaintiff 12 reported she had been late for every job she has ever had, has been fired from jobs 13 because of her absenteeism or tardiness, and has been in trouble for work 14 avoidance, falling asleep on the job, slow work rate, and inappropriate behavior at 15 her workstation. Tr. 291. It was further reported that Plaintiff used any and all 16 excuses to spend time with other coworkers rather than do work, she not only 17 failed to produce but also distracted others from producing work, and she was 18 rarely able to complete a two-hour work shift without interruptions from 19 psychologically based symptoms.3 Tr. 292. Dr. Neils completed a Mental Medical 20 21 2 As noted by the ALJ, Dr. Neils’ report of Plaintiff’s work issues is provided 22 without any corroborating evidence. Tr. 54. Plaintiff also failed to provide the 23 ALJ with employment records to verify her alleged work deficiencies. Tr. 53. 24 3 Again, Dr. Neils’ report of Plaintiff’s alleged work deficiencies is provided 25 without any corroborating evidence, other than Plaintiff’s self-report. Tr. 54. 26 Plaintiff additionally failed to provide the ALJ with employment records to 27 substantiate her allegations of insubordination, excessive absenteeism and poor 28 work ethic. Tr. 53. ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 Source Statement opining Plaintiff had several marked and severe mental 2 limitations. Tr. 294-296. 3 4 5 The ALJ provided several bases to reject Dr. Neils’ opinion that Plaintiff had significant mental limitations. Tr. 50-54. The ALJ indicated, inconsistent with Dr. Neils’ opinions, that Plaintiff’s 6 other treatment providers had found her to be pleasant and cooperative, oriented to 7 person, place and situation, and appeared to have normal judgment and memory 8 during the relevant time period at issue. Tr. 52, 234-251. Plaintiff’s treating 9 physician Alan Skidmore, M.D., reported Plaintiff was feeling less angry and 10 irritable on April 1, 2009. Tr. 237. He described Plaintiff as pleasant and her 11 affect as not depressed. Tr. 237. On April 22, 2009, Dr. Skidmore indicated he 12 got the impression that Plaintiff’s issue was more of a personality disorder, rather 13 than a bipolar affective disorder, because “her affect was not congruent with how 14 severe she stated her mood was.” Tr. 236. Dr. Skidmore reiterated this opinion on 15 May 13, 2009, and noted that Plaintiff reported less anger and no panic attacks. Tr. 16 46, 235. Dr. Skidmore indicated on July 14, 2009, that Plaintiff’s migraine 17 headaches were well controlled and there were no non-psychologically related 18 medical problems which would prevent her from working. Tr. 46, 234. He 19 described Plaintiff as a pleasant, young female with a somewhat flat affect. Tr. 20 234. These reports from Plaintiff’s treatment providers are inconsistent with the 21 significant limitations assessed by Dr. Neils. 22 The ALJ also noted that Dr. Neils’ conclusions are primarily based on 23 Plaintiff’s subjective self-reports or self-administered depression surveys without 24 any evidence substantiating her alleged difficulties. Tr. 54. It is apparent from a 25 review of Dr. Neils’ records, as outlined above, that Dr. Neils based the majority of 26 his opinion evidence on Plaintiff’s self-reported symptoms and self-reported 27 medical history without any outside corroboration. Plaintiff’s testimony at the 28 administrative hearing further supports this conclusion. Plaintiff testified that ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 when she first started seeing Dr. Neils, he immediately diagnosed her as bi-polar: 2 “with my history that I explained to him . . . . [H]e told me that everything that I 3 had described to him, he figured [it] was . . . bi-polar disorder.” Tr. 64. 4 With respect to Plaintiff’s credibility, the ALJ provided several reasons for 5 discounting plaintiff’s subjective complaints, Tr. 51-53, and those reasons are fully 6 supported by the record. Plaintiff does not contest the ALJ’s credibility finding in 7 this case. See Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998); United States v. 8 Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (holding that issues not specifically and 9 distinctly contested in a party’s opening brief are considered waived). 10 Consequently, it is undisputed that the ALJ properly determined that Plaintiff was 11 not fully credible in this matter. Since Plaintiff was properly found by the ALJ to 12 be not entirely credible, the ALJ appropriately accorded little weight to Dr. Neils’ 13 medical reports because they were primarily based on Plaintiff’s non-credible 14 subjective complaints. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 15 2001) (a physician’s opinion premised primarily on a claimant’s subjective 16 complaints may be discounted where the record supports the ALJ’s discounting of 17 the claimant’s credibility); Morgan v. Comm’r. of Soc. Sec. Admin., 169 F.3d 595, 18 602 (9th Cir. 1999) (the opinion of a physician premised to a large extent on a 19 claimant’s own account of symptoms and limitations may be disregarded where 20 they have been properly discounted). 