Osacar v. Colvin (previously Astrue), No. 2:2012cv05040 - Document 24 (E.D. Wash. 2013)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR JUDGMENT, INTER ALIA; denying 14 Motion for Summary Judgment; granting 20 Motion for Summary Judgment. Case closed. Signed by Judge Lonny R. Suko. (CV, Case Administrator)
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Osacar v. Colvin (previously Astrue) Doc. 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ) ) ) Plaintiff, ) ) vs. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ______________________________ ) MELANIE OSACAR, No. CV-12-5040-LRS ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT, INTER ALIA BEFORE THE COURT are Plaintiff's Motion For Summary Judgment (ECF No. 14) and the Defendant's Motion For Summary Judgment (ECF No. 20). JURISDICTION Melanie Osacar, Plaintiff, applied for Title XVI Supplemental Security Income benefits ("SSI") on May 22, 2007. The application was denied initially and on reconsideration. Plaintiff timely requested a hearing and a hearing was held on April 7, 2010, before Administrative Law Judge (ALJ) Moira Ausmens. Plaintiff, represented by counsel, appeared and testified at this hearing via video. Thomas Polsin also testified as a Vocational Expert (VE). On July 27, 2010, the ALJ issued a decision denying benefits. The Appeals Council denied a request for review and the ALJ's decision became the final decision of the Commissioner. This decision is appealable to district court pursuant to 42 U.S.C. §1383(c)(3). 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 2 STATEMENT OF FACTS The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. 4 At the time of the administrative hearing, Plaintiff was 25 years old. She has a 5 GED (general equivalency degree) and no past relevant work experience. Plaintiff 6 alleges disability since July 24, 2006, due to mental impairments. 7 8 STANDARD OF REVIEW 9 "The [Commissioner's] determination that a claimant is not disabled will be 10 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 11 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a 12 mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), 13 but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th 14 Cir. 1989); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 15 576 (9th Cir. 1988). "It means such relevant evidence as a reasonable mind might 16 accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 17 401, 91 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the 18 [Commissioner] may reasonably draw from the evidence" will also be upheld. 19 Beane v. Richardson, 457 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 20 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the record as a 21 whole, not just the evidence supporting the decision of the Commissioner. 22 Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Thompson v. Schweiker, 665 23 F.2d 936, 939 (9th Cir. 1982). 24 It is the role of the trier of fact, not this court to resolve conflicts in 25 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 26 rational interpretation, the court must uphold the decision of the ALJ. Allen v. 27 Heckler, 749 F.2d 577, 579 (9th Cir. 1984). 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 2 1 A decision supported by substantial evidence will still be set aside if the 2 proper legal standards were not applied in weighing the evidence and making the 3 decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 4 (9th Cir. 1987). 5 ISSUES 6 7 Plaintiff argues the ALJ erred by: 1) improperly evaluating the medical 8 opinion evidence; 2) improperly discounting Plaintiff’s credibility; and 3) 9 presenting a hypothetical to the VE which did not properly take into account all of 10 the Plaintiff’s limitations. 11 12 13 14 DISCUSSION SEQUENTIAL EVALUATION PROCESS The Social Security Act defines "disability" as the "inability to engage in 15 any substantial gainful activity by reason of any medically determinable physical 16 or mental impairment which can be expected to result in death or which has lasted 17 or can be expected to last for a continuous period of not less than twelve months." 18 42 U.S.C. §1382c(a)(3)(A). The Act also provides that a claimant shall be 19 determined to be under a disability only if his impairments are of such severity 20 that the claimant is not only unable to do his previous work but cannot, 21 considering his age, education and work experiences, engage in any other 22 substantial gainful work which exists in the national economy. Id. 23 The Commissioner has established a five-step sequential evaluation process 24 for determining whether a person is disabled. 20 C.F.R. §416.920; Bowen v. 25 Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines if he 26 is engaged in substantial gainful activities. If he is, benefits are denied. 