Pederson v. Colvin, No. 2:2013cv03077 - Document 22 (E.D. Wash. 2014)

Court Description: DECISION AND ORDER denying ECF No. 16 Plaintiff's Motion for Summary Judgment and granting ECF No. 17 Defendant's Motion for Summary Judgment. CLOSE FILE. Signed by Magistrate Judge Victor E. Bianchini. (PH, Case Administrator)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 10 11 Case No. 2:13-CV-03077-VEB KAYLEN PEDERSON, Plaintiff, DECISION AND ORDER vs. 12 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 13 Defendant. 14 15 16 17 18 I. INTRODUCTION In May of 2006, Plaintiff Kaylen Pederson applied for Supplemental Security Income ( SSI ) Benefits under the Social Security Act. The Commissioner of Social Security denied the application. 19 20 1 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 Plaintiff, represented by D. James Tree, Esq., commenced this action seeking 2 judicial review of the Commissioner s denial of benefits pursuant to 42 U.S.C. §§ 3 405 (g) and 1383 (c)(3). The parties consented to the jurisdiction of a United States 4 Magistrate Judge. (Docket No. 7). 5 On April 2, 2014, the Honorable Rosanna Malouf Peterson, Chief United 6 States District Judge, referred this case to the undersigned pursuant to 28 U.S.C. § 7 636(b)(1)(A) and (B). (Docket No. 21). 8 9 II. BACKGROUND 10 The procedural history may be summarized as follows: 11 On May 25, 2006, Plaintiff applied for SSI benefits, alleging disability 12 beginning August 5, 2004. (T at 129-31). 1 The application was denied initially and 13 Plaintiff requested a hearing before an Administrative Law Judge ( ALJ ). On 14 November 3, 2008, a hearing was held before ALJ Paul Gaughen. (T at 28). 15 Plaintiff was not present, but appeared through his attorney. (T at 30). The ALJ 16 received testimony from Sharon Volter, a vocational expert (T at 32-35). A further 17 hearing was held on May 29, 2009. (T at 37). Plaintiff appeared with his attorney 18 19 20 1 Citations to ( T ) refer to the administrative record at Docket No. 13. 2 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 and testified. (T at 52-63). The ALJ also received testimony from Dr. Steven Gerber, 2 a medical expert (T at 42-52) and Dan McKinney, a vocational expert (T at 63-66). 3 On August 27, 2009, ALJ Gaughen issued a written decision denying the 4 application for benefits and finding that Plaintiff was not disabled within the 5 meaning of the Social Security Act. (T at 12-27). 6 Council denied Plaintiff s request for review on December 23, 2010. (T at 1-5). The Social Security Appeals 7 On February 23, 2011, Plaintiff commenced an action in the United States 8 District Court for the Eastern District of Washington seeking judicial review. (T at 9 400-406). On March 22, 2012, the matter was remanded by Court Order (upon 10 stipulation of the parties) for further administrative proceedings. (T at 407-414). 11 A further administrative hearing was held on December 11, 2012, before ALJ 12 Timothy Mangrum. (T at 351). Plaintiff appeared with his attorney and testified. (T 13 at 360-89). Trevor Duncan, a vocational expert, also testified. (T at 390-94). On 14 April 23, 2013, ALJ Mangrum issued a decision denying Plaintiff s application for 15 benefits. (T at 333-50). 16 On July 29, 2013, Plaintiff, acting by and through his counsel, timely 17 commenced this action by filing a Complaint in the United States District Court for 18 the Eastern District of Washington. (Docket No. 5). The Commissioner interposed 19 an Answer on November 8, 2013. (Docket No. 12). 20 3 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 Plaintiff filed a motion for summary judgment on February 3, 2014. (Docket 2 No. 16). The Commissioner moved for summary judgment on March 17, 2014. 3 (Docket No. 17). Plaintiff filed a reply memorandum of law on April 1, 2014. 4 (Docket No. 20). As noted above, the parties consented to the jurisdiction of a 5 Magistrate Judge. (Docket No. 7). 6 7 For the reasons set forth below, the Commissioner s motion is granted, Plaintiff s motion is denied, and this case is closed. III. DISCUSSION 8 9 A. Sequential Evaluation Process 10 The Social Security Act ( the Act ) defines disability as the inability to 11 engage in any substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in death or which has 13 lasted or can be expected to last for a continuous period of not less than twelve 14 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 15 plaintiff shall be determined to be under a disability only if any impairments are of 16 such severity that a plaintiff is not only unable to do previous work but cannot, 17 considering plaintiff s age, education and work experiences, engage in any other 18 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 19 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 20 4 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 2 The Commissioner has established a five-step sequential evaluation process 3 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 4 one determines if the person is engaged in substantial gainful activities. If so, 5 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 6 decision maker proceeds to step two, which determines whether plaintiff has a 7 medially severe impairment or combination of impairments. 