Hansen-Steel v. Colvin, No. 2:2013cv03104 - Document 35 (E.D. Wash. 2014)

Court Description: ORDER Denying 26 Plaintiff's Motion for Summary Judgment; Granting 29 Defendant's Motion for Summary Judgment. Signed by Judge Stanley A Bastian. (PL, Case Administrator)

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Hansen-Steel v. Colvin Doc. 35 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 8 9 JESSICA-REA HANSEN-STEEL, AKA NO. 2:13-cv-03104-SAB 1 10 CONNOR BRYAN SWAN 11 Plaintiff, ORDER DENYING 12 v. PLAINTIFF’S MOTON FOR 13 CAROLYN W. COLVIN, Commissioner SUMMARY JUDGMENT; 14 of Social Security Administration, GRANTING DEFENDANT’S 15 16 Defendant. MOTION FOR SUMMARY JUDGMENT 17 18 Before the Court are Plaintiff’s Motion for Summary Judgment, ECF No. 19 26, and Defendant’s Motion for Summary Judgment, ECF No. 29. The motions 20 were heard without oral argument. Plaintiff is represented by D. James Tree. 21 Defendant is represented by Assistant United States Attorney Pamela De Rusha 22 and Special Assistant United States Attorney John C. LaMont. 23 24 1 On December 8, 2011, Plaintiff changed his name to Connor Bryan Swan. The 25 Court will use masculine pronouns when referring to Plaintiff in this decision. 26 Plaintiff has also used other aliases in the past, including Rea J. Steel, Rea J. 27 Fleming, Jessica Hansen, Jr., Jessica Steel, R. Jessica Sorensenon, Rea J. Thorton, 28 and Jessica Wangler. ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 I. Jurisdiction 2 On December 15, 1997, Plaintiff filed applications for disability insurance 3 benefits (DIB) and supplemental security income payments (SSI). Plaintiff alleged 4 he is disabled beginning June 1, 1997, due to conditions including bipolar 5 disorder, multiple personality disorder, wrist, knee and back pain, scoliosis, and 6 attention deficit disorder. 7 On August 14, 1999, Administrative Law Judge (ALJ) Edward Nichols 8 issued a decision, finding Plaintiff was not disabled. Plaintiff appealed and the 9 Appeals Council remanded the decision. Pursuant to the remand order, ALJ 10 Nichols issued a decision on July 23, 2003, finding Plaintiff was not disabled. 11 Again, Plaintiff appealed the decision and again the Appeals Council remanded 12 the case. 13 On remand, ALJ R. J. Payne issued a decision on August 19, 2009, finding 14 Plaintiff was not disabled. The Appeals Council upheld the decision, and Plaintiff 15 appealed the decision to the Eastern District of Washington. While the case was 16 pending, the parties jointly stipulated that the case should be remanded for further 17 administrative proceedings. Judge Suko granted the stipulation, and the case was 18 remanded and assigned to ALJ Ilene Sloan. 19 On June 20, 2013, Plaintiff appeared at a video hearing in Yakima, 20 Washington before ALJ Sloan, who presided over the hearing from Seattle, 21 Washington. Frederick Cutler, vocational expert, also appeared at the hearing. 22 Plaintiff was represented by attorney D. James Tree. On July 18, 2013, ALJ Sloan 23 ruled that Plaintiff was not disabled. Plaintiff requested an expedited appeal. 24 Plaintiff then filed a timely appeal with the U.S. District Court for the 25 Eastern District of Washington on September 30, 2013. 26 II. Sequential Evaluation Process 27 The Social Security Act defines disability as the “inability to engage in any 28 substantial gainful activity by reason of any medically determinable physical or ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 mental impairment which can be expected to result in death or which has lasted or 2 can be expected to last for a continuous period of not less than twelve months.” 3 42 U.S.C. § 423(d)(1)(A). A claimant shall be determined to be under a disability 4 only if his impairments are of such severity that the claimant is not only unable to 5 do his previous work, but cannot, considering claimant’s age, education and work 6 experiences, engage in any other substantial gainful work which exists in the 7 national economy. 42 U.S.C. §423(d)(2)(A). 8 The Commissioner has established a five-step sequential evaluation process 9 for determining whether a person is disabled. 20 C.F.R. § 404.1520(a)(4); Bowen 10 v. Yuckert, 482 U.S. 137, 140-42 (1987). 