Jackson v. Colvin, No. 2:2013cv03071 - Document 24 (E.D. Wash. 2014)

Court Description: ORDER Granting (ECF No 23 ) Defendant's Motion for Summary Judgment: Denying (ECF No 21 ) Plaintiff's Motion for Summary Judgment. Signed by Magistrate Judge John T. Rodgers. (LS, Courtroom Deputy)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 DAWN MICHELE JACKSON, 8 Plaintiff, 9 v. 10 No. 2:13-CV-3071-JTR ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 11 CAROLYN W. COLVIN, 12 Commissioner of Social Security, 13 Defendant. 14 15 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 16 No. 21, 23. Attorney D. James Tree represents Dawn Michele Jackson (Plaintiff); 17 Special Assistant United States Attorney Gerald J. Hill represents the 18 Commissioner of Social Security (Defendant). The parties have consented to 19 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 20 record and briefs filed by the parties, the Court GRANTS Defendant’s Motion for 21 Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 22 23 JURISDICTION Plaintiff protectively filed applications for Disability Insurance Benefits and 24 Supplemental Security Income on January 17, 2007, alleging disability since 25 November 1, 2006. Tr. 109, 117. Plaintiff alleges disability due to depression and 26 joint pain. Tr. 145. The applications were denied initially and upon 27 reconsideration. Administrative Law Judge (ALJ) Douglas Stults held a hearing 28 on September 1, 2009, Tr. 23-48, and issued an unfavorable decision on December ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 16, 2009, Tr. 10-20. Plaintiff appealed the decision to the United States District 2 Court, and, on April 9, 2012, Magistrate Judge Cynthia Imbrogno remanded the 3 matter for additional proceedings. Tr. 427-441. Judge Imbrogno’s thorough 4 remand order indicated that (1) ALJ Stults erred at Step Five because the 5 vocational expert’s testimony regarding the occupation of almond blancher 6 conflicted with the definition provided in the Dictionary of Occupational Titles; (2) 7 ALJ Stults erred by failing to provide germane reasons for rejecting Crisis Case 8 Manager Cindy Gregory’s opinions; and (3) ALJ Stults failed to include the 9 handling restrictions found by Tanvir Ahmad, M.D., in his RFC determination. Id. 10 With respect to Plaintiff’s argument as to Crystal Coffey, Pharm.D., Judge 11 Imbrogno concluded ALJ Stults provided a germane reason for giving little weight 12 to her opinions about Plaintiff’s mental functioning. Tr. 437-439.1 The Appeals 13 Council vacated the original decision and remanded the case. Tr. 449. 14 A new hearing was conducted by ALJ Laura Valente on February 12, 2013. 15 Tr. 375-408. ALJ Valente issued a partially favorable decision on April 26, 2013. 16 Tr. 324-338. ALJ Valente found Plaintiff met the Listings criteria of sections 17 12.04 and 12.06 beginning on May 21, 2009. Tr. 334-337. Plaintiff filed this 18 action for judicial review on July 11, 2013, ECF No. 1, challenging ALJ Valente’s 19 determination that Plaintiff was not disabled prior to May 21, 2009, Tr. 324-334. 20 21 STATEMENT OF FACTS The facts of the case are set forth in the administrative hearing transcripts, 22 the ALJ’s decisions, and the briefs of the parties. They are only briefly 23 summarized here. 24 25 1 Judge Imbrogno determined the ALJ provided a germane reason for giving 26 little weight to Ms. Coffey’s opinions about Plaintiff’s mental health functioning – 27 the mental health evaluation of Plaintiff was outside Ms. Coffey’s expertise in 28 medication management. Tr. 439. ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 Plaintiff was born on April 12, 1961, Tr. 28, and was thus 45 years old on 2 the November 2006 alleged onset date. Plaintiff has an eighth grade education. 3 Tr. 28. Plaintiff testified at the September 2009 administrative hearing that she 4 continued to work on a part-time basis cleaning vacant apartments after the alleged 5 onset date (in 2007 and 2008). Tr. 29-31. 6 Plaintiff testified in September 2009 she spent her days working in her yard. 7 Tr. 34. She indicated she prepared her own meals, performed housecleaning 8 activities, did her own laundry, shopped for groceries and cared for a dog. Tr. 34- 9 35. Plaintiff stated she would draw and work in her yard for recreation, visited her 10 11 children and a grandchild, and attended church at least twice a month. Tr. 35-36. At the February 2013 hearing, counsel for Plaintiff stated Plaintiff had spent 12 the last two-and-a-half years living in a storage shed and had just moved into a 13 house a couple of months prior to the hearing. Tr. 385. Plaintiff indicated she was 14 not currently attending mental health treatment because counselors only wanted to 15 talk to her “girls,” who are apparently two auditory hallucinations. Tr. 387. She 16 testified she did not have a problem with drugs or alcohol: she did not drink, do 17 drugs or take “mental health pills.” Tr. 392. When asked if she had ever used 18 drugs like methamphetamines, she stated it was “[her] business if [she] ever used 19 drugs.” Tr. 392. When asked a second time whether she had ever used drugs, 20 Plaintiff responded “no.” Tr. 393. Plaintiff was upset and emotional throughout 21 the hearing and eventually exited the hearing prior to its conclusion. Tr. 399. 