Lindstrom v. Commissioner Social Security Administration, No. 3:2014cv00602 - Document 34 (D. Or. 2015)
Court Description: OPINION AND ORDER: The Commissioner's decision is affirmed. Signed on 7/20/2015 by Magistrate Judge Thomas M. Coffin. (plb) Corrected typographical error on 7/21/2015 (plb).
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Lindstrom v. Commissioner Social Security Administration - Doc. 34 ' IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DIANA L. LINDSTROM, Case No. 3:14-cv-00602-TC Plaintiff, OPINION AND ORDER v. CAROLYN W. _COLVIN, Acting Commissioner of Social Security, Defendant. COFFIN, Magistrate Judge: Plaintiff Security Act brings (Act) this to decision of the denying application and her disability action obtain Commissioner of insurance for pursuant judicial Social supplemental benefits (DIB) to review Security the of the final (Commissioner) security income under Social the Act. (SSI) The Commissioner's decision is affirmed and this case is dismissed. 1 - OPINION AND ORDER Dockets.Justia.com BACKGROUND On February 14, 2008, plaintiff protectively filed Title II and Title XVI applications for DIB and SSI. applications, 2002. Id.; July 31, 19. plaintiff Pl.'s Br. 2008, A hearing claims were Judge (ALJ) alleged 1. disability Tr. 19. beginning held May 1, The claims were denied initially on and upon reconsideration on March 13, was In both on February 5, 2010 2009. Tr. and plaintiff's again denied by decision of an Administrative Law issued on March 5, 2010. Id. Thereafter, plaintiff requested review by the Appeals Council, which vacated the prior decision, remanded the claims, hearing be held. and directed that a supplemental Id. The Appeals Council also directed that the ALJ take further action to complete the administrative record and issue a new decision with an emphasis on the following: 1) exhibit and consider the February 10, 2010 statement from plaintiff's psychiatric-mental health nurse practitioner (PMHNP) Daniel Schroeder; 2) obtain additional evidence concerning the claimant's mental impairments in order to update the administrative record; 3) give further consideration to plaintiff's maximum residual functional capacity (RFC) during the entire period at issue, provide rationale with specific . references to evidence of record in support of assessed limitations, and evaluate the treating and examining source opinions and explain the weight given to such opinion evidence; and 4) if warranted by the expanded record, obtain supplemental evidence from a vocational expert (VE) to clarify the 2 - OPINION AND ORDER effect of assessed limitations on plaintiff's occupational base and when asking hypothetical questions to the VE, ensuring that the questions reflect the specific capacity I limitations established by the record as a whole. Tr. 155-56. In compliance with the above, plaintiff was offered a hearing on May 9, 2012, which she did not attend because she was receiving medical treatment. Tr. 19. Plaintiff did, however, attend a subsequent supplemental hearing on October 18, 2012 and on November 20, 2012 the ALJ again denied her claims. In denying Appeals plaintiff's Councils' Specifically, noted the ALJ: statements from additional evidence (Tr. 2 3, RFC, provided PMHNP 2 9-32) ; claims, 3) 1) considered the February (Tr. plaintiff's further addressed in the Schroeder concerning specific ALJ deficiencies Daniel gave the Tr. 34. 30); mental the record. 10, 2) 2010 obtained impairments consideration to plaintiff's references to evidence in support of assessed limitations, and explained the weight given to treating and examining evidence from source opinions a to VE (Tr. clarify 24-33); the effect and of 4) obtained plaintiff's limitations on her occupational base (Tr. 19, 26, 33) DISCUSSION Plaintiff provide clear argues and 3 - OPINION AND ORDER that the convincing ALJ erred reasons by for failing to: rejecting 1) her credibility; 2) adequately explain why he found that her bipolar disorder, migraines, step two; 3) and MRSA were non-severe impairments properly analyze the medical evidence; she met or equaled listing 12. 04; and 5) 4) at find that accurately reflect her Pl.' s Br. 5, 14, 25, 26, 29. impairments in the RFC. The court must affirm the Commissioner's decision if it is based on proper by substantial F.2d 498, than a 501 mere legal evidence in (9th Cir. might (citation internal v. quotations alleged errors, evidence supports conclusions." 198 6) . Martinez v. Variable insignificant if the Burch v. Barnhart, I. and 400 F.3d 676, 679 In from the of the is weigh 879 "more as 401 a a support (1971) reviewing "both the the [Commissioner's] 807 F.2d 771, interpretations Commissioner's 389, court must detracts Bowen, evidence to U.S. omitted), this Heckler, relevant 402 supported evidence adequate as Perales, Commissioner's that such are Hammock v. Substantial accept Richardson findings record. It means conclusion." and the and the 1989). scintilla. mind reasonable standards 772 (9th Cir. evidence interpretation is are rational. (9th Cir. 2005) Plaintiff's Credibility Plaintiff argues that the ALJ failed to provide clear· and convincing reasons for rejecting her credibility. 4 - OPINION AND ORDER Pl.'s Br. 29. The ALJ found plaintiff not First, the ALJ noted with her mental that heal th credible during the counselor Ms. for several course of Prowse, her LPC; reasons. treatment " [plaintiff] admitted to lying about her symptoms for secondary gain; stating that Tr. she 'manipulates health issues to get things.'" 