Palmas v. Commissioner of Social Security, No. 1:2017cv03206 - Document 17 (E.D. Wash. 2019)

Court Description: ORDER GRANTING 15 DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; denying 11 Plaintiff's Motion for Summary Judgment. Signed by Senior Judge Robert H. Whaley. (AN, Courtroom Deputy)

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Palmas v. Commissioner of Social Security Doc. 17 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 1 Mar 29, 2019 2 SEAN F. MCAVOY, CLERK 3 4 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 6 7 RICARDO P., 8 Plaintiff, No. 1:17-CV-03206-RHW 9 v. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 10 11 12 13 COMMISSIONER OF SOCIAL SECURITY, Defendant. Before the Court are the parties’ cross-motions for summary judgment. ECF 14 Nos. 11 & 15. Plaintiff brings this action seeking judicial review pursuant to 42 15 U.S.C. § 405(g) of the Commissioner’s final decision, which denied his application 16 for Disability Insurance Benefits under Title II of the Social Security Act. 42 17 U.S.C §§ 401-434. After reviewing the administrative record and briefs filed by the 18 parties, the Court is now fully informed. For the reasons set forth below, the Court 19 GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiff’s 20 Motion for Summary Judgment. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 1 Dockets.Justia.com 1 2 I. Jurisdiction Plaintiff filed his application for Disability Insurance Benefits on July 30, 3 2014. AR 100. His alleged onset date of disability is November 5, 2012.1 AR 102, 4 243. Plaintiff’s application was initially denied on December 18, 2014, AR 100- 5 113, and on reconsideration on April 7, 2015, AR 114-129. 6 A hearing with Administrative Law Judge (“ALJ”) Keith J. Allred occurred 7 on November 1, 2016. AR 45. On February 22, 2017, the ALJ issued a decision 8 finding Plaintiff ineligible for disability benefits. AR 15-37. On October 18, 2017, 9 the Appeals Council denied Plaintiff’s request for review, thus making the ALJ’s 10 11 ruling the final decision of the Commissioner. AR 1-8. On December 11, 2017, Plaintiff timely filed the present action challenging 12 the denial of benefits. ECF No. 3. Accordingly, Plaintiff’s claims are properly 13 before this Court pursuant to 42 U.S.C. § 405(g). 14 15 II. Five-Step Sequential Evaluation Process The Social Security Act defines disability as the “inability to engage in any 16 substantial gainful activity by reason of any medically determinable physical or 17 mental impairment which can be expected to result in death or which has lasted or 18 can be expected to last for a continuous period of not less than twelve months.” 42 19 1 20 Because Plaintiff previously filed an application for Disability Insurance Benefits, which was denied and became administratively final on July 3, 2013, the relevant period for purposes of this case begins July 4, 2013. See AR 87-99. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 2 1 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A claimant shall be determined to be 2 under a disability only if the claimant’s impairments are so severe that the claimant 3 is not only unable to do his previous work, but cannot, considering claimant’s age, 4 education, and work experience, engage in any other substantial gainful work that 5 exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B). 6 The Commissioner has established a five-step sequential evaluation process 7 for determining whether a claimant is disabled within the meaning of the Social 8 Security Act. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lounsburry v. Barnhart, 9 468 F.3d 1111, 1114 (9th Cir. 2006). 10 Step one inquires whether the claimant is presently engaged in “substantial 11 gainful activity.” 20 C.F.R. §§ 404.1520(b), 416.920(b). Substantial gainful 12 activity is defined as significant physical or mental activities done or usually done 13 for profit. 20 C.F.R. §§ 404.1572, 416.972. If the claimant is engaged in substantial 14 activity, he or she is not entitled to disability benefits. 20 C.F.R. §§ 404.1571, 15 416.920(b). If not, the ALJ proceeds to step two. 16 Step two asks whether the claimant has a severe impairment, or combination 17 of impairments, that significantly limits the claimant’s physical or mental ability to 18 do basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). A severe 19 impairment is one that has lasted or is expected to last for at least twelve months, 20 and must be proven by objective medical evidence. 20 C.F.R. §§ 404.1508-09, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 3 1 416.908-09. If the claimant does not have a severe impairment, or combination of 2 impairments, the disability claim is denied and no further evaluative steps are 3 required. Otherwise, the evaluation proceeds to the third step. 4 Step three involves a determination of whether one of the claimant’s severe 5 impairments “meets or equals” one of the listed impairments acknowledged by the 6 Commissioner to be sufficiently severe as to preclude substantial gainful activity. 