11 Step 1: Is the claimant engaged in substantial gainful activities? 20 C.F.R. § 12 404.1520(b). Substantial gainful activity is work done for pay and requires 13 compensation above the statutory minimum. 20 C.F.R. § 404.1574; Keyes v. 14 Sullivan, 894 F.2d 1053, 1057 (9th Cir. 1990). If the claimant is engaged in 15 substantial activity, benefits are denied. 20 C.F.R. § 404.1571. If he is not, the ALJ 16 proceeds to step two. 17 Step 2: Does the claimant have a medically-severe impairment or 18 combination of impairments? 20 C.F.R. § 404.1520(c). If the claimant does not 19 have a severe impairment or combination of impairments, the disability claim is 20 denied. A severe impairment is one that lasted or must be expected to last for at 21 least 12 months and must be proven through objective medical evidence. 20 22 C.F.R. § 404.1508-09. If the impairment is severe, the evaluation proceeds to the 23 third step. 24 Step 3: Does the claimant’s impairment meet or equal one of the listed 25 impairments acknowledged by the Commissioner to be so severe as to preclude 26 substantial gainful activity? 20 C.F.R. § 404.1520(d); 20 C.F.R. § 404 Subpt. P. 27 App. 1. If the impairment meets or equals one of the listed impairments, the 28 claimant is conclusively presumed to be disabled. Id. If the impairment is not one ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 conclusively presumed to be disabling, the evaluation proceeds to the fourth step. 2 Before considering Step 4, the ALJ must first determine the claimant’s 3 residual functional capacity. 20 C.F.R. § 404.1520(e). An individual’s residual 4 functional capacity is his ability to do physical and mental work activities on a 5 sustained basis despite limitations from his impairments. 6 Step 4: Does the impairment prevent the claimant from performing work he 7 has performed in the past? 20 C.F.R. § 404.1520(f). If the claimant is able to 8 perform his previous work, he is not disabled. Id. If the claimant cannot perform 9 this work, the evaluation proceeds to the fifth and final step. 10 Step 5: Is the claimant able to perform other work in the national economy 11 in view of his age, education, and work experience? 20 C.F.R. § 404.1520(g). 12 The initial burden of proof rests upon the claimant to establish a prima facie 13 case of entitlement to disability benefits. Tackett v. Apfel, 108 F.3d 1094, 1098 14 (9th Cir. 1999). This burden is met once a claimant establishes that a physical or 15 mental impairment prevents him from engaging in his previous occupation. Id. At 16 step five, the burden shifts to the Commissioner to show that the claimant can 17 perform other substantial gainful activity. Id. 18 III. Standard of Review 19 The Commissioner’s determination will be set aside only when the ALJ’s 20 findings are based on legal error or are not supported by substantial evidence in th 21 the record as a whole. Matney v. Sullivan, 981 F.2d 1016, 1018 (9 Cir. 1992) 22 (citing 42 U.S.C. § 405(g)). Substantial evidence is “more than a mere scintilla,” 23 Richardson v. Perales, 402 U.S. 389, 401 (1971), but “less than a preponderance.” th 24 Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9 Cir. 1975). Substantial 25 evidence is “such relevant evidence as a reasonable mind might accept as adequate 26 to support a conclusion.” Richardson, 402 U.S. at 401. The Court must uphold the 27 ALJ’s denial of benefits if the evidence is susceptible to more than one rational 28 interpretation, one of which supports the decision of the administrative law judge. ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 th 1 Batson v. Barnhart, 359 F.3d 1190, 1193 (9 Cir. 2004). “If the evidence can 2 support either outcome, the court may not substitute its judgment for that of the 3 ALJ.” Matney, 981 F.2d at 1019. 4 A decision supported by substantial evidence will be set aside if the proper 5 legal standards were not applied in weighing the evidence and making the th 6 decision. Brawner v. Secretary of Health & Human Servs., 839 F.2d 432, 433 (9 7 Cir. 1988). An ALJ is allowed “inconsequential” errors as long as they are 8 immaterial to the ultimate nondisability determination.” Stout v. Comm'r, Soc. Sec. th 9 Admin., 454 F.3d 1050, 1055 (9 Cir. 2006). 