Hinson v. Colvin, No. 2:2013cv00083 - Document 19 (E.D. Wash. 2014)

Court Description: ORDER Granting (ECF No 15 ) Defendant's Motion for Summary Judgment Signed by Magistrate Judge John T. Rodgers. (LS, Courtroom Deputy)

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1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF WASHINGTON 5 6 TIMOTHY G. HINSON, 7 Plaintiff, 8 9 No. 2:13-CV-0083-JTR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT v. 10 CAROLYN W. COLVIN, 11 Commissioner of Social Security, 12 13 14 Defendant. BEFORE THE COURT are Cross-Motions for Summary Judgment. ECF 15 No. 14, 15. Attorneys Maureen J. Rosette and Dana Chris Madsen represent 16 Timothy G. Hinson (Plaintiff); Special Assistant United States Attorney L. Jamala 17 Edwards represents the Commissioner of Social Security (Defendant). The parties 18 have consented to proceed before a magistrate judge. ECF No. 6. After reviewing 19 the administrative record and briefs filed by the parties, the Court GRANTS 20 Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s Motion for 21 Summary Judgment. 22 JURISDICTION 23 Plaintiff protectively filed applications for Disability Insurance Benefits and 24 Supplemental Security Income Benefits on November 28, 2006, alleging disability 25 since October 1, 2006, due to Hepatitis B & C, joint deterioration, and “shattered 26 hip and femur.” Tr. 365-370, 451. The applications were denied initially and upon 27 reconsideration. Administrative Law Judge (ALJ) R.J. Payne held hearings on 28 September 4, 2008, and June 4, 2009, Tr. 54-158, and issued unfavorable decisions ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 on September 30, 2008, Tr. 210-220, and June 18, 2009, Tr. 229-238. On each 2 occasion, the Appeals Council remanded the matter for additional proceedings. 3 ALJ Donna W. Shipps held a hearing in compliance with the Appeals Council’s 4 second remand directive on June 4, 2009, Tr. 159-197, and issued a third 5 unfavorable decision on August 4, 2010, Tr. 25-42. The Appeals Council denied 6 review on January 4, 2013. Tr. 1-6. ALJ Shipps’ August 2010 decision became 7 the final decision of the Commissioner, which is appealable to the district court 8 pursuant to 42 U.S.C. § 405(g). Plaintiff filed this action for judicial review on 9 February 28, 2013. 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 May 4, 1962, and was 44 years old on the alleged onset 15 date, October 1, 2006. Tr. 75. He completed the seventh grade in school and has 16 not obtained a GED. Tr. 76-77. He indicated he quit school because he was 17 emancipated at age 15 and came to Spokane to work. Tr. 77. At the administrative 18 hearing held in September 2008, Plaintiff testified he stopped working his last job 19 as a waiter in October 2006 because he could no longer physically perform the job 20 task of carrying trays. Tr. 78-79. With respect to mental impairments, he testified 21 he received counseling following a nervous breakdown at age 14, currently had “a 22 lot of depression,” and did not like to be around people. Tr. 110-112. Plaintiff 23 testified at the June 4, 2009, administrative hearing that he quit using alcohol and 24 illegal drugs about five or six months prior to the hearing. Tr. 154. He stated he 25 sleeps 12 hours a day, cannot do anything, and does not go anywhere. Tr. 144. He 26 testified he spends his days laying around and watching television. Tr. 148. He 27 indicated he does not like to leave his house very often and did not like to be 28 around people. Tr. 148-150. At the July 15, 2010, administrative hearing, Plaintiff ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 testified he did not “really do much of anything” other than sit at home. Tr. 165- 2 166. He indicated he had not used alcohol or drugs for a year and a half. Tr. 174. 3 Plaintiff testified his “mental state is not so hot,” described himself as “manic- 4 depressive” and indicated he experienced crying spells and anxiety attacks. Tr. 5 172, 174, 185. Plaintiff, however, stated he was not seeing anyone for mental 6 health issues. Tr. 172-173. 7 ADMINISTRATIVE DECISION 8 ALJ Shipps found that Plaintiff had not engaged in substantial gainful 9 activity since October 1, 2006, the alleged onset date. Tr. 28. She determined, at 10 step two, that Plaintiff had the following severe impairments: post-traumatic and 11 degenerative arthrosis – bilateral hips and left shoulder; internal derangement, 12 subacromial/subdeltoid bursitis and degenerative change of the AC joint – left 13 shoulder; chronic obstructive pulmonary disease (COPD); asthma; status-post left 14 inguinal hernia repair; status-post hip and femur fractures; hepatitis; anti-social 15 personality disorder; and polysubstance abuse in full sustained remission. Tr. 28. 