Roy v. Colvin (previously Astrue), No. 2:2012cv03078 - Document 20 (E.D. Wash. 2013)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT denying 16 Motion for Summary Judgment; granting 17 Motion for Summary Judgment Signed by Senior Judge Fred Van Sickle. (VR, Courtroom Deputy)

Download PDF

Roy v. Colvin (previously Astrue) Doc. 20 1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 ROBIN ROY, NO: CV-12-3078-FVS Plaintiff, 8 v. 9 10 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant. 12 Before the Court are cross-motions for summary judgment, ECF Nos. 16, 13 17. The Court has reviewed the motions, the memoranda in support, the Plaintiff’s 14 reply memorandum, and the administrative record. 15 JURISDICTION 16 Plaintiff Robin Roy filed an application for Supplemental Security Income 17 (“SSI”) on June 16, 2008. (Tr. 112-14.) Plaintiff alleged an onset date of August 18 28, 2007. (Tr. 112.) Benefits were denied initially and on reconsideration. On 19 May 22, 2009, Plaintiff timely requested a hearing before an administrative law 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 judge (“ALJ”). (Tr. 84-86.) A hearing was held before ALJ Moira Ausems on 2 June 18, 2010. (Tr. 37-63.) At that hearing, testimony was taken from vocational 3 expert Sharon Welter; and the claimant, Ms. Roy. (Tr. 37.) Ms. Roy was 4 represented by Attorney James D. Tree at the hearing. On October 1, 2010, ALJ 5 Ausems issued a decision finding Plaintiff not disabled. (Tr. 18-27.) The Appeals 6 Council denied review. (Tr. 1-3.) This matter is properly before this Court under 7 42 U.S.C. § 405(g). 8 9 STATEMENT OF THE CASE The facts of this case are set forth in the administrative hearing transcripts 10 and record and will only be summarized here. The Plaintiff was twenty-four years 11 old when she applied for benefits and was twenty-six years old when ALJ Ausems 12 issued her decision. The Plaintiff currently is unemployed and lives in a house 13 with her partner and her partner’s father. The Plaintiff has not worked since 14 working at a restaurant in 2007. The Plaintiff describes mental health conditions 15 that keep her from finding employment, specifically depression and anxiety. 16 17 STANDARD OF REVIEW Congress has provided a limited scope of judicial review of a 18 Commissioner’s decision. 42 U.S.C. § 405(g). A court must uphold the 19 Commissioner’s decision, made through an ALJ, when the determination is not 20 based on legal error and is supported by substantial evidence. See Jones v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (citing 42 U.S.C. § 405(g)). “The 2 [Commissioner’s] determination that a claimant is not disabled will be upheld if 3 the findings of fact are supported by substantial evidence.” Delgado v. Heckler, 4 722 F.2d 570, 572 (9th Cir. 1983) (citing 42 U.S.C. § 405(g)). Substantial 5 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 6 1119 n.10 (9th Cir. 1975), but less than a preponderance. McCallister v. Sullivan, 7 888 F.2d 599, 601-02 (9th Cir. 1989) (citing Desrosiers v. Secretary of Health and 8 Human Services, 846 F.2d 573, 576 (9th Cir. 1988)). Substantial evidence “means 9 such evidence as a reasonable mind might accept as adequate to support a 10 conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). 11 “[S]uch inferences and conclusions as the [Commissioner] may reasonably draw 12 from the evidence” will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 13 (9th Cir. 1965). On review, the court considers the record as a whole, not just the 14 evidence supporting the decisions of the Commissioner. Weetman v. Sullivan, 877 15 F.2d 20, 22 (9th Cir. 1989) (quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 16 1980)). 