29 (quoting Tr. 856). Second, in the ALJ noted that plaintiff had repeatedly engaged drug-seeking behavior. Specifically, the ALJ noted that plaintiff had been sentenced to "18 months of probation due to tampering Tr. 31 The ALJ also noted an episode on June 3385) . with 11, plaintiff problems a morphine requested prescription." narcotics and arm pain, but to address because (citing 2011, complaints she was unable to Tr. where of skin keep her eyes open and had slurred speech, her request was denied and she was instead offered Tylenol. Id. noted that plaintiff refused the on the floor (citing Tr. and writing profanities 2011, ALJ noted. another where plaintiff drug The ALJ Tylenol by throwing the pills before being promptly discharged. The 2411). on the registration paper Id. seeking requested morphine episode to on October alleviate pain her legs that was allegedly so severe she could not walk. 31 (citing Tr. being told that 1289-91). she 5 - OPINION AND ORDER would The ALJ noted, not be however, receiving any that 6, in Tr. "after narcotic pain medications, [plaintiff] got angry and jumped up and walked out of the examination room without problem" and before treatment was finished. days later, Similarly, Id. on October 16, the ALJ noted that ten 2011, plaintiff was brought into the emergency room in a wheelchair and claimed to be unable to walk due to right However, lower leg tenderness. Id. (citing Tr.· 2151-53). after being told she would not receive any narcotics, plaintiff again walked out treatment was completed. of the examination room before Id. The ALJ noted another drug seeking episode where plaintiff was hospitalized from November 9, 2011 through November 16, 2011 for complaints of depression with suicidal ideation and during the course of medication. plaintiff without her Tr. was stay, 31 (citing Tr. observed in any obvious pain, denied. Id. repeatedly the her requested 1581-1605). unit to request Consequently, be for narcotic However, pain because mobilizing freely pain medication was plaintiff, "extremely then frustrated," was "observed on security videotape to take a of feces from her bathroom and place it common room. " Id. Critically, under a table in the plaintiff's treatment provider assessed her behavior to be not "psychotic in nature, but rather volitional medication not out having 6 - OPINION AND ORDER of frustration been met." for Id. her demands The ALJ for pain noted that plaintiff was again "discharged retaliatory behaviors." Finally, treatment the Specifically, the episode on June 11, noted 2011, plaintiff her about ALJ her drug seeking and Id. ALJ noted that providers for drug that during repeatedly lied to and the alcohol use. aforementioned where plaintiff was denied narcotics because she had. slurred speech and was unable to keep her eyes open, "[plaintiff] denied drinking alcohol even though she was seen in the ER two days prior for alcohol intoxication." Tr. 31 (citing Tr. 2411). The ALJ noted other her drug Specifically, use. "reported to Dr. 16 to 38, instances where the ALJ plaintiff noted lied about that plaintiff Gibby-Smith that she used marijuana from ages however, a urine drug screen shows that [she] tested positive for marijuana as recently as September 2007," when she was 43. Tr. 29 (citing Tr. 685, 700). Moreover, the ALJ noted that plaintiff testified that she has been clean and sober since April 24, 2012, 2012, but upon discharge from the hospital on May 8, after a 13 day admission for complaints of depression and suicidal ideation, plaintiff's toxicology screen tested positive for cannabis. [plaintiff] 7 Tr. 32. Consequently, the ALJ found that "while testified she has been clean and sober since April OPINION AND ORDER 24, 2012, given her admission regarding lying and manipulation, it is difficult to accord her assertions much weight." When a could claimant has medically documented impairments that reasonably be expected symptoms complained of, evidence of to . produce malingering, specific, clear and 80 some degree "the ALJ can reject the the claimant's symptoms only by offering reasons for doing so." F.3d 1273, of and the record contains no affirmative testimony about the severity of Chater, Tr. 32. 1281 (9th Cir. 1996) Smolen v. (internal citation A general assertion that the claimant is not credible omitted) is insufficient; testimony is the ALJ must "state which not credible and what evidence suggests the complaints are not credible." v. Shalala, 12 F.3d 915, 918 (9th Cir. The reasons proffered must be "sufficiently specific to 1993) . permit Dodrill the reviewing court arbitrarily discredit the Shalala, F.3d to 750 50 748, conclude claimant's (9th Cir. that the testimony." 1995) ALJ did Orteza (internal not v. citation omitted) . The ALJ may consider objective medical evidence and the claimant's treatment history, as well as any unexplained failure to seek treatment Smolen, or follow 80 F. 3d at 1284. a prescribed course Moreover, of treatment. exaggerating complaints of pain in order to receive prescription pain medication provides a 8 - OPINION AND ORDER clear and convincing reason to conclude that plaintiff was credible. Edlund v. 2001) . The ALJ may evaluation, prior such 80 employ as inconsistent Smolen, Massanari, the 253 F.3d 1152, ordinary techniques claimant's statements F. 3d at 1284. 