22 23 ADMINISTRATIVE DECISION ALJ Valente found that although Plaintiff had worked after November 1, 24 2006, the alleged disability onset date, Plaintiff had not engaged in substantial 25 gainful activity since that date. Tr. 327. The ALJ determined, at step two, that 26 Plaintiff had the following severe impairments since the alleged onset date: 27 schizoaffective disorder, depressive type; adjustment disorder; anxiety disorder; 28 personality disorder; and alcohol abuse, in remission. Tr. 327. The ALJ noted ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 Plaintiff also had the severe impairment of degenerative disk disease of the lumbar 2 spine since May 14, 2009. Tr. 327. At step three, the ALJ concluded Plaintiff did 3 not meet or medically equal one of the listed impairments prior to May 21, 2009, 4 Tr. 328, but, beginning on May 21, 2009, the severity of Plaintiff’s impairments 5 met the criteria of sections 12.04 (affective disorders) and 12.06 (anxiety related 6 disorders), Tr. 334. The ALJ assessed Plaintiff’s RFC and determined that, prior to 7 May 21, 2009, Plaintiff could perform medium work with the following 8 limitations: she was limited to simple work; she had sufficient concentration to 9 understand, remember and carry out simple, repetitive tasks; she could sustain 10 attention and concentration in two hour increments with usual and customary 11 breaks throughout an eight-hour workday for simple, repetitive tasks; she could 12 work in proximity to an unlimited number of coworkers, but could not work in 13 coordination with them; she was not likely to be a distraction to her coworkers; she 14 could respond to simple workplace changes as would be consistent with simple, 15 repetitive tasks; she could set work-related goals as would be required for simple, 16 repetitive tasks; she required hands-on demonstration to initially learn new tasks; 17 and she required an additional 10 minutes per day during the initial learning period 18 to learn the new tasks. Tr. 329. 19 At step four, the ALJ found that, prior to May 21, 2009, Plaintiff was 20 capable of performing her past relevant work as a home attendant, janitor, floor 21 attendant, automobile self-serve gas station attendant and cleaner/housekeeper. Tr. 22 332. In the alternative, at step five, the ALJ concluded that, prior to May 21, 2009, 23 considering Plaintiff’s age, education, work experience and RFC, and based on the 24 testimony of the vocational expert, there were jobs existing in significant numbers 25 in the national economy that Plaintiff could have performed. Tr. 333-334. The 26 ALJ thus determined Plaintiff was not under a disability within the meaning of the 27 Social Security Act at any time from November 1, 2006, the alleged onset date, 28 until the date of May 21, 2009, Tr. 334, but was disabled, within the meaning of ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 the Social Security Act, beginning on May 21, 2009, Tr. 337. Because Plaintiff’s 2 date last insured was September 30, 2007, Plaintiff was not insured as of the date 3 disability was established, May 21, 2009. Tr. 337. Consequently, Plaintiff’s claim 4 for a period of disability and disability insurance benefits was denied by ALJ 5 Valente. Tr. 337. 6 7 8 9 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 10 reviewed de novo. Harman v. Apfel, 211 F.3d 1172, 1174 (9th Cir. 2000). The 11 decision of the Commissioner may be reversed only if it is not supported by 12 substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 13 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a 14 mere scintilla, but less than a preponderance. Id. at 1098. Put another way, 15 substantial evidence is such relevant evidence as a reasonable mind might accept 16 as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 17 (1971). If the evidence is susceptible to more than one rational interpretation, the 18 Court may not substitute its judgment for that of the Commissioner. Tackett, 180 19 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 20 (9th Cir. 1999). 21 The ALJ is responsible for determining credibility, resolving conflicts in 22 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 23 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, 24 although deference is owed to a reasonable construction of the applicable statutes. 25 McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000). 26 It is the role of the trier of fact, not this Court, to resolve conflicts in 27 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one 28 rational interpretation, the Court may not substitute its judgment for that of the ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 2 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will 3 still be set aside if the proper legal standards were not applied in weighing the 4 evidence and making the decision. Brawner v. Secretary of Health and Human 5 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence exists to 6 support the administrative findings, or if conflicting evidence exists that will 7 support a finding of either disability or non-disability, the Commissioner’s 8 determination is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th 9 Cir. 1987). 10 11 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 12 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 13 416.920(a); see, Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 14 through four, the burden of proof rests upon the claimant to establish a prima facie 15 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 16 burden is met once a claimant establishes that a physical or mental impairment 17 prevents him from engaging in his previous occupation. 