Schelin v. Colvin, No. 2:2014cv00079 - Document 18 (E.D. Wash. 2015)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, denying 14 Plaintiff's Motion for Summary Judgment; and granting 15 Defendant's Motion for Summary Judgment. Case is CLOSED. Signed by Senior Judge Fred Van Sickle. (LR, Case Administrator)
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Schelin v. Colvin Doc. 18 1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF WASHINGTON 3 4 5 ANTHONY WAYNE SCHELIN, No. CV-14-79-FVS Plaintiff, 6 v. 7 ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 8 9 10 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 11 Defendant. 12 13 THIS MATTER comes before the Court based upon cross motions for 14 summary judgment. 15 Dana C. Madsen. 16 Plaintiff Anthony W. Schelin is represented by L. Becia. Defendant Carolyn W. Colvin is represented by Franco 17 JURISDICTION 18 On July 11, 2012, Anthony W. Schelin applied for Supplemental 19 Security Income (“SSI”) pursuant to Title XVI of the Social Security 20 Act, 42 U.S.C. §§ 1381-1383f. 21 (“SSA”) denied both his initial application and his request for 22 reconsideration. 23 Law Judge (“ALJ”) held one on March 21, 2013. 24 represented himself. 25 unfavorable decision. 26 review the ALJ’s decision, but the Appeals Council declined to do so. The Social Security Administration Mr. Schelin asked for a hearing. An Administrative Mr. Schelin On April 15, 2013, the ALJ issued an Mr. Schelin asked the Appeals Council to Order - 1 Dockets.Justia.com 1 At that point, the ALJ’s decision became the final decision of the 2 Commissioner. 3 action. 4 summary judgment. 20 C.F.R. § 416.1481. 42 U.S.C. § 405(g). Mr. Schelin commenced this Both he and the Commissioner move for 5 BACKGROUND 6 Anthony W. Schelin was born on February 13, 1973. (Tr. 267.) (Tr. 39.1) 7 His father played no part in his life. 8 mother, who was an alcoholic. 9 emotionally, physically, and sexually; expelling him from their home (Tr. 48, 267.) Id. He lived with his She abused him 10 when he was about 13 years old. From then on, he was forced to 11 fend for himself. 12 sexual abuse of a young child. 13 more than one occasion, he attempted to commit suicide. 14 50.) 15 commit serious crimes, which resulted in repeated periods of 16 imprisonment. 17 to prison for possession of a stolen vehicle. (Tr. 40.) While in 18 prison, he again attempted to commit suicide. (Tr. 41.) As a 19 consequence, he served most of his sentence in the prison’s mental 20 health unit. 21 psychiatrists, who prescribed a variety of medications. He began committing serious crimes, including the (Tr. 49.) His life was painful. Little changed when he reached adulthood. (Tr. at 40, 49-51.) (Tr. 41, 267.) (Tr. 41, 49- He continued to Most recently, he was sentenced From time to time, he was evaluated by (Tr. 42.) 22 1 23 The abbreviation “Tr” frequently stands for the word “transcript,” as in the written record of a hearing. In the 24 Eastern District of Washington, the abbreviation “Tr” has a more 25 expansive meaning. 26 It refers to the entire administrative record, not just to the transcript of the hearing that was conducted by the ALJ. Order - 2 On 1 In Mr. Schelin’s opinion, the medications did little to combat his 2 depression and anxiety. 3 summer of 2011. 4 evaluated by mental health professionals on a number of occasions. 5 As explained above, Mr. Schelin applied for Title XVI SSI benefits 6 on July 11, 2012. 7 2006. 8 unfavorable decision on March 28, 2013. 9 10 Id. He was released from prison during the Between then and the summer of 2012, he was He alleges he has been disabled since July 1, An ALJ held a hearing on March 21, 2013, and the ALJ issued an ALJ’S DECISION A person is disabled “if he is unable to engage in any 11 substantial gainful activity by reason of any medically determinable 12 physical or mental impairment which can be expected to result in 13 death or which has lasted or can be expected to last for a continuous 14 period of not less than twelve months.” 15 The SSA has established a five-step process for evaluating disability 16 claims such as Mr. Schelin’s. 17 the specified process in arriving at an unfavorable decision. 42 U.S.C. § 1382c(a)(3)(A). 20 C.F.R. § 416.920. The ALJ followed 18 A. Step One 19 A person who is engaged in substantial gainful activity is not 20 eligible for SSI benefits. 21 step one, Mr. Schelin had to show he had not engaged in “substantial 22 gainful activity” since the date upon which he applied for SSI 23 benefits. 24 (a) [i]nvolves doing significant and productive physical or mental 25 duties; and (b) [i]s done (or intended) for pay or profit.” 26 C.F.R. § 416.910. Order - 3 Id. 20 C.F.R. § 416.920(a)(4)(i). Thus, at “Substantial gainful activity means work that . . . Mr. Schelin carried his burden. (Tr. 25.) 