947, engage 959 in concerning the Here, the admitting that ALJ (9th Cir. credibility for lying alleged and symptoms. If the "ALJ's credibility finding is second-guessing." (9th Cir. 2002) of reputation supported by substantial evidence in the record, not 1157 not Thomas v. [the court] Barnhart, 278 may F. 3d (internal citation omitted). made specific she manipulates reference heal th to plaintiff issues to get things that she lies about her symptoms for secondary gain. and Moreover, the ALJ cited several specific examples of plaintiff engaging in such behavior. The plaintiff engaging treatment providers completing variable ALJ in treatment about nonetheless upheld. See Batson v. behavior, alcohol denied examples lying use, of such Soc. that Sec. of to her and not narcotics. evidence may exist, reasonable, Comm' r specific and being of this was While the ALJ' s it Admin., must 35 9 be F. 3d (9th Cir. 2004). sum, supported drug after analysis In cited drug-seeking interpretations 1190, 1198 also by the ALJ provided substantial 9 - OPINION AND ORDER clear evidence, and for convincing rejecting reasons, plaintiff's subjective symptom statements. Accordingly, this court need not discuss all of the reasons provided by the ALJ because at least one Soc. legally Sec. sufficient Admin, 533 reason exists. F.3d 1155, Carmickle 1162-63 v. (9th Cir. Comm' r 2008). of As such, the ALJ's credibility finding is affirmed. II. Consideration of Plaintiff's Impairments at Step Two Plaintiff argues that the ALJ erred at step two by failing to adequately explain his rejection of her diagnoses for bipolar disorder, migraine headaches, and MRSA. argues that although limitations due these she did not Pl.' s Br. initially impairments, "she Plaintiff 6. allege testified disabling at hearing that MRSA and headaches caused impairment, giving the ALJ notice that said Moreover, her conditions plaintiff reporting treated support for of to hospital argument ALJ impairments·: disorder, Tr. that obesity, ADHD, in remission, abuse." found that being diagnosed ALJ had plaintiff "has the arthritis of the spine, right foot in the impairments, the Reply Br. 3-4. record of with and presumably in notice that said Pl.'s Br. 7-14. fracture, marijuana abuse, 22. Pl.'s instances and aforementioned impairments were disabling. The disabling." sites multiple the the her were following severe depression, panic methamphetamine dependence prescription drug dependence and The ALJ also found that plaintiff had alleged 10 - OPINION AND ORDER and been treated the records, for other however, complaints those alleged periodically impairments, throughout "considered singly or together, have caused only transient and mild symptoms and limitations, are well controlled with treatment, have not been present or are not expected to persist for a period greater than 12 months, or are otherwise not adequately supported by the medical evidence in the record." Tr. 22, Moreover, 24. the ALJ noted that plaintiff testified "that her main obstacles to work are problems with focus, anxiety, and back pain." The step-two dispose of 153-54, 107 sequential claimant groundless S. Ct. a a de minimis Bowen v. claims. at At 22 97-98. the inquiry, has impairments. inquiry is Commissioner medically Yuckert, step severe Tr. 24. screening device Yuckert, two of 482 the determines impairment or U.S. to at five-step whether the combination of 482 U.S. at 140-41, 107 S.Ct. at 2290-91. "An impairment is not severe if it does not significantly limit [the claimant's] 20 C.F.R. activities jobs, physical ability to do basic work activities." 404 .1520 (c), §§ are "abilities including, for and 404 .1521 (a) (1991). Basic work aptitudes to most example, pushing, C.F.R. 140.1521(b); Social Security Ruling (SSR) 85-28. 11 - OPINION AND ORDER reaching, standing, lifting, § pulling, walking, necessary do sitting, carrying or handling." 20 At step combined two effect ability to of of the all inquiry, of the function, without sufficiently severe. required to consider such as pain or fatigue, C.F.R. impairments can establishes a be consider was F.3d at 1289-90. claimant's An "not impairment severe" abnormality that Yuckert v. Bowen, 841 F.2d 303, The ALJ is subjective or only has 306 symptoms, SSR 95-5p; 20 combination if the "no (9th of evidence more minimal effect on an individual's ability to work." 28; the regard to whether each alone 80 impairments in determining severity. found slight claimant's must her the 404.1529(d)(2). § ALJ on Smolen, also the than a See SSR 85Cir. 1988) (adopting SSR 85-28) Here, the obstacles to ALJ work noted are plaintiff's problems with testimony focus, that her main anxiety, and back pain and found that she suffered from severe impairments related to complaints, said depression, including panic disorder, arthritis and ADHD. of the spine, The ALJ also found that plaintiff suffered from additional severe impairments including obesity, abuse. been right foot fracture, methamphetamine dependence in marijuana abuse, and prescription drug dependence and Moreover, treated for the ALJ noted that plaintiff had alleged and other complaints throughout the record, but found that those complaints did not create severe impairments, 12 - OPINION AND ORDER in part, because they were not adequately supported by the medical evidence. Additionally, of being al though diagnosed migraine headaches, the record support are her example, with plaintiff and and MRSA, inaccurate argument plaintiff that claims cites treated multiple instances bipolar disorder, for many of plaintiff's citations to and, therefore, said impairments that her fail to are treating adequately severe. For psychologist Dan Carpenter, Ph.D., diagnosed her with bipolar disorder on August 17, 2004. Pl.'s Br. Dr. Carpenter's report reveals that he ruled out a diagnoses of However, inspection of 6 (citing Tr. 508) bipolar disorder and assessed plaintiff's appearance, mood, affect, content, speech, motor activity, impulse control, and attention/ judgment, attitude, thought process, insight, concentration to all be thought memory impairment, in the "normal" range. Tr . 