20 C.F.R. §§ 18 404.1520(a)(4), 416.920(a)(4). If a claimant cannot do his past relevant work, the 19 ALJ proceeds to step five, and the burden shifts to the Commissioner to show that 20 (1) the claimant can make an adjustment to other work; and (2) specific jobs exist 21 in the national economy which claimant can perform. Batson v. Commissioner of 22 Social Sec. Admin., 359 F.3d 1190, 1193-1194 (2004). If a claimant cannot make 23 an adjustment to other work in the national economy, a finding of “disabled” is 24 made. 20 C.F.R. §§ 404.1520(a)(4)(i-v), 416.920(a)(4)(i-v). 25 26 ISSUES The question presented is whether substantial evidence exists to support the 27 ALJ’s decision denying benefits and, if so, whether that decision is based on 28 proper legal standards. ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 Plaintiff contends the ALJ erred by (1) improperly rejecting the opinions of 2 Plaintiff’s examining medical sources prior to May 2009 and a portion of Dr. 3 Thompson’s June 2009 medical record; (2) conducting an improper credibility 4 analysis of Plaintiff; (3) failing to conclude that, prior to May 21, 2009, Plaintiff 5 was presumptively disabled under Listing 12.04; and (4) failing to incorporate all 6 of Plaintiff’s limitations into her RFC determination and the hypotheticals 7 presented to the vocational expert. ECF No. 21 at 4. 8 9 DISCUSSION A. Mental Limitations 10 Plaintiff argues the ALJ erred by failing to properly consider the severity of 11 Plaintiff’s mental health limitations prior to May 21, 2009. ECF No. 21 at 12-19. 12 Plaintiff specifically asserts the ALJ erred by failing to accord weight to the 13 opinions of her examining medical sources, Dr. Billings, Ms. Rowe, Ms. Gone and 14 Ms. Rapisarda, and by improperly rejecting a portion of Dr. Thompson’s opinion. 15 ECF No. 21 at 12. Plaintiff contends that if the opinions of these medical 16 professionals were credited, the evidence would demonstrate Plaintiff was disabled 17 prior to May 21, 2009. 18 It is the responsibility of the ALJ to determine credibility, resolve conflicts 19 in medical testimony and resolve ambiguities. Saelee v. Chater, 94 F.3d 520, 522 20 (9th Cir. 1996). This Court has a limited role in determining whether the ALJ’s 21 decision is supported by substantial evidence and may not substitute its own 22 judgment for that of the ALJ even if it might justifiably have reached a different 23 result upon de novo review. 42 U.S.C. § 405(g). When the ALJ has made specific 24 findings justifying a decision, and those findings are supported by substantial 25 evidence in the record, our role is not to second-guess that decision. Fair v. 26 Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 27 28 The ALJ found that, prior to May 21, 2009, Plaintiff had mild restrictions in activities of daily living, moderate difficulties with social functioning, and ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 moderate difficulties with regard to concentration, persistence or pace. Tr. 328. 2 The ALJ’s mental RFC determination restricted Plaintiff to simple, repetitive tasks, 3 with several non-exertional limitations. Tr. 329. The ALJ indicated the record 4 reflected no mental health treatment prior to May 2009 and concluded the little 5 medical evidence existing prior May 2009 was consistent with her RFC 6 determination. Tr. 330. The Court finds the ALJ’s interpretation of the medical 7 evidence with respect to Plaintiff’s mental functioning in this case is supported by 8 substantial evidence. See infra. 9 10 1. Dr. Billings – August 29, 2006, Psychological Evaluation On August 29, 2006, Plaintiff was examined by Emma Joan H. Billings, 11 Ph.D. Tr. 535-540. Plaintiff indicated she had experienced depression in the past, 12 which had remitted, but had current depression, which had been present for 13 approximately one year. Tr. 535. She complained of poor sleep (four hours of 14 sleep at night), weekly nightmares, and feeling tired all the time. Tr. 536. Plaintiff 15 reported to living alone and having a good relationship with her two adult children, 16 whom she saw and spoke with often. Tr. 535. She stated she socialized with her 17 son on a regular basis, her hobbies included writing in a journal, drawing and 18 growing flowers, and she would walk approximately two miles every day. Tr. 537. 19 She indicated she generally spent her day writing in her journal or working in her 20 garden. Tr. 537. Plaintiff reported she had no difficulty completing her household 21 chores, cooked her own meals, washed her own clothes, shopped for groceries, 22 worked in the yard (pulling weeds, mowing the lawn and taking care of flowers), 23 and completed her own personal grooming tasks. Tr. 537. She rated her level of 24 depression as a five on a scale of one to 10, reported she did not like to be around 25 people, indicated she experienced anxiety but had never experienced a panic 26 attack, denied obsessive behaviors or difficulties with anger control, reported she 27 had engaged in self-destructive behaviors, and indicated she heard three voices in 28 her head. Tr. 537-538. She additionally denied negative consequences from her ORDER GRANTING DEFENDANT’S MOTION . . . - 8 1 reported limited alcohol consumption and denied using illegal drugs over the past 2 several years. Tr. 538. 