20 As a 1 result, the ALJ proceeded to Step Two. 2 B. Step Two 3 At step two, the ALJ assessed the “medical severity” of Mr. 4 Schelin’s impairments. Mr. Schelin had to show he has “a severe 5 medically determinable physical or mental impairment that meets the 6 duration requirement in § 416.909, or a combination of impairments 7 that is severe and meets the duration requirement[.]” 8 416.920(a)(4)(ii). 9 limits” the claimant’s “physical or mental ability to do basic work 20 C.F.R. § An impairment is “severe” if it “significantly 10 activities.” 20 C.F.R. § 416.920(c). 11 determinable impairment (or combination of impairments), the ALJ 12 would have rejected Mr. Schelin’s claim at step two. 13 out, the ALJ determined Mr. Schelin has three severe impairments, 14 viz., “personality disorder, depression and posttraumatic stress 15 disorder.” 16 impaired, the ALJ proceeded to step three. (Tr. 25.) Absent a severe medically As it turned Having determined Mr. Schelin is severely 17 C. Step Three 18 At step three, the ALJ considered whether Mr. Schelin’s 19 impairments are so severe he is conclusively presumed to be disabled. 20 See Reddick v. Chater, 157 F.3d 715, 721 (9th Cir.1998). 21 of the issue turns upon whether Mr. Schelin has any impairment, or 22 combination of impairments, that equals an impairment that is listed 23 in 20 C.F.R. Part 404, Subpart P, Appendix 1. 24 416.920(a)(iii), 416.925(a). 25 Admin., 359 F.3d 1190, 1194 (9th Cir.2004). 26 pertinent part: Order - 4 Resolution 20 C.F.R. §§ See Batson v. Comm'r of Soc. Sec. SSA regulations state in 1 2 3 4 5 The Listing of Impairments (the listings) is in appendix 1 of subpart P of part 404 of this chapter. For adults, it describes for each of the major body systems impairments that . . . [the SSA considers] to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience. 6 20 C.F.R. § 416.925(a). “When a claimant meets or equals a listing, 7 ‘he is presumed unable to work and is awarded benefits without a 8 determination whether he actually can perform his own prior work or 9 other work.’” Kennedy v. Colvin, 738 F.3d 1172, 1176 (9th Cir.2013) 10 (quoting Sullivan v. Zebley, 493 U.S. 521, 532, 110 S.Ct. 885, 107 11 L.Ed.2d 967 (1990)). The claimant bears the burden of proof at step 12 three. See, e.g., Molina v. Astrue, 674 F.3d 1104, 1110 (9th 13 Cir.2012). In this instance, the ALJ decided Mr. Schelin had not 14 demonstrated he has either an impairment, or a combination of 15 impairments, that equals an impairment that is listed in 20 C.F.R. 16 Part 404, Subpart P, Appendix 1. Consequently, the ALJ concluded he 17 had failed to establish a conclusive presumption of disability. 18 D. Step Four 19 At step four, the ALJ evaluated whether Mr. Schelin can perform 20 his “past relevant work” given his “residual functional capacity.” 21 20 C.F.R. § 416.920(a)(4)(iv). The SSA defines "past relevant work" 22 as work that “was done within the last 15 years, lasted long enough 23 for you to learn to do it, and was substantial gainful activity.” 20 24 C.F.R. § 416.965(a). Mr. Schelin’s residual functional capacity 25 (“RFC”) is the most he can do in a work setting despite his physical 26 and mental limitations. Order - 5 20 C.F.R. § 416.945(a)(1). In assessing Mr. 1 Schelin’s RFC, the ALJ had to consider “all of the relevant medical 2 and other evidence.” 3 Schelin’s “medically determinable impairments could reasonably be 4 expected to cause some of the alleged symptoms[.]” 5 that finding, the ALJ proceeded to “evaluate the intensity and 6 persistence of [Mr. Schelin’s] symptoms so . . . [he could] determine 7 how [Mr. Schelin’s] symptoms limit [his] capacity for work[.] 8 C.F.R. § 416.929(c)(1). 9 record. 20 C.F.R. § 416.945(a)(3). The ALJ found Mr. (Tr. 28.) Given 20 This necessitated a careful review of the Among other things, the ALJ considered both Mr. Schelin's 10 statements and the opinions of John Arnold, Ph.D., an examining 11 psychologist. 12 his restrictions are "not entirely credible," and he assigned only 13 "some weight" to Dr. Arnold's psychological assessments. 14 reviewing the record, the ALJ decided Mr. Schelin does not suffer 15 from any exertional limitations, but he does suffer from 16 nonexertional limitations: 17 18 19 20 21 22 23 24 25 26 The ALJ determined Mr. Schelin's statements concerning After Exertional limitations affect an individual's ability to meet the seven strength demands of the job: sitting, standing, walking, lifting, carrying, pushing and pulling. Nonexertional limitations or restrictions affect an individual's ability to meet the other demands of jobs, and include mental limitations, pain limitations, and all physical limitations that are not included in the seven strength demands. Social Security Regulation (“SSR”) 96–4p, 1996 WL 374187, at *2 (SSA July 2, 1996). More specifically, the ALJ found: “[T]he claimant has the residual functional capacity to perform a full range of work at all exertional levels but Order - 6 1 2 3 4 with the following nonexertional limitations: The claimant should deal with things and not people. The claimant should not have contact with the public and should have limited contact with coworkers. The claimant is limited to one[-] to two-step, simple tasks. 