20 C.F.R. §§ 8 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 9 If plaintiff does not have a severe impairment or combination of impairments, 10 the disability claim is denied. If the impairment is severe, the evaluation proceeds to 11 the third step, which compares plaintiff s impairment with a number of listed 12 impairments acknowledged by the Commissioner to be so severe as to preclude 13 substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); 20 14 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed 15 impairments, plaintiff is conclusively presumed to be disabled. If the impairment is 16 not one conclusively presumed to be disabling, the evaluation proceeds to the fourth 17 step, which determines whether the impairment prevents plaintiff from performing 18 work which was performed in the past. If a plaintiff is able to perform previous work 19 that plaintiff is deemed not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 20 5 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 416.920(a)(4)(iv). At this step, plaintiff s residual functional capacity (RFC) is 2 considered. If plaintiff cannot perform past relevant work, the fifth and final step in 3 the process determines whether plaintiff is able to perform other work in the national 4 economy in view of plaintiff s residual functional capacity, age, education and past 5 work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Bowen v. 6 Yuckert, 482 U.S. 137 (1987). 7 The initial burden of proof rests upon plaintiff to establish a prima facie case 8 of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 9 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is 10 met once plaintiff establishes that a mental or physical impairment prevents the 11 performance of previous work. The burden then shifts, at step five, to the 12 Commissioner to show that (1) plaintiff can perform other substantial gainful 13 activity and (2) a significant number of jobs exist in the national economy that 14 plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 15 B. Standard of Review 16 Congress has provided a limited scope of judicial review of a Commissioner s 17 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner s decision, 18 made through an ALJ, when the determination is not based on legal error and is 19 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 20 6 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). The [Commissioner s] 2 determination that a plaintiff is not disabled will be upheld if the findings of fact are 3 supported by substantial evidence. Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 4 1983)(citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, 5 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n 10 (9th Cir. 1975), but less than a 6 preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-02 (9th Cir. 1989). 7 Substantial evidence means such evidence as a reasonable mind might accept as 8 adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 9 (1971)(citations omitted). [S]uch inferences and conclusions as the [Commissioner] 10 may reasonably draw from the evidence will also be upheld. Mark v. Celebreeze, 11 348 F.2d 289, 293 (9th Cir. 1965). On review, the Court considers the record as a 12 whole, not just the evidence supporting the decision of the Commissioner. Weetman 13 v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989)(quoting Kornock v. Harris, 648 F.2d 525, 14 526 (9th Cir. 1980)). 15 It is the role of the Commissioner, not this Court, to resolve conflicts in 16 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 17 interpretation, the Court may not substitute its judgment for that of the 18 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 19 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 20 7 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 set aside if the proper legal standards were not applied in weighing the evidence and 2 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 3 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 4 administrative findings, or if there is conflicting evidence that will support a finding 5 of either disability or nondisability, the finding of the Commissioner is conclusive. 