17 It is the role of the trier of fact, not this court, to resolve conflicts in 18 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 19 rational interpretation, the court may not substitute its judgment for that of the 20 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 2 still be set aside if the proper legal standards were not applied in weighing the 3 evidence and making a decision. Brawner v. Sec’y of Health and Human Services, 4 839 F.2d 432, 433 (9th Cir. 1988). Thus, if there is substantial evidence to support 5 the administrative findings, or if there is conflicting evidence that will support a 6 finding of either disability or nondisability, the finding of the Commissioner is 7 conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 8 9 SEQUENTIAL PROCESS The Social Security Act (the “Act”) defines “disability” as the “inability to 10 engage in any substantial gainful activity by reason of any medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of not less than 12 13 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 14 Plaintiff shall be determined to be under a disability only if his impairments are of 15 such severity that Plaintiff is not only unable to do his previous work but cannot, 16 considering Plaintiff’s age, education and work experiences, engage in any other 17 substantial gainful work which exists in the national economy. 42 U.S.C. 18 §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both 19 medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 20 (9th Cir. 2001). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 The Commissioner has established a five-step sequential evaluation process 2 for determining whether a claimant is disabled. 20 C.F.R. § 416.920. Step one 3 determines if he or she is engaged in substantial gainful activities. If the claimant 4 is engaged in substantial gainful activities, benefits are denied. 20 C.F.R. §§ 5 404.1520(a)(4)(i), 416.920(a)(4)(i). 6 If the claimant is not engaged in substantial gainful activities, the decision 7 maker proceeds to step two and determines whether the claimant has a medically 8 severe impairment or combination of impairments. 20 C.F.R. 9 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant does not have a severe 10 11 impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which 12 compares the claimant’s impairment with a number of listed impairments 13 acknowledged by the Commissioner to be so severe as to preclude substantial 14 gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also 20 15 C.F.R. § 404, Subpt. P, App. 1. If the impairment meets or equals one of the listed 16 impairments, the claimant is conclusively presumed to be disabled. 17 If the impairment is not one conclusively presumed to be disabling, the 18 evaluation proceeds to the fourth step, which determines whether the impairment 19 prevents the claimant from performing work he or she has performed in the past. 20 If the plaintiff is able to perform his or her previous work, the claimant is not ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the 2 claimant’s residual functional capacity (“RFC”) assessment is considered. 3 If the claimant cannot perform this work, the fifth and final step in the 4 process determines whether the claimant is able to perform other work in the 5 national economy in view of his or her residual functional capacity and age, 6 education and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 7 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 8 9 The initial burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 10 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial 11 burden is met once the claimant establishes that a physical or mental impairment 12 prevents him from engaging in his or her previous occupation. The burden then 13 shifts, at step five, to the Commissioner to show that (1) the claimant can perform 14 other substantial gainful activity, and (2) a “significant number of jobs exist in the 15 national economy” which the claimant can perform. Kail v. Heckler, 722 F.2d 16 1496, 1498 (9th Cir. 1984). 