20 C.F.R. 27 §416.920(a)(4)(i). If he is not, the decision-maker proceeds to step two, which 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 3 1 determines whether the claimant has a medically severe impairment or 2 combination of impairments. 20 C.F.R. §416.920(a)(4)(ii). If the claimant does 3 not have a severe impairment or combination of impairments, the disability claim 4 is denied. If the impairment is severe, the evaluation proceeds to the third step, 5 which compares the claimant's impairment with a number of listed impairments 6 acknowledged by the Commissioner to be so severe as to preclude substantial 7 gainful activity. 20 C.F.R. §416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. 8 If the impairment meets or equals one of the listed impairments, the claimant is 9 conclusively presumed to be disabled. If the impairment is not one conclusively 10 presumed to be disabling, the evaluation proceeds to the fourth step which 11 determines whether the impairment prevents the claimant from performing work 12 he has performed in the past. If the claimant is able to perform his previous work, 13 he is not disabled. 20 C.F.R. §416.920(a)(4)(iv). If the claimant cannot perform 14 this work, the fifth and final step in the process determines whether he is able to 15 perform other work in the national economy in view of his age, education and 16 work experience. 20 C.F.R. §416.920(a)(4)(v). 17 The initial burden of proof rests upon the claimant to establish a prima facie 18 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 19 (9th Cir. 1971). The initial burden is met once a claimant establishes that a 20 physical or mental impairment prevents her from engaging in his previous 21 occupation. The burden then shifts to the Commissioner to show (1) that the 22 claimant can perform other substantial gainful activity and (2) that a "significant 23 number of jobs exist in the national economy" which claimant can perform. Kail 24 v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 25 26 27 ALJ'S FINDINGS The ALJ found that Plaintiff has the following severe impairments: anxiety 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 4 1 disorder, not otherwise specified, with reports of panic episodes; trichotillomania; 2 personality disorder, not otherwise specified; and a history of substance abuse 3 disorder with ongoing alcohol use. The ALJ found that Plaintiff does not have an 4 impairment or combination of impairments that meets or medically equals any of 5 the impairments listed in 20 C.F.R. § 404 Subpart P, App. 1. The ALJ found that 6 plaintiff has the residual functional capacity (RFC) to perform a full range of 7 work at all exertional levels, but with the following non-exertional limitations: 8 mental limitations that preclude her from the performance of more than simple 9 routine tasks and preclude her from working in a setting with more than superficial 10 contact with the general public and co-workers. Based on Plaintiff’s RFC, age, 11 educational level and work experience, and the testimony of VE Thomas Polsin, 12 the ALJ found there are jobs that exist in significant numbers in the national 13 economy which the Plaintiff is capable of performing, specifically bakery helper, 14 warehouse laborer/laborer, stores; industrial cleaner; and small parts assembler. 15 Accordingly, the ALJ concluded the Plaintiff is not disabled. 16 17 18 MEDICAL OPINION EVIDENCE/RFC The Commissioner must provide "clear and convincing reasons" for 19 rejecting the uncontradicted opinion of an examining physician. The opinion of an 20 examining doctor, even if contradicted by another doctor, can only be rejected for 21 “specific and legitimate reasons” that are supported by substantial evidence in the 22 record. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995)(citations omitted). 23 Plaintiff contends the ALJ erroneously concluded that psychologist Roland 24 Dougherty, Ph.D., opined that Plaintiff had only moderate impairments. Dr. 25 Dougherty first examined the Plaintiff in September 2006 as part of a “Social 26 Security disability evaluation.” At that time, Plaintiff reported she had three 27 anxiety attacks in the last six weeks, with each attack lasting up to thirty minutes. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Tr. at p. 198). Dr. Dougherty offered the following “Medical Source Statement:” Melanie became pleasant and cooperative with me after some initial tension and anxiety. Her verbal skills are good. She reports a history of very good academic functioning in her earlier years and her intelligence appears to be good. She should be able to carry out most practical job-related skills adequately. Her greatest difficulties are likely to be interpersonal. She is extremely concerned about her appearance and [if] she is not able to alter her trichotillomania, this may continue to be an obstacle. She is also generally tense in relationships and counseling should be helpful in this area. She appears to be committed to taking care of two younger children despite the stress involved. I believe that she would like to continue her schooling and should be able to do somewhat better as she matures, with some psychotherapeutic assistance. (Tr. at p. 205). Dr. Dougherty assigned Plaintiff a Global Assessment of Functioning (GAF) score of 51. A GAF score between 51and 60 indicates “moderate symptoms” or “moderate” difficulty in social, occupational, or school functioning. American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, (4th ed. Text Revision 2000)(DSM-IV-TR). Dr. Dougherty saw the Plaintiff again in March 2009. Plaintiff was referred for a psychological evaluation by her children’s social worker. Dr. Dougherty’s “[a]ssistance was sought in determining [Plaintiff’s] psychological status and its implication for case planning.” (Tr. at p. 292). Plaintiff reported that she was “doing well emotionally” and that she did not “generally suffer from depression or anxiety,” although “[s]he gets anxious in very large crowds or in a busy working environment.” (Tr. at p. 296). Plaintiff reported “some difficulties with social discomfort though she is not likely to be generally socially isolated or withdrawn and she may speak with some others with relative ease.” (Tr. at p. 299). Dr. Dougherty considered Plaintiff’s “prognosis as a parent to be guarded.” (Tr. at p. 302)(Emphasis added). According to him: There is some evidence of an underlying anxiety disorder ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 6 1 2 3 4 5 6 7 8 9 resulting in rather extreme social discomfort and trichotillomania. I believe that a psychiatric evaluation is in order to determine whether medication might be useful to her, if she becomes open to it. I also believe that she needs to be in long-term, weekly psychotherapy to address these sorts of issues noted above. Only clear evidence of progress in therapy would change her prognosis appreciably. Her excessive defensiveness suggests that a goal-directed treatment approach may be useful at first. It may be some time before she is able to trust her counselor adequately for real progress to be made, though superficial compliance may be expected at first. Hopefully, the clinical hypotheses noted above may be of use to her therapist in planning and conducting therapy. (Tr. at p. 302). Dr. Dougherty opined that Plaintiff’s GAF was 50 (Tr. at p. 301). A GAF 10 score of 41-50 means “serious” symptoms or “serious” impairment in either social, 11 occupational, or school functioning. A score of 50 is right at the borderline 12 between “moderate” and “serious” impairment. In 2009, Dr. Dougherty was 13 evaluating Plaintiff’s functioning as a parent, whereas in 2006, he evaluated her 14 ability to function in the workplace. Furthermore, there is no indication in the 15 record whether the Plaintiff subsequently underwent a psychiatric evaluation, was 16 prescribed and began taking medication, or underwent therapy, all as 17 recommended by Dr. Dougherty. And finally, Dr. Dougherty made no 18 comparison between the results of his 2006 evaluation and his 2009 evaluation, 19 and he did not indicate, expressly or implicitly, that Plaintiff’s mental condition 20 had deteriorated since 2006. 21 In April of 2007, Plaintiff was the subject of an initial assessment by Central 22 Washington Comprehensive Mental Health (CWCMH). Nina Rapisarda, M.S.W., 23 opined Plaintiff’s current GAF was 44, but she did not meet the “access to care 24 criteria” because “[h]er depressive symptoms are not significant enough to warrant 25 a Major Depressive disorder diagnosis and Anxiety is not currently a diagnosis 26 that currently meets access to care,” and “[s]he does not have any discernable 27 PTSD [post-traumatic stress disorder] symptoms.” (Tr. at p. 265). 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 7 1 In June of 2009, Plaintiff was the subject of an intake assessment by Central 2 Washington Comprehensive Mental Health (CWCMH). Consistent with Dr. 3 Dougherty’s 2009 recommendations, and possibly pursuant thereto, it was noted 4 that Plaintiff “would benefit from a psychiatric evaluation for possible medical 5 management, . . . bi-weekly to monthly individual therapy and possible weekly . . . 6 group.” (Tr. at p. 309). The intake assessors, Katherine Schorman, M.A., and 7 Deborah Blaine, M.S., opined that Plaintiff’s current GAF was 45 and that this had 8 been her highest GAF in the past year. (Tr. at p. 309). This was, however, only an 9 intake assessment. The Plaintiff was discharged at intake because she did not 10 meet “access to care standards.” Instead, she was referred to Catholic Family 11 Services for possible therapy. 