16 At step three, ALJ Shipps found Plaintiff’s severe impairments did not meet or 17 medically equal a listed impairment. Tr. 28. ALJ Shipps assessed Plaintiff’s RFC 18 and determined he could perform light exertion level work with the following 19 limitations: he is limited to occasional pushing, pulling, and reaching in all 20 directions with his left upper extremity; he can frequently balance; he can 21 occasionally stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, or 22 scaffolds; he should avoid exposure to fumes, odors, dusts, gases, and hazards such 23 as machinery or heights; he is limited to simple and/or well-learned complex tasks; 24 he could not perform food preparation or handling; his attention and concentration 25 would wane episodically; he would perform best in isolated environments but is 26 capable of superficial contact with co-workers; he would do best away from the 27 demands of the general public; he requires supervision to be firm but fair; and he 28 would benefit from a routine environment. Tr. 33. ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 At step four, ALJ Shipps concluded Plaintiff had no past relevant work. Tr. 2 40. At step five, ALJ Shipps found that, considering Plaintiff’s age, education, 3 work experience and RFC, and based on the testimony of the vocational expert, 4 Plaintiff was able to perform work existing in significant numbers in the national 5 economy. Tr. 40-41. The ALJ thus determined that Plaintiff was not under a 6 disability within the meaning of the Social Security Act at any time from October 7 1, 2006, the alleged onset date, through the date of the ALJ’s decision, August 4, 8 2010. Tr. 41. 9 10 11 12 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 13 reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The 14 decision of the Commissioner may be reversed only if it is not supported by 15 substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 16 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a 17 mere scintilla, but less than a preponderance. Id. at 1098. Put another way, 18 substantial evidence is such relevant evidence as a reasonable mind might accept 19 as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 20 (1971). If the evidence is susceptible to more than one rational interpretation, the 21 Court may not substitute its judgment for that of the Commissioner. Tackett, 180 22 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 23 (9th Cir. 1999). 24 The ALJ is responsible for determining credibility, resolving conflicts in 25 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 26 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 27 although deference is owed to a reasonable construction of the applicable statutes. 28 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 It is the role of the trier of fact, not this Court, to resolve conflicts in 2 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 3 rational interpretation, the Court may not substitute its judgment for that of the 4 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 5 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 6 still be set aside if the proper legal standards were not applied in weighing the 7 evidence and making the decision. Brawner v. Secretary of Health and Human 8 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to 9 support the administrative findings, or if conflicting evidence exists that will 10 support a finding of either disability or non-disability, the Commissioner’s 11 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 12 Cir. 1987). 13 SEQUENTIAL EVALUATION PROCESS 14 The Commissioner has established a five-step sequential evaluation process 15 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 16 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 17 through four, the burden of proof rests upon the claimant to establish a prima facie 18 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 19 burden is met once a claimant establishes that a physical or mental impairment 20 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 21 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 22 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 23 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 24 in the national economy which claimant can perform. Batson v. Commissioner of 25 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 26 an adjustment to other work in the national economy, a finding of “disabled” is 27 made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 ISSUE 2 The question presented is whether substantial evidence exists to support the 3 ALJ’s decision denying benefits and, if so, whether that decision is based on 4 proper legal standards. 