5 (Tr. 27.) 6 ALJ turned to his “past relevant work.” 7 found Mr. Schelin is unable to perform his past relevant work given 8 his RFC. 9 10 This is Mr. Schelin’s RFC. (Tr. 30.) Having determined the RFC, the 20 C.F.R. § 416.965(a). He Thus, the ALJ moved to step five. E. Step Five At step five, the burden shifts to the commissioner to provide 11 “evidence that demonstrates that other work exists in significant 12 numbers in the national economy that [Mr. Schelin] can do, given 13 [his] residual functional capacity and vocational factors.” 14 C.F.R. § 416.960(c)(2). 15 Commissioner may satisfy her burden: 16 vocational expert, or (2) by reference to the Medical–Vocational 17 Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.” 18 Barnhart, 468 F.3d 1111, 1114 (9th Cir.2006). 19 March of 2013, the ALJ considered the testimony of a vocational 20 expert whose name is Thomas Polsin. 21 could work as an “industrial cleaner” (Tr. 64) or a “housekeeping 22 cleaner” (Tr. 67). 23 testimony. 24 jobs because of his criminal history. 25 Mr. Polsin’s testimony rather than Mr. Schelin’s. 26 Polsin’s testimony, the ALJ found that, “considering the claimant’s Order - 7 20 As a general rule, there are two ways the “(1) by the testimony of a Lounsburry v. At the hearing during Mr. Polsin testified Mr. Schelin Mr. Schelin took issue with Mr. Polsin’s He argued he has little chance of securing those types of (Tr. 66-67.) The ALJ credited Based upon Mr. 1 age, education, work experience, and residual functional capacity, 2 the claimant is capable of making a successful adjustment to other 3 work that exists in significant numbers in the national economy.” 4 (Tr. 32.) Consequently, the ALJ concluded Mr. Schelin is not 5 disabled. Id. 6 CLAIMANT'S ALLEGATIONS 7 Mr. Schelin disagrees with the ALJ's analysis. As Mr. Schelin 8 points out, he was unrepresented at the administrative hearing. 9 argues the ALJ did not adequately develop the record. He Furthermore, 10 according to Mr. Schelin, the ALJ improperly discounted his 11 credibility, and he failed to give adequate weight to Dr. Arnold's 12 psychological assessments. 13 Schelin asks the Court to reverse the ALJ's unfavorable decision. In view of those alleged errors, Mr. 14 STANDARD OF REVIEW 15 A district court has “power to enter, upon the pleadings and 16 transcript of the record, a judgment affirming, modifying, or 17 reversing the decision of the Commissioner of Social Security, with 18 or without remanding the cause for a rehearing.” 19 However, review is limited. 20 Social Security as to any fact, if supported by substantial evidence, 21 shall be conclusive[.]” 22 decision “will be disturbed only if it is not supported by 23 substantial evidence or it is based on legal error.” 24 Heckler, 803 F.2d 528, 529 (9th Cir.1986). 25 means more than a mere scintilla, . . . but less than a 26 preponderance.” Order - 8 Id. 42 U.S.C. § 405(g). “The findings of the Commissioner of As a result, the Commissioner’s Green v. “Substantial evidence” Desrosiers v. Sec'y of Health & Human Servs., 846 1 F.2d 573, 576 (9th Cir.1988) (internal punctuation and citations 2 omitted). 3 ASSESSING MR. SCHELIN’S CREDIBILITY 4 A claimant’s statements about his impairments, restrictions, and 5 daily activities are evidence. 6 themselves, however, they are not enough to establish the existence 7 of disability. 8 9 10 11 12 20 C.F.R. § 416.912(b)(3). 20 C.F.R. § 416.929(a). By SSR 96-7p explains: No symptom or combination of symptoms can be the basis for a finding of disability, no matter how genuine the individual's complaints may appear to be, unless there are medical signs and laboratory findings demonstrating the existence of a medically determinable physical or mental impairment(s) that could reasonably be expected to produce the symptoms. 13 1996 WL 374186, at *1 (July 2, 1996). This means a claimant has a 14 two-part burden of production: “(1) she must produce objective 15 medical evidence of an impairment or impairments; and (2) she must 16 show that the impairment or combination of impairments could 17 reasonably be expected to (not that it did in fact) produce some 18 degree of symptom.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th 19 Cir.1996) (explaining Cotton v. Bowen, 799 F.2d 1403, 1407-08 (9th 20 Cir.1986)). 