7 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526 & 416.920(d), 416.925, 416.926; 8 20 C.F.R. § 404 Subpt. P. App. 1 (“the Listings”). If the impairment meets or 9 equals one of the listed impairments, the claimant is per se disabled and qualifies 10 for benefits. Id. If the claimant is not per se disabled, the evaluation proceeds to the 11 fourth step. 12 Step four examines whether the claimant’s residual functional capacity 13 enables the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(e)-(f), 14 416.920(e)-(f). If the claimant can still perform past relevant work, the claimant is 15 not entitled to disability benefits and the inquiry ends. Id. 16 Step five shifts the burden to the Commissioner to prove that the claimant is 17 able to perform other work in the national economy, taking into account the 18 claimant’s age, education, and work experience. See 20 C.F.R. §§ 404.1512(f), 19 404.1520(g), 404.1560(c) & 416.912(f), 416.920(g), 416.960(c). To meet this 20 burden, the Commissioner must establish that (1) the claimant is capable of ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 4 1 performing other work; and (2) such work exists in “significant numbers in the 2 national economy.” 20 C.F.R. §§ 404.1560(c)(2); 416.960(c)(2); Beltran v. Astrue, 3 676 F.3d 1203, 1206 (9th Cir. 2012). 4 5 III. Standard of Review A district court’s review of a final decision of the Commissioner is governed 6 by 42 U.S.C. § 405(g). The scope of review under § 405(g) is limited, and the 7 Commissioner’s decision will be disturbed “only if it is not supported by 8 substantial evidence or is based on legal error.” Hill v. Astrue, 698 F.3d 1144, 9 1158-59 (9th Cir. 2012) (citing § 405(g)). Substantial evidence means “more than a 10 mere scintilla but less than a preponderance; it is such relevant evidence as a 11 reasonable mind might accept as adequate to support a conclusion.” Id. at 1159. In 12 determining whether the Commissioner’s findings are supported by substantial 13 evidence, “a reviewing court must consider the entire record as a whole and may 14 not affirm simply by isolating a specific quantum of supporting evidence.” Id. 15 In reviewing a denial of benefits, a district court may not substitute its 16 judgment for that of the ALJ. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 17 1992). When the ALJ presents a reasonable interpretation that is supported by the 18 evidence, it is not the role of the courts to second-guess it. Rollins v. Massanari, 19 261 F.3d 853, 857 (9th Cir. 2001). Even if the evidence in the record is susceptible 20 to more than one rational interpretation, if inferences reasonably drawn from the ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 5 1 record support the ALJ’s decision, then the court must uphold that decision. 2 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012); see also Thomas v. 3 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 4 5 IV. Statement of Facts The facts of the case are set forth in detail in the transcript of proceedings 6 and only briefly summarized here. Plaintiff was 47 years old on the alleged date of 7 onset. AR 35, 101. He attended school in Mexico through the 11th grade and can 8 communicate in English. AR 28, 35, 51. Plaintiff has past work as a construction 9 worker, primarily welding and hanging drywall. AR 28, 52. 10 V. 11 The ALJ’s Findings The ALJ determined that Plaintiff was not under a disability within the 12 meaning of the Act at any time from July 4, 2013 (the beginning of the relevant 13 period, see supra footnote 1) through February 22, 2017 (the date the ALJ issued 14 his decision). AR 36-37. 15 At step one, the ALJ found that Plaintiff had not engaged in substantial 16 gainful activity since the beginning of the relevant period (citing 20 C.F.R. § 17 404.1571 et seq.). AR 24. 18 At step two, the ALJ found Plaintiff had the following severe impairments: 19 spine disorder, affective disorder, and alcohol abuse disorder (citing 20 C.F.R. § 20 404.1520(c)). AR 24. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 6 1 At step three, the ALJ found that Plaintiff did not have an impairment or 2 combination of impairments that met or medically equaled the severity of one of 3 the listed impairments in 20 C.F.R. § 404, Subpt. P, Appendix 1. AR 25. 4 At step four, the ALJ found that Plaintiff had the residual functional 5 capacity to perform light work as defined in 20 C.F.R. § 404.1567(b), including the 6 abilities to lift and/or carry 20 pounds occasionally and 10 pounds frequently; sit 7 down for six hours throughout an eight-hour workday; and stand and/or walk for 8 six hours throughout an eight-hour workday with normal breaks. AR 27. The ALJ 9 further found that Plaintiff could occasionally climb ramps and stairs, but not 10 ladders, ropes, or scaffolds; that he could occasionally balance, stoop, kneel, and 11 crouch, but not crawl; and that he should avoid heavy vibration and hazards in the 12 workplace. AR 27. With respect to Plaintiff’s mental abilities, the ALJ found that 13 Plaintiff was able to perform the basic mental demands of competitive, semi- 14 skilled work, including the ability to understand, remember, and carry out detailed 15 but not complex instructions. AR 27. The ALJ further found that Plaintiff could 16 respond appropriately to supervision, co-workers, and usual work situations and 17 deal with changes in a routine work setting. AR 27. 18 19 The ALJ found that Plaintiff was unable to perform any past relevant work, given his physical and psychological limitations. AR 35. 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 7 1 At step five, the ALJ found that in light of Plaintiff’s age, education, work 2 experience, and residual functional capacity, there were jobs that existed in 3 significant numbers in the national economy that he could perform. AR 36. These 4 included a photocopy machine operator, a car wash attendant, and a cafeteria 5 attendant. AR 36. 