5 0 7 - .5 0 8 • Similarly, plaintiff alleges that she bipolar disorder by Dr. Karin Nylund, M.D., and Celeste However, Doneen, MSW, on November the record reveals that Dr. 1, was diagnosed with on November 11, 2009 2009. Nylund and Ms. not diagnose plaintiff with bipolar disorder, out a diagnosis Moreover, Dr. of bipolar Nylund made 13 - OPINION AND ORDER note disorder. 6. Doneen did but rather ruled Tr. of plaintiff's Br. Pl.' s 927, 1954-55. substance abuse problem by noting hospitalization that [plaintiff] oxycodone in her room." Other diagnosed medical with "at point near the end of her was found to have a couple pills of Tr. 928. records bipolar affirmative diagnosis. one plaintiff disorder cites as fail to also proof of being demonstrate an For example, the only mention of bipolar disorder in the emergency room reports that plaintiff cites from August 29, present 2011, and November sections illness 8, the of 2011, are in the reports, which history of state that plaintiff "questionably [had] bipolar disorder" and that she has a history of "possible bipolar disorder." Consequently, these disorder currently, reports rather, not only fail Tr. to 1685; 2629-30. diagnose bipolar they question whether plaintiff ever had bipolar disorder in the past. Finally, Holloway, the PMHNP, report that plaintiff wrote on January 11, 2012, relies on that Beth similarly failed to diagnose plaintiff with bipolar disorder and instead, noted only that plaintiff reported "she was told that she was monopolar and that her ADHD mimics symptoms of bipolar disorder." Tr. 3504. Consequently, this report that plaintiff cites as support of her argument that she was diagnosed with bipolar disorder, actually reveals that she admitted to not actually being diagnosed with 14 - OPINION AND ORDER bipolar disorder, but rather with ADHD, which as stated above, the ALJ found to be a severe impairment. With regard to plaintiff's migraine headaches, plaintiff argues that the ALJ failed to "accurately determine the severity of Pl.' s Br. [her] migraine headaches." However, 7. plaintiff later conceded that "it was not clear whether headaches had only a minimal effect activities." on ability [her] several argument instances that MRSA cited self-diagnosed behavior, and drug For example, also seeking due to (emphasis in plaintiff was "declined that work was not offered Pl.'s drug her that seeking without "only hot/cold to argues Br. 11 the her Tr. "while that 1581. for (citing record room wanted packs of plaintiff's isolated in her hospital However, isolated 15 - OPINION AND ORDER reveal in an example she was MRSA." plaintiff of medical plaintiff behavior, original). support symptoms, engaged cited by the ALJ as active in in one instance cited by plaintiff, "encouraged to attend groups." reveals plaintiff refused psychiatrically hospitalized, room basic the medical record reveals disabling MRSA, ultimately explanation. by caused plaintiff which was perform Id. at 13. With regard to plaintiff's MRSA, that to and Tr. reveals was Moreover, oxycodone 1605) that instead the record for comfort," pain," "refused antibiosis," and her "focus continue[d] to center on reliance on pain medication." It wasn't until after plaintiff became has contaminate the several days off unit, her [and] band reveals contact [her] her that above, room due to "[plaintiff] precautions Tr. room." hospital, for 1610 and early doses the [the] night Tr. Rather, 1599, continued MRSA to and state isolated (emphasis supplied) plaintiff was the she record required [herself] Further, medication. about being in as stated eventually discharged dining room after becoming annoyed at before" to of bedtime [were] established." active MRSA. active the ALJ noted that in she thteaten[ed] after she "intentionally left feces in paper towels under table when However, even then, plaintiff was not (emphasis supplied). isolated to aids demand[ed] meds," that "contact precautions 1604 in the "upset with pain med taper," · "report [ ed] "t[ore] MRSA," 1592, 1604. Tr. tapered off of [the] [the] her RN pain Tr. 610. Consequently, because many of plaintiff's citations to the medical record that were meant to put the ALJ on notice of her impairments, were inaccurate, dependent on plaintiff's subjective symptom statements, which as discussed above, the ALJ properly rejected, by the ALJ, or displayed drug seeking behavior as noted plaintiff's 16 - OPINION AND ORDER argument, which is contingent upon a finding of error on this Barnhart, 427 F.3d Danielson v. Astrue, issue, is 1217-18 1211, 539 F.3d 1169, Bayliss without merit. (9th Cir. 1175-76 2005); (9th Cir. v. Stubbs- 2008). As such, the ALJ's step two findings are upheld. III. Analysis of the Medical Evidence Plaintiff argues that the ALJ failed her prescription drug abuse, as well as to properly evaluate the opinions of Daniel Schroeder, PMHNP, and Dr. Stephen Thomas, M.D. Pl.'s Br. 16-28. A. Prescription Drug Abuse Plaintiff [her] use or contributed' her 19 that misuse to remaining Pl.'s Br. argues [her] the of ALJ erred prescription "in determining that 