3 Dr. Billings indicated Plaintiff presented as a highly depressed individual 4 with a poor social presentation. Tr. 539. It was noted Plaintiff had difficulty 5 controlling her emotions throughout the entirety of the interview. Tr. 539. Dr. 6 Billings opined that Plaintiff appeared to have some memory difficulties, which 7 may affect her ability to maintain attention and focus, and the paranoid nature of 8 her statements appeared to represent a delusionary belief. Tr. 539. She diagnosed 9 Plaintiff with Schizoaffective Disorder, depressive-type, and Anxiety Disorder, 10 NOS, and gave Plaintiff a Global Assessment of Functioning (GAF) score of 50.2 11 Tr. 539. Dr. Billings also opined that Plaintiff was “unlikely to be employable at 12 13 14 15 16 17 18 19 20 21 22 2 A GAF score is a rough estimate of an individual’s psychological, social, and occupational functioning used to reflect the individual’s need for treatment. A GAF score between 41 and 50 reflects: “[s]erious symptoms (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).” Diagnostic and Statistical Manual of Mental Disorders-IV 32 (4th ed. 1994). However, the ALJ has no obligation to credit or even consider GAF scores in the disability determination. See Diagnostic And Statistical Manual of Mental Disorders, 16 (5th ed. 2013) (“It was recommended that the GAF be dropped from the DSM-5 for several reasons, including its conceptual lack of clarity (i.e., 23 including symptoms, suicide risk, and disabilities in its descriptors) and 24 questionable psychometrics in routine practice.”). In this case, the ALJ 25 specifically indicated she gave little weight to the GAF scores of record finding 26 “[s]uch scores reflect few specific functional limitations because they incorporate 27 multiple factors not correlated to impairment related occupational difficulties.” Tr. 28 332. ORDER GRANTING DEFENDANT’S MOTION . . . - 9 1 her current mental state considering her depression symptoms, delusionary 2 thought, and auditory hallucinations.” Tr. 540. 3 The ALJ accorded Dr. Billings’ opinions little weight because her opinion 4 regarding employability was vague and conclusory and her assessed limitations 5 were inconsistent with Plaintiff’s reported daily activities. Tr. 332. The ALJ 6 correctly determined Dr. Billings’ conclusory opinion that Plaintiff was “unlikely 7 to be employable at her current mental state” does not correlate with a finding of 8 disability as defined by the Social Security Act. See 42 U.S.C. §§ 423(d)(1)(A), 9 1382c(a)(3)(A) (an individual shall be considered disabled if she has an 10 impairment which can be expected to result in death or which has lasted or can be 11 expected to last for a continuous period of not less than 12 months). It is the role 12 of the ALJ to determine whether a claimant is “disabled” within the meaning of the 13 Social Security Act, and that determination is based on both medical and 14 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 15 2001). As noted by the ALJ, Dr. Billings’ report included few specific vocational 16 limitations, and those mentioned; i.e., difficulty interacting frequently with the 17 general public, did not necessarily prevent Plaintiff from engaging in substantial 18 gainful activity. Tr. 332. 19 The ALJ also correctly found Plaintiff’s activities of daily living, at that 20 time, were inconsistent with Dr. Billings’ assessed limitations. Tr. 332. As noted 21 by the ALJ, Plaintiff indicated she lived alone and was able to shop for groceries, 22 drive a car, and walk about two miles a day; had no difficulty preforming personal 23 care or household chores; cooked her own meals and did her own laundry; spent 24 the day writing in her journal, drawing or working in her garden, which included 25 mowing the lawn and taking care of flowers; socialized with her adult son 26 regularly; and had appropriate money management skills. Tr. 328, 331, 535-537. 27 It is apparent Plaintiff’s activities of daily living at that time were is inconsistent 28 with a finding of significant work related limitations. ORDER GRANTING DEFENDANT’S MOTION . . . - 10 1 Based on the foregoing, the undersigned finds the ALJ provided specific and 2 legitimate reasons, supported by substantial evidence, for according little weight to 3 Dr. Billings’ August 2006 report. Tr. 332. Roland Dougherty, Ph.D. – April 2007 Psychological Evaluation 4 2. 5 On April 11, 2007, Plaintiff was examined by Roland Dougherty, Ph.D. Tr. 6 198-205. Plaintiff indicated she had been depressed for a while and did not like to 7 be around people. Tr. 198. Plaintiff denied auditory hallucinations on this 8 occasion, but described “a monster” that had followed her from childhood and an 9 ability to see people that others could not see. Tr. 199-200. She reported feeling 10 anxious in public (worse in crowds), but indicated she did not feel anxious at 11 home. Tr. 199. Plaintiff stated, on an average day, she gets up around six a.m. 12 and then cleans her house by vacuuming, sweeping, doing the dishes, ironing and 13 dusting. Tr. 204. She described herself as a “neat freak” and reported she would 14 clean her house all day. Tr. 204. Plaintiff also stated she is a good cook, can 15 doodle for hours, can shop, is independent in her self-care, and visits her son once 16 a week and a friend twice a month. Tr. 204. Plaintiff reported to Dr. Dougherty 17 that she stopped drinking alcohol three years prior to the examination, but used to 18 drink from the moment she got up in the morning until she went to bed at night, 19 consuming six to 12 beers per day. Tr. 200. She stated she had only been 20 intoxicated on one occasion and denied drinking had caused any problems in her 21 life. Tr. 201. She also reported trying pot, acid, and cocaine about 20 years ago, 22 but indicated she did not like these substances. Tr. 201. 23 Dr. Dougherty diagnosed adjustment disorder with depression, chronic; 24 social phobia; rule out schizoaffective disorder; alcohol abuse, in remission; and 25 rule out language learning disorders and assessed a GAF score of 50. Dr. 26 Dougherty noted Plaintiff gave somewhat contradictory reports about her activities 27 by indicating “she pretty much just lies around,” but then stating “she very 28 frequently moves the furniture around in the house,” and also reporting she is ORDER GRANTING DEFENDANT’S MOTION . . . - 11 1 extremely active with housework. Tr. 200, 205. He opined that Plaintiff may have 2 difficulty with written expression, but her social skills appeared adequate for the 3 workplace. Tr. 205. 