12 In March 2010, Plaintiff was the subject of an “Adult Intake Assessment” at 13 Catholic Family Services (CFS). This was court-ordered for “anger management” 14 as a result of a domestic violence incident between Plaintiff and her boyfriend at 15 the time. (Tr. at p. 312). Plaintiff indicated she was seeking the “proper therapy” 16 she needed. (Tr. at p. 312). The CFS clinician, Jennifer Obeid-Campbell, MS., 17 indicated Plaintiff’s GAF was 41 because she “is unable to maintain employment, 18 has no friends, per her report, and is unable to manage her emotions . . . prefers not 19 to leave her home and has poor interpersonal skills.” (Tr. at p. 320). 20 The ALJ properly discounted the GAF assessments by CWCMH and CFS. 21 The ALJ properly noted they were the “result[] of . . . first-time intake evaluations 22 without the benefit of review of any historical treating source medical records. 23 (Tr. at p. 23). 24 differences between Dr. Dougherty’s 2006 and 2009 evaluations, and the purpose 25 of the 2009 evaluation, substantial evidence supports the ALJ’s conclusion that 26 the GAF assessments by CWCMH and CFS were inconsistent with Dr. 27 Dougherty’s opinion. (Tr. at p. 24). The ALJ’s RFC finding is consistent with Dr. Additionally, based on the discussion set forth above regarding the 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 8 1 Dougherty’s 2006 disability evaluation. Furthermore, it is not inconsistent with 2 his 2009 evaluation of Plaintiff’s ability to function as a parent.1 3 In October 2006, Sharon Underwood, Ph.D., completed a “Psychiatric 4 Review Technique” form for Disability Determination Services (DDS) based on 5 the record before her, presumably including the evaluation completed by Dr. 6 Dougherty in September 2006. Part of the form was a “Mental Residual 7 Functional Capacity Assessment” in which Dr. Underwood opined that Plaintiff 8 was “moderately limited” in her ability to get along with coworkers or peers 9 without distracting them or exhibiting behavioral extremes, “moderately limited” 10 in her ability to accept instructions and respond appropriately to criticism from 11 supervisors, and “markedly limited” in her “ability to interact appropriately with 12 the general public.” (Tr. at p. 221). This assessment is not inconsistent with 13 anything reported or opined by Dr. Dougherty and, more importantly, is consistent 14 with the RFC found by the ALJ: mental limitations that preclude her from the 15 16 17 18 19 20 21 22 23 24 25 26 27 1 It is noted that the recently released Fifth Edition of the American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders dispenses entirely with GAF scores. The rationale offered by the American Psychiatric Association (APA) is: Clinician-researchers at the APA have conceptualized need for treatment as based on assessments of diagnosis, severity of symptoms and diagnosis, dangerousness to self or others, and disability in social and self-care spheres. We do not believe that a single score from a global assessment, such as the GAF, conveys information to adequately assess each of the components, which are likely to vary independently over time. Further, we are concerned about evidence that the GAF requires specific training for proper use, and that good reliability and prediction of outcomes in routine clinical practice may depend on such training. “Insurance Implications of DSM-5,” authored by the American Psychiatric Association, found at www.psychiatry.org 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 9 1 performance of more than simple routine tasks and preclude her from working in a 2 setting with more than superficial contact with the general public and co-workers. 3 This is borne out by Dr. Underwood’s remarks accompanying her assessment: 4 5 6 Capable of simple and detailed tasks. Able to get along with others on superficial basis. She is cooperative but feels anxious around others, particularly people she doesn’t know. She would do best working alone or with a few others. She has sufficient pace and is capable of tolerating changes. 7 (Tr. at p. 221). Based on the RFC presented to him, the VE identified jobs in 8 which the Plaintiff would be “working alone or with a few others.” 9 10 11 VE HYPOTHETICAL/CREDIBILITY OF PLAINTIFF At the hearing before the ALJ, Plaintiff testified she has “crying spells” 12 brought on by stress and will “lock [herself] up for about an hour and . . . cry if 13 I’m feeling, like, too stressed or anything.” (Tr. at p. 45). Asked to describe her 14 worst days, Plaintiff said that on those days she will fight with her boyfriend by 15 criticizing him for the “tiniest” thing. She says this will happen about once or 16 twice a week. (Tr. at p. 46). Plaintiff’s counsel asked the VE about the impact of 17 an individual whose mental impairments caused her to take extra breaks during the 18 workday beyond the normal breaks. The VE testified that a person who had to 19 take extra breaks on a frequent basis, even assuming they could secure 20 employment, would not remain employed very long. (Tr. at p. 54-55). 