21 Statements Concerning Mental Impairments 22 At least with respect to mental impairments, Mr. Schelin 23 fulfilled his burden of production. The ALJ found, “[C]laimant’s 24 medically determinable impairments could reasonably be expected to 25 cause some of the alleged symptoms[.]” (Tr. 28.) That being the 26 case, the ALJ had to evaluate “the intensity, persistence, and Order - 9 1 functionally limiting effects of the symptoms” in order to determine 2 “the extent to which the symptoms affect the individual's ability to 3 do basic work activities.” 4 1996). 5 credibility of the individual's statements about the symptom(s) and 6 its functional effects.” 7 careful examination of the record as a whole. 8 whether the claimant’s “statements can be believed and accepted as 9 true.” SSR 96–7p, 1996 WL 374186, at *2 (July 2, “This requires the adjudicator to make a finding about the Id. A credibility determination involves a SSR 96-7p, 1996 WL 374186, at *4. The ALJ must decide However, the ALJ's 10 discretion is subject to an important qualification. 11 evidence of malingering on the claimant's part, “the ALJ may reject 12 the claimant's testimony regarding the severity of her symptoms only 13 if he makes specific findings stating clear and convincing reasons 14 for doing so.” 15 any evidence of malingering. 16 Smolen, 80 F.3d at 1283. If there is no Here, the ALJ did not cite Thus, the above-described rule applies. The ALJ acknowledged Mr. Schelin suffers from personality 17 disorders. While a personality disorder tends to be intractable (Tr. 18 47), some of the symptoms can be ameliorated through mental health 19 medications and counseling. 20 some relief, there were periods of time during which Mr. Schelin did 21 not take the medications that had been prescribed for him, nor did he 22 participate in counseling. 23 says a claimant’s “statements may be less credible if . . . the 24 medical reports or records show that the individual is not following 25 the treatment as prescribed and there are no good reasons for this 26 failure.” Id. Order - 10 Despite the fact treatment may provide The omission is significant. SSR 96-7p Consequently, the ALJ properly noted Mr. Schelin’s 1 failure to participate fully in treatment. 2 F.2d 597, 603 (9th Cir.1989) (in assessing credibility, an ALJ may 3 consider the claimant's unexplained, or inadequately explained, 4 "failure to follow a prescribed course of treatment"). 5 See Fair v. Bowen, 885 Despite Mr. Schelin's inconsistent participation in treatment, 6 at least one mental status exam showed his “appearance was 7 appropriate, he was oriented, his affect was appropriate, his 8 intellect was average, he was cooperative, his thought processes were 9 logical, his thought content was unremarkable and the claimant denied 10 suicide thoughts.” 11 that occurred on September 28, 2011). 12 the mental status exam were consistent with other evidence in the 13 record. 14 able “to perform a full range of daily activities.” 15 that, but also Mr. Schelin occasionally attended social events, and 16 he was able to get around town either by taking a bus or by pedaling 17 his bicycle. 18 (Tr. 28.) (summarizing the results of an exam The ALJ thought the results of According to the ALJ, the evidence indicated Mr. Schelin was Id. Not only The ALJ's findings with respect to Mr. Schelin's daily 19 activities are supported by, for example, comments Mr. Schelin made 20 to Dr. Arnold during an evaluation that occurred on June 21, 2012. 21 Dr. Arnold recorded Mr. Schelin as saying he was: 22 23 24 25 26 Staying in a trailer with grandmother and on a couch of a friend. Separated from his wife a week ago, homeless. He uses the bus and rides a bike to get to appointments. He is able to take care of personal hygiene. Wakes between 5-11 am. He will try and find work, watch TV, ride his bike (good distraction and makes him feel good). Has problems falling and staying asleep. Order - 11 1 Mr. Schelin backed away from some of those statements when he 2 testified at the administrative hearing. 3 ability to maintain basic hygiene and to leave his home each day in 4 order to obtain at least one meal (Tr. 43), he said he had lost 5 interest in bicycling and exercising. 6 responsibility to resolve any contradictions in the record. 7 Treichler v. Comm’r Soc. Sec. Admin., No. 12-35944, 2014 WL 7332774, 8 at * 6 (9th Cir. Dec. 24, 2014) (citing 42 U.S.C. § 405(g) and 9 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.1995)). While he acknowledged his Id. at 44. It was the ALJ's See Judicial 10 review of the ALJ’s decision is “highly deferential.” 11 Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th 12 Cir.2009). 13 routine when he met with Dr. Arnold on June 21, 2012. 14 candid description of his daily routine provides reliable evidence 15 concerning the activities he typically performs on a daily basis. 