6 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 7 C. Commissioner s Decision 8 ALJ Mangrum found that Plaintiff had not engaged in substantial gainful 9 activity since May 25, 2006, the alleged onset date. (T at 338). The ALJ determined 10 that Plaintiff s status post cardiac valve replacement, hypertension, and obesity were 11 impairments considered severe under the Act. (Tr. 338-39). 12 However, the ALJ concluded that Plaintiff did not have an impairment or 13 combination of impairments that met or medically equaled one of the impairments 14 set forth in the Listings. (T at 339). The ALJ determined that Plaintiff retained the 15 residual functional capacity ( RFC ) to perform sedentary work, as defined in 20 16 CFR § 416.967 (a), except that he could not push or pull with the bilateral upper 17 extremities, operate foot controls bilaterally with the lower extremities, or climb 18 ladders, ropes, or scaffolds, and was limited to occasional stair climbing. (T at 339- 19 44). The ALJ found that Plaintiff was unable to perform his past relevant work as a 20 8 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 flooring installer. (T at 344). However, considering Plaintiff s age (26 years old on 2 the date the application was filed), education (limited), work experience, and RFC, 3 the ALJ concluded that there were jobs that exist in significant numbers in the 4 national economy that Plaintiff can perform. (T at 344-45). 5 As such, the ALJ concluded that Plaintiff had not been disabled, as defined 6 under the Act, since May 25, 2006 (the application date) and was therefore not 7 entitled to benefits. (Tr. 345). 8 D. Plaintiff s Arguments 9 Plaintiff contends that the Commissioner s decision should be reversed. He 10 offers four (4) main arguments in support of this position. First, Plaintiff argues that 11 the ALJ erred by failing to account for limitations caused by sleep apnea and 12 insomnia. 13 Council s directive to develop the record concerning his mental health. Third, 14 Plaintiff asserts that the ALJ did not follow the Appeals Council s directive to 15 incorporate a handling limitation. Fourth, he argues that the ALJ did not properly 16 weigh certain medical opinions. This Court will address each argument in turn. 17 ///// 18 ///// 19 ///// 20 Second, Plaintiff contends that the ALJ did not follow the Appeals 9 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB IV. ANALYSIS 1 2 A. Sleep Apnea and Insomnia 3 A treatment note from August 2007 described Plaintiff as always feel[ing] 4 tired, sleeping poorly with quite loud snoring [and] stopping of breathing, and 5 waking up feeling tired and . . . exhausted. (T at 282). Dr. David Krueger, a 6 treating physician, diagnosed sleep apnea and opined that it was Plaintiff s major 7 problem because it was driving his blood pressure, his palpitations, his fatigue, his 8 weight gain, his inability to exercise or diet and thus, his lipids, etc. (T at 283). A 9 sleep study was recommended, but was not conducted due to insurance issues. (T at 10 277). 11 In January of 2010, Mary E. Schlater, a treating nurse practitioner, diagnosed 12 Plaintiff with sleep apnea and opined that it would cause moderate limitations with 13 regard to sitting, standing, walking, lifting, handling, carrying, seeing, hearing, 14 communicating, and understanding or following directions. (T at 566). 15 recommended treatment with a CPAP mask and machine. (T at 567). She 16 The ALJ referenced Plaintiff s sleep apnea, the allegations of insomnia and 17 fatigue, and the recommendation for a CPAP machine. (T at 341). Plaintiff argues 18 that the ALJ should have found sleep apnea to be a distinct medical impairment and 19 contends that the ALJ erred by failing to assess limitations arising from that 20 10 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 impairment. However, the evidence indicates that the effect of Plaintiff s sleep 2 apnea was to aggravate his cardiac and weight problems (T at 283), which the ALJ 3 thoroughly discussed and incorporated into his RFC determination. (T at 340-44). 4 Other than Ms. Schlater, no treating provider assessed any additional work-related 5 limitations arising from sleep apnea. 6 discounting Ms. Schalter s opinion, which was provided in a conclusory checkbox 7 form without any supporting clinical findings. The ALJ is not obliged to accept a 8 medical opinion that is brief, conclusory and inadequately supported by clinical 9 findings. Lingenfelter v. Astrue, 504 F.3d 1028, 1044-45 (9th Cir. 2007) (citing 10 The ALJ acted within his discretion in Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)). 