21 The ALJ additionally noted Plaintiff’s conservative treatment undermined 22 Dr. Neils’ opinion. Tr. 50-51. See Rollins v. Massanari, 261 F.3d 853, 856 (9th 23 Cir. 2001) (a conservative course of treatment is not consistent with a finding that a 24 claimant is totally disabled under the Act). The ALJ noted that Plaintiff only saw 25 Dr. Neils on an “as needed” basis. Tr. 51. Plaintiff reported seeing Dr. Neils 26 weekly at first, then once a month, and then “as needed.” Tr. 50. This progression 27 appears to show an improvement of Plaintiff’s symptoms, and the overall 28 conservative course of treatment is not consistent with the severe limitations ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 2 reported by Dr. Neils. The ALJ also stated that Plaintiff would shorten her use of medications 3 despite medical reports indicating that they were of benefit,4 and that Plaintiff had 4 failed to comply with her doctor’s recommendation to exercise.5 Tr. 51. 5 Noncompliance with medical care or unexplained or inadequately explained 6 reasons for failing to seek medical treatment cast doubt on a claimant’s subjective 7 complaints. 20 C.F.R. §§ 404.1530, 426.930; Fair v. Bowen, 885 F.2d 597, 603 8 (9th Cir. 1989). The fact that Plaintiff failed to comply with the medical treatment 9 prescribed by Dr. Neils discounts her claim of disabling limitations. 10 The ALJ also referenced Plaintiff’s apparent lack of motivation to work. Tr. 11 53. The Ninth Circuit has recognized that the ALJ may properly consider the issue 12 of motivation. Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992). Dr. Neils 13 reported on January 20, 2010, that Plaintiff had a “strong disability conviction” and 14 “lackadaisical attitude” even when her medications mostly controlled her 15 symptoms. Tr. 54, 253. As noted by the ALJ, Plaintiff reported to Dr. Neils on 16 March 4, 2009, that she was scheduled to return to work from temporary disability 17 on March 22, 2009, but would “bolt” if she could find another job with similar 18 good pay. Tr. 254. Plaintiff also testified at the administrative hearing that she 19 20 4 Dr. Neils reported on December 2010, that a change in medications helped 21 control Plaintiff’s anger but she did not continue with the medication as prescribed. 22 Tr. 293. 23 5 Plaintiff testified at the administrative hearing that she tried to comply with 24 her doctor’s recommendation in December 2008 to walk for 15 minutes, three 25 times a day, but was unable to comply due to a broken ankle in March 2010. Tr. 26 51. Not only is there no evidence in the record to substantiate a broken ankle, but 27 there is also no explanation provided for Plaintiff not being compliant for the 15 28 months prior to the alleged broken ankle. Tr. 51-52. ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 could perform household chores, including vacuuming, doing the laundry and 2 cleaning, it was “just a matter of whether or not I feel like doing it.” Tr. 74. It 3 would appear that, inconsistent with her claims of disabling limitations, Plaintiff 4 believed she could perform work activities, but, as indicated by the ALJ, lacked 5 motivation to do so. The ALJ additionally found Dr. Neils’ conclusions were inconsistent with 6 7 Plaintiff’s activities of daily living. Tr. 54. An ALJ may discount a doctor’s 8 opinion of social and cognitive limitations to the extent it conflicts with the 9 claimant’s daily activities. See Morgan v. Comm’r of the Soc. Sec. Admin., 169 10 F.3d 595, 601-602 (9th Cir. 1999) (“The ALJ noted, contrary to Dr. Reaves’s 11 conclusion that Morgan suffered from ‘marked limitations,’ that the evidence 12 established that Morgan adequately copes with the social aspects of daily living, 13 continues to maintain some friendships, and manifests above-average intelligence 14 and other cognitive abilities.”). The ALJ noted that Plaintiff was capable of 15 frequently visiting her family, went binge shopping/impulse shopping on occasion, 16 and had no complaints from her care providers of inability to get along with the 17 providers or their staff. Tr. 51. The ALJ appropriately discounted Dr. Neils’ 18 opinion as inconsistent with Plaintiff’s activities of daily living. 19 Based on the foregoing, the ALJ provided specific and legitimate reasons, 20 supported by substantial evidence, for according little weight to Dr. Neils’ opinion. 