10 IV. Statement of Facts 11 The facts have been presented in the administrative transcript and the ALJ’s 12 decision and will only be summarized here. 13 Plaintiff was twenty-three at the time he initially filed his application for 14 disability benefits. At the time of the hearing in June, 2013, Plaintiff was thirty15 nine. Prior to 1997, Plaintiff worked as a security guard for a number of years, in a 16 number of different positions. He has one biological child who, during the period 17 in question, was being raised by the child’s grandmother. Also, during this same 18 time, he was helping raise his partner’s child. At various times during this period, 19 Plaintiff was homeless and living in a shelter. He enjoys building models and 20 playing on the computer. 21 Plaintiff grew up in a military family and reports experiencing physical and 22 sexual abuse by his stepfather. He earned his GED. Between 1999 and 2002, 23 Plaintiff attended classes at Yakima Valley Community College. While at YVCC, 24 Plaintiff worked as a tutor at the YVCC tutor center from January, 2000 to Fall, 25 2002. Plaintiff reports he is computer literate. 26 Plaintiff maintains he cannot work because he is unable to hold a job as he 27 usually gets fired, he gets pissed off at work, he has a short attention span, he has 28 bad knees and a bad back, and he has difficulty standing for any length of time. At ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 the 2003 hearing, he explained that his jobs typically ended because he would get 2 into a fight with a co-worker, tell his boss off, or he didn’t feel like going to work 3 so he would not go. (Tr. 499.) 4 V. The ALJ’s findings 5 The ALJ’s decision addresses the closed period from June 1, 1997 to June 1, 6 2004. The ALJ found Plaintiff met the insured status requirement of the Social 7 Security Act for the time period in question. At step one, the ALJ found Plaintiff has not engaged in substantial gainful 8 9 activity from June 1, 1997 to June 1, 2004, the requested closed period. (Tr. 577.) At step two, the ALJ found Plaintiff has the following severe impairments: 10 11 scoliosis, obesity, bipolar disorder, and personality disorder. (Tr. 577.) At step three, the ALJ found that Plaintiff’s impairments or combination of 12 13 impairments do not meet or medically equal Listing 1.04 or Listing 12.00. (Tr. 14 579-80.) The ALJ concluded that Plaintiff has the residual functional capacity to 15 2 16 perform medium work as defined in 20 C.F.R. § 416.967(a) except occasionally 17 climb ladders, ropes, scaffolds, stairs, and ramps, and occasionally balance, stoop, 18 kneel, crouch, and crawl. (Tr. 580-81.) Plaintiff can understand, remember, and 19 carry out simple as well as detailed tasks, but can not have any contact with the 20 general public. At step four, the ALJ found Plaintiff was capable of performing his past 21 22 relevant work as a security guard. (Tr. 591.) In the alternative, at step five, the ALJ found there were jobs that exist in 23 24 significant numbers in the national economy that Plaintiff can perform. (Tr. 592.) 25 26 2 (c) Medium work. Medium work involves lifting no more than 50 pounds at a 27 time with frequent lifting or carrying of objects weighing up to 25 pounds. 28 20 C.F.R. § 404.1567(c). ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 The ALJ relied on the testimony of a vocation expert, and concluded that Plaintiff 2 was capable of performing the requirements of representative occupations such as 3 cleaner, housekeeping cleaner, and assembler. As such, the ALJ concluded that 4 Plaintiff was not disabled for the requested closed period of June 1, 1997 to June 5 1, 2004. 6 VI. Issues for Review 7 1. Did substantial evidence support the ALJ’s adverse credibility 8 finding? 9 2. Did the ALJ reasonably resolve the conflicting medical evidence and 10 reach conclusions supported by substantial evidence? 