11 Further, the assessments of two treating physicians, who were aware of 12 Plaintiff s sleep difficulties, support the ALJ s conclusion that Plaintiff retained the 13 RFC to perform sedentary work. Dr. Paul Tompkins, a treating physician, opined in 14 December of 2012 that Plaintiff s cardiac condition was good to excellent and 15 indicated that he was capable of sedentary work. (T at 777). Dr. Laura Lascar, 16 another treating physician, reported that Plaintiff would need to avoid strenuous 17 physical activity, but could perform desk jobs. (T at 224). 18 19 20 11 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 This Court finds substantial evidence supporting the ALJ s decision and no 2 reversible error with regard to the consideration of Plaintiff s sleep apnea complaints 3 and symptoms. 4 B. Development of Record Concerning Mental Health 5 During the first administrative hearing, Plaintiff s counsel suggested that 6 Plaintiff be referred for a consultative psychiatric examination. (T at 70). The first 7 ALJ agreed (T at 71), but no such examination was ever performed. In June of 2012, 8 the Appeals Council issued a Remand Order, in which they noted, inter alia, the 9 failure to obtain the consultative psychiatric examination and directed the ALJ to 10 further develop the record regarding Plaintiff s mental impairments. (T at 418). 11 Following remand, at the conclusion of the second administrative hearing, the 12 ALJ made the following observation: Okay. I don t know. I m concerned about 13 some of the mental aspects, but I don t know that it warrants having a [consultative 14 examination] on it, because what I m more concerned with and not so much about 15 the . . . IQ question, because I . . . think that he s shown that functionally he does 16 pretty well my concern is the anxiety . . . and the depression. (T at 394-95). The 17 ALJ and Plaintiff s counsel then discussed their concern about whether Plaintiff 18 19 20 12 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 (who had suffered a significant coronary event) 2 was a cardiac cripple, i.e. a 2 person who suffers from debilitating fear of a cardiac event. (T at 395). The ALJ 3 explained that he felt this was the mental aspect that really stands out in this 4 case. (T at 395). However, the ALJ noted that he had received testimony from 5 Plaintiff at the hearing and questioned whether a consultative examination would 6 yield additional information. (T at 396). 7 The ALJ did not order a consultative examination. In his decision, the ALJ 8 explained that a consultative examination for IQ testing was not necessary. (T at 9 343). Although the record indicated that Plaintiff had received special education 10 supports in school, the ALJ noted that those services were limited (extra help with 11 reading and writing) and provided when Plaintiff was 10 years old (he was 33 at the 12 time of the hearing). (T at 343). The ALJ also cited very limited mental health 13 evidence in the record to support more than mild limitations in any work-related 14 functioning area. (T at 343). 15 Plaintiff contends that the ALJ erred by failing following the Appeals 16 Council s directive to further develop the record concerning his mental health 17 18 In August of 2004, Plaintiff underwent an aortic aneurysm repair and aortic valve replacement after being diagnosed with an aortal aneurysm. (T at 17). 2 19 20 13 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 impairments. In particular, Plaintiff argues that the ALJ was obliged to order a 2 consultative psychiatric examination. 3 As a threshold matter, this Court declines to review this argument insofar as 4 it is based on the ALJ s non-compliance with the Appeals Council s Remand Order. 5 Alleged non-compliance with a Remand Order is not subject to judicial review. See 6 Boyd v. Astrue, No. C10-1552, 2011 U.S. Dist. LEXIS 99468, at *4-5 (W.D. Wash. 7 July 18, 2011)( Whether an ALJ complies with an Appeals Council remand order is 8 an internal agency matter which arises before the issuance of the agency's final 9 decision. Section 405(g) does not provide this Court with authority to review 10 intermediate agency decisions that occur during the administrative review 11 process. ); Thompson v. Astrue, No. EDCV, 09-1182, 2010 U.S. Dist. LEXIS 12 75596, at *6 (C.D. Ca. July 27, 2010)( [T]he Court's role is to determine whether 13 the ALJ's final decision is supported by substantial evidence, not whether the ALJ 14 complied with the Appeals Council's remand order. ). 