17 18 ALJ’S FINDINGS At step one of the five-step sequential evaluation process, the ALJ found that 19 Plaintiff has not engaged in substantial gainful activity since June 16, 2008, the 20 application date. (Tr. 20.) At step two, the ALJ found that Plaintiff had the severe ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 impairments of: (1) an adjustment disorder with depressed mood versus a major 2 depressive disorder, (2) posttraumatic stress disorder (“PTSD”), (3) a personality 3 disorder with antisocial and dependant features, and (4) methamphetamine and 4 marijuana dependence. (Tr. 20.) The ALJ found that none of the Plaintiff’s 5 impairments, taken alone or in combination, met or medically equaled any of the 6 impairments listed in Part 404, Subpart P, Appendix 1 of 20 C.F.R. (Tr. 20.) The 7 ALJ determined that the Plaintiff had the RFC to perform work at all exertion 8 levels but that her mental impairments resulted in nonerxitional deficits that 9 restricted her to semi-skilled tasks and limited her to work involving only 10 superficial and infrequent public contact. (Tr. 21-22.) At step four, the ALJ 11 determined that the Plaintiff had not engaged in any prior relevant work. (Tr. 25.) 12 At step five, the ALJ, relying on the testimony of a vocational expert, found that 13 the Plaintiff could perform jobs that exist in significant numbers in the national 14 economy. (Tr. 25.) Accordingly, the ALJ found that the Plaintiff was not under a 15 disability for purposes of the Act. (Tr. 26.) 16 17 ISSUES The Plaintiff argues that the ALJ’s decision is not supported by substantial 18 evidence or free of legal error because (1) the ALJ failed adequately address the 19 opinions of Ms. Roy’s treating and examining medical providers, which affected 20 the ALJ’s findings at steps three and four, and (2) the Defendant failed to meet its ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 burden of proving that jobs existing in significant numbers could be performed by 2 Ms. Roy because the hypothetical proposed to the vocational expert failed to 3 include all of Ms. Roy’s limitations. 4 5 6 DISCUSSION Medical Evidence In evaluating a disability claim, the adjudicator must consider all medical 7 evidence provided. A treating or examining physician’s opinion is given more 8 weight than that of a non-examining physician. Benecke v. Barnhart, 379 F.3d 9 587, 592 (9th Cir. 2004). If the treating physician's opinions are not contradicted, 10 they can be rejected by the decision-maker only with clear and convincing reasons. 11 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). If contradicted, the ALJ may 12 reject the opinion with specific, legitimate reasons that are supported by substantial 13 evidence. See Flaten v. Secretary of Health and Human Serv., 44 F.3d 1453, 1463 14 (9th Cir. 1995). In addition to medical reports in the record, the testimony of a 15 non-examining medical expert selected by the ALJ may be helpful in her 16 adjudication. Andrews, 53 F.3d at 1041 (citing Magallanes v. Bowen, 881 F.2d 17 747, 753 (9th Cir. 1989). Testimony of a medical expert may serve as substantial 18 evidence when supported by other evidence in the record. Id. 19 Historically, the courts have recognized conflicting medical evidence, the 20 absence of regular medical treatment during the alleged period of disability, and ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 the lack of medical support for doctors’ reports based substantially on a claimant’s 2 subjective complaints of pain as specific, legitimate reasons for disregarding the 3 treating physician’s opinion. Flaten, 44 F.3d at 1463-64; Fair v. Bowen, 885 F.2d 4 597, 604 (9th Cir 1989). The ALJ need not accept a treating source opinion that is 5 “brief, conclusory and inadequately supported by clinical finding.” Lingenfelter v. 6 Astrue, 504 F.3d 1028, 1044-45 (citing Thomas v. Barnhart, 278 F.3d 947, 957 (9th 7 Cir. 2002)). Where an ALJ determines a treating or examining physician’s stated 8 opinion is materially inconsistent with the physician’s own treatment notes, 9 legitimate grounds exist for considering the purpose for which the doctor’s report 10 was obtained and for rejecting the inconsistent, unsupported opinion. Nguyen v. 11 Chater, 100 F.3d 1462, 1464 (9th Cir. 1996.) Rejection of an examining medical 12 source opinion is specific and legitimate where the medical source’s opinion is not 13 supported by his or her own medical records and/or objective data. Tommasetti v. 14 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 15 Ms. Roy argues that ALJ Ausems failed to appropriately address the opinion 16 of non-examining psychological expert, R. Renee Eisenhauer, Ph.D. Dr. 17 Eisenhauer reviewed a February 27, 2008, evaluation produced by Christopher 18 Clark, LMHC, for the Washington State Department of Social and Health Services 19 (“DSHS”). (Tr. 190-95, 212-17.) Dr. Eisenhauer also reviewed a June 4, 2008, 20 evaluation produced by Lindsey Vaagan, MSW, on behalf of DSHS. (Tr. 196-201, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 205-10.) Based upon those two reports, Dr. Eisenhauer granted approval for 2 expedited Medicaid benefits “on the basis of 12.04.” (Tr. 186.) 