11 3. Did Plaintiff receive due process of law? 12 VII. Discussion 13 1. Plaintiff’s Credibility 14 In making her ruling, the ALJ found that Plaintiff’s statements concerning 15 his limitations were not credible. Specifically, the ALJ noted that Plaintiff alleged 16 that his mental conditions prevent him from holding a job for longer than a few 17 months. He states he is easily angered, and cannot be around other people. He 18 reports that he occasionally disassociates for two or three days and does not know 19 where he is or what he is doing. He describes himself as argumentative. He will 20 get depressed and isolate himself in his room for three to five days at a time. He 21 states he has a short attention span, and describes periods of depression and bouts 22 of mania. He indicates he has suicidal ideation and a history of suicide attempts. 23 The ALJ concluded that Plaintiff’s statements concerning the intensity, 24 persistence and limiting effects of his symptoms are not entirely credible. She 25 cited the following reasons: (1) the medical records do not substantiate Plaintiff’s 26 back complaints; (2) medical imaging does not support Plaintiff’s back 27 complaints; (3) Plaintiff’s obesity is slight, and apparently has not caused any 28 secondary complications, such as heart disease or diabetes; (4) there is evidence of ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 drug-seeking behavior; (5) state agency psychological consultants question the 2 diagnosis of bipolar; (6) Plaintiff received relatively minimal mental health 3 treatment for his allegedly severe depression and mood instability; (7) medical 4 records indicate that Plaintiff’s mental symptoms did respond well to treatment; 5 (8) Plaintiff has been able to sustain fairly long-term relationships with a few 6 people; (9) he was able to attend Yakima Valley Community College for three 7 years; (10) he was able to tutor other students who needed help with math and 8 English from 2000 – 2002; (11) Plaintiff’s performance on mental status testing 9 showed that he retained fairly intact cognitive functioning; (12) lack of mention in 10 the reports of any ongoing suicidal ideation or suicide attempts; (13) inconsistent 11 statements in the record about his psychotic symptoms (multiple personalities, 12 hallucinations, paranoid ideation); (14) inconsistent statements about his 13 intellectual functioning; (15) inconsistent statements about his substance use; (16) 14 inconsistent statements about his medical history; (17) inconsistent statements 15 about his educational history; (18) evidence that Plaintiff has disability conviction, 16 i.e. that he has disability seeking motivation; and (19) Dr. Toews suspected a high 17 probability of malingering and evidence of lack of motivation and cooperation. 18 (Tr. 581-585). 19 An ALJ’s assessment of a claimant’s credibility is entitled to “great weight.” th 20 Anderson v. Sullivan, 914 F.2d 1121, 1124 (9 Cir.1990). When there is no 21 evidence of malingering, the ALJ must give “specific, clear and convincing 22 reasons” for rejecting a claimant’s subjective symptom testimony. Molina v. th 23 Astrue, 674 F.3d 1104, 1112 (9 Cir. 2012) (citation omitted). If the ALJ’s 24 credibility finding is supported by substantial evidence in the record, the 25 reviewing court “may not engage in second-guessing.” Thomas v. Barnhart, 278 26 F.3d 947, 959 (9th Cir. 2002). In recognition of the fact that an individual’s 27 symptoms can sometimes suggest a greater level of severity of impairment than 28 can be shown by the objective medical evidence alone, 20 CFR 404.1529(c) and ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 416.929(c) describe the kinds of evidence, including the factors below, that the 2 ALJ must consider in addition to the objective medical evidence when assessing 3 the credibility of an individual’s statements: 1. The individual’s daily activities; 2. The location, duration, 4 frequency, and intensity of the individual’s pain or other symptoms; 5 3. Factors that precipitate and aggravate the symptoms; 4. The type, dosage, effectiveness, and side effects of any medication the 6 individual takes or has taken to alleviate pain or other symptoms; 7 5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. Any measures other 8 than treatment the individual uses or has used to relieve pain or other 9 symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. Any other factors 10 concerning the individual’s functional limitations and restrictions due 11 to pain or other symptoms. 