'significantly drugs dysfunction and that if she stopped abuse, functional limitations (citing Tr. would not preclude work." Plaintiff also argues that "even 27). if the ALJ is correct that substance abuse contributed to the ALJ should use mental dysfunction inferences about other medical conclusion." The found ALJ functionality, expert provided Pl.'s Br. 20 performed the significantly contribute[s] result [ed] a in [RFC] 17 - OPINION AND ORDER an opinion where to no support in making doctor the or ALJ' s (quotations omitted). plaintiff's that especially caution [her] that sequential "substance to [her] precludes five use step and disorder overall all analysis dysfunction employment" and and that "if [she] stopped significant number could perform." because the "the substance of Tr. jobs 27, substance in there the national Consequently, 33. use disorder is a In that contributing [plaintiff] this finding, the ALJ noted claimed to be clean and sober since April 24, that ALJ noted through May positive 8, for chemical that after issues stating feel that The Contract Id. 4i U.S.C. § has not plaintiff 2012. admission Tr. 32. from April toxicology have the a primary extent 26 screen was . a much better chance 18 - OPINION AND ORDER for remains as well as of longer 3627). of 19 9 6 amended "an individual if disabled alcoholism or shall drug contributing factor material to the determination 423 (d) (2) (C). she and benzodiazepines, and provides that be a concern that with America Advancement Act considered to be Commissioner's 'to (citing Tr. the Social Security Act addiction would remain opiate, she will term stability.'" be hospital [plaintiff's] abstinent from alcohol, not factor cannabis" and "a treatment provider observed that [plaintiff], I "a 2012 dependency cannabis, [she] 2015 and reported she needed drug rehab for marijuana on April 25, The a Tr. 34. ff reaching be the ALJ found that material to the determination of disability, been disabled . would economy use that the individual is disabled." The ALJ must conduct a drug abuse and alcoholism analysis by determining which of the claimant's disabling limitations would remain if the claimant stopped using drugs or alcohol. must 20 C.F.R. 404.1535(b). § identify disability under conducting the the drug and alcohol substance abuse is material Massanari, 262 F.3d 949, 955 five to determine disability. (9th Cir. the ALJ step procedure before analysis to However, whether Bustamante 2001). v. If the ALJ finds that the claimant is disabled and there is medical evidence of her drug addiction or alcoholism, then the ALJ must determine if the claimant would still be found disabled if she stopped using alcohol or drugs. be disabling, is not U.S.C. a §§ Id. If the remaining limitations would still then the claimant's drug addiction or alcoholism contributing factor material to her disability. 42 423(d)(2)(c), 1382c(a)(3)(J). When evidence exists of a claimant's drug or alcohol abuse, the claimant bears the burden of proving that her substance abuse is not a material contributing factor to her disability. Parra v. Astrue, carry this 481 F.3d 742, burden, the 744-45, claimant must 748 (9th Cir. offer evidence 2007). To that the disabling effects of her impairments would have remained had she stopped abusing drugs or alcohol. Id. at 748-49. is inconclusive does not satisfy this burden. 19 - OPINION AND ORDER Evidence that Id. at 749. Here, the ALJ performed the sequential five and found plaintiff . disabled based on all including her substance use disorders. that plaintiff's determination significant substance of use disability number of jobs in of her However, disorder and is that the step analysis impairments, the ALJ found material there national to would economy the be that a she could perform if she stopped the substance use. The ALJ reached this conclusion after reviewing the medical evidence and specifically noting the opinion of Dr. Bryan Dixon, M.D., who primary better opined concern chance drugs. that for of dependency plaintiff and that longer Moreover, references chemical as throughout term his she stability noted above, opinion the of record contains evidence of remain would have a a much she abstained from ALJ if made plaintiff's alcohol abuse and drug seeking behavior. the issues multiple drug Consequently, plaintiff's plaintiff bore the burden of proving that because substance abuse, substance abuse was not a material contributing factor to her disability. This court finds Accordingly, significantly stopped the that the plaintiff ALJ' s finding contributed use, her failed to that her remaining to her and satisfy plaintiff's dysfunction limitations and this burden. substance that would not if she preclude work, is supported by substantial evidence and is affirmed. 