4 Although the parties’ briefing does not discuss Dr. Dougherty’s examination 5 findings, the ALJ accorded weight to Dr. Dougherty’s opinion, finding it consistent 6 with the credible record evidence and with Plaintiff’s reported daily activities at 7 the time. Tr. 332. Dr. Dougherty’s assessment is consistent with the ALJ’s RFC 8 determination in this case. Tr. 198-205, 329. The ALJ did not err by according 9 weight to the opinion of this examining doctor. Mary A. Gentile, Ph.D. – June 2007 Medical Opinion 10 3. 11 On June 12, 2007, state agency reviewing physician, Mary A. Gentile, 12 Ph.D., opined that Plaintiff was able to carry out simple tasks, but her attention and 13 concentration would slow for new tasks or those involving reading or writing. Tr. 14 221. She indicated Plaintiff would do best with routine tasks, working away from 15 the public, and working with limited coworker interaction. Tr. 221. Dr. Gentile 16 further opined that Plaintiff would need more time to learn new tasks, would 17 benefit from demonstrations, and may need some assistance with goal setting. Tr. 18 221. Dr. Gentile filled out a Psychiatric Review Technique form indicating 19 Plaintiff had mild restrictions of activities of daily living, moderate difficulties in 20 maintaining social functioning, moderate difficulties in maintaining concentration, 21 persistence or pace and no episodes of decompensation. Tr. 233. On May 9, 2008, 22 Edward Beaty, Ph.D., reviewed the record and affirmed Dr. Gentile’s opinion. Tr. 23 238. 24 The ALJ accorded these reviewing medical professionals “significant 25 weight” because they had reviewed the entire medical record at that time and their 26 opinions were consistent with Plaintiff’s daily activities, including the ability to 27 live alone, shop for groceries, drive a car regularly, perform household chores and 28 cook meals. Tr. 332. The findings of these medical professionals were ORDER GRANTING DEFENDANT’S MOTION . . . - 12 1 incorporated in the ALJ’s RFC determination. Tr. 329. The ALJ appropriately 2 accorded their opinions weight in this case. Emergency Room Visit – June 15, 2008 3 4. 4 On June 15, 2008, Plaintiff was treated at the Kittitas Valley Community 5 Hospital due to agitation, persistent crying and emotional lability. Tr. 279, 331. 6 At that time, Plaintiff admitted to past cocaine, cannabis and methamphetamine 7 abuse and reported she had used alcohol the night prior to the emergency room 8 visit. Tr. 279. Plaintiff indicated she was distressed because her deceased 9 mother’s home was being torn down due to alleged methamphetamine 10 contamination. Tr. 279. It was noted Plaintiff’s presentation may have been 11 secondary to recent drug use. Tr. 279. 12 The ALJ cited this medical report to show the record contained little mental 13 health evidence subsequent to the hospital visit and no additional medical evidence 14 until March 2009, when Plaintiff sought treatment for back, neck and dental pain. 15 Tr. 331. The Court notes this emergency room record additionally evidences an 16 apparent inconsistency in Plaintiff’s reported drug and alcohol usage. DSHS “Other Source” Opinions 17 5. 18 On June 26, 2006, Janet Gone, a social worker with DSHS, filed out a 19 portion of Plaintiff’s disability report. Tr. 542-545. 20 Ms. Gone noted Plaintiff was “very anxious” and had difficulty with 21 reading, writing, sitting and seeing. Tr. 545. Amanda Rowe, M.S., M.H.P, filled 22 out a psychological/psychiatric evaluation form following a June 28, 2006, 23 examination. Tr. 617-620. Ms. Rowe indicated Plaintiff had marked to severe 24 impairments in depressed mood, verbal expression of anxiety or fear, social 25 withdrawal, and paranoid behavior. Tr. 618. Ms. Rowe noted a marked limitation 26 in Plaintiff’s ability to exercise judgment and make decisions and a marked to 27 severe limitation in Plaintiff’s ability to respond appropriately to and tolerate the 28 pressure and expectations of a normal work setting. Tr. 619. Nina Rapisarda, ORDER GRANTING DEFENDANT’S MOTION . . . - 13 1 MSW, filled out a psychological/psychiatric evaluation form following a January 2 4, 2007, examination. Tr. 611-614. Ms. Rapisarda indicated Plaintiff had marked 3 impairments in depressed mood, suicidal trends and verbal expression of anxiety or 4 fear. Tr. 612. Ms. Rapisarda noted marked limitations in Plaintiff’s abilities to 5 relate appropriately to co-workers and supervisors and to respond appropriately to 6 and tolerate the pressure and expectations of a normal work setting and a marked 7 to severe limitation in Plaintiff’s ability to interact appropriately in public contacts. 8 Tr. 613. 9 Ms. Gone, Ms. Rowe and Ms. Rapisarda are not acceptable medical sources. 10 See 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). Consequently, their opinions do 11 not qualify as medical evidence from an acceptable medical source as required by 12 the Social Security Regulations. 20 C.F.R. § 416.927(a)(2) (only acceptable 13 medical sources can give medical opinions). These individuals are considered 14 “other sources,” and an ALJ must provide germane reasons to reject “other source” 15 evidence. Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010). 