5 Plaintiff contends the ALJ erred because he is more limited from a 6 psychological standpoint than what was determined by the ALJ in this case. ECF 7 No. 14 at 12. Plaintiff specifically argues the ALJ failed to properly consider the 8 opinions of examining medical sources regarding Plaintiff’s psychological 9 limitations. ECF No. 14 at 12-20. 10 DISCUSSION 11 As noted above, Plaintiff’s contention in this case is that the ALJ erred by 12 failing to accord proper weight to the opinions of certain medical professionals 13 regarding his psychological limitations. ECF No. 15 at 8-15. Plaintiff argues the 14 opinions expressed by Andrew B. Forsyth, Ph.D., on January 15, 2004; Pamela S. 15 Ridgway, Ph.D, on July 8, 2008; Victoria Carroll, M.S., and W. Scott Mabee, 16 Ph.D., on November 12, 2008; and Dr. Mabee on October 29, 2009, demonstrate 17 he is more limited from a psychological standpoint than what was determined by 18 the ALJ in this case. ECF No. 15 at 12-15. 19 It is the responsibility of the ALJ to determine credibility, resolve conflicts 20 in medical testimony and resolve ambiguities. Saelee v. Chater, 94 F.3d 520, 522 21 (9th Cir. 1996). This Court has a limited role in determining whether the ALJ’s 22 decision is supported by substantial evidence and may not substitute its own 23 judgment for that of the ALJ even if it might justifiably have reached a different 24 result upon de novo review. 42 U.S.C. § 405(g). When the ALJ has made specific 25 findings justifying a decision, and those findings are supported by substantial 26 evidence in the record, a court is not permitted to second-guess that decision. Fair 27 v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 The ALJ indicated that the objective medical evidence did not support the 2 level of mental limitation claimed by Plaintiff and that Plaintiff’s substance abuse 3 during the relevant time period detracted from his overall credibility. Tr. 37. The 4 ALJ noted Plaintiff’s substance use during a portion of the relevant time period 5 exacerbated his symptoms; however, with abstinence from substances and with 6 medication, his depressive symptoms appeared to be controlled. Tr. 40. The ALJ 7 found that Plaintiff has moderate difficulties in social functioning and moderate 8 difficulties in concentration, persistence and pace, Tr. 31-32, and concluded that 9 while the record reflects Plaintiff has some decreased function as a result of his 10 mental impairments, it is not to the point that he is precluded from work. Tr. 40. 11 The moderate limitations assessed by the ALJ are reflected in the ALJ’s RFC 12 determination which held that Plaintiff would be limited to simple and/or well- 13 learned complex tasks, his attention and concentration would wane episodically, he 14 would perform best in isolated environments but is capable of superficial contact 15 with co-workers, he would do best away from the demands of the general public, 16 he requires supervision to be firm but fair, and he would benefit from a routine 17 environment. Tr. 33. The undersigned finds the ALJ’s interpretation of the 18 medical record is supported by substantial evidence. See infra. 19 1. 20 Dr. Forsyth performed a psychological evaluation of Plaintiff on January 15, 21 2004, to identify barriers to employment and to assist with DSHS service planning. 22 Tr. 610. Plaintiff reported at that time that he used marijuana every chance he got, 23 had been “a serious alcoholic for a lot of years” but was only a light drinker at that 24 time, and had served a combined year or so in jail related to several domestic 25 violence arrests. Tr. 611-612. Plaintiff indicated he spent several hours a day at 26 his uncle’s place playing chess and smoking marijuana. Tr. 613. 27 28 Dr. Forsyth, January 2004 Evaluation Dr. Forsyth reported Plaintiff’s MMPI-2 was invalid as the validity scales reflected “moderately high response inconsistency together with apparent ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 overreporting of severe psychopathology, which likely stemmed from an attempt to 2 appear as distressed as possible under the circumstances.” Tr. 613. It was noted, 3 however, that Plaintiff came across as socially comfortable and facile. Tr. 614. 