20 - OPINION AND ORDER use B. Daniel Schroeder's Opinion The ALJ found that Mr. Schroeder's opinion was only entitled to "some weight" and was viewed with "great taution as clinical significant veracity inconsistencies mental in Mr. in daily concentration, Tr. Schroeder resulting living, persistence maintaining social in simple instructions. decision this The 30. opinion, such marked and pace, as yet noted assessed in in maintaining and moderate functioning, ALJ note restrictions marked difficulties plaintiff's ability to understand, The ALJ also in elsewhere concerns." impairments activities in noted findings difficulties limitations no in remember, or carry out short, Tr. 30. noted that "it appears that Mr. was unaware of [plaintiff's] pulysubstance abuse, Schroeder as he answered 'not applicable' to the question regarding whether [plaintiff's] substance abuse contributes any to limitations" "repeatedly explained that his opinions regarding limitations were solely based on based on his own observations." Moreover, the ALJ statement of February 20, was based ·mother, on and his that he 21 - OPINION AND ORDER Mr. 2010, was he [plaintiff's] reports and not Id. noted observations [plaintiff's] and Schroeder's clarification stating that his prior opinion and aware the of reports of plaintiff's plaintiff's possible prescription abuse. [plaintiff's] health Notwithstanding, report tha't she does have a habit of lying to her providers," symptoms," the ALJ found that "given and and is "given not "100 percent [plaintiff's] honest mother's about report to her [her] medical provider that she believed [plaintiff] had been misusing or abusing her psychiatric accord much weight to Mr. medications, it is challenging to Schroeder's assessment as his patient 'manipulates health issues to get things.'" Tr. 30. An ALJ must explain the weight given to medical opinions. SSR 96-Sp; Although 20 C. F.R. only 404 .1527 (e) (2) (ii), §§ "acceptable medical 416. 927 (e) (2) (ii). sources" can diagnose and establish that a medical impairment exists, evidence from "other sources" can be used to determine the severity of that impairment and how it limits. the claimant's function in a work activity. 20 C.F.R. 404.1513. § include nurse practitioners. An including sources, v. ALJ may nurse reject 20 C.F.R. the practitioners, for germane reasons. Comm'r of Soc. Sec., Non-acceptable medical sources § opinion who are 404.1513; SSR 06-03p. of not See 20 C.F.R. 613 F.3d 1217, an "other source," acceptable § 1223-24 medical 404.1513; Turner (9th Cir. 2011). Although the contrary opinion of a non-examining medical expert does not rejecting alone a constitute treating 22 - OPINION AND ORDER or a specific, legitimate examining physician's reason opinion, it for may constitute substantial evidence when it is consistent with other independent evidence in the record. F.3d 1144, 1149 (9th Cir. 2001); Tonapetyan v. Magallanes v. Halter. Bowen, 242 881 F.2d 747, 752 (9th Cir. 1989). Further, a large a "physician's opinion of disability extent symptoms and upon the limitations' complaints have been of Soc. Sec. Admin., Fair v. Bowen, reject a claimant's may be own accounts 885 F.2d 597, 605 of [her] where those Morgan v. Comm' r disregarded 'properly discounted.'" 169 F.3d 595, 602 'premised to (9th Cir. 1999) ( 9th Cir . 19 8 9 ) ) . (quoting An AL J may physician's physician's other opinion findings. if it with Tommasetti v. Astrue, the 533 conflicts F.3d 1035, 1041 (9th Cir. 2008). Here, the ALJ observed Mr. Schroeder's original statements that his opinion was based on plaintiff's as stated above, self-reports, he properly found to be not credible, which, and that he was unaware of plaintiff's alcohol and substance abuse. ALJ also noted the statements from Mr. that his ALJ directly previous report. provided opinion. contradicted germane Although interpretation of the 23 - OPINION AND ORDER the Schroeder's 2011 letter aforementioned Consequently, this reasons rejecting plq_intiff medical for statements court disagrees record, The finds Mr. with "[w]hen from that the Schroeder's the the ALJ's evidence before the is ALJ subject to more than one rational interpretation, we must defer to the ALJ's conclusion." 359 F.3d at 1198. Batson, As such, the ALJ did not err in granting Mr. Schroeder's opinion only some weight. C. Dr. Thomas' Opinion Plaintiff Thomas'] 22. argues opinions on Specifically, that [her] "the ALJ erred in rejecting physical functionality." plaintiff argues that [Dr. Pl.'s Br. substantial evidence does not support a finding that Dr. Thomas' assessment came from her own symptom reports and because "Dr. Thomas' opinions do not differ much from [her] [his] opinions orthopedic conflicted with [her] testimony the ALJ' s on report, the is illogical, convincing reason to discount his opinions." basis rejection of said opinions and not a clear and Pl.'s Br. 24. The ALJ accorded the opinion of consultative examiner, Dr. Thomas, M.D., who opined that plaintiff was "very limited," only "some weight" because "much of the information Dr. in making his assessment came from [plaintiff's] Thomas used own reports of symptoms and limitations," which he found not credible. The ALJ also noted that the limitations endorsed by Dr. "were even more severe than the limitations alleged at the weight" the to hearings." Id. contradicting 24 - OPINION AND ORDER Finally, opinions of [plaintiff] Tr. 28. Thomas herself the ALJ gave "great Ors. Rullman, M. D., Kehrli, M.D., had RFC an and Berner, for M.D., sedentary "consistent with a work, security. are three cases: The treating ALJ convincing reasons reject F.3d 1035, 1043 medical treating, the their opinions evidence," as opinions were well as 81 F.3d 821, by by in 830 non- (9th Cir. opinion of clear providing substantial social and examining, uncontradicted physician supported See Lester, record. from examining or of Lester v. Chater, may opined that plaintiff Tr. 28, 29. types those examining doctors. 