16 Thus, Mr. Schelin's comments to Dr. Arnold provide substantial 17 evidence in support of the ALJ's determination he is able to perform 18 a full range of daily activities. 19 See, e.g., The ALJ decided Mr. Schelin candidly described his daily A claimant's Not all of the skills Mr. Schelin employs during a typical day 20 are transferable to a work setting, but some are. 21 virtually every work setting, a person must be able to maintain 22 personal hygiene in order to hold a job. 23 Again, by way of example, a person must be able to get to and from 24 the work site in order to keep the job. 25 able to use public transportation or his bicycle to get around the 26 city in which he lives. Order - 12 For example, in Mr. Schelin can do that. The ALJ found Mr. Schelin is The fact Mr. Schelin is able to perform 1 tasks such as these tends to undermine his description of the 2 limitations he faces. 3 able to spend a substantial part of his day engaged in pursuits 4 involving the performance of physical functions that are transferable 5 to a work setting, a specific finding as to this fact may be 6 sufficient to discredit an allegation of disabling excess pain" 7 (emphasis omitted)). 8 9 Cf. Fair, 885 F.2d at 603 ("if a claimant is Finally, the ALJ considered Mr. Schelin's employment history and his efforts to find a job since his 2011 release from prison. As the 10 ALJ read the record, the evidence indicates Mr. Schelin has walked 11 off jobs in the past. 12 appears to be based upon a statement Mr. Schelin made to a mental 13 health professional at the Community Health Association of Spokane 14 (“CHAS”) on September 28, 2011. 15 called ‘stupid[,]’” . . . and “[h]e has walked off jobs when called 16 this.” 17 referring to. 18 ALJ's interpretation of the record is supported by the evidence. 19 ALJ was on much firmer ground when he turned to Mr. Schelin's more 20 recent efforts to find a job. 21 prevent him “from working/looking for work” during January of 2012. 22 This observation is supported by the record. 23 looking for work during the period indicated by the ALJ, although he 24 complained looking for work was very stressful. (Tr. 267.) (Tr. 28.) This interpretation of the record Mr. Schelin said he “[h]ates being It is unclear which job(s) Mr. Schelin was Consequently, it is difficult to determine whether the The ALJ noted his impairments did not Mr. Schelin reported (Tr. 285.) 25 To summarize, the ALJ provided a number of clear reasons for 26 discounting Mr. Schelin's statements concerning the impact of his Order - 13 The 1 mental impairments. 2 even though it would help him cope with the symptoms of depression. 3 The results of at least one mental status exam were encouraging. 4 is able to perform a full range of daily activities, and he is able 5 to look for work. 6 are convincing reasons for discounting Mr. Schelin's "statements 7 concerning the intensity, persistence and limiting effects of" 8 symptoms that are associated with his mental impairments. 9 10 Mr. Schelin has not fully engaged in treatment He Taken together, the reasons provided by the ALJ Statements Concerning Physical Pain On two occasions, Mr. Schelin complained of back pain to Susan 11 Dennie, who is an Advanced Registered Nurse Practitioner (“ARNP”). 12 One occasion was September 7, 2011; the other was January 25, 2012. 13 On neither occasion was Ms. Dennie able to substantiate Mr. Schelin’s 14 complaints with objective findings. 15 Mr. Schelin’s complaints of back pain. 16 Schelin. 17 including “vague aches and pain.” 18 the fact remains none of the health care providers or mental health 19 professionals who evaluated him suggested, much less found, a 20 connection between his depression and his complaints of pain. 21 the ALJ was justified in concluding his complaints were not supported 22 by “objective findings.” As a result, the ALJ discounted This was improper, says Mr. He submits depression can cause physical symptoms, Assuming Mr. Schelin is correct, Thus, 23 WEIGHT TO BE GIVEN DR. ARNOLD’S ASSESSMENTS 24 Dr. John Arnold is a psychologist who evaluated Mr. Schelin on 25 two occasions at the request of a state agency. 26 occurred during August of 2011; the second during June of 2012. Order - 14 The first evaluation On 1 both occasions, Dr. Arnold prepared a written report. Both reports 2 were fairly pessimistic. 3 Mr. Schelin argues Dr. Arnold's reports are entitled to greater 4 weight than that. The ALJ assigned "some weight" to each one. 5 The weight to which a medical or psychological evaluation is 6 entitled depends, in part, on the evaluator’s relationship to the 7 claimant. 