3 Ms. Roy argues that ALJ Ausems failed to address Dr. Eisenhauer’s opinion 4 and that Dr. Eisenhauer’s opinion should be interpreted as meaning that Ms. Roy 5 equals the listing for an affective discover under § 12.04 of Part 404, Subpart P, 6 Appendix 1 of 20 C.F.R. Ms. Roy argues that, as a result of this omission, the ALJ 7 failed at step three by not finding Ms. Roy disabled. 8 A state agency medical professional’s determination that a claimant meets or 9 equals a medical listing is not binding on an ALJ. Social Security Ruling (“SSR”) 10 96-6p. However, such a conclusion must be treated as expert opinion by the ALJ 11 and addressed accordingly. SSR 96-6p. The opinion of a non-examining 12 physician may be rejected “by reference to specific evidence in the medical 13 record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). 14 The ALJ provided two bases for rejecting Dr. Eisenhauer’s opinion. First, 15 ALJ Ausems stated that Dr. Eisenhauer’s opinion lacked proper evidentiary 16 foundation because it appeared to be in reference to another individual with the 17 same name as Ms. Roy. (Tr. 24.) At the June 18, 2010, hearing, counsel for Ms. 18 Roy mentioned that certain medical records appeared to refer to a similarly named 19 person who was not Ms. Roy. (Tr. 40.) Throughout her opinion, Dr. Eisenhauer 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 refers to Ms. Roy as “[t]his man” and “[h]e.” (Tr. 186.) Accordingly, the ALJ was 2 not without basis to question the applicability of Dr. Eisenhauer’s opinion. 3 That said, the Court concludes that the gender confusion was not sufficient 4 to support rejection of Dr. Eisenhauer’s opinion. The social security number 5 referenced in Dr. Eisenhauer’s opinion matches Ms. Roy’s number. Additionally, 6 the February and June 2008 evaluations, which Dr. Eisenhauer relied upon, were 7 accurately described in Dr. Eisenhauer’s opinion. (Tr. 186.) Those evaluations 8 refer to Ms. Roy as a female and reference Ms. Roy’s birthdate and contain a 9 consistent case number. (Tr. 190, 196, 205, 212). Given that every other 10 identifying factor and the substance of the report support a finding that the opinion 11 refers to Ms. Roy, the Court finds that the ALJ’s conclusion that Dr. Eisenhauer’s 12 opinion referred to a different person is not supported by substantial evidence. 13 The second reason ALJ Ausems gave for rejecting Dr. Eisenhauer’s opinion 14 was that the opinion was not consistent with the other medical evidence. (Tr. 25.) 15 Specifically, ALJ Ausems noted that treatment notes for Ms. Roy showed 16 improvement in symptoms during those times that Ms. Roy complied with her 17 prescribed treatment but noted that such periods of improvement were marred by 18 drug relapses and repeated failures to follow treatment. (Tr. 22-23.) 19 20 Treatment notes support the fact that starting in late 2007, Ms. Roy sought mental health treatment at Central Washington Comprehensive Mental Health ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 (“CWCMH”). (Tr. 277-78.) Very quickly, Ms. Roy found improvement through a 2 combination of medication and abstaining from methamphetamine use. (Tr. 275- 3 77.) After a six-month gap in treatment, Ms. Roy returned and noted that her 4 medication was stopped because she had been jailed. (Tr. 274.) Again, abstention 5 from drug use and medication improved her mood. (Tr. 270-72.) During this time 6 period, Ms. Roy was reported to have been well groomed, motivated, cooperative, 7 responsive, and displayed intact cognition and memory. (Tr. 229-36.) 