4 Dr. Forsyth diagnosed Cannabis Dependence, Rule Out Alcohol Abuse, Partner 5 Relational Problem, Adjustment Disorder with Mixed Disturbance of Emotions 6 and Conduct and Personality Disorder, NOS, antisocial, borderline traits, and gave 7 Plaintiff a Global Assessment of Functioning Score of 55.1 Dr. Forsyth opined that 8 Plaintiff was capable of performing unskilled/semi-skilled work such as janitorial, 9 fast food preparation, dishwashing, simple assembly and stocking shelves/bagging 10 11 groceries. Tr. 615. The ALJ did not address Dr. Forsyth’s report as it was produced more than 12 two years prior to the October 2006 alleged onset date. However, contrary to 13 Plaintiff’s briefing, ECF No. 14 at 13, Dr. Forsyth’s opinion, as outlined above, 14 clearly does not contradict the ALJ’s RFC determination in this case. 15 2. Dr. Michels, February 2005 Evaluation 16 On February 2, 2005, Plaintiff was examined by Paul Michels, M.D. Tr. 17 574-580. Dr. Michels’ referenced the psychological evaluation completed by Dr. 18 Forsyth in 2004; specifically, the invalid MMPI as a result of Plaintiff’s “attempt 19 to appear as distressed as possible under the circumstances.” Tr. 574. Dr. Michels 20 diagnosed Antisocial Personality Disorder and gave Plaintiff a GAF score of 21 22 1 A GAF of 60-51 reflects moderate symptoms or moderate difficulty in 23 social, occupational, or school functioning. See Diagnostic and Statistical Manual 24 of Mental Disorders 32 (4th ed. 1994). However, “[i]t was recommended that the 25 GAF be dropped from the DSM-5 for several reasons, including its conceptual lack 26 of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) 27 and questionable psychometrics in routine practice.” Diagnostic And Statistical 28 Manual of Mental Disorders, 16 (5th ed. 2013). ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 approximately 65-70.2 Dr. Michels stated “[i]t seems fairly apparent [Plaintiff] is 2 making a conscious effort to leave out some information, as he seems quite capable 3 of providing coherent longitudinal information about his background and 4 symptoms except when it comes to legal history, custody issues, and substance 5 use.” Tr. 579. Dr. Michels indicated Plaintiff’s focus and concentration seemed 6 good, his pace and persistence seemed adequate, he seemed to have the intellectual 7 capacity to understand, remember, and follow both complex and simple 8 instructions, though he may perceive certain tasks as inappropriate and likely not 9 follow through with those tasks, his interactions with others would likely pose the 10 greatest difficulty, and stress would likely cause transient worsening in his 11 subjective sense of distress and would likely lead to further antisocial behaviors. 12 Tr. 580. 13 The parties’ briefing fails to discuss Dr. Michels’ report. However, the ALJ 14 indicated that although Dr. Michels’ evaluation is dated prior to Plaintiff’s alleged 15 onset date, his opinion was accorded “some weight” as the medical evidence of 16 record included no significant treatment or evaluation of mental conditions until 17 July 2008. Tr. 37-38. The ALJ appropriately accorded some weight to Dr. 18 Michels’ pre-alleged onset date opinion which demonstrated Plaintiff “frequently 19 contradicted himself,” was “evasive in describing his past substance use history,” 20 and tended to “potentially embellish” some of his symptoms. Tr. 37. 21 3. Dr. Ridgway, July 2008 Evaluation 22 On July 8, 2008, Dr. Ridgway completed a psychological evaluation of 23 Plaintiff. Tr. 824-831. During the examination, Plaintiff denied current alcohol 24 use, but when informed that the examiner could smell alcohol on his breath, he 25 admitted to having “one beer yesterday.” Tr. 829. It was noted “[t]he odor of 26 27 28 2 A GAF of 70-61 is characterized as mild symptoms or mild difficulty in social, occupational, or school functioning, but generally functioning pretty well. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 alcohol was detected from the claimant upon his arrival, and throughout the 2 evaluation.” Tr. 830. The results of the Personality Assessment Inventory (PAI) 3 were deemed invalid due to inconsistent responding, Tr. 830, and Dr. Ridgway 4 indicated “there were many inconsistencies in his reporting, and he is deemed to be 5 an unreliable reporter,” Tr. 831. 6 Dr. Ridgway diagnosed Alcohol Abuse; Rule Out Alcohol Dependence; and 7 Personality Disorder, NOS, with antisocial and borderline traits, and assessed a 8 GAF score of 55-60, indicative of moderate symptoms or moderate difficulty. Tr. 9 831. Dr. Ridgway opined that Plaintiff did not appear to exhibit significant 10 difficulties with concentration, persistence, and/or pace, but did appear to have 11 difficulties in the area of interpersonal and social functioning, which could limit his 12 ability to effectively interact with the general public and/or get along with 13 coworkers and supervisors. Tr. 831. Although Dr. Ridgway checked boxes on a 14 check-box psychological/psychiatric evaluation form3 indicating Plaintiff had 15 marked limitations in his ability to exercise judgment and make decisions and to 16 relate appropriately to co-workers and supervisors, Tr. 826, the narrative portion of 17 Dr. Ridgway’s report and GAF score did not reflect limitations of this severity. 