21 The ALJ determined that Plaintiff retained the RFC to perform a full range of work 22 at all exertional levels but with the following nonexertional limitations: she can 23 perform simple, repetitive 1 to 3 step tasks, but no detailed work and she is capable 24 of tolerating only occasional changes in the work setting and superficial contact 25 with the public and co-workers. Tr. 49. The evidence of record does not support a 26 more restrictive mental RFC assessment in this case. 27 B. 28 Dr. Brown Plaintiff also argues that new evidence submitted to the Appeals Council ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 following the ALJ’s January 27, 2011, decision, a report completed by Debra D. 2 Brown, Ph.D., on September 7, 2011, Tr. 19-24,6 further evidences that she is more 3 limited from a psychological standpoint than what was determined by the ALJ. 4 ECF No. 16 at 14-15. 5 Dr. Brown filled out a Psychological/Psychiatric Evaluation form indicating 6 Plaintiff had severe depression; an inability to pay attention and concentrate, focus 7 on details, or think logically and linearly; sensitivity to criticism, difficulty 8 working in an environment where unconditional positive regard is not guaranteed; 9 hyper-reactivity to fear triggers, resulting in cessation of work, distraction of 10 coworkers, high absenteeism and a likelihood of walking off the job without 11 warning; hypervigilance in relationships with supervisors and coworkers and 12 sensitivity to criticism; over-reactivity to even minor criticism or perceived 13 criticism; and work tardiness and excessive absenteeism. Tr. 20. 14 The relevant time period in this action is from January 26, 2009 (the alleged 15 onset date) through January 27, 2011 (the date of the ALJ’s determination in this 16 case). Evidence from outside of this period of time is irrelevant to the extent that it 17 does not address claimant’s medical status during the relevant period at issue in 18 this action. See Fair v. Bowen, 885 F.2d 597, 600 (9th Cir. 1989). Dr. Brown’s 19 assessment took place more than seven months after the ALJ’s decision in this 20 case, and there is no indication Dr. Brown’s report addresses Plaintiff’s functioning 21 22 6 This “new evidence” is part of the record for this Court’s review. See, 23 Harman v. Apfel, 211 F.3d 1172, 1179-1180 (9th Cir. 2000) (the district court 24 properly considered new evidence submitted to the Appeals Council because the 25 Appeals Council addressed those materials in the context of denying review); 26 Ramirez v. Shalala, 8 F.3d 1449, 1451-1452 (9th Cir. 1993) (the district court 27 appropriately reviewed all materials, including new evidence not before the ALJ, 28 after the Appeals Council declined to accept review in light of the entire record). ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 during the relevant time period. Furthermore, as with Dr. Neils, the alleged work 2 deficiencies noted in Dr. Brown’s September 2011 report are not corroborated by 3 any evidence of record. Plaintiff did not provide the ALJ or the Appeals Council 4 with employment records to verify her allegations of work deficiencies. Therefore, 5 the work issues indicated by Dr. Brown are apparently drawn from Plaintiff’s non- 6 credible self-report. See Tonapetyan, 242 F.3d at 1149 (a physician’s opinion 7 premised primarily on a claimant’s subjective complaints may be discounted where 8 the record supports the ALJ’s discounting of the claimant’s credibility). As noted 9 by Defendant, there is no evidence Dr. Brown relied on any other evidence, 10 besides Plaintiff’s non-credible statements and the examination findings which 11 were essentially normal.7 Tr. 24. Dr. Brown’s September 2011 report is of little 12 evidentiary value as it does not materially change or otherwise affect the evidence 13 supporting the ALJ’s determination in this case. The ALJ’s RFC determination 14 remains supported by substantial evidence of record. 15 The ALJ’s RFC determination is in accord with the weight of the record 16 evidence and free of error. The record does not support a more restrictive finding 17 than Plaintiff being restricted to work involving no more than simple, repetitive 1 18 to 3 step tasks, with no detail and with only occasional changes in the work setting 19 and superficial contact with the public and co-workers. Tr. 49. The 20 Commissioner did not err by so finding in this case. 21 CONCLUSION 22 Having reviewed the record and the ALJ’s findings, the Court concludes the 23 ALJ’s decision is supported by substantial evidence and is not based on legal error. 24 Accordingly, 25 26 7 Dr. Brown’s examination revealed Plaintiff’s overall mental status 27 examination results “were normal with a score of 28 out of 30.” Tr. 24. Plaintiff 28 also “scored in the normal range” on her Trails A & B test. Tr. 24. ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 IT IS ORDERED: 2 1. 3 Defendant’s Motion for Summary Judgment, ECF No. 18, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 16, is DENIED. 4 2. 5 The District Court Executive is directed to file this Order and provide a copy 6 to counsel for Plaintiff and Defendant. Judgment shall be entered for 7 DEFENDANT and the file shall be CLOSED. 8 DATED November 5, 2013. 9 10 11 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 15
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