12 SSR 96-7P, 1996 WL 374186. 13 Here, the ALJ’s credibility determination is clearly supported by the record. 14 The ALJ carefully reviewed the entire record, noted where the medical records 15 failed to support Plaintiff’s alleged limitations, and noted where Plaintiff made 16 numerous inconsistent statements regarding his perceived limitations. The ALJ’s 17 credibility determination is significant because certain medical providers provided 18 opinions based on Plaintiff’s self-reported diagnoses and descriptions of his 19 symptoms, rather than conduct testing. The ALJ relied heavily on the fact that 20 Plaintiff was able to successfully attend community college between 1999 and 21 2002 and successfully tutor other students. This was not in error. Notably, Plaintiff 22 did not seek any mental health treatment during this time, and there were no 23 mental health evaluations conducted during this time period, suggesting that 24 Plaintiff’s mental health was fairly stable. 25 2. Medical Opinions 26 The ALJ is tasked with resolving conflicts in the medical evidence. Andrews 27 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). Generally speaking, three types of 28 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 doctors provide medical evidence: treating doctors, examining doctors, and 2 reviewing (non-examining) doctors. “By rule the Social Security Administration 3 favors the opinion of a treating physician over non-treating physicians.” 20 C.F.R. 3 th 4 § 416.927 ; Orn v. Astrue, 495 F.3d 625, 631 (9 Cir. 2007). “If a treating 5 physician’s opinion is well-supported by medically acceptable clinical and 6 laboratory diagnostic techniques and is not inconsistent with the other substantial 7 evidence in the case record, it will be given controlling weight.” Orn, 495 F.3d at 8 631. If a treating physician’s opinion is not given “controlling weight” because it 9 does not meet these requirements, the ALJ should consider (i) the length of the 10 treatment relationship and the frequency of examination by the treating physician; 11 and (ii) the nature and extent of the treatment relationship between the patient and 12 the treating physician in determining the weight it will be given. Id. The ALJ is 13 not required, however, to merely accept the opinion of a treating doctor. Lester v. th 14 Chater, 81 F.3d 821, 830 (9 Cir. 1995). Where contradicted, the ALJ may reject 15 the opinion for specific and legitimate reasons that are supported by substantial 16 evidence in the record. Id. On the other hand, where the treating doctor’s opinion 17 is uncontradicted, the ALJ can only reject it for clear and convincing reasons. Id. 18 The opinions of examining physicians are afforded more weight than those 19 of non-examining physicians. Id. Factors the ALJ should consider in evaluating 20 any medical opinion (not limited to the opinion of the treating physician) include: 21 22 3 20 C.F.R. § 416.927(c)(2) states: Generally, we give more weight to opinions 23 from your treating sources, since these sources are likely to be the medical 24 professionals most able to provide a detailed, longitudinal picture of your medical 25 impairment(s) and may bring a unique perspective to the medical evidence that 26 cannot be obtained from the objective medical findings alone or from reports of 27 individual examinations, such as consultative examinations or brief 28 hospitalizations. ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 (1) the amount of relevant evidence that supports the opinion and the quality of the 2 explanation provided; (2) the consistency of the medical opinion with the record 3 as a whole; (3) the specialty of the physician providing the opinion; and (4) other 4 factors, such as the degree of understanding a physician has of the 5 Administration’s disability programs and their evidentiary requirements and the 6 degree of his or her familiarity with other information in the case record. Orn, 495 7 F.3d at 631. When evaluating conflicting medical opinions, an ALJ need not 8 accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately th 9 supported by clinical findings. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9 Cir. 10 2005). 