16 The ALJ accorded “little to no weight” to the opinions of Ms. Gone, Ms. 17 Rowe and Ms. Rapisarda. Tr. 332. The ALJ indicated the opinions of the DSHS 18 social worker and the DSHS examiners were not consistent with the overall 19 medical evidence or Plaintiff’s daily activities at the time. Tr. 332. As discussed 20 above, the ALJ appropriately accorded weight to the opinions of Drs. Dougherty, 21 Gentile and Beaty, acceptable medical sources, and properly discounted the 22 opinions of Dr. Billings in formulating her RFC determination. The opinions of 23 Ms. Gone, Ms. Rowe and Ms. Rapisarda are inconsistent with the overall credible 24 medical evidence of record prior to May 21, 2009. The ALJ also appropriately 25 found the “other source” opinions were inconsistent with Plaintiff’s reported 26 activities of daily living at that time. As noted above, Plaintiff indicated she lived 27 alone and was able to shop for groceries, drive a car, and walk about two miles a 28 day; had no difficulty preforming personal care or household chores; cooked her ORDER GRANTING DEFENDANT’S MOTION . . . - 14 1 own meals and did her own laundry; spent the day writing in her journal, drawing 2 or working in her garden; socialized with her adult son regularly; and had 3 appropriate money management skills. Tr. 328. The undersigned finds the ALJ 4 provided germane reasons for giving “little to no weight” to the “other source” 5 opinions of Ms. Gone, Ms. Rowe and Ms. Rapisarda. 6 6. After May 21, 2009, Medical Opinions 7 On May 21, 2009, the date the ALJ determined Plaintiff became disabled, 8 Crisis Case Manager Cindy Gregory filled out a psychological/psychiatric 9 evaluation form indicating Plaintiff had one severe, four marked and three 10 moderate mental functional limitations. Tr. 303. On June 5, 2009, Trula J. 11 Thompson, M.D., opined that Plaintiff “may meet SSI 12.04.” Tr. 546. Less than 12 three months later, on August 25, 2009, Crystal Coffey, Phar.D., filled out a mental 13 residual functional capacity assessment form which indicated Plaintiff had several 14 moderate and marked limitations. Tr. 317-319. In December 2010, Debra Dove, 15 M.S., LMHC, noted that Plaintiff was homeless and living in a storage unit. Tr. 16 605-606. Ms. Dove opined that Plaintiff’s functional levels were significantly 17 impaired in the areas of maintaining housing, employment, social support, 18 shopping, taking care of basic needs, and acquiring and maintaining entitlements. 19 Tr. 606. Records from 2011 indicate Plaintiff had ongoing problems with anxiety 20 and paranoia that caused serious limitations. 21 The ALJ accorded weight to the foregoing medical records which 22 demonstrated Plaintiff developed marked or severe limitations in various aspects of 23 social functioning and concentration, persistence and pace after May 21, 2009. Tr. 24 335-337. However, the ALJ indicated a June 5, 2009, opinion that Plaintiff’s 25 symptoms caused disabling limitations as early as 2005, Tr. 547, was inconsistent 26 with the medical evidence of record and Plaintiff’s reported daily activities prior to 27 May 2009, Tr. 337. The Court notes that the medical report at Tr. 547 does not 28 appear to be a medical opinion that Plaintiff’s symptoms caused disabling ORDER GRANTING DEFENDANT’S MOTION . . . - 15 1 limitations as early as 2005. In any event, as determined by the ALJ and discussed 2 above, the credible record evidence and Plaintiff’s daily activities prior to May 21, 3 2009, are inconsistent with a conclusion that Plaintiff’s mental limitations were 4 disabling prior to May 2009. 5 As stated above, it is the responsibility of the ALJ to determine credibility, 6 resolve conflicts in medical testimony and resolve ambiguities, Saelee, 94 F.3d at 7 522, and this Court may not substitute its own judgment for that of the ALJ, 42 8 U.S.C. § 405(g). Where, as here, the ALJ has made specific findings justifying a 9 decision, and those findings are supported by substantial evidence in the record, a 10 court may not second-guess that decision. Fair, 885 F.2d at 604. Based on the 11 foregoing, the ALJ did not err by disregarding the medical reports indicated above, 12 or portions thereof, when formulating her RFC assessment. The ALJ’s RFC 13 determination is supported by substantial record evidence and free of legal error. 14 B. Listing 12.04 15 Plaintiff contends that if the opinions of Dr. Billings, Ms. Rowe, Ms. Gone, 16 Ms. Rapisarda, and Dr. Thompson were credited, the evidence would demonstrate 17 the severity of Plaintiff’s impairments met the criteria of Listing 12.04 (affective 18 disorders) prior to May 21, 2009. 19 At step three, it is a claimant’s burden to present objective medical evidence 20 proving she meets or equals an identified Listing. Roberts v. Shalala, 66 F.3d 179, 21 182 (9th Cir. 1995). To show she meets a Listing, a claimant must establish she 22 meets each criteria of the listed impairment relevant to her claim. Sullivan v. 23 Zebley, 493 U.S. 521, 531 (1990). 24 Pursuant to Listing 12.04, a plaintiff is disabled if she has an affective 25 disorder which is characterized “by a disturbance of mood, accompanied by a full 26 or partial manic or depressive syndrome. Mood refers to a prolonged emotion that 27 colors the whole psychic life; it generally involves either depression or elation.” 28 20 C.F.R. § 404, Subpt. P, App. 1 § 12.04. “The required level of severity for ORDER GRANTING DEFENDANT’S MOTION . . . - 16 1 these disorders is met when the requirements in both [paragraph] A and B [of the 2 regulation] are satisfied, or when the requirements in [paragraph] C are satisfied.” 3 Id. Paragraph B requires Plaintiff to have “marked” limitations in two of the 4 following categories: activities of daily living; social functioning; and 5 concentration, persistence and pace, or repeated episodes of decompensation. 