8 9 Ms. Roy maintained a positive response to her medication and regularly attended group therapy sessions with apparent positive response. (Tr. 356-58, 360- 10 61, 363.) At a group session on September 16, 2008, Ms. Roy was asked to 11 provide a urine specimen for a drug test but stated that she “did not have to go.” 12 (Tr. 355.) Ms. Roy left the meeting space, ostensibly to get drinking water, and 13 did not return. (Tr. 355.) After missing the next group session, Ms. Roy appeared 14 for a mental status exam and appeared distressed. (Tr. 353-54.) Over the next 15 few group sessions, Ms. Roy exhibited more up and down behavior but most 16 meetings were positive. (Tr. 338-351.) While a mental status exam performed on 17 November 10, 2008, noted a dysphoric mood, Ms. Roy’s treatment providers set 18 out to try a new medication and follow up in a month. (Tr. 333-34.) Ms. Roy’s 19 mood seemed to deteriorate during December 2008. (Tr. 326-27.) 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 On January 8, 2009, Ms. Roy had a meeting to address her medication 2 management. (Tr. 323-25.) Ms. Roy was severely depressed at this meeting. (Tr. 3 323-25.) However, while Ms. Roy’s symptoms had returned, Ms. Roy admitted 4 that she had stopped taking her medication and had relapsed back into taking 5 methamphetamine. (Tr. 323.) Ms. Roy stated that she believed her medication 6 was helpful when she was taking it. (Tr. 323.) 7 After the January 2009 meeting, the administrative record shows no 8 evidence of visits to CWCMH until May 2009. (Tr. 479.) After May, Ms. Roy 9 made visits on an approximately monthly or semimonthly basis. (Tr. 479-521.) 10 However, toward the end of 2009 and beginning of 2010, Ms. Roy became more 11 erratic in her attendance. (Tr. 522-535.) During this time, Ms. Roy was prescribed 12 multiple combinations of medicine, (Tr. 515, 527, 535), and even reported success 13 with one particular medication that had also worked in the past, (Tr. 520.) 14 However, Ms. Roy again failed to continue taking her medications. (Tr. 525-26, 15 535.) In April 2010, Ms. Roy appeared at Yakima Regional Medical Center 16 complaining of vomiting and throat pain. (Tr. 543.) At that time, Ms. Roy 17 admitted to using methamphetamine four days prior to her hospitalization. (Tr. 18 543.) 19 In light of the foregoing, the overwhelming evidence from Ms. Roy’s 20 treatment records supports the conclusion of the ALJ that Ms. Roy saw improved ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 functioning when she adhered to her treatment but did not consistently maintain 2 taking her medications and abstaining from drugs. When a person suffers a 3 disabling impairment and treatment could be expected to restore his or her ability 4 to work, the person must follow the prescribed treatment to be found under a 5 disability. SSR 82-59. Ms. Roy’s improvement while abstaining from 6 methamphetamine and while taking her medication was not reflected in the mental 7 evaluations performed by DSHS in February and June of 2008. For example, the 8 February 2008 evaluation occurred during Ms. Roy’s six-month gap in treatment. 9 (Tr. 190, 212, 274-75.) The evaluator, Christopher Clark, LHMC, noted that 10 medication had been helpful to Ms. Roy and that consistent treatment could 11 ameliorate her depression and anxiety. (Tr. 192-93, 214-15.) The June evaluator, 12 Lindsey Vagaan, MSW, noted that Ms. Roy had only been on antidepressant 13 medication for two days at the time of the evaluation, was in need of mental health 14 treatment, and that her depression could be addressed through treatment. (Tr. 198- 15 99, 207-08.) Given that the extreme limitations identified by Mr. Clark and Ms. 16 Vagaan were observed while Ms. Roy was not regularly taking her medication and 17 during varying stages of Ms. Roy’s substance abuse recovery, the ALJ had 18 substantial evidence to support her decision to discount those opinions. Because 19 Dr. Eisenhauer’s decision is based solely on those two evaluations, the ALJ’s 20 decision to discount Dr. Eisenhauer’s opinion is similarly supported in the record. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Accordingly, the ALJ did not fail at step three of the five-step sequential process 2 when the ALJ did not credit Dr. Eisenhauer’s opinion that Ms. Roy met the listing 3 under 12.04. Additionally, the ALJ did not err in her RFC when she failed to 4 incorporate any limitations identified by Dr. Eisenhauer, Mr. Clark, or Ms. 5 Vagaan. 6 Apart from the ALJ’s handling of the opinion of Dr. Eisenhauer, and the 7 opinions of the sources relied upon by Dr. Eisenhauer, the Plaintiff also challenged 8 the weight the ALJ gave to treating physician Wilson Chan, M.D. Dr. Chan 9 opined in a short form that, due to her mental health limitations, Ms. Roy would 10 miss two days of work per month and would suffer a deterioration of her mental 11 condition if she were to work. (Tr. 390.) ALJ Ausems accorded Dr. Chan’s 12 opinion little weight. (Tr. 25.) 13 As noted above, a treating physician’s opinion is entitled to great weight; 14 however, if a treating physician’s opinion is contradicted by another doctor’s 15 opinion, an ALJ may reject the opinion with specific, legitimate reasons that are 16 supported by substantial evidence. See Flaten v. Secretary of Health and Human 17 Serv., 44 F.3d 1453, 1463 (9th Cir. 1995). Here, Dr. Chan’s opinion was 18 contradicted by the opinion of examining psychologist Jay M. Toews who 19 concluded that Ms. Roy was “capable of functioning in a wide range of routine and 20 repetitive work environments.” (Tr. 290.) Dr. Toews noted “no indication of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 anxiety or anxiety related symptoms. Inquiry failed to elicit symptoms referable to 2 PTSD.” (Tr. 289.) As is consistent with the overall tenor of the ALJ’s decision, 3 Dr. Toews’ examination occurred on September 24, 2008, (Tr. 286), when 4 contemporaneous medical status reports show that Ms. Roy was attending group 5 therapy sessions and had reported as sober for over two months. (Tr. 348-53.) 6 Although, it should be noted that she had failed to provide a urine sample and 7 missed a meeting shortly before the examination by Dr. Toews. (Tr. 354-55.) 8 Additionally, Ms. Roy’s anxiety medication was changed two days prior to the 9 meeting with Dr. Toews. (Tr. 352-53.) 10 Given the contradictions between the opinions of Dr. Toews and Dr. Chan, 11 the ALJ could reject the opinion of Dr. Chan by providing specific, legitimate 12 reasons that are supported by substantial evidence. See Flaten, 44 F.3d at 1463. 13 The ALJ provided numerous reasons in support of her decision to grant Dr. Chan’s 14 opinion little weight. First, ALJ Ausems noted that Dr. Chan’s conclusions were 15 contradicted by Dr. Chan’s treatment records. (Tr. 25.) Dr. Chan saw Ms. Roy 16 twice in 2008. (Tr. 270-71, 272-73.) Both times he observed Ms. Roy, Dr. Chan 17 noted that her mood and affect were normal and that she was alert and oriented. 18 (Tr. 270, 272.) Dr. Chan also noted that Plaintiff’s “mood swing and racing 19 thoughts have been controlled with medication.” (Tr. 271.) 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 Dr. Chan examined Ms. Roy twice in 2009. (Tr. 606, 612-13.) The first 2 examination was in response to patient complaints of neck and back pain and did 3 not address mental health issues. (Tr. 606.) The second examination occurred as 4 the result of Ms. Roy’s need for paperwork for the present social security disability 5 claim. (Tr. 612.) Again, Dr. Chan noted a normal mood and affect and noted that 6 Ms. Roy was alert and oriented. (Tr. 612.) In short, none of the treatment notes 7 memorializing Dr. Chan’s examinations of Ms. Roy establish any direct 8 observations of Ms. Roy’s anxiety, and even if such observations had been made, 9 the treatment notes support the ALJ’s conclusion that Ms. Roy’s mental health 10 issues are amenable to medication. As a result, the Court finds that this basis for 11 rejecting Dr. Chan’s opinion is specific and legitimate and supported by substantial 12 evidence in the record. Accordingly, ALJ Ausems did not err in rejecting Dr. 13 Chan’s opinion. 14 Step Five Burden 15 Ms. Roy argues that the Commissioner failed to meet her burden at step five. 16 At step five, the burden of proof shifts to the Commissioner to show there are a 17 significant number of jobs in the national economy that Plaintiff can still perform. 