11 Below is a chart that lists the medical testimony considered by the ALJ and 12 the weight given each opinion: 13 14 Provider Summary of Opinion Physical Limitations 15 Dr. Kurtz Examining Diagnosed scoliosis, right wrist physician pain, skin moles on back, and 16 1/1998 (Tr. 105-109) low back and left knee pain 17 Dr. Cierebiej State agency Plaintiff could perform medium medical work, with occasional postural 18 2/1998 (Tr. 112-118) consultant restrictions 19 20 Dr. Kaminski 4/1998 21 (Tr. 179) 22 23 Dr. Hoskins 4/1998 24 (Tr. 185-192) 25 K.R. Meyer 26 1-2/2003 27 (Tr. 336-350) Position Treating physician State agency medical consultant PA-C Weight significant Plaintiff did not have any significant significant workplace limitations due to back pain or abdominal pain Plaintiff could perform medium significant work, with some postural and environmental restrictions Plaintiff could perform modified some work due to his right hand injury 28 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 Provider Position Medical 2 Dr. Francis 8/2009 expert 3 (Tr. 540-545) 4 Summary of Opinion No evidence showing that Plaintiff was unemployable from a physical standpoint; recommended light work Mental Limitations 5 Dr. Lemere Examining Plaintiff would be unable to 6 9/1997 physicianconcentrate on a job, due to his (Tr. 93-96) DSHS extreme mood swings. He had 7 (Tr. 233-236) moderate to marked limitations 8 in social functioning and cognitive functioning. Dr. 9 believed Plaintiff’s impairment 10 would last for six months. Consultative Dr. Jarvis listed a number of 11 Dr. Jarvis 12/1997 examiner possible diagnoses, indicating 12 (Tr. 97-101) his uncertainty. He concluded that Plaintiff appeared to have a 13 mental disorder that creates 14 significant limitations in his ability to tolerate the pressures 15 and expectations of a normal 16 work setting. 17 Dr. Rowlette treating Plaintiff has bipolar disorder and 1/1998 physician PTSD; ability to perform gainful 18 (Tr. 110-111) (but not prior employment was doubtful due to 19 to issuing presence of Plaintiff’s symptoms opinion) 20 Dr. Reade State agency Plaintiff had limitations to 21 2/1998 psychological persistence and sustained concentration, yet he retained 22 (Tr. 120-132) consultant ability to perform detailed tasks 23 consistently. Plaintiff would likely not be suitable for 24 working directly with the public. 25 Weight some little great to mental health status; little weight to GAF score little great 26 27 28 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 Provider 2 Dr. Haney 5/1998 3 (Tr. 193-202) 4 Position State agency psychological consultant Summary of Opinion Weight Plaintiff could understand, some remember, and maintain his concentration to carry out detailed instructions; Plaintiff’s affective instability would 5 interfere with his ability to persist through a normal 6 workweek, but he could persist 7 consistently the greater part of 8 the time. State agency Plaintiff’s ability to attend and little 9 Dr. Czysz 8/1998 psychological concentrate appeared impaired. 10 (Tr. 229-232) consultant He had moderate to marked limitations in cognitive and 11 social functioning. His ability to 12 attend/concentrate appeared impaired during the session. 13 Dr. Kiele Treating GAF-45. Noted that patient early little weight 14 9/1998 physician on in the interview addressed to GAF issue of perceived inability to 15 (Tr. 248-250) hold a job. 16 Dr. Moore Psychological There was insufficient evidence some expert at of ADHD, bipolar disorder, and 17 8/2009 (Tr. 443-460) August 2009 PTSD, but record supported 18 personality disorder; no hearing 19 limitations in daily activity; moderate limitation in social 20 functioning; mild limitation in 21 concentration, persistence, or pace. 22 Dr. Toews Consultative With the exception of his ability great 23 1/2013 Examiner to deal with the public Plaintiff had good ability to make 24 (Tr. 311-318) occupational adjustments in 25 various categories. 