15 Moreover, this Court notes that the Appeals Council did not expressly direct 16 the ALJ to obtain a consultative examination. The Appeals Council directed the 17 ALJ to further develop the record regarding Plaintiff s mental impairments. (T at 18 418). The ALJ did undertake a thorough review and reexamination of all of the 19 record evidence (including the evidence concerning mental health limitations and 20 14 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 significant additional evidence produced on remand), and the ALJ provided a 2 detailed explanation, with citations to the medical record, to support his conclusions. 3 This Court will, however, consider whether the ALJ s failure to obtain a 4 consultative psychiatric examination was error, irrespective of whether the ALJ 5 technically complied with the Remand Order. For the following reasons, this Court 6 finds that a consultative examination was not necessary. 7 Plaintiff testified that he has never had a driver s license because he is afraid 8 to drive. (T at 53). He stopped working due to severe chest pain and soon thereafter 9 underwent surgery for a cardiac valve replacement. (T at 53, 341). Plaintiff found 10 the cardiac event [r]eally, really incredibly frightening. (T at 53). Since then, he 11 lacks energy and motivation, has had difficulty sleeping, and feels [t]remendously 12 depressed. (T at 54). He has difficulty with concentration and is not able to attend 13 to a half-hour television program. (T at 55). He experiences anxiety, pressure in his 14 chest, and an inability to focus. (T at 55-56). Plaintiff testified that he has gained 95 15 pounds since the cardiac event. (T at 56). He has difficulty falling asleep and fears 16 he will not wake up due to his heart condition. (T at 59). 17 Plaintiff was prescribed Zoloft and Xanax for depression and anxiety. (T at 18 607). In July of 2009, Kyoko Cleveland, a mental health counselor, examined 19 Plaintiff and completed a psychological/psychiatric evaluation for the State 20 15 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 Department of Social and Health Services. Ms. Cleveland s assessment was co- 2 signed by Dr. Harry Kramer, a psychologist. (T at 558). Ms. Cleveland and Dr. 3 Kramer assessed depressed mood and sleep disturbance of moderate severity, mild 4 concentration difficulties, and marked feelings of hopelessness and helplessness. (T 5 at 553). 6 assigned a Global Assessment of Functioning ( GAF ) 3 score of 55 (T at 555), 7 which is indicative of moderate symptoms or difficulty in social, occupational or 8 education functioning. Amy v. Astrue, No. CV-11-319, 2013 U.S. Dist. LEXIS 2297, 9 at *19 n.2 (E.D.Wa Jan. 7, 2013). They diagnosed major depressive disorder (recurrent, moderate) and 10 Ms. Cleveland and Dr. Kramer assessed no limitation with regard to 11 Plaintiff s ability to understand, remember, and follow simple instructions or 12 exercise judgment and make decisions. (T at 556). They found mild limitations as to 13 learning new tasks and performing routine tasks and moderate limitation with 14 respect to understanding, remembering, and following complex instructions. (T at 15 556). Ms. Cleveland and Dr. Kramer opined that Plaintiff had no limitation with 16 regard to social functioning, except for some moderate difficulties maintaining 17 18 19 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." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). 20 16 3 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 personal hygiene and appearance. (T at 556). They found no limitation as to 2 Plaintiff s ability to maintain appropriate behavior in a work setting. (T at 556). 3 There is no question that the ALJ has a duty to assist in developing the 4 record. Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 587, 589 (9th 5 Cir. 1998); 20 C.F.R. §§ 404.1512(d)-(f); see also Sims v. Apfel, 530 U.S. 103, 110- 6 11, 147 L. Ed. 2d 80, 120 S. Ct. 2080 (2000) ( Social Security proceedings are 7 inquisitorial rather than adversarial. It is the ALJ s duty to investigate the facts and 8 develop the arguments both for and against granting benefits . . . . ). One of the 9 tools the ALJ has to develop the record is the ability to order a consultative 10 examination, i.e., a physical or mental examination or test purchased for [a 11 claimant] at [the Commissioner s] request and expense. 20 C.F.R. §§ 404.1519, 12 416.919. 13 However, the Commissioner has broad latitude in ordering a consultative 14 examination. Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001)(quoting Diaz v. 15 Sec'y of Health and Human Servs., 898 F.2d 774, 778 (10th Cir. 1990)). The 16 government is not required to bear the expense of an examination for every 17 claimant. Id. (citing 20 C.F.R. §§ 404.1517-1519t, 416.917-919t). 