6 VI. 7 Issues for Review Plaintiff argues that the Commissioner’s decision is not free of legal error 8 and not supported by substantial evidence. ECF No. 11 at 1-2. Specifically, he 9 argues the ALJ: (1) improperly discredited his subjective pain complaint 10 testimony; (2) improperly evaluated the medical opinion evidence; (3) improperly 11 assessed his residual functional capacity by failing to include all his restrictions; 12 and (4) failed to apply Medical-Vocational Guidelines (Grid) Rule 201.10. Id. at 4. 13 VII. Discussion 14 15 A. The ALJ did not Improperly Reject Plaintiff’s Subjective Complaints. Plaintiff argues the ALJ erred by discounting the credibility of his testimony 16 regarding his subjective symptoms. ECF No. 11 at 7-9. An ALJ engages in a two- 17 step analysis to determine whether a claimant’s testimony regarding subjective 18 symptoms is credible. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008). 19 First, the claimant must produce objective medical evidence of an underlying 20 impairment or impairments that could reasonably be expected to produce some ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 8 1 degree of the symptoms alleged. Id. Second, if the claimant meets this threshold, 2 and there is no affirmative evidence suggesting malingering, the ALJ can reject the 3 claimant’s testimony about the severity of his symptoms only by offering “specific, 4 clear, and convincing reasons” for doing so. Id. 5 Here, the ALJ found that the medically determinable impairments could 6 reasonably be expected to produce some degree of the symptoms Plaintiff alleged. 7 AR 28. However, the ALJ determined that Plaintiff’s statements of intensity, 8 persistence, and limiting effects of his symptoms were not entirely consistent with 9 the medical evidence and other evidence in the record. AR 28. 10 In weighing a claimant’s credibility, the ALJ may consider many factors, 11 including, “(1) ordinary techniques of credibility evaluation, such as the claimant’s 12 reputation for lying, prior inconsistent statements concerning the symptoms, and 13 other testimony by the claimant that appears less than candid; (2) unexplained or 14 inadequately explained failure to seek treatment or to follow a prescribed course of 15 treatment; and (3) the claimant’s daily activities.” Smolen v. Chater, 80 F.3d 1273, 16 1284 (9th Cir. 1996). 17 In this case, the ALJ found evidence of malingering, which is supported by 18 the record. In his June 2014 Independent Medical Examination (IME), Dr. S. 19 Daniel Seltzer examined Plaintiff’s lumbar spine. AR 764. Dr. Seltzer noted that 20 there was “almost no movement at all of the lumbar spine . . . [h]e just self-limits.” ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 9 1 AR 764. Dr. Seltzer also attempted to examine Plaintiff’s hips but noted this was 2 “very difficult to assess again because there is self-limiting behavior.” AR 765. 3 Occupational therapist Jackie Earl indicated that Plaintiff was convinced he was 4 unable to work and described his “overall disability outlook.” AR 808-09. Physical 5 therapist Amy Conrad noted that Plaintiff demonstrated “various levels of ability 6 and pain at different times.” AR 810. Affirmative evidence of malingering supports 7 rejecting a claimant’s testimony. See Benton ex. el. Benton v. Barnhart, 331 F.3d 8 1030, 1040 (9th Cir. 2003). 9 In addition to malingering, the ALJ provided multiple clear and convincing 10 reasons for discrediting Plaintiff’s subjective complaint testimony. AR 27-30. 11 First, the ALJ noted that Plaintiff’s condition markedly improved after his April 12 2013 back surgery. AR 29. At his two-week follow-up appointment with his 13 surgeon, Plaintiff had some low back pain but was able to stand up, sit down, and 14 ambulate without difficulty. AR 733. Two months later, his surgeon noted that he 15 was improving steadily and taking less pain medication, although he still had 16 limited lumbar range of motion. AR 732. His pain at this time was 7/10. AR 732. 17 Another two months later, in August 2014, Plaintiff’s surgeon noted that he was 18 still improving gradually and that his pain had decreased to 5/10. AR 730-31. 19 By January 2014, Plaintiff felt he had “improved significantly from his 20 symptoms before surgery” and he denied any pain in his legs, AR 722— ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 10 1 contradicting his testimony at the hearing that his leg pain got worse after surgery. 2 See AR 55. By this time, he improved to having moderate lumbar range of motion. 3 AR 722. At the June 2014 IME with Dr. Seltzer, Plaintiff reported that the surgery 4 “helped a whole lot.” AR 758. He stated he went through rehabilitation, felt much 5 stronger, and had less pain. AR 758. He stated his pain was 2/10 or 3/10 and the 6 only pain medication he took was a muscle relaxant and ibuprofen. AR 758. Dr. 7 Seltzer concluded that Plaintiff’s conditions were at maximum medical 8 improvement. AR 768. An ALJ may find a claimant’s subjective symptom 9 testimony not credible based on evidence of effective responses to treatment. See, 10 e.g., Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005); 20 C.F.R. §§ 11 404.1529(c)(3)(v), 416.929(c)(3). 12 Second, the ALJ reasoned that Plaintiff’s allegations of completely 13 debilitating physical limitations were inconsistent with his spinal examination 14 findings, many of which were essentially normal. AR 30; see AR 718, 720, 726. 