8 three types of physicians: 9 (treating physicians); (2) those who examine but do not treat the “Cases in this circuit distinguish among the opinions of (1) those who treat the claimant 10 claimant (examining physicians); and (3) those who neither examine 11 nor treat the claimant (nonexamining physicians).” 12 81 F.3d 821, 830 (9th Cir.1995). 13 includes psychologists and other health professionals who do not have 14 M.D.'s.” 15 testimony of a treating physician is entitled to the greatest weight. 16 This rule is “‘based not only on the fact that he is employed to cure 17 but also on his greater opportunity to observe and know the patient 18 as an individual.’” 19 Cir.1983) (quoting Bowman v. Heckler, 706 F.2d 564, 568 (5th 20 Cir.1983)). 21 entitled to greater weight than that of an examining physician, the 22 opinion of an examining physician is entitled to greater weight than 23 that of a non-examining physician.” 24 995, 1012 (9th Cir.2014) (citing Ryan v. Comm'r of Soc. Sec., 528 25 F.3d 1194, 1198 (9th Cir.2008)). 26 Mr. Schelin, he examined him on two occasions. Id. at n.7. Order - 15 Lester v. Chater, “[T]he term ‘physician’ or ‘doctor’ Of the three classes of physicians, the Murray v. Heckler, 722 F.2d 499, 502 (9th “While the opinion of a treating physician is thus Garrison v. Colvin, 759 F.3d Although Dr. Arnold never treated In order to reject 1 the opinion of an examining psychologist, an ALJ must “give clear and 2 convincing reasons.” 3 F.3d 1294, 1298 (9th Cir.1999). Regennitter v. Comm'r. of Soc. Sec. Admin., 166 4 2011 Evaluation 5 Dr. Arnold concluded his 2011 report with an assessment of Mr. 6 7 8 9 10 11 12 13 14 15 16 Schelin's employability. The following remarks are representative: Anthony admits to having spent the majority of his adult life incarcerated. Being recently released from prison he is having difficult adjusting to meeting the demands of daily living. This combined with his lack of impulse control and angry outburst suggests his prognosis would be considered guarded. He will require intense [mental health] support and intervention. Given his history and current psychological symptoms it is highly unlikely he would currently succeed in the employment setting. . . . He experiences helplessness and hopelessness on a daily basis. He [is] prone to becoming angry with minimal stressors. Even minimal stress will create anger, anxiety and a need for social isolation. . . . 17 (Tr. 308.) The ALJ did not think Dr. Arnold's pessimism was entirely 18 justified. While he agreed “[o]bjective testing shows some 19 restrictions,” he rejected Dr. Arnold’s findings regarding the extent 20 of the restrictions. 21 Mr. Schelin’s subjective complaints, especially his “history of abuse 22 and extensive incarceration.” 23 relied upon an irrelevant consideration, viz., that Mr. Schelin was 24 having trouble adjusting to life in a non-institutional setting. 25 That may have been so, the ALJ seemed to concede, but the fact 26 remained Mr. Schelin had worked in the past. Order - 16 The ALJ thought he placed too much weight upon In addition, he thought Dr. Arnold had According to the ALJ, 1 this circumstance suggested he would be able to do so again. The ALJ 2 also mentioned the GAF score Dr. Arnold had calculated. 3 The ALJ’s response to Dr. Arnold’s GAF calculation was mixed. 4 one hand, the ALJ was concerned he had relied upon Mr. Schelin’s 5 impecuniousness, which, in the ALJ’s opinion, was irrelevant to the 6 calculation of the GAF. 7 score reflected “fairly moderate limitations.” 8 thinking, this suggested Mr. Schelin’s limitations are less severe 9 than Dr. Arnold indicated. It was 52.2 On the On the other hand, the ALJ noted the GAF To the ALJ’s way of The ALJ provided one other reason for 10 discounting the 2011 evaluation. 11 of Mr. Schelin’s RFC addressed any work-related limitations. 12 He was satisfied his determination As the preceding summary indicates, the ALJ's decision contains 13 several clear and convincing reasons for discounting Dr. Arnold's 14 2011 evaluation. 15 upon Mr. Schelin’s subjective complaints. 16 them was problematic because they were not entirely credible. 17 tended to overstate the intensity, persistence and limiting effects 18 of Mr. Schelin's symptoms. 19 1149 (9th Cir.2001) (where a physician's opinion is based primarily 20 upon the claimant's subjective complaints and testing that is within One of the reasons was Dr. Arnold’s heavy reliance Dr. Arnold's reliance upon They See Tonapetyan v. Halter, 242 F.3d 1144, 21 2 22 The acronym "GAF" stands for Global Assessment of Functioning. 23 “‘A GAF score is a rough estimate of an individual's psychological, social, and occupational functioning 24 used to reflect the individual's need for treatment.’” 25 Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1160 n.2 (9th 26 Brewes v. Cir.2012) (quoting Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir.1998)). Order - 17 1 the claimant's control, and where the ALJ properly discounts the 2 claimant's credibility, the ALJ may discount the physician's 3 opinion). 