26 Plaintiff contends the ALJ erred in rejecting the following providers: (1) Dr. 27 Lemere; (2) Dr. Jarvis; (3) Dr. Rowlett; (4) Dr. Czysz; (5) Dr. Kiele; and 28 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 (6) Dr. Kurtz. As set forth above, there is significant conflict among the medical 2 opinions in the record. The ALJ did not err in resolving these conflicts. The ALJ 3 gave less weight to the psychological evaluation forms completed by Dr. Lemere 4 and Dr. Czysz because there were no clinical findings or testing to support their 5 conclusions, except for Plaintiff’s self-reported symptoms and diagnoses. This was 6 not in error. Dr. Lemere and Dr. Czysz did not perform any mental status 7 examinations. Rather, their conclusions relied primarily on Plaintiff’s self-reported 8 symptoms and limitations, which, as set forth above, the ALJ properly found to 9 not be credible. 10 Additionally, the ALJ gave specific and legitimate reasons for crediting the 11 various medical opinions that are supported by substantial evidence. The ALJ 12 noted that despite the mental conditions, Plaintiff was able to attend college for 13 three years between 1999 and 2002, after the dates the medical opinions were 14 given that concluded that Plaintiff would have difficulty sustaining. The ALJ 15 considered that Plaintiff successfully worked as a tutor during this time, which 16 seemingly contradicts the earlier medical opinions. Also, the residual functional 17 capacity limitations incorporated Plaintiff’s recognized cognitive and social 18 limitations in that it provided that Plaintiff could not have any contact with the 19 general public. 20 3. Due Process 21 Plaintiff argues that he did not receive a full and fair hearing because the 22 ALJ prevented his attorney from asking the Vocational Expert several questions. 23 5 U.S.C. § 556(c) provides, in part, that the presiding officer at 24 administrative hearings may regulate the course of the hearing. A claimant in a 25 disability hearing is entitled to “such cross-examination as may be required for a 26 full and true disclosure of the facts.” 5 U.S.C. § 556(d). The ALJ is afforded 27 discretion to decide when cross-examination is warranted. Solis v. Schweiker, th 28 719 F.2d 301, 302 (9 Cir. 1983). ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Here, the questions the ALJ barred were irrelevant, immaterial or repetitious 2 of the evidence already in the record. Also, the ALJ appropriately barred 3 Plaintiff’s tautological question, which essentially asked whether a disabled 4 person can work. 5 Even if the ALJ erred, Plaintiff has not shown that he was prejudiced. See 6 Shinseki v. Sanders, 556 U.S. 396, 406 (2009) (establishing that administrative 7 adjudications are subject to the same harmless error rule as generally applies to th 8 civil cases); Ludwig v. Astrue, 681 F.3d 1047, 1054 (9 Cir. 2012) (noting that 9 reversal on account of error is not automatic, but requires a determination of 10 prejudice). The burden is on the party claiming error to demonstrate not only error, 11 but that the error affected both his procedural rights and substantial rights. Id. 12 Here, in considering the record as a whole, and the ALJ’s explanation of her 13 decision, the Court finds that Plaintiff has not demonstrated that the decision 14 would have been any different if the ALJ would have permitted his counsel to ask 15 the vocational expert his questions. 16 VIII. Conclusion 17 Plaintiff has not met his burden of showing that the ALJ committed clear 18 error, or that her decision is not supported by substantial evidence. 19 Accordingly, IT IS HEREBY ORDERED: 20 1. Plaintiff’s Motion for Summary Judgment, ECF No. 26, is DENIED. 21 2. Defendant’s Motion for Summary Judgment, ECF No. 29, is 22 GRANTED. 23 3. The decision of the Commissioner denying benefits is affirmed. 24 4. The District Court Executive is directed to enter judgment in favor of 25 Defendant and against Plaintiff. 26 /// 27 /// 28 /// ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 IT IS SO ORDERED. The District Court Executive is hereby directed to 2 file this Order, provide copies to counsel, and close the file. 3 DATED this 6th day of October, 2014. __ 4 5 6 7 8 9 Stanley A. Bastian United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER DENYING PLAINTIFF’S MOTON FOR SUMMARY JUDGMENT; GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16

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