21 Plaintiff contends it was error for the ALJ to not include these “panic 22 attacks” in her RFC finding and in her hypothetical to the VE. The court 23 disagrees. The medical record did not support including such a limitation in the 24 RFC finding and in the VE hypothetical. In 2006, Plaintiff told Dr. Dougherty she 25 had three anxiety attacks in the last six weeks. (Tr. at p. 198). Even so, Dr. 26 Dougherty opined “[s]he should be able to carry out most practical job-related 27 skills adequately” and indicated she would have “moderate” difficulty in social, 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 10 1 occupational, or school functioning. In 2009, Plaintiff reported to Dr. Dougherty 2 that she was “doing well emotionally” and that she did not “generally suffer from 3 depression or anxiety,” although “[s]he gets anxious in very large crowds or in a 4 busy working environment.” (Tr. at p. 296). She also reported “some difficulties 5 with social discomfort though she is not likely to be generally socially isolated or 6 withdrawn and she may speak with some others with relative ease.” (Tr. at p. 7 299). Based primarily on Dr. Dougherty’s assessments, the ALJ found that one of 8 Plaintiff’s severe impairments is an anxiety disorder “with reports of panic 9 episodes” by the Plaintiff. (Tr. at p. 16). The frequency of these episodes was, 10 however, legitimately called into question by the ALJ based on what Plaintiff told 11 Dr. Dougherty and due to other issues concerning Plaintiff’s credibility, as 12 discussed below. 13 An ALJ can only reject a plaintiff’s statement about limitations based upon 14 a finding of “affirmative evidence” of malingering or “expressing clear and 15 convincing reasons” for doing so. Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th 16 Cir. 1996). "In assessing the claimant's credibility, the ALJ may use ordinary 17 techniques of credibility evaluation, such as considering the claimant's reputation 18 for truthfulness and any inconsistent statements in her testimony." Tonapeytan v. 19 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). See also Thomas v. Barnhart, 278 20 F.3d 947, 958 (9th Cir.2002)(following factors may be considered: 1) claimant's 21 reputation for truthfulness; 2) inconsistencies in the claimant's testimony or 22 between her testimony and her conduct; 3) claimant’s daily living activities; 4) 23 claimant's work record; and 5) testimony from physicians or third parties 24 concerning the nature, severity, and effect of claimant's condition). 25 The ALJ offered “clear and convincing reasons” supported by substantial 26 evidence in the record that Plaintiff’s testimony regarding limitations stemming 27 from her mental impairments was not fully credible. This evidence is set forth in 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 11 1 detail in the ALJ’s written decision. (Tr. at pp. 21-22). It includes the opinions of 2 experts (Drs. Dougherty and Underwood) concerning the nature, severity and 3 effect of Plaintiff’s impairments; inconsistencies between her testimony and what 4 she reported to health providers (testifying to extreme social limitation and yet 5 indicating she engages in “social drinking;” testifying to extreme anxiety, yet 6 choosing to live with a boyfriend involved in drug and alcohol abuse which 7 resulted in criminal charges against her); activities of daily living (previously 8 caring for three children and currently caring for an infant, cleaning house daily, 9 eating dinner with her boyfriend’s family with whom she resides); failure to 10 appear for consultative examinations, failure to return phone calls and/or respond 11 to mailed correspondence regarding her application for benefits; and non- 12 compliance with recommended treatment and a treatment history that was 13 otherwise minimal, inconsistent, conservative and routine. 14 CONCLUSION 15 16 Substantial evidence supports the Commissioner’s decision that Plaintiff 17 had not been disabled for any continuous 12 month period after July 24, 2006, the 18 alleged onset date. Accordingly, Defendant’s Motion For Summary Judgment 19 (ECF No. 20) is GRANTED and Plaintiff’s Motion For Summary judgment (ECF 20 No. 14) is DENIED. The Commissioner’s decision denying benefits is 21 AFFIRMED. 22 IT IS SO ORDERED. The District Executive shall enter judgment 23 accordingly and forward copies of the judgment and this order to counsel. 24 DATED this 1st of October, 2013. 25 26 27 28 s/Lonny R. Suko LONNY R. SUKO United States District Judge ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 12
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