15 An ALJ may discount a claimant’s subjective symptom testimony when it is 16 inconsistent with the medical evidence. Carmickle v. Comm’r of Soc. Sec. Admin., 17 533 F.3d 1155, 1161 (9th Cir. 2008); Tonapetyan v. Halter, 242 F.3d 1144, 1148 18 (9th Cir. 2001). 19 20 Third, the ALJ found that Plaintiff’s allegations of completely disabling limitations were belied by his daily activities. AR 30. For example, Plaintiff ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 11 1 reported to his psychologist, Dr. Andrew Whitmont, that he walked outdoors at 2 least three times per week to deal with his mental stressors, see AR 751, which 3 implies that he was more physically capable than he alleged. See AR 55-56. 4 Activities inconsistent with the alleged symptoms—even when they suggest some 5 difficulty functioning—are proper grounds for questioning the credibility of 6 subjective allegations when the person claims a totally disabling impairment. 7 Molina, 674 F.3d at 1113; see also Rollins, 261 F.3d at 857; 20 C.F.R. §§ 8 404.1529(c)(3)(i). 9 Fourth, the ALJ properly discounted Plaintiff’s credibility due to the 10 discrepancies between his alleged limitations and his behavior during the hearing. 11 See AR 30. Plaintiff testified that he had to change from standing to sitting every 12 10 to 15 minutes and had to be constantly moving, otherwise he would get cramps 13 in his foot, hip, and leg. AR 54. However, at the hearing, the ALJ observed that he 14 sat comfortably after the first 15 minutes and also never needed to stand. AR 30. 15 An ALJ may rely on ordinary techniques of credibility evaluation, including the 16 claimant’s actions at the hearing if they are inconsistent with his or her complaints. 17 Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 18 Finally, the ALJ discounted Plaintiff’s subjective complaint testimony 19 because he discontinued treatment. AR 31. Despite his allegations of completely 20 debilitating mental conditions, Plaintiff was sporadic about taking his ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 12 1 antidepressant medication. AR 717, 944, 1068, 1075. During a July 2015 2 psychiatric IME, he stated he was “not interested in additional psychiatric 3 treatment.” AR 1068. Importantly, Plaintiff also received a pension from the 4 Washington State Department of Labor & Industries on November 16, 2015— 5 meaning that he was at maximum medical improvement and no longer needed any 6 additional medical treatment. 2 AR 464. Accordingly, Plaintiff stopped seeking 7 medical treatment. AR 462, 1070. An ALJ may discount a claimant’s subjective 8 complaints when treatment is inconsistent with the level of complaints or a 9 claimant is not following treatment prescribed without good reason. Molina, 674 10 F.3d at 1114; Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). If a claimant’s 11 condition is not severe enough to motivate them to follow the prescribed course of 12 treatment, this calls their alleged limitations into question. Burch, 400 F.3d at 681. 13 Plaintiff fails to explain how the ALJ erred in relying on any of the above 14 reasons for discrediting his subjective pain testimony. See ECF No. 11 at 8-9. 15 Instead, Plaintiff argues that the ALJ simply gave a “vague regurgitation” of the 16 medical evidence and then provided “conclusory statements” finding his testimony 17 2 18 19 20 Plaintiff faults the ALJ for reasoning that his pension award meant that he no longer needed treatment. ECF No. 11 at 14-15. He argues this was “misleading and inaccurate.” ECF No. 11 at 15. Contrary to Plaintiff’s assertions, this is precisely what a pension award means— the Department of Labor & Industries does not award pensions to injured workers unless the worker is fixed, stable, and no longer in need of medical treatment. See, e.g., Wilson v. Dep’t of Labor & Indus., 6 Wn. App. 902, 904, 496 P.2d 551 (1972). In fact, this is illustrated in this case, where all of Plaintiff’s medical providers unanimously agreed that he was at maximum medical improvement by November 2015. See AR 768, 855, 1070, 1076, 1082. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 13 1 not credible. ECF No. 11 at 8-9. As outlined above, this is incorrect—the ALJ 2 discounted Plaintiff’s subjective complaint testimony because there was evidence 3 of malingering, and the ALJ also provided multiple additional clear and convincing 4 reasons for doing so. 5 B. 6 The ALJ did not Err in Weighing the Medical Opinion Evidence Plaintiff argues the ALJ erred in weighing the medical opinion evidence 7 from four providers: (1) evaluating psychologist Dr. Roland Dougherty, Ph.D.; (2) 8 treating psychologist Dr. Andrew Whitmont, Ph.D.; (3) occupational therapist 9 Jackie Earl; and (4) nurse practitioner Lisa Rutherford, ARNP. ECF No. 11 at 9- 10 14. Plaintiff also appears to argue that the ALJ failed to adequately consider the 11 Department of Labor & Industries’ pension determination. Id. at 14-15. 12 1. 13 Title II’s implementing regulations distinguish among the opinions of three Legal standards 14 types of physicians: (1) those who treat the claimant (treating physicians); (2) those 15 who examine but do not treat the claimant (examining physicians); and (3) those 16 who neither examine nor treat the claimant but who review the claimant’s file 17 (nonexamining physicians). Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th 18 Cir. 2001); see 20 C.F.R. § 404.1527(c)(1)-(2). Generally, a treating physician’s 19 opinion carries more weight than an examining physician’s, and an examining 20 physician’s opinion carries more weight than a nonexamining physician’s. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 14 1 Holohan, 246 F.3d at 1202. In addition, the regulations give more weight to 2 opinions that are explained than to those that are not, and to the opinions of 3 specialists concerning matters relating to their specialty over those of non- 4 specialists. Id. 5 If a treating or examining physician’s opinion is uncontradicted, an ALJ 6 may reject it only by offering “clear and convincing reasons that are supported by 7 substantial evidence.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) 8 (citation omitted). If a treating or examining doctor’s opinion is contradicted by 9 another doctor’s opinion, an ALJ may only reject it by providing “specific and 10 legitimate reasons that are supported by substantial evidence.” Id. 11 The ALJ satisfies the specific and legitimate standard by “setting out a 12 detailed and thorough summary of the facts and conflicting clinical evidence, 13 stating his [or her] interpretation thereof, and making findings.” Garrison v. 14 Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (internal quotation marks omitted). In 15 contrast, an ALJ fails to satisfy the standard when he or she “rejects a medical 16 opinion or assigns it little weight while doing nothing more than ignoring it, 17 asserting without explanation that another medical opinion is more persuasive, or 18 criticizing it with boilerplate language that fails to offer a substantive basis for his 19 [or her] conclusion.” Id. at 1012-13. 20 /// ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 15 1 2. Dr. Roland Dougherty, Ph.D. 2 Dr. Dougherty is an examining psychologist who evaluated Plaintiff in 3 March 2015. AR 1048-1060. Dr. Dougherty diagnosed Plaintiff with adjustment 4 disorder with depression and anxiety, chronic pain syndrome, and chronic pain. 5 AR 1052. He opined that Plaintiff’s prognosis was fair. AR 1053. He noted that 6 Plaintiff had no difficulty answering questions, had good social skills, and that 7 Plaintiff’s thinking was logical and goal-directed. AR 1053. He believed Plaintiff 8 was able to do detailed and complex tasks, accept instructions from supervisors, 9 and interact with coworkers and the public. AR 1053. He also thought Plaintiff 10 would be able to continue to do these things going forward. AR 1053. The ALJ 11 gave significant weight to this portion of Dr. Dougherty’s opinion and incorporated 12 it into the residual functional capacity. See AR 27, 33. 13 However, the ALJ gave less weight to other portions of Dr. Dougherty’s 14 testimony, which Plaintiff argues was error. See AR 34. Dr. Dougherty also opined 15 that the primary reason Plaintiff could not work was his pain syndrome. AR 1053. 16 Dr. Dougherty believed that if Plaintiff’s pain were alleviated, his depression 17 would decrease and he would have no difficulty completing a normal 18 workday/workweek. AR 1053. However, Dr. Dougherty opined that at the time of 19 his evaluation, Plaintiff’s depression and intermittent anxiety could interfere with 20 gainful employment, as well as affect his ability to deal with stress. AR 1053-54. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 16 1 Because Dr. Dougherty was an examining psychologist whose opinion was 2 contradicted, the ALJ had to provide specific and legitimate reasons for 3 discounting it. Bayliss, 427 F.3d at 1216. 4 Here, the ALJ did. First, the ALJ reasoned that Dr. Dougherty reviewed 5 almost no medical records from any other provider as part of his evaluation, which 6 would have indicated that Plaintiff was less limited than he reported. 3 AR 34. A 7 doctor’s failure to review other medical records in a case is a basis to discount that 8 doctor’s opinion. Bayliss, 427 F.3d at 1217. 9 Secondly (and relatedly), the ALJ reasoned that Dr. Dougherty’s additional 10 work restrictions did not appear to be based on any objective evidence but rather 11 entirely on Plaintiff’s self-reports of his physical pain symptoms, which as 12 discussed above, the ALJ did not find credible. AR 34; see supra p. 9-14. Had Dr. 13 Dougherty reviewed Plaintiff’s medical records, for example, he would have 14 known that Plaintiff was only taking minimal pain medication at the time of the 15 evaluation, AR 34, 939, 1075, 1082—indicating that he may have overestimated 16 the debilitating effects of Plaintiff’s pain. Accordingly, the ALJ appropriately 17 rejected the portions of Dr. Dougherty’s opinion that were based on Plaintiff’s self- 18 reported diagnoses and symptoms, which the ALJ did not find credible. See 19 20 3 The only medical record Dr. Dougherty reviewed was one chart note from an appointment Plaintiff had in December 2014. See AR 1050. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 17 1 Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014); Burkey v. Colvin, 284 F. 2 Supp. 3d 420, 425 (W.D.N.Y. 2018). An ALJ may discount even a treating 3 psychologist’s opinion about a claimant’s psychological limitations if that opinion 4 rests on the claimant’s self-reports of his or her physical ailments. Sandgathe v. 5 Chater, 108 F.3d 978, 980 (9th Cir. 1997). To the extent the ALJ finds that the 6 claimant’s self-reports are exaggerated, the ALJ may determine that the 7 physician’s opined psychological limitations are unreliable as well. Id. 8 Finally, the ALJ noted that Plaintiff’s pain could be severely reduced if he 9 took his prescribed pain medication, instead of only the muscle relaxer, Tylenol, 10 and ibuprofen. AR 34. An impairment that can be controlled effectively with 11 treatment is not disabling for Social Security purposes. Warre v. Comm’r of Soc. 12 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Given that Plaintiff’s subjective 13 pain was the basis for Dr. Dougherty’s work restrictions, the ALJ properly 14 discounted Dr. Dougherty’s opinion to the extent that pain could be effectively 15 controlled. 