1995) . because preponderance of the "with the record as a whole." There who all evidence 81 F.3d at 830-31; Andrews v. a and in the Shalala, 53 "The ALJ can meet this burden (9th Cir. 1995). by setting out a detailed and thorough summary of the facts and clinical conflicting thereof, and making (citation omitted). is contradicted by stating evidence, findings." interpretation his Magallanes, 881 F.2d at 751 If a treating or examining doctor's opinion another doctor's opinion, an ALJ may only reject it by providing specific and legitimate reasons that are Barnhart, supported by substantial evidence. 427 F.3d at 1216 (citing Lester, 81 F.3d at 830-31). Here, largely on the ALJ found that Dr. plaintiff's complaints, properly found not credible. 25 - OPINION AND ORDER Thomas' Morgan, which opinion was premised as stated 169 F.3d at 602. above, he The ALJ also listed inconsistencies between Dr. Thomas' Finally, record of plaintiff's testimony. the contradicting opinions of Ors. opinion and the the ALJ found Kehrli, Berner, that and Rullman were more persuasive because they were more consistent with the evidence and provided specific convincing the for record and as a legitimate discounting Dr. Consequently, whole. reasons Thomas' that ALJ C'.,lear were the and Accordingly, opinion. the ALJ did not err in finding Dr. Thomas only partly credible. IV. Listing 12.04 Analysis Plaintiff argues that the ALJ erred by failing to indicate Pl.' s Br. 25-26. whether parts A or C of listing 12.4 were met. Moreover, plaintiff argues ALJ improperly weighed the ALJ also listing, [Mr.] of court finds the then to meet Schroeder indicated 'marked limitations' [ADLs] , daily living or pace." she had argues that decompensation, each of hospitalized in 'halfway or that Schroeder's opinion evidence, persistence, concentration, plaintiff [Mr.] "if this improperly determined plaintiff failed since activities that a extended at 25. repeated duration, house' four in maintaining and Id. a Finally, of episodes when times she during "was a 12 month period for 7, 12, 2, and 78 day periods." The including ALJ the found that substance 26 - OPINION AND ORDER use plaintiff's disorders, "mental do not impairments, meet listings 12.02, 12.04, held that 12.06, or 12.09." the paragraph B and Tr. Specifically, 23. C criteria are not the ALJ satisfied because "[plaintiff's] mental impairments do not cause at least 'marked' two decompensation, ALJ found functioning limitations or 'repeated' one each of extended duration." that plaintiff outside of a is there is nothing to suggest that marginal adjustments." the capable of and supportive [she] Further, Id. "independent highly episode arrangement, and is incapable of handling Id. In determining that plaintiff did not meet listing 12. 04, the ALJ referenced testimony from Sally Clayton, Ph.D., May 2, more 2012 hearing, than moderate mild who testified that the record supported no impairments impairment from the in ADLs in concentration, and social functioning, persistence or pace, no episodes of decompensation of an extended duration. Id. a and The ALJ noted that mental health records received between the May 9, 2012, and and the October 18, of exacerbation [plaintiff] has a 2012, symptoms mild of concentration, sufficient impairment impairment in social functioning, area hearings showed "some increase in conclude to [ADLs] , moderate a moderate impairment in the persistence or pace, and episodes of decompensation of extended duration." 27 - OPINION AND ORDER a that one Id. to two In order evaluation, to qualify as must claimant a disabled meet impairments in Appendix 1 to Part C.F.R. § for mental a 404.1520(d) disorder, the presence of a mental paragraph B or with a 404 claimant listings, C, three exceed of the the listed of the regulations. and describe disorder 20 C.F.R. must satisfy which medically disorder, which the ability to work. or step 20 In order to meet a listing in Appendix 1 paragraph A of associated at substantiate criteria of the 404, functional are that Pt. the criteria incompatible Subpt. P, App. in the either limitations 1 with the 12.00A; § Holohan v. Massanari, 246 F.3d 1195, 1203 (9th Cir. 2001). To satisfy the paragraph B criteria, plaintiff's mental impairments must result in at least two of the following: marked restriction of activities in maintaining maintaining episodes of functioning; concentration, of C.F.R. Pt. social of daily living; each 404, Subpt. P, App. 1, decompensation, each of episodes within one year, an of satisfy the 28 - OPINION AND ORDER difficulties pace; extended extended or in repeated duration. 20 Repeated episodes duration, means three each lasting for at least two weeks. part impairments must result in: or 12.04(8). § 20 C.F.R. Pt. 404, Subpt. P, App. 1 To marked persistence, decompensation, marked difficulties c § 12.0l(A) (4). criteria, plaintiff's mental (1) repeated episodes of decompensation, each of extended duration; or ( 2) a residual disease that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decompensate; or (3) current history of one or more years' inability to function outside a highly supportive living arrangement. 20 C.F.R. Pt. 404, Subpt. P, App. 1, Here, § 12.04(C). the ALJ found that plaintiff did not meet criteria B or C of listing 12.04 because she did not have repeated episodes of decompensation, notes, she during a was each of an extended duration. hospitalized or twelve month in period seventy-eight day periods. a for As plaintiff halfway house seven, Accordingly, four times twelve, two, and this court finds that the ALJ did not err by concluding that plaintiff did not have at least three episodes of decomposition, each lasting for at least two weeks during a twelve month period as listing 12.04 requires. Moreover, Mr. as stated above, Schroeder's finds that the opinion ALJ did the ALJ did not err in weighing evidence. not err Consequently, by relying on Dr. this court Clayton's testimony that plaintiff had only mild and moderate impairments, rather than Mr. limitations in Schroeder's AD Ls persistence, or pace. 29 - OPINION AND ORDER and opinion that in plaintiff had marked maintaining concentration, Finally, is no evidence in the record suggests that plaintiff incapable of arrangement, nor Consequently, functioning incapable outside of handling because plaintiff ALJ' s finding that a highly marginal failed to meet paragraph B or C of listing 12. 