4 evaluation was Mr. Schelin's employment history. 5 may not have worked very much, the fact remained he had worked. 6 there was the GAF score. 7 the ALJ was concerned Dr. Arnold had relied upon an improper 8 consideration), a score of 52 reflects “fairly moderate limitations.” 9 Thus, it tended to undercut Dr. Arnold's pessimistic assessment.3 Another of the ALJ's reasons for discounting the 2011 Though Mr. Schelin Then Assuming it was calculated correctly (and 10 2012 Evaluation 11 Dr. Arnold also evaluated Mr. Schelin during June of 2012. Once 12 again, the ALJ did not fully credit Dr. Arnold’s conclusions. He 13 began by noting Dr. Arnold had provided “little analysis about 14 claimant’s work skills.” 15 skills, said the ALJ, his discussion suggested Mr. Schelin “could 16 perform some type of work activity.” 17 acknowledged Mr. Schelin “could perform simple tasks and concentrate 18 up to moderate periods[,]” and he could “ride the bus.” 19 took issue with Dr. Arnold’s determination Mr. Schelin’s “symptoms 20 would negatively affect [his] job performance[.]” To the extent Dr. Arnold had discussed work For example, Dr. Arnold The ALJ also The ALJ thought 21 22 3 23 “The fifth edition of the DSM, published in 2013, has abandoned the GAF scale because of ‘its conceptual lack of 24 clarity . . . and questionable psychometrics in routine 25 practice.’” 26 Williams v. Calvin, 757 F.3d 610, 613 (7th Cir.2014) (quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed.2013)). Order - 18 1 Dr. Arnold’s pessimistic conclusion was unjustified “given the 2 unremarkable mental status examination/ability to relate 3 appropriately during the assessment.” 4 As with the 2011 evaluation, the ALJ provided clear and 5 convincing reasons for discounting the 2012 evaluation. 6 most important reasons was this: 7 could work to some extent. 8 explaining Mr. Schelin’s “[r]esidual capacity”; that is to say, what 9 he is “capable of doing despite his . . . mental health impairments”: 10 Anthony will be able to remember locations and simple work like tasks. He will be able to understand, remember and carryout [sic] simple verbal and written instructions. He will be able to concentrate and attend for short to moderate periods. He will be able to ask simple questions. He will be able to adhere to basic standards of neatness and cleanliness. He will be able to use the bus occasionally. He will be aware of normal hazards and take appropriate precautions. He will be able to make plans on his own. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 (Tr. 369.) One of the Dr. Arnold conceded Mr. Schelin He said as much in his report when pessimistic. Despite the preceding assessment, Dr. Arnold remained The ALJ explained Dr. Arnold's pessimism was inconsistent with the results of the mental status exam he performed. As the ALJ noted, the 2012 mental status exam revealed, "[T]he claimant's appearance was unremarkable, he made full eye contact, his thought content was appropriate, he performed serial sevens and threes with one error, he spelled 'world' forwards/backwards, his insight was poor and his judgment was limited." (Tr. 29.) It was not unreasonable for the ALJ to note inconsistencies such as this. Order - 19 1 The existence of such inconsistencies supported the ALJ's decision to 2 discount Dr. Arnold's opinions to some extent. 3 ADEQUACY OF RECORD 4 Mr. Schelin represented himself at the administrative hearing. 5 He argues the ALJ failed to adequately develop the record. See 6 Tonapetyan, 242 F.3d at 1150 (“The ALJ in a social security case has 7 an independent duty to fully and fairly develop the record and to 8 assure that the claimant's interests are considered.” (internal 9 punctuation and citations omitted)). According to Mr. Schelin, the 10 ALJ should have requested records from a number of sources. Of 11 particular importance, says Mr. Schelin, are the records of his 12 treatment while he was incarcerated. 13 incarcerated in the prison's mental health unit. 14 opinion, that knowledge should have prompted the ALJ to seek the 15 prison's treatment records. 16 to develop the record further is triggered only when there is 17 ambiguous evidence or when the record is inadequate to allow for 18 proper evaluation of the evidence.” 19 453, 459–60 (9th Cir.2001). 20 between the summer of 2011 and 2012, including twice by Dr. Arnold. 