18 The ALJ accorded “great weight” to Dr. Ridgway’s report, finding her 19 opinion consistent with the other accepted medical source opinions and based on 20 the fact that Dr. Ridgway considered Plaintiff’s substance abuse when making her 21 diagnoses. Tr. 38. The ALJ accounted for Dr. Ridgway’s findings of difficulties 22 in the area of interpersonal and social functioning, Tr. 831, by concluding Plaintiff 23 would work best in isolated environments, but would be capable of superficial 24 25 3 A check-box form is entitled to little weight. Crane v. Shalala, 76 F.3d 26 251, 253 (9th Cir. 1996) (stating that the ALJ’s rejection of a check-off report that 27 did not contain an explanation of the bases for the conclusions made was 28 permissible). ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 contact with co-workers, would work best away from the demands of the general 2 public, would require supervision to be firm but fair, and would benefit from a 3 routine environment, Tr. 33. 4 4. Dr. Mabee and Ms. Carroll, November 2008 Evaluation 5 In November 2008, Plaintiff was examined by Victoria Carroll, MS, under 6 the supervision of W. Scott Mabee, Ph.D. Tr. 898-909. Plaintiff reported he was 7 unable to work due to panic attacks, depression and chronic pain. Tr. 904. 8 Plaintiff reported he had used methamphetamine on a daily basis four years prior to 9 the examination, but stopped using the drug three years ago. Tr. 906. He also 10 reported daily marijuana use since age 12, last using a week prior to the evaluation, 11 and alcohol abuse since age 18, last using in July 2008. Tr. 906. Plaintiff was 12 administered the MMPI-2 which was deemed invalid. Tr. 907. 13 Plaintiff was diagnosed with Posttraumatic Stress Disorder, Chronic; Major 14 Depressive Disorder, Moderate; Pain Disorder Associated with both Psychological 15 Factors and General Medical Condition, Chronic; Alcohol Dependence, Early Full 16 Remission (per client report); and Borderline and Antisocial Features. Tr. 907- 17 908. Plaintiff was additionally given a current GAF score of 50.4 The medical 18 professionals noted Plaintiff reported “significant social anxiety beginning within 19 the last year.” Tr. 909. However, they found that if Plaintiff continued to abstain 20 from alcohol, he should be able to understand and follow simple and written 21 instructions, his pace of performance and persistence would be average, and his 22 ability to reason and use appropriate judgment in most aspects of his life would be 23 average. Tr. 909. They opined Plaintiff would have difficulties if tasks became 24 25 4 A GAF of 50-41 reflects: “[s]erious symptoms (e.g., suicidal ideation, 26 severe obsessive rituals, frequent shoplifting) or any serious impairment in social, 27 occupational, or school functioning (e.g., no friends, unable to keep a job).” 28 Diagnostic and Statistical Manual of Mental Disorders-IV 32 (4th ed. 1994). ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 more demanding or increased in physical demands, and that his occupational GAF 2 suggested he would have serious difficulties functioning in a typical work 3 environment. Tr. 909. The psychological/psychiatric evaluation form 4 accompanying the report reflected Plaintiff had marked limitations in his ability to 5 respond appropriately to and tolerate the pressures and expectations of a normal 6 work setting and in his ability to control physical or motor movements and 7 maintain appropriate behavior. Tr. 900. 8 9 The ALJ assigned “little weight” to the conclusions of Ms. Carroll/Dr. Mabee as they appeared to be based on Plaintiff’s subjective reports, they were 10 inconsistent with objective findings, and there was no indication Plaintiff’s 11 previous medical records were reviewed. Tr. 38. Plaintiff concedes his prior 12 medical records were not reviewed by Ms. Carroll/Dr. Mabee, but contends that 13 testing completed during the evaluation provides support for the conclusions 14 reached by these medical professionals. ECF No. 14 at 17. As indicated by the 15 ALJ, a review of the record likely would have shown Plaintiff’s history of 16 inconsistent reporting and reluctance to disclose his substance use. Tr. 38-39. As 17 further noted by the ALJ, Ms. Carroll/Dr. Mabee opined that any substance use 18 likely exacerbates his psychological issues, Tr. 38, 908, and it was apparent at the 19 time of the examination that Plaintiff continued to use marijuana and had 20 reportedly continued to drink alcohol up until at least just a few months prior to the 21 examination, Tr. 906. The ALJ appropriately determined Plaintiff’s substance use 22 was relevant to his symptomatology. Tr. 38. The ALJ provided valid reasons, 23 supported by the evidence of record, for according “little weight” to the report of 24 Ms. Carroll/Dr. Mabee. 