18 Here, the record contained an assessment by an examining counselor and 19 psychologist (the Cleveland/Kramer opinion discussed above). The ALJ carefully 20 17 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 considered that assessment, along with Plaintiff s subjective complaints,4 and 2 concluded that (a) further development of the record was not necessary and (b) 3 Plaintiff retained the RFC to perform the mental demands of basic work activity. (T 4 at 343). Plaintiff has not demonstrated that the record was inadequate for the ALJ to 5 assess his mental health limitations. The ALJ s RFC determination, which was 6 consistent with the Cleveland/Kramer assessment, is supported by substantial 7 evidence and the decision not to obtain a consultative examination was a valid 8 exercise of the broad latitude afforded to the Commissioner. 9 10 11 19 The ALJ noted that Plaintiff had not sought counseling from a free or low-cost mental health clinic. (T at 343). Although this is in tension with Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (noting that it is questionable practice to chastise one with a mental impairment for the exercise of poor judgment in seeking rehabilitation ), at least one court has found Nguyen distinguishable where the claimant alleged mental impairments secondary to a heart attack. See Walton v. Colvin, No. 11-cv-01384, 2013 U.S. Dist. LEXIS 82786, at *28-29 (D. Or. May 16, 2013)(holding that because claimant had knowledge that she suffered a mental impairment because she described a discrete moment when her mental functioning changed [i.e. the heart attack]; . . . it was not improper for the ALJ to infer that [claimant s] mental impairments were not as severe as alleged because she failed to consistently seek mental care. ); see also Frost v. Astrue, No. 11-cv-05753, 2012 U.S. Dist. LEXIS 117215, at *23-24 (W.D. Wash. Aug. 1, 2012) (affirming ALJ s decision to discount credibility in the absence of evidence that failure to follow through with mental health treatment was due to lack of insight into condition). Moreover, any arguable error in this regard was harmless in light of the other, legitimate grounds on which the ALJ relied, including the Cleveland/Kramer assessment. See McTaggart v. Comm r of SSA, 480 Fed. App. 459, 461 n.2 (9th Cir. 2012)(finding improper consideration of lack of mental health treatment harmless error). 20 18 12 13 14 15 16 17 18 4 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 C. Handling 2 In August of 2007, Dr. Karen Stout, Plaintiff s treating cardiologist, 3 completed a physical evaluation form in which she indicated that Plaintiff would 4 have moderate limitations with regard to several basic work-related activities, 5 including handling. (T at 536). She opined that Plaintiff could perform sedentary 6 work, provided he was not required to perform any bearing down to move an 7 object, i.e. no weightlifting. (T at 536). 8 The first ALJ discounted this opinion on the erroneous assumption that Dr. 9 Stout was a State Agency evaluator (instead, Dr. Stout is a treating physician who 10 completed an evaluation form for the State Agency). (T at 21-22). The Appeals 11 Council ruled that the ALJ did not adequately evaluate Dr. Stout s opinion given her 12 status as a treating physician and directed [f]urther consideration of Dr. Stout s 13 opinion on remand. (T at 417). 14 ALJ Mangrum considered Dr. Stout s opinion and correctly identified her as a 15 treating physician. (T at 342). The ALJ s RFC determination is generally consistent 16 with Dr. Stout s assessment (which found that Plaintiff retained the ability to 17 perform sedentary work ). However, the RFC assessment did not contain any 18 limitation regarding handling. Plaintiff challenges the lack of a handling limitation. 19 20 19 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 This Court finds the ALJ s decision supported by substantial evidence. First, 2 Dr. Stout did not note any clinical findings or other objective evidence in support of 3 a handling limitation. The ALJ is not obliged to accept a treating source opinion that 4 is brief, conclusory and inadequately supported by clinical findings. Lingenfelter 5 v. Astrue, 504 F.3d 1028, 1044-45 (9th Cir. 2007) (citing Thomas v. Barnhart, 278 6 F.3d 947, 957 (9th Cir. 2002)). 7 handling limitation, considered in context, was meant to indicate that Plaintiff would 8 have a difficult time handling heavy objects, as opposed to being limited with 9 respect to the sort of repetitive hand-finger actions frequently required for sedentary 10 The Commissioner suggests that Dr. Stout s work. See SSR 38-10. This is a plausible interpretation. 