16 Plaintiff argues that the ALJ erred in giving significant weight to portions of 17 Dr. Dougherty’s opinions, while giving less weight to other portions. ECF No. 11 18 at 12. This was entirely proper. See Magallanes v. Bowen, 881 F.2d 747, 753–754 19 (9th Cir. 1989) (an ALJ does not have to adopt a physician’s opinion in its entirety 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 18 1 and can properly reject portions of it); accord Russell v. Bowen, 856 F.2d 81, 83 2 (9th Cir. 1988). 3 4 Because the ALJ offered specific and legitimate reasons for discounting a portion of Dr. Dougherty’s opinion, the Court finds the ALJ did not err.4 5 3. 6 Dr. Whitmont was a treating psychologist who Plaintiff saw for Dr. Andrew D. Whitmont, Ph.D. 7 psychotherapy between January 2014 and June 2014. AR 745-756. Dr. Whitmont 8 diagnosed Plaintiff with major depressive disorder and pain disorder, which was 9 associated with psychological factors and also a general medical condition. AR 10 755. He also concluded that Plaintiff had a Global Assessment of Functioning 11 (GAF) score of 45, which indicated severe impairment in functioning. AR 756. Dr. 12 Whitmont did not believe Plaintiff’s depression interfered with his ability to 13 work—rather, he believed Plaintiff’s depression was a result of him being 14 unemployed. AR 748. By the end of Plaintiff’s psychotherapy treatment, Dr. 15 Whitmont believed Plaintiff had “pull[ed] himself out of his depression,” but that 16 Plaintiff’s pain disorder prevented him from returning to work. AR 745-46. 17 18 19 20 4 The ALJ also discounted portions of Dr. Dougherty’s opinion on the grounds that: (1) Dr. Dougherty failed to address how the recent death of Plaintiff’s mother may have impacted his testing; and (2) Dr. Dougherty did not explain the apparent inconsistency of his conclusions with a Global Assessment of Functioning (GAF) score of 60. AR 34. Given the longitudinal record of Plaintiff’s mental health treatment and the ALJ’s finding that GAF scores are unreliable, these grounds were likely improper. However, the other specific and legitimate reasons outlined above each independently support discounting Dr. Dougherty’s opinion. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 19 1 Because Dr. Whitmont was a treating psychologist whose opinion was 2 contradicted, the ALJ again had to provide specific and legitimate reasons for 3 discounting it. Bayliss, 427 F.3d at 1216. 4 The ALJ assigned minimal weight to Dr. Whitmont’s opinion. AR 33. First, 5 the ALJ reasoned that his opinion was internally inconsistent with respect to 6 whether Plaintiff’s depression prevented Plaintiff from working, and was also 7 externally inconsistent with Plaintiff’s overall treatment history for depression. AR 8 33. It seems the ALJ misinterpreted Dr. Whitmont’s opinion— Dr. Whitmont only 9 believed Plaintiff’s pain disorder prevented him from working; not his depression. 10 11 AR 745. However, the ALJ also offered another reason: he discounted Dr. 12 Whitmont’s opined limitations for the exact same reason he discounted Dr. 13 Dougherty’s—they were not based on any objective evidence but rather were 14 based entirely on Plaintiff’s self-reports of his physical pain symptoms. AR 33; see 15 AR 755 (describing results of pain diagram). As discussed in detail above, this was 16 a specific and legitimate reason to discount the opinion. See supra p. 9-14, 17-19. 17 The ALJ also gave Dr. Whitmont’s GAF scores—which ranged from 35 to 18 60—very little weight for three reasons. AR 34. First, the ALJ found that the 19 scores rely too much on a person’s self-reported symptomology and Plaintiff was 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 20 1 not credible.5 AR 34. Second, the ALJ reasoned that the latest version of the 2 Diagnostic and Statistical Manual of Mental Disorders got rid of the GAF scale 3 due to its “conceptual lack of clarity” and “questionable psychometrics.” AR 34; 4 see AMERICAN PSYCHIATRIC ASS’N, Diagnostic & Statistical Manual of Mental 5 Disorders, 16 (5th ed. 2013) (DSM-5). Finally, the ALJ noted that the 6 Commissioner has determined that the GAF scale has no “direct correlation to the 7 severity requirements” in the Social Security Administration’s mental disorders 8 listings. 6 AR 34-35 (quoting 65 Fed.Reg. 50,746, 50,765 (Aug. 21, 2000)); see 9 McFarland v. Astrue, 288 F. App’x 357, 359 (9th Cir. 2008). 10 The Ninth Circuit has held that ALJs do not err when they decline to address 11 medical providers’ GAF scores, given that a GAF score is merely a rough estimate 12 of an individual’s psychological, social, or occupational functioning used to reflect 13 an individual’s need for treatment, but it does not have any direct correlative work- 14 related or functional limitations. See Hughes v. Colvin, 599 Fed. Appx. 765, 766 15 (9th Cir. 2015); Garrison v. Colvin, 759 F.3d 995, 1003 n.4 (9th Cir. 2014). Even 16 more importantly, neither Dr. Dougherty nor Dr. Whitmont relied on or even 17 5 18 19 20 Plaintiff argues that this reason was improper because he had “consistently and accurately reported his condition” and there was no basis to believe his symptoms would be unreliable. ECF No. 11 at 12. Given that the record contains evidence of malingering, see supra p. 9-10, this is inaccurate. 