18 Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). The ALJ may rely on 19 vocational expert testimony if the hypothetical presented to the expert includes all 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 functional limitations supported by the record and found credible by the ALJ. 2 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 3 The bulk of Ms. Roy’s challenge is based on the ALJ’s failure to include in 4 her hypothetical those limitations offered by Dr. Chan, Dr. Eisenhauer, and the 5 DSHS evaluations. As the Court has already determined that ALJ Ausems did not 6 err in rejecting those limitations, there is no failure on the ALJ’s part in not 7 including those limitations in the hypothetical given to the vocational expert. The 8 only other basis for Ms. Roy’s step-five argument is an assertion that ALJ Ausems 9 gave an incomplete hypothetical by failing to include moderate limitations 10 identified by Eugene Kester, M.D., a state-agency consultant. ALJ Ausems gave 11 Dr. Kester’s opinion significant weight. (Tr. 24.) Dr. Kester filled out an SSA- 12 4734-F4-SUP form. (Tr. 313-16.) In section I of that form, Dr. Kester checked a 13 box noting that Ms. Roy suffered a moderate limitation in “[t]he ability to 14 complete a normal work-day and workweek without interruptions from 15 psychologically based symptoms and to perform at a consistent pace without an 16 unreasonable number and length of rest periods.” (Tr. 314.) Dr. Kester also 17 checked a box noting that Ms. Roy suffered a moderate limitation in her “ability to 18 perform activities within a schedule, maintain regular attendance, and be punctual 19 within customary tolerances.” (Tr. 313.) 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 The Program Operations Manual System (“POMS”) published by the Social 2 Security Administration, while not binding precedent, makes clear that section I of 3 the SSA-4734-F4-SUP is not offering an opinion. The POMS explains that: 4 5 6 7 8 9 The purpose of section I (“Summary Conclusion”) on the SSA-4734F-SUP is chiefly to have a worksheet to ensure that the psychiatrist or psychologist has considered each of these pertinent mental activities and the claimant's or beneficiary's degree of limitation for sustaining these activities over a normal workday and workweek on an ongoing, appropriate, and independent basis. It is the narrative written by the psychiatrist or psychologist in section III (“Functional Capacity Assessment”) of form SSA-4734-F4-Sup that adjudicators are to use as the assessment of RFC. Adjudicators must take the RFC assessment in section III and decide what significance the elements discussed in this RFC assessment have in terms of the person's ability to meet the mental demands of past work or other work. 10 POMS DI 25020.010(B)(1) (emphasis in original). In light of the fact that the 11 worksheet portion is not intended to be taken as opinion evidence, the ALJ did not 12 err in failing to individually address each checked box. Instead, ALJ Ausems 13 appropriately addressed the narrative portion contained in section III of the form, 14 in which Dr. Kester explained his opinion. (Tr. 24.) Additionally, the hypothetical 15 given to the vocational expert incorporated the limitations identified in Dr. 16 Kester’s narrative. (Tr. 58-59.) Accordingly, the ALJ’s decision at step five was 17 supported by substantial evidence and free of legal error. 18 Accordingly, IT IS HEREBY ORDERED: 19 1. The Plaintiff’s motion for summary judgment, ECF No. 16, is DENIED. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 2 2. The Defendant’s motion for summary judgment, ECF No. 17, is GRANTED. 3 3. JUDGMENT shall be entered for the Defendant. 4 IT IS SO ORDERED. 5 The District Court Executive is hereby directed to enter this Order, to 6 7 provide copies to counsel, and to close this file. DATED this 4th of November 2013. 8 9 10 s/Fred Van Sickle Fred Van Sickle Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20

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.