11 Dr. Paul Tompkins, another treating physician, opined that Plaintiff could 12 perform medium work. (T at 542). He did not indicate any limitation with regard to 13 handling. (T at 542). Dr. Laura Lascar, another treating physician, concluded that 14 Plaintiff needed to avoid strenuous physical activity, but could perform desk 15 jobs. (T at 224). Dr. Lascar also did not assess any handling limitation. (T at 223). 16 This Court finds no error with regard to the ALJ s decision not to include a handling 17 limitation in the RFC assessment. 18 19 20 20 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 D. Medical Opinions 2 The record contains a Physician s Certification for Medicaid completed by Dr. 3 J. Dalton on May 8, 2006. Dr. Dalton noted that Plaintiff has been on GAU [a 4 Washington State disability benefits program] for over a year. (T at 523). Dr. 5 Dalton noted Plaintiff s various medical conditions. (T at 523). 6 In August of 2012, Dr. Brent Packer, a non-examining State Agency review 7 physician, completed a review in which he opined that Plaintiff was limited to less 8 than sedentary work activity due to his inability to stand or walk for even brief 9 periods of less than 2 hours. (T at 572). Dr. Packer noted that he had not reviewed 10 Plaintiff s complete medical record. (T at 572). 11 The ALJ did not discuss Dr. Dalton s certification form and gave little weight 12 to Dr. Packer s assessment. (T at 342). Plaintiff challenges these aspects of the 13 ALJ s decision. This Court finds no reversible error. Dr. Dalton s certification form 14 did not contain any significant or probative evidence. In particular, it did not include 15 any functional limitations or clinical findings and the physician left blank a section 16 on the form for comments regarding whether Plaintiff met Social Security disability 17 criteria. (T at 523). [I]n interpreting the evidence and developing the record, the 18 ALJ does not need to discuss every piece of evidence. Howard ex rel. Wolff v. 19 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (quoting Black v. Apfel, 143 F.3d 20 21 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB 1 383, 386 (8th Cir. 1998)). An ALJ is not required to discuss evidence that is neither 2 significant nor probative. Id. 3 Dr. Packer s opinion was based on an incomplete record and was not 4 supported by any clinical findings. It was also contradicted by other evidence in the 5 record, including treating physician opinions, that indicated Plaintiff was capable of 6 at least sedentary work. (T at 272, 515, 521, 536, 542, 566, 571). Plaintiff argues 7 that the ALJ should have weighed the evidence differently and resolved the conflict 8 in favor of Dr. Packer s opinion, but it is the role of the Commissioner, not this 9 Court, to resolve conflicts in evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th 10 Cir. 1989); Richardson, 402 U.S. at 400. If the evidence supports more than one 11 rational interpretation, this Court may not substitute its judgment for that of the 12 Commissioner. Allen v. Heckler, 749 F.2d 577, 579 (9th 1984). If there is substantial 13 evidence to support the administrative findings, or if there is conflicting evidence 14 that will support a finding of either disability or nondisability, the Commissioner s 15 finding is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 16 Here, the ALJ s assessment was supported by substantial evidence and must be 17 sustained. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(holding that if 18 evidence reasonably supports the Commissioner s decision, the reviewing court 19 must uphold the decision and may not substitute its own judgment). 20 22 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB V. CONCLUSION 1 2 After carefully reviewing the administrative record, this Court finds 3 substantial evidence supports the Commissioner s decision, including the objective 4 medical evidence and supported medical opinions. This Court finds no reversible 5 error and because substantial evidence supports the Commissioner s decision, the 6 Commissioner is GRANTED summary judgment and that Plaintiff s motion for 7 judgment summary judgment is DENIED. VI. ORDERS 8 9 IT IS THEREFORE ORDERED that: 10 Plaintiff s motion for summary judgment, Docket No. 16, is DENIED. 11 The Commissioner s motion for summary judgment, Docket No. 17, is 12 GRANTED. 13 The District Court Executive is directed to file this Decision and Order, 14 provide copies to counsel, enter judgment in favor of the Commissioner and 15 CLOSE the file. 16 DATED this 17th day of June, 2014. 17 18 19 20 /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 23 DECISION AND ORDER PEDERSON v COLVIN 13-CV-03077-VEB

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