04, the of supportive adjustments. the criteria of this court will not disturb plaintiff's mental impairments do not meet listing 12.04. V. Reflection of Plaintiff's Impairments in the RFC Plaintiff argues accurately reflect that [her] substantial evidence." argues that bipolar consider "the impairments, Pl.'s the ALJ erred by: disorder, the MRSA, combined ALJ's Br. 1) and are of findings not rejecting the headaches; her to plaintiff effects of her failing 2) impairments; impairment related restrictions from the RFC; fail supported by Specifically, 26. and migraine effects RFC 3) and 4) to omitting failing to limit interaction with supervisors to occasional in the RFC and hypothetical given to the VE. The ALJ impairments, found that including the Id. at 27-29. "based on substance use all of disorders, [plaintiff's] [plaintiff] has the [RFC] to perform sedentary work," but she also: needs a stand a stretch break approximately once an hour is limited to no more than occasional climbing of ramps, stairs, ladders, ropes, and scaffolding, and no more than occasional balancing, stooping, kneeling, crouching, and crawling 30 - OPINION AND ORDER [and] is limited to no more than simple, repetitive one to three step tasks requiring no public contact, no more than occasional interaction with coworkers, and no more than occasional changes in the work setting. Tr. 27. Moreover, the ALJ found that plaintiff's substance use "significantly disorder contribute[s] to [her] overall dysfunction," it renders her "unable to perform these tasks on a consistent basis, and [she] would be expected to miss at least a week of work every two months." however, that if alleged symptoms 25, stopped plaintiff Tr. the "would not be nearly as remaining functional and the this extent accepted as if capable finding, to substance use, pronounced and which Id. plaintiff the ALJ "considered all the[] symptoms can symptoms reasonably the substantial packing and sorting worker. limitations. the RFC, be The ALJ also relied on testimony of a VE "stopped of performing RFC [her] Tr. 27. substance gainful use, she would be work that exists in the national economy," such as that of an assembly worker, The her consistent with the objective medical evidence and other evidence." that The ALJ found, limitations would not preclude basic work activity performed on a competitive basis." In making 27. is the Id. at 33. maximum See 2 0 C . F . R . or a §§ a claimant can do despite her 4 0 4 . 15 4 5 , 4 1 6 . 9 4 5 . In determining the ALJ must consider limitations imposed by all of a 31 - OPINION AND ORDER claimant's evaluate including impairments, "all the of the medical impairments into Stubbs-Da.nielson, those relevant claimant's 1996 WL 374184. in the even that medical testimony. are and SSR not severe, other 96-8p, and evidence," available at The ALJ is responsible for resolving conflicts testimony concrete and translating functional 539 F. 3d at 117 4. the limitations claimant's in the RFC. Only limitations supported by substantial evidence must be incorporated. into the RFC and, by extension, the dispositive hypothetical question posed to the VE. Osenbrock v. Apfel, 240 F.3d 1157, 1163-65 (9th Cir. 2001). Here, he the ALJ considered all of plaintiff's symptoms that found were consistent with record and translated her impairments into concrete functional limitations in the RFC. discussed MRSA, above, the migraines, impairments evidence. ALJ and did not bipolar because they Moreover, as were err finding plaintiff's to be non-severe supported by substantial disorder not stated in As above, the ALJ properly found that plaintiff's substance use significantly contributed to her dysfunction and that if she stopped limitations would not preclude work. the use, her Consequently, remaining because the RFC and, by extension, dispositive hypothetical question the ALJ posed to the VE included all the limitations that the ALJ found credible and supported by substantial evidence, this court finds 32 - OPINION AND ORDER that ALJ did not plaintiff work would that err by relying on testimony of the be exists capable in the of performing national economy substantial if she VE that gainful stopped the substance use. Accordingly, a finding issues, of plaintiff's argument, harmful error is without merit. in which is contingent upon regard Barnhart, to the aforementioned 427 F.3d at 1217-18 ("The hypothetical that the ALJ posed to the VE contained all of the ·limitations substantial that the evidence ALJ in found the credible record. The and ALJ's supported by reliance on testimony the VE gave in response to the hypothetical therefore was proper."). As such, the ALJ's RFC is upheld. CONCLUSION For the foregoing reasons, the Commissioner's decision is AFFIRMED. IT IS SO ORDERED. DATED -r day of July 2015. United States 33 - OPINION AND ORDER Judge
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