20 6 C.F.R. § 404, Subpt. P, App. 1 § 12.04. 7 The ALJ found that, prior to May 21, 2009, Plaintiff had mild restrictions in 8 activities of daily living, moderate difficulties with social functioning, and 9 moderate difficulties with regard to concentration, persistence or pace. Tr. 328. 10 Because the ALJ determined Plaintiff’s mental impairments did not cause 11 “marked” limitations, the ALJ concluded, at step three, Plaintiff’s mental 12 impairments did not meet or medically equal a Listings impairment. Tr. 328-329. 13 As discussed above, the ALJ provided specific and legitimate reasons, 14 supported by substantial evidence, for rejecting certain medical reports when 15 formulating her assessment of Plaintiff’s mental functioning prior to May 21, 2009. 16 The ALJ’s findings regarding Plaintiff’s mental abilities are supported by 17 substantial evidence. Supra. The evidence of record does not reflect that Plaintiff 18 had marked limitations in activities of daily living, maintaining social functioning 19 or maintaining concentration, persistence or pace prior to May 21, 2009. 20 Accordingly, as determined by the ALJ, the criteria of paragraph B of Listing 21 12.04 is not satisfied, Tr. 328-329, and Plaintiff did not meet her burden of 22 demonstrating that her mental impairments met or equaled Listing 12.04 prior to 23 May 21, 2009. The ALJ did not err in her step three determination. 24 C. 25 Credibility Plaintiff also argues the ALJ erred by failing to provide clear and convincing 26 reasons for finding Plaintiff’s symptom allegations not credible. ECF No. 21 at 27 19-23. 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 17 1 It is the province of the ALJ to make credibility determinations. Andrews v. 2 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). However, the ALJ’s findings must be 3 supported by specific cogent reasons. Rashad v. Sullivan, 903 F.2d 1229, 1231 4 (9th Cir. 1990). Once the claimant produces medical evidence of an underlying 5 medical impairment, the ALJ may not discredit testimony as to the severity of an 6 impairment because it is unsupported by medical evidence. Reddick v. Chater, 157 7 F.3d 715, 722 (9th Cir. 1998). Absent affirmative evidence of malingering, the 8 ALJ’s reasons for rejecting the claimant’s testimony must be “clear and 9 convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 10 findings are insufficient: rather the ALJ must identify what testimony is not 11 credible and what evidence undermines the claimant’s complaints.” Lester, 81 12 F.3d at 834; Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 13 In this case, the ALJ found Plaintiff’s medically determinable impairments 14 could reasonably be expected to cause many of the alleged symptoms; however, 15 Plaintiff’s statements concerning the intensity, persistence and limiting effects of 16 these symptoms were not fully credible prior to May 21, 2009. Tr. 330. 17 The ALJ first indicated the record shows no mental health treatment prior to 18 May 2009. Tr. 330. The Ninth Circuit has determined that the fact that a claimant 19 does not “seek treatment for a mental disorder until late in the day” is not a proper 20 basis on which to find a doctor’s assessment of a claimant’s condition inaccurate. 21 Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (noting that those with 22 depression often do not recognize their condition reflects potentially serious mental 23 illness). However, in Molina v. Astrue, 674 F.3d 1104, 1113–1114 (9th Cir. 2012), 24 the Ninth Circuit held it was reasonable for the ALJ to rely on a claimant’s failure 25 to seek psychiatric treatment in assessing her credibility because “there was no 26 medical evidence that [claimant]’s resistance was attributable to her mental 27 impairment rather than her own personal preference.” Like Molina, Plaintiff in 28 this case did not provide evidence demonstrating her failure to seek mental health ORDER GRANTING DEFENDANT’S MOTION . . . - 18 1 treatment was due to her mental impairments. Without such evidence, it was 2 reasonable for the ALJ to conclude Plaintiff’s lack of mental health treatment prior 3 to May 2009 weakened her credibility. See Tommasetti v. Astrue, 533 F.3d 1035, 4 1038 (9th Cir. 2008) (in assessing a claimant’s credibility, an ALJ may properly 5 rely on “unexplained or inadequately explained failure to seek treatment”). 6 The ALJ also found that the little medical evidence existing prior to May 7 2009 was consistent with her RFC determination. Tr. 330. A lack of supporting 8 objective medical evidence supporting a claimant’s subjective complaints is a 9 factor which may be considered in evaluating a claimant’s credibility, provided it 10 is not the sole factor. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991). As 11 discussed above, the ALJ properly assessed the medical evidence in this case. 12 Supra. The objective medical findings contained within the record demonstrate 13 Plaintiff is capable of performing medium exertion, simple, repetitive work, with 14 several non-exertional limitations. Tr. 329. The credible medical evidence of 15 record does not support Plaintiff’s claim of disabling limitations; therefore, it was 16 appropriate for the ALJ to conclude the objective medical evidence does not 17 support the level of limitation Plaintiff has alleged in this case. The ALJ next noted Plaintiff’s activities of daily living prior to May 2009 18 19 were inconsistent with her assertion of disabling mental limitations. Tr. 331. It is 20 well-established that the nature of daily activities may be considered when 21 evaluating credibility. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). The ALJ 22 indicated Plaintiff’s allegations of disability were inconsistent with the record 23 evidence which demonstrated that, prior to May 2009, Plaintiff lived alone and was 24 able to shop for groceries, drive a car, and walk about two miles a day; had no 25 difficulty preforming personal care or household chores; cooked her own meals 26 and did her own laundry; spent the day writing in her journal, drawing or working 27 in her garden; and socialized with her adult son regularly. Tr. 331. 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 19 1 This evidence of Plaintiff’s activities of daily living is inconsistent with her claim 2 of disabling limitations. Lastly, the ALJ indicated Plaintiff’s inconsistent statements created 3 4 credibility concerns. Tr. 331. Inconsistencies in a disability claimant’s testimony 5 support a decision by the ALJ that a claimant lacks credibility. Nyman v. Heckler, 6 779 F.2d 528, 531 (9th Cir. 1986); Veruzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 7 1999) (untruthfulness or inconsistencies regarding alcohol or substance abuse 8 support an ALJ’s decision that a claimant’s testimony lacks credibility). Here, the 9 ALJ indicated Dr. Dougherty reported Plaintiff had given a somewhat 10 contradictory report because Plaintiff indicated she lies around during the day but 11 also stated she was extremely active all day. Tr. 200, 205, 331. The ALJ further 12 noted Plaintiff’s report regarding substance use was inconsistent because she 13 reported to Dr. Dougherty she had a distant history of marijuana, acid, and cocaine 14 use and had used alcohol heavily until she stopped in 2004, Tr. 200-201, but later 15 reports suggested she continued to use alcohol and possibly drugs, Tr. 279. 16 Plaintiff also subsequently denied any history of drug or alcohol use. Tr. 247, 392- 17 393. 18 The ALJ is responsible for reviewing the evidence and resolving conflicts or 19 ambiguities in testimony. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 20 1989). It is the role of the trier of fact, not this Court, to resolve conflicts in 21 evidence. Richardson, 402 U.S. at 400. The Court has a limited role in 22 determining whether the ALJ’s decision is supported by substantial evidence and 23 may not substitute its own judgment for that of the ALJ even if it might justifiably 24 have reached a different result upon de novo review. 42 U.S.C. § 405(g). After 25 reviewing the record, the undersigned finds the reasons provided by the ALJ for 26 discounting Plaintiff’s subjective complaints prior to May 2009 are clear, 27 convincing, and fully supported by the record. The ALJ did not err by concluding 28 /// ORDER GRANTING DEFENDANT’S MOTION . . . - 20 1 Plaintiff’s assertions of disabling impairments prior to May 2009 were not fully 2 credible in this case. 3 D. Hypothetical to Vocational Expert 4 Plaintiff next argues the ALJ erred by not including all of Plaintiff’s 5 functional limitations in her RFC determination, thus resulting in the presentation 6 of an incomplete hypothetical to the vocational expert (VE). ECF No. 21 at 27-29. 7 The ALJ may rely on VE testimony if the hypothetical presented to the VE 8 includes all functional limitations supported by the record and found credible by 9 the ALJ. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). An ALJ is not 10 obliged to accept the limitations presented by Plaintiff’s representative. Osenbrock 11 v. Apfel, 240 F.3d 1157, 1164-1165 (9th Cir. 2001); Martinez v. Heckler, 807 F.2d 12 771, 773 (9th Cir. 1986). It is the province of the ALJ to make a final 13 determination regarding Plaintiff’s RFC and disability. 14 As discussed above, the ALJ’s rationale for her mental RFC determination 15 was legally sufficient and supported by substantial evidence in the record. 16 Therefore, the ALJ was not required to include any further restrictions in her RFC 17 assessment or the hypotheticals presented to the VE. The hypotheticals presented 18 to the VE at the administrative hearing and relied upon by the ALJ, Tr. 400, 403, 19 were proper because they reflected the ALJ’s RFC determination which is a 20 reasonable interpretation of the evidence of record. Supra. 21 The VE testified Plaintiff’s RFC would not prevent her from performing any 22 of her past work. Tr. 400. In addition, the VE testified that work existed in 23 significant numbers in the national economy that an individual with Plaintiff’s 24 background, characteristics and assessed limitations could perform, including the 25 jobs of cashier II, laundry worker II and counter attendant, cafeteria. Tr. 401-405. 26 Accordingly, the ALJ did not err by relying on the VE testimony that an individual 27 with Plaintiff’s profile could perform not only her past work, but also other work 28 that existed in significant numbers in the national economy. ORDER GRANTING DEFENDANT’S MOTION . . . - 21 1 2 CONCLUSION Having reviewed the record and the ALJ’s findings, the Court concludes the 3 ALJ’s decision is supported by substantial evidence and free of legal error. 4 Accordingly, 5 IT IS ORDERED: 6 1. 7 Defendant’s Motion for Summary Judgment, ECF No. 23, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 21, is DENIED. 8 2. 9 The District Court Executive is directed to file this Order and provide a copy 10 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 11 and the file shall be CLOSED. 12 DATED April 11, 2014. 13 14 15 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 22

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