21 By examining those evaluations (especially any changes that occurred 22 during the course of the year), the ALJ could form a reasonably 23 accurate assessment of Mr. Schelin's mental impairments. The ALJ knew he had been In Mr. Schelin's Mr. Schelin is mistaken. “An ALJ's duty Mayes v. Massanari, 276 F.3d Mr. Schelin was evaluated numerous times 24 NON-EXAMINING SOURCES 25 The ALJ gave "great weight" to the testimony of non-examining 26 psychologist Joseph Cools, Ph.D. Order - 20 (Tr. 30.) He gave "significant 1 weight" to the opinions of three other non-examining experts. 2 Mr. Schelin argues the ALJ erred by giving greater weight to the 3 opinions of non-examining experts than to the opinions of Dr. Arnold, 4 an examining psychologist. 5 personal medical evaluation it is almost impossible to assess the 6 residual functional capacity of any individual." 7 2 F.3d 953, 958 (9th Cir.1993). 8 9 Id. As Mr. Schelin observes, "Without a Penny v. Sullivan, All things being equal, the opinion of an examining psychologist is entitled to greater weight than the opinion of a non-examining 10 psychologist. 11 non-examining expert upon whom the ALJ relied heavily in Penny did 12 not consider the claimant's description of his pain. 13 addition, the ALJ improperly discounted the claimant's description of 14 the pain he was experiencing because the claimant did not present 15 medical evidence supporting his description of the severity of the 16 pain. 17 claimant's description of his pain was contradicted both by the 18 medical records and by the testimony of an examining physician. 19 at 957-58. 20 However, Penny is distinguishable. Id. at 957. To begin with, the Id. at 957. In Finally, the ALJ's decision to discount the Id. None of the circumstances that undermined the ALJ's decision in 21 Penny are present in this case. 22 rely upon the testimony of a non-examining expert as a basis for 23 discounting either Mr. Schelin's testimony or Dr. Arnold's opinions. 24 Nor was Dr. Cools ignorant of Mr. Schelin's statements. 25 contrary, he treated them very seriously. 26 comparing Dr. Cools' and Dr. Arnold's respective assessments of the Order - 21 Here, unlike Penny, the ALJ did not To the This can be seen by 1 extent to which Mr. Schelin's impairments limit his capacity to work. 2 While Dr. Arnold was somewhat more pessimistic than Dr. Cools, their 3 respective assessments are remarkably similar. 4 CONCLUSION 5 The record before the ALJ was well enough developed to permit 6 him to evaluate the credibility of Mr. Schelin and Dr. Arnold. The 7 ALJ did not err in his treatment of Mr. Schelin's testimony or Dr. 8 Arnold's opinions. 9 clear and convincing reasons for partially discounting their As required by the law of this circuit, he gave 10 evidence. 11 the non-examining experts. 12 who was not unsympathetic to Mr. Schelin. 13 treated Mr. Schelin's statements very seriously. 14 Dr. Cools' assessment of Mr. Schelin's limitations was similar to Dr. 15 Arnold's; not identical to be sure, but similar. 16 significance is the fact neither expert thinks Mr. Schelin is 17 completely unable to work. 18 Schelin can perform a job that involves simple tasks and that does 19 not require interaction with either coworkers or the public. 20 respect, Dr. Arnold's assessment is not entirely inconsistent with 21 the ALJ's formulation of Mr. Schelin's residual functional capacity, 22 viz.: 23 24 25 26 Nor did the ALJ err in his treatment of the opinions of One of the most important was Dr. Cools, To the contrary, Dr. Cools Indeed, in the end, Of particular To the contrary, both experts think Mr. In that The claimant should deal with things and not people. The claimant should not have contact with the public and should have limited contact with coworkers. The claimant is limited to one[-] to two-step, simple tasks. (Tr. 27.) This formulation is supported by substantial evidence. Order - 22 1 Thus, the ALJ did not err at step four in the sequential evaluation 2 process. 3 Schelin is capable of performing exist in significant numbers in the 4 national economy. 5 and the ALJ credited his testimony. 6 Since there are jobs Mr. Schelin can perform, and since they exist in 7 significant numbers in the national economy, the ALJ had a 8 substantial basis for concluding Mr. Schelin is not disabled within 9 the meaning of 42 U.S.C. § 1382c(a)(3)(A). The final issue, then, is whether jobs of the type Mr. A vocational expert responded in the affirmative, The ALJ did not err in doing so. 10 IT IS HEREBY ORDERED: 11 1. The "Plaintiff's Motion for Summary Judgment" (ECF No. 14) is 12 13 14 15 denied. 2. The "Defendant's Motion for Summary Judgment" (ECF No. 15) is granted. IT IS SO ORDERED. The District Court Executive is hereby 16 directed to file this order, enter judgment accordingly, furnish 17 copies of this order and the judgment to counsel, and close this 18 case. 19 DATED this 11th day of February, 2015. 20 s/Fred Van Sickle Fred Van Sickle United States District Judge 21 22 23 24 25 26 Order - 23
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