25 5. Dr. Moore, June 2009 Testimony 26 At the June 4, 2009, administrative hearing, Margaret Moore, Ph.D., testified 27 as a medical expert. Tr. 135-141. Dr. Moore indicated that essentially every 28 evaluator of record had diagnosed a personality disorder, usually of the anti-social ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 type. Tr. 136. Dr. Moore identified the other primary issue as substance abuse. 2 Tr. 136. She mentioned that Plaintiff presented to an evaluation with Dr. 3 Ridgeway in July 2008 with alcohol on his breath and that inconsistent reporting 4 about substance abuse was prevalent throughout the record. Tr. 136-137. Dr. 5 Moore indicated evaluators noted Plaintiff’s rather dramatic and extreme claims 6 about his mood, but then describe Plaintiff’s actual presentation as not appearing 7 depressed or anxious and instead looking comfortable and easygoing. Tr. 137. Dr. 8 Moore opined that Plaintiff was exaggerating symptoms and minimizing activities, 9 including his substance abuse. Tr. 137-138. She opined Plaintiff would have a 10 moderate impairment in the social domain, Tr. 138, and a moderate limitation in 11 accepting instructions and responding appropriately to criticism, Tr. 139. 12 The ALJ found Dr. Moore’s testimony noteworthy because she pointed out 13 that Plaintiff’s mental impairments were of little significance for almost three years 14 of the relevant time period. Tr. 39. Dr. Moore’s testimony does not contradict the 15 RFC assessment of the ALJ. 16 6. Dr. Mabee, October 2009 Evaluation 17 On October 29, 2009, Plaintiff underwent a consultative examination with 18 Dr. Mabee. Tr. 959-968. The results of the PAI were invalid suggesting he 19 responded inconsistently to test questions and over reported his psychopathology. 20 Tr. 964. Nevertheless, Dr. Mabee indicated Plaintiff had marked limitations on his 21 ability to respond appropriately to and tolerate the pressures and expectations of a 22 normal work setting, to care for self, including personal hygiene and appearance, 23 and to maintain appropriate behavior in a work setting. Tr. 962. Dr. Mabee wrote 24 that Plaintiff had the ability to understand, remember and carry out simple, 25 repetitive tasks, but his fatigue and low motivation would lead him to only be able 26 to concentrate for short periods of time. Tr. 962. He opined that Plaintiff could 27 make simple work related decisions, work without close supervision, function best 28 in positions that have minimal contact with supervisors, co-workers, and the ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 general public, and could ask questions and take instructions with little difficulty. 2 Tr. 962. He further opined that, with improved mood, Plaintiff should be able to 3 maintain regular attendance of part-time work. Tr. 962. The ALJ did not accord Dr. Mabee’s opinion great weight, as it was 4 5 consistent only with Ms. Carroll’s evaluation and not with the other medical 6 provider opinions of record. Tr. 39. The ALJ also indicated Dr. Mabee did not 7 review any of Plaintiff’s prior medical history, except for Ms. Carroll’s evaluation, 8 and, without reviewing the prior history, Dr. Mabee missed what previous and 9 subsequent evaluators noted: Plaintiff tended to exaggerate and provide 10 misinformation during assessments. Tr. 39. The reasons provided by the ALJ for 11 according Dr. Mabee’s October 2009 report little weight are supported by the 12 evidence or record and free of error. 13 7. Dr. Severinghaus, December 2009 Evaluation 14 On December 6, 2009, John B. Severinghaus, Ph.D., completed a report 15 following a consultative examination of Plaintiff. Tr. 919-923. Dr. Severinghaus 16 diagnosed alcohol dependence, in sustained early remission, provisional; cannabis 17 dependence, in sustained early remission, provisional; past use of other street 18 drugs, in sustained remission, provisional; nicotine dependence; depressive 19 disorder NOS; anxiety disorder NOS, with post-traumatic aspects; history of 20 possible malingering, according to previous assessments; and personality disorder 21 NOS, with antisocial features and anger problems. Tr. 922. He also assessed a 22 GAF score of 55, indicative of moderate symptoms. Tr. 922. Dr. Severinghaus 23 indicated it was difficult to feel fully confident in Plaintiff’s statements, given his 24 history of possible malingering and “elements of his presentation today which 25 suggest a continuation of this pattern,” and opined that Plaintiff’s interpersonal 26 functioning had improved with cessation of substance abuse, but may continue to 27 be affected by dysphoria, anxiety or anger outbursts. Tr. 922-923. However, Dr. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 Severinghaus determined Plaintiff was not precluded from low stress interaction 2 with others. Tr. 923. 3 The ALJ gave Dr. Severinghaus’ opinion “great weight” as he was able to 4 review much of the medical evidence (though November 2009) and his assessment 5 was consistent with both his own objective findings and the other medical source 6 findings in general. Tr. 39. Dr. Severinghaus’ opinion does not conflict with the 7 ALJ’s RFC assessment, and the ALJ’s rationale for according Dr. Severinghaus’ 8 opinion “great weight” is entirely proper. 9 8. Dr. Gentile, December 2009 Report 10 On December 30, 2009, state agency reviewing physician, Mary Gentile, 11 Ph.D., completed a Mental Residual Functional Capacity Assessment form, Tr. 12 932-935, and a Psychiatric Review Technique form, Tr. 944-957. On the Mental 13 Residual Functional Capacity Assessment form, Dr. Gentile indicated Plaintiff 14 would be markedly limited in his ability to interact appropriately with the general 15 public, but otherwise determined Plaintiff was no more than moderately limited. 16 Tr. 932-933, 954. Dr. Gentile opined Plaintiff was capable of simple and well- 17 learned complex tasks, his attention and concentration would wane episodically 18 due to psychiatric symptoms, he would do best in more isolated environments, he 19 is capable of superficial coworker contact, he would do best away from the 20 demands of the general public, supervision should be firm but fair, he would 21 benefit from a routine environment as he is reactive to change, he should avoid 22 hazards while actively abusing substances, and he is capable of reaching the goals 23 set by others. Tr. 934. 24 The ALJ assigned “significant weight” to Dr. Gentile’s opinion based on the 25 same reasoning for giving great weight to the opinion of Dr. Severinghaus. Tr. 39. 26 The ALJ’s finding in this regard is appropriate. Dr. Gentile’s opinion is consistent 27 with the ALJ’s RFC determination, as well as the majority of the other medical 28 source findings of record. ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 9. Dr. Gardner, April 2010 Report 2 On April 14, 2010, state agency reviewing physician, Jerry Gardner, Ph.D., 3 reviewed the record and indicated Dr. Gentile’s December 2009 findings were 4 accurate. Tr. 973. Dr. Gardner noted recent records from Community Health 5 Association of Spokane, Tr. 971, reflected that Plaintiff’s depression was well 6 controlled with medication, Tr. 973. He concluded the limitations assessed by Dr. 7 Gentile appeared reasonable and appropriate given the updated findings and the 8 totality of the evidence in the file. Tr. 973. 9 10 This state agency reviewing physician report lends further support for the ALJ’s RFC assessment in this case. Tr. 39. 11 As noted above, it is the responsibility of the ALJ to determine credibility, 12 resolve conflicts in medical testimony and resolve ambiguities, Saelee, 94 F.3d at 13 522, and this Court may not substitute its own judgment for that of the ALJ, 42 14 U.S.C. § 405(g). Where, as here, the ALJ has made specific findings justifying a 15 decision, and those findings are supported by substantial evidence in the record, 16 our role is not to second-guess that decision. Fair, 885 F.2d at 604. Based on the 17 foregoing, the ALJ did not err by rejecting those portions of medical reports which 18 are not consistent with the ALJ’s RFC determination. As indicated above, the 19 ALJ’s rationale is supported by substantial record evidence and free of error. 20 Roberts, 66 F.3d at 184. The weight of the record evidence supports the ALJ’s 21 determinations in this case. 22 CONCLUSION 23 Having reviewed the record and the ALJ’s findings, the Court concludes the 24 ALJ’s decision is supported by substantial evidence and is not based on legal error. 25 Accordingly, 26 IT IS ORDERED: 27 1. 28 Defendant’s Motion for Summary Judgment, ECF No. 15, is GRANTED. ORDER GRANTING DEFENDANT’S MOTION . . . - 16 Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 1 2. 2 The District Court Executive is directed to file this Order and provide a copy 3 to counsel for Plaintiff and Defendant. Judgment shall be entered for 4 DEFENDANT and the file shall be CLOSED. 5 DATED February 7, 2014. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 17

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