6 This appears to no longer be the case, as the Social Security Administration has since published an administrative message stating, “We consider a GAF rating as opinion evidence.” SSA Administrative Message 13066 (effective July 22, 2013); see also Craig v. Colvin, 659 F. App’x 381, 382 (9th Cir. 2016). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 21 1 mentioned their GAF scores in assessing Plaintiff’s work limitations—rather, they 2 relied on their perceptions of Plaintiff’s pain disorder/pain syndrome. AR 745-756, 3 1053-54. Thus, because their GAF scores in these circumstances are immaterial 4 and not part of a broader opinion regarding any corollary limitations, the ALJ did 5 not err in giving them little weight. See Jones v. Colvin, 634 F. App’x 168, 170 6 (9th Cir. 2015) (holding that ALJs may give GAF scores minimal weight in the 7 face of other conflicting record evidence); Lopez v. Comm’r of Soc. Sec., No. 1:16- 8 CV-00842-EPG, 2017 WL 6405624, at *2 (E.D. Cal. Dec. 14, 2017). 9 4. 10 11 Nonmedical “Other Source” Opinions a. Lower legal standard Importantly, the “specific and legitimate” standard analyzed above only 12 applies to evidence from “acceptable medical sources.” Molina, 674 F.3d at 1111. 13 These include licensed physicians (e.g., Dr. Walby), licensed psychologists (e.g., 14 Dr. Marks), and various other specialists. See former 20 C.F.R. §§ 404.1513(a) 15 (2014). 16 “Other sources” for opinions—such as nurse practitioners, physician’s 17 assistants, therapists, teachers, social workers, chiropractors, and other nonmedical 18 sources—are not entitled to the same deference as acceptable medical sources.7 19 7 20 For claims filed on or after March 27, 2017, licensed nurse practitioners and physician assistants can qualify as acceptable medical sources in certain situations. See 20 C.F.R. § 404.1502(a)(7)-(8). Plaintiff filed his claim in 2014, so this does not apply here. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 22 1 Molina, 674 F.3d at 1111; Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016); see 2 20 C.F.R. § 404.1527(f). ALJs must consider nonmedical sources’ lay observations 3 about a claimant’s symptoms or how an impairment affects ability to work. Nguyen 4 v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). An ALJ may discount a 5 nonmedical source’s opinion by providing reasons “germane” to each witness for 6 doing so. Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017); Dodrill v. Shalala, 7 12 F.3d 915, 919 (9th Cir. 1993). 8 9 b. Jackie Earl, O.T. Jackie Earl is an occupational therapist who treated Plaintiff between June 10 2013 and October 2014. AR 807-933. In April 2014, Ms. Earl performed a 11 functional capacity evaluation (FCE) on Plaintiff and concluded that he was unable 12 to return to work on a full-time basis at that time. AR 855. She opined that Plaintiff 13 had difficulty carrying, lifting, pushing, and pulling, and also required positional 14 changes throughout the evaluation. AR 855. She concluded that Plaintiff 15 demonstrated skills within the sedentary-light physical demand category, but could 16 not tolerate fulltime work due to his limitations. AR 855. 17 Later, in October 2014, Ms. Earl evaluated Plaintiff again as part of his 18 discharge from a work conditioning program. AR 807. After this evaluation, she 19 concluded that Plaintiff demonstrated improved skills within the light physical 20 demand category. AR 808. However, she noted that Plaintiff did not “see himself ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 23 1 returning to work,” that he “demonstrated a recent attitude of hopelessness,” and 2 that he was “resigned to significant limitations.” AR 808. She concluded that he 3 was unemployable in part due to his “overall disability outlook.” AR 808. 4 The ALJ assigned minimal weight to Ms. Earl’s opinions and gave two 5 germane reasons for this decision. See AR 32. Plaintiff, however, does not 6 challenge either of these two reasons. See ECF No. 11 at 9-11. Rather, Plaintiff 7 argues that the ALJ should have considered Ms. Earl’s findings from the April 8 2014 FCE in determining his residual functional capacity, as opposed to Ms. Earl’s 9 most recent findings at the end of his treatment. ECF No. 11 at 10-11. 10 An ALJ may consider evidence of improvement with treatment when 11 weighing medical opinions. Thomas, 278 F.3d at 957; Amy S. v. Berryhill, No. 12 C18-0427-MAT, 2018 WL 6042315, at *4 (W.D. Wash. Nov. 19, 2018). Although 13 Plaintiff argues that the ALJ should have relied on the April 2014 evaluation, that 14 evaluation was done early in Plaintiff’s treatment and thus did not reflect the 15 improvement in Plaintiff’s condition evidenced by subsequent treatment records. 16 See Abrahamson v. Colvin, No. 2:14-CV-00308-RHW, 2016 WL 498067, at *6 17 (E.D. Wash. Feb. 8, 2016) (Whaley, J.). As detailed above, supra p. 10-11, 18 Plaintiff’s post-surgery treatment records indicate that his condition improved 19 dramatically. In light of the significant improvement in Plaintiff’s condition 20 subsequent to Ms. Earl’s April 2014 FCE, the ALJ properly relied on her most ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 24 1 recent medical records, as these most accurately reflected Plaintiff’s true 2 limitations. See Abrahamson, 2016 WL 498067, at *6. 3 c. 4 Lisa Rutherford, ARNP Lisa Rutherford is a nurse practitioner who Plaintiff saw for primary care 5 starting around the time of his industrial injury in fall 2012 and continuing through 6 when he was awarded a pension in November 2015. AR 939-1043, 1070-1084. She 7 opined that Plaintiff was incapable of even sedentary exertion, and that Plaintiff’s 8 condition was permanent. AR 953, 973, 976, 980, 985, 988, 990, 997, 1072, 1077, 9 1081. 10 The ALJ did not state specifically how much weight he assigned to Nurse 11 Rutherford’s opinions, but he did not find them persuasive. See AR 32. The ALJ 12 offered a germane reason for this decision, reasoning that Nurse Rutherford’s 13 opined limitations were inconsistent with her contemporaneous examination 14 findings. AR 32. On occasions that Nurse Rutherford examined Plaintiff, she 15 found only “mild decreased” lumbar range of motion, no palpable tenderness, and 16 negative straight leg raise tests. AR 977, 991. A discrepancy between a doctor’s 17 recorded observations and opinions is a clear and convincing reason (and therefore, 18 necessarily also a “germane” reason) for not relying on that opinion. Bayliss, 427 19 F.3d at 1216. Therefore, the ALJ did not err in discounting Nurse Rutherford’s 20 opinion. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 25 1 5. Department of Labor & Industries’ Pension Determination 2 Plaintiff also argues that the ALJ failed to adequately consider the 3 Washington Department of Labor & Industries’ determination that awarded him a 4 pension. ECF No. 11 at 14-15. He argues this was “persuasive evidence” of 5 disability. Id. at 15. However, as the ALJ correctly noted and Plaintiff also appears 6 to concede, the state workers’ compensation system and the Social Security 7 Administration have different legal standards, regulatory evaluations, and 8 processes to determine disability, and a Labor & Industries decision does not bind 9 an ALJ. See AR 33; 20 C.F.R. § 404.1504. 10 C. The ALJ did not Improperly Assess Plaintiff’s Residual Functional Capacity by Failing to Include all his Restrictions 11 Plaintiff briefly argues that the ALJ’s residual functional capacity 12 determination did not account for all of his limitations. ECF No. 11 at 15. 13 Specifically, he argues the ALJ did not incorporate his impairments as opined by 14 Ms. Earls, Nurse Rutherford, Dr. Dougherty, or Dr. Whitmont. ECF No. 11 at 1515 17. The Court disagrees. 16 When determining Plaintiff’s residual functional capacity, the ALJ 17 specifically stated that he “considered all symptoms and the extent to which these 18 symptoms can reasonably be accepted as consistent with the objective medical 19 evidence.” AR 27. The ALJ included all of Plaintiff’s limitations, and the only 20 omitted limitations were those that the ALJ found did not exist. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 26 1 Plaintiff’s argument here that the residual functional capacity did not 2 account for all his limitations essentially just restates his prior arguments that the 3 ALJ should not have rejected the opinions of his medical providers. Courts 4 routinely reject this argument. See Stubbs-Danielson, 539 F.3d 1169, 1175-76 (9th 5 Cir. 2008); Rollins, 261 F.3d at 857. Because the ALJ included all of the 6 limitations that he found to exist, and because substantial evidence supports those 7 findings, the ALJ did not err in omitting the other limitations that Plaintiff claims, 8 but failed to prove. See Rollins, 261 F.3d at 857. Accordingly, the ALJ properly 9 determined Plaintiff’s residual functional capacity. 10 D. The Medical-Vocational Guidelines (Grid) Rule 201.10 is Inapplicable 11 Finally, Plaintiff argues that if the Court finds that he is limited to sedentary 12 work, Medical-Vocational Rule 201.10 is applicable. This rule yields a decision of 13 “disabled” when the claimant is limited to sedentary work, between the ages of 50 14 and 54, has limited education, and has previous skilled or semi-skilled work that is 15 not transferable. 20 C.F.R. § Pt. 404, Subpt. P, App. 2. 16 However, as discussed above, the ALJ found that Plaintiff can perform light 17 work as defined in 20 C.F.R. 4041567(b) and substantial evidence supports this 18 finding. See AR 27. Thus, Rule 201.10—which only applies to sedentary work—is 19 inapplicable. The appropriate rule would be Rule 202.11, which applies to 20 claimants capable of light work, who are between the ages of 50 and 54, who have ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 27 1 limited or less education, and have previous skilled or semi-skilled work that is not 2 transferable. 20 C.F.R. § Pt. 404, Subpt. P, App. 2. This rule, however, yields a 3 decision of “not disabled.” Id. 4 VIII. Order 5 Having reviewed the record and the ALJ’s findings, the Court finds the 6 ALJ’s decision is supported by substantial evidence and is free from legal error. 7 Accordingly, IT IS ORDERED: 8 1. Plaintiff’s Motion for Summary Judgment, ECF No. 11, is DENIED. 9 2. Defendant’s Motion for Summary Judgment, ECF No. 15, is 10 GRANTED. 11 3. Judgment shall be entered in favor of Defendant and the file shall be 12 CLOSED. 13 IT IS SO ORDERED. The District Court Executive is directed to enter this Order, 14 forward copies to counsel, and close the file. 15 DATED this 29th day of March, 2019. 